"J&K HC: Officers Cannot Claim Seniority from Vacancies in Previous Years, Only Actual Promotion Date Counts; Rule 15(4) of 2008 Rules Struck Down"
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Rajnesh Oswal and Justice Sanjay Dhar declared that Rule 15(4) of the Jammu and Kashmir Administrative Service Rules, 2008 and Clause (i) of its Proviso are illegal and contrary to law. The Court directed that appointments to the Time Scale of the Jammu and Kashmir Administrative Service (JKAS) made prior to 1 December 2008 must be governed by the 1979 Rules, thereby upholding the final seniority list dated 24 June 2011 and quashing retrospective seniority claims.
The petitioners before the Court were drawn from two groups—those appointed to JKAS in 1992 via the 1980–1982 Combined Competitive Examination and those inducted in 1999 from departmental feeding services. The controversy concerned the validity of the 2011 seniority list, retrospective seniority granted under Rule 15(4) of the 2008 Rules, and the subsequent Tribunal orders affecting their placement.
The petitioners challenged the order dated 30 March 2021 passed by the Central Administrative Tribunal (CAT), Jammu Bench, which had dismissed their claims and held Rule 15(4) and Clause (i) of the Proviso illegal. They also contested the CAT’s subsequent order dated 25 January 2023, which had quashed a seniority list issued in 2021 and restored the 2011 list.
The grievance of the 1992 batch petitioners stemmed from the delay in their induction into the Time Scale of JKAS, despite having fulfilled eligibility conditions between 1997 and 2008. They argued that slots were available, and their exclusion from promotions during 2004–2007 was discriminatory. They relied on Rule 15(4), which permitted retrospective appointment to address procedural delays, and objected to its deletion via SO No. 133 dated 15 April 2021. They further sought restoration of the tentative 2010 list and prayed for creation of supernumerary posts to correct pensionary disparities.
The 1999 batch petitioners contended that Rule 15(4) enabled fair placement in the seniority list based on the actual year of vacancy and not the date of appointment. They challenged the 2023 CAT order that invalidated the redrawn seniority list and reinstated the 2011 list.
In contrast, the government argued that all appointments to the Time Scale of JKAS made before 1 December 2008 were governed by the 1979 Rules, which did not permit retrospective seniority. It submitted that selection and appointment required the constitution of a selection committee and issuance of a select list. The 2011 seniority list was prepared after following due procedure and considering representations.
The respondents submitted that during 2004–2007, several procedural and administrative delays occurred, but the appointments made in 2008 were regular. In the interim, redrawn seniority proposals were considered by multiple committees from 2017 to 2020. However, all changes remained contested before the Tribunal and were subject to judicial scrutiny.
Petitioners from the 1992 batch raised additional contentions. They cited earlier litigation where they had obtained notional seniority with effect from 1984, pursuant to Supreme Court directions. They argued that despite being eligible and having served on JKAS cadre posts such as Assistant Commissioners and SDMs, they were denied timely induction and, consequently, fair pensionary benefits. They alleged that their exclusion resulted in juniors from other services being promoted ahead of them, and sought remedial directions including creation of supernumerary posts.
The official respondents contended that the seniority of the petitioners had already been determined pursuant to a series of litigations culminating in Supreme Court decisions. They submitted that retrospective induction could not be claimed absent specific provisions under the 1979 Rules. They also maintained that the sealed cover procedure ordered in 2002 had been addressed and that the petitioners were considered only after their service disputes were finally resolved.
The private respondents asserted that Rule 15(4) and its Proviso sought to disturb vested rights and reorder seniority retrospectively. They maintained that since all inductees had entered the Time Scale in 2008, any differentiation based on a retrospective date of vacancy was illegal. They relied on Supreme Court rulings in Sunaina Sharma v. State of J&K and State of Uttarakhand v. Dinesh Kumar Sharma to oppose retrospective seniority.
The Division Bench framed and answered several issues, beginning with the legality of Rule 15(4). The Court stated:
“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.”
It observed that since the petitioners and private respondents were inducted prior to 1 December 2008, they were governed by the 1979 Rules. The Court noted:
“There is absolutely no provision prescribing the reckoning of date of induction/promotion… from the date of availability of vacancy… where select list in any calendar year could not be prepared due to procedural delay.”
The Bench further held:
“This provision vests the power with the Government to review the appointment… from a date subsequent to the availability of vacancies for their respective feeding services.”
Quoting V. Vincent Velankanni v. Union of India, the Court stated:
“Retrospective application… would result in withdrawal of vested rights which is impermissible in law.”
Turning to the claim for retrospective seniority, the Court referred to Deepak Agarwal v. State of U.P., Dinesh Kumar Sharma, and Pawan Pratap Singh v. Reevan Singh, stating:
“There is no provision in the Rules of 1979 which provides for grant of benefit of appointment/seniority… anterior to the date of his induction into Time Scale of JKAS.”
The Court held that calendar year-based vacancy mapping did not entitle the petitioners to retrospective induction. The Bench stated:
“The promoted member shall have the claim for the post on the date when he joins the said post and not from the date on which the said vacancy arose.”
Rejecting the claim for retrospective benefit based on officiating charge, the Court stated:
“This is admitted fact that when the petitioners… were tasked to work as In-charge Assistant Commissioners… no select list in terms of Rule 8(4) was prepared.”
The Bench observed that Rule 23 of the J&K CCA Rules, 1956 did not apply, noting:
“Rule 16(5) of the Rules of 1979 provides that only junior scale appointments are regulated under the Civil Services Rules… Rule 23 has not been made applicable for the purpose of determining seniority in the present case.”
The Court concluded that the petitioners’ officiating service could not be counted towards seniority in the absence of a valid select list.
Addressing the argument for creation of supernumerary posts, the Court recorded:
“No direction can be issued to the respondents for creation of supernumerary posts, so as to enable the petitioners to claim pensionary benefits at par with their counterparts, who were inducted in the Time Scale of JKAS earlier.”
It held that pensionary consequences did not arise from the service rules applicable to promotions and seniority and declined to entertain any relief that would result in disturbance of settled service positions.
The final directions issued by the Court are as follows:
“In view of the aforesaid discussion, we hold that the learned Tribunal is right in striking down Rule 15(4) of the Rules of 2008. As a matter of fact, the Government too realised its folly and vide S.O. No.133 dated 15.04.2021 notified the deletion of Rule 15 (4) of the Rules of 2008.”
“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.”
“In view of the rule position as mentioned above, the contention of the appointees of 1992 batch for grant of seniority with effect from the date they had been working as In-charge Assistant Commissioners/ SDMs/Collectors from the year, 2004/2005 cannot be accepted.”
“The petitioners cannot be granted the benefit of induction/promotion to the post of Time Scale of JKAS for the vacancies of the years-2004, 2005, 2006 and 2007, from the date anterior to their promotion/induction.”
“Writ petitions are accordingly found to be without any merit and are dismissed.”
Advocates Representing the Parties:
For the Petitioners: Mr. Z. A. Shah, Sr. Adv. with Mr. A. Hanan, Adv.; Mr. Sunil Sethi, Sr. Adv. with Mr. Parimoksh Seth, Adv.; Mr. Abhinav Sharma, Sr. Adv. with Mr. Abhirash Sharma, Adv.; Mr. R. A. Jan, Sr. Adv. with Mr. Suhail Mehraj and Mr. Syed Mohd Yahya, Advocates; Mr. M. Y. Bhat, Sr. Adv. with Mr. Sajid Ahmed Bhat, Adv.; Mr. Javid Iqbal Balwan, Adv.; Mr. Dheeraj Choudhary, Adv.
For the Respondents: Mr. Mohsin Qadri, Sr. AAG with Ms. Nadia Abdullah, Assistant Counsel; Mr. Raman Sharma, AAG; Mr. Amit Gupta, AAG; Mr. Ravinder Gupta, AAG; Mr. T. M. Shamsi, DSGI; Mr. Jehangir Iqbal Ganie, Sr. Adv.
Case Title: Ghulam Nabi Itoo & Ors. v. Union Territory of J&K & Ors.
Neutral Citation: 2025 JKHC 1847
Case Number: WP(C) No. 2774/2023 and connected matters
Bench: Justice Rajnesh Oswal and Justice Sanjay Dhar
[Read/Download order]
