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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)Setting aside Order No. 353-MD of 2021 dated 27.08.2021 issued by the respondent no. 2 whereby the respondent no. 4 and 5 have been placed as Incharge Supervisors over and above the applicant that too in violation of the order dated 20-03-2019 passed by the Hon'ble High Court of J&K (Jammu Wing) in SWP No.551/2019 titled Indra Devi & Anr. V/s State of J&K and Ors wherein the Hon'ble High Court has directed that no promotion to the post of Supervisor under 25% quota provided for graduate persons shall be made until further order from the Court.
b)Directing the respondent nos.1 to 3 not to finalize the tentative seniority list of Graduate Anganwari Workers in respect of District Ramban circulated vide No.DPOR/409-417/2021 dated 27-08-2021 whereby the seniority of the applicant has been altered and pushed down to Serial No.73 from Serial No.3 in violation of the recruitment rules i.e. SRO 287 dated 26-09-1991 read with Government Order No.76-SW of 2019 dated 28-02-2019.
c)Prayer for the grant of any other interim or final relief as may be deemed appropriate in the facts and circumstances of the case in favour of the applicants.
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The brief facts, as projected by the applicants, are that applicant No.1, Ruqia Begum, was initially engaged as an Anganwadi Worker on 18.10.2008 and was a Graduate at the time of her engagement. Applicant No.2, Chanchala Devi, was engaged as an Anganwadi Worker on 01.06.2006 on the basis of 10+2 qualification and subsequently acquired the qualification of Graduation in the year 2008. Private respondent Nos.4 and 5, namely Indra Devi and Sharda Devi, were engaged as Anganwadi Workers on 12.12.1997 on the basis of 12th pass qualification and subsequently acquired Graduation in February, 2013 and June, 2013 respectively.
The service conditions of the applicants as well as private respondent Nos.4 and 5 are stated to be governed by SRO 287 dated 26.09.1991, i.e. the Jammu and Kashmir Social Welfare (Non-Gazetted) Service Recruitment Rules, 1991. Under the said Rules, the post of Supervisor is required to be filled 50% by direct recruitment, 25% by selection through the Departmental Selection Committee from amongst Graduate Anganwadi Workers having rendered five years’ service, and the remaining 25% by selection through the Departmental Selection Committee from amongst Matriculate Anganwadi Workers having ten years’ service.
It is further pleaded that pursuant to litigation before the Hon’ble High Court of Jammu & Kashmir concerning determination of seniority of Anganwadi Workers who acquired higher qualification during service, the Government issued Government Order No.76-SW of 2019 dated 28.02.2019. In terms thereof, the seniority of Anganwadi Workers who acquired Graduation during service was to be reckoned from the date of acquiring such higher qualification instead of the date of their initial engagement/appointment.
Consequent upon the aforesaid Government Order, a seniority list of Graduate Anganwadi Workers of District Ramban was prepared. In the said list, applicant No.1 figured at Serial No.3 and applicant No.2 at Serial No.6, both having attained Graduation in the year 2008. Respondent No.4 did not figure in the said list, whereas respondent No.5 was shown at Serial No.26. According to the applicants, respondent Nos.4 and 5 acquired Graduation only in the year 2013 and, therefore, the applicants were senior to them in the Graduate category.
The applicants further plead that Government Order No.76-SW of 2019 became the subject matter of challenge before the Hon’ble High Court in a number of writ petitions. In SWP No.551/2019, titled Indra Devi & Anr. v. State of J&K & Ors., the Hon’ble High Court, vide interim order dated 20.03.2019, directed that, subject to objections and until further orders, no promotion to the post of Supervisor under the 25% quota earmarked for Graduates be made. Similar interim protection is stated to have been granted in other connected matters, including SWP No.840/2019.
The grievance of the applicants arose when respondent No.2 issued Order No.353-MD of 2021 dated 27.08.2021, whereby private respondent Nos.4 and 5 were placed as In-charge Supervisors. According to the applicants, such placement was made over and above them notwithstanding their superior position in the Graduate seniority list and despite the subsistence of the interim order dated 20.03.2019 restraining promotions against the 25% Graduate quota. The applicants contend that respondent No.2 was a party to the proceedings before the Hon’ble High Court and was, therefore, bound by the aforesaid interim directions.
On the very same date, i.e. 27.08.2021, respondent No.3 issued a tentative seniority list of Anganwadi Workers (Graduate Level), District Ramban, vide Circular No.DPOR/409-417/2021. The applicants contend that their earlier seniority positions were substantially altered in this tentative list, with applicant No.1 being pushed down from Serial No.3 to Serial No.73 and applicant No.2 from Serial No.6 to Serial No.42. According to them, this alteration was effected without affording them an opportunity of being heard and was contrary to SRO 287 of 1991 read with Government Order No.76-SW of 2019.
It is also the case of the applicants that the impugned order purportedly proceeded on the premise that placement of private respondent Nos.4 and 5 as In-charge Supervisors was in compliance with the order dated 20.03.2019 passed by the Hon’ble High Court. The applicants dispute this position and contend that the said interim order did not direct promotion or placement of the private respondents; rather, it specifically restrained promotions to the post of Supervisor against the 25% Graduate quota. They further state that SWP No.551/2019 was subsequently withdrawn by the private respondents on 13.09.2021.
Aggrieved by Order No.353-MD of 2021 dated 27.08.2021 as well as the consequential alteration of their position in the tentative seniority list dated 27.08.2021, the applicants have approached this Tribunal. They essentially seek quashing of the order placing respondent Nos.4 and 5 as In-charge Supervisors and a direction restraining the official respondents from finalizing the tentative seniority list insofar as it adversely alters their seniority, contending that the impugned action is contrary to the applicable Recruitment Rules, Government Order No.76-SW of 2019 and the interim directions passed by the Hon’ble High Court.
The respondents have filed their reply statement wherein they have averred as follows: -
The respondents, both official respondents as well as respondent Nos.4 and 5, have opposed the Original Application and have sought its dismissal. It is their common stand that the Central Administrative TribunalOA is misconceived both on facts and in law and that no legal or enforceable right of the applicants has been infringed. It is further pleaded that the challenge to Order No.353-MD of 2021 dated 27.08.2021 is essentially founded upon the applicants’ claim of superior seniority and, therefore, cannot be considered independently of the dispute regarding fixation of seniority of Graduate Anganwadi Workers.
The respondents submit that respondent Nos.4 and 5 were initially engaged as Anganwadi Workers on 12.12.1997 and acquired Graduation during service in the year 2013, whereas applicant No.1 was engaged on 18.10.2008 and applicant No.2 in the year 2006. Thus, according to the respondents, respondent Nos.4 and 5 are substantially senior to the applicants on the basis of their dates of initial engagement. It is contended that acquisition of Graduation subsequently may confer eligibility for consideration against the Graduate quota, but does not necessarily determine inter se seniority when the governing rules require seniority to be reckoned from the date of initial appointment.
The respondents have referred to the J&K Social Welfare (Subordinate) Service Recruitment Rules, 2009 and Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 to contend that seniority is required to be regulated with reference to the date of first appointment in the relevant service, class or category. It is further stated that the post of Supervisor is to be filled through different modes, including 50% by direct recruitment, 25% by selection from amongst Graduate Anganwadi Workers having five years’ service and 25% by selection from amongst Matriculate Anganwadi Workers having ten years’ service.
The respondents have also explained the background of the controversy relating to fixation of seniority of Anganwadi Workers. Government Order No.100-SW of 2011 dated 20.05.2011 initially regulated the matter. Thereafter, Government Order No.22-SW of 2014 dated 24.01.2014 provided for reckoning seniority of Anganwadi Workers acquiring higher qualification during service with reference to the date of acquisition of such qualification. The said arrangement gave rise to litigation, as Anganwadi Workers who had entered service earlier claimed that their seniority could not be displaced merely because they acquired Graduation at a later stage.
It is pleaded that respondent No.4 and other similarly situated Anganwadi Workers challenged the aforesaid position in SWP No.2539/2016, titled Naseem Akhtar & Ors. v. State of J&K & Ors., wherein an interim order dated 01.12.2016 was passed restraining promotions to the post of Supervisor against the 25% Graduate quota. Subsequently, Government Order No.35-SW of 2017 dated 01.02.2017 rescinded Government Order Nos.100-SW of 2011 and 22-SW of 2014. Thereafter, Government Order No.78-SW of 2018 dated 05.03.2018 contemplated promotions in accordance with the Rules in vogue with reference to the dates of initial engagement.
Pursuant thereto, a final working/seniority list of Graduate Anganwadi Workers of District Ramban was prepared. The respondents state that applicant Nos.1 and 2 were shown at Serial Nos.72 and 33 respectively, whereas respondent Nos.4 and 5 figured at Serial Nos.7 and 6 respectively. Respondent Nos.4 and 5, however, claimed that even their placement was incorrect since they had actually been appointed on 12.12.1997 and certain persons appointed subsequently on 15.12.1997 had been placed above them. They accordingly challenged their placement before the Hon’ble High Court.
The respondents further state that Government Order No.76-SW of 2019 dated 28.02.2019 again provided that seniority of Anganwadi Workers who acquired Graduation during service would be reckoned from the date of acquisition of the higher qualification instead of the date of their initial appointment. Respondent Nos.4 and 5 challenged the said Government Order by filing SWP No.551/2019, titled Indra Devi & Anr. v. State of J&K & Ors. Vide interim order dated 20.03.2019, the Hon’ble High Court directed that no promotion to the post of Supervisor under the 25% quota provided for Graduate Anganwadi Workers be made until further orders.
According to the respondents, the aforesaid interim direction prohibited substantive promotion but did not preclude the Department from making a purely temporary in-charge arrangement to meet administrative requirements. It is emphasized that placement of an employee as In-charge Supervisor does not amount to substantive promotion or confer any vested right to the higher post.
The respondents further submit that the matter relating to seniority was thereafter re-examined by the Department. A fresh tentative seniority list of Graduate Anganwadi Workers of District Ramban was issued on 27.08.2021, wherein respondent No.4, Indra Devi, was shown at Serial No.4 and respondent No.5, Sharda Devi, at Serial No.7, whereas applicant Nos.1 and 2 were shown at Serial Nos.73 and 42 respectively. According to the respondents, the said seniority was prepared by taking the dates of initial engagement into consideration and not merely the dates on which Graduation was acquired.
On the basis of the aforesaid seniority position and against available vacancies, respondent No.2 issued Order No.353-MD of 2021 dated 27.08.2021, whereby respondent Nos.4 and 5 were placed as In-charge Supervisors on temporary basis, subject to clearance by the Departmental Selection Committee. The respondents specifically deny that the said order amounted to promotion in violation of the interim order of the Hon’ble High Court. Their case is that the arrangement was temporary and made only for administrative purposes pending regular consideration by the competent authority/DPC.
The respondents further contend that the tentative seniority list dated 27.08.2021 provided an opportunity for filing objections, but the applicants did not avail themselves of the said remedy. According to them, once the fresh tentative seniority list was issued, the earlier seniority arrangement stood superseded, and the applicants could not claim a higher position merely on the basis of an earlier list. Since respondent Nos.4 and 5 entered service several years prior to the applicants, it is contended that the applicants cannot claim precedence over them solely because they acquired Graduation earlier.
Reliance has also been placed upon the judgment of the Hon’ble Supreme Court in Viman Vaman Awale v. Ganga Dhar Makhriya Charitable Trust & Ors., (2014) 13 SCC 219, in support of the proposition that acquisition of a higher qualification at a later stage, even where such qualification is relevant for promotion to the higher post, does not by itself determine seniority when the applicable rules regulate seniority with reference to initial appointment.
The respondents further submit that the controversy concerning Government Order No.76-SW of 2019 subsequently came to be adjudicated by the Hon’ble High Court in a batch of writ petitions vide judgment dated 14.02.2023. According to the official respondents, the operative directions required fixation of seniority of Anganwadi Workers on the basis of their initial engagement in accordance with the applicable Recruitment Rules read with Rule 24 of the CCA Rules. It is their case that respondent Nos.4 and 5 were found eligible in the light of the said legal position.
It is also the stand of respondent Nos.4 and 5 that the applicants’ challenge to Order No.353-MD of 2021 is consequential upon their claim regarding seniority. They contend that once the applicants’ claim to a higher seniority position is not sustainable, the challenge to the temporary in-charge placement of respondent Nos.4 and 5 also cannot survive. They further maintain that an in-charge arrangement does not create any substantive right in favour of the incumbent and cannot be equated with regular promotion.
The respondents have, therefore, maintained that Order No.353-MD of 2021 dated 27.08.2021 is neither arbitrary nor discriminatory and was issued after consideration of the relevant seniority position and administrative requirements. They further state that regular promotion to the post of Supervisor is required to be undertaken through the competent Departmental Selection Committee/DPC in accordance with the applicable Recruitment Rules and that the case of every eligible Anganwadi Worker, including the applicants, would be considered according to her lawful seniority and eligibility.
On the aforesaid grounds, the respondents submit that the applicants have failed to establish any preferential or enforceable right over respondent Nos.4 and 5 either in the matter of seniority or placement as In-charge Supervisors. They accordingly pray that the Original Application, being devoid of merit, be dismissed.
We have heard learned counsel for the parties and perused the material available on record.
The principal question which arises for consideration is whether the Central Administrative Tribunalapplicants can claim precedence over respondent Nos. 4 and 5 for placement/promotion as Supervisor merely on the basis of the date on which the qualification of Graduation was acquired, notwithstanding the substantially earlier initial engagement of respondent Nos. 4 and 5.
The distinction between seniority and eligibility for promotion assumes significance. A qualification prescribed for promotion ordinarily determines the eligibility of an employee to enter the zone of consideration. It does not, by itself, alter the seniority already acquired in the feeder cadre unless the governing statutory rules expressly provide otherwise.
In the present case, the Recruitment Rules provide for filling 25% of the posts of Supervisor by selection from amongst Graduate Anganwadi Workers having the prescribed length of service. Graduation, therefore, constitutes an eligibility requirement for consideration under that particular quota. However, nothing placed before us establishes that acquisition of Graduation automatically results in loss of the seniority earned by an Anganwadi Worker from the date of initial appointment or that the seniority of eligible Graduate Anganwadi Workers must necessarily commence afresh from the date of Graduation.
This position also finds support from the principles noticed by the respondents from the judgments of the Hon’ble Supreme Court in R.B. Desai & Anr. v. S.K. Khanolker & Ors., (1999) 7 SCC 54 and Viman Vaman Awale v. Gangadhar Makhriya Charitable Trust. The material principle relied upon is that where an employee was otherwise validly appointed to the feeder cadre, acquisition of a higher qualification subsequently, though relevant for eligibility to a higher post, does not by itself become determinative of seniority in the feeder cadre.
There is yet another significant circumstance. Respondent Nos. 4 and 5 were engaged as Anganwadi Workers on 12.12.1997, whereas the applicants were engaged considerably later. Once seniority is reckoned with reference to initial engagement, respondent Nos. 4 and 5 necessarily rank above the applicants. The applicants cannot obtain a march over otherwise senior Anganwadi Workers solely because of the timing of acquisition of the Graduation qualification, unless such consequence flows specifically from the applicable statutory rules.
The challenge to Order No. 353-MD of 2021 dated 27.08.2021 also does not persuade us to exercise our power of judicial review. The order did not grant respondent Nos. 4 and 5 a regular or substantive promotion. They were merely placed as In-charge Supervisors, and their placement was expressly made subject to clearance by the Departmental Selection Committee. An in-charge arrangement made in administrative exigency does not, by itself, confer substantive promotional status or an indefeasible right to the higher post.
The record further indicates that the seniority position itself had been subjected to repeated litigation and that interim orders were operating at different stages. In such circumstances, the Department cannot be faulted merely for making an interim/in-charge arrangement to ensure that administrative work does not suffer, particularly when such arrangement was expressly made subject to the outcome of the regular selection process.
We also take note of the stand of the respondents that a tentative seniority list of Graduate Anganwadi Workers of District Ramban was circulated vide Circular No. DPOR/409-417/2021 dated 27.08.2021, wherein respondent Nos. 4 and 5 were placed at Serial Nos. 4 and 3 respectively, whereas the applicants were placed at Serial Nos. 73 and 42 respectively. The said position was stated to have been prepared with reference to the dates of initial engagement. The applicants are also stated not to have availed the opportunity of submitting objections to the tentative seniority list.
More importantly, the controversy concerning the basis for determination of seniority cannot now be examined in isolation from the subsequent judgment dated 14.02.2023 of the Hon’ble High Court in the connected litigation concerning Government Order No. 76-SW of 2019. Once the issue governing seniority has received adjudication by the jurisdictional High Court, the administrative authorities as well as the parties are required to act in conformity with the law so declared. The applicants cannot claim a contrary seniority position through a collateral challenge to the temporary placement of respondent Nos. 4 and 5.
We, therefore, find no arbitrariness or illegality warranting interference with Order No. 353-MD of 2021 dated 27.08.2021. The mere placement of respondent Nos. 4 and 5 as In-charge Supervisors does not confer upon them any right to regular promotion, nor does it extinguish the applicants’ right to be considered when their turn arises in accordance with the final seniority list and the applicable Recruitment Rules.
Central Administrative Tribunal15. Consequently, the relief sought by the applicants for quashing Order No. 353-MD of 2021 dated 27.08.2021 and for claiming precedence over respondent Nos. 4 and 5 cannot be granted.
Accordingly, the Original Application is dismissed. It is, however, clarified that the dismissal of the present OA shall not prejudice the legitimate right of the applicants to be considered for selection/promotion to the post of Supervisor as and when their turn becomes due. The official respondents shall determine such consideration strictly in accordance with the final seniority position, applicable Recruitment Rules and the judgment dated 14.02.2023 of the Hon’ble High Court, subject to the applicants fulfilling all prescribed eligibility conditions.
It is further clarified that the in-charge arrangement in favour of respondent Nos. 4 and 5 shall not, merely by reason of its continuance, create any independent right to substantive promotion, and regular promotion to the post of Supervisor shall be governed strictly by the applicable Rules and consideration by the competent Departmental Selection Committee.
Pending MAs, if any, shall also stand disposed of. No order as to costs.