Jammu & Kashmir High Court - Srinagar Bench

Mohammad Ashraf Mir vs J&K State Forest Corporation on 6 May, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR
                                                  Reserved on: 30.04.2025
                                                  Pronounced on:06.05.2025

                           WP(C) No.1841/2019

MOHAMMAD ASHRAF MIR                                .. PETITIONER(S)
      Through: -     Mr. Zahoor Jan, Advocate.

Vs.

J&K STATE FOREST CORPORATION
AND OTHERS                                       ...RESPONDENT(S)
      Through: -     Ms. Maha Majeed, Assisting counsel vice
                     Mr. Mohsin-ul-Qadiri, Sr. AAG.

CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                              JUDGMENT

1) The petitioner, through the medium of present petition,

has sought a direction upon the respondents to promote him

as Block Manager from the date his promotion is due.

2) As per case of the petitioner, he is holding the

substantive post of Field Supervisor in J&K State Forest

Corporation. It has been submitted that as per Jammu and

Kashmir State Forest Corporation Employees (Condition of

Services) Amendment Regulations, 2010 (hereinafter for

short "the Regulations of 2010"), the next promotion of Field

Supervisors is to the post of Block Manager. As per the

Regulations of 2010, the posts of Block Managers are to be

filled up 40% by direct recruitment, 15% by promotion from

Field Supervisors who are graduates and having a minimum

of five years services as Field Supervisors and 45% by

promotion from Field Supervisors who are matriculates and

having a minimum eight years service as Field Supervisors.

According to the petitioner, he appeared in Bachelor of Arts

examination during Session February-March, 2018 and also

completed eight years of service as Field Supervisor and,

thus, became eligible for promotion to the next higher post

of Block Manager on both counts i.e. on account of being

graduate Field Supervisor and also on account of his

seniority.

3) It has been submitted that in the year 2017, the

respondent Corporation initiated a process for promoting

Field Supervisors to the posts of Block Managers and,

accordingly, APRs for the years 2014-15, 2015-16 and 2016-

17 as well as work and conduct, non-involvement and

integrity certificates of the eligible Field Supervisors, were

sought from all the Chief General Managers and General

Managers of the Corporation. It has been contended that the

petitioner is figuring at serial No.8 in graduate quota of Field

Supervisors of Kashmir Division. The aforesaid documents

in respect of the petitioner were also sought, which were duly

forwarded to the Chief Manager concerned.

4) It has been further submitted that the total cadre

strength of Block Managers is 500, out of which 479 posts

have been filled up and 21 posts are lying vacant. It is being

claimed by the petitioner that out of 479 posts of Block

Managers, 192 posts is the quota of direct recruitment, 72

posts is the quota of graduate Field Supervisors and 215

posts is the promotional quota. It is being claimed that

instead of 215 posts of Block Managers earmarked for

promotees, 321 posts have been filled up under the said

quota thereby exceeding 106 posts. Thus, according to the

petitioner, the respondent Corporation has violated the rules

governing the subject.

5) It has been contended that the petitioner despite being

graduate and being eligible has not been promoted to the

post of Block Manager in spite of availability of the posts in

the quota meant for graduate Field Supervisors whereas his

junior has been promoted in the said quota in terms of Order

No.393 of 2018 dated 03.12.2018, thereby discriminating

against him. On the basis of these contentions, the petitioner

has sought a direction upon the respondents to accord

promotion to him to the post of Block Manager from the date

it became due to him.

6) The petitioner has also filed a rejoinder affidavit, in

which it has been submitted that during pendency of the

petition, the respondent Corporation has issued Order

No.197 of 2023 dated 29.05.2023, whereby the petitioner

has been accorded promotion to the post of Block Manager

with effect from 26.04.2023 instead from the date it was due

to him as per the Regulations of 2010. It has been submitted

that the petitioner was due for promotion with effect from

26.06.2018 when he qualified Bachelor of Arts examination

or at least with effect from 18.08.2018 when, as per

seniority, he became eligible for promotion under

promotional quota.

7) The respondent Corporation has contested the writ

petition by filing a reply thereto. In its reply, the respondent

Corporation has submitted that the post of Block Manager

was filled up through DPC which was held on 11.04.2018

and at that time all the eligible Field Supervisors were

promoted in all categories after scrutinizing their eligibility

and other requisite documents. It has been submitted that

at the relevant time, the petitioner was not eligible for being

considered for promotion by then DPC. It has been

contended that the petitioner has no cause to approach this

Court by way of the writ petition as he is being considered

for promotion as Block Manager in the next DPC.

8) I have heard learned counsel for the parties and

perused record of the case.

9) The grievance of the petitioner is that he has been

granted promotion to the post of Block Manager with effect

from 16.04.2023 though promotion was due to him on

26.06.2018 when he had acquired the qualification of

graduation. It is further case of the petitioner that even as

per seniority, he was eligible for promotion on 18.08.2018 as

at that time, he had completed eight years of service as Field

Supervisor. Thus, the petitioner claims retrospective effect to

his promotion with effect from the date he had become

eligible to promotion to the post of Block Manager.

10) The criteria for promotion to the post of Block Manager

from the post of Field Supervisor is governed by the

Regulations of 2010, as noticed hereinbefore. The petitioner

is not claiming appointment to the post of Block Manager by

direct recruitment but he is claiming appointment to the said

post by promotion. There are two sources of promotion to the

post of Block Manager, as is clear from a perusal of the

Regulations of 2010. 15% of the posts of Block Manager are

to be filled up by promotion from Field Supervisors who are

graduates having five years of service whereas 45% of the

posts are to be filled up by promotion from Field Supervisors

who are matriculates having a minimum of eight years

service as Field Supervisors. The petitioner has placed on

record copy of communication dated 30.03.2019 addressed

by the respondent Corporation to the petitioner in answer to

his RTI query, according to which the total cadre strength of

Block Managers is 500 posts. As per the ratio given in the

Regulations of 2010, 40% of these posts i.e. 200 posts are to

be filled up by direct recruitment, 15% of the posts i.e., 75

posts are to be filled up by promotion from graduate Field

Supervisors whereas 45% of the posts i.e., 225 posts are to

be filled up by promotion from matriculate Field Supervisors.

11) The petitioner, as per his own case, acquired

qualification of graduation on 25.06.2018, as is clear from

the marks sheet placed on record by him. He claims that his

junior, Shri Nazir Ahmad Sheikh, was promoted in terms of

Order No.393 of 2018 dated 03.12.2018 and, therefore, the

respondent Corporation has discriminated against him. A

perusal of the order dated 03.12.2018 shows that the same

has been issued on the basis of the recommendations of the

DPC which was held on 11th April, 2018, meaning thereby

that the eligible graduate Field Supervisors and matriculate

Field Supervisors were considered by the DPC in the said

meeting and recommended for promotion to the post of

Block Manager.

12) Admittedly, the petitioner has acquired the

qualification of graduation on 25.06.2018, meaning thereby

at the time when the DPC was conducted, he was not a

graduate. As per the petitioner's own case, he had completed

eight years of service as Field Supervisor on 18.08.2018,

meaning thereby that even as a matriculate Field Supervisor,

he had not the requisite experience for being considered for

promotion on 11th April, 2018, when the DPC was

conducted. Therefore, on both counts, the petitioner was not

eligible for being promoted as Block Manager on the crucial

date when the DPC was conducted. Thus, the petitioner

cannot claim that he has been discriminated against when

his junior Shri Nazir Ahmad Sheikh was promoted to the

post of Block Manager, particularly when it is not the case

of the petitioner that Shri Nazir Ahmad Sheikh was not

eligible for promotion as Block Manager on the date when

the DPC was conducted.

13) The respondent Corporation has claimed that in the

next DPC, the petitioner was granted promotion to the post

of Block Manager in terms of Order No.197 of 2023 dated

29.05.2023 and in between no DPC was conducted. In fact,

it is not even the case of the petitioner that between 11th

April, 2018 upto 26th April, 2023, any DPC was conducted

by the respondent Corporation. During the intervening

period i.e. from 11th April, 2018 upto 26th April, 2026, the

petitioner had certainly acquired the eligibility on both

counts by qualifying graduation and also by completing eight

years' service as Field Supervisor.

14) The respondents have not denied the assertion of the

petitioner that the posts were available in the cadre of Block

Managers on which he could have been considered for

promotion during this period. The question that arises for

consideration is as to whether merely because the posts of

Block Managers were available on the date when the

petitioner had acquired eligibility for promotion, the

petitioner can claim retrospective promotion from the date

he had become eligible for promotion.

15) The law on the aforesaid issue is well settled. An

employee has a right to be considered for promotion as and

when the matter regarding filling up of the posts by

promotion is taken up by employer. Merely because there is

a promotional post available for being filled up does not give

a right to an employee to claim promotion from the date

when the said post became available. An employee cannot

claim retrospective seniority or promotion unless the rules

or statute governing the field provide for the same. In normal

circumstances, a promotion or recruitment to a post takes

effect from the date when an order to this effect is issued and

not from a date anterior to the same. Learned counsel for the

petitioner has not brought to the notice of this Court any

statute or rule that would entitle the petitioner to the grant

16) The Supreme Court has, in the case of State of

Uttaranchal and another vs. Dinesh Kumar Sharma,

(2007) 1 SCC 683, while dealing with the issue as to whether

an employee can be granted retrospective promotion,

observed as under:

"34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa."

17) In the face of aforesaid position of law, it is not open to

the petitioner to claim retrospective promotion from the date

he actually became eligible for promotion. He is entitled to

promotion from the date his case was considered by the

respondent Corporation, which in the instant case has been

done in the year 2023, whereafter he has been granted

promotion in terms of Order No.197 of 2023 dated

29.05.2023 with effect from 26.04.2023. The claim of the

petitioner is, therefore, not legally tenable.

18) For the foregoing reasons, I do not find any merit in this

petition. The same is, accordingly, dismissed.

(Sanjay Dhar) Judge Srinagar, 06.05.2025 "Bhat Altaf-Secy"