Promotion not a right; contingent on seniority, eligibility, vacancies; retrospective promotions exceptional without proven illegality.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.3321/2019 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.1795/2020 by the Registry of this Tribunal.

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

“It is, therefore, most humbly prayed that in view of the submissions made herein above and those to be urged at the time of hearing, Your Lordship may be pleased to issue a writ in the nature of Writ of certiorari quashing the impugned Forest Orders, i.e. OrderNo.16 of 2013 dated 23.02.2013, Order No.91 of 2014 dated 03.05.2014, Order No.167 of 2014 dated 11.08.2014, and Order issued under No. CCF/J/Estt/NG/4095-96 dated 17.02.2018, to RespondentsNo.3-5 have been given promotion as Forest Guard with the extent the retrospective effect, i.e. w.e.f. July 2008 and then again w.e.f. July 2005, with further writ in the nature of writ of mandamus directing the official Respondents to consider and give promotion to the Petitioner as Deputy Forester and then Forester retrospectively w.e.f. the date the Petitioner became eligible and post became available for such promotion of the Petitioner.

Any other writ, order or direction which Your Lordship may deem just and proper in the facts and circumstances of the case may also be issued in favour of the Petitioner and against the Respondents.”

3. The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The present Transfer Application arises out of SWP No. 6947/2019, originally filed before the Hon’ble High Court of Jammu & Kashmir at Jammu, which upon transfer stood registered as TA No. 1795/2020 before this Tribunal. The petitioner seeks quashing of certain Forest Department orders whereby respondent nos. 3 to 5 were allegedly granted retrospective promotions, and further seeks directions for his own promotion to the posts of Deputy Forester and thereafter Forester with retrospective effect.

b) The petitioner, Rattan Lal, is a matriculate who came to be appointed as a Forest Guard in the Forest Department in the year 2005 vide Forest Order No. 96 of 2005 dated 08.08.2005. He asserts that his appointment was substantive and that he has been continuously serving as Forest Guard since then. According to the petitioner, respondent nos. 3 to 5 were initially appointed as Class-IV employees in the Forest Department and were later promoted as Forest Guards under the Graduate (A & B) category vide Forest Order No. 22 of 2011 dated 25.02.2011, pursuant to the recommendations of the Divisional Level Departmental Promotion Committee (DPC) held on 31.01.2011. The petitioner emphasizes that the said promotion order clearly stipulated that the promotions were to take effect immediately, i.e., from 25.02.2011.

c) It is the specific case of the petitioner that despite being senior to respondent nos. 3 to 5, his seniority position was adversely affected on account of subsequent orders allegedly issued by respondent no. 2, whereby the promotions of respondent nos. 3 to 5 as Forest Guards were accorded retrospective effect without placing the matter before the competent Departmental Promotion Committee. The petitioner contends that such unilateral conferment of retrospective effect is impermissible in law and violates settled principles governing promotions and seniority.

d) The petitioner further alleges that by virtue of such retrospective promotions, respondent nos. 3 to 5 were enabled to secure further promotions to the posts of Deputy Forester and Forester, thereby completely bypassing th