JUDGMENT :

Rajesh Bindal, J.—Being aggrieved against the order passed by the learned Single Judge dated 29.07.2010, allowing the writ petition, the State has filed the present intra-court appeal.

2. The writ petition was filed challenging the communication dated 12.07.2001, vide which induction of the writ petitioners into Kashmir Administrative Service (for short ‘KAS’) was withdrawn. It was for the reason that when the order dated 23.09.1997 was passed inducting them in KAS, the writ petitioners already stood retired from service. None had represented the State at the time of the hearing of the writ petition. The learned Single Judge allowed the writ petition holding that promotion of the writ petitioners was against the vacancies which were available on 01.01.1996 i.e., before their retirement, hence, they were rightly given promotion though after their retirement. The order has been impugned by filing the present appeal.

3. Learned counsel for the State submitted that on account of grave error committed by the persons concerned at that time, vide order dated 23.09.1997, the writ petitioners were inducted in KAS. The order did not provide that the same was effective from any back date. The date on which the aforesaid order was passed, writ petitioners stood retired from service on 31.01.1996, 31.07.1996 and 31.03.1996, respectively. When the matter came to the notice of the authorities notices were issued to 34 persons, who had wrongly been granted the benefit. After affording opportunity of hearing to them, vide order dated 09.10.2001, it was directed that the writ petitioner shall not be treated as inducted in KAS and their names shall be deemed to have been deleted from the list. It is only three writ petitioners who challenged the aforesaid order otherwise it pertained to 32 officers. All other accepted the same knowing well that they had been granted the benefit wrongly.

4. Mr. H. A. Siddiqui, learned counsel for the State further argued that it was the mistake on the part of the authorities at that stage while they directed induction of officers into KAS, who had already retired from service. Jammu and Kashmir Administrative Service Rules, 1979 (for short ‘the Rules’), as were applicable to the members of the cadre at that time, deal with the method of recruitment and other conditions of service. After an officer is inducted into KAS he has to remain on probation and thereafter confirmation follows. He further submitted that the learned Single Judge had gone wrong in recording a finding that the vacancies existed as on 01.01.1996, hence, the writ petitioners had to be treated as promoted from the date before their retirement. In fact the vacancies were notified on 23.09.1997. The result of the order passed by the learned Single Judge is that the writ petitioners were granted promotion with retrospective effect which even the order did not suggest.

5. On the other hand, learned counsel for the respondents-writ petitioners submitted that in exercise of powers conferred under Rule 5(b) of the Rules exercise was done by the competent authority for filling up the vacancies. The writ petitioners were in the zone of consideration. They were rightly inducted in KAS from the date prior to the date of their retirement. There were 34 officers who had been inducted in KAS after their retirement. It was not an order in isolation. In fact the vacancies existed as on 01.01.1996, however, because of some delay on account of seniority dispute pending in the Court, the matter could not be finalized. He also referred to earlier orders passed by the State whereby induction of the officers who had retired or had even expired was made in KAS. Reference was made to two earlier orders dated 18.09.1991 and 09.07.2004. He further submitted that these orders were placed on the record before the learned Single Bench, which were even relied upon by the learned Single Judge to granted relief to the writ petitioners. There is no response to the aforesai