State of J&K vs Mohd. Taj

This appeal is preferred against the order of the Writ Court made in SWP No. 722/1996, dated 30.04.2001, giving direction to the appellants

to give benefit of Order No. 1141-GAD of 1991, dated 22.11.1991 along with consequential benefits.

The writ petitioner-1st respondent herein prayed before the Writ Court to quash the order giving promotion to private respondent in the writ

petition (proforma respondent herein) as Sub-Inspector in the pay scale of Rs. 1640-2900, which was issued on 24.01.1996 and also the order

passed by the 2nd appellant dated 26.03.1996 stating that the writ petitioner was not entitled to promotion.

The case of the writ petitioner, who is the 1st respondent herein before the Writ Court was that he belongs to Scheduled Tribe category and

entitled to the benefits of Order No. 1141-GAD of 1991, dated 11.11.1991 and be placed at roster point. By order dated 01.09.1990,28 Head

Constables of the ministerial executive cadre were brought on promotion List CB-II and subsequently they were promoted as Selection Grade

Head Constables. The name of the writ petitioner figures at Serial No. 20. On 20.09.1990, another order bearing No. 1037/90 was passed

promoting 28 Selection Grade Head Constables, whose name figured in Government Order No. 941/90 and were brought on promotion list-D.

On the same date only 19 Selection Grade Head Constables were promoted as Assistant Sub-Inspectors and the writ petitioner was promoted as

Assistant Sub-Inspector only on 27.03.1992. His grievance was that he should also be promoted as ASI along with 19 Selection Grade Head

Constables, who were promoted as ASI on 20.09.1990 and not on 27.03.1992. He also claimed that he is entitled to the roster point as he

belongs to the Scheduled Tribe category. His further grievance was that when further promotions were ordered in favour of the Assistant Sub

Inspectors on 24.01.1996 to the post of Sub-Inspectors, his claim was ignored due to the denial of earlier promotion as Assistant Sub-Inspector

from 20.09.1990.

The appellants resisted the writ petition by contending that the writ petitioner never claimed the benefits as belong to Scheduled Tribe category

during selection and he had also not produced the requisite certificate. Therefore, he cannot claim roster point relying on Jammu and Kashmir

Reservation Rules, 1994 and the government order dated 22.11.1991. He produced the category certificate (S.C.) only on 29.06.1994 for the

first time; hence he was not given promotion as ASI by considering his roster point along with 19 officials on 20.09.1990 as no claim was made.

According to the learned counsel appearing for the appellants, the Writ Court without considering the said issue had allowed the writ petition

giving direction to give retrospective promotion to the writ petitioner as ASI considering him as Scheduled Tribe candidate.

The issue as to whether a person can claim benefit of reserved category without claiming the same at the initial stage, though he can produce

certificate later on was considered by Hon'ble the Supreme Court in its decision reported as AIR 2016 SC 1098 (Ram Kumar Gijroya v.

Delhi Subordinate Services Selection Board and Ors.) and held that if claim is made by a reserved category candidate in the application, such

candidate is entitled to get benefit of reservation, even if he produces the proof on later point of time.

In this case, admittedly the writ petitioner produced the category certificate and claimed benefit only in the year 1994, hence denial of promotion

as per roster point in the year 1990 by the appellants to the writ petitioner cannot be found fault with. The writ petitioner has to be blamed for not

asserting his claim at the time of initial appointment as well as while considering the claim for promotion as ASI in the year 1990. The Writ Court

failed to appreciate this vital issue while issuing directions. Hence order of the writ Court cannot be sustained and same is liable to be set aside and

accordingly set aside.

The appeal is allowed. No costs.