Satish Kumar vs REVENUE DEPARTMENT on 29 October 2026

Order

No. 174-FC (Rev) of dated 28.03.2023 by virtue of which the substantive promotion granted to the applicants on the basis of recommendations of Departmental Promotion Committee against the post of Head Assistant w.e.f. 14.06.2006 has been withdrawn and the applicants instead have been ordered to be promoted as Head Assistant w.e.f. 16.03.2014 and 18.02.2017 respectively monetarily instead of 14.06.2006; iii. quash

Order

No. 174-FC (Rev) of dated 28.03.2023 by virtue of which the substantive promotion granted to the applicants pursuant to the recommendation of Departmental Promotion Committee against the post of Section Officer w.e.f. 07.03.2013 has been withdrawn and the applicants have been ordered to be promoted as Section Officers w.e.f. 16.03.2017 and 18.02.2020 respectively, instead of 07.03.2013; iv. restrain the respondents from effecting any recovery from the applicants on the basis of impugned order; ANY other order or direction which this Hon'ble Court may deem fit or proper in the facts and circumstances of the case.”

2. The applicants are assailing Order No. 174-FC(Rev) of 2023 dated 28.03.2023, whereby their substantive promotion as Head Assistants with effect from 14.06.2006 and their subsequent substantive promotion as Section Officers with effect from 07.03.2013 have been retrospectively disturbed. By virtue of the

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impugned order, the applicants have instead been treated as entitled to promotion as Head Assistants only from the respective dates on which they attained the age of 50 years and, consequently, their promotion as Section Officers has also been deferred on the premise that they could acquire the requisite substantive service as Head Assistants only thereafter. The applicants have also prayed for protection against any recovery arising out of the impugned order.

3. At the outset, it is appropriate to notice that when the Original Application came up for consideration, this Tribunal, vide interim order dated 28.04.2023, stayed the operation of the impugned Order No. 174-FC(Rev) of 2023 dated 28.03.2023. The said interim order has remained operative. Consequently, the applicants have continued to enjoy the benefit of the earlier orders of promotion during the pendency of the present proceedings.The facts, insofar as they are necessary for adjudication of the controversy, are that Applicant No.1 was appointed as Junior Assistant on 21.12.1984, whereas Applicant No.2 was appointed as Junior Assistant on 16.07.1984. Both the applicants were subsequently promoted as Senior Assistants on 21.02.1997. Their next promotional avenue was the post of Head Assistant/Superintendent under the Jammu & Kashmir Revenue (Subordinate) Service Recruitment Rules, 1973.

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4. The applicants have relied upon the provisions of the Recruitment Rules of 1973, particularly Rules 5, 7 and 11, to contend that the Secretariat Assistant Examination/Training was required to be undergone during the period of probation and that the respondents were under an obligation to provide the applicants an opportunity to undergo the prescribed examination/training. It is their specific case that, despite their seniority and despite representations made by them, the respondents failed to depute them for the requisite training/examination. The applicants thereafter completed their probation as Senior Assistants and were confirmed, and they contend that the consequences of the respondents' own failure could not subsequently be fastened upon them.

5. The applicants were thereafter placed as In-charge Head Assistants in their own pay and grade vide order dated 21.08.2007, subject to clearance by the Departmental Promotion Committee. The matter was subsequently placed before the duly constituted Departmental Promotion Committee, which, in its meeting held on 04.02.2009, considered the cases of the applicants and recommended their regularization/confirmation as Head Assistants with effect from 14.06.2006. The recommendation of the DPC was accepted by the competent authority and Order No. FC(A)17 of 2009 dated 04.02.2009 came

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to be issued, whereby the applicants were formally promoted as Head Assistants with retrospective effect from 14.06.2006.

6. The aforesaid order of promotion was not an order passed on the basis of any misrepresentation on the part of the applicants. It was an order passed by the competent departmental authority upon consideration of the applicants' cases by the duly constituted Departmental Promotion Committee. The respondents thereafter issued the final seniority list of Head Assistants vide Order No. FC(Adm)203 of 2012 dated 07.11.2012, in which the applicants were shown at the relevant positions and their date of promotion as Head Assistants was reflected as 14.06.2006. Thus, the promotion granted to the applicants was not only acted upon but was also recognized in the subsequent service record maintained by the department.

7. It is thereafter an admitted position that the cases of the applicants were considered for promotion to the post of Section Officer. In the DPC meeting held on 02.01.2013, certain employees junior to the applicants were recommended for substantive promotion as Section Officers, whereas the applicants were placed as In-charge Section Officers in their own pay and grade. The applicants challenged the said action before the Hon'ble High Court by filing SWP No. 662/2013.

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8. During the pendency of the said proceedings, the case of the applicants was again considered by the Departmental Promotion Committee in its meeting held on 24.10.2018. The DPC considered the claim of the applicants for retrospective substantive promotion as Section Officers with effect from 07.03.2013 and also took note of the fact that the employees who had been promoted as Section Officers and were junior to the applicants had no objection to the applicants being placed above them retrospectively. The DPC accordingly recommended regularization of the applicants as Section Officers with effect from 07.03.2013, subject to withdrawal of the pending writ petition.

9. Acting upon the said recommendation, the applicants withdrew SWP No. 662/2013 on 29.11.2018. Thereafter, the competent authority issued Order No. FC(Adm)276 of 2018 dated 06.12.2018, whereby the applicants were substantively promoted as Section Officers with retrospective effect from 07.03.2013. Thus, the applicants' promotion as Section Officers was also the result of a conscious decision taken by the competent authority upon consideration by the duly constituted DPC.

10. The controversy was revived only when the department sought inclusion of the applicants' names in the seniority list of Section Officers in the General Administration Department. The

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respondents' own case is that the Revenue Department, vide communication dated 25.08.2021, forwarded the case of the applicants to the General Administration Department. The General Administration Department, in turn, vide communication dated 10.03.2022, sought clarification as to how the applicants had been promoted as Head Assistants without passing the Secretariat Assistant Training Course and before attaining the age of 50 years and why their promotion had been regularized from 14.06.2006 when their placement as In-charge Head Assistants was of a later date.

11. It is significant that the aforesaid communication dated 10.03.2022 was not addressed to the applicants. No show-cause notice was issued to them, nor were they called upon to explain the circumstances in which their promotion had been granted in the year 2009 and subsequently acted upon for several years. Without associating the applicants with the process of reconsideration and without affording them an opportunity of hearing, the respondents proceeded to pass the impugned Order No. 174-FC(Rev) of 2023 dated 28.03.2023, whereby the applicants' promotion as Head Assistants from 14.06.2006 and as Section Officers from 07.03.2013 was disturbed.

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12. The respondents have sought to justify the impugned order by contending that the applicants were not eligible for promotion as Head Assistants because they had neither passed the Secretariat Assistant Examination nor attained the age of 50 years at the relevant time. Reliance has been placed upon SRO 471 of 1973 and SRO 272 dated 19.09.2008. According to the respondents, the promotion granted to the applicants was contrary to the Recruitment Rules and the impugned order merely corrected an illegality committed earlier.

13. We have given our thoughtful consideration to the rival submissions. There can be no dispute with the general proposition that a statutory Recruitment Rule cannot be overridden by an administrative order. An employee cannot claim an entitlement contrary to the governing statutory rules merely because an earlier administrative order had conferred such benefit. However, the facts of the present case have to be examined in their entirety and not by isolating the alleged absence of the Secretariat Assistant Examination from the chain of departmental decisions which followed thereafter.

14. In the present case, the applicants were not responsible for preparing or interpreting the Recruitment Rules. They were employees of the department. Their promotional cases were

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required to be considered by the competent authority in accordance with the applicable rules. Their cases were in fact considered by a duly constituted Departmental Promotion Committee, and the DPC recommended their regularization as Head Assistants with effect from 14.06.2006. The competent authority accepted the recommendation and issued a formal order of promotion. The department thereafter itself issued the final seniority list showing their date of promotion as 14.06.2006.

15. If the applicants were wholly and ex facie ineligible for promotion as Head Assistants, it was incumbent upon the department to explain how the duly constituted DPC recommended their promotion, why the competent authority accepted the recommendation, why their promotion was reflected in the final seniority list issued in 2012 and, most importantly, why the department itself continued to treat them as regularly promoted Head Assistants for several years thereafter. The respondents have not placed on record any material showing that the applicants had obtained the said promotion by fraud, misrepresentation or concealment of any material fact.

16. The applicants' case regarding the Secretariat Assistant Examination also cannot be brushed aside. The applicants have specifically pleaded that they were not deputed for the requisite

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examination/training despite their seniority and despite representations made by them. They have relied upon Rule 7 of the Recruitment Rules of 1973, which contemplated departmental examination during the period of probation, and have contended that the failure to provide such opportunity was attributable to the respondents themselves. Whether every aspect of the applicants' interpretation of the Rules is ultimately correct or not, the fact remains that the issue involves the conduct and omissions of the department itself and cannot be used, without examination, to place the entire burden upon the employees.

17. There is another important aspect which cannot be lost sight of. The applicants were promoted as Head Assistants retrospectively with effect from 14.06.2006 in the year 2009. They thereafter continued to serve in the promotional post. When their cases were considered for promotion as Section Officers in 2013, the department did not cancel their status as Head Assistants. Rather, the applicants were placed as In-charge Section Officers. Subsequently, in 2018, the matter was again considered by the DPC, which recommended their substantive promotion as Section Officers with effect from 07.03.2013. Upon withdrawal of the pending litigation by the applicants, the competent authority issued the formal order of promotion on 06.12.2018.

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18. The sequence of events demonstrates that the applicants' promotional status was the result of conscious decisions taken by the competent authorities at different stages and not a solitary accidental or clerical mistake. The respondents cannot, after having themselves repeatedly considered, approved and acted upon the applicants' promotions, simply characterize the entire process as an illegality and withdraw the benefits retrospectively without explaining the circumstances in which the successive departmental authorities had arrived at those decisions.

19. The principle of finality and certainty in service matters assumes particular significance where an employee has been granted promotion by a competent authority, has served on the promotional post for a long period, has been shown as holding that post in official seniority records and has subsequently been promoted further on the basis of that very status. The administration undoubtedly possesses the power to correct an illegal order, but such power has to be exercised within the bounds of fairness, reasonableness and the applicable service law.

20. In the present case, the impugned order suffers from a fundamental procedural infirmity inasmuch as the applicants were not heard before their existing promotional status was withdrawn. The respondents were not merely correcting an

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arithmetical error. They were reopening promotions granted more than a decade earlier and altering the applicants' seniority, pay and promotional position.

21. The communication dated 10.03.2022 issued by the General Administration Department itself demonstrates that the matter was not free from doubt. Clarification was specifically sought as to the circumstances in which the applicants had been promoted without passing the examination and before attaining the age of 50 years. Once the authority itself considered clarification necessary, elementary fairness required that the persons whose service rights were directly involved should also have been heard before an adverse conclusion was reached.

22. We are, therefore, of the considered view that the impugned order cannot be sustained on the ground that it was passed in violation of the principles of natural justice. However, having regard to the entire factual matrix, we are also of the view that the matter does not end merely with setting aside the impugned order on technical grounds. The applicants had been granted substantive promotion as Head Assistants from 14.06.2006 and as Section Officers from 07.03.2013 pursuant to conscious decisions of the competent authorities, and the subsequent

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attempt to withdraw those promotions is itself unsustainable on the facts of the present case.

23. The applicants' case is further strengthened by the fact that the respondents have not alleged that the applicants had played any fraud, practiced misrepresentation or suppressed any material fact for obtaining the promotions. The promotions were granted on the basis of departmental DPC recommendations and formal orders of the competent authority. The applicants did not assume the promotional posts on their own. They acted pursuant to orders passed by the department. It would, therefore, be inequitable to place the entire consequence of an alleged departmental error upon the applicants after such a prolonged period.

24. The respondents have also not explained satisfactorily why the promotion granted to the applicants as Head Assistants with effect from 14.06.2006 was accepted for years and reflected in the final seniority list of 2012, nor why the subsequent DPC of 24.10.2018 recommended their substantive promotion as Section Officers from 07.03.2013. The fact that the applicants withdrew their pending writ petition pursuant to the recommendation of the DPC is also a relevant circumstance. Having acted upon the representation of the administration and withdrawn their writ

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petition, the applicants were thereafter granted substantive promotion as Section Officers with effect from 07.03.2013.

25. The respondents cannot approbate and reprobate. Having required the applicants to withdraw their pending litigation on the basis of a departmental recommendation and having thereafter issued the formal promotion order, the administration cannot, after several years, reopen the very foundation of that decision without any allegation of fraud or misrepresentation on the part of the applicants. Such action would undermine certainty and fairness in public employment.

26. We also find that the impugned order has serious monetary consequences. By reducing the date of promotion as Head Assistant and consequently deferring the date of promotion as Section Officer, the order necessarily seeks to disturb the pay and monetary benefits drawn by the applicants over the years. The applicants had actually discharged duties against the promotional posts pursuant to formal orders issued by the department. There is no allegation that they obtained the salary by fraud or misrepresentation. In these circumstances, the attempt to effect recovery from them would be manifestly unjust and inequitable.

27. The long period over which the payments were made, the absence of fraud or misrepresentation, the fact that the applicants

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actually performed the duties attached to the higher posts and the fact that the payments were made pursuant to formal departmental orders are all relevant circumstances. The applicants cannot be made to suffer financially for an error, if any, committed by the administration itself.

28. It is also necessary to take note of the interim order dated 28.04.2023 passed by this Tribunal, whereby operation of the impugned order dated 28.03.2023 was stayed. Thus, the impugned order has not operated against the applicants during the pendency of the present Original Application. The applicants have continued to remain protected by the said interim order. Since we have now examined the matter finally and have found the impugned order unsustainable, the interim protection granted on 28.04.2023 deserves to merge into the final relief and the benefit already protected thereunder is required to be continued permanently.

29. On an overall consideration of the matter, we are satisfied that the applicants have made out a case for interference. The promotion of the applicants as Head Assistants with effect from 14.06.2006 was granted by the competent authority upon the recommendation of the DPC and was subsequently recognized in the departmental seniority list. Their promotion as Section

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Officers with effect from 07.03.2013 was again granted after consideration by the DPC in 2018 and upon the applicants withdrawing their pending litigation pursuant to the said recommendation. There is no allegation of fraud or misrepresentation against the applicants. The subsequent withdrawal of these benefits after several years, without notice or hearing and without satisfactorily explaining the earlier departmental decisions, cannot be sustained.

30. Accordingly, the Original Application is allowed. Order No. 174-FC(Rev) of 2023 dated 28.03.2023 is hereby quashed and set aside. The earlier orders whereby the applicants were promoted as Head Assistants with effect from 14.06.2006 and as Section Officers with effect from 07.03.2013 shall stand restored and shall continue to operate.

31. The respondents are directed to maintain the applicants' service and seniority position on the basis of their promotion as Head Assistants with effect from 14.06.2006 and as Section Officers with effect from 07.03.2013, in accordance with the earlier orders issued by the competent authority. All consequential service benefits flowing from the said dates shall be worked out in accordance with law.

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32. It is further directed that any amount, if already recovered pursuant to the impugned order during any period not covered by the interim protection, shall be refunded to the concerned applicant within a period of three months from the date of receipt of a certified copy of this order.

(DIWAKAR SINGH)

(RAM MOHAN JOHRI) Judicial Member Administrative Member RS Pathania Steno-D

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