SUNAINA SHARMA & ORS. versus STATE OF JAMMUAND KASHMIR & ORS.

Citation: [2017] 10 S.C.R. 261 · Decided: 26-10-2017 · Supreme Court of India · Bench: MADAN B. LOKUR · Disposal: Appeal(s) allowed

cites 4 · see the full citation network in Lexace

Judgment (excerpt)

[2017] 10 S.C.R. 261 
SUNAINA SHARMA & ORS. 
v. 
STATE OF JAMMUAND KASHMIR & ORS. 
(Civil Appeal Nos. 4594-4595 of2017) 
OCTOBER 26, 2017 
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.] 
A 
B 
Service Law: Promotion - Retrospective promotion -
Promotees-Excise and Tax Officers seeking retrospective promotion 
from the dates when the vacancies occurred in promotion quoti1 -
c 
Held: No person can be promoted with retrospective effect from a 
date when he was not born in the cadre - Seniority has to be 
reckoned only from the date the person entered into that sen,ice -
However, on a· combined reading of r. 9 of the Excise Rules and rr. 
23 and 24 of the Civil Services Rules, the promotion can be granted 
on retrospective basis to promotee officers from a date on which the D 
clear-cut vacancy in the promotional cadre has occurred subject 
however to the conditions that the promotee should have worked 
against that post prior to his regular appointment - On facts, though 
vacancies may have been there in the quota, promotees having not 
worked against the post of ETO could not have been appointed E 
and granted seniority from an anterior date - Post of ETO is a 
gazetted post in a totally different cadre, and promotees were not 
members of the Service as ETOs, though they may have been holding 
pensionable posts - Single Judge of the High Court was right in 
holding that the promotees could not have been given the benefit. of 
retrospective promotion and seniority from a date when they were 
F 
not even born in the cadre and not working against the post - This 
retrospective promotion also violates the provisions of r. 9 - J & K 
Civil Services (CCA Rules), 1956 - rr. 23 and 24 - J & K Excise 
Rules - r. 9 
Allowing the appeals, the Court 
G 
HELD: 1.1 It is a settled principle of law that normally no 
person can be promoted with retrospective effect from a date 
when he was not born in the cadre. Seniority has to be reckoned 
only from the date the person entered into that service. True it 
is, that there are exceptions and sometimes "in service" H 
261 
262 
SUPREME COURT REPORTS 
(2017] 10 S.C.R. 
A candidates can be granted promotion from a date anterior to their 
being regularly promoted/appointed. However, this can be done 
only if the rules enable retrospective appointment and on fulfilling 
the other requirement of the rules. [Paras 8, 11] [272-H; 275-D-
E] 
B 
1.2 Rule 23 of the Civil Services Rules postulates the 
appointment of a probationer to the service on a date anterior to 
his regular appointment. However, this is subject to two 
conditions. The first, is that the vacancy in his category should 
have existed and no appointment can be made from a date prior 
to the date of existence of vacancy. The second condition is that 
C the person must have been continuously on duty as member of 
service from the said date. As far as the first condition is 
concerned there is no doubt that the promotees have been 
appointed from the date when the vacancies existed in their 
promotional quota. [Para 12] [275-F-G] 
D 
E 
1.3 Rule 9 of Excise Rules states that when a person is 
appointed to the post of ETO whether by promotion or by way of 
direct recruitment, he shall be on probation for a period of two 
years. The explanation to Rule 9 provides that appointment on 
probation shall be made against substantive vacancies only. The 
explanation also provides that any period of officiating service 
shall be reckoned as period spent on probation when a person is 
formally appointed to the service. This clearly envisages that the 
person should have been actually working on the post of ETO to 
be considered to be on probation. The whole concept of probation 
is to judge the suitability of the candidate appointed to the post. 
F There can be no objective assessment if the person is not actually 
working on the post. The promotees never worked as ETos·prior 
to their formal promotion. Therefore, though vacancies may have 
been there in their quota, they having not worked against the 
post of ETO could not have been appointed and granted seniority 
G from an anterior date. [Para 13] [276-B-D] 
1.4 It is well settled that retrospective promotion to a 
particular group can violate Article 14 and 16 of the Constitution 
of India. Even if the Rules enable the State to make retrospective 
promotion, such promotion cannot be granted at the cost of some 
H other group. Therefore, the only reasonable interpretation can 
SUNAINA SHARMA & ORS.

Excerpt shown. Read the full judgment & AI analysis in Lexace.