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High Court of Jammu and Kashmir and Ladakh at Srinagar
Pankaj Mithal, C.J. and Wasim Sadiq Nargal, J.
Managing Director, J&K Road State Transport Corporation and Others – Appellant
Versus
Syed Arshad Tramboo and Others – Respondent
LPA No.130/2022
Decided on : 04-08-2022
Service Law – Promotion – Promotion is a condition of service and consideration thereof is a fundamental right – If a person who satisfies eligibility and criteria for promotion but still is not considered for promotion, then there will be clear violation of his fundamental right – Mere existence of vacancy is not a sole criterion to hold somebody entitled for promotion when merit, eligibility, suitability, APRs and vigilance clearance are also relevant factors to accord promotion as per rules – Merit, eligibility, suitability in all respects including vigilance clearance should be governing consideration for according promotion as per rules and seniority plays only consequential role – It is only when merit and suitability are equal, then seniority will be determining factor and all these factors can be gone into by Establishment Committee constituted by Government in this regard – Court has no yardstick or mechanism to go into all these questions and finding of Single Judge holding petitioner entitled for retrospective promotion as DGM and GM in absence of matter being examined by Selection Committee cannot sustain test of law. (Paras 14, 16, 18 and 19)
Order :
CM no.4101/2022
1. Caveat application no.701/2022 shall stand discharged.
2. On no objection from the other-side, the condonation delay application (CM no.4101/2022) is allowed and delay of 19 days in filing the appeal is condoned.
3. Appeal is taken up for consideration.
LPA no.130/2022
Per Wasim Nargal, J.: –
4. By virtue of judgement and order dated 28th April 2022, passed in a writ petition, bearing SWP no.2611/2015, titled Syed Arshid Tramboo v. State of J&K and others, the learned Single Judge has been pleased to allow the said writ petition in the following manner: –
5. Before proceeding further, it would be apt to give concise factual background of the case with a view to clinch/decide the controversy in question.
Facts:
6. Respondent no.1 herein (petitioner before the Writ Court) was appointed as Assistant Works Manager in J&K State Road Transport Corporation (hereinafter referred to as “appellant-Corporation”) vide appointment order no.SRTC/EC-II/1287 dated 20th June 1988. After ten years, pursuant to the recommendation made by Departmental Promotion Committee and approval granted by the Chairman, JKSRTC, petitioner was promoted as Works Manager Vide Order No.JKSRTC/DPC/EC-T dated 2nd November, 1999. Petitioner, Vide Order No.06/JKSRTC/MD/PS/Sgr dated 28th July 2007, was posted as Incharge Deputy General Manager (for short “DGM”) in his own pay and grade. He consistently represented before appellant-Corporation for his confirmation but his request was not acceded to.
7. It was a specific case of petitioner before the Writ Court that while he was representing for his confirmation in the post of DGM and consequent promotion to the post of General Manager (for short “GM”), which as per petitioner was lying vacant, the Corporation vide communication dated 26th November 2015, requested the Administrative Department for appointment of Shri Abdul Hamid Wani, Drilling Engineer, Geology and Mining Department as GM on deputation. The petitioner feeling aggrieved of the same, challenged the aforesaid communication before the Writ Court as appellant-Corporation instead of confirming him against the post in question imported employees from other departments on deputation at the cost of petitioner when according to petitioner the post in question was required to be filled up 100% by promotion as per Recruitment Rules. It was a specific case of the petitioner before the Writ Court that in terms of the Recruitment Regulations of the Jammu and Kashmir State Road Transport Corporation, 2013 (hereinafter referred to as for the sake of brevity as the “Rules of 2013”) the posts of GM as well as DGM were required to be filled up 100% by promotion by making selection amongst the categories shown in the Schedule and petitioner, albeit being eligible in all respects, was still being ignored by appellant-Corporation leaving petitioner with no option except throwing challenge to the impugned communication on the ground that on one hand the Corporation was forwarding his case for confirm
: : (1) Promotion is a condition of service and consideration thereof is a fundamental right.(2) When rules specifically provide that promotion has to be made on the basis of selection where merit is....
The right to be considered for promotion is a fundamental right, and promotions should be based on merit and eligibility, with subjective satisfaction and vigilance clearance before according promoti....
When comparing ACRs for promotion, upgrade gradings by one level for officer's periods on higher post versus lower post to enable fair assessment; petitioner qualifies post-upgrade.
Promotion in non-selection posts must adhere to seniority without subjective merit evaluations in the absence of unsuitability, reinforcing equality rights under the Constitution.
The importance of communicating adverse entries in the Annual Confidential Report (ACR) to the employee and the impact of such entries on promotion.
Promotions take effect from the date granted, not from the date of vacancy, and retrospective seniority cannot be assigned.
The denial of promotion based on uncommunicated adverse remarks in confidential reports is arbitrary and violates principles of natural justice.
Promotion eligibility requires continuous service without gaps; prior service on deputation does not count if repatriated before direct recruitment.
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