zubaida shawl vs Forest Department on 28 October 2026

1. Union Territory of Jammu and Kashmir, through Commissioner/Secretary to Government, Forest Department, Civil Secretariat, Srinagar/Jammu.

2. Principal Chief Conservator of Forests, Srinagar.

3. Director, State Forest Research Institute, Srinagar.

4. Divisional Forest Officer, Research Division, Srinagar. ….Respondents By Advocate :- Mr. Rais Ud Din Ganaie, DAG

O R D E R (FINAL) MR. PRASANT KUMAR, MEMBER(Admn.)

01. Through the medium of the present Original Application, the applicant has called in question Order No. JKFRI-11

giv.in Reason: I am the author of this document Location:

Devendra Tripathi of 2023-24 dated 07.06.2023, issued by the Principal Chief Conservator of Forests / Director, JK Forest Research Institute, Jammu / Srinagar, in terms of which her claim for regularization / confirmation and consequential benefits in respect of the post of Senior Lab Assistant has been rejected. The applicant seeks a direction to the respondents to consider her claim in accordance with the applicable Recruitment Rules, including SRO 335 of 1991, and to extend the consequential service and pensionary benefits admissible under the rules. Accordingly, the applicant has prayed for the following reliefs –

(i) An order or direction, seeking quashment of Order No. JKFRI-11 of 2023-24, dated 7.6.2023 by virtue of which the claim of the applicant has been turned down.

(ii) An order or direction, directing the respondents to regularize the services of the applicant as Senior Lab Assistant w.e.f. 16.7.2014 and release all the consequential benefits attached to the post of Senior Lab. Assistant in her favour without any further delay.

(iii) An order or direction, directing the respondents to explain the reason that why the services of the giv.in Reason: I am the author of this document Location:

Devendra Tripathi applicant against the post of Senior Lab. Assistant have not been regularised when the applicant was all along entitled for the same and was eligible in terms of the recruitment rules notified in terms of SRO 335 of 1991.

(iv) Any other order or direction which the Hon’hle Court may deem fit and proper in the given facts and circumstances of this case may also be issued in favour of the applicant and against the respondents, the same would be in consonance with law and justice.

02. In addition of the above, the applicant has also prayed for the following interim reliefs –

(i) Till the final disposal of OA, it is therefore humbly prayed that the Hon’ble Tribunal, the Hon’ble Court may be kind enough to direct the respondents to regularize the services of the applicant against the post of Senior Lab. Assistant strictly in accordance with the recruitment rules from the date the applicant was entitled for the same and the applicant was placed on in charge basis with all consequential benefits. Further the Hon’ble Court may be kind enough to stay the operation of impugned Order No. JKFRI-11 of 2023-24 dated 7.6.2023.

(ii) Any other order or direction which the Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case be also passed in favour giv.in Reason: I am the author of this document Location:

Devendra Tripathi of the applicant and against the respondents.

03. The applicant’s case, in brief, is that she was appointed as a Junior Lab Assistant in the Forest Department in the year 1989. She was subsequently promoted to the post of Lab Assistant in the year 2003 vide Forest Order No. 218 of 2003 dated 23.07.2003. Thereafter, she was placed against the post of Senior Lab Assistant on an in-charge / stop-gap arrangement basis in her own pay and grade vide Order No. 57 of 2014 dated 16.07.2014.

04. It is submitted that the applicant continued to discharge the duties attached to the post of Senior Lab. Assistant until her superannuation on 31.05.2021. According to her, despite the passage of time and the representations made by her, her claim for regularization / confirmation against the said post was not settled in accordance with the applicable rules. She maintains that she fulfilled the relevant eligibility requirements and that her case was required to be considered under the applicable Recruitment Rules, including SRO 335 of 1991. She giv.in Reason: I am the author of this document Location:

Devendra Tripathi further submits that her pension was fixed on the basis of her last pay drawn, i.e. she reaped the benefits of promotion but confirmation of promotion was never granted. Even in her Pension Payment Order (PPO), the applicant has been treated as Senior Lab. Assistant for all practical purposes minus the confirmation on the post.

05. The applicant further relies upon the departmental correspondence with respect to her case and submits that the concerned authorities had earlier recommended consideration of her claim. However, the matter was not taken to its logical conclusion, and the applicant was ultimately informed, through the impugned order dated 07.06.2023, that her claim was devoid of merit.

06. The applicant contends that the impugned order does not properly take into account her service history, the circumstances in which she was placed against the higher post, the nature of the duties discharged by her and the applicable rules. She also submits that the decision has implications for her consequential service and pensionary giv.in Reason: I am the author of this document Location:

Devendra Tripathi benefits, particularly as she had continued to work against the post of Senior Lab Assistant before her retirement.

07. The applicant has also referred to the earlier proceedings in O.A. No. 418/2022, wherein this Tribunal had directed the respondents to consider her case as a representation and pass a reasoned and speaking order within the stipulated period. According to the applicant, the impugned order was passed without adequately addressing the relevant facts and rules and, therefore, warrants interference by this Tribunal.

08. On the aforesaid grounds, the applicant seeks setting aside of the impugned order dated 07.06.2023 and consideration of her claim for regularisation/confirmation against the post of Senior Lab. Assistant, with effect from 16.07.2014, along with consequential service and pensionary benefits.

09. Per Contra, the respondent’s principal objection is that the applicant does not possess an enforceable right to regularisation or confirmation against the post of Senior giv.in Reason: I am the author of this document Location:

Devendra Tripathi

Lab Assistant merely because she was placed against the said post on an in-charge/stop-gap arrangement basis.

10. The respondents submit that the order dated 16.07.2014, whereby the applicant was placed against the post of Senior Lab. Assistant, was not issued by a competent authority in accordance with the governing rules. It is stated that the said order was subsequently declared null and void by the Principal Chief Conservator of Forests vide communication dated 29.09.2014, on the ground that the authority issuing the order lacked the requisite competence and that the arrangement was irregular. But the order impugned has been passed with complete application of mind to the facts and circumstances of the case. The Ld. Counsel for the respondents also submitted that he would place more grounds at the time of the arguments.

11. The respondents further rely upon Government Order No. 298-FST of 2013 dated 25.07.2013 (Annexure A-9 page 37 of the paper book) and the applicable recruitment giv.in Reason: I am the author of this document Location:

Devendra Tripathi framework. According to them, the applicant’s claim does not fall within the ambit of SRO 335 of 1991 in the manner asserted by her, and the arrangement made in her favour cannot, by itself, confer a right to regularisation or promotion against the higher post.

12. It is also the respondents’ case that the applicant’s claim was considered by the competent authority in the light of the relevant facts, rules and departmental record. The matter was examined following the earlier order passed by this Tribunal in O.A. No. 418/2022, and the respondents ultimately concluded that the applicant’s claim lacked merit. On this basis, the impugned order dated 07.06.2023 was issued.

13. The respondents maintain that the impugned order is lawful and does not warrant interference. They accordingly seek dismissal of the Original Application.

14. During the oral arguments, the Ld. Counsel for the respondents submitted that the applicant was appointed and posted in the Forest Department (Territorial). She was giv.in Reason: I am the author of this document Location:

Devendra Tripathi

subsequently deputed to the State Forest Research Institute (SFRI) as Lab. Assistant. The Ld. Counsel for the respondents further submits that the SFRI is an Autonomous Body registered under the Societies Act and there is a Governing Body to govern the affairs of the SFRI. Moreover, the SFRI does not have staff of its own and the personnel are on deputation from the Forest Department. The promotion of the applicant to the post of Senior Lab. Assistant in her Own Pay and Grade with Charge Allowance was illegal as it was passed by an incompetent authority without convening and recommendation of a Departmental Promotion Committee (DPC) but on the recommendation of the DFO, Research Srinagar and hence the order passed by an incompetent authority promoting the applicant to the post of Senior Lab. Assistant will not pass the test of law. In this connection, he drew attention to the communication no. PCCF/NG/317/2977-78 dated 29.8.2014 (Annexure A-7, page 35 of the paper book) from Principal Chief giv.in Reason: I am the author of this document Location:

Devendra Tripathi

Conservator of Forests, J&K to The Director, State Forest Research Institute, J&K, wherein it has been mentioned that “Besides, SFRI has no Recruitment Rules as well as sanctioned staff strength of its own. The staff posted in the State Forest Research Institute is borne in the establishment of the Forest Department and their seniority, lien, promotion prospects etc. are being manned by the Forest Department. Therefore, it is beyond your competence to issue promotion orders in favour of the Forest borne officials working against the sanctioned strength post of the Forest Department in your organization. So your order No. 57 of 2014-15 dated 16.7.2014 also lacks competence and is irregular in nature which can create legal problems for this department as well. Vide Government Order 298 FSt of 2013 dated 25.7.2013 a committee has been constituted to propose the appropriate structure of SFRI which has not been done so far. In view of the above position, you are therefore requested to take immediate necessary action on giv.in Reason: I am the author of this document Location:

Devendra Tripathi the aforesaid orders forthwith under intimation to this office.”

15. Per contra, the Ld. Counsel for the applicant, during the oral arguments submitted that the said communication of 29.8.2014 is an effort to unsettle the settled claims of poor employees. He argued that this communication is arbitrary, illegal and unconstitutional and has no applicability in the instant case.

16. We have considered the pleadings on record and the rival submissions advanced on behalf of the parties. The material available has been examined with particular reference to the applicant’s service history, the circumstances in which she was placed against the post of Senior Lab Assistant, the relevant departmental orders and correspondence, the earlier directions of this Tribunal, and the impugned order dated 07.06.2023.

17. The records before us indicate that the applicant entered service as a Junior Lab Boy in 1989 in the Forest Department, upgraded to senior grade in 1991 and was giv.in Reason: I am the author of this document Location:

Devendra Tripathi subsequently promoted to the post of Lab Assistant in the year 2003. Thereafter, vide Order No. 57 of 2014 dated 16.07.2014, issued by the Director, State Forest Research Institute; she was placed against the post of Senior Lab Assistant on an in-charge/stop-gap basis in her own pay and grade with charge allowance. She continued in that arrangement until her superannuation on 31.05.2021.

18. It is equally evident from the record that the respondent no. 2, vide communication dated 29.9.2014, addressed to respondent no. 3, subsequently questioned the competence and validity of the order dated 16.07.2014 and treated the arrangement (promoting the applicant as Senior Lab. Assistant on stop gap arrangement in her own pay and grade with charge allowance) as irregular. The impugned order dated 07.06.2023 proceeds on the premise that the applicant’s claim for regularization / confirmation against the higher post is not sustainable under the applicable rules.

19. It is settled that an employee who has worked against a giv.in Reason: I am the author of this document Location:

Devendra Tripathi higher post on an in-charge or stop-gap arrangement basis does not, merely by reason of having discharged the duties of the higher post, acquire an automatic right to regularisation on that post upon promotion. Any such claim has to be examined in accordance with the applicable Recruitment Rules, the prescribed eligibility conditions and procedure, seniority, the sanctioned strength and availability of vacancies, and the competence of the authority concerned.

20. At the same time, where an employee’s claim has been directed to be considered by a judicial forum, the competent authority is required to undertake a meaningful consideration of the relevant facts and applicable rules and to pass a reasoned order. Such consideration cannot be reduced to a mere reiteration of an earlier decision without addressing the material circumstances of the individual case.

21. In the present matter, the applicant’s claim is not confined to the mere fact that the applicant worked against the giv.in Reason: I am the author of this document Location:

Devendra Tripathi higher post. She relies upon her service history, the order placing her against the higher post of Senior Lab. Assistant, the departmental correspondence concerning her case, and the provisions of SRO 335 of 1991. The respondents, on the other hand, question the validity of the initial arrangement and dispute the applicant’s entitlement under the applicable rules.

22. The issue, therefore, requires consideration of the applicant’s claim under the relevant Recruitment Rules, including SRO 335 of 1991, in the context of her eligibility, seniority, the nature of the post, the applicable service requirements and the availability of vacancies in the relevant cadre/department. Such consideration must also address the effect, if any, of the earlier in-charge / stop-gap arrangement and the subsequent departmental orders concerning that arrangement.

23. We are conscious that the applicant retired from service on 31.05.2021. Her retirement does not, by itself, establish an entitlement to regularisation or promotion. Equally, it giv.in Reason: I am the author of this document Location:

Devendra Tripathi does not absolve the respondents of the obligation to decide a claim which is otherwise required to be considered under the applicable rules and the earlier directions of this Tribunal. The applicant’s claim must be examined on its own merits, keeping in view the relevant rules and the factual circumstances of the case.

24. The operative portion of the earlier order passed by this Tribunal in O.A. No. 418/2022, and as quoted in the impugned order dated 7.6.2023, reads “In the light of the limited prayer made by the learned counsel for the applicant, the respondents are directed to consider the case of the applicant as per law treating the OA as representation ignoring the delay part, within… weeks from today by passing a reasoned and speaking order and communicate the decision to the applicant”. The said order did not, by itself, confer regularisation or promotion upon the applicant, nor did it finally determine the merits of her claim. The present exercise must, therefore, be undertaken in accordance with the applicable rules and the giv.in Reason: I am the author of this document Location:

Devendra Tripathi directions issued herein.

25. Schedule II of the Jammu and Kashmir Forest (Subordinate) Service Recruitment Rules, 1991 (SRO 335 dated 28.11.1991), inter alia, refers to method of recruitment including to the post of Senior Lab. Assistant and is summarized as below – Class / Category Designation Method of recruitment V

(v) Senior Lab. Asstt. By promotion from Class VII item (iii) with 5 years service in that class VII

(iii) Lab. Asstt. By promotion from Class IX category ‘A’ (ii) having passed Matric with Science subjects and having five years service in that category. If no departmental candidate is available then the posts will be filled by direct recruitment IX

(ii) Jr. Lab. Asstt. By promotion from Class XI item (i) having 5 years service in that class. XI

(i) Sr. Lab. Attendant By promotion from Class XII category ‘B’ from amongst Matriculates having 5 years experience in that category. XII (B) Lab. Attendant By direct recruitment

26. In the instant case the applicant was promoted to the post of Lab. Assistant in the year 2003. As per SRO 335 of 1991, she had obtained eligibility for consideration for promotion to the next higher post of Senior Lab. Assistant after completion of 5 years subject to her seniority, availability of posts etc. In the impugned order the respondents have mentioned “The O/o Pr. CCF, J&K, giv.in Reason: I am the author of this document Location:

Devendra Tripathi

vide communication No. PCCF/NG/317/3835-36 dated 14.2.2016 asked for service books and other relevant documents of various categories of posts including the applicant for processing their promotion cases.” From perusal of the impugned order no specific reasons for rejection of the claim of the applicant comes forth as it refers to response filed in the OA 418 of 2022 “wherein the facts were elaborated in a threadbare manner and factual position was brought before the Hon’ble CAT Bench Srinagar.” It has further been mentioned that “the grievance of the official has already been addressed by the respondents vide letter no. PCCF/NG/317/2977-78 dated 29.9.2014 and does not seem to be relooked after considering the contents in the referred letter. The grievance of the applicant stands addressed by the competent authority to whom she has repeatedly represented”. The claim of the applicant has been rejected “Now while considering the case of the petitioner in light of the facts and rules in vogue and the reasons given giv.in Reason: I am the author of this document Location:

Devendra Tripathi herein above, the promotion of the petitioner (already declared null and void by the PCCF) is devoid of merits, hence rejected”. Clearly, from perusal of the records before us, it comes to the fore that the case of the applicant for promotion / regularization to the post of Senior Lab. Assistant has not been examined against the Recruitment Rules, her eligibility, seniority, availability of posts for her promotion etc. and was rejected.

27. Based on the above, we are of the view that the appropriate course in the instant case will be that the respondents reconsider the applicant’s claim for regularisation of her promotion in accordance with the applicable rules, including SRO 335 of 1991, subject to the prescribed eligibility conditions, seniority and availability of vacancies etc. in the relevant cadre / department. The respondents shall take into account the applicant’s service record, the order dated 16.07.2014, the subsequent departmental decision(s) / actions with respect to that order, the relevant correspondence and the giv.in Reason: I am the author of this document Location:

Devendra Tripathi applicable rules, and shall pass a reasoned and speaking order.

28. It is clarified that the direction for reconsideration does not amount to a declaration that the applicant is automatically entitled to regularisation of her impugned promotion on stop gap arrangement basis in her own pay and grade with charge allowance. The question of her entitlement shall be decided by the respondents in accordance with the rules and the facts of the case. The exercise must, however, be genuine, objective and supported by reasons addressing the material aspects of the applicant’s claim.

29. As regards the amounts already paid to the applicant on account of her having worked against the higher post, we are of the view that no recovery shall be made merely because, upon reconsideration, the respondents may conclude that the applicant is not entitled to regularisation or promotion. The applicant’s claim is being directed to be considered afresh, and the question of her substantive giv.in Reason: I am the author of this document Location:

Devendra Tripathi entitlement is distinct from the question of recovery of amounts already paid for the period during which she discharged duties against the higher post.

30. The protection against recovery shall not, however, preclude the respondents from re-fixing the applicant’s pension in accordance with the applicable rules, if such re- fixation is warranted upon consideration of her claim. The respondents shall be at liberty to undertake such exercise in accordance with law, while ensuring that no recovery of the amount already paid is effected contrary to the protection expressly granted by this order.

31. In view of the foregoing discussion, we find it appropriate to keep the impugned order dated 07.06.2023 in abeyance and direct reconsideration of the applicant’s claim in the manner indicated above. This course would ensure that the claim is examined under the applicable rules while preserving the respondents’ authority to determine eligibility and entitlement in accordance with law.

32. Accordingly, the Original Application is disposed of with giv.in Reason: I am the author of this document Location:

Devendra Tripathi the following directions: i. The impugned order, namely, JKFRI Order No. 11 of 2023- 24 dated 07.06.2023, shall remain in abeyance pending reconsideration of the applicant’s claim in terms of this order. ii. The respondents shall reconsider the applicant’s claim for regularisation and promotion to the post of Senior Lab. Assistant in accordance with the applicable Recruitment Rules, including SRO 335 of 1991, subject to fulfilment of the prescribed eligibility conditions, seniority and availability of vacancies in the relevant cadre/department. iii. While undertaking the aforesaid exercise, the respondents shall consider the applicant’s service record, the order dated 16.07.2014 placing her against the higher post on an in- charge / stop-gap arrangement basis in her own pay and grade with charge allowance, the subsequent departmental orders and correspondence concerning the said arrangement, and all other relevant facts and applicable rules. A reasoned and speaking order shall be passed within twelve weeks from the date of receipt of a certified copy of this order and a copy of the same shall be provided to the applicant within one week from the date of passing of such order. iv. In the event the respondents, upon such consideration, conclude that the applicant is not entitled to regularisation or promotion, no recovery shall be effected from her in giv.in Reason: I am the author of this document Location:

Devendra Tripathi respect of the amounts already paid to the applicant on account of her having worked against the higher post. v. Notwithstanding the protection against recovery granted above, the respondents shall be at liberty to re-fix the applicant’s pension in accordance with the applicable rules, if such re-fixation is warranted upon consideration of her claim. vi. It is clarified that the present directions do not confer an automatic right to regularisation or promotion upon the applicant. Her claim shall be decided on its own merits, in accordance with the applicable rules and the observations made herein.

33. There shall be no order as to costs.

34. Pending miscellaneous application(s), if any, shall also stand disposed of. Interim directions, if any, shall stand vacated.

35. The Registry shall consign the record to the Record Room after due compliance.

(PRASANT KUMAR) Member (Admn.) (JUSTICE RITU TAGORE) Member (Judl.)

28.10.2026 DEVENDRA TRIPATHI

giv.in Reason: I am the author of this document Location:

Devendra Tripathi