VIJAY KUMAR vs EDUCATION on 31 December 2025

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No. 698/2017 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No/192/2025 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: - a) Issue appropriate writ, order or directions to the official respondents to quash notification no. DSEJ/NG/M/49845-58 dated 22/11/2016 issued by respondent No. 2 whereby the name of the petitioner has been excluded for his promotion to the next higher rank of Master. b) Issue appropriate writ, order or directions to the official respondents to quash order No. 137 DSEJ of 2017 dated 28/02/2017, whereby the private respondent No. 5 and 6 have been promoted and adjusted. c) Issue appropriate writ, order or directions to the official respondents to include the name of the petitioner over and by HARSHIT YADAV HARSHIT YADAV

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above the private respondents for his promotion to the post of Master. d) Any other order, which this Hon'ble Court may deems fit and appropriate in the facts and circumstances of the case may also very kindly be passed in favour of the petitioner.”

3. The facts of the case as pleaded by the petitioner in his pleading are as follows: - a) The applicant, Vijay Kumar, is a permanent resident of the Union Territory of Jammu & Kashmir and a citizen of India. He belongs to the Scheduled Caste category and is entitled to all constitutional, statutory, and service benefits available under law. b) The applicant was engaged as a Rehbar-e-Taleem (ReT) Teacher on 10.11.2003. Upon completion of the prescribed period, his services were upgraded/regularised as Teacher with effect from 09.11.2008. He possesses the qualification of M.Sc. (Mathematics) acquired in the year 2005 and M.Ed. obtained in 2006 from the University of Jammu. His date of birth is by HARSHIT YADAV HARSHIT YADAV

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10.05.1978. He claims to have rendered more than 13 years of service with an unblemished record and without any adverse entry. c) The applicant is presently posted as Primary School Teacher at Primary School Karkala, Zone Khour, District Jammu, and has been discharging his duties diligently to the satisfaction of his superiors. d) Respondent No. 2 issued Notification No. DSEJ/NG/M/49845-58 dated 22.11.2016, publishing an updated seniority list of trained graduate/post-graduate teachers promoted as Masters. In the said list, the names of private respondents were shown at Serial Nos. 928 to 933. The applicant contends that all the private respondents are younger in age than him and were appointed on the same date as Teacher, yet his name was omitted from the list. e) According to the applicant, as per settled principles of service law and the law laid down by the Hon’ble Supreme Court, where two or more employees are appointed on the same date, seniority is to be determined by age, and therefore, being by HARSHIT YADAV HARSHIT YADAV

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senior in age, the applicant ought to have been placed above the private respondents. f) Aggrieved by his exclusion, the applicant submitted a representation before the competent authority seeking correction of the seniority position and inclusion of his name in the seniority list, which was duly received by the department. However, no corrective action was taken. g) Thereafter, Order No. 137-DSEJ of 2017 dated 28.02.2017 was issued, whereby teachers already promoted as Masters were adjusted in different schools. The names of private respondents Nos. 5 and 6 figured in the said order, whereas the applicant’s name was again excluded. h) The applicant alleges that despite being senior and fully eligible, he has been arbitrarily ignored and deprived of promotion, while his juniors have been promoted, in violation of statutory rules and constitutional guarantees under Articles 14 and 16 of the Constitution of India. i) According to the applicant, the impugned notification and order suffer from arbitrariness, discrimination, and mala fide exercise by HARSHIT YADAV HARSHIT YADAV

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of power, and have resulted in denial of his legitimate right to be considered for promotion in accordance with law. j) Having no alternative efficacious remedy, the applicant initially approached the Hon’ble High Court by filing SWP No. 698/2017, which upon constitution of the Tribunal, stood transferred and registered as the present Transfer Application No. 192/2025.

4. The respondents have filed their reply statement wherein they have averred as follows: - a) The answering respondents submit that the present Transfer Application is misconceived, devoid of merit, and does not disclose any violation of constitutional, statutory, or legal right of the applicant. The application is therefore liable to be dismissed at the threshold. b) It is contended that no cause of action has accrued in favour of the applicant. He lacks locus standi to challenge the impugned notifications, which were issued strictly in accordance with the applicable rules and procedure.

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c) The applicant has not approached this Tribunal with clean hands and has misrepresented material facts, particularly with regard to the nature of the impugned seniority list and the promotion process. The application suffers from suppressio veri and suggestio falsi and is liable to dismissal on this ground alone. d) The respondents further submit that Notification dated 22.11.2016 was only a tentative seniority list issued for inviting objections, and therefore, no enforceable right accrued to the applicant on its basis. A challenge to such a tentative list is premature and legally untenable. e) The applicant was engaged as a ReT Teacher on 10.11.2003 and was regularised as RRET/Teacher on 09.11.2008. In the year 2014, a Departmental Promotion Committee (DPC) was convened and eligible teachers were promoted as Masters vide order dated 11.02.2014. The applicant was not eligible at that stage, and therefore, his name did not figure in the promotion list.

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f) Subsequently, vide Notification dated 22.11.2016, a seniority list was issued only for the purpose of calling objections. No final promotion was effected pursuant to the said notification. g) Vide Order No. 137-DSEJ of 2017 dated 28.02.2017, only those teachers who had already been promoted as Masters in the year 2014 were adjusted against available posts. The applicant was never promoted in 2014 and thus could not be adjusted under the said order. h) The respondents further submit that a fresh DPC meeting was conducted on 11.03.2024, and thereafter, district-wise promotions were granted. In District Jammu, 294 teachers were promoted as Masters vide Order No. 199-DSEJ of 2024 dated 21.06.2024. i) It is specifically averred that the last candidate promoted in District Jammu had a date of appointment as Teacher of 30.11.2005, whereas the applicant was regularised only on 09.11.2008, and therefore, he does not fall within the zone of consideration even as per the latest promotion exercise.

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j) The respondents submit that the entire promotion process has been carried out strictly in accordance with rules, seniority, and availability of posts, and the applicant has not been discriminated against in any manner. k) In view of the above facts and circumstances, it is humbly prayed that this Hon’ble Tribunal may be pleased to dismiss the Transfer Application, being devoid of merit, misconceived, and not maintainable, in the interest of justice.

5. Heard learned counsel for the parties and perused the material available on record.

6. The present Transfer Application arises out of SWP No. 698/2017, originally filed before the Hon’ble High Court of Jammu & Kashmir, and transferred to this Tribunal upon its constitution, where it has been registered as T.A. No. 192/2025. The applicant seeks quashing of Notification dated 22.11.2016 and Order dated 28.02.2017, whereby his juniors were promoted/adjusted as Masters, and further seeks a direction for his own promotion with all consequential benefits.

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7. The applicant was engaged as a Rehbar-e-Taleem (ReT) teacher on 10.11.2003 and stood regularised as Teacher w.e.f. 09.11.2008. He possesses higher academic qualifications, namely M.Sc. (Mathematics) and M.Ed., and claims seniority over the private respondents on the basis of age, all having been appointed on the same date.

8. The grievance of the applicant is that despite being senior in age, his name did not figure in the seniority list issued on 22.11.2016, nor was he adjusted/promoted under Order dated 28.02.2017, whereas private respondents, allegedly junior to him, were promoted and adjusted as Masters.

9. The respondents, on the other hand, contend that the list dated 22.11.2016 was merely a tentative seniority list issued for calling objections, that promotions to the post of Master were conducted earlier in 2014, and that the applicant was not within the zone of consideration at that time. It is further submitted that subsequent promotions have been made in 2024 strictly in accordance with seniority and availability of posts, wherein the applicant again did not fall within the cut-off.

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10. The controversy in the present case gives rise to the following issues:  Whether the applicant had a vested or enforceable right to promotion as Master on the basis of the tentative seniority list dated 22.11.2016;  Whether the adjustment order dated 28.02.2017 suffers from arbitrariness or illegality; and  Whether the applicant is entitled to any relief at this stage.

11. It is a settled principle of service jurisprudence that no employee has a fundamental or vested right to promotion, but only a right to be considered for promotion in accordance with the applicable rules and seniority. Promotion depends upon multiple factors, including eligibility, seniority, availability of vacancies, and the zone of consideration.

12. The Notification dated 22.11.2016, relied upon heavily by the applicant, is admittedly a tentative seniority list issued for the purpose of inviting objections. Such a tentative list does not confer any enforceable right, nor can it be made the sole basis for claiming promotion. Courts and Tribunals have consistently held that tentative by HARSHIT YADAV HARSHIT YADAV

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lists are preparatory in nature and cannot be treated as final determinations of seniority.

13. The adjustment order dated 28.02.2017 clearly reveals that it pertained only to those teachers who had already been promoted as Masters in the year 2014 and were being adjusted against available posts. The applicant was not promoted in the year 2014 and, therefore, could not have been adjusted under the said order. No material has been placed on record to show that the applicant was eligible or within the zone of consideration at that time.

14. Much emphasis has been laid by the applicant on the principle that where appointments are made on the same date, seniority is to be determined by age. While the said principle is well recognised, it becomes relevant only when seniority is determinative of promotion within an otherwise eligible zone. Seniority by itself does not override the requirement of eligibility, cut-off dates, and vacancy position as determined by the competent authority through a DPC.

15. The respondents have placed on record that a fresh DPC was convened in March 2024, followed by promotion of 294 teachers in by HARSHIT YADAV HARSHIT YADAV

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District Jammu vide Order dated 21.06.2024, and that the last promoted candidate had a date of appointment earlier than that of the applicant. This assertion has not been effectively rebutted by the applicant.

16. The Tribunal finds no material to conclude that the promotion process was vitiated by mala fides, arbitrariness, or violation of statutory rules. Mere non-promotion, howsoever unfortunate, does not ipso facto amount to discrimination, unless it is shown that the action of the respondents was contrary to rules or was actuated by extraneous considerations.

17. At the same time, it cannot be ignored that the applicant has rendered long years of service and has been pursuing his grievance since 2017. Service matters require not only legality but also administrative fairness and transparency. While no mandamus for promotion can be issued in the present facts, the applicant cannot be denied the right of proper consideration in future.

18. In view of the aforesaid discussion, this Tribunal arrives at the following conclusions:

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a) The applicant has failed to establish any legal infirmity in the Notification dated 22.11.2016 and Order dated 28.02.2017 warranting their quashment; b) The applicant is not entitled to retrospective promotion or adjustment as Master on the basis of the impugned orders; c) However, the applicant has a legitimate right to consideration for promotion strictly in accordance with rules, seniority, and availability of vacancies.

19. Accordingly, the Transfer Application is disposed of with the following directions: a) The impugned Notification dated 22.11.2016 and Order dated 28.02.2017 are upheld; b) The respondents shall ensure that the case of the applicant is considered in the next Departmental Promotion Committee, as and when convened, strictly in accordance with the applicable rules and his seniority position, if he is otherwise eligible; by HARSHIT YADAV HARSHIT YADAV

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c) Such consideration shall be undertaken within a period of three months from the date a vacancy arises and the DPC is convened; d) No order as to costs.

20. It is clarified that this Tribunal has not expressed any opinion on the merits of the applicant’s future claim, which shall be considered independently by the competent authority in accordance with law.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit/

by HARSHIT YADAV HARSHIT YADAV