1. The petitioners and private re spondents 6 to 49 in SWP No. 3065/2010 and respondents 6 to 62 in SWP No. 1620/2008 are members of Jammu and Kashmir Police (Gazetted) Service. The dispute involved in the petitions relates to inter se seniority of the peti tioners and private respondents. The petitioners are direct recruits, whereas the private respondents have risen from the ranks. 2. The Jammu and Kashmir Public Service Commission vide notifica tion No. 161 dated 17th February, 1995 invited applications from eligible can didates for direct recruitment to differ ent Gazetted Service including Jammu and Kashmir Police (Gazetted) Service. The petitioners responded to the noti fication and appeared in the Combined Competitive Examination held by the Commission. On completion of the se lection process the Commission recom mended 78 candidates including the present petitioners for their appoint ment as Deputy Superintendents of Police. The State Government, accord ingly, vide Government Order No.78-GAD of 1999 dated 12th July, 1999 ap pointed the recommended candidates and brought them on Jammu and Kash mir Police (Gazetted) Service consti tuted in the year 1977 under the Jammu and Kashmir Police (Gazetted) Service Rules, 1977. 3. The private respondents were recruited as Sub Inspectors of Police (Executive) on 25th April, 1979. The State Government vide PHQ Order No. 1263 of 1985 dated 3rd December, 1985 directed promotion of Assistant Sub-Inspectors of Police to the rank of Sub-Inspector of Police (Executive) ret rospectively with effect from 25th April, 1978 i.e. from the date the promotes were brought on the Promotion list-"E". The aforementioned Government Order in effect made the respondents junior to the promotes Assistant Sub Inspec tors, inasmuch as their seniority was in terms of the said order to be recom mended with effect from 25th April, 1978. The respondents assailed the PHQ or der No. 1263 of 1985 dated 3rd Decem ber, 1985 in the writ petitions regis tered as SWP No. 1208/86 and SWP No.3586/1997. The writ Court vide judg ment dated 29th November, 2004 quashed the order impugned in the pe tition and directed the official respon dent to place the petitioners (private respondents in the present writ peti tions) ahead of promote Sub Inspectors in the seniority list. The Division Bench on 27th July, 2005 set aside the writ order dated 29th November, 2004 in the appeals registered as LPAs No. 164/2004, 6/2005, 19/2005 and 20/2005.
The Division Bench on 27th July, 2005 set aside the writ order dated 29th November, 2004 in the appeals registered as LPAs No. 164/2004, 6/2005, 19/2005 and 20/2005. The Division Bench judgment dated 27th July, 2005 was challenged in a batch of Special Leave Petitions (SLP) Civil Nos.23347 - 23350/2005 and 5632-35/2007). The Apex Court set aside the Di vision Bench Judgment dated 27th July, 2005. Resultantly, the writ Court judg ment dated 29th November, 2004, whereunder the respondents - State was directed to place the private respon dents ahead of the promotees in the seniority list of the Sub Inspectors, was restored and required to be imple mented. However, in terms of the Apex Court judgment, monetary benefits, if any, conferred on the promotees Sub In spectors inconsequence of their retro spective promotion as Sub Inspectors with effect from 25th April, 1978 was not to be recovered. 4. It is pertinent to point out that by the time, the controversy regarding inter se seniority of the private respon dents and the promote Sub Inspectors was finally resolved, the parties to liti gation who did not retire on superan nuation during litigation, had gone up the ladder, promoted as Deputy Super intendents of Police during the period 2000-2001 and became members of Jammu and Kashmir Police (Gazetted) Service. 5. The State Government vide Gov ernment Order No. Home-149 (P) of 2004 dated 21st April, 2004 issued final se niority list of the members of Jammu and Kashmir Police (Gazetted) Service i.e. Deputy Superintendents of Police (Executive), as on 1st January, 2004. The direct recruits of 1999 - 24 out of whom are petitioners before the Court in the writ petitions on hand, figured at serial nos. 61 to 137 in the final se niority list. The private respondents (promote DySPs) were placed below the petitioners in the said list. The petition ers vide Government Order Nos. Home-334(P) of 2005 dated 16th August, 2005, Home-212(P) of 2007 dated 27th April, 2007, were placed as Superintendents of Police in their own pay and grade for a period of six months, subject to the conditions laid down in the order. 6.
The petition ers vide Government Order Nos. Home-334(P) of 2005 dated 16th August, 2005, Home-212(P) of 2007 dated 27th April, 2007, were placed as Superintendents of Police in their own pay and grade for a period of six months, subject to the conditions laid down in the order. 6. The State Government in wake of Apex Court judgment dated 5th De cember, 2007 in SLP (Civil) Nos.23347-23350/2005 and 5632-35 of 2007 vide Government Order No. Home-597 (P) of 2008 dated 4th September, 2008, gave retrospective promotion to the petition ers in SLP - 40 in number, private re spondents in the present writ petition, to the rank of Deputy Superintendents of Police (General Executive Cadre) in the pay scale of Rs.7500-12000 with ef fect from 6th February, 1997. The order re-fixed inter se seniority of Deputy Superintendents of Police as per Annexure - "B" to the order, retrospectively placed the private respondents in the selection grade with effect from the dates shown against each in Annexure - "C" to the Government Order and also promoted them to the post of Superin tendents of Police in the pay scale of Rs. 10000-15200 with effect from 1st March, 2002 i.e. the date with effect from their juniors were so promoted, as shown in Annexure - "D" to the Gov ernment Order. Resultantly, the peti tioners directly recruited as Deputy Su perintendents of Police on 12th July,, 1999, became junior to the private re spondents. The State Government did not stop there, but went ahead to issue final seniority list of Superintendents of Police (Executive) as on 01.01.2010, wherein petitioners are shown below the private respondents in the order of seniority. The Government Order No. Home - 508 (P) 2010 dated 29th April, 2010, in effect makes the petitioners junior to the private respondents - pro moted as Deputy Superintendents of Police, though retrospectively a few years after the petitioners were directly recruited as Deputy Superintendents of Police. 7.
The Government Order No. Home - 508 (P) 2010 dated 29th April, 2010, in effect makes the petitioners junior to the private respondents - pro moted as Deputy Superintendents of Police, though retrospectively a few years after the petitioners were directly recruited as Deputy Superintendents of Police. 7. The petitioners assail the Gov ernment Order No. Home - 597 (P) of 2008 dated 04th September, 2008, whereby the private respondents have been given retrospective promotion to the post of Deputy Superintendents of Police with effect from 6th February, 1997 as also Government Order No. Home - 508 (P) of 2010 dated 29th April, 2010, whereby the petitioners in the final seniority list of Superintendents of Police are shown below private re spondents in the order of seniority, pri marily on the ground that as no vacancy of Deputy Superintendents of Police was available under promotional quota on 6th February, 1997, the private respondents could not have been given retrospective promotion with effect from said date. 8. It is pleaded that the official respondents by promoting the private respondents retrospectively against non existent posts under the promotional quota, have helped the private respon dents to steal a march over the peti tioners. It is next urged that the peti tioners having been shown in the final seniority list of Deputy Superinten dents of Police notified vide Government Order No. Home - 149 (P) of 2004 dated 21st April, 2004, above the private re spondents in the order of seniority, the Government Order Nos. Home - 597 (P) of 2008 dated 4th September, 2008 and Home - 508 (P) dated 29th April, 2010, had the effect of making a change in the seniority position of the petitioners and the official respondents were un der obligation to afford the petitioners and adequate opportunity to show cause before their seniority was altered. It is averred that official respondents, did not accord consideration to objections filed against the tentative seniority list, and finalized the seniority list ignoring the objections. 9.
It is averred that official respondents, did not accord consideration to objections filed against the tentative seniority list, and finalized the seniority list ignoring the objections. 9. The official respondents in re ply to the writ petitions have taken the stand that as Supreme Court judgment dated 5th December, 2007 in the afore-stated Special Leave Petition, required readjustment in seniority position of the petitioners and the respondents in Special Leave Petition, it became nec essary for the official respondents to ante date promotion of the private re spondents and issue Government Or der No. Home - 597 (P) of 2008 dated 04th September, 2008, as also effect al teration in the seniority position of the petitioners vis-a-vis private respon dents as reflected in Government Or der No. Home - 149 (P) of 2004 dated 21st April, 2004. The background in which Government Order No. Home -597 (P) of 2008 dated 4th September, 2008, is further pressed into service to justify Government Order No. Home -508 (P) of 2010 dated 29th April, 2010. The official respondents deny the aver ments made in the petition that the petitioners were not heard prior to is suance of final seniority list vide afore-stated Government Order. It is pointed out that before issuance of final senior ity list, a tentative seniority list was circulated vide Circular No. Home - 2 (P) of 2009 dated 27th July, 2009 invit ing objections to the list from all inter ested, including the petitioners. It is pleaded that a number of officers includ ing 1999 batch, Deputy Superinten dents of Police filed their objections and after the objections were thoroughly ex amined, the final seniority list vide Government Order No. 508 (P) 2010 dated 29th April, 2010 was notified. The official respondents insist that the fi nal seniority was fixed in accordance with Jammu and Kashmir Civil Ser vices (Classification, Control and Ap peal) Rules, 1956 and that the alterna tion in the seniority position was ne cessitated due to the implementation of the Supreme Court Judgment dated 5th December, 2007 in Special Leave Petition titled "Sheikh Abdul Rashid and ors. versus State of J&K and ors". It is denied that any promotions were made in excess of quota and that the retro spective promotions given to the private respondents violated the quota rule.
versus State of J&K and ors". It is denied that any promotions were made in excess of quota and that the retro spective promotions given to the private respondents violated the quota rule. As regards promotion of respondent no.6, the stand taken is that he while work ing as Inspector in Border Security Force was sent on deputation to J&K Pojice; that he was permanently ab sorbed as Inspector in J&K Police and subsequently, promoted out of turn to the jank of Deputy Superintendents of Police vide Government Order No. Home - 511 (P) of 1998 dated 23rd De cember, 1998 with effect from 1st Feb ruary, 1995. It is pleaded that as respon dent no.6 was appointed as Inspector in J&K Police Department, much before the private respondents, the petition ers had no right to throw challenge to his promotion as Deputy Superinten dents of Police w.e.f. 1st February, 1995. The promotion of respondent No. 7 to the rank of Deputy Superintendents of Po lice, according to official respondents, is also beyond challenge. 10. The private respondents oppose the writ petition on the grounds that the private respondents were given retro spective promotion with effect from 6th February, 1997, in compliance of the Supreme Court Judgment dated 5th De cember, 2007, in Special Leave Petition titled "Sheikh Abdul Rashid and ors. versus State of J&K and ors". It is pointed out that as the Supreme Court Judgment dated 5th December, 2007 di rected the official respondents not to disturb promotions/benefits that had accrued to the private respondents in the Special Leave Petition, the official respondents were left with no option but to redraw the seniority vide Government Order No. Home - 597 (P) of 2008 dated 4th September, 2008, against the vacan cies that were occupied by the private respondents in Special Leave Petition before the Apex Court. It is insisted that the official respondents while giving retrospective promotions to the private respondents to the post of Deputy Su perintendents of Police with effect from 6th February, 1997, fully complied with the mandate of Rule 24 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. 11. The respondents 6 and 7 in their separate reply insist that they were at an advantageous position as against other private respondents.
11. The respondents 6 and 7 in their separate reply insist that they were at an advantageous position as against other private respondents. It is pointed out that the respondent no.6, a mem ber of Border Security Force, was vide Government Order No. Home - 206 (P) of 1992 dated 4th June, 1992 appointed as Inspector in J&K Police and, there after, promoted as Deputy Superinten dents of Police vide Government Order No. Home - 511 (P) of 1998 dated 23rd December, 1998 with effect from 1st February, 1995. The respondent no. 6, it is urged, became a member of J&K Police (Gazetted) Service much before the petitioners were recruited as Deputy Superintendents of Police, was placed in the selection grade Vide Gov ernment Order No. Home - 362 (P) of 2000 dated 17th August, 2000 and, there after, promoted as Superintendents of Police Home - 9 (P) of 2001 dated 8th January, 2001 and Senior Superinten dents of Police vide Government Order No. Home - 305 (P) of 2007 dated 4th July, 2007. 12. As regards respondent no. 7, it is pleaded that he was appointed as Sub-Inspector on 17th January, 1979, i.e. before the private respondents, who were appointed on 25th April, 1979, was held senior to the private respondents by the Court in SWP No.641 of 1998 titled "Abhay Kumar Mahajan Vs. State of J&K and ors", and so declared in com pliance of the writ Court judgment vide order No. 1979 of 2002 dated 20th May, 2002.
State of J&K and ors", and so declared in com pliance of the writ Court judgment vide order No. 1979 of 2002 dated 20th May, 2002. It is pleaded that though the re spondent no.7 vide PHQ Order No. 1837 dated 3rd June, 2008, was placed senior to Shri Mahdeep Singh (Serial No.1 in Government Order No. Home - 597 (P) of 2008 dated 4th September, 2008) in the redrawn seniority list of Inspectors, yet he did not find place in Government Order No. Home - 597 (P) of 2008 dated 4th September, 2008 and was subse quently vide PHQ Order No. 1214 of 2009 dated 26th March, 2009, ordered to be deemed to have been promoted as In spector with effect from 1st March, 1985 and to figure above the name of Shri Mahadeep Singh in the seniority list of Inspectors and, thereafter, vide Govern ment Order No. Home - 658 (P) of 2009 dated 4th August, 2009, given retrospec tive promotion to the post of Deputy Su perintendents of Police with effect from 6th February, 1997. It is further pleaded that respondent no.7 was placed in se lection grade with effect from 7th Feb ruary, 2002 and Superintendents of Police with effect from 1st March, 2002. The respondents 6 and 7 question maintainability of the writ petition on the ground that all the Deputy Super intendents of Police promoted retrospec tively vide Government Order No. Home - 597 (P) of 2008 dated 4th September, 2008, have not been arrayed as party respondents to the writ petition. It is pointed out that failure on part of the petitioner to array such Deputy Super intendents of Police as party respon dents, amounts to an admission on their part, that such officers were pro moted within their quota. The respon dents 6 and 7 claim to have been pro moted as Deputy Superintendents of Po lice with effect from 1st February, 1995 and 6th February, 1996 against their own quota and not beyond promotional quota as pleaded by the petitioners. 13. I have gone through the plead ings and have perused the record available on the file. I have heard learned counsel for the parties. 14. Having regard to the complexion and chemistry of the controversy, atten tion must go in the first place to the Recruitment Rules governing recruit ment, promotions etc.
13. I have gone through the plead ings and have perused the record available on the file. I have heard learned counsel for the parties. 14. Having regard to the complexion and chemistry of the controversy, atten tion must go in the first place to the Recruitment Rules governing recruit ment, promotions etc. and other mat ters of Jammu and Kashmir Police (Gazetted) Service. 15. The Jammu and Kashmir Police (Gazetted) Service was constituted in the year 1977 under Jammu and Kash mir Police (Gazetted) Service Recruit ment Rules, 1977 notified vide SRO 33 of 1997 dated 19th January, 1977. In terms of Recruitment Rules of 1977, ap pointment to the service was to be made by direct recruitment and by promotion in the ratio of 50:50. Though the Re cruitment Rules of 1977 were replaced by Jammu and Kashmir Police (Gazet ted) Service Recruitment Rules of 1984 notified vide SRO. 549 of 1984, yet the Rules did not become operational inas much as the Rules were kept in abey ance vide SRO 166 of 1985. Therefore, in effect the Recruitment Rules of 1977 occupied the field till the year 2002, when the Rules were replaced by Jammu and Kashmir Police (Gazetted) Service Recruitment Rules of 2002 no tified vide SRO 132 of 2002 dated 3rd April, 2002. The Rules of 2002 also iden tify direct recruitment and promotion as sources of recruitment to the ser vice in the ratio of 50:50. 16. The Jammu and Kashmir Gazetted Service Recruitment (Amend ment) Rules, 1994 notified vide SRO 210 of 1994 dated 5th October, 1994 ap plicable amongst others to Jammu and Kashmir Police (Gazetted) Service, also prescribe 50:50 ratio between direct recruitment and promotion to the cadre of Deputy Superintendents of Police. It would be appropriate to reproduce here-under Rule 3 of the aforesaid Rules: "3. Notwithstanding any thing con trary contained in the relevant re cruitment rules, in respect of the posts indicated under column (3) of Schedule I annexed to these rules, borne on the services to which these rules apply; the number of persons recruited through competitive ex amination and by promotion/selec tion shall not, at any time, exceed 50% of the number of posts in the respective cadre. Explanation: Posts shall mean duty posts, depu tation and leave reserve if any, sanctioned for the respective cadres, carrying the time scale of pay of Rs.2125-3600.
Explanation: Posts shall mean duty posts, depu tation and leave reserve if any, sanctioned for the respective cadres, carrying the time scale of pay of Rs.2125-3600. Provided further that the posts un der the training reserve, if any, sanctioned for respective cadres shall be deemed to be direct recruit ment posts." 17. What emerges from the above, brief survey of Recruitment Rules is that at no point of time, the ratio of di rect recruits and promotees is to exceed 50:50 and any appointment to the ser vice, whether by direct recruitment or promotion in excess of quota would be in conflict with the Recruitment Rules. With this baseline, let us proceed to examine what was the ratio of direct appointees and promotees to the cadre on 6th February, 1977 i.e. the date with effect from which the private respondents in the two writ petitions were given retrospective promotion to the post of Deputy Superintendents of Po lice. Perusal of record available on file reveals that on 6th February, 1977, the sanctioned strength of the cadre was 258, to be shared by the direct recruits and the promotees in equal shares of 129. In other words, on 6th February, 1997, there ought to have been 129 Deputy Superintendents of Police from direct recruitment quota and 129 Deputy Superintendents of Police from promotion quota. This, however, was not the position. There were 72 direct recruit Deputy Superintendents of Po lice as against 153 promotees. There fore, while the direct recruitment quota fell short by 57, the promotee quota was exceeding by 24. In the circumstances, there were no posts available under pro motional quota against which private respondents could have been given ret rospective promotion. After the number of promotees in place has swollen upto 193 - a level not permissible under Rules. There can be no disagreement with the legal proposition that the offi cial respondents are competent to give retrospective promotion(s) to the service and nobody much less the direct re cruits can have any objection to exer cise of such power. However, such ret rospective promotion must not violate the quota rule. For violation of quota pre scribed under recruitment rules means violation of recruitments rules - a. course frowned upon by the Courts and not permitted under law. 18.
However, such ret rospective promotion must not violate the quota rule. For violation of quota pre scribed under recruitment rules means violation of recruitments rules - a. course frowned upon by the Courts and not permitted under law. 18. The argument that the official respondents operated upon the Depu tation Reserve and Leave Reserve posts, while giving retrospective promotions to the private respondents and thus, did not violate the quota rule, is bereft of -any substance and of no avail to the re spondents. 19. In the first place, the Govern ment Order No.597 (P) of 2008 dated 4th September, 2008, impugned in the pe titions does not say even by implication that the official respondents made use of Deputation Reserve and Leave Re serve while giving retrospective promo tions to the private respondents to the post of Deputy Superintendents of Po lice. The argument is nothing except an afterthought and a post facto justifi cation to the impugned Government order. Secondly, it has been consistent stand of the official respondents that Deputation Reserve, Leave Reserve and Training Reserve posts are available to cushion the duty posts, to be used in case of exigencies and cannot be uti lized for either making promotions or regularization of the incumbents. Ref erence in this regard may be made to Communication No. Home - PB - 1/WP/2009 dated 14th October, 2010, ad dressed by Deputy Secretary, Home Department to Additional Advocate Gen eral as also objections filed by the re spondents in LPA (SW) No. 173/2010 titled "Tabossum Parveen and ors. Ver sus State of J&K and ors." to the supple mentary affidavit filed by one of the pe titioners. 20. The private respondents as stated have been vide Government or der No. Home - (P) 597 of 2008 dated 4th September, 2008, given retrospective promotion with effect from 6th February, 1997. It hardly needs to be pointed out that Recruitment Rules attracted would be the Recruitment Rules in force on 6th February, 1997. It may be recalled that the Recruitment Rules of 1977 though sought to be replaced by the Recruitment Rules of 1984, were still in force on 6th February, 1997, inas much as the Recruitment Rules of 1984 were placed in abeyance vide SRO 166 of 1985.
It may be recalled that the Recruitment Rules of 1977 though sought to be replaced by the Recruitment Rules of 1984, were still in force on 6th February, 1997, inas much as the Recruitment Rules of 1984 were placed in abeyance vide SRO 166 of 1985. In the circumstances, when we have to find out sanctioned strength of the Jammu and Kashmir Police (Gazet ted) Service on 6th February, 1997, we have to fall back upon the Recruitment Rules of 1977. 21. Rules 3 and 4 are relevant to be present controversy and need to be no ticed; "3. Organization - The service shall comprise the posts, classes, catego ries and grades as are indicated in Schedule 'A'. 4. Cadre - the cadre of service shall consist of such number of perma nent and temporary posts as stand sanctioned on the day these rules come in force and such number of them as may be sanctioned for each of its classes and categories from time to time by the Government." 22. Schedule 'A' to the Rules does not indicate the number of posts in each class/category/grade, though it lays down qualification for direct recruit ment, qualification for promotion and method of recruitment. The respon dents have nowhere in their reply set out the exact number of posts in Deputy Superintendents of Police cadre or the number of posts sanctioned thereafter from time to time till 6th February, 1997. The Recruitment Rules of 1977 do not find any or number of posts un der Deputation Reserve, Leave Reserve or Training Reserve posts. The respon dents instead of indicating the number of posts in the cadre of Deputy Superin tendents of Police duly sanctioned on 6th February, 1997, and pleading that any posts under Deputation Reserve, Leave Reserve or Training Reserve posts were available on 6th February, 1997, make an attempt to press into service Recruitment Rules of 2002 that are not applicable at all to the present controversy as Deputation Reserve, leave Reserve or Training Reserve posts available under Recruitment Rules of 2002 cannot be made use of to give ret rospective promotion to the private re spondents with effect from 6th February, 1997.
The Jammu and Kashmir Gazet ted Service Recruitment (Amendment) Rules, 1994,cannot be also made use of by the respondents for the simple rea son that Rule 3 does not by itself create any post but its application is contin gent upon availability of Deputation Reserve, Leave Reserve or Training Reserve posts under the Recruitment Rules of the concerned service. Once the respondents have not been able to show that Deputation Reserve, Leave Reserve or Training Reserve posts were available under Recruitment Rules, 1977, the Jammu and Kashmir Gazet ted Service Recruitment (Amendment) Rules, 1994 cannot be used by the re spondents to make Recruitment Rules of 2002 retrospectively applicable to pro motions effected on 6th February, 1997. 23. Even if, the above objection as regards utilization of Deputation Re serve and Leave Reserve quota for ef fecting retrospective promotions to the private respondents is for a while kept aside and the official respondents held competent to utilize Deputation Reserve and Leave Reserve quota, still the numbers are not on their side. 24. In terms of Explanation to Rule 3 of The Jammu and Kashmir Gazetted Service Recruitment (Amendment) Rules, 1994, 20% and 10% of the sanc tioned strength on account of Deputa tion Reserve and Leave Reserve is added to the sanctioned strength, the total number of the available posts swells upto 336, 50% of which i.e. 168 of would fall to the share of the direct recruits and another 50% i.e. 168 to the share of promotees. However, in terms of Explanation of Rule 3 of Jammu and Kashmir Gazetted Service Recruitment (Amendment) Rules, 1994, 15% of the sanctioned strength on account of Training Reserve i.e. 39 posts would fall exclusively to the share of direct re cruits, making it 207. On 6th February, 1997 against the enhanced quota of 168 i.e. 50% of the sanctioned strength to gether with 15% of the Deputation Re serve and 50% of Leave Reserve posts available to the promotional quota, the number of officers in place including private respondents went upto 193 or 25 more that the permitted number under Recruitment Rules of 2002. The promote officers in place including the private respondents still exceed the pre scribed quota.
The promote officers in place including the private respondents still exceed the pre scribed quota. Viewed thus, the private respondents could not have been given retrospective promotion as Deputy Su perintendents of Police with effect from 6th February, 1997, and resultant ben efits like selection grade and placement in Superintendents of Police would not come their way, on the dates shown in the Government Order Home - 597 (P) of 2008 dated 4th September, 2008. 25. The case set up by the respondents is that retrospective promotion to the private respondents, even if against quota and Recruitment Rules, was nec essarily to be given to the private re spondents, to comply with the Supreme Court Judgment dated 5th December, 2007 in SLP (Civil) Nos. 23347-23350/2005 and 5632-35 of 2007. This argu ment runs through weft and warp of the Order Nos. Home - 597 (P) of 2008 dated 4th September, 2008, and Home - 508 of 2010 dated 29th April, 2010, is set out in the reply filed by the official respon dents and is echoed in almost all the responses field by the respondents. It has been also theme of the arguments advanced by learned counsel for the respondents, to buttress their case. The tone and tenor of the argument make it necessary to examine what was ac tually held by the Supreme Court in judgment dated 5th December, 2007 in SLP (Civil) Nos. 23347-23350/2005 and 5632-35 of 2007. The Apex Court set ting aside the Division Bench Judgment dated 27th July, 2005 observed as un der :- "20. Similarly, although the statute provides for grant of officiating pro motion, but the same is not condu cive in the sense that even after getting officiating promotion, one may be reverted to the original post held by him. We do not mean to say that the seniority would be reckoned from the date of confirmation but we only intend to point out that the rules having been provided for offi ciating promotion, the learned Single Judge was correct in taking that factor also into consideration for the purpose of determining the va lidity of the impugned order before the High Court. The said order dated 3.12.1985 even otherwise appears to be mala fide having been passed for unauthorized purpose.
The said order dated 3.12.1985 even otherwise appears to be mala fide having been passed for unauthorized purpose. If the said order dated 3.12.1985 is read with the earlier one being dated 1.8.1985, the intention of the government to favour the private respondents herein becomes explicit. It is not ex pected of a government to brazenly favour one set of employees so as to defeat the bona fide claim of the other set of employees. We, there fore, are of the opinion, that the impugned judgment cannot be sus tained which is set aside accord ingly. The appeals are allowed. 21. However, in exercise of our dis cretionary jurisdiction under Article 142 of the constitution of India, we direct that despite this order, if any, monetary benefit has been con ferred upon the private respondents, the same may not be recovered." 26. The Supreme Court judgment thus in effect upheld judgment ren dered by Learned Single Judge. We need to be reminded that learned Single Judge allowed the writ petition and di rected the official respondents to place the petitioners in the said writ petition (private respondents before this Court) ahead of the Assistant Sub Inspectors, promoted as Sub Inspectors with retro spective effect. The official respondents thus in compliance of the Supreme Court judgment had to place the promotee Sub Inspectors after the pri vate respondents in the present peti tion, fix their seniority accordingly and favour them with promotions that till the Supreme Court decided in SLP (Civil) Nos.23347-23350/2005 and 5632-35 of 2007, had gone to promote Sub Inspectors because of their illegal and unwarranted retrospective promo tion with effect from 25th April, 1978, vide PHQ Order No. 1263 of 1985 dated 3rd December, 1985 as Sub Inspectors of Police. The Supreme Court did not direct the official respondents to give retrospective promotion to the petition ers in SLP (private respondents in the present petition) with effect from 6th December, 1997, even in disregard of their quota under the recruitment rules. It is, thus, unfair on part of the official respondents to justify retrospec tive promotion to the private respon dents as Deputy Superintendents of Po lice with effect from 6th February, 1997 in the name of implementation of the Supreme Court judgment.
It is, thus, unfair on part of the official respondents to justify retrospec tive promotion to the private respon dents as Deputy Superintendents of Po lice with effect from 6th February, 1997 in the name of implementation of the Supreme Court judgment. The Su preme Court on the other hand appears to have been conscious that under the judgment of learned Single Judge a number of promotee Sub Inspectors un-authorizedly placed ahead of private respondents in the present petition, would have to go down the ladder to leave place for the private respondents, who were unjustly deprived of their se niority under PHQ Order No. 1263 of 1985 dated 3rd December, 1985. The Supreme Court having this in mind in concluding para of the judgment dated 5th October, 2007, directed that despite the order dated 5th December, 2007, are monetary benefit conferred upon the promotee respondents, may not be re covered. The Supreme Court restricted exercise of discretionary jurisdiction under Article 142. Constitution of In dia to the "monetary benefit" if any, that was conferred upon the promotee Sub Inspectors under the Order No. PHQ Order No. 1263 of 1985 dated 3rd Decem ber, 1985, set aside by learned Single Judge and did not go beyond that. The official respondents ignoring the writ Court judgment dated 29th November, 2004 and Supreme Court judgment dated 5th December, 2007 allowed the promotee Sub Inspectors (private re spondents in the SLP) to continue on the promotional posts though they had no right to retain such posts in wake of Supreme Court judgment dated 5th De cember, 2007 and also gave retrospec tive promotion to the petitioners in SLP (private respondents in the present pe tition) usurping/eating up, the direct recruitment quota. The official respon dents did not only give benefit to the private respondents in the present pe tition in violation of quota rule/recruit ment rules but also were guilty of dis obedience of Supreme Court Judgment dated 5th December, 2007 inasmuch as they allowed the promotee Assistant Sub Inspectors who were not entitled to be promoted to the higher post(s) on date(s) such promotion was granted to them because of their seniority posi tion under PHQ Order No. 1263 of 1985 dated 3rd December, 1985 set aside by Learned Single Judge and upheld by the Supreme Court.
The right course in conformity with the Supreme Court Judgment dated 5th December, 2007 for the official respondents, was to make a comprehensive exercise to find out when and to which post the petitioners in SLP (private respondents in the present petition) would have been pro moted, had the promotee Sub Inspec tors (respondents in the SLP) not been placed ahead of the private respondents in the present petition, under PHQ Or der No. 1263 of 1985 dated 3rd Decem ber, 1985 and order their promotion accordingly pushing such of the promotee Sub Inspectors down the lad ders. 27. The official respondents instead opted for an easy escape route and gave retrospective promotion to all the pri vate respondents to the post of Deputy Superintendents of Police with effect from 6th February, 1997 while allowing the promotee Sub Inspectors also to re tain the said posts and enjoy the ben efit of illegal promotions that had come their way because of a PHQ order, been set aside by the Writ Court and in the process allowed the promotional quota prescribed under recruitment rules to overflow. In the circumstances, the ar gument that the Government Order Nos. Home-597 (P) of 2008 dated 4th Sep tember, 2008 and Home - 508 (P) of 2010 dated 29th April, 2010, were a se quel to the Supreme Court order is pre posterous and devoid of any substance. The respondents 1 to 5 by giving spe cial treatment to the private respon dents have in effect repeated the error pointed out by the Supreme Court in judgment dated 5th December, 2007. The Supreme Court, it may be recalled, taking exception to the favour, given to one set of employees by the State Gov ernment observed: - "It is not expected of a government to brazenly favour one set of employees so as to defeat the bonafide claim of the other set of employee." 28. The stand taken by the respon dents that the petitioners were given an adequate opportunity to file their ob jections to the tentative seniority list notified vide Circular No. Home - 2 (P) of 2009 dated 27th July, 2009, is to be examined against the backdrop of their failure to notify their intention to give retrospective promotion as Deputy Superintendents of Police to the private respondents with effect from 6th Decem ber, 1997.
It is pertinent to point out that it is not the Government Order No. Home - 508 (P) 2010 dated 29th April, 2010, that changed the seniority posi tion of the parties, but the Government Order No. Home-597 (P) of 2008 dated 4th September, 2008, that made signifi cant alteration in the seniority position of the petitioners vis-a-vis private re spondents. The respondents who were not, anywhere in Deputy Superinten dents of Police selection grade and the cadre of Superintendents of Police in the year 2005 and 2007 i.e. when the petitioners were placed as Superinten dents of Police, were in the year 2008 placed in the selection grade with ef fect from 2001 and as superintendents of Police with effect from 2002. Surpris ingly, some of the private respondents were placed as Superintendents of Po lice before they were placed in the se lection grade of Deputy Superintendents of Police. In the circumstances, the right stage for giving the petitioners an opportunity to project their view point was when the respondents 1 to 5 con templated giving retrospective promo tion to the private respondents with ef fect from 6th February, 1997 vide Gov ernment Order No. Home-597 (P) of 2008 dated 4th September, 2008 that radically and significantly changed the senior ity position of the parties to the writ petitions. Giving the petitioners an op portunity to file objections to the tenta tive seniority list of Superintendents of Police was nothing but an eyewash and idle formality. There is the substance in the petitioners case is that they were not given fair, adequate and reasonable opportunity to oppose change in senior ity position. 29. Let us now come to the case of respondents 6 and 7. It is strenuously argued by Mr. Pant, learned counsel for the respondents 6 and 7 that the respon dent No. 6 having been promoted as Deputy Superintendents of Police much before the petitioners, the petitioners have no cause to question his promo tion, more so, when the petitioners do not question his initial appointment as Inspector vide Government Order No. Home - 206 (P) of 1992 dated 4th June, 1992. Mr. Shukla to reinforce his argu ment seeks to draw support from law laid down in "Government of Maharashtra and ors. Vs.
Mr. Shukla to reinforce his argu ment seeks to draw support from law laid down in "Government of Maharashtra and ors. Vs. Deokar's Distillery, (2003) 5 SCC 669 , Allahabad District Cooperative Bank Limited versus Vidhya Varidh Mishra (2004) 6 SCC 482 , Chandigarh Administration vs. Laxman Flour Mills, 2004 6 SCC 482 , Krishana Priya Ganguly & ors. Vs. University of Lucknow and oth ers, 1998 8 SCC 326 , State of Bihar and anr. Vs. Dr. Radha Krisna Jha and oth ers, (2002) 6 SCC 308 , State of U.P. and Others Vs. RajKaran Singh, (1998) 8 SCC 529 ". The argument is specious and of no avail to the respondent no.6. Fail ure of the petitioners to throw challenge to .the Government Order No. Home -206 (P) of 1992 dated 4th June, 1992, whereby the respondent no.6 brought on deputation from Border Security Force to Jammu and Kashmir Police was appointed as Inspector in J&K Police does not deprive the petitioners of their right to question his promotion as Deputy Superintendents of Police on regular basis, on the ground that such promotion was in violation of the quota rule/recruitment rules. The promotion quota as evident from the record avail able on the file was overflowing by 49 posts on 1st January, 1996 leaving no vacancy available under promotion quota to be filled up by promoting respon dent no.6 as Deputy Superintendents of Police vide Government Order No. Home - 511 (P) of 1998 dated 23rd De cember, 1998, with effect from 1st Feb ruary, 1995. Same is true about respon dent no. 7, who, though given retrospec tive promotion with effect from 6th Feb ruary, 1997 by a separate Government Order viz Home-658 (P) of 2009 dated 4th September, 2009, could not be promoted with effect from 6th February, 1997 as there was no post available under the promotion quota as prescribed under Rules, nor could have been other ben efits like selection grade and placement as Superintendents of Police conferred on the respondent no.7 on the dates shown in the said Government Order. The question is not whether the re spondents 6 and 7 were eligible for pro motion as Deputy Superintendents of Police but whether their promotion could have been giving effect from the date shown in their respective promo tion orders, when no vacancy was avail able within promotion quota. 30.
The question is not whether the re spondents 6 and 7 were eligible for pro motion as Deputy Superintendents of Police but whether their promotion could have been giving effect from the date shown in their respective promo tion orders, when no vacancy was avail able within promotion quota. 30. The argument that has been re peatedly advanced by learned counsel for the respondents relates to compe tence of the petitioners who were ap pointed on 12th July, 1999 as Deputy Su perintendents of Police to raise eye brows regarding the promotions made on 6th February, 1997 i.e. two and a half years before they were brought on J&K Police (Gazetted) Service. The argu ment does not sound convincing an does not at least suit mouth of private re-spondents.'The private respondents are expected to be conscious that the same argument could have been advanced by the respondents in Special Leave Petition/promote Sub Inspectors who vide PHQ Order No. 1263 of 1985 dated 3rd December, 1985 were promoted retro spectively with effect from a date on which the private respondents were yet to join service. It may be recalled that private respondents were appointed as Sub Inspectors of Police (Executive) on 25th April, 1979. The Assistant Sub In spectors of Police appointed to Police ser vice much before the private respon dents were vide PHQ Order No. 1263 of 1985 dated 3rd December, 1985 given retrospective promotion as Sub Inspec tors of Police (Executive) with effect from 25th April, 1978 i.e. the date they were brought on promotion list "E". The writ court impliedly repelling the argument that as the private respondents in the present petition (petitioners before the writ court) were appointed much after the promotee Sub Inspectors of Police and also much before the date with ef fect from which the promotee Sub In spectors were given retrospective pro motion, has no cause to question the retrospective promotion, set aside the order whereby such retrospective pro motion was given to the promotee Sub Inspectors. The petitioners in the present case do not and cannot seek their seniority with effect from 6th Feb ruary, 1997. Had such a prayer been made it would have been summarily re jected. The petitioners, on the other hand, insist that their juniors cannot be put on their head as such a course would prejudicially affect their promo tional avenues.
The petitioners in the present case do not and cannot seek their seniority with effect from 6th Feb ruary, 1997. Had such a prayer been made it would have been summarily re jected. The petitioners, on the other hand, insist that their juniors cannot be put on their head as such a course would prejudicially affect their promo tional avenues. It needs no emphasis that the right to be considered for pro motion is an integral part of fundamen tal right guaranteed under Article 16 Constitution of India. 31. It may be pointed out that the petitioners having been appointed as di rect recruits on 12th July, 1999, have a right to be considered for selection grade with effect from 12th July, 2004 and thereafter, to be promoted as Su perintendents of Police once they com plete their tenure in the said grade. The private respondents vide Government Order No. Home - 597 (P) of 2008 dated 4th September, 2008 have been given retrospective promotion with effect from 6th February, 1997 and have been placed ahead of the petitioners as Superinten dents of Police with effect from 1st March, 2002. The petitioners' promo tional avenues have been therefore af fected by the impugned orders and they cannot be denied a right to maintain writ petition, questioning aforesaid or ders. 32. To sum up, the private respon dents are to be held to have been con ferred retrospective promotion with ef fect from 6th February, 1997 and the re spondent no.6 with effect from 1st Feb ruary, 1995 in absence of vacancies in the promotion quota and thus in viola tion of Recruitment Rules. 33. It is next to be seen as to what would be fall out of findings so returned on the status of the private respondents. It needs to be emphasized that the pe titions do not put a question mark on the eligibility of the private respondents to be promoted as Deputy Superinten dents of Police or their eligibility for subsequent promotions that have come their way under the recruitment rules. The petitioners grievance is restricted to the date of conferment of the promo tional benefits first of Deputy Superin tendents of Police with effect from 6th February, 1997 and thereafter Selection grade and placement as Superinten dents of Police.
The petitioners grievance is restricted to the date of conferment of the promo tional benefits first of Deputy Superin tendents of Police with effect from 6th February, 1997 and thereafter Selection grade and placement as Superinten dents of Police. In case, on examina tion of the matter the private respon dents or any one or more of them are found to have been not entitled to their promotion with effect from 6th February, 1997 because of non availability of post(s) in promotion quota and to be so entitled from a subsequent date, such of the private respondents are to be deemed to have been promoted on stop gap/adhoc basis from 6th February, 1997 till such date, without said part of their service to be counted while fixing their seniority in the cadre. So viewed, the outcome of present petition would not result in change of present status of the petitioners till the matter is re-examined in compliance of present judgment. 34. For the reasons discussed, the writ petitions bearing SWP Nos. 3065/2010 and 1620/2008 are allowed. The Government Order Nos. Home - 597 (P) 2008 dated 4th September, 2008 and Home - 508 (P) 2010 dated 29th April, 2010, to the extent it gives retrospec tive promotion to the private respon dents with effect from 6th February, 1997 and the consequent benefits with effect from the dates shown in the said Government Orders, is set aside and so is the Government Order No. Home -508 (P) 2010 dated 29th April, 2010, whereby final seniority of Superinten dents of Police is fixed, to the extent it relates to the parties to the writ peti tions. 35. The respondents 1 to 5 are di rected to under make a fresh exercise to fix the date of promotion of the private respondents as Deputy Superin tendents of Police, in compliance of writ Court Judgment dated 29th November, 2004, upheld by Supreme Court on 5th December, 2007, consequent there upon the date of their placement in the selection grade and as Superintendents of Police, after giving a fair and adequate opportunity to the parties to project their stance. The respondent 1 to 5 shall em bark on such an exercise on 9th Janu ary, 2012.
The respondent 1 to 5 shall em bark on such an exercise on 9th Janu ary, 2012. The parties to the petition shall project their stance by 25th Janu ary, 2012 and respondents 1 to 5 shall, having regard to the stand projected, on examination of documents, if any, pro duced by the parties take a decision in the matter by or on 9th February, 2012. The parties shall continue to have the status as on date till 9th February, 2012, i.e. the date the respondents 1 to 5 are to take final decision in the matter and till then further promotions/induction in Indian Police Service on the basis of the impugned seniority list, shall not be effected.