A senior employee is entitled to notional promotion and consequential benefits if a junior is promoted retrospectively to a date when the senior was still in active service, regardless of the senior's subsequent retirement.

Hearing through video conferencing

O R D E R

Per:- Rajinder Singh Dogra, Judicial Member

The applicant had filed WP (C) No. 3084 of 2019 before the Hon’ble High Court of Jammu and Kashmir at Jammu seeking the following reliefs:-

“A. Mandamus, commanding and directing the official respondent no. 2 to promote the petitioner as Head Assistant w.e.f. 01.08.2015 i.e. the date w.e.f. from which the Respondent No. 4 (who was junior of the petitioner) was promoted as Head Assistant.

B. Mandamus, commanding and directing the respondents to release all the consequential service benefits including arrears of salary in favour of the petitioner w.e.f. the above said date;”

After the reorganization of State of Jammu & Kashmir into Union Territory of Jammu & Kashmir, the record of WP (C) No. 3084 of 2019 was transferred to this Tribunal and registered as Transferred Application (in short T.A.) No. 940 of 2020.

The brief facts of the case, as stated in the T.A. are that the applicant was appointed as Junior Assistant in the Co operative Department, Divisional Cadre Jammu, on 23.07.1985 vide ‑order No. Adm/1824 29 dated 23.07.1985 (ANNEXURE I to the T.A.) in the office of th‑e Registrar Co operative Societies, Jammu. It is stated in the T.A. that at the time ‑of appointment there were two Registrars— one for Jammu Division and one for Kashmir Division. The applicant served continuously in the Divisional Cadre Jammu and retired as Senior Assistant from the Office of Deputy Registrar Co operative Societies, Jammu on 31.05.2017. The applicant was directly ‑recruited as Junior Assistant on 23.07.1985, whereas respondent No.4 was promoted as Junior Assistant on 19.10.1985 (ANNEXURE II to the T.A.). The applicant was promoted to Senior Assistant in Divisional Cadre Jammu w.e.f. 09.05.2006 (Annexure III to the T.A.), respondent No.4 was promoted to Senior Assistant w.e.f. 01.05.2008 (Annexure IV to the T.A.). It is further stated that in the Seniority List of Senior Assistants of Divisional Cadre Jammu (ANNEXURE V to the T.A.) the applicant’s name appears at S.No.8 and respondent No.4 at S.No.9, establishing that respondent No.4 was junior to the applicant. The Respondent No.2, by order No. 81 Adm of 2019 dated 22.05.2019 (ANNEXURE VI to the T.A.), prom‑oted respondent No.4 as Head Assistant notionally w.e.f. 01.08.2015 and on a regular basis from the date of the order. It is stated in the T.A. that as on 01.08.2015 (the notional date of promotion of respondent No.4), the applicant was serving as Senior Assistant and was senior to respondent No.4, the applicant retired on 31.05.2017. It is further stated that respondent No.2 promoted, private Respondent no. 4, who is junior to the applicant to Head Assistant over and above the applicant, under settled law the applicant is entitled to promotion as Head Assistant w.e.f. 01.08.2015. It is further stated that by promoting respondent No.4 w.e.f. 01.08.2015, respondent No.2 acted to the detriment of the applicant, who claims entitlement to the same notional promotion date. For redressal of his grievance, the applicant submitted a representation (ANNEXURE VII to the T.A.) to respondent No.2 requesting promotion as Head Assistant w.e.f. 01.08.2015, which has not been decided till date.

In the reply filed by the respondents, it has been stated that respondent No. 04 was appointed as a Junior Assistant in District Rajouri vide Order No. Adm/1960-69 dated 09-12-1983. Thereafter respondent No. 04 was promoted as Senior Assistant (typist) via RCS Order No. Adm/RCS/DPC/824-31 dated 03-07-2001 based on his performance in the typing test conducted by the department. As the applicant did not participate in the typing test conducted by the department, she cannot claim a position at par with respondent No. 04. It is further submitted that subsequently respondent No. 04 was promoted as Head Assistant vide Order No. Adm 30 of 2013 dated 08-10-2013 by the Departmental Promotion Committee in 2013 based on the