.

CENTRAL ADMINISTRATIVE TRIBUNAL

JAMMU BENCH, JAMMU

Dated: This day of 2020

Present:

HON'BLE MR. RAKESH SAGAR JAIN, MEMBER- HON'BLE MR. PRADEEP KUMAR, MEMBER-A

O.A. No. 121/20200

Sharan Gurdev Singh and ors.

.. . Applicants

Mr. Jahangir Ganai, Sr. Advocate with Mr. Omair Shafiq, advocate for applicants.

v/s

Union Territory of Jammu & Kashmir and ors

..Respondents

Mr. Rakesh Thapa, DAG/Mr. Z.A.Shah, Sr. Advocate with Mr. Ankur Sharma, Mr. Anuj Dewan Raina, advocates for respondents.

ORDER

Per Rakesh Sagar Jain Member (J)

1. The present O.A. had been taken up on the directions of the Hon'ble High Court vide order dated 20.11.2020 passed in WP (C) No. 1154/2020 titled

Sharan Gurdev Singh and others vs Union Territory of J&K and others. The

Hon'ble High Court has given a direction to the Tribunal to decide the

interim relief application of the applicants. Arguments were heard on

question of interim relief prayed for by the applicants and reserved for

orders. I have had the privilege of going through the order passed by my

2

learned brother, Hon'ble Mr. Pradeep Kumar. However, I am unable to agree with the order passed by my Learned brother. Hence, the need fa.

me to write a separate order, whichI now proceed to do as folouc.

2, Applicants have challenged the impugned orders whereby their orders of oromotion to the post of Junior Agriculture Extension Officers (JAEO) have been rescinded ab initio on the ground that the promotion orders could not be passed being subject to the order of status quo passed by the Hon'ble High Court. Applicants seek interim relief to stay the operation of the impugned orders.

3. The chronical letters/events, as per, the O.A. maybe referred to as follow:

I.Respondent No. 2 vide order dated 09.12.2019 directed the promotions of the applicants be kept in abeyance though they would continue to hold the posts of JAEO without monetary

benefits II Vide communication dated 29.04.2020, respondent No. 2 was

directed by respondent No. 1 to proceed ahead in the matter of

the abovementioned promotions by conducting DPC but while

doing so, to ensure that order of Status Quo issued by the

Hon'ble High Court in SWP No. 2727/2018 CM No. 7540/2019 titled Syed Mudasir Hassan Rizvi v/s State of J&K is got vacated

before considering the promotions; Respondent No. 2 vide order dated 09.05.2020 restored the I.

promotions but the benefit of promotions was directed to have

notional effect from date of iSsuance of the orders and monetarily with immediate effect;

IV. Respondent No. 1 vide impugned letter no.

Agri/NG/Prom/84/2018-1 dated 12.05.2020 (Annexure I) informed that direction in letter dated 09.05.2020 has been ignored and directed respondent No. 2 to put on hold ab initio the orders issued till the case is sub judice and final direction is

passed by the Administrative department regarding the multiple SROs;

V. Respondent No. 2 in compliance with order dated 12.05.2020 of respondent No. 1 by way of impugned orders No. 144/Estt of

2020 dated 12.05.2020 (Annexure 1) and 145/Estt of 2020 dated

14.05.2020 (Annexure l1) rescinded ab initio, the orders of

promotion of the applicants to the post of JAEO.

4. Applicants pending adjudication of the O.A. seek the interim relief for

staying the operation of impugned orders No. 144/Estt of 2020 dated

12.05.2020 (Annexure 1) and 145/Estt of 2020 dated 14.05.2020

(Annexure 1).

5. During the pendency of the TA., Mr. Z.A.Shah, learned Senior Counsel,

Mr. Ankur Sharma and Mr. Anuj Dewan Raina, advocates for the private

respondents filed applications on behalf of their clients for being

impleaded as party-respondents in the present T.A., which applications

were allowed vide order dated 24.11.2020.

A

In the objections filed by impleaded intervenors, it has been averred that

the private respondents have filed SWP No. 2727/2018 titled Syed

Mudassir Hassan Rezvi v/s State of J&K which has been transferred to the

Tribunal and be taken up with the present T.A. to avoid conflict of

decision. The fundamental dispute between the parties relates to

determination of seniority as Rehber-e-Zirat (re-designated as Agriculture

Extension Assistants). The private respondents being senior to the

applicants herein are entitled to take precedence over the applicants in

promotions to the posts of JAEO.

7. Learned counsel for applicants while reiterating the pleas taken in the T.A.

submitted that the restraining order dated 20.12.2019 passed by Hon'ble

High Court would have no effect on the orders of promotion of the

applicant herein as they were passed prior to the order of Hon'ble High

Court, therefore, operation of the impugned orders be stayed till disposal

of the T.A.

8. On the other hand, the contention of the private respondents is that the

present T.A. needs to be taken up with T.A. No. 3962/2020 titled Syed

Mudassir Hassan Rezvi v/s State of J&K to avoid conflict of decision. It is

argued by learned counsel for private respondents that it is the wrong

date of the regularisation of private respondents from 01.04.2015 instead

of 01.04.2014 as well as the seniority list based on the dates of

regularisation, which has been questioned in the T.A. No. 3962/2020

(SWP No. 2727/2018) filed by the private respondents. It has been further

argued by learned counsel for private respondents that it was during the

pendency of the SWP No. 2727/2018 that the official respondents

5

oromoted the applicants herein on the basis of regularisation of 2014 and

amendment application for challenging the said promotion order in SWP

No. 2727/2018 is pending consideration. The Government of its own on

the entirely different basis rescinded the orders of promotions of the

applicants. It was also argued by learned counsel for private respondents

that the private respondents being senior to the applicants herein are

entitled to take precedence over the applicants in promotions to the post

of JAEO and until the question of seniority of the parties is determined in

the present litigation, no promotion can be made to the post of JAEO and

therefore, the impugned orders require no interference.

9. Learned DAG for official respondents while arguing submitted that the

impugned orders are in accordance with rule and have been passed to

settle the issue in its finality and therefore, do not deserve to be stayed

by way of interim direction.

10.I have heard and considered the arguments of the learned counsels for

the parties and gone through the material on record.

11.During the course of arguments, it was argued by the private respondents

that the posts of JAEO are State Cadre post and not Divisional Cadre post

and placed reliance upon SRO 732 of 2019 dated 25.10.2019 and

therefore the promotion orders being issued on basis of the posts being

Divisional Cadre are not tenable in law. It has been submitted by the

learned counsel for applicants that the vacancies arose prior to the

issuance of the SRO and therefore would be governed by position existing

at the time of the vacancies and therefore the promotion orders are valid.

6

The contention of the learned counsel for applicants do seem to have force. However, this is an issue which would be taken into consideration at the time of the final arguments.

12.Perusal of the correspondence/orders of the official respondents placed on record reveals that the impugned orders rescinding the orders of promotions of the applicants have primarily been made on the basis of interpretation of the order dated 20.12.2019 passed by the Hon'ble High Court in SWP No. 2727/2018. The relevant portion of the aforementioned order dated 20.12.2019 reads as under:

"Meanwhile, subject to objections from the other side and till next

date of hearing before the Bench, no promotion shall be made

against the post of Junior Agriculture Extension Officers."

13.The limited question arises whether the order dated 20.12.2019 in SWP

No. 2727/2018 of Status quo passed by the Hon'ble High Court could be

construed by the official respondents to have retrospective force so, as to

rescind ab initio the order of promotions of the applicants and therefore

by way of impugned orders, the order of Status quo has been wrongly

applied to the following promotion orders while rescinding them:

() 05.11.2019

(i) 05.11.2019

(ii) 03.12.2019

(iv) 09.05.2020

Applicants in compliance to the aforementioned order joined their

posting as JAEO.

1

14.Indisputably, the order dated 20.12.2019 passed by Hon'ble High Court in T.A. No. 3962/2020 (SWP No. 2727/2018) titled Syed Mudassir Hassan Rezvi v/s State of J&K would not apply to the promotion orders passed prior to the passing of the said order. Therefore, prima facie, the reliance on the order dated 20.12.2019 by the official respondents to rescind the promotion orders passed prior to the order dated 20.12.2019 does not hold good. Apart from the mis-interpretation and mis-application of the order dated 20.12.2019 by the official respondents to the promotion orders passed prior to the said order, there seem be no other material before the official respondents to withdraw the promotion orders.

15.No doubt T.A. No. 3962/2020 (SWP No. 2727/2018) titled Syed Mudassir

Hassan Rezvi v/s State of J&K disputes the seniority of the applicants. However, which of the party is senior, is a question yet to be adjudicated.

And so, the question whether the promotion orders of the applicants are

valid and legal would be subject to the ultimate decision T.A. No.

3962/2020. In case, the seniority of the private respondents is upheld, the

promotion orders, as a natural corollary, would be non est or void ab

initio.

16.In the circumstances of the case, I am of the opinion that applicants have

made out a prima facie case for staying the operation of the impugned

orders till disposal of the T.A.s. Accordingly, the operation of the

impugned orders are stayed to the extent of the rescission of promotion

orders issued prior to the order dated 20.12.2019 passed by Hon'ble High

Court in T.A. No. 3962/2020 (SWP No. 2727/2018) titled Syed Mudassir

Hassan Rezvi v/s State of J&K and would be subject to the final decisionin

T.A. No. 62/2020 (SWP No. 2727/20 titled yed Mudassir Hassan Rezvi v/s State of J&K and present T.A. No. 121/2020n

17 Since T.A No. 121/20200 and 1.A. 5962/2020 involve common question of law and facts, they are Clubbed together. It be mentioned that nothino observed herein before be construed as a comment on merit of the caca

which shall be decided on its own merits.

18.Put up file for orders on