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2019 DIGILAW 490 (JK)

Babu Ram v. State of J&K

2019-11-06

TASHI RABSTAN

body2019
JUDGMENT : 1. Petitioner through the medium of instant petition is seeking following reliefs:- (a) quash Govt. Order No. 784-GAD of 2014 dated 18.07.2014, whereby and whereunder, final tentative seniority lists of Officers of J&K Administrative Service, promoted/ inducted between 2009 and 2011 was issued, to the extent, it fixes/ places the seniority of the petitioner w.e.f. 12.04.2010 instead of 2008; (b) command and direct the respondents to promote / induct the petitioner in the time scale of Kashmir Administrative Service w.e.f. May, 2008, when the petitioner was eligible, vacancy/slot under S.C. category for Revenue Gazetted Service was also available, as identified by Establishment / Selection Committee in its meeting held on 12th and 14th February, 2008, by extending the benefit of Sub-Rule (4) of Rule 15 of J&K KAS Rules, 2008. (c) restrain the respondents from promoting or by placing by way of stop gap arrangement and from releasing the selection grade to the members of KAS promoted / inducted in the time scale to the selection scale, till the petitioner is given the retrospective promotion/induction into the time scale w.e.f. May, 2008 and his seniority fixed accordingly with retrospective effect. 2. Learned counsel for the petitioner contends that pursuant to the selection process conducted by J&K Public Service Commission i.e. Combined Competitive Examination, the petitioner was selected and consequently allotted J&K Revenue Gazetted Service, which is one of the feeding services for promotion to the time scale under Rule 5 of J&K Administrative Service Rules, 1979. The petitioner came to be appointed on 16.10.2001. It is also contended that under the Administrative Service Rules of 1979, the eligibility for promotion to the time scale from the feeding services was five years’ service in the respective feeding services which the petitioner acquired on 16.10.2006. Though the petitioner acquired eligibility on 16.10.2006, however, there was no vacancy/slot in the year 2006 for Revenue Gazetted Service, and since the petitioner belongs to S.C. Category and one slot under S.C. Category, i.e., roster point No. 30 was lying vacant in the Revenue Gazetted feeding service in the year 2007, yet, his was not considered for promotion into the time scale of KAS in the year 2008 and instead officers from various feeding services for which services there were no slots available, the establishment/selection committee decided to utilize leave and training reserved posts for their induction as one time exception. 3. 3. It is contended that vide communication bearing No. GAD (Ser) Genl/11/2008 dated 16.09.2008, the General Administration Department requested respondent No.3, i.e., Commissioner/ Secretary Revenue Department to furnish the proposal of officers of the Revenue Gazetted Service, who were appointed even after 31.12.1999 and while doing so it was specifically conveyed that one vacancy /slot under S.C. category for Revenue Gazetted Service was available, yet, the case of the petitioner was not considered and again the proposal was sought for making induction against that roster point vide communication dated 16.09.2008 and again the case of the petitioner was not considered, however, vide Govt. Order No. 1490-GAD OF 2008 dated 19.11.2008, the petitioner came to be promoted in the time scale against the roster point No. 30 in his own pay and grade. It is also contended that as per Sub-Rule (4) of Rule 15 it is clearly provided that where select list is not prepared for members of any departmental feeding service in any particular calendar year despite availability of vacancies and member from such service when finally included in the select list at any later date, he shall be appointed to the service from the date on which, the vacancy was allocated to such feeding service and since the vacancy was available in the year 2007/2008 against roster point No. 30 for S.C. category for revenue Gazetted service, therefore, the petitioner was entitled to be inducted/promoted into the time scale in the year 2008 when others were inducted. It is also contended that vide Govt. Order No. 1797-GAD of 2009 dated 29.12.2009, sanction was accorded to the grant of charge allowance in favour of the petitioner along with others, who stood placed/promoted into the time scale in their own pay and grade. Again the meeting of the establishment/ selection committee was held on 16.02.2010 and in the aforesaid meeting a wrong decision was taken to promote/induct members of those feeding services into the time scale who stood appointed by promotion or by direct recruitment in their respective feeding services from 01.01.2000 to 31.12.2002 against available slot subject to the condition that they shall be placed in the KAS Seniority after those appointed in the feeding service upto 31.12.1999, notwithstanding the availability of the slots for them prior to that date. 4. 4. Learned counsel for the petitioner contends that from the aforesaid fact, it becomes apparent that the petitioner was also covered in the aforesaid decision, inasmuch as, the petitioner was directly recruited on 16.10.2001 and slot was available against roster point No. 30 for S.C. category for revenue Gazetted service for induction into time scale in the year 2007/2008 and in order to deny the benefit of sub-rule (4) of Rule 15 of the Administrative Service Rules, 2008, the aforesaid decision was taken not to promote/induct the petitioner with retrospective effect, i.e., w.e.f. 2008 when the slot was available for the petitioner. He further contends that after the decision of the establishment/Selection Committee; finally vide Govt. Order No. 441-GAD of 2010 dated 12.04.2010, the petitioner came to be promoted/inducted into time scale of KAS, though the case of the petitioner was required to be considered for retrospective promotion / induction under sub-rule (4) of Rule 15 of Administrative Service Rules, 2008, for promotion/induction w.e.f. May, 2008. After the belated induction of the petitioner into the time scale vide Govt. Order No. 441-GAD of 2010 dated 12.04.2010, again the establishment/selection committee held its meeting on 22.06.2010 and the decision which was taken in the earlier meeting was reiterated, i.e., those who were appointed by way of direct recruitment or otherwise in the feeding service from 01.01.2000 to 31.12.2002 vide Govt. Order No. 441-GAD of 2010 dated 12.04.2010, shall figure in the seniority list below those who stood appointed in their feeding service upon 31.12.1999, despite availability of the slots for them prior to that days. 5. It is contended that the respondent No. 1 issued the final seniority list of officers of J&K Administrative Service, i.e., those who were serving in time scale and who stood promoted in the time scale between 01.01.2004 to 01.12.2008 vide Govt. Order No. 743-GAD of 2011 dated 24.06.2011 and since the petitioner was inducted/ promoted in the time scale only on 12.04.2010, therefore, the name of the petitioner did not figure in the aforesaid seniority list. 6. Aggrieved of the aforesaid seniority list, the petitioner along with one Sh. Bumesh Sharma filed SWP No. 1504/2011 challenging the aforesaid seniority list and also sought a writ of mandamus to reframe the final seniority of officers in accordance with rules by placing the petitioner at appropriate place in the seniority list. 6. Aggrieved of the aforesaid seniority list, the petitioner along with one Sh. Bumesh Sharma filed SWP No. 1504/2011 challenging the aforesaid seniority list and also sought a writ of mandamus to reframe the final seniority of officers in accordance with rules by placing the petitioner at appropriate place in the seniority list. It is stated that the respondents filed objections to the aforesaid seniority and took a categoric stand that the name of the petitioner could not figure in the aforesaid seniority list, inasmuch as, only those officers were included in the aforesaid seniority who stood inducted upto 01.12.2008, whereas the petitioner was inducted only on 12.04.2010, however, there was a categoric admission made in Para-17 of the objections filed in SWP No.1504/2011 that the petitioner was inducted/promoted into the time scale vide Govt. Order No. 441-GAD of 2010 dated 12.04.2010 against roster point No. 30 earmarked for S.C. category. 7. Respondent No. 1 issued Govt. Order No. 223-GAD of 2014 dated 24.02.2014, whereby and whereunder tentative seniority list of officers of J&K Administrative Service working in the time scale and who stood inducted between 2009 and 2012 came to be issued, which includes the name of the petitioner as well, inasmuch as, the petitioner was inducted on 12.04.2010. It is contended that though the tentative seniority list was issued on 24.02.2014 and representations/objections were sought within a period of 21 days and the petitioner submitted his objections well within time, yet, the respondents did not finalize the seniority lists for a period of almost five months and issued final seniority list vide Govt. Order No. 784-GAD of 2014 dated 18.07.2014. It is further stated that while finalizing the seniority list, the respondents did not deal with the objections submitted by the petitioner, wherein the petitioner had claimed the benefit of Rule 15 (4) of J&K Administrative Service Rules, 2008, i.e., benefit of retrospective promotion/induction w.e.f. 2008. 8. Aggrieved of the impugned seniority list issued vide Govt. It is further stated that while finalizing the seniority list, the respondents did not deal with the objections submitted by the petitioner, wherein the petitioner had claimed the benefit of Rule 15 (4) of J&K Administrative Service Rules, 2008, i.e., benefit of retrospective promotion/induction w.e.f. 2008. 8. Aggrieved of the impugned seniority list issued vide Govt. Order No. 784-GAD of 2014 dated 18.07.2014 and the failure of the respondents to extend the benefit of retrospective promotion/ induction to the petitioner w.e.f. 2008 as provided under sub-rule (4) of Rule 15 of J&K Administrative Services, Rules, 2008, the petitioner filed the instant petition on the following grounds:- (i) that the petitioner was entitled for promotion/induction into the time scale w.e.f. May, 2008, inasmuch as, the vacancy/slot against roster point No. 30 for S.C. Category was available in the year 2007/2008 for Revenue Gazetted Feeding service, yet, the case of the petitioner was not considered when inductions were made in the month of May, 2008. It is contended that the petitioner was ignored and excluded from the zone of consideration only on the ground that the persons recruited either by way of direct recruitment or by promotion into the feeding services prior to the petitioner would become junior to the petitioner. In this regard, it is contended that the aforesaid decision of the respondents was contrary to Administrative Service Rules, 1979 which were holding the field when establishment/selection committee met in the month of February, 2008, inasmuch as, under the Administrative Service Rule, 1979, the induction was dependent not on the basis of the year of recruitment in the feeding service, but, was dependent upon the eligibility and availability of slots in the respective feeding services. It is also contended that when one slot was available for the petitioner against roster point No. 30, therefore, the decision of the respondents to ignore the petitioner on baseless ground was not sustainable; (ii) that even otherwise the petitioner was promoted/inducted admittedly on 12.04.2010, i.e., after coming into force of J&K Administrative Service Rules, 2008 and sub-rule (4) of Rule 15 of Rules of 2008, clearly provides that the petitioner was entitled to retrospective promotion/induction into the time scale from the date of availability of the slot, notwithstanding the belated induction of the petitioner in the year 2010 ; (iii) that there has to be one seniority list of the members of the particular service, who are working in the same class, category and grade as is required under the Administrative Service Rules of 2008 and also Rule 24 of J&K CCA Rules, 1956, whereas the respondents contrary to and in violation of the Administrative Service Rules, 2008 and Rule 24 of CCA Rules have maintained four separate seniority lists of the members of KAS working in the time scale, i.e., the first seniority list, which is maintained of those officers, who were inducted into the time scale prior to 01.01.2004; and second of those who were inducted between 01.01.2004 to 01.12.2008; third of those officers who were inducted between 01.01.2009 and 31.12.2011 and fourth seniority list shall be issued by the respondents of those officers who stood inducted from 01.01.2012 onwards. It is further stated that though the tentative seniority list to which the objections were invited of those officers who were inducted between 01.01.2009 and 31.12.2011, however, while finalizing the seniority through the medium of impugned Govt. It is further stated that though the tentative seniority list to which the objections were invited of those officers who were inducted between 01.01.2009 and 31.12.2011, however, while finalizing the seniority through the medium of impugned Govt. Order the same has been finalized of those officers, who were inducted between 01.01.2009 to 31.12.2011 and it has been provided in the impugned seniority list that inter-se the seniority of officer, appointed to the service during 2012, needs further consideration and shall be issued separately; (iv) that instead of maintaining one seniority list of the officers working in the time scale and without extending the benefit of sub-rule (4) of Rule 15 to the petitioner, i.e. retrospective induction/promotion to the petitioner w.e.f. May, 2008, the respondents are contemplating to confer selection grade to the officers who were inducted after the petitioner by ignoring the induction of the petitioner being prior to them despite availability of slot in favour of the petitioner in the year 2007/2008 against roster point No. 30 under S.C. category to the revenue feeding service.; (v) that even otherwise the petitioner was placed/promoted in time scale on officiating basis vide Govt. Order No. 1490-GAD of 2008 dated 19.11.2008 and the charge allowance was also released in favour of the petitioner vide Govt. Order No. 1797-GAD of 2009 dated 29.12.2009, therefore, keeping in view Rule 23 of CCA Rules, read with law laid down by the Hon’ble Supreme Court of India in case titled Suraj Parkash & Ors and also in view of Govt. Order No. 1797-GAD of 2009 dated 29.12.2009, therefore, keeping in view Rule 23 of CCA Rules, read with law laid down by the Hon’ble Supreme Court of India in case titled Suraj Parkash & Ors and also in view of Govt. Order No. 743-GAD of 2007 dated 28.06.2007, the promotion of the petitioner is required to be regularized in the time scale w.e.f. 19.11.2008, inasmuch as, the petitioner was eligible on the aforesaid date and the slot was also available in favour of the petitioner and the petitioner was put Incharge of time scale on 19.11.2008 as such, petitioner fulfills all the requirements for grant of retrospective promotion into the time scale w.e.f. 19.11.2008, notwithstanding the provisions contained in Administrative Service Rules, 1979 or provisions contained in Administrative Service Rules, 2008; (vi) that this Court in SWP No. 1352/2011 and clubbed matters decided on 08.11.2013 has recorded a categoric finding that those who were inducted after coming into force of Administrative Service Rules, 2008, but, their induction was delayed for procedural requirements those officers were entitled to retrospective induction/promotion in the time scale provided the slots/vacancies in their respective feedings services were available from an anterior date. It is stated that in case of the petitioner the slot against roster point No. 30 for S.C. category in the revenue feeding service was available in the year 2008, therefore, the petitioner was required to be promoted/inducted into the time scale w.e.f 2008, which claim was raised by the petitioner in the objections filed by him to the tentative seniority list, however, that claim of the petitioner was not considered at all by the respondents while issuing the final seniority lists; and (vii) that otherwise also the impugned seniority list is not sustainable, inasmuch as, those who stood inducted/promoted in the time scale much after the induction of the petitioner which were made on 12.04.2010 are figuring over and above the name of the petitioner in the impugned seniority list. It is stated that the petitioner who was inducted on 12.04.2010, his name figures at Sr. No. 40 in the impugned seniority list, whereas many officer who were inducted on 27.07.2010 figure over and above the name of the petitioner in the seniority list without any justification whatsoever. 9. Objections have been filed by respondent No.2 contending therein that vide Govt. No. 40 in the impugned seniority list, whereas many officer who were inducted on 27.07.2010 figure over and above the name of the petitioner in the seniority list without any justification whatsoever. 9. Objections have been filed by respondent No.2 contending therein that vide Govt. Order No.223-GAD of 2014 dated 24.02.2014, a tentative seniority list of officers of J&K Administrative Service working in the time scale and who stood inducted between 2009 and 2012 came to be issued wherein petitioner figured at S.No.40. The representations/objections were sought against the seniority list wherein petitioner submitted his objections and claimed the benefit of Rule 15(4) of the J&K Administrative service Rules, 2008, benefit of retrospective promotion/induction w.e.f. 2008 were also considered. The contention of the petitioner that his representation/objections, in response to the tentative seniority list issued by the General Administration Department vide Govt. order No.223-GAD of 2014 dated 22.04.2014 has not been considered, is not based on the facts. In this regard, it is submitted by learned counsel for the respondents that in fact that the petitioner submitted two joint representations wherein he had stated that slots were available in 2008 as determined by the Establishment-cum-Selection Committee (ECSC), in its meeting on 12th to 14th February, 2008 and in response to the GAD’s communication dated 04.03.2008, proposals were submitted by the respective departments. The petitioner was promoted on officiating basis in the year 2008 and charge allowance allowed in the year 2009. He was considered for induction in 2008 (despite vacancies) and instead was inducted in 2010 as per service Rules. It is further contended that through another representation besides reiterating the earlier stand mentioned above, the petitioner and some other officers have contended that the ECSC did not induct them at the time it recommended induction of 1999 batch officers, for the sole reason that they would become senior to 1999 batch officers. The decision of the ECSC is as under:- “While considering induction of officers appointed to the departmental services upto 31.12.1999, slots also became available under normal quota for officers of subsequent batches. However, to comply with the decisions that officers of subsequent batches should not steal a march over the officers of earlier batches and to avoid any further distortions, the committee decided to defer consideration on these cases. However, to comply with the decisions that officers of subsequent batches should not steal a march over the officers of earlier batches and to avoid any further distortions, the committee decided to defer consideration on these cases. The committee was informed that after 1999, the direct recruitment through Combined Competitive Examination was made in retrospective effect from October, 2001. Orders of their appointment were actually issued in 2002 with retrospective effect from October, 2001. Order in respect of few officers who were on the Select List, were also issued in 2002. The Committee after taking note of this position decided to consider induction in KAS Officers as have been appointed in their feeding service either by promotion or by direct recruitment from 01.01.2000 to 31.12.2002 against the available slots subject to the condition they shall be placed in the KAS seniority after those appointed in their feedings services upto 31.12.1999 notwithstanding the availability of slots for them prior to that date. 10. The petitioner claims that above decision of ECSC makes his claim superior to that of the officers, who were inducted against the slots of 2009 and 2010 in terms of settled position of law that a person cannot be put to disadvantage in absence of any statutory force which was applicable at the relevant point of time. He further pleaded that had he been inducted in 2008, the 2008 Rules would not have been applicable to him as a result of which he has been placed at a disadvantage, firstly by not inducting him in the year 2008 on the grounds that he may steal a march over 1999 batch and secondly by placing him in the tentative seniority list after the officers who were inducted against 2010 slots. He has pleaded for his placement in the seniority list immediately after 1999 batch as per the decision of ECSC. 11. Learned counsel for the respondents further contends that the above joint representation of petitioner and other officers was examined and it was found that the basic issue raised was applicability of Rule 15(4) of the Jammu and Kashmir Administrative services Rules, 2008. It is reiterated that Rule 15(4) was under adjudication in the Supreme Court and hence, the final seniority list was made conditional till the outcome of the SLP. It is reiterated that Rule 15(4) was under adjudication in the Supreme Court and hence, the final seniority list was made conditional till the outcome of the SLP. The judgment is expected to cover and resolve other related issues like preparation of year wise select list by convening of DPCs in every year, fixation of seniority on the basis of accrual of slots, relevance of the date of placement on higher post etc. the case regarding applicability of Rule 15(4) along with other connected matter, has however, now been remanded to Single Bench of this Court and is pending adjudication. As regards the contention that he should be placed immediately below officers of 1999 batch as per decision of the ECSC, it is submitted that the petitioner has been inducted in the year 2010 along with other officers and from perusal of the minutes of ECSC, it appears that the intention of ECSC was to protect the seniority of 1999 batch against those officers of 2001 batch, from whom slots had accrued in their respective departmental feeding service. That is why it was made clear that officers of 2001 batch will be placed below 1999 batch officers. 12. Thus, it is contended on behalf of the respondents that in view of the above, the position assigned to petitioner warrants no change in the tentative seniority as the seniority of petitioner was finalized vide Government Order No.784-GAD of 2014 dated 18.07.2014 wherein he was assigned seniority position at S.No.40 on the basis of his induction into KAS in the year 2010. Another recent development is viz-a-viz reservations in promotions. Since the petitioner is seeking retrospective induction against a slot for scheduled caste category in the Revenue Gazetted service, his status, even if he is eligible for promotion, cannot be changed on the basis of his belonging to Scheduled Caste Category due to pendency of issue regarding reservations in promotions before the Hon’ble Supreme Court. 13. Heard learned counsel for the parties and perused the record. 14. It is not in dispute that the petitioner was appointed to the time scale of Jammu and Kashmir Administrative Service (KAS) in the year 2010 vide Government Order No.441-GAD of 2010 dated 12.04.2010 in the scheduled caste category. 13. Heard learned counsel for the parties and perused the record. 14. It is not in dispute that the petitioner was appointed to the time scale of Jammu and Kashmir Administrative Service (KAS) in the year 2010 vide Government Order No.441-GAD of 2010 dated 12.04.2010 in the scheduled caste category. The perusal of the aforesaid order will show that the appointment of the petitioner to the time scale of Jammu and Kashmir Administrative Service (KAS) was with immediate effect, as such, the case of the petitioner was not considered for promotion with retrospective effect. At the time when the petitioner was appointed, the J&K Administrative Service Rules, 1979 came to be repealed with the coming into force of Jammu and Kashmir Administrative Service Rules, 2008, vide SRO 386 dated 01.12.2008 and Rule 15 of the Administrative Services, Rules, 2008 is relevant which is reproduced hereunder:- “Rule 15: Appointment to the service in the time scale: (1) The Government shall make appointment to the service in the time scale of persons who are held suitable in terms of rule 14 in the order in which their names appear in the select list for the time being in force. Provided that the appointment of an officer whose name has been included in the select list but treated provisional under sub rule (3) of Rule 14 shall be made by the government after his integrity has been certified by the respective administrative department having regard to the fact that the officer has been exonerated from the charges which were pending against him at the time of his selection. (3) All appointments shall be made to the service and not against any specific post included in the cadre of service. (4) Where select list cannot be prepared for the members of any departmental feeding service in any particular Calendar year despite availability of vacancies owing to the procedural delay such members, when finally included in the select list of any late date shall be appointed to the service from the date on which the vacancy was allocated to such feeding service. Provided that: (i) Cases of persons appointed against the vacancies of 2004, 2005, 2006 and 2007 shall be reviewed in terms of sub-rule (4) above if their appointment has taken place on a subsequent date. Provided that: (i) Cases of persons appointed against the vacancies of 2004, 2005, 2006 and 2007 shall be reviewed in terms of sub-rule (4) above if their appointment has taken place on a subsequent date. (ii) Persons referred to in sub-rule (4) should otherwise be eligible for appointment to the service under these rules from such retrospective. (iii) Time scale of the service shall be released to a member of any departmental service who has officiated on a cadre post, or on an equivalent post on an ex-cadre basis, if he is not appointed to the service owing to his retirement provided that a vacancy was available and that he is held suitable by the selection committee for such appointment. (iv) Cases pending on the commencement of these rules shall also be dealt with in terms of proviso (iii) above. 15. In terms of Sub-Rule (4) of Rule 15, it is provided that where select list is not prepared for members of any departmental feeding service in any particular calendar year despite availability of vacancies and member from such service when finally included in the select list at any later date, he shall be appointed to the service from the date on which the vacancy was allocated to such feeding service. It is contended on behalf of the petitioner that since the vacancy was available in the year 2007/2008 against roster point No. 30 for S.C. category for Revenue Gazetted Service, therefore, he was entitled to be inducted/promoted in the time scale in the year 2008 when others were inducted. 16. Now the question arises as to whether the petitioner has been appointed against the vacancy of 2004, 2005, 2006 and 2007 which is required to be considered as to whether in the year 2008 with effect from the date the petitioner is claiming benefit of appointment to the Jammu and Kashmir Administrative Service (KAS) in accordance with the rules prior to the Rules of 2008 had been made or not. If the appointments were made in the year 2008 against the vacancies of 2008 and the petitioner was eligible on all respects, then his case was also required to be considered. If the appointments were made in the year 2008 against the vacancies of 2008 and the petitioner was eligible on all respects, then his case was also required to be considered. Admittedly, when the petitioner was appointed on 12.04.2010 to the time scale of Jammu and Kashmir Administrative Service (KAS), he did not question the aforesaid order, but, now in the present petition, he seeks quashment of Government Order No. 784-GAD of 2014 dated 18.07.2014 to the extent it fixes his seniority with effect from 12.04.2010 instead of 2008. The petitioner has further prayed that he be promoted/inducted in the time scale of Jammu and Kashmir Administrative Service (KAS) w.e.f. May, 2008 when he was eligible and vacancy/slot under Schedule Caste Category for Revenue Service was available by extending the benefit of sub rule 4 of Rule 15 of Jammu and Kashmir Administrative Service Rules, 2008. 17. The respondents have, however, objected to the claim of the petitioner. It is appropriate to reproduce paragraph No. 6 of the objections filed in reply to para No.8 of the writ petition:- “8. That the contents of para-8 are also matter of record; so far it concerns the meeting of Establishment/Selection Committee in the year 2008. It is respectfully submitted that the petitioner was promoted, on officiating basis in 2008 and charge allowances was allowed in his favour in 2009 as per J&K Administrative Services Rule, 2008, the petitioner was not found entitled for induction in 2008 despite vacancies and hence was inducted in 2010, when he became eligible.” 18. From the perusal of the aforesaid reply of the respondents, it is clear that the petitioner was promoted on officiating basis in the year 2008 and charge allowance was allowed in his favour in the year 2009 as per Jammu and Kashmir Administrative Services Rules, 2008. It is the categoric stand of respondents that the petitioner was not found entitled for induction in the year 2008 despite vacancies and hence was inducted in the year 2010 when he became eligible. It is further contention of the respondents that the reservation in promotion having been struck down by the Division Bench of this Court and the matter being subjudice before the Apex Court, the petitioner cannot claim right of appointment in the Jammu and Kashmir Administrative Service (KAS) on the basis of reservation. It is further contention of the respondents that the reservation in promotion having been struck down by the Division Bench of this Court and the matter being subjudice before the Apex Court, the petitioner cannot claim right of appointment in the Jammu and Kashmir Administrative Service (KAS) on the basis of reservation. Though, it is contended on behalf of the petitioner that since the vacancy was available in the year 2007/2008 against roster point No. 30 for S.C. category for Revenue Gazetted Service, therefore, the petitioner was entitled to be inducted/promoted in the time scale in the year 2008 when others were inducted. It is further contended that the petitioner was promoted on officiating basis in the year 2008 and charge allowance was also allowed in his favour in the year 2009. In support of the claim projected by the petitioner, learned counsel appearing for the petitioner has also placed reliance on the cases Suraj Parkash Gupta and others etc. v. State of J&K and others reported in 2000(7) SCC 561 and Sunaina Sharma and others v. State of Jammu and Kashmir and others, reported in AIR 2017 SC 5101 . 19. From the aforesaid analysis, in case the petitioner was promoted on officiating basis in the year 2008 and charge allowance was also allowed in his favour in the year 2009, he, thus, has a right to be considered for appointment/induction from the year 2008, however, subject to his eligibility and availability of the vacancy under Scheduled Caste Category, of course, in accordance with the Rules applicable. 20. Accordingly, this petition is disposed of with a direction to the respondents to consider the claim of the petitioner for appointment to the Jammu and Kashmir Administrative Service (KAS) w.e.f. May 2008 subject to his eligibility and availability of the vacancy under Scheduled Caste Category, of course, in accordance with the Rules applicable. In case, it is found that the petitioner was entitled to the appointment/induction to the Jammu and Kashmir Administrative Service (KAS) in accordance with the rules applicable and in case after consideration the petitioner is appointed to the Jammu and Kashmir Administrative Service (KAS) w.e.f. May, 2008 then his seniority be fixed accordingly. 21. Disposed of as above along with connected IA(s).