IMPORTANT POINT
Promotion can be granted on retrospective basis to promotee officers from a date on which the clear-cut vacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regular appointment.

JUDGMENT :

Deepak Gupta, J.

1. The issue that arises for determination in these appeals is whether the private respondents, who are promotee Excise and Taxation Officers (ETOs for short) could be granted retrospective promotion from the dates when the vacancies occurred in the promotion quota.

2. The undisputed facts are that appointment to the post of ETO under the J&K Excise & Taxation (Gazetted) Recruitment Rules, 1977 (for short the ‘Excise Rules’) is made from two sources, promotion and direct recruitment. The appellants are the original writ petitioners. They are direct recruits who were appointed as ETOs on the basis of J&K Combined Competitive Examination. They were issued appointment letters on 23.07.2004. The private respondents are promotees who were promoted to the post of ETOs. The J&K Public Service Commission proposed and cleared the names of the private respondents for promotion on 05.10.2004 and the private respondents were promoted as ETOs on the recommendation of the Public Service Commission on 06.12.2004. It is not disputed that the direct recruits and promotees have been promoted within their quota and there is no violation of quota. However, the private respondents were given retrospective promotion/appointment in the cadre of ETOs on various dates between 01.05.2002 and 01.01.2004. Resultantly, they were deemed to have been appointed as ETOs prior to the appellants who were appointed on 23.07.2004. As such the private respondents were placed senior to the appellants.

3. A seniority list of ETOs was issued on 03.01.2006 in which the promotee/respondents were shown senior to the appellants. The appellants filed a writ petition before the J&K High Court challenging the grant of retrospective appointment to the private respondents. It was urged by the appellants that the private respondents were not even born in the cadre of ETOs when the appellants were appointed as ETOs on 23.07.2004. It was further averred that the private respondents, i.e., promotees had never worked as ETOs either on officiating or stop-gap basis and, in fact, the promotees had worked under the direct recruits for a few months before their promotion. It was further submitted that the post of ETO was in a separate service being a gazetted service and, therefore, the service rendered in the lower post could not be equated with the service rendered in the higher post. The stand of the contesting respondents was that in terms of Rule 23 of the J&K Civil Service (CCA Rules), 1956 (hereinafter referred to as Civil Service Rules), seniority could be assigned to the promotees from the date the vacancy occurred in the quota of promotees. The learned Single Judge held that retrospective promotions could not be granted, and allowed the writ petition. Two Letters Patent Appeals were filed which were disposed of by a common judgment of 06.03.2014 and the Division Bench held that in terms of Rules 23 and 24 of the Civil Service Rules the promotees were entitled to get retrospective promotion. The Division Bench placed reliance on the judgment of this Court in Suraj Prakash Gupta and Others vs. State of J&K and Others, (2000) 7 SCC 561 to come to the conclusion that promotees were entitled to promotion from a date anterior to their appointment. This judgment is under challenge in these appeals.

4. It may not be necessary to refer to the J&K Excise Rules in detail. Rule 9 of the Excise Rules provides that a person appointed to the service whether by direct recruitment or by selection shall be placed on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation will be made against substantive vacancies only. All other appointments will be on trial. It has been further provided that any period of officiating appointment shall be reckoned as period spent on probation when a person appointed on trial is formally appointed to the service. The explanation reads as under :-

“Explanation –Appointments on probation will be