JUDGMENT
S.K. Gupta, J.
1. The petitioners, in both the writ petitions (SWF No. 1208/1986 and SWP No. 3586/1997), seek quashing of Order No. 1263 of 1985 dated 03-12-1985, passed by respondent-2 as a consequence of which respondents-3 to 134 who were brought on promotion list ‘E’ vide PHQ Orders No. 282 and No. 283 of 1978 dated 25-04-1978 barring those who otherwise stand disqualified and have not so far been promoted as Sub-Inspectors, shall be deemed to have been promoted as Sub-Inspectors for the purpose of seniority only with effect from 25-04-1978, the date when they were brought in promotion list ‘E’ to the disadvantage of the petitioners and consequential writ of mandamus directing the official-respondents not to take into consideration the impugned order of notional promotion for preparation of list-‘F’ or making promotions to the posts of Inspectors and declare the petitioners as senior to non-official respondents, who have been promoted to the posts of Sub-Inspectors after 25-04-1979.
2. Vide Order No. 308 of 1979 dated 25-04-1979 issued by the then Inspector General of Police, Jammu and Kashmir, the petitioners were directly appointed as Sub-Inspectors of Police (Executive) against clear available vacancies of Sub-Inspectors. Their appointment order, however, clearly indicated that their inter-se seniority would be decided on the strength of merit acquired in the Initial Course at the Police Training College, Phillaur. Petitioners were put on probation for three years in terms of the aforesaid order. Petitioners, however, completed their Initial Training Course at Phillaur and also probation period. Whereas respondents-3 to 134, who were substantively holding the posts of Assistant Sub-Inspectors of Police were brought on promotion list ‘E’, subject to the conditions noted against each in the orders No. 282 and No. 283 of 1978 dated 25-04-1978 and reflected in the lists issued by the Inspector General of Police, Jammu and Kashmir State. It is stated that the Assistant Sub-Inspectors, who were brought on promotion list ‘E’, were promoted and appointed to the next higher post of Sub-Inspectors much after placing these officers on promotion lists ‘E’ and subject to the fulfilment of the conditions laid down against each in the order. Respondent-2, Director General of Police, passed Order No. 1263 of 1985 dated 03-12-1985 on the representation of one Satpaul Sharnia, S.I. No. 1010/NGO and Ghulam Qadir Dar, S.I. No. 999/NGO figuring at Sr. Nos.67 and 127 in the array of respondents. That all those Assistant Sub-Inspectors, who were brought on promotion list ‘E’ vide orders No. 282 and No. 283 of 1978 dated 25th April, 1978 barring those who stand disqualified and have not so far been promoted as Sub-Inspectors shall be deemed to have been promoted as such for the purpose of only their seniority with effect from 25th April, 1978, the day they were placed in the promotion list ‘E’. In the aforesaid order, the promotions of those persons out of the respondents, who had already passed the upper class course had been ordered and the seniority of those respondents, who had to be promoted after passing the upper class course, had been protected. The representation filed by the petitioners/direct recruits against the aforesaid order of promotion of the non-official respondents with effect from the date they were placed in promotion list ‘E’ being unconstitutional and affecting their seniority adversely in seeking its rescission, however, was rejected by respondent-2.
3. The grievance of the petitioners is that vide order dated 03-12-1985, promotions of those officers who were brought on promotion list ‘E’ vide orders No. 282 and No. 283 of 1978 dated 25-04-1978 and had been promoted to the posts of Sub-Inspectors after the appointment of direct recruits against the existing vacancies, have been given retrospective effect. In other words, petitioners are aggrieved of the impugned order so far as it gives retrospective effect to those respondents who have been promoted to the posts of Sub-Inspectors after 25-04-1979, out of the respondents in Writ Petition No. 1208/1986. The petitioners further submitted that since the order impugned does not enclose list of the persons, though have been promoted after 25-04-1979 but have been given retrospective promotion as Sub-Inspectors, their names could not be specifically indicated and, thus, all have been made parties, viz., 3 to 134 as respondents in the writ petition, SWP No. 1208/1986. According to the petitioners, the impugned order dated 03-12-1985 has been passed in complete derogation of the rules and to the detrimental of their legitimate claims of seniority over those Assistant Sub-Inspectors who have been promoted to the post of Sub-Inspectors after 25-04-1979, i.e., after the appointment of the petitioners to the posts of Sub-Inspectors. The petitioners further stated to have learnt that the respondents are preparing the promotion list on the basis of the impugned order dated 03-12-1985 for promotion to the posts of Inspectors of Police. The petitioners also challenged the action of the Director General of Police in giving retrospective seniority to those Sub-Inspectors who had been brought on promotion list ‘E’ on 25-04-1978, but were not actually promoted to the post of Sub-Inspectors from 25-04-1978 having not eligible for promotion, at the cost of the established seniority rights of the petitioners and is, therefore, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
4. Further case of the petitioners is that certain documents were not available at the time of filing of writ petition, SWP No. 1208/1986, and which came in their possession at the time of commencement of SWP No. 3586/1997 and were, accordingly, annexed with it. Order No. 141 of 1980 dated 14-04-1980 passed by the Deputy Inspector General of Police, Kashmir, accorded sanction to the officiating promotions of Assistant Sub-Inspectors of Kashmir Range with effect from 15th April, 1980 against the vacancies of Inspectors/Sub-Inspectors undergoing practical training. The persons indicated in the aforesaid order figure in the array of respondents from Sr. Nos.125 to 134 in SWP No. 1208/1986. It was contended that, in fact, there were no posts of Sub-Inspectors available at the time when officiating promotions were accorded in favour of above said respondents-125 to 134. Another order annexed with SWP No. 3586/1997 came to be issued by the Director General of Police as Order No. 801 of 1985 dated 01-08-19985 on the representations of Satpaul Sharma, S.I. No. 1010/NGO and Ghulam Qadir Dar, S.I. No. 999/NGO, who also figure at Sr. Nos.67 and 127 as respondents in SWP No. 1208/1986. The aforesaid order provided that all the Sub-Inspectors brought on list ‘E’ for consideration of promotions vide orders No. 282 and 283 of 1978 dated 25-04-1978 shall be deemed senior and shall figure in the combined seniority list of Sub-Inspectors above the Sub-Inspectors directly appointed vide PHQ Order No. 308 of 1979 dated 25-04-1979, who happened to be the petitioners. This order, however, came to be subsequently cancelled vide Order No. 1262 of 1985 dated 03-12-1985 and on the same day, impugned order No. 1263 of 1985 dated 03-12-1985 has been passed by the Director General of Police. The petitioners in both the writ petitions are the direct recruits as Sub-Inspectors vide order dated 25th April, 1979 and are aggrieved of order No. 1263 of 1985 dated 03-121985 issued by the Director General of Police, respondent-2, in giving retrospective effect to the promotions of the Assistant Sub-Inspectors brought on promotion list ‘E’ and who had been promoted to the posts of Sub-Inspectors after the appointment of the petitioners against the existing available vacancies in Police Department vide order dated 25-04-1979, and claim to be put to their original position of seniority with all consequential benefits of promotion, without taking into consideration the impugned order of notional promotion of the respondents.
5. The stand of the respondents in their demurrer is that Departmental Promotion Committee considered the eligible Assistant Sub-Inspectors of Police in the year 1978 for bringing them on promotion list ‘E’ in order to promote as Sub-Inspectors of Police. As many as 72 Assistant Sub-Inspectors of Jammu Range were brought on promotion list ‘E’ vide Order No. 282 of 1978 dated 25-04-1978 and 60 Assistant Sub-Inspectors of Kashmir Range vide Order No. 283 of 1978 dated 25-04-1978 were brought on the promotion list ‘E’ of Sub-Inspectors of Police. It is further stated that some of the Assistant Sub-Inspectors of Police having not cleared the pre-promotional course (upper class course), in their case, it was made subject to passing of the said course, though their seniority was protected. Those Assistant Sub-Inspectors whose promotion to the post of Sub-Inspectors was made subject to the condition of their passing pre-promotional course, were deputed to undergo the said course in two batches. The first batch completed the course from 01-04-1978 to 31-08-1978 and the second batch from 01-10-1978 to March, 1979. When the Departmental Promotion Committee considered the eligible Assistant Sub-Inspectors for promotion to the posts of Sub-Inspectors, some of the Assistant Sub-Inspectors, who did not make the grade, could not be brought on the promotion list ‘E’. They are, however, stated to have filed writ petition No. 243/1978 entitled Jameed Ahmad and Ors. v. State and Ors., and obtained a stay order and, consequently, no promotion could be made even in respect of the Assistant Sub-Inspectors, who had passed pre-promotional course by March, 1979. According to the respondents, while the stay order in the aforesaid writ petition was in operation, an advertisement dated 06-09-1978 came to be issued inviting applications for the posts of Sub-Inspectors and Assistant Sub-Inspectors, by the official-Respondents. After the selection process, 41 Sub-Inspectors including the petitioners came to be recruited vide order dated 25-04-1979.
Sub-Inspectors, directly recruited, were, however, put on probation for a period of three years. It was during the course of their probation period, the stay order in writ petition No. 243/1978 stood vacated, but the Assistant Sub-Inspectors, who had already cleared their pre-promotional course, could not be promoted till 1985 when two of them made a representation to respondent-2 for redressal of their grievance. Their representation was examined and later on accepted by respondent-2 and passed Order No. 1263 of 1985 dated 03-12-1985, by which benefit of orders dated 25-04-1978 was given to the non-official respondents, but restoration of their seniority position was delayed. It is, however, not disputed that the petitioners were appointed as Sub-Inspectors vide order dated 25-04-1979. The respondents further emphasized that once an officer is brought on promotion list as per rules, thereafter, he is to be promoted to the next higher rank with effect from the date he is brought on promotion list, subject to the completion/fulfilment of the requisite conditions specified therein. The respondents also denied that the posts of Sub-Inspectors were substantively held by the petitioners. The petitioners were appointed as Sub-Inspectors for a period of three years and were undergoing practical training during this period up to 24-04-1982; whereas seniority of the non-official respondents, who had to undergo pre-promotional course, was even protected in taking into account the probation period of three years. Therefore, inter-se seniority of the direct recruits-Sub-Inspectors and the promotees-Sub-Inspectors, has been correctly determined and fixed. That the retrospective promotions of Assistant Sub-Inspectors brought on list ‘E’ were ordered in accordance with the rules under present set of circumstances. Further plea put across by the respondents is that order dated 03-12-1985 has, in reality, restored the order dated 01-08-1985 and the said order having not been challenged by the petitioners either in SWP No. 1208/1986 or SWP No. 3586/1997, both the writ petitions are not maintainable.
6. I have heard the learned counsel appearing for the respective parties in extenso. A minute examination of the facts on file has also been made.
7. In order to appreciate the controversy that has to be resolved between the parties, it is imperative to go into the rule position. Rules 382, 384 and 390, which are relevant to the present controversy, read as under:
“382. PROMOTION FROM ONE RANK OR GRADE TO ANOTHER RANK OR GRADE:-
(1) Promotion from one rank or grade to another rank or grade shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection. Specific qualifications whether in the nature of training courses passed or practical experience, shall be carefully considered in each case. When the qualifications of two officers or otherwise equal the senior shall be promoted.
(2) No lower subordinate will ordinarily be entrusted with the independent conduct of investigations or the independent charge of a police station or similar unit. It is necessary therefore that well educated constables, having the attributes necessary for bearing the responsibilities of upper subordinate rank should receive accelerated promotion so as to reach that rank as soon as they have passed the courses prescribed for and been tested and given practical training in the ranks of constable and head constable.
(3) For the purpose of regulating promotion among enrolled police officer, six promotion lists A, B, C, D, K and F shall be maintained. Lists A, B, C, and D shall be maintained in the offices of the Range Deputy Inspectors General of Police, as prescribed in rules 386, 387 and 388 and 389 and will regulate promotion to the ranks of head Constable junior Grade, head Constable Senior Grade and Assistant Sub-Inspector. Lists E and F shall be maintained in the office of the Inspector General of police as prescribed in rule 390 and 393(2) and will regulate promotion to the ranks of Sub-Inspector and Inspector.
Entry in or removal from A, B, C, D or E Lists shall be recorded in the Order Book and in the character roll of the police officer concerned.
These lists are nominal rolls of those officers whose admission to them has been authorised. No actual selection shall be made without careful examination of character rolls and confidential personal files.”
“384. POWER TO MAKE OFFICIATING PROMOTIONS:-
(1) Officiating promotions to the rank of Inspector, Sub-Inspector and Assistant Sub-Inspector shall be made by the Inspector General of Police.
(2) Officiating promotions to the rank of Assistant Sub-Inspector in appointments of duration up to 3 months shall be made by the Deputy Inspector General and all officiating promotions in the rank of Head Constable shall be made by the Superintendent of Police.
In making appointments under this rule, the Inspector General of Police shall give prior consideration to the claims of qualified and suitable men serving in the range in which the vacancy occurs,
(3) All promotions concerning upper subordinates made under this rule shall be published in the police Gazette, if in existence and notifications by the Range Deputy Inspector General of police shall be sent in through the Inspector General of Police, who shall have the power to revise such orders on recording reasons in each case. If a Deputy Inspector General of Police has not enough men on list D in his Range to fill up temporary appointments in either rank which he is required to make, he shall apply to the Inspector General of Police for an officer from any other range.”
“390 LIST E PROMOTION TO SUB-INSPECTORS:- (1) A list of all Assistant Sub-Inspectors who have been approved by the Inspector General of police as fit for trial in independent charge of a Police Station or for specialist posts on the establishment of sub-Inspectors, shall be maintained.
Half yearly reports on all men entered in the list maintained under this rule shall be furnished in the form and on the dates prescribed in rule 389(3).
(2) No Assistant Sub-Inspector shall be confirmed in a substantive vacancy in the rank of Sub-Inspector unless he has been tested for at least a year as an officiating Sub-Inspector in independent charge of a police station.”
8. Rule 382 deals exhaustively with the matters, which have to be considered while making promotions of Police Officers from one rank or grade to another. According to Sub-rule (3) of Rule 382, six promotion lists A, B, C, D, E and F are required to be maintained. While lists A, B, C and D deal with and regulate the promotions to the ranks of Head Constables Junior Grade, Head Constables Senior Grade and Assistant Sub-Inspectors. Lists E and F are maintained to regulate the promotions to the rank of Sub-Inspectors and Inspectors of Police. Sub-rule (3) further provides that these lists are nominal rolls of those officers whose enlistment has been authorised. However, no actual selection shall be made without careful examination of character rolls and personal files. In fact, this rule provides a mode and manner in preparation of promotion lists A to F.
9. Whereas Rule 390 of the Police Manual pertains to list ‘E’ and provides for maintaining the list of all Sub-Inspectors approved by the Inspector General of Police fit for trial for independent charge of the Police Station or for specialist post in establishment of Sub-Inspectors. However, Sub-rule(2) of the Rule provides that no Assistant Sub-Inspector shall be confirmed on the substantive vacancies in the rank of Sub-Inspectors unless he is tested for a year as officiating Sub-Inspector in independent charge of Police Station. However, for making officiating promotion to the rank of Sub-Inspectors of Police and Assistant Sub-Inspectors, Rule 384 deals with it and sub-rule (3) of Rule 384 provides that all promotions concerning upper subordinates made under this Rule shall be published in Police Gazette and enquiries by range DIG of Police shall be sent in through Inspector General of Police, who shall have power to revise orders in each case.
10. Whereas Rule 392 pertains to filling of the temporary vacancies in the rank of Sub-Inspectors. In filling the temporary vacancies in the rank of Sub-Inspector, Sub-rule (1) of Rule 392 provides that the object shall be to test the men on the list ‘E’ as far as possible in independent charge. The rule further provides that members officiating in higher rank are distributed evenly as possible.
11. Further, Rule 397 provides a publication of list ‘E’ in the Annual Police Gazette, if in existence indicating the names entered in the list in order of date of appointment, length of Police service deciding the relevant position of the Assistant Sub-Inspectors admitted on the same date. Ajoint reading of Rules 382, 384, 390, 392 and 397 of the Police Rules (supra) makes it abundantly clear that list ‘E’ constitutes an eligible panel of Assistant Sub-Inspectors to be promoted and appointed to the next higher post of Sub-Inspectors in accordance with the procedure provided by the subsequent Rules. It is further indisputably gatherable from Rule 384 when read with Sub-rule (2) of Rule 392 that before promoting/appointing by way of promotion to the posts of Sub-Inspector substantively, he has to be promoted and appointed on officiating basis in terms of Rule 384 and can be confirmed in terms of Sub-rule (2) of Rule 390 only after having been tested at least for one year as officiating Sub-Inspector with independent charge of the Police Station. The aforesaid Rules, therefore, in their plain and unambiguous language, contemplate that list ‘E’ is only pre-promotional list of eligible candidates to be promoted as Sub-Inspectors, whereas Rule 392 envisages that an officer whether in the rank of Assistant Sub-Inspector substantive or in the rank of officiating Sub-Inspector, if found not fit for promotion, the matter is to be reported to the Inspector General of Police for his removal from list ‘E’. The expression used in Rule 392 makes it pellucid that in case any Assistant Sub-Inspector or officiating Sub-Inspector is found unfit for promotion, he is required to be removed from list ‘E’; whereas, on the other hand, the Assistant Sub-Inspector, who is brought on promotion list ‘E’ qualifies successfully/fulfils the conditions, as laid down in Rules 384,’ 390 and 392, is entitled for being promoted as Sub-Inspector. Thus, giving clear meaning to the aforesaid Rules, it ordains that the promotion list ‘E’ is only a list of eligible persons to be appointed by way of promotion to the posts of Sub-Inspectors subsequently by a separate/independent order. This further demonstrates that under the aforesaid Rules, list ‘E’ is only a panel of eligible persons and not a promotion order. In fact, promotions from this list are made in accordance with the provisions of the Rules. It may further be manifested that substantive vacancies in the rank of Sub-Inspectors shall be filled up by promotion of the officers of list ‘E’ selected according to the principles laid down in Rule 382, which provides the guiding principles for preparing promotion lists A to F. So, Rules 382 to 399 of the Police Rules are general Rules governing the promotions of the Police officials.
12. Mr. M.H. Attar, learned counsel appearing for the petitioners, has produced a copy of Order No. 584 of 2003 dated 16-09-2003 to strengthen his argument that list ‘E’ under the Rules is not a promotion order, but only panel of eligible candidates, which clearly demonstrates that the Assistant Sub-Inspectors of J&K Armed Police, who are brought on promotion list ‘E’ vide APHQ Order No. 583 dated 16-03-2003 were promoted to the rank of Sub-Inspectors with immediate effect. It is, therefore, further established that when a person brought on promotion list ‘E’, it does not mean that he has been promoted to the post of Sub-Inspector. Unless a person is formally promoted to the post of Sub-Inspector, he cannot press his claim that he has been promoted substantively to the post of Sub-Inspector merely on the ground of having been brought in the panel of eligible candidates in promotion list ‘E’. Whereas Mr. M.A. Qayoom, learned counsel appearing for the non-official respondents, though admitted that for the purpose of regulating promotions of police officials, six promotion lists have to be maintained under Rule 382 in the Office of the Inspector General of Police and lists “E” and “F’ will regulate promotions to the ranks of Sub-Inspectors and Inspectors, but urged that a list of Assistant Sub-Inspectors who have been approved by the Inspector General of Police as fit for trial in independent charge of a Police Station or for a specialist post on the establishment of Sub-Inspectors shall be maintained and no Assistant Sub-Inspector be confirmed in substantive vacancies in the rank of Sub-Inspector under Rule 390 unless he has been tested at least for a year as an officiating Sub-Inspector in independent charge of a Police Station. He also contended that the Order dated 25th April, 1978, by virtue of which the non-official respondents are brought on promotion list ‘E’, is actually an order of promotion as Sub-Inspectors issued in their favour under Rule 399 of the Police Rules. He also submitted that respondents having been brought on the promotion list ‘E’ on the approval of the Inspector General of Police are fit for trial in independent charge of Police Station. This contention of the learned counsel manifestly appears to be devoid of any substance, while looking to the true import of the provisions of Rule 399 of the Police Rules, which provide a situation independent of Rule 390, as is gatherable from the provisions of Rule starting with non-obstante clause, notwithstanding the provisions contained in these Rules, and the same cannot be accepted. In such event, the private respondents, therefore, in terms of the Order dated 25-04-1978, cannot be said to have been promoted to the posts of Sub-Inspectors. They have been only brought on the promotion list and their promotion orders had to be issued by the official-respondents only subject to the fulfilment of the conditions mentioned against each by a separate/independent order.
13. As regards seniority, it is pertinent to point out that seniority is always an important factor even in case of a post to be filled in by promotion by way of selection. Officers of a given seniority are treated in the zone of consideration while making promotion even by way of selection. Fixation of seniority is, therefore, relevant for the purpose. Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, provides the principle for the determination of seniority of a Government servant. Seniority of a person, who is subject to these Rules, has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined from the date of his first appointment to such service, class, category or grade, as the case may be. The ‘date of first appointment’ means the date of first substantive appointment, i.e., the date of permanent appointment or the date of first appointment on probation against a clear vacancy, confirmation in the latter case would be subject to good work and conduct. Under this Rule, a member of a service, class, category or grade retains his seniority notwithstanding any delay in the completion of probation. It is apt to note that the rule speaks of the date of first appointment, hence seniority of the Government servant commences from the date of the issue of order of appointment. Thus, the seniority is a matter, which has its significance in the promotion and confirmation and the Government is bound to prepare seniority list in accordance with Rules governing the field. Whether a Government servant is appointed substantively to a post on a clear vacancy, his seniority is to be reckoned from that date notwithstanding that he is put on probation on its completion. In other words, it is implied that the service is to be counted from the date of entry into service.
14. It is not in dispute that the petitioners in both the writ petitions have been appointed on 25-04-1979 as Sub-Inspectors and their seniority, therefore, has to commence from that date notwithstanding that they have been put on probation for a period of three years. Therefore, the non-official respondents including respondents-125 to 134, whose names figured in Order No. 141 of 1980 dated 14-04-1980 issued by DIG of Police, Kashmir, as officiating promotions against the vacancies of Inspectors/Sub-Inspectors undergoing practical training, who have been promoted after 25th April, 1979 cannot claim to rank senior to the petitioners. It, therefore, follows that all those persons/respondents, who have been promoted after 25th April, 1979 (when the petitioners were appointed as direct recruits), have to be termed as junior to the petitioners. Under Rules 382 to 399, modes of promotions to the higher rank specified therein are provided. The non-obstante clause or expression used in Rule 399 further gives a discretion to the Inspector General of Police for making substantive promotions to the posts of Sub-Inspectors after holding oral/written test in addition to what is provided in other Rules referred supra.
15. The next question that falls for determination is whether the inter-se seniority between the petitioners who are the direct recruits, and the respondents-3 to 134 who had been promoted retrospectively though in their own quota, is arbitrary, illegal and inoperative as the order impugned purports to affect prejudicially the seniority of the petitioners. Mr. M.H. Attar, learned counsel appearing for the petitioners, strenuously urged that no person can be promoted with retrospective effect from the date when he was not borne on the cadre, so as to adversely affect the others. He further buttressed his argument in submitting that respondents having been promoted to the post of Sub-Inspectors after the recruitment of the petitioners vide order dated 25-04-1979 as Sub-Inspectors of Police, retrospective effect of promotion given to the respondents vide order No. 1263 dated 03-12-1985, is bad and needs to be quashed. He also contended that the impugned order is wholly illegal and unwarranted. According to Mr. Attar, the petitioners who are senior to the promottee-respondents, were made junior to them by the said order impugned in the writ petition, as it prejudicially affected the petitioners in regard to their seniority. Whereas Mr. Qayoom, learned counsel for the respondents, on the other hand, submitted that the case of private-respondents, however, is that they have been promoted to the rank of Sub-Inspectors in their own quota and the order dated 25-04-1978 by virtue of which they were brought on list ‘E’, is an order of promotion in their favour and when they completed upper training course, they had to be given the seniority from 25-04-1978 vide order dated 03-12-1985 by the Director General of Police and it is, therefore, not open to challenge.
16. Undoubtedly, the State can promote its employees with retrospective effect provided such retrospective promotion does not affect the right and seniority already earned by others. But in the present case, the order dated 03-12-1985 which purports to give promotion to the respondents retrospectively, seriously affects the petitioners having been directly recruited prior to the promotion of the respondents and is, thus, arbitrary and illegal. As already indicated above that the order dated 25-04-1978 vide which the respondents have been brought on list ‘E’ of Sub-Inspectors, is not an order of promotion and on the face of record constitutes only a panel of eligible Sub-Inspectors who, in accordance with the procedure provided by subsequent Rules, are to be promoted and appointed to the next higher post of Sub-Inspectors. (Rule 384 read with sub-rule (2) of Rule 390 referred supra). The said promoted respondents could not, in any circumstances, be given seniority over the direct recruits.
17. An identical matter came up for consideration before the Apex Court in case entitled State of Bihar and Ors. v. Sri Akhouri Sachindra Nath and Ors., AIR 1991 SC 1244, wherein it was held as under:
“12. In the instant case, the promotee respondents Nos. 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondents Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondents Nos.1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondents Nos.6 to 23 cannot be made senior to the respondents Nos.1 to 5 by the impugned Government orders as they entered into the said service by promotion after the respondents Nos.1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned Government orders made in annexures 8, 9 and 10 is unexceptionable.”
18. The ratio of the aforesaid judgment makes it abundantly clear that no person can be promoted from retrospective effect from the date when he was not borne on the cadre so as to adversely affect the others.
19. Non-official respondents, in the instant cases, were only brought on the promotion list ‘E’ of Sub-Inspectors and the orders of their promotions were still to be passed after completing the upper training course, whereas petitioners were directly recruited to the post of Sub-Inspectors. As. such, the said promotee-respondents could not, in any circumstances, be given seniority over the direct recruited-petitioners, vide order dated 03-12-1985 passed by respondent-2, Director General of Police. Retrospective promotions were given to the respondents by order of respondent-2, as a result of which seniority of petitioners changed to their detriment, and the petitioners were never given an opportunity of being heard, which also amounts to violation of rules of natural justice and principle of audi alteram partem, as also violative of Article 16 of the Constitution of India, as Civil Rights of the employees have been affected.
20. Even Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 in its plain language mandates the maintenance of the seniority of the direct recruits or the promotees from the date of appointment or from the date of promotion, whatever the case may be. This Rule applies to the direct recruits appointed against clear vacancies on substantive basis even on probation like the petitioners. On the other hand, in respect of the respondents, the promotion will take effect for the purpose of seniority from the date of the promotion against the post of Sub-Inspectors, i.e., only prospectively and not retrospectively. The action of respondent-2 in giving retrospective effect of the order impugned dated 3rd December, 1985 in according promotion to the respondents without protecting the interests of the petitioners either in the order or calling upon them to show cause regarding placement of the respondents over their head with effect from the date beyond their actual appointment by promotion is not only illegal, arbitrary and unjust, but also unconstitutional, violating the provisions of Article 14 of the Constitution of India. Mr. M.A. Qayoom, respondents’ counsel, at the last leg of his arguments, submitted that both the petitioners as well as non-official respondents have been promoted to the posts of Inspector and Dy. SP. Most of the officers who had been promoted to the post of Sub-Inspector in terms of order dated 25-04-1978, have retired from service. According to Mr. Qayoom, the question of seniority if opened after such a long delay would have the effect to render the settled matters as unsettled. His further submission is that if the respondents are to be pushed down, it would cause great hardship to them. I am unable to subscribe to this contention because if there is patent violation of the rule, the result must follow and the respondents who remained in the office for all these years cannot take the advantage of this situation. This submission is, therefore, devoid of any substance. The plea that it would cause great hardship to the respondents if their seniority is disturbed, is not legally tenable and, thus, cannot be accepted.
21. Be that as it may, I am of the considered view that the petitioners recruited to the post of Sub-Inspectors through direct recruitment in the quota of direct recruits and respondents promoted to the rank of Sub-Inspectors subsequently with retrospective effect vide order No. 1263 dated 03-121985, and promotees, in consequence, have become senior to direct recruits. The concept of retrospective promotion, is, thus, not contemplated by the rules and the manner of promotion is impermissible in law.
22. In the premises aforesaid, I allow the writ petitions and quash the impugned order dated 03-12-1985 passed by respondent-2. The official-respondents are directed to place the petitioners of both the writ petitions in seniority list of Sub-Inspectors ahead of private-respondents in both the writ petitions who have been appointed by promotion to the posts of Sub-Inspectors after 25th April, 1979 and, accordingly, redraw the seniority list giving them all consequential benefits.