JUDGMENT : 1. Petitioner came to be appointed as a Sanitary Inspector in the pay scale of Rs.450-850 by virtue of order dated 17.04.1985 issued by the Dy. Secretary to Government, Housing and Urban Development Department, Jammu. His name was reflected in the tentative seniority list dated 30.07.2001 at Serial No. 5, but in the second tentative seniority list dated 26.10.2010, the name of the petitioner was shown at Serial No. 19. Objections were called, pursuant to which, a final seniority list dated 16.09.2011 was issued showing the name of the petitioner at Serial No. 19. 2. Petitioner challenges the seniority list, so issued and seeks his due placement in the said seniority list qua respondent No. 3 to 20. The case of the petitioner is that he was appointed earlier in point of time than the private respondents and, therefore, his seniority ought to have been framed in accordance with the date of his first appointment i.e. 17.04.1985. 3. In SWP No. 1596/2006, the petitioner seeks issuance of a writ of Mandamus directing the respondents to place him in the grade of Rs. 1760-3200 subsequently revised to Rs. 5700-10100 as Sanitary Inspector from the date of his appointment i.e. 17.04.1985. Government Order No. 51-HUD of 2004 dated 26.02.2004 - History of previous litigation: 4. Thirteen Sanitary Inspectors working in the Jammu Municipality filed a writ petition being SWP No. 242/1994 titled Sunil Gupta and ors. v. State and ors. seeking higher pay scale of Rs. 1300-2550 (revised to Rs.1760-60-2000-EB-75-3200) retrospectively from 12.09.1991. The aforesaid writ petition was disposed of vide judgment and order dated 01.07.1996 and the petitioners in that petition were held entitled to pay scale of Rs. 1760-3200 retrospectively w.e.f.12.09.1991. 5. Pursuant to the said judgment, thirteen posts of Sanitary Inspectors of the Jammu Municipality were upgraded to the pay scale of Rs. 1760-3200 retrospectively w.e.f. 12.09.1991 vide Government Order No. 291 dated 03.09.1997. 6. Taking a clue from such an upgradation, the Sanitary Inspectors, who were working in the Directorate of Local Bodies, Jammu also filed a writ petition being SWP No. 435/1996 titled Angraz-ud-Din and ors. v. State of J&K and anr. claiming upgradation of their pay scales to Rs.1760-3200. 1760-3200 retrospectively w.e.f. 12.09.1991 vide Government Order No. 291 dated 03.09.1997. 6. Taking a clue from such an upgradation, the Sanitary Inspectors, who were working in the Directorate of Local Bodies, Jammu also filed a writ petition being SWP No. 435/1996 titled Angraz-ud-Din and ors. v. State of J&K and anr. claiming upgradation of their pay scales to Rs.1760-3200. The said petition came to be disposed of vide judgment and order dated 28.02.2000 with a direction to the respondents to take notice of the judgment passed in SWP No. 242/1994 for taking appropriate decision thereupon. 7. Finally, Government Order No. 51-HUD of 2004 dated 26.02.2004 was passed ordering the upgradation of the pay scales of the petitioners in SWP No. 435/1996 to the scale of Rs. 1760-3200 w.e.f 12.09.1991 on the condition that no arrears would be paid on account of such upgradation. It appears that an anomaly arouse on account of such an upgradation amongst the Sanitary Inspectors which was sought to be rectified by the Government as can be seen from communication dated 10.01.2005 wherein it was ordered that Government Order No. 51-HUD of 2004 dated 26.02.2004 would be made applicable to all qualified Sanitary Inspectors from the date of appointment and in respect of others from the date of qualifying as Sanitary Inspectors on notional basis without any monetary benefits. 8. In view of the decision so taken, the petitioner was granted the benefit of upgradation w.e.f 01.04.1995 on the ground that he had obtained the requisite qualification of Sanitary Inspector in the year 1995 as against the private respondents who had qualified the said examination at an earlier point of time. 9. The stand taken is that notwithstanding the fact that the petitioner came to be appointed earlier in point of time than the private respondents, yet because he qualified the Sanitary Inspector exam at a later point in time, he would not be entitled to the benefit either of upgradation with effect from his date of appointment in 1985 or would justify his placement at serial No. 5 i.e. over and above the private respondents. 10. Heard learned counsel for the parties. 11. Petitioner came to be appointed in the year 1985. Admittedly, at that time, no rules governing the post of Sanitary Inspector in the Housing and Urban Development Department were in existence. 10. Heard learned counsel for the parties. 11. Petitioner came to be appointed in the year 1985. Admittedly, at that time, no rules governing the post of Sanitary Inspector in the Housing and Urban Development Department were in existence. For the first time, the rules in regard to Housing and Urban Development Department came to be framed in the year 2008, namely, Jammu and Kashmir Urban Local Bodies Institutions (Management) Service Recruitment Rules, 2008 (for short the Rules of 2008). 12. In so far as the Sanitary Inspectors working in the Jammu Municipality are concerned, they, however, were governed by the Jammu Municipal Subordinate Service Rules, 1970, (for short the Municipal Rules, 1970) which were framed in terms of power conferred by Clause (h) of Sub-Section (1) of Section 266 of Jammu and Kashmir Municipal Act, 2008. The aforementioned rules in so far as relevant in the present case is reproduced hereunder: (III) (A) 75-150 Sanitary Inspector Matric with science & a year course under the State medical faulty or equivalent qualification recognized by the Government. Direct Recruitment However, SRO 155 was notified on 07.03.1986, wherein the entries appearing against class (III) under the heading “Health and Sanitation Branch” were substituted. The said rule in regard to Sanitary Inspectors envisages thus: “SRO 155:- In exercise of powers conferred by clause (h) of Sub-Section (1) of Section 266 of the Jammu and Kashmir Municipal Act, 2008, the Government hereby direct that in the annexure to the Jammu Municipal Subordinate Service Rules, 1970 for the entries appearing against class III under the heading “Health and Sanitation Branch” the following shall be substituted namely: (A) (Grade) Sanitary Inspectors Matric with science and one year course under the State medical faculty or equivalent qualification recognized by the Government (i) 50% by direct recruitment (ii) 50% by promotion from Class VI category. (A) Provided they are matriculates with science and one year’s course of Sanitary Inspectors under the State Medical faculty or equivalent qualification recognized by the Government. 13. On a reading of the aforementioned SRO, it appears that the basic eligibility prescribed for the post of Sanitary Inspectors in the Municipality was matriculation with Science. The requirement of one year Sanitary Inspector’s course before March, 1986 was nonexistent. 14. 13. On a reading of the aforementioned SRO, it appears that the basic eligibility prescribed for the post of Sanitary Inspectors in the Municipality was matriculation with Science. The requirement of one year Sanitary Inspector’s course before March, 1986 was nonexistent. 14. The main argument of the respondents was that the petitioner did not possess the requisite qualification prescribed for the post of Sanitary Inspectors on the date of his appointment and that he qualified the Sanitary Inspector’s Course only in the year 1995 and, therefore, his appointment was illegal and a back door appointment. This argument cannot succeed for the reason that there were no rules governing the service of Sanitary Inspector in the Housing and Urban Development Department and assuming, as was urged by the counsel for the respondents that appointment used to be made in the Housing and Urban Development Department on the basis of rules framed for Sanitary Inspectors in the Jammu Municipality, yet it is clear that at the time when the petitioner was appointed, there was no requirement even in the Jammu Municipality, for the Sanitary Inspector to have undergone one year’s Sanitary Inspector’s course under the State Medical Faculty. On Upgradation: 15. It needs to be also noticed that the reason why the posts of Sanitary Inspector were upgraded in the scale of Rs.1760-3200 was that the petitioners in Angraz-ud-Din’s case (supra) had claimed parity with the Sanitary Inspectors working in the Jammu Municipality. It was in those circumstances that a direction came to be issued in favour of the Sanitary Inspectors working the Housing and Urban Development Department. Whereas the said benefit was earlier restricted only to the petitioners in the aforesaid writ petition, subsequently the said benefit was also made applicable to all qualified Sanitary Inspectors from the date of their appointment and in respect of others from the date of their qualifying as Sanitary Inspector on notional basis. 16. Whereas the said benefit was earlier restricted only to the petitioners in the aforesaid writ petition, subsequently the said benefit was also made applicable to all qualified Sanitary Inspectors from the date of their appointment and in respect of others from the date of their qualifying as Sanitary Inspector on notional basis. 16. Strictly speaking, since the clearance of Sanitary Inspector course was not envisaged at all for appointment to the post of Sanitary Inspector in the Housing and Urban Development Department, therefore, “a qualified Sanitary Inspector” would not necessarily mean a Sanitary Inspector who had cleared the Sanitary Inspector’s course on the date when he was appointed, therefore, the petitioner could not have been said to be ineligible for appointment as such a Sanitary Inspector and his seniority could not be ignored w.e.f. the date of his appointment i.e. in the year 1985. 17. The Apex Court dealt with a similar matter in Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust and ors, (2014) 13 SCC 219 . In the said case, the dispute was with regard to the seniority of the appellant vis-a-vis respondent No. 4 before the Court, both of whom were working as teachers. Whereas the appellant before the Apex Court had been appointed as an Assistant Teacher before respondent No. 4, respondent No. 4 had acquired the B.Ed. degree prior to the appellant and on that basis, was treated as senior to the appellant in a category of ‘Trained Graduate Teachers’. The Apex Court held that the appellant had entered the services in the school as Assistant teacher with diploma in education and thus had fulfilled the qualification for the post. It was further held that B.Ed. degree was not an essential qualification prescribed for the said post. The High Court decided the matter against the appellant by placing reliance upon a Full Bench Judgment of Bombay High Court in the case of Shri Vaijanath S/o Tatyarao Shinde v. The Secretary, Marathwada Shikshan Prasarak Mandal (writ petition No. 4907 of 2002 decided on 15.11.2006) wherein it was held that seniority would be determined from the date of acquisition of educational and training qualification. The Apex Court, however, drew a distinction in the case before it and held that the case of the appellant was not a case of appointment of an unqualified teacher and, therefore, Full Bench judgment was held to be not applicable in the facts of that case. 18. Applying the ratio of the aforementioned judgment in the facts of the present case, it can clearly be held that the petitioner on the date of his appointment was not unqualified to be appointed a Sanitary Inspector, and therefore, his seniority had to be determined w.e.f. the date of his initial appointment i.e. 17.04.1985. 19. In SWP No. 1596/2006, petitioner claims to be placed in the grade of Rs.1760-3200 revised to Rs.5700-10100 from the date of his appointment i.e. 17.04.1985. As stated earlier, the benefit of upgradation was available only to such of the sanitary Inspectors who were qualified Sanitary Inspectors. This was done by virtue of communication dated 10.01.2005 whereby the benefit of Government Order No. 51-HUD of 2004 dated 26.02.2004 was extended subject to Sanitary Inspectors being qualified and those who were not qualified from the date of qualifying as Sanitary Inspectors on notional basis. 20. It needs to be seen that for the first time, the rules for the Sanitary Inspectors were framed in the year 2008 and, therefore, in so far as the petitioner in these petitions is concerned, there was no rule which had prescribed the clearance of the Sanitary Inspector course as a condition pre-requisite for the said appointment or being declared as a qualified Sanitary Inspector. The Municipal Rules, 1970, which were amended in the year 1986 by substitution, do not ipso facto apply to the case of the petitioner. 21. In my opinion, the benefit of upgradation in the scale of Rs.1760-3200 revised to Rs.5700-10100, therefore, could not have been refused to the petitioner. Petitioner having been appointed as a Sanitary Inspector was also required to be given the benefit of upgradation as prescribed under the Government Order No. 51-HUD of 2004 dated 26.02.2004 on notional basis. Petitioner would be entitled to pay scale of Rs.1760-3200 revised to Rs.5700-10100 w.e.f. the date his juniors were so placed. Petitioner would also be eligible for consideration for promotion w.e.f. his juniors were so promoted w.e.f. 12.05.2006. 22. For the reasons stated above, both the petitions are allowed. The impugned seniority list dated 16.09.2011 is quashed. Petitioner would be entitled to pay scale of Rs.1760-3200 revised to Rs.5700-10100 w.e.f. the date his juniors were so placed. Petitioner would also be eligible for consideration for promotion w.e.f. his juniors were so promoted w.e.f. 12.05.2006. 22. For the reasons stated above, both the petitions are allowed. The impugned seniority list dated 16.09.2011 is quashed. Respondents shall reframe the seniority list by reflecting the petitioner at an appropriate place keeping in view his date of appointment i.e. 17.04.1985. Petitioner shall be placed in the upgraded pay scales of Rs. 1700-3200 revised to 5700-10100 w.e.f. date the private respondents were so placed. He shall also be considered for promotion w.e.f. the date his juniors were so promoted. Disposed of accordingly along with connected MP(s). SWP No. 2025/2013 (Prithvi Raj Sangra and ors. v. State of J&K and ors.) 23. In this petition, the petitioners challenge the orders by virtue of which respondents No. 3 to 5 were first made as I/c Assistant Sanitation Officers and thereafter, without confirming them as I/c Assistant Sanitation Officers on the recommendation of the Departmental Promotion Committee, are further being placed as I/c Executive Officers. 24. Orders have been challenged primarily on the ground that the petitioners were seniors to respondents No. 3 to 5. It is stated that the petitioners No. 1 to 3 came to be appointed as Sanitary Inspector on 15.06.1987, 23.10.1987 and 22.04.1988 respectively. It is stated that so far as petitioner No. 4 is concerned, he came to be appointed as Sanitary Supervisor on 09.10.1987 and after acquiring the qualification of diploma in Sanitary Inspector in the year, 1985, he was promoted as Sanitary Inspector on 18.01.1991. 25. Respondents No. 3 to 5 are stated to be junior to the petitioners with reference to their date of qualifying the Sanitary Inspector’s course on 19.09.1991, 01.04.1995 and 26.10.1998 respectively. Reliance in this regard is placed on seniority list dated 31.08.2011. 26. However, in view of the view taken in Vinod Kumar’s case (supra), where the petitioner therein has been held to be entitled to seniority w.e.f. the date of his initial appointment i.e. 17.04.1985 and not from the date of his qualifying Sanitation Inspector’s Course, the plea of the respondents that they were rightly ignored for placement as I/c Assistant Sanitation Officers or for that matter I/c Executive Officers is a plea which is untenable. 27. 27. Respondents shall, therefore, consider the petitioners with due regard to their seniority to be framed on the principle of Vinod Kumar’s case (supra) for promotion to the post of Assistant Sanitation Officers and Executive Officers strictly in accordance with the rules keeping in view their merit and seniority. Disposed of along with connected MP(s) accordingly. SWP Nos. 1603/2006 and 2198/2013 (Mohd. Ashan v. State of J&K and ors.) 28. Petitioner came to be appointed as a Sanitary Inspector by virtue of order dated 15.10.1984 issued by the Addl. Secretary to Government, Civil Secretariat, Housing and Urban Development Department, Local Self Government. His name was reflected in the tentative seniority list dated 30.07.2001 at Serial No. 1, but in the second tentative seniority list dated 26.10.2010, the name of the petitioner was shown at Serial No. 21. Objections were called, pursuant to which, a final seniority list dated 16.09.2011 was issued showing the name of the petitioner at Serial No. 21. 29. Petitioner challenges the seniority list, so issued and seeks his due placement in the said seniority list qua respondent No. 3 to 20. The case of the petitioner is that he was appointed earlier in point of time than the private respondents and, therefore, his seniority ought to have been framed in accordance with the date of his first appointment i.e. 15.10.1984. 30. In SWP No.1603/2006, the petitioner seeks issuance of a writ of Mandamus directing the respondents No. 1 and 2 to place him in the grade of Rs.1760-3200 subsequently revised to Rs.5700-10100 as Sanitary Inspector from the date of his appointment i.e. 15.10.1984. 31. It is stated that the petitioner was appointed as Sanitary Inspector on 15.10.1984, whereas the private respondents No. 3 to 8 were appointed as Sanitary Inspectors much thereafter. 32. The stand taken by the respondents in ignoring the petitioner for promotion is same as was taken in Vinod Kumar’s case (supra). It was stated that all the respondents were placed in the upgraded pay scales earlier in point of time as they were qualified Sanitary Inspectors at the time of their initial appointment as against the petitioner who had qualified the Sanitary Inspector’s course only in October, 1996. 33. In view of the view taken in the Vinod Kumar’s case, both these petitions are allowed. 33. In view of the view taken in the Vinod Kumar’s case, both these petitions are allowed. Respondents shall reframe the seniority list by reflecting the petitioner at an appropriate place keeping in view his date of appointment i.e. 15.10.1984. Petitioner is also held entitled to be placed in the upgraded pay scales of Rs. 1700-3200 revised to 5700-10100 w.e.f. date the private respondents were so placed. He shall also be considered for promotion w.e.f. the date his juniors were so promoted. Disposed of accordingly along with connected MP(s).