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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)Set aside Order No. 98-LA-PW(R&B) of 2024 issued by respondent No.1 towards the implementation of order dated 24-10-2024 passed by this Hon'ble Tribunal in OA No.61/1145/2024 titled Konchok Namgial & Ors. V/s UT of Ladakh & Ors.
b)Direct the respondents to consider the objections filed by the applicants dated 30-12-2024 to the Memorandum dated 09-12-2024 before effecting any amendment in the in SO 73 dated 13-09-2023 and SO 35 dated 25-06-2024.
c)Direct the respondents to fix the seniority of the applicants along with other Junior Engineers in accordance with law on the basis of date of appointment as Junior Engineers as contemplated under SO 73 dated 13-09-2023 and SO 35 dated 25-06-2024 and thereafter make the promotions to the post of Assistant Engineers (Civil) on the basis of seniority.
d)Direct the respondents not to make any placement/promotion/officiating arrangement on the post of Assistant Engineer (Civil) till the fixation of seniority of the applicants along with other Junior Engineers under SO 73 dated 13-09-2023 and SO 35 dated 25-06-2024.
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The applicants are serving as Junior Engineers (Civil) in the Public Works (R&B) Department/PHE, I&FC Department of the Union Territory of Ladakh. They are Diploma holders in Engineering and were initially appointed as Junior Engineers on different dates in the erstwhile State of Jammu & Kashmir. Their grievance in the present Original Application is primarily against Order No. 98-LA-PW(R&B) of 2024 dated 10.12.2024, issued by respondent No.1 in purported compliance with the order dated 24.10.2024 passed by this Tribunal in O.A. No. 61/1145/2024, titled Konchok Namgail & Ors. v. Union Territory of Ladakh & Ors.
The applicants plead that under the erstwhile Jammu & Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978, framed vide SRO 380 dated 06.07.1978, separate promotional avenues were available to Degree-holder and Diploma-holder Junior Engineers for promotion to the post of Assistant Engineer. After the reorganization of the erstwhile State of Jammu & Kashmir and creation of the Union Territory of Ladakh, fresh Recruitment Rules governing the post of Assistant Engineer (Civil) were notified by the Public Works (R&B) Department vide S.O. 73 dated 13.09.2023 and by the PHE/I&FC Department vide S.O. 35 dated 25.06.2024. Under these Rules, 40% posts of Assistant Engineer are to be filled by direct recruitment and 60% by promotion. The prescribed qualifying service for promotion is three years for Degree-holder Junior Engineers and five years for Diploma-holder Junior Engineers.
According to the applicants, the aforesaid Rules do not provide a separate quota within the 60% promotional quota for Degree and Diploma holders and, therefore, the promotional posts are required to be filled on the basis of a common seniority of eligible Junior Engineers, subject to fulfillment of the prescribed qualifying service. The applicants contend that despite their possessing the requisite service, their seniority was not finalized and, consequently, their cases for promotion to the post of Assistant Engineer were not considered.
Aggrieved by the non-finalization of seniority and non-consideration for promotion, some of the applicants earlier approached this Tribunal by filing O.A. No. 61/1145/2024. The said O.A. was disposed of on 24.10.2024 with a direction to the respondents to consider the case of the applicants for promotion after deciding their representation, by treating the O.A. itself as a representation, and to pass a reasoned and speaking order within six weeks.
In purported compliance with the aforesaid direction, respondent No.1 passed Order No. 98-LA-PW(R&B) of 2024 dated 10.12.2024. The applicants contend that instead of finalizing their seniority and considering them for promotion under the existing Recruitment Rules, the Department stated that seniority would be prepared after obtaining clarification/approval on a proposal pending with the UPSC for review/amendment of the Recruitment Rules. The applicants allege that such an exercise was undertaken on the representations of Degree-holder Junior Engineers and would adversely affect their promotional prospects.
The applicants further state that on 09.12.2024, i.e. one day prior to the issuance of the aforesaid order, the respondents circulated a Memorandum inviting comments from stakeholders on the proposed amendment of S.O. 73 of 2023 and S.O. 35 of 2024. The proposed amendment contemplated bifurcation of the 60% promotional quota between Degree-holder and Diploma-holder Junior Engineers in the ratio of 75:25. The applicants submitted objections/comments dated 30.12.2024 requesting that the proposed amendment be dropped and that promotions be regulated under the existing Rules. According to them, such bifurcation would substantially reduce the promotional opportunities available to Diploma-holder Junior Engineers and would place them at a disadvantage vis-à-vis Degree holders.
It is accordingly the case of the applicants that their entitlement for consideration ought to be governed by the Recruitment Rules in force and that the process of amendment could not be used to indefinitely defer preparation of seniority and consideration for promotion. They have, therefore, sought quashing of Order dated 10.12.2024, consideration of their objections dated 30.12.2024 before any amendment of the Rules, fixation of their seniority in accordance with law and consequential consideration for promotion to the post of Assistant Engineer (Civil).
The respondents have filed their written statement wherein they have averred as follows: -
Respondent No.3, Union Public Service Commission, in its reply has stated that the Commission is a constitutional body functioning under Articles 315 to 323 of the Constitution and, in exercise of its functions under Article 320, renders advice to the concerned administrative Ministries/Departments in matters relating to framing and amendment of Recruitment Rules. The proposals received from the concerned Departments are examined in accordance with the applicable guidelines and instructions issued by the Government of India/DoPT.
The UPSC states that the UT Administration of Ladakh had submitted proposals for framing Recruitment Rules for the Civil Engineering cadres of the Public Works (R&B) and PHE/I&FC Departments during November, 2022 and February, 2023 respectively. The Commission tendered its advice and, thereafter, the Administration notified S.O. 73 dated 13.09.2023 and S.O. 35 dated 25.06.2024. Subsequently, in January, 2025, the UT Administration submitted proposals for amendment of the said Rules relating to the post of Assistant Engineer (Civil).
Significantly, the UPSC has stated that the amendment proposal submitted by the UT Administration contemplated reservation of the promotional quota in the ratio of 75% for Degree-holder Junior Engineers and 25% for Diploma-holder Junior Engineers. However, the Commission did not find the proposed protection/bifurcation of the quota justified and did not agree to the same. The Commission accordingly tendered its advice to the UT Administration on 16.05.2025 without accepting the proposed 75:25 bifurcation.
The UPSC has further pleaded that fixation of inter se seniority of Junior Engineers is an administrative matter falling within the domain of the UT Administration and that the Commission has no role in preparation or fixation of such seniority. It has also contended that no independent action of the UPSC has been challenged in the present O.A. and that the substantive reliefs claimed by the applicants are essentially against the UT Administration.
The official respondents have opposed the O.A. and have raised preliminary objections regarding limitation, delay and laches and alleged suppression of material facts. On merits, they submit that Order dated 10.12.2024 was passed in compliance with the direction dated 24.10.2024 issued by this Tribunal in the earlier O.A.
The respondents explain that after notification of S.O. 73 of 2023 and S.O. 35 of 2024, while preparing the seniority lists, representations were received from Degree-holder Junior Engineers contending that under the erstwhile J&K Rules separate promotional quotas existed for Degree and Diploma holders and that such protection had not been carried forward in the new Recruitment Rules. They claimed that the absence of such separate quotas placed them at a disadvantage and invoked Section 90 of the J&K Reorganisation Act, 2019 as well as the principles emanating from Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors.
In view of such representations, the Department approached the UPSC on 03.10.2024 seeking review of the relevant provisions of the Recruitment Rules and proposed separate promotional shares for Degree and Diploma holders. The UPSC, vide communication dated 13.11.2024, informed the Department that since the Recruitment Rules had already been notified, the same could not be reviewed and any change could only be effected by way of amendment. Consequently, an amendment proposal was initiated. According to the respondents, pending consideration of the amendment proposal, fixation of seniority of Junior Engineers was considered not feasible.
The respondents further state that, following the advice of the UPSC and in terms of the applicable DoPT instructions, the draft First Amendment Rules were circulated vide Memorandum dated 09.12.2024 inviting comments from all stakeholders within thirty days. Representations were received both from Diploma-holder and Degree-holder Junior Engineers. These representations, including the objections submitted by the applicants on 30.12.2024, were examined by the Department with reference to the J&K Reorganisation Act, 2019, the judicial pronouncements relied upon and the DoPT guidelines governing framing/amendment of Recruitment Rules.
It is further stated that the representations were dealt with vide Memorandum dated 21.01.2025. Subsequently, pursuant to the interim order dated 21.04.2025 passed by this Tribunal in the present O.A., the Department issued Order No. 55-LA(PWD) of 2025 dated 25.06.2025, wherein the objections to the proposed First Amendment Rules, including the objections dated 30.12.2024 submitted by the applicants, were considered and rejected as being devoid of merit. The official respondents, therefore, deny that the impugned action was taken on extraneous considerations or without application of mind and maintain that the matter was examined in accordance with the provisions of the J&K Reorganisation Act, the applicable judicial pronouncements and the guidelines issued by DoPT.
Heard learned counsel for the parties and perused the pleadings made by them.
The principal question arising for consideration is whether this Tribunal ought, at the present stage, to interfere with the exercise undertaken by the competent authority for amendment of the Recruitment Rules and, in particular, with the proposed prescription regarding the promotional channel for Degree-holder and Diploma-
The material on record shows that S.O. 73 dated 13.09.2023 and S.O. 35 dated 25.06.2024 are the notified Recruitment Rules. Subsequently, certain representations were received from Degree-holder Junior Engineers, whereupon the Administration approached the UPSC and initiated an exercise for amendment of the Rules. The Memorandum dated 09.12.2024 was issued for inviting comments from stakeholders on the draft amendment. The applicants also participated in that process by filing their objections dated 30.12.2024. Thus, what was questioned by the applicants, insofar as the 75:25 ratio is concerned, was at that stage only a proposal contained in the Draft Recruitment Rules and not a finally notified statutory provision.
Recruitment Rules are required to be framed or amended by the competent authority in exercise of its rule-making and administrative powers and after following the procedure prescribed for that purpose. A draft circulated for obtaining comments from stakeholders is, by its very nature, part of the consultative process. Such a draft does not acquire the character of a final statutory rule merely because a particular provision has been proposed therein. Judicial interference at such an intermediate stage, before the competent authority completes the exercise and takes a final decision, would amount to examining a proposal which may ultimately be modified, dropped or altogether replaced.
The facts of the present case demonstrate the very reason why interference with a draft proposal would be inappropriate. The Administration had proposed a ratio of 75% for Degree holders and 25% for Diploma holders. However, the UPSC, after examining the proposal, expressly did not find such protection of separate quota justified and did not agree to it. Therefore, the proposal which constituted the principal foundation of the applicants' apprehension did not even receive the concurrence of the Commission in the form in which it had been proposed.
In these circumstances, adjudicating upon the constitutional validity or otherwise of the proposed 75:25 ratio would be wholly premature. There is no occasion for this Tribunal to pronounce upon the legality of a provision which, on the material placed before us, has not been shown to have culminated into a final notified Rule. Any finding on the proposed ratio at this stage would consequently be academic and based upon an apprehension rather than an accomplished alteration of service conditions.
We also do not find any surviving cause for issuing a direction to the respondents to consider the applicants' objections dated 30.12.2024. The record clearly indicates that the objections were subsequently examined by the competent authority and Order No.55-LA(PWD) of 2025 dated 25.06.2025 was issued pursuant to the interim order of this Tribunal. The respondents have specifically pleaded that the objections submitted by the applicants were considered and rejected after giving reasons. The prayer seeking mere consideration of those objections, therefore, stands exhausted by subsequent events.
Much emphasis has also been placed upon Order No.98-LA-PW(R&B) of 2024 dated 10.12.2024. The said order came to be issued pursuant to the directions passed by this Tribunal on 24.10.2024 in the earlier O.A. The Department, while dealing with the applicants' grievance, recorded that the issue relating to the Recruitment Rules had been placed before the UPSC and that the seniority exercise would be undertaken after the matter relating to the Rules was clarified.
The impugned order does not, by itself, amend the Recruitment Rules, nor does it finally determine the inter se seniority of the applicants to their prejudice. It essentially reflects the position then obtaining in the Department while the question regarding amendment of the Recruitment Rules was under examination. In our considered view, merely because the decision recorded therein was not to the satisfaction of the applicants would not, in the circumstances of the present case, furnish sufficient ground to quash the same.
Insofar as fixation of seniority and promotion are concerned, the applicants undoubtedly have a right to have their cases dealt with in accordance with the Recruitment Rules and other applicable provisions governing the field. However, the Tribunal cannot, while an exercise relating to the statutory Recruitment Rules is being processed by the competent authority, direct that promotions must necessarily be made according to a particular formulation suggested by one set of employees. Likewise, no direction can be issued which would have the effect of freezing the Rule-making power of the Administration merely because a proposed amendment may have an impact upon future promotional prospects.
It must also be noticed that the UPSC has already declined to agree to the proposed 75:25 bifurcation. The apprehension of the applicants that the aforesaid draft provision would automatically be brought into force, therefore, does not survive in the form in which the O.A. was instituted. If any final Recruitment Rules are hereafter notified and the applicants are aggrieved by any provision thereof or by any consequential action affecting their seniority or promotional rights, it would be open to them to challenge such final action in accordance with law. We make it clear that we have expressed no opinion on the validity of any final amendment which may or may not ultimately be notified.
For the same reason, the prayer seeking restraint against any placement/promotion/officiating arrangement till fixation of the applicants' seniority also cannot be granted in the sweeping form in which it has been sought. Administrative functioning cannot be kept in abeyance on the basis of a challenge to a draft provision. Any promotion or placement made by the respondents would necessarily have to conform to the Recruitment Rules and the law applicable at the relevant time and would remain subject to judicial scrutiny if challenged on legally sustainable grounds.
The preliminary objections raised by the respondents regarding limitation and other procedural aspects need not detain us, as the O.A. is liable to be disposed of on merits for the reasons recorded hereinabove.
Viewed thus, we find that the challenge of the applicants to the proposed amendment of the Recruitment Rules is premature. The 75:25 formula which formed the principal basis of the challenge was itself not agreed to by the UPSC; the objections of the applicants to the draft proposal have already been considered by the competent authority; and no final statutory amendment incorporating the impugned proposal has been placed before us. We are, therefore, not inclined to exercise judicial review at the stage of the draft Recruitment Rules.
Consequently, no case for interference with Order No.98-LA-PW(R&B) of 2024 dated 10.12.2024 is made out. Equally, no mandamus as sought for fixation of seniority and promotion in the particular manner claimed by the applicants can be issued in the present proceedings.
Accordingly, the Original Application is dismissed.
It is, however, clarified that dismissal of the present O.A. shall not be construed as approval by this Tribunal of the proposed 75:25 promotional ratio or of any particular provision contained in the Draft Recruitment Rules. The respondents shall regulate seniority and promotion in accordance with the Recruitment Rules and statutory provisions applicable at the relevant time. In case any final amendment or consequential action adversely affects the applicants, they shall be at liberty to seek appropriate remedy in accordance with law.
There shall be no order as to costs. Pending MAs, if any, stands disposed of accordingly.