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Judgment
M.S. Latif, Member (J)
01/ By medium of this O.A, the petitioners seek the following reliefs :
“That the impugned orders bearing no:310-MD of 2022 Dated: 14.07.2022 and order No. 366-MD of 2021 dated: 11.09.2021 issued by non-applicant No.3 who is incompetent to issue an order of Transfer/ postings of staff working under ICDS deserves to be quashed. The respondents be restrained from making any temporary arrangement for the post of CDPO from amongst the in-eligible persons not born on the cadre(supervisors) and be directed to convene DPC/PSC and consider the applicants for the promotion of CDPO’s to which they are legally entitled to,in-terms of rules governing the field within some stipulated time , as same shall be in the interests of justice and equity.
That in the event the respondents are contemplating to make any temporary arrangement/in-charge arrangement for the post of CDPO which are lying vacant in the department because of exigency for the time being then only eligible &senior most TSWO’s who are otherwise entitled to be promoted be placed /adjusted, in-terms of law governing the field, as same shall be in the interests of justice and equity.
02/ Along side the main reliefs, the petitioners have also sought relief, as an interim measure, that pending final adjudication of this OA, the impugned orders bearing no:310-MD OF 2022 Dated: 14.07.2022 and order NO. 366-MD of 2021 dated: 11.09.2021 issued by respondent No.3, being incompetent to do so, be Stayed.
03/ The facts as are manifest from the record of the file are that the petitioners came to be appointed as Tehsil Social Welfare Officers (TSWO) in the year 2017, who figured in the final seniority list of ACDPO’S/TSWO’S notified vide order no:122-JK (SWD) of 2020 dated: 02.06.2020 at serial no’s 69,71,72,73,76,77,78,80,81,82,83,84, 88,89,90,91,93,96,97,99,105,108,109 & 110 respectively.
04/ Learned counsel for the petitioners submit that the petitioners have completed more than 5 years of service in the cadre of TSWO’s and in terms of “Jammu and Kashmir social Gazetted services Recruitment Rules ,2007 notified vide SRO: 328 /2007, those TSWO’s, who have completed 5 years of service in the said cadre are eligible for next level of promotion, i.e Child Development Project Officer (7500-12000), which is a Gazetted post. It is further submitted that the petitioners made number of representations to the respondent department for considering them to be promoted to the next higher post, to which they are entitled to and on the basis of these representations the administrative department advised all the HOD’s to convene DPC/PSC for making regular promotion. However, it is submitted that from last five years, no DPC has been convened.
05/ Learned counsel submit that, admittedly, the posts of CDPO’S are lying vacant in the respondent department and the petitioners are possessing the prescribed suitability and eligibility for being promoted to the said post, but instead of making regular promotions in accordance with rules, the respondents are making adjustments only by giving additional charges to the persons who are not holding the posts of feeding cadre of CDPO’s. It is further submitted that the private respondents are even holding the posts of Supervisors which is the feeding cadre of Assistant CDPO’s, that too, after a period of 5 years. Ironically the department have adjusted these supervisors as CDPO’s to the exclusion of the petitioners herein, although, in terms of rules, they are eligible and have a right to be considered for promotion to the said posts.
06/ The petitioners have challenged the impugned orders mainly on the grounds that for the purposes of increasing efficiency of service, reducing the chances of inefficiency and developing the correct attitudes, temperaments and spirit in the services, promotion of an employee is a condition precedent and same is his/her fundamental right, of course, subject to eligibility and qualification. As such, if an employee is eligible for promotion, its denial amounts to violation of fundamental right guaranteed under Article 16 of the Constitution. Learned counsel further submit that the respondents, by virtue of impugned orders, have adjusted ineligible persons against the posts of CDPO’s in utter disregard of law, as these posts are either meant to be filled up from the direct recruitment candidates or from the in-service promotional quota. Learned counsel further submit that even at times of extreme exigency, any temporary arrangement, if made, cannot last for more than three months, but on the strength of the impugned orders, these persons are holding the posts for more than 10 months, which is totally in contravention of rules and the law governing the field.
07/ It is further submitted that the impugned orders have been passed by an incompetent authority - the respondent No:3, as, in terms of Government Order No:65-JK (SWD) of 2020 dated: 12.03.2020, more particularly, in terms its clause VI, power is vested upon the Director General, Women & Children Development, J&K, to effect transfers and postings of the staff working in ICDS/ICPS. Learned counsel further submit that insofar as the post of TSWO is concerned, same falls in the pay scale of Rs.9300-34800 + GP 4280 Level 6e (35900-113500) whereas, the post of Supervisor falls in the pay scale of Rs.5200-20200 + GP 2400 Level-4 (25500-81100), therefore, as per recruitment rules, a Supervisor is entitled to be considered for promotion only to the post of ACDPO and has no claim, whatsoever, to the post of Assistant Director Social Welfare /CDPO.
08/ It is submitted at the bar by learned counsel for the petitioners that on the basis of direction of this court dated 22.08.2022, the respondent department has initiated the process for convening the DPC for promotion of the petitioners to the posts of CDPO and matter has been forwarded to J& K Public Service Commission (PSC) for further consideration, however, because of issuance of an interim direction by the CAT bench, Jammu, the said process has been halted and the DPC file has been returned by PSC. Learned counsel lay emphasis on the point that the CAT, Jammu bench, has given stay order in a petition bearing No. O.A 1110/2024 on the ground of an order passed by the Hon’ble High Court of J&K, when, as a matter of fact, while issuing the order of stay, the CAT, Jammu Bench, was not informed that an opposite direction is already passed in 2022 by CAT, Srinagar Bench. Learned counsel submit that, in the reply filed by respondents in CAT, Jammu Bench in O.A 1110/2024, the respondent department has accepted the case of applicants therein. In this view of the matter, learned counsel pray for a similar direction to the respondents herein to promote the eligible candidates from the date they have acquired eligibility and also to accord the notional benefits in their favour as, admitted position of law is that the ineligible Supervisors cannot claim equity or legitimate expectation under law. In this regard reliance is placed on the judgement of the apex court delivered in case titled State of Bihar versus Upendra Narayan Singh (2009) 5 SCC 65, whereunder the Hon’ble Supreme Court has categorically held that no benefit can flow from an appointment made contrary to rules. To substantiate the pleas argued by the learned counsel, reliance is also placed upon the judgement titled as Dalip Singh Versus state of UP (2010) 2 SCC 114.
09/ Learned counsel further submit that the urgency of appointing eligible TSWOs as CDPOs is underscored by the findings from the most recent National Family Health Survey (NFHS-5, 2019–21), in terms whereof, 72.3% of children, aged 6–59 months in Jammu & Kashmir, are anemic, which is a rate, significantly higher than the national average of 67.1%. Moreover, 21% of children in the U.T are underweight and 27.3% are stunted. It is submitted that these alarming figures highlight the nutritional vulnerability of children in the region, as such, assigning ineligible Supervisors to manage critical child nutrition programs, including ICDS and Poshan Abhiyaan, directly undermines the fight against malnutrition and violates the constitutional duty mandated under Article 47. Learned counsel submit that only qualified personnel from the designated feeding cadre, i.e. TSWOs can ensure accountability and effective implementation of such life-impacting schemes. To further buttress the arguments, learned counsel for the petitioners have also relied upon the below mentioned catenae of judgements.
* K. Samba Murthy versus Sanjeev Chadha (2025) ;
* Rampal Sharma versus J&K High Court (2023) ;
* Union of India versus K.K. Dhawan (1993) ;
* Dalip Singh versus State of U.P., (2010) 7 SCC 114 ;
*Srinivash Sharma versus State of UP(HC 2007) ;
*State of A.P versus N. Radhakishan.
10/ Concluding their arguments, learned counsel finally submitted that the respondents be directed to give immediate charge of the CDPO posts to the eligible TSWOs pending final DPC notification, by reverting the ineligible supervisors without delay and, thus, prevent further compromise with essential public health programmes.
11/ Objections have been filed by the official respondents. However, private respondents, who were ordered to be served through respondents No.3 – Mission Director, POSHAN J&K, have been served by the Registry of this court in terms of Dispatch No. 299/2025 and Tracking No. EE944715840IN. In the objections filed by the official respondents it is stated that the petitioners had been appointed as Tehsil Social Welfare Officers and are presently working in the Social Welfare Department, who have prayed, among other reliefs, for direction to the respondents to convene the DPC for their promotions as CDPOs. It is stated that in terms of J&K Social Welfare (Gazetted) Service Recruitment Rules, 2007 notified vide SRO 328 dated 11 September, 2007 sanctioned strength of CDPOs/DSWOs/equivalent is 166 posts and as per Rule position 83 posts fall under direct recruitment quota from Combined Services and 83 posts under the promotion quota in the ratio of 50:50. Reply further reveals that the Department of Social Welfare has been facing shortage of officers from both the sources of combined services and promotion quota. The respondents have said that it is in this view of the matter that they are banking upon the assignment of multiple charges/responsibilities upon the officers. They have further stated that in order to run the ICDS projects effectively and to implement various central sponsored schemes, at times, the temporary arrangements were made in exigency and some of the supervisors including the private respondents were given the responsibility under certain conditions to run the ICDS projects. Thus they have, out rightly, denied the averment raised by the petitioners in this regard. The official respondents have further stated that they have always acted in good faith with the object to make proper implementation of ICDS scheme and it is only because of this goal in mind that they have assigned the responsibility to look after the ICDS projects to the private respondents as a temporary measure with the condition that the arrangement shall be purely on temporary basis and shall not confer any preferential right upon them in any manner and they shall continue to draw their salary as per grade held by them on substantive basis (i.e., supervisors). The respondents have further stated in the reply that this temporary arrangement was misunderstood by the applicants as In-charge /OPG arrangement to the post of ACDPO/CDPO, which was never intended. Reply further reveals that the method of recruitment to the posts of District Social Welfare Officer/Assistant Director, Social Welfare/Child Development Project Officer is the same, which has been incorporated in Column 6 of the Schedule-II. Under the recruitment Rules of Social Welfare Department, a joint seniority of Tehsil Social Welfare Officers, Assistant Child Development Project Officers and Superintendent of Homes/institutions (Non-Gazetted) is being maintained and officers from this Joint Seniority are promoted to the level of District Social Welfare Officers (DSWOs), Child Development Project Officers (CDPOs) and Assistant Director. Respondents have further stated in their reply that rule position supra has been challenged in a number of writ petitions before the Hon'ble High Court and the Hon'ble High Court vide its order dated 06-03-2020 delivered in WPC No. 669/2020 was pleased to hold that there is no scope for promotion of Tehsil Social Welfare officers/Superintendent homes against the post of CDPO and the only feeding cadre in tune with the scheme of Government of India is the post of Supervisor of ICDS Projects. The respondents have, as such, sought dismissal of the petition as, according to them, the petitioners have no locus standi to file the instant petition.
12/ In the reply the respondents have further stated that in order to overcome the deficiency of in-position officers, which the Department was experiencing from time to time, the matter has been taken up with the Finance Department and after seeking certain clarifications, suggested for placing the proposal before Standing Committee in ARI and Training Department for deliberations and in the above terms, the matter was placed before Administrative Reforms, Inspection and Training Department, which has also made certain observation and suggested that the Department shall also explore other alternatives to solve the stagnation of supervisors by maintaining common seniority at the level of supervisors / social Worker/superintendents/Master Craftsman/ probationary Officer/ Case Worker which can be a common feeding cadre for promotion to the posts of ACDPOs/TSWOs/Superintendent of Homes. Hence it is submitted that there is not any arbitrary action from the official respondents against the petitioners.
13/ Perusal of the reliefs claimed in the O.A. reveals that the applicants have sought for the quashment of order bearing no. 310-MD of 2022 dated 14.07.2022 issued by non-applicant No. 3 who, according to the applicants, is incompetent to issue the order and further seeks a direction upon the respondents to restrain them from making any temporary arrangement for the post of CDPO from amongst the ineligible persons not borne on the cadre of supervisors and respondents be also directed to convene DPC/PSC and consider the applicants for the promotion of CDPOs to which they are legally entitled in terms of the rules governing the field.
14/ Learned counsel for the applicants – M/s. R A Bhat and Zeeshan Athar submit that the applicants have completed more than five years of service in the cadre of TSWOs in terms of the Jammu and Kashmir Social Welfare Gazetted Service Recruitment Rules of 2007 notified vide SRO 328/2007 and according to them, TSWOs who have completed five years of service in the said cadre are eligible for next level of promotion i.e. Child Development Project Officer which, according to them, is a gazetted post. The Counsel for the applicants further argued that the applicants have moved a number of representations before the respondents for considering them for their promotion to the next level, to which they are legally entitled to. It has also been argued by them that posts of CDPOs are lying vacant, for which DPC/PSC deserves to be convened. They further submitted that promotions generate efficiency in an organization and any sort of stagnation breeds frustration. It is for this reason that right of consideration for promotion is a fundamental right.
15/ Learned counsel for the applicants, further argued that promotions have to be strictly done in accordance with the seniority and even if a stop gap arrangement has to be made, the same has to be also made in accordance with the rules governing the subject. Learned counsel submitted that promotion/appointment of a Government Servant to a higher post, in his own pay and grade, cannot be permitted in absence of clearance by the DPC. They submitted that formalities essentially include scanning the eligibility of a Government Servant on the touchstone of the service rules and that it is obligatory upon the competent authority to ensure that the person, upon whom assignment of a charge of a higher post is contemplated, does fulfill the requirement of the post as assignment of a higher charge has the effect of giving charge of a public office, therefore, the pre-requisite conditions of eligibility, laid by the rules, have to be fulfilled. The proposition of law in our opinion is countenanced by clause of equal opportunity enshrined in Article 16 of the Constitution and in terms of the Constitutional mandate, adjustment made by pick and choose against any office under the State, denying the right of consideration to the eligible persons even if it is stop gap arrangement, amounts to violation of Article 16 of the Constitution. To this effect, we are fortified by a judgment of the Hon’ble High Court of J&K titled as Nazir Ahmad Wani and Mushtaq Ahmad versus State of J&K 2005 (1) JKJ 71.
16/ Reply stands filed by the official respondents. Perusal of the reply reveals that the Department of Social Welfare has been facing shortage of officers from both the sources of combined services and promotion quota and, as such, the Department banks upon the assignment of multiple charges/responsibilities upon the officers. In order to run the ICDS projects effectively and to implement various centrally sponsored schemes, at times, the temporary arrangements were made in exigency and some of the supervisors including private respondents were given the responsibility under certain conditions to run ICDS projects. It is stated that the assignment of responsibility to look after the ICDS projects to the private respondents, is by way of a temporary measure, in the exigency, and it is averred that the arrangement shall be purely on temporary basis and shall not confer any preferential right upon them in any manner. It has also been averred in the reply that the rule position has been challenged in WPC No. 669/2020 wherein it has been mentioned that there is no scope for promotion of Tehsil Social Welfare Officers/Superintendent Homes against the post of CDPO and the only feeding cadre, in tune with the scheme of Government of India, is the post of Supervisor of ICDS projects and, therefore, the applicants have no locus standi to file the instant O.A.
17/ Mr. Rais ud din Ganai – DAG, appearing for the respondents, while rebutting the averments as raised in the O.A. submits that the applicants do not have a right to file the instant O.A and there has been no violation of any of their rights. Perusal of the order impugned reveals that the private respondents have been assigned with the additional charge to look after certain ICDS projects as a stop gap arrangement. However, in terms of the law, stop gap arrangement cannot be treated as promotion. While making a stop gap adjustment, it has to be ensured that the officer, who is appointed, must satisfy the requirement for higher promotion/appointment and he should be eligible to stand the scrutiny by the Departmental Promotion Committee, as such, a stop gap arrangement cannot be treated as promotion which is only made in the exigency till the posts are filled up finally in accordance with the law. In terms of the Regulation 85 of the J&K Civil Service Regulations which provides manner and method of appointment of an officer as in-charge of a higher post independent of his own duties, reads as under:
" (1) A Government servant may be:-
(a) assigned the charge of another post in addition to his own duties; or
(b) appointed to be in charge of a higher post independent of his own duties.
(2) (1) where for administrative reasons or non-completion of formalities for appointment to the higher post, a person cannot be appointed to that post formally and is appointed in his own pay and grade to be in charge of the higher post and required to discharge full duties and responsibilities of the post either in the same office or in a different office, in the same cadre/line of promotion or in a different cadre/line of promotion. "Government Instruction (a) It is wrong in principle to appoint a Government servant to a higher post in his own cadre/line of promotion without observing the required formalities of clearance from Departmental Promotion Committee etc. where, however, for reasons to be recorded, the Administrative authorities cannot without detriment to public interests wait for formal appointments temporary stop-gap arrangements maybe made by them against such posts. In making such arrangements the competent authorities will ensure that only such officers are appointed who satisfy all the requirements for higher appointments and can stand the scrutiny of the Departmental Promotion Committee etc."
18/ In view of the mandate of Regulation 85 of the Civil Service Regulation supra, any sort of stop gap arrangement cannot be continued beyond a certain stipulated time period as has been contained in Rule 14 of the J&K Civil Services (Classification Control and Appeal) Rules, 1956, which is enumerated as under :
"Temporary appointments:- (1) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy in a post borne on the cadre of service, class or category and the making of an appointment to such vacancy in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person otherwise than in accordance with these rules temporarily with the prior approval of the Chief Minister in co-ordination until a person is appointed in accordance with these rules but such temporary appointment shall in no case exceed three months on each occasion and not more than nine months in all.”
19/ To this effect, we are fortified by the judgment titled as Manzoor Ahmad Mir versus State of J&K and Ors. 2004 (1) Sri LJ 323 and Kartar Singh versus State of J&K 2005 Kash LJ 398 DB.
20/ Prima facie, what appears from the perusal of the order impugned and the contents of the O.A and the objections filed, the promotions of the private respondents are by way of stop gap arrangement and only to look after the charge and the same are by way of an ad hoc arrangement, which have been made against gazetted posts, which, in terms of the law, could have not been continued in any eventuality beyond the stipulated period as contained in Rule 14 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 supra.
21/ Learned counsel for the respondents was confronted as to whether such an arrangement/look after charge, as given to the private respondents, is still continuing. He expressed his inability to apprise the Court. So much so, even the objections filed by the respondents are silent about the continuance of the private respondents in the arrangement in terms of the order impugned. In any case, promotions/appointments to the higher posts have to be made strictly in accordance with the rules and in no case a stop gap or ad hoc or a look after order can be operative beyond nine months as mandated by law under Rule 14 supra.
22/ In this regard, we are fortified by the judgment of the Hon’ble Apex Court in case titled as State of U.P. & Ors. versus Ram Krishna JT 1999 (6) SC 391. We are also fortified by a judgment of the Apex Court in case titled as Ramakant Shripad Sinai Advalpalkar versus Union of India AIR 1991 SC 1145.
23/ Private respondents have not chosen to appear nor have filed their objections despite having been duly served.
24/ Heard learned counsel for the parties, perused the contents of the O.A., the objections and the case law cited at Bar.
25/ The instant O.A. is accordingly, disposed of along with connected M.A, if any, by providing that in case the promotions to the next higher post of CDPOs are to be made, the same shall be strictly made in accordance with the rules governing the subject and by convening of DPC/PSC and consider all eligible candidates for such promotions/appointments subject to their eligibility. As regards the continuation of the private respondents against the stop gap arrangement, the official respondents to strictly adhere to Rule 14 of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956 read with Article 85 of Civil Services Regulations and in case, in an exigency, any post is to be filled up on stop gap arrangement, it shall be ensured that the officer so adjusted must satisfy the requirement for higher promotion/appointment as such, and should be eligible to stand the scrutiny by the Departmental Promotion Committee/PSC. It is made clear that this order shall, however, remain subject to any order/judgment passed by any higher Court or any matter pending before any Court or Tribunal as on date.
26/ As a corollary, the C.P 224/2022, having become infructuous, shall accordingly, stand closed.