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Judgment
Per Hon’ble Mr. D.S.Mahra, J.M.
The applicants have sought for the following reliefs :
“(I)A WRIT OF CERTIORARI: Quashing the impugned order No. 421 of 2013 dated 4.10.2013, No. 420 of 2013 dated 4.10.2013, No. 419 of 2013 dated 4.10.2013, No. 418 of 2013 dated 4.10.2013, No. 415 of 2013 dated 4.10.2013, No. 414 of 2013 dated 4.10.2013, No. 492 of 2010 dated 27.10.2010, No. 468 of 2009 dated 10.10.2009, 401 of 2007 dated 3.12.2007, 400 of 2007 dated 3.12.2007 and order No. 343 of 2005 dated 29.5.2005, order No. 523 of 2012 dated 5.11.2012, order No. 444 of 2012 dated 19.10.2012, order No. 430 of 2013 dated 4.10.2013, order No. 433 of 2013 dated 4.10.2013, Order No. 328 of 2014 dated 2.9.2014, order No. 525 of 2012 dated 5.11.2012, order No. 434 of 2013 dated 4.10.2013 whereby the private respondents were promoted by changing their cadre from Fireman (Executive Wing) to the Drivers and then secured their berth back into executive wing as Sub Officer in violation of the rules and the orders/circulars issued by the Government from time to time.
(II)A WRIT OF CERTIORARI: Quashing the impugned order DGF&ES 20 of 2017 dated 23.1.2017 as also DGF& ES Order No. 81 of 2017 dated 1.3.2017 and copy of the communication dated 1.4.2017.
(III)A WRIT OF CERTIORARI: Quashing the impugned final seniority list of selection grade Fireman issued in terms of order No. DF&ES 709 of 2018 dated 29.12.2018; Leading Fireman in terms of order No. DF&ES 710 of 2018 dated 29.12.2018; Sub Officers in terms of order No. DF&ES 702 of 2018 dated 29.12.2018 to the extent of private respondents as the same being in violation of recruitment rules.
(IV)A WRIT OF MANDAMUS: Commanding upon to consider the petitioners along with similarly circumstanced employees for promotion to the next higher post by maintaining upto date seniority list as mandated in terms of Jammu & Kashmir Fire Force Regulation and Recruitment Rules 1990 with a further direction that the change of the cadre as also further promotions secured by private respondents be treated as nullity and thus void ab-initio.
(V)A WRIT OF PROHIBITION: Prohibiting the official respondents from resorting further change of cadre/promotion of the private respondents in violation of the law and the orders/circulars issued by the Government from time to time as also the mandate of the recruitment rules and recommending them for undergoing any training course at National Fire Services College Nagpur.
(VI)Any other relief or direction which this Hon’ble Court deems fit and proper may also be granted in favour of the petitioners and against the respondents under the facts and circumstances of the case.
Briefly stated facts giving rise to present TA are as follows :
In exercise of Section 37 of the Fire Force Act, 1967 Government made the rules called Jammu & Kashmir Fire Force Regulation and Recruitment Rules 1990. The recruitment rules provide for qualification and method of recruitment in terms of Section 5 and Rule 11. It provides four different wings/cadres of the Fire Force namely – Executive Wing, Workshop Wing, Ministerial Wing and Medical Wing. Rule 5 of the Recruitment Rules provides the qualification and method of recruitment for filling up of the posts. It is stated therein that no candidate shall be eligible for appointment or promotion to any post in any class, category or grade in the Force unless he possesses the qualification as laid down in Schedule II A, B, C and fulfills other requirements as provided under the rules and orders for the time being in Force. It is also stated that the appointment of the Force shall be made –
by direct recruitment,
by promotion and
partly by direct recruitment and partly by promotion in the ratio and in the manner against each post in the schedule.
In terms of Rule 5 it is further provided that there shall be a Departmental Promotion Committee to be constituted by the Government from time to time which shall examine the promotion cases in accordance with the criteria laid down in the aforestated rules.
In the present TA, the private respondents were appointed as Fireman much after the applicants and were junior to the applicants on account of date of first appointment which determines the seniority in the cadre of the Service. However, respondent No.4 issued orders of promotion in favour of the private respondents and permitted them to undergo the certificate/training course at National Fire Service College, Nagpur by granting extraordinary leave in their favour. Respondent No.2 notified the final seniority list of various categories of posts including that of Selection Grade on 1.3.2012 wherein the applicants are figuring ahead of the private respondents.
It is contended by the applicants that seniority position has been assigned to the private respondents in violation of the recruitment rules and the date of first appointment. Therefore, the seniority of the private respondents shown above the applicants deserves to be quashed and the applicants deserve to figure ahead for consideration of further promotion. The changing of cadre of the private respondents and their subsequent promotion de-hors the rules and the impugned orders of change of cadre/promotions of the private respondents and the subsequent benefit availed by them are illegal and deserve to be quashed. Therefore the promotions made in favour of the private respondents are made in violation of the Rule 5 and therefore deserve to be quashed.
It is further stated that in terms of the seniority list of 2009 and 2012 the applicants were far senior to the private respondents. The seniority position of the applicants could not have been altered as the same was based on the Jammu & Kashmir Civil Service (Classification, Control and Appeal) rules 1956 and has attained finality. But the respondents in terms of tentative seniority list altered the settled seniority of the applicants and they are shown far junior to the private respondents. Therefore, appropriate orders need to be issued for quashing the impugned orders of promotion, change of cadre, sanction of leave, undergoing training course and reflecting the private respondents as senior to the applicants in the tentative seniority list of 2015.
The official respondents have filed their counter stating therein that every appointment either by recruitment or by promotion is being strictly adhered to by the department. However, in some cadres the technical qualification is being considered but almost any appointment/promotion is being made under the SRO-159 of 1990 (Departmental Recruitment Rules). It is stated that promotions in all the cadres of the department are made as per the seniority, merit and eligibility which are required under rules. In almost all the cases, the seniority and conduct for the last three years are being taken into consideration and the merit with regard to higher education is not being given priority for the said promotion. However, for the promotions in the cadre of Sub Officers, Station Officers and also Divisional Fire Officers the departmental candidate should have passed Matric examination. So far as the private respondent Nos. 5 to 17 are concerned, it is submitted that respondent No.5 (Aadil Hussain Zurgar) and respondent No.17 (Adul Rehman Rather) were working as Storeman and they have been promoted on the basis of seniority in their respective cadre and not on the basis of qualification. Respondent Nos. 6, 7, 8, 9, 10, 11, 12, 13, 16 and 17 have undergone the Sub Officers course at their own expenses as private candidates by availing extraordinary leave granted by the department. They were promoted to their next rank after the approval of the Departmental Recruitment Board constituted by the Government which was challenged by some other officials who have also undergone the Sub Officer Course on the private basis and the case is sub judice. As regards respondent No.14 (Shri Kanwal Peshin) it is stated that the said officer was promoted as Sub Officer on the basis of his seniority in his respective cadre of RTM and also having passed the Grade –I which is required for promotion as per the rules. The officer was appointed as Fireman on 29.9.1998 and on the basis of technical qualification required under the rules, he was promoted as RTM on 16.7.2005 and as such was eligible for promotion as Sub Officer after 05 years of experience i.e. on 16.7.2010 and it was later confirmed by Departmental Promotion Committee. It is therefore submitted that respondent Nos. 5 to 17 were initially appointed as Fireman and subsequently promoted to next cadre from time to time as per the Departmental Recruitment Rules.
It is also submitted by the respondents that seniority lists have been issued by the department from time to time as per the procedure and amendments/necessary corrections have been made after receiving representations from the officer/officials of the department. It is stated that the department has earlier issued a tentative seniority list in 2011 in which objections had been called and accordingly a final seniority list was issued which has neither been challenged by any of the employees of the department nor the present applicants till date. The seniority list issued in 2012 has also not been challenged. However, the department has recently issued a tentative seniority list of all the cadres of the department and the same has been circulated.
For these reasons the official respondents have prayed for dismissal of the present OA.
It has been contended on behalf of the private respondent Nos. 5 to 17 that their promotion was ordered by the official respondents/department strictly as per rules governing the field. The private respondents applied for the requisite course offered by the National Fire Service College, Nagpur and the department/official respondents gave permission to them to attend the said course at Nagpur by sanctioning the extraordinary leave and completed the said course and on the basis of the additional qualification required for the post of Leading Fireman they are entitled for the promotion before the applicants since the applicants had not passed the said course and never applied for. It is contended by the private respondents that since they had passed the said course after getting permission from the department as private candidates by availing the extraordinary leave, they were given preference over and above the applicant who have not undergone the said course. Learned counsel for the private respondents No. 5, 14 and 15 have contended that their promotion was considered by the DPC strictly on the basis of the seniority and they were promoted as they were senior to the applicants.
Heard the learned counsels for the respective parties.
The applicants and the private respondents were initially appointed as Fireman. Subsequently they were promoted to the Selection Grade. The next promotion in the cadre is Leading Fireman. As per Rule 5 of the Jammu & Kashmir Fire Force Regulation and Recruitment Rules 1990, the promotion shall be made as follows :
Rule 5 : “No candidate shall be eligible for appointment or promotion to any post in any class, category or grade in the Force unless he possesses the qualifications as laid down in Schedule II A, B and C and fulfills other requirements of recruitment as provided in the rules and orders for the time being in force.”
Schedule II-B reads as follows :
| Designation | Minimum qualification | Method |
| Leading Fireman’s Rank | Certificate of having passed the departmental examination for promotion as Leading Fireman and three (3) years service as Selection Grade Fireman | 100% by promotion from Class 3 Category |
As per explanation 2 to the Schedule II-B, it is specifically mentioned that “Seniority of the successful candidates shall be determined with respect of the year of passing the prescribed examination”.
The main contention of the applicant is that the official respondents/department has not strictly followed the seniority in the cadre while making promotion to the Leading Fireman. It is the contention of the applicants that the applicants are senior to the private respondents who have been promoted by the department and the said promotion is not as per the rules.
The prescribed criteria for promotion to the post of Leading Fireman is 100% by promotion, certificate of having passed the departmental examination for promotion as Leading Fireman and 3 years’ service as Selection Grade Fireman. Admittedly the private respondents have undergone the written oral and practical examination as per the standard laid down by the National Fire Service College, Nagpur after getting the permission and extraordinary leave for the said course at Nagpur. The private respondents have undergone the said course in the year 2011 and 2012. The applicants did not apply for the said course from the department nor they applied for extraordinary leave and did not pass the said course either privately or officially. They further did not question the grant of permission to the respondents by the Govt. at that point of time. Hon’ble High Court of J&K in writ petition No. 32/1989 in the matter of G.N.Mullick & Anr. –vs- State has specifically held as follows :
“It is a different issue all together whether the petitioners had the occasion to undergo this Secretariat training at the relevant time when private respondent No.3 was deputed vide order dt. 31.10.84. Since they had failed to express any grievance against it at the relevant time, they cannot take this plea now. If they had felt aggrieved of their non-deputation, they should have enforced their claim for undergoing such training at the relevant time.”
In view of the settled legal position as explained by Hon’ble High Court of Jammu & Kashmir in the above case, the applicants failed to express any grievance against the permission granted to the private respondents at the relevant time in 2011-12, the applicants cannot take this plea at this belated stage. If the applicants had felt aggrieved of their refusal to undergo the said course at National Fire Service College, Nagpur, they should have objected before concerned authorities/official respondents at the relevant time. Since the private respondents got the opportunity privately and the department sanctioned the extraordinary leave for said course, they availed the opportunity and have been promoted by the DPC over and above the applicants who have not undergone such required course. In view of the above, the contention of the applicants that they were senior to the private respondents and they should have been promoted cannot be accepted. Hence rejected.
So far as private respondent Nos. 7, 14 and 15 are concerned their promotions have been made strictly on the basis of the seniority and admittedly they are senior to the applicants. Therefore, they were rightly promoted.
In view of the above the OA is dismissed with no order as to costs.
Interim order stands vacated.