Promotion rights based on seniority prior to rule changes upheld; non-consideration of eligible employees violates legal rights.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WP(C) No. 2396/2014 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/2577/2020 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court with following prayer:-

“It is, therefore, respectfully prayed that writ petition may kindly be accepted by issuing an appropriate writ, direction or order including in the nature of writ of certiorari quashing the order issued by respondent No. 2 whereby respondents 4 to 7 who are juniors to the petitioner have been promoted as Laboratory Assistant including in the nature of writ of mandamus commanding the respondents 1 to 3 to consider and promote the petitioner as Laboratory Assistant with all consequential benefits.

Costs of the petition with such other additional or alternate relief which this Hon’ble court may in the facts and circumstances of the case deem fit and proper be also awarded to the Petitioners.”

3. The facts of the case as averred by the applicants in their pleadings are as follows:

a. That the Petitioners are the permanent residents of the J&K State and citizens of India. They are, therefore, entitled to the protection of fundamental, statutory and other legal rights in force in the state.

b. That the Petitioner No.1 has passed 10 +2 examination in the year 1991. He is the resident of village Shahpur which has been identified as Backward area. He, therefore, belongs to RBA category and he has been appointed as Laboratory bearer on 16-9-1993. He is presently posted in the Govt. Hr. Secondary School Budhal Rajouri. Department has maintained seniority list of Laboratory bearers. He is figuring at S.No. 82 in the said seniority list.

c. That the petitioner No.2 has passed Matriculation examination in the year 1980. Subsequently he has passed 10 + 2 examination in the year 1985. He has also passed B.A final examination in the year 1991. He has been appointed as Laboratory bearer on 20-7-1994 on permanent basis. His date of birth is 3-1- 1961. Presently he is posted in Govt. High School Budhal (Khawas). In the seniority list of Laboratory Bearer due to mistake his date of appointment has wrongly been shown as 28-4-1993 instead of 20-7-1994. He has been placed at S.No. 68. It is submitted that as per the appointment of the petitioner, he is entitled to be placed below Sh.Sat Pal who is figuring at S.No. 107 in the said seniority list. He is also the resident of Backward area. A backward area certificate has also been submitted to the department. This fact has also been reflected in the service book of the petitioner. In the seniority list, he has, therefore, wrongly been shown as belonging to General category instead of RBA category.

d. That the petitioner No. 3 has passed matriculation examination in the year 1988. He has been appointed as Laboratory bearer on 21-7-1994. He belongs to other social caste and RBA categories. Presently he is posted in Govt. Higher Secondary School (Boys) Rajouri. In the seniority list of Laboratory bearer he has been placed at S.No. 115.

e. That petitioner No.4 has passed matriculation examination in the year 1989 Subsequently she has passed 10+2 examination which fact has been duly recorded in her service book. She has been appointed as Laboratory bearer on 20-7-1994. Presently she is posted in Higher Secondary School Nowshera. In the seniority list of Laboratory bearer she has been placed at S.No. 108.

f. That the service conditions of the Non-Gazetted employees of the Education department were governed by the rules namely the J&K Educational (Subordinate service recruitment) Rules, 1979 (hereinafter referred to as "the Recruitment rules of 1979").

g. A bare perusal of the Recruitment Rules, 1979 read with schedule-A would show that the cla