SHEIKH ABDUL RASHID & ORS. versus STATE OF J & K & ORS.

Citation: [2007] 12 S.C.R. 940 · Decided: 05-12-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
SHEIKH ABDUL RASHID & ORS. 
v. 
STATE OF J & K & ORS. 
DECEMBER 5, 2007 
B 
[S.B. SINHA AND J.M. PANCHAL, JJ.) 
Service Law-Seniority-Inter se seniority-Between promotees 
and direct recruits-Retrospective promotion of promotees-By an 
c executive order-With effect from the date of preparation of Promotion 
List-Ignoring direct recruits, appointed prior to the promotees-
Propriety of-Held: The order granting retrospective promotion is bad 
in law-Entry in promotion list, by itself would not confer right to be 
promoted from that date-The order was in derogation of the statutory 
D Rules-However, monetary benefits granted to the promotees, not to 
be recovered-Jammu and Kashmir (Classification, Control and 
,_. 
Appeal) Rules, 1956-r. 24-Jammu and Kashmir Police Manual-
Regulations 382, 384, 390, 392 and 398-Jammu and Kashmir Police 
(Gazetted) Service Recruitment Rules, 1984-rr. 5, 14 and 20-
E Constitution of India, 1950-Article 142. 
Administrative Law-Executive order-Validity of-Held: Such 
order is valid only when it is issued in consonance of statutory rules. 
The names of private respondents were entered in promotion 
F List E on 25.4.1978 for the post of Sub-Inspector. They were 
promoted on officiating basis on 19.5.1979. By a Notification dated 
1.8.1985, State directed their regular promotion w.e.f. the date of 
preparation of Promotion List. The same was subsequently 
cancelled, but by another order dated 3.12.1985, promotions were 
G directed to be granted with retrospective effect from the date of 
Promotion List. Appellants, who had joined on the post as direct 
recruits before the promotion of the respondents on officiating basis, 
filed Writ Petition. Single Judge of High Court allowed the same 
holding that the appellants were senior to the respondents; and that 
H 
940 
SHEIKHABDULRASHIDv. STATE 
941 
/-. 
concept ofretrospective pro~otion having not been contemplated A 
under the Rules, the manner in which promotion was effected, was 
illegal. Division Bench accepted the finding of Single Judge, but on 
equitable considerations held the petition infructuous in view of the 
fact that the respondents had already been promoted to the post of 
Deputy Superintendent of Police which was governed by another set B 
of rules. Hence the present appeals. 
Allowing the appeals, the Court 
HELD: 1. The order dated 3.12.1985, promoting the 
respondeats with retrospective effect is exfacie bad in law. Not only c 
no retrospective promotion could be granted as has been held by 
both the Single Judge as also the Division Bench, entry in List E, 
having regard to Regulation 390 of the Jam mu and Kashmir Police 
Manual per se did not confer any right upon the respondents to be 
promoted from that date. [Para 14) [947-CJ 
D 
_..,, 
2. No executive order could be issued in derogation of the 
statutory rules far less a legislative act. Jammu and Kashmir 
(Classification, Control and Appeal) Rules, 1956 being statutory in 
nature and having been framed under Jammu and Kashmir Civil 
Servants Removal of Doubts and Declaration of Rights Ordinance, E 
1956 have statutory force, the executive order in question was 
required to be issued in consonance and not in derogation thereof. 
[Para 15) [947-D) 
3. Although the statute provides for grant of officiating F 
promotion, but the same is not conducive in the sense that even after 
getting officiating promotion, one may be reverted to the original 
post held by him. The Rules having been provided for officiating 
promotion, Single Judge was correct in taking that factor also into 
consideration for the purpose of determining the validity of the order G 
impugned before the High Court. The order even otherwise appears 
to be mala fide having been passed for unauthorised purpose. If the 
order dated 3.12.1985 is read with the earlier one being dated 
1.08.1985, the intention of the Government to favour the private 
respondents herein becomes explicit. It is not expected of a H 
942 
SUPREME COURT REPORTS 
[2007] 12 S.C.R. 
A government to brazenly favour one set of employees so as to defeat 
the bona fide claim of the other. [Para 20] (948-D-FJ 
4. However, in exercise of discretionary jurisdiction under 
Article 142 of the Constitution oflndia, it is directed that despite 
B this order, if any monetary benefit has been conferred upon the 
private respondents, the same may not be recovered. 
[Para 21] (948-G-HJ 
State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors., 
[19

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