Retrospective promotion cannot be granted to an employee who failed to satisfy mandatory eligibility criteria, such as a skill test, at the time their counterparts were promoted, as eligibility is a substantive condition precedent that cannot be waived or related back.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.830/2018 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.8597/2020 by the Registry of this Tribunal.

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

a) “quash and set aside the communication being No.9-Adm/PS/2580/CCT dated 16-03-2018, by virtue of which the claim of the petitioner for retrospective promotion, with effect from the date his counterparts were promoted to the post of Junior Assistant, was rejected.

b) direct the respondents to promote the petitioner to the post of Junior Assistant with effect from the date when the vacancies of Junior Assistants were available in the promotional quota or with effect from the date his counterparts were promoted i.e. w.e.f. 12-06-2015.

c) Pass any other writ, order or direction as this Hon’ble court may deem fit and proper in the facts and circumstances of present case.

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

a) The applicant, Kewal Krishan, was appointed as an Orderly in the Excise and Commercial Taxes Department pursuant to a selection process initiated in the year 2006, and thereafter came to be promoted as Process Server. His seniority as Process Server stood duly maintained by the department and was never in dispute. Under the Jammu & Kashmir Excise and Sales Tax (Subordinate Services) Recruitment Rules, 1991, promotion to the post of Junior Assistant from the cadre of Process Servers is governed by a promotional quota, subject to fulfillment of prescribed eligibility conditions, namely completion of the requisite length of service, possession of minimum educational qualification, and successful qualification of a prescribed typing test.

b) For the purpose of filling up vacancies in the cadre of Junior Assistants, the department issued several circulars proposing to conduct a typing test of eligible Process Servers. After earlier attempts were abandoned, the typing test was ultimately conducted on 14.05.2015. The applicant appeared in the said test along with other eligible candidates. Upon evaluation, only those candidates who qualified the test were considered for placement as Incharge Junior Assistants. Accordingly, vide order dated 12.06.2015, twenty-five Process Servers who had qualified the typing test were placed as Incharge Junior Assistants in their own pay and grade, subject to confirmation by the Departmental Promotion Committee (DPC). The applicant did not figure in the said order as he had failed to qualify the typing test.

c) Aggrieved by his non-inclusion, the applicant, along with similarly situated employees, challenged the placement order dated 12.06.2015 before the High Court by filing SWP No.1954/2015, wherein the promotions were made subject to the outcome of the writ petition. During the pendency of the said writ petition, the applicant made representations alleging irregularities in the conduct of the typing test and sought another opportunity. Acting upon such representation, the Deputy Commissioner, Commercial Taxes, by communication dated 15.10.2015, recommended that the applicant may be afforded another opportunity to appear in the typing test, subject to availability of vacancies in the promotional quota.

d) Subsequently, promotions were made on substantive basis on the recommendation of the