 Early Times Report
Jammu, Oct 9: The Central Administrative Tribunal (CAT), Jammu Bench, has directed the Jammu and Kashmir Government to reconsider the promotion claim of a senior Prosecution Department officer, holding that the mere existence of vacancies does not confer an automatic right to promotion, although every eligible employee is entitled to fair consideration under the applicable recruitment rules.
A Division Bench comprising Judicial Member Rajinder Singh Dogra and Administrative Member Ram Mohan Johri, while partly allowing an application filed by Subash Chander Sharma, directed the authorities to examine his eligibility for promotion to Joint Director Prosecution and subsequently to Director Prosecution in accordance with the applicable service rules.
The Tribunal, in its order pronounced on October 8, observed that eligibility for promotion and entitlement to actual promotion are distinct matters. It held that promotion depends upon recruitment rules, availability of vacancies, seniority, qualifying service and assessment by the competent selection authority.
The applicant, who joined the J&K Police as a Prosecuting Officer in 1993, was subsequently promoted as Senior Prosecuting Officer and Chief Prosecuting Officer. He was placed as Deputy Director Prosecution through an order dated December 17, 2013.
At the time of filing the application, he was serving as Deputy Director Prosecution in the Anti-Corruption Bureau, Jammu.
The applicant contended that he had completed two years of service as Deputy Director Prosecution in 2015 and had consequently become eligible for promotion to Joint Director Prosecution.
He claimed that despite the availability of six posts of Joint Director Prosecution and two posts of Director Prosecution, his case was not considered for promotion.
The applicant further submitted that he had rendered approximately 29 years of satisfactory service, received the DGP Medal in 2014 and earned several written appreciations.
He sought retrospective promotion to Joint Director Prosecution from 2015 and Director Prosecution from July 2022, along with consequential financial and service benefits.
However, the Government opposed his claim, maintaining that his placement as Deputy Director Prosecution in December 2013 was merely an in-charge arrangement in his own pay and grade and did not constitute substantive promotion.
The respondents further submitted that regular promotions in the department had remained delayed due to prolonged seniority disputes and litigation.
They informed the Tribunal that the applicant was subsequently promoted/regularised as Deputy Director Prosecution through Government Order No. 489-Home of 2022 dated December 30, 2022.
After examining the rival submissions, the Tribunal observed that performing the duties of a higher post under an in-charge arrangement does not automatically establish eligibility for further promotion.
It held that whether such service could be counted towards the prescribed qualifying service must be determined in accordance with the applicable recruitment rules and the terms of the relevant Government orders.
The Bench further observed that the existence of vacant posts, although relevant, must be examined alongside the dates on which vacancies arose, the applicable quota and the employee's eligibility at the relevant time.
The Tribunal noted that while the seniority litigation cited by the Government could not be ignored, the applicant's claim for further promotion required a definite examination once the disputes were resolved and his regular promotion as Deputy Director Prosecution was processed.
It also held that the applicant's long service, medal and appreciation could form part of his service record for assessing suitability but could not replace the statutory conditions governing promotion.
Declining to order direct retrospective promotion, the Tribunal observed that such a direction would require it to presume that the applicant fulfilled all the conditions for promotion to both higher posts, which the available material did not justify.
Accordingly, the Tribunal directed the respondents to examine the applicant's promotion claim by considering the applicable recruitment rules, revised seniority, vacancy information obtained under the Right to Information Act and the effective date of his regular promotion or regularisation.
It further directed the authorities to determine whether the applicant's service under the in-charge arrangement could be counted towards qualifying service.
If found eligible, his case shall be placed before the competent Departmental Promotion Committee (DPC), Public Service Commission or other prescribed authority, with a review exercise to be undertaken wherever warranted under the applicable rules.
The Tribunal also directed that his claim for subsequent promotion to Director Prosecution be examined separately, subject to fulfilment of the eligibility conditions for that post.
Regarding retrospective benefits, the Bench held that if the applicant was found entitled to promotion, the authorities must determine the permissible effective date and consequential service, financial and pensionary benefits in accordance with law.
However, it clarified that no automatic entitlement to promotion or arrears from 2015 had been declared.
The Tribunal directed the entire exercise to be completed within three months from the date of receipt of its order, and a reasoned decision addressing the applicant's representation and vacancy position be communicated to him.
The application was accordingly partly allowed without any order as to costs. (JNF) |
