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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)“Allow the instant application of the applicants along with costs;
b)Quash the Government Order No:72-ASH of 2021 dated 29.04.2021 whereby Respondents No.2 to 5 have been asked to look after the work of the post of Joint Director and equivalent and Respondents No.6 to 29 have been asked to look after the work of the posts of Deputy Director and equivalent;
c)Direct the Respondent No.1 to immediately convene the DPC/PSC to make substantive promotion to the posts of Live Stock Development Officers and equivalent and thereafter to frame the final seniority list of Live Stock Development Officers and equivalent;
d)Direct the Respondent No.1 to complete the process of substantive promotions and finalization of the seniority of Live Stock Development Officers and equivalent within a fixed period of time and thereafter make substantive promotions to the posts of Deputy Director and equivalent as per the recommendations of the J&K Public Service Commission strictly in accordance with the seniority and merit and thereafter make substantive promotions to the post of Joint Director as well;
e)Direct the Respondent No.1 to immediately convene the DPC/PSC and during the intervening period, all incharge/look after arrangements be made strictly in accordance with the seniority to the posts substantively held by the officers i.e. Veterinary Assistant Surgeons;
f)Any other relief which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted in favour of the applicants and against the respondents.”
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The applicants are members of the Jammu and Kashmir Animal Husbandry Gazetted Service constituted under SRO 359 dated 01.12.1988. The applicants as well as private respondent Nos. 2 to 29 substantively hold the post of Veterinary Assistant Surgeon/equivalent, which is the entry-level post in the Gazetted Service. The applicants rely upon the final seniority list of Veterinary Assistant Surgeons issued vide Government Order No. 117-ASH of 2020 dated 29.10.2020 and contend that, in the said seniority list, they are senior to several of the private respondents who have subsequently been entrusted with the charge of higher posts.
According to the applicants, the service hierarchy under the relevant recruitment rules provides for advancement from the feeder cadre to the posts of Livestock Development Officer/equivalent, thereafter to Deputy Director/Chief Animal Husbandry Officer and equivalent posts, and ultimately to the post of Joint Director. Their principal grievance is that, instead of making regular substantive promotions through the prescribed DPC/PSC mechanism, the department has, for a considerable period, been resorting to in-charge, stop-gap and look-after arrangements against higher posts.
The applicants have referred to a series of Government Orders issued from time to time whereby various officers were placed as In-charge Livestock Development Officers, Deputy Directors or against equivalent posts. According to them, these orders themselves stipulated that such arrangements were temporary/stop-gap in nature, did not confer any right to substantive appointment and were subject to regular selection/promotion by the competent DPC/PSC. The applicants contend that notwithstanding such stipulations, these arrangements have continued for years without the posts being filled on a substantive basis.
The immediate cause of action arose with the issuance of Government Order No. 72-ASH of 2021 dated 29.04.2021. By virtue of the said order, respondent Nos. 2 to 5 were asked to look after the work of Joint Director/equivalent posts, while respondent Nos. 6 to 29 were entrusted with the work of Deputy Director/Chief Animal Husbandry Officer and equivalent posts. The applicants allege that the aforesaid arrangement was made without due regard to their seniority and that several officers junior to them were entrusted with higher responsibilities. Applicant No. 1 claims to be senior to all the private respondents, whereas the remaining applicants also claim seniority over several of the private respondents. On this basis, it is urged that senior officers could not have been bypassed while entrusting the charge of higher posts to their juniors.
It is further the case of the applicants that the nomenclature of “look-after arrangement” cannot be used to circumvent the statutory procedure governing promotions. According to them, an officer entrusted with the work of a higher post effectively discharges the duties attached thereto and, therefore, permitting a junior officer to exercise supervisory authority over his seniors for an indefinite period results in arbitrariness and adversely affects the service rights of the senior officers. They also allege that some of the private respondents have simultaneously been entrusted with the charge of more than one higher post.
A substantial part of the challenge is also founded upon the manner in which reservation is alleged to have been applied while making the impugned arrangements. The applicants plead that there are 54 posts of Deputy Director/Chief Animal Husbandry Officer and equivalent and that, even if reservation to the extent of 31% were assumed to be applicable, only 17 such posts could fall to the share of reserved categories, whereas, according to them, 22 officers belonging to reserved categories had been placed against such posts. It is further alleged that against the RBA quota of five posts, twelve officers had been accommodated. The applicants also contend that reservation could not, in any event, be extended to the level of Joint Director.
The applicants further contend that despite their appointments dating back to the years 1986 and 1987, they have not earned substantive promotions and the department has failed to regularly convene the DPC. Reliance has been placed upon SRO 166 dated 14.06.2005, which, according to the applicants, requires vacancies in the promotion quota to be referred to the PSC/DPC and contemplates regular convening of the DPC. They assert that the continued resort to temporary arrangements has deprived them of legitimate career progression.
Reference has also been made to earlier litigation before the High Court involving similar in-charge arrangements, including SWP No. 463/2017 and SWP No. 439/2019, wherein, according to the applicants, orders entrusting the charge of Joint Director to junior officers had been stayed. The applicants contend that the impugned order represents a continuation of the same practice notwithstanding the earlier proceedings.
On the question of reservation in promotion, the applicants rely upon the judgment of the High Court dated 09.10.2015 concerning provisions of the J&K Reservation Act and Rules, the subsequent proceedings before the Hon’ble Supreme Court, and instructions issued by the General Administration Department. Their contention, broadly stated, is that reservation could not have been employed for making in-charge/look-after arrangements and, even assuming its applicability, the roster could not be operated in a manner which exceeds the prescribed quota or leaves unreserved roster points vacant while accommodating later reserved roster points.
The applicants also submit that temporary, ad hoc or in-charge arrangements cannot be permitted to continue indefinitely. Reliance is placed upon Rule 25 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, Rule 85 of the Civil Services Regulations and the provisions governing consultation with the Public Service Commission. According to them, the prolonged continuation of such arrangements cannot create either a right or valid experience for future substantive promotion.
It is further pleaded that certain private respondents belonging to RBA/ALC/Social Caste categories were allegedly not entitled to continue receiving the benefit of reservation on account of the income ceiling and validity period prescribed for category certificates. The applicants also point out that they have already received time-bound financial upgradations, but contend that financial advancement cannot substitute their entitlement to consideration for functional promotion in accordance with the applicable service rules.
The respondents have filed their written statement wherein they have averred as follows: -
The respondents have opposed the Original Application and, at the outset, raised a preliminary objection regarding the eligibility of the applicants. Their principal stand is that none of the applicants possessed the requisite experience prescribed under the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1988 for placement/promotion against the higher posts in question. It is also stated that the claim of the applicants had already been considered and rejected by a speaking order issued vide Government Order No. 94-ASH of 2021 dated 01.07.2021.
According to the respondents, promotion to the post of Joint Director requires the prescribed experience in the cadre of Deputy Director/equivalent, while promotion to the post of Deputy Director/equivalent similarly requires the prescribed experience in the feeder cadre. It is their case that the applicants did not possess the requisite qualifying experience and, therefore, could not claim placement against the higher posts merely on the strength of their seniority in the substantive cadre of Veterinary Assistant Surgeon. The respondents consequently deny that any legal, statutory or fundamental right of the applicants has been infringed by Government Order dated 29.04.2021.
On facts, the respondents plead that the private respondents had been placed as Livestock Development Officers/equivalent in the years 2012 onwards and, after acquiring the requisite experience, were subsequently placed against the posts of Deputy Director/equivalent. Likewise, respondent Nos. 2 and 4, after acquiring the requisite experience as Deputy Director/equivalent, were entrusted with the work of Joint Director under Government Order dated 29.04.2021. Certain other private respondents are stated to have been working as Livestock Development Officers since 2013 and, having acquired the prescribed experience, were considered for placement as Deputy Director/equivalent in 2021.
The respondents further rely upon the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules, 1988, notified vide SRO 359 dated 01.12.1988, read with the subsequent amendment referred to in the written statement. They state that the sanctioned strength consists, inter alia, of six posts of Joint Director, 54 posts of Deputy Director/equivalent and 101 posts of Livestock Development Officer/equivalent, with promotion to the respective higher posts being governed by the prescribed experience in the feeder cadre.
With regard to Government Order No. 72-ASH of 2021 dated 29.04.2021, the respondents maintain that the same does not constitute substantive promotion. It was issued only to ensure smooth functioning of the department and to fill the administrative vacuum against vacant higher posts. The officers possessing the requisite experience were accordingly asked to look after the higher posts, while in certain instances officers lacking the full qualifying experience were also entrusted with additional work purely as an interim measure. The order itself stipulates that such arrangements are temporary, confer no preferential right to regular promotion, remain governed by the applicable rules and are without prejudice to pending court proceedings.
The respondents have also placed on record the service particulars of the applicants. According to the said particulars, applicant Nos. 1 and 2 did not possess three years’ experience as Deputy Director/equivalent at the relevant time, while applicant Nos. 3 to 8 had only about ten months’ experience as Livestock Development Officer/equivalent after their placement on 17.07.2020. On the other hand, several of the private respondents are stated to have acquired substantially longer experience as Livestock Development Officer/equivalent, ranging approximately between seven and nine years. On this basis, the respondents contend that the private respondents were eligible under the recruitment rules whereas the applicants were not similarly situated for the purpose of the impugned arrangements.
The respondents specifically deny that Government Order dated 29.04.2021 granted any substantive promotion or conferred any vested right upon the private respondents. Their case is that the distinction between the applicants and the officers entrusted with higher responsibilities was based upon qualifying experience and eligibility rather than merely upon seniority in the entry cadre. They, therefore, deny the allegation of arbitrary pick and choose.
As regards regular promotions, the respondents state that a proposal relating to regularization of 96 In-charge Livestock Development Officers/equivalent had already been submitted to the Public Service Commission/DPC and was under consideration. It is also stated that 33 officers had earlier been regularized vide Government Order No. 75-ASH of 2019 dated 11.06.2019. Thus, according to the respondents, it is incorrect to contend that no steps whatsoever were being taken towards regularization of the promotional hierarchy.
The respondents have also denied the allegation that the impugned arrangements violate the reservation roster or the law governing reservation. Their stand is that the arrangements are purely temporary and any final decision regarding substantive promotion would be taken by the competent DPC/PSC after considering all relevant factors, including the applicable reservation position. They reiterate that the temporary arrangements were made only to ensure smooth functioning of the administration.
In conclusion, the respondents maintain that the applicants, lacking the requisite qualifying service for the higher posts, could not claim placement merely because they were senior in the cadre of Veterinary Assistant Surgeon. According to them, the private respondents who satisfied the requisite eligibility and experience were rightly considered for the temporary arrangements and, therefore, the Original Application is liable to be dismissed.
Heard learned counsel for the parties and perused the pleadings made by them.
The controversy, in our considered view, cannot be examined merely from the standpoint of whether one particular officer was temporarily eligible to hold the look-after charge of a higher post. The larger and more fundamental issue is the continued failure of the department to make regular promotions through the statutory mechanism despite the existence of promotional vacancies and notwithstanding the fact that temporary arrangements have continued for years.
A look-after or in-charge arrangement is, by its very nature, an administrative device intended to meet an immediate exigency. It cannot become a substitute for regular promotion. Significantly, even the respondents do not contend that the impugned arrangements confer substantive status upon the private respondents. On the contrary, their categorical stand is that Government Order dated 29.04.2021 is purely temporary and does not confer any preferential claim for regular promotion. Once that position is accepted, there can be no justification for permitting such arrangements to continue indefinitely while regular vacancies remain unfilled.
The applicants were appointed as Veterinary Assistant Surgeons as far back as the years 1986 and 1987 and their grievance is that, despite decades of service, substantive promotional appointments have not been made in the normal course. The applicable scheme itself contemplates reference of promotional vacancies to the competent DPC/PSC. The material placed on record shows that the applicants had specifically relied upon SRO 166 dated 14.06.2005 requiring regular reference of promotional vacancies and convening of DPCs.
The respondents have themselves stated that a proposal relating to regularization of 96 In-charge Livestock Development Officers/equivalent had already been submitted to the PSC/DPC and that 33 officers had earlier been regularized vide Government Order No. 75-ASH of 2019 dated 11.06.2019. Therefore, there is no dispute that substantive promotional appointments have to be made through the competent DPC/PSC and not by perpetuating stop-gap arrangements.
We are also unable to approve a situation where an officer is initially given a temporary/in-charge placement, such temporary placement is thereafter treated as the source of qualifying experience for another higher temporary placement, and the senior officers who were not given the earlier temporary charge are then excluded on the ground that they lack such experience. Temporary arrangements which admittedly confer no substantive right cannot be permitted to become a self-perpetuating source of advantage so as to permanently prejudice the consideration of senior eligible officers.
At the same time, this Tribunal cannot direct promotion of any particular applicant dehors the statutory Recruitment Rules. Promotion has necessarily to depend upon eligibility, qualifying service, seniority, suitability and other conditions prescribed under the applicable rules. The appropriate course, therefore, is to require the respondents to bring the ad hoc arrangement to an end by conducting the requisite DPC/PSC exercise for all available promotional vacancies.
Equally, the roster cannot be operated selectively. If an Open Merit/Unreserved roster point has become available, the same cannot ordinarily be left vacant while subsequent roster points are operated merely through in-charge or look-after arrangements. The roster has to be applied as a continuous and unified running roster in accordance with the law governing the cadre. All Open Merit/Unreserved points shall be treated as open points and filled from amongst all eligible officers in accordance with the prescribed criteria, irrespective of category, without such selection being counted against the reserved quota. Reserved roster points shall likewise be filled strictly to the extent and in the manner permissible under the applicable law.
We clarify that we are not required, for disposal of the present Original Application, to pronounce upon the larger constitutional issue regarding the validity or extent of reservation in promotion. The respondents are bound to apply the reservation law and roster as legally applicable on the date on which the vacancies are required to be filled. What cannot be sustained is the indefinite continuation of temporary arrangements coupled with non-filling of the available Open Merit/Unreserved roster points.
The respondents' reliance upon lack of qualifying experience of the applicants would appropriately fall for consideration by the DPC/PSC in accordance with the Recruitment Rules. At that stage, the competent authority shall determine eligibility on the basis of legally recognizable service/experience and shall not confer any preferential right merely on account of a person having continued on a look-after/in-charge basis pursuant to the impugned or earlier temporary orders.
In view of the foregoing discussion, the Original Application is allowed with the following directions:
The official respondents shall determine the year-wise and category-wise vacancies available in the cadres of Livestock Development Officer/equivalent, Deputy Director/Chief Animal Husbandry Officer/equivalent and Joint Director/equivalent, as the case may be, after taking into Central Administrative Tribunalaccount the sanctioned strength and vacancies actually available.
The respondents shall prepare and operate the applicable unified/running reservation roster strictly in accordance with law. The roster points earmarked for Open Merit/Unreserved category which have remained unfilled shall be duly operated and shall not be bypassed for filling subsequent reserved roster points.
An Open Merit/Unreserved roster point shall be treated as an open point available to all eligible officers, and any eligible officer securing such promotion on the basis of the applicable criteria shall be adjusted against the Open Merit/Unreserved point and not against the quota of his/her reserved category.
The respondents shall complete all necessary steps for finalization of the eligible feeder cadre/seniority, wherever required, and shall place the entire vacancy position before the competent DPC/PSC for making substantive promotions in accordance with the Jammu and Kashmir Animal Husbandry (Gazetted) Service Recruitment Rules and the reservation roster applicable in law.
The cases of the applicants shall also be considered along with all other eligible officers strictly in accordance with their seniority, eligibility and prescribed qualifying service. Their cases shall not be excluded merely because junior officers had earlier been given look-after/in-charge assignments.
The period spent by any private respondent on a purely look-after/in-charge arrangement shall not, by itself, create any vested or preferential right to substantive promotion. Any benefit of experience from such arrangement shall be taken into account only if such experience is legally recognizable under the applicable Recruitment Rules.
The entire exercise, including convening of the DPC/PSC and issuance of consequential orders against the available vacancies, shall be completed within a period of four months from the date of receipt of a certified copy of this order.
Till completion of the aforesaid exercise, the existing look-after arrangements may continue only as a matter of administrative necessity and shall remain purely temporary, without creating any equity in favour of the incumbents. Upon issuance of substantive promotion orders pursuant to the DPC/PSC, such temporary arrangements shall automatically yield to the regular appointments.
In view of the above directions, Government Order No. 72-ASH of 2021 dated 29.04.2021 shall not confer any right upon the private respondents to claim substantive promotion, seniority or preferential consideration merely on the strength of the look-after charge assigned thereunder. The future promotional appointments shall be governed exclusively by the outcome of the DPC/PSC conducted in terms of this order.
The Original Application is accordingly allowed in the above terms. Pending MAs, if any, shall also stand disposed of. Central Administrative TribunalNo order as to costs.