Holding

The order dated 03‑12‑1985 granting retrospective promotion is ex facie bad in law; an executive order cannot override statutory promotion rules, and entry in List E does not create a right to promotion, though monetary benefits already paid cannot be recovered.

Summary

The appellants, who were directly recruited as Sub‑Inspectors on 25‑04‑1979, challenged a Government order dated 03‑12‑1985 that retrospectively promoted certain private respondents (promotees) who had been entered in Promotion List E in 1978. The order sought to give them seniority over the appellants, ignoring the statutory promotion procedures under the Jammu & Kashmir (Classification, Control and Appeal) Rules, 1956 and the Police Manual. The High Court held the order illegal but the Division Bench deemed the writ petition infructuous because both groups had already been promoted to Deputy Superintendent under a different set of rules. The Supreme Court set aside the 03‑12‑1985 order, declaring it ex facie bad in law, holding that an executive order cannot derogate from statutory rules and that entry in List E does not confer a right to promotion. However, exercising discretion under Article 142, the Court directed that any monetary benefits already received by the respondents could not be recovered.

Issues considered

Whether the executive order dated 03‑12‑1985 granting retrospective promotion to the respondents is valid under the statutory framework.
Whether entry in Promotion List E confers a substantive right to promotion with retrospective effect.
Whether an executive order can be issued in derogation of the Jammu & Kashmir (Classification, Control and Appeal) Rules, 1956 and the Police Manual.
Whether the appellants are senior to the respondents for purposes of inter‑se seniority.
Whether monetary benefits already paid to the respondents can be recovered.

Legislation cited

Constitution of Indias. Article 142

Subjects

seniorityinter se seniorityretrospective promotionexecutive orderstatutory rulespolice serviceJammu & Kashmiradministrative lawArticle 142promotion legality

Judgment

A SHEIKH ABDUL RASHID & ORS.
v.
STATE OF J & K & ORS.

DECEMBER 5, 2007
B
[S.B. SINHA AND J.M. PANCHAL, JJ.)

Service Law-Seniority-Inter se seniority-Between promotees
and direct recruits-Retrospective promotion ofpromotees-By an
c executive order-With effectfrom the date ofpreparation ofPromotion
List-Ignoring direct recruits, appointed prior to the promotees-
Propriety of-Held: The order granting retrospective promotion is bad
in law-Entry in promotion list, by itself would not confer right to be
promotedfrom that date-The order was in derogation ofthe statutory
D Rules-However, monetary benefits granted to the promotees, not to ,_.
be recovered-Jammu and Kashmir (Classification, Control and
Appeal) Rules, 1956-r. 24-Jammu and Kashmir Police Manual-
Regulations 382, 384, 390, 392 and 398-Jammu and Kashmir Police
(Gazetted) Service Recruitment Rules, 1984-rr. 5, 14 and 20-
E Constitution of India, 1950-Article 142.
Administrative Law-Executive order-Validity of-Held: Such
order is valid only when it is issued in consonance ofstatutory rules.
The names of private respondents were entered in promotion
F List E on 25.4.1978 for the post of Sub-Inspector. They were
promoted on officiating basis on 19.5.1979. By a Notification dated
1.8.1985, State directed their regular promotion w.e.f. the date of
preparation of Promotion List. The same was subsequently
cancelled, but by another order dated 3.12.1985, promotions were
G directed to be granted with retrospective effect from the date of
Promotion List. Appellants, who had joined on the post as direct
recruits before the promotion of the respondents on officiating basis,
filed Writ Petition. Single Judge of High Court allowed the same
holding that the appellants were senior to the respondents; and that
H 940
SHEIKHABDULRASHIDv. STATE 941

/-.
concept ofretrospective pro~otion having not been contemplated A
under the Rules, the manner in which promotion was effected, was
illegal. Division Bench accepted the finding of Single Judge, but on
equitable considerations held the petition infructuous in view of the
fact that the respondents had already been promoted to the post of
Deputy Superintendent of Police which was governed by another set B
of rules. Hence the present appeals.

Allowing the appeals, the Court

HELD: 1. The order dated 3.12.1985, promoting the
respondeats with retrospective effect is exfacie bad in law. Not only c
no retrospective promotion could be granted as has been held by
both the Single Judge as also the Division Bench, entry in List E,
having regard to Regulation 390 of the Jam mu and Kashmir Police
Manual per se did not confer any right upon the respondents to be
promoted from that date. [Para 14) [947-CJ D
_..,,
2. No executive order could be issued in derogation of the
statutory rules far less a legislative act. Jammu and Kashmir
(Classification, Control and Appeal) Rules, 1956 being statutory in
nature and having been framed under Jammu and Kashmir Civil
Servants Removal of Doubts and Declaration of Rights Ordinance, E
1956 have statutory force, the executive order in question was
required to be issued in consonance and not in derogation thereof.
[Para 15) [947-D)
3. Although the statute provides for grant of officiating F
promotion, but the same is not conducive in the sense that even after
getting officiating promotion, one may be reverted to the original
post held by him. The Rules having been provided for officiating
promotion, Single Judge was correct in taking that factor also into
consideration for the purpose of determining the validity of the order
G
impugned before the High Court. The order even otherwise appears
to be mala fide having been passed for unauthorised purpose. If the
order dated 3.12.1985 is read with the earlier one being dated
1.08.1985, the intention of the Government to favour the private
respondents herein becomes explicit. It is not expected of a
H
942 SUPREME COURT REPORTS [2007] 12 S.C.R.

A government to brazenly favour one set of employees so as to defeat
the bona fide claim of the other. [Para 20] (948-D-FJ
4. However, in exercise of discretionary jurisdiction under
Article 142 of the Constitution oflndia, it is directed that despite
B this order, if any monetary benefit has been conferred upon the
private respondents, the same may not be recovered.
[Para 21] (948-G-HJ
State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors.,
[1991) Supp 1 SCC 334; Kaushal Kishore Singh v. Dy. Director of
C Education and Ors., (2002) 9 sec 634; and State ofUttaranchal and
Anr v. Dinesh Kumar Sharma, (2007) 1sec683, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5632-
35 of2007.

D From the final Judgment and Order dated 27.7.2005 of the High ,_
Court of Jammu & Kahsmir at Srinagar in LPA Nos. 164/2004, 6, 19
and 20/2005.
Paramjit Singh Patwalia, S.R.Singh, Biinal Roy Jad and Sunita Pandia
for the Appellants.
E
G.M. Kawoosa and N. Ganpathy for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
F
2. Vexed question of inter se seniority between the appellants and
the private respondents herein is in question in this appeal which arises
out of a Judgment and Order dated 27.07.2005 passed by the High Court
of Jammu and Kashmir at Srinagar in LPA No. 164 of 2004 and LPA
Nos. 6, 19 and 20 of2005.
G
3. Names of the respondents were entered in the List E on
25.04.1978. They were promoted on officiating basis on 19.05.1979. .-
4. The Government of Jammu and Kashmir, however, on or about
01.08.1985 issued a notification directing their promotion with
H
--{
..

SHEIKH ABDUL RASHID v. STATE [SINHA, J.] 943

.l retrospective effect ignoring the seniority of the appellants herein inter alia A
stating:
"(a) The above mentioned petitioners as well as non-petitioners,
who were brought on promotion list 'E' vide PHQ order No. 282
of 1978 and 283 of 1978 dated 25.04.1978, barring these who
face any moral stigma notwithstanding the fact that they were B
-· brought on promotion list 'E' and have not so far been promoted
as Sis, shall be deemed to have been promoted as Sis for the
purpose of their seniority only, w.e.f. the date they were brought
on list 'E', i.e., 25.04.1978.
[
c
(b) The ASis who were promoted as Sis, vide Kashmir Police
Office Order No. 288of1978 dated 05.06.1978 and Jammu
Range Police Office order dated 158of1978 dated 07.06.1978,
w.e.f. 1.6.1978, shall also be deemed to have been promoted as
Sis, w.e.f. 24.6.1978 for seniority purposes only and shall figure D
·1 at appropriate places in the combined seniority list of Sis in order
of their seniority."
5. Realising that the said order may be held to be illegal by a court
of law, by an order dated 3.12.1985 the same was cancelled. On the
same day, however, by an order No. 1263of1985, promotions were E
directed to be granted with retrospective effect from 25.04.1978, i.e.,
from the date on which the respondents were brought on promotion List
E.
6. Questioning the said order, a writ petition was filed by the F
appellants herein in the High Court. A learned Single Judge of the said
· High Court allowed the said writ petition opining:
" ... Unless a person is formally promoted to the post of Sub-
Inspector, he cannot press his claim that he has been promoted
substantively to the post of Sub-Inspector merely on the ground G
of having been brought in the panel of eligible candidates in
promotion list 'E' .. .In such event, the private Respondents,
therefore, in terms of the Order dated 25.4.1978, cannot be said
to have been promoted to the posts of Sub-Inspectors. They have
been only brought on the promotion list and their promotion orders H
)-
944 SUPREME COURT REPORTS [2007] 12 S.C.R.

A had to be issued by the official - respondents only subject to the
fulfillment of the conditions mentioned against each by a separate/
independent order."

In regard to the question of seniority, it was held:
B "It is not in dispute that the Petitioners in both the writ petitions
have been appointed on 25.4.1979 as Sub-Inspectors and their
seniority, therefore, has to commence from that date
notwithstanding that they have been put on probation for a period
of three years. Therefore, the non-official respondents including
c respondents 124 to 134, whose names figured in Order No. 141 :.
of 1980 dated 14.4.1980 issued by DIG of Police, Kashmir, as
officiating promotions against the vacancies oflnspectors/ Sub-
Inspectors undergoing practical training, who have been promoted
after 25th April 1979 cannot claim to rank senior to the Petitioners.
D It, therefore, follows that all those persons/ respondents, who have
been promoted after 25th April, 1979 (when the Petitioners were 1-
appointed as direct recruits), have to be termed as junior to the
petitioners. Under Rules 382 to 399, modes of promotions to the
higher rank specified therein are provided. The non-obstante clause
E or expression used in Rule 399 further gives a discretion to the
Inspector General of Police for making substantive promotions to
the posts of Sub-Inspectors after holding oral/ written test in
addition to what is provided in other Rules referred supra."
So far as the question of inter se seniority between the appellants
F and the private respondents is concerned, unhesitatingly it was opined that
the appellants are seniors. The learned Single Judge held that the concept ~

of retrospective promotion having been contemplated under the Rules,
the manner in which promotion was effected was held to be illegal.

G 7. The Division Bench of the High Court accepted the said findings
of the learned Single Judge. It, however, proceeded to determine the issue
on equitable considerations opining that as both the appellants as also the
private respondents were already promoted to the posts of Deputy
Superintendent of Police in the J&K Police (Gazetted) Service, governed
by another set of rules, the writ petition became infructuous and the
H
j
SHEIKH ABDUL RASHID v. ST ATE [SINHA, J.] 945

~
direction of the learned Single Judge on the aforementioned premise to A
"" re-draw the seniority list placing the respondents above the appellants in
the seniority list of Sub-Inspectors was not necessary to be implemented.
8. Mr. Paramjit Singh Patwalia, learned senior counsel appearing on
behalf of the appellants, submitted that the Division Bench of the High
B
Court committed a serious error insofar as it failed to take into
consideration that unless and until the appellants are held to be entitled to
promotion in terms of the extant rules, their cases may not be considered
for promotion to the post of Superintendent of police.
9. Indisputably, the matter relating to seniority and promotion is c
governed by Jammu and Kashmir Civil Services (Classification, Control
and Appeal) Rules, 1956 (for short "the 1956 Rules") and Jammu and
Kashmir Police Manual.
Rule 24 of the 1956 Rules provides that seniority should be
_, determined on the basis of initial appointment to the post Appellants were D
appointed on 25.04.1979 as direct recruits in the post of Sub-Inspectors.
Private Respondents were working as Assistant Sub-Inspectors at the
relevant time. In terms of Jammu and Kashmir Police Manual, different
registers are maintained. Regulation 382 of the Police Manual provides
for promotion from one rank or grade to another rank or grade. Clause E
(3) of Regulation 382 reads, thus:
"(3) For the purpose of regulating promotion among enrolled police
officer, six promotion lists A, B, C, D, E and F shall be maintained.
Lists A, B, C and D shall be maintained in the offices of the Range F
Deputy Inspectors General of Police, as prescribed in rules 386,
387, 388 and 389 and will regulate promotion to the ranks ofHead
Constable Junior Grade, Head Constable Senior Grade and
Assistant Sub-Inspector. Lists E and F shall be maintained in the
office of the Inspector General of Police as prescribed in rules 390
G
and 393(2) and will regulate promotion to the ranks of Sub-
Inspector and Inspector."
11. Regulation 384 of the Police Manual also provides for the power
to make officiating promotions which in case of promotion to Sub-
Inspectors and Assistant Sub-Inspectors was within the jurisdiction of H
946 SUPREME COURT REPORTS [2007] 12 S.C.R.

A Inspector General of Police. Clause (2) of Regulation 384 deals with
officiating promotions. Clause (2) of Regulation 390 provides that entry
in the List E would be the entry point for the purpose of promotion to
the post of Sub-Inspector stating:
"(2) No Assistant Sub-Inspector shall be confirmed in a substantive
B vacancy in the rank of Sub-Inspector unless he has been tested
for at least a year as an officiating Sub-Inspector in independent
charge of a police station."

Regulation 392 of the Police Manual provides for the method of filling
C up temporary vacancies in the rank of Sub-Inspector in terms whereof
"the order in which names occur in the list should be disregarded, the
opportunities of officiating in the higher rank being distributed as evenly
as possible". Regulation 398 provides for promotion register.
13. The relevant provisions of the Jammu and Kashmir Police
D (Gazetted) Service Recruitment Rules, 1984, being Rules 5, 14 and 20,
read as under: ' -

"5. Method of recruitment - Appointment to the service shall be
made-
E (a) by direct recruitment
(b) by promotion;
in the ratio and in the manner specified against each post in
Schedule - IL
F
14. Recruitment by promotion -(1) There shall be a Departmental
Promotion Committee constituted by the Government from time
to time who shall examine the promotion cases.

(2) *** *** ***
G
(3) The Cornnlittee shall examine the service records of the officers
included in the aforesaid list and prepare a select list of officers on
the basis of merit and suitability with due regard to seniority.
20. Maintenance of seniority lists - Seniority of the members of
H the service shall be regulated under the Jan11Ilu and Kashmir Civil
j

SHEIKHABDULRASHIDv. STATE[SINHA,J.] 947

Services (Classification, Control and Appeal) Rules, 1956. The A
Administrative Department shall maintain an up to date and final
seniority lists in each grade of the service."
... 14. It is not in dispute that if the order dated 3.12.1985 is set aside,
the appellants herein would be held to be senior to those of the B
respondents.
The order dated 3.12.1985 is ex facie bad in law. Not only no
retrospective promotion could be granted as has been held by both the
learned Single Judge as also the Division Bench, entry in List E, having
regard to Regulation 390 of the Jammu and K~ir Police Manual per C
se did not confer any right upon the respondents to be promoted from
that date.
15. No executive order could be issued in derogation of the statutory
rules far less a legislative act The Rules being statutory in nature and having D
been framed under Jammu and Kashmir Civil Servants Removal of Doubts
and Declaration of Rights Ordinance, 1956 have statutory force, the
executive order in question was required to be issued in consonance and
not in derogation thereof.
In State ofBihar and Ors. v. Akhouri Sachindra Nath and Ors., E
[1991] Supp 1 SCC 334, this Court held:
" ... It is well settled that no person can be promoted with
retrospective effect from a date when he was not born in the cadre
so as to adversely affect others. It is well settled by several decisions
of this Court that amongst members of the same grade seniority is F
reckoned from the date of their initial entry into the service ... "
In Kaushal Kishore Singh v. Dy. Director ofEducation and Ors.,
[2002] 9 SCC 634, this Court stated the law, thus:
"5. The claim of seniority of the employee is always determined in G
any particular grade or cadre and it is not the law that seniority in
one grade or cadre would be dependent on the seniority in another
grade or cadre."
In State of Uttaranchal and Anr. v. Dinesh Kumar Sharma, H
948 SUPREME COURT REPORTS [2007] 12 S.C.R.

...
A [2007] 1 sec 683, it was opined:

..
"34. Another issue that deserves consideration is whether the year
in which the vacancy accrues can have any relevance for the
purpose of determining the seniority irrespective of the fact when
the persons are recruited. Here the respondent's contention is that
B since the vacancy arose in 1995-96 he should be given promotion
and seniority from that year and not from 1999, when his actual
appointment letter was issued by the appellant. This cannot be
allowed as no retrospective effect can be given to the order of
appointment order under the Rules nor is such contention
..
c reasonable to nonnal parlance. This was the view taken by this
Court in Jagdish Ch. Patnaik v. State of Orissa"
20. Similarly, although the statute provides for grant of officiating
promotion, but the same is not conducive in the sense that even after getting
1-
D officiating promotion, one may be reverted to the original post held by
him. We do not mean to say that the seniority would be reckoned from
the date of confinnation but we only intend to point out that the Rules
having been provided for officiating promotion, the learned Single Judge
was correct in taking that factor also into consideration for the purpose
E of detennining the validity of the before impugned order the High Court.
The said order dated 3.12.1985 even otherwise appears to be ma/a fide
having been passed for unauthorised purpose. If the said order dated
3.12.1985 is read with the earlier one being dated 1.08.1985, the intention
of the Government to favour the private respondents herein becomes
explicit. It is not expected of a government to braz.enly favour one set of
F
employees so as to defeat the bona fide claim of the other set of
employees. We, therefore, are of the opinion, that the impugned judgment
cannot be sustained which is set aside accordingly. The appeals are
allowed.
G 21. However, in exercise of our discretionary jurisdiction under
Article 142 of the Constitution of India, we direct that despite this order
if any monetary benefit has been conferred upon the private respondents,
the same may not be recovered.
K.K.T. Appeals allowed.
H