Officers Cannot Claim Seniority Based On Unfilled Vacancies From Previous Years, Actual Date Of Promotion Only Valid Criterion For Hierarchy: J&K HC

Settling a complex seniority dispute involving officers from the 1992 and 1999 batches of the Jammu and Kashmir Administrative Service (JKAS) the bench comprising Justices Rajnesh Oswal and Sanjay Dhar dismissed a batch of writ petitions challenging the Central Administrative Tribunal's (CAT) decision that had upheld the 2011 seniority list while striking down Rule 15(4) of the JKAS Rules, 2008.

The case originated from a protracted legal battle that began when the JKAS officers challenged the final seniority list which determined their placement in the service hierarchy. The petitioners, belonging to the 1992 and 1999 batches, contended that despite vacancies being available between 2004 and 2007, their promotions were delayed until 2008, causing them to lose seniority and career progression opportunities.

The dispute reached the CAT, Jammu Bench, which dismissed the petitions challenging the 2011 seniority list. The CAT also declared Rule 15(4) of the JKAS Rules, 2008, and its Proviso (i) as illegal and contrary to law. This rule had allowed officers inducted later to claim seniority from the date vacancies were initially available, even if their actual promotion occurred years later. The CAT's decision was based on the finding that the 1979 Rules, under which the petitioners were promoted, did not permit retrospective seniority.

Aggrieved by the CAT's order, the petitioners represented by senior advocates including Mr. Z.A. Shah, Mr. M.Y. Bhat, and Mr. R.A. Jan, submitted that Rule 15(4) of the 2008 Rules was enacted to rectify historical injustices caused by procedural delays in promotions. They argued that vacancies for their feeder services (e.g., Revenue Gazetted Service) existed between 2004-2007, but the government failed to convene timely selection committees.

The 1992 batch officers contended that they had been holding cadre posts (like SDMs and Assistant Commissioners) on an in-charge basis since 2004-2005, entitling them to seniority from those dates under Rule 23 of the J&K Civil Services Rules, 1956. Further, they cited discrimination, as officers from other feeder services who were promoted earlier retired with higher pensions and benefits and hence sought the creation of supernumerary posts to offset their losses.

The Union Territory of J&K, represented by Mr. Mohsin Qadri (Sr. AAG) and other state counsel, defended the CAT's decision, arguing that the 1979 Rules did not permit retrospective promotions, and Rule 15(4) of the 2008 Rules was ultra vires as it disturbed vested rights. The government had rightly omitted Rule 15(4) in 2021 after realizing its legal infirmities.

“The selected candidate cannot have any plea of retrospective promotion from the date on which the slots/vacancies were available for their feeding cadre in the earlier /preceding calendar years and it is the discretion of the Government to fill up the vacancies occurred in any preceding or earlier calendar year”, Sr AAG Qadri argued.

Court's Observations:

Upholding the striking down of Rule 15(4) of 2008 Rules the Court agreed with the CAT's finding that Rule 15(4) and Proviso (i) were illegal as they sought to grant retrospective seniority, thereby unsettling settled seniority. The bench emphasized that the 1979 Rules, under which the petitioners were promoted, contained no such provision.

Citing V. Vincent Velankanni v. Union of India (2024), the Court held that "a subsequent rule cannot retrospectively alter vested rights unless expressly permitted."

“.. This Court is of the considered view that as the petitioners were appointed/inducted in to Time Scale posts of JKAS under the Rules of 1979, so they were required to be governed by the Rules of 1979 only. Rule 15(4) of the Rules of 2008 and Clause (i) of the proviso, in fact had the effect of taking away the vested right of some of the members of the service and as such, the same is illegal”, the court reasoned.

Observing that there could be no retrospective eeniority under 1979 Rules the Court rejected the petitioners' plea for seniority from the date vacancies arose, holding that the 1979 Rules mandated promotions only from the actual date of induction.

Relying on Deepak Agarwal v. State of U.P. (2011) and State of Uttaranchal v. Dinesh Kumar Sharma (2007), the bench ruled,

The petitioners' argument that they should be granted seniority from 2004-2005 (when they held in-charge posts) was dismissed. The Court clarified that Rule 23 of the J&K Civil Services Rules, 1956, which permits counting officiating service for seniority, did not apply because no select list existed at the time. The bench also noted that the Supreme Court had already settled this issue in State of J&K v. Javed Iqbal Balwan, barring any further relief.

The Court also dismissed the petitioners claim that vacancies for 2004-2007 were illegally clubbed, observing that the 1979 Rules did not mandate year-wise select lists. Citing Vijay Singh Charak v. Union of India (2007), the bench held that the government had the discretion to fill vacancies as per administrative needs.

Citing the above judgment the court reiterated,

“.. that it is not an absolutely mandatory requirement of the regulation that a select list must be prepared every year. Normally that should be done, but if for some good reasons such a select list was not prepared every year, that by itself would not invalidate the select list for that year”.

Dismissing all petitions, the Court concluded that no legal infirmity existed in the CAT's ruling. “For all what has been said and discussed above, there is no merit in these writ petitions, as such, the same are dismissed, however, no order as to costs”, the court concluded.

Case Title: UT Of J&K Vs Ghulam Nabi Itoo & Ors

Citation: 2025 LiveLaw (JKL) 135

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