Excelsior Correspondent
JAMMU, Mar 8: Division Bench of High Court comprising Justice Virender Singh and Justice Muzaffar Hussain Attar today set-aside the judgment of Writ Court passed on May 7, 2013 whereby retrospective effect to the promote ETOs was quashed.
“The moment an employee is appointed by way of selection/promotion to a higher post from an anterior date, he becomes member of the higher class/service from that anterior date and by legal fiction, he ceases to be member of class/category/service from such date, where he was working earlier”, the DB said, adding “however an employee can be appointed to a post on a service, class or category from a date anterior to his actual appointment, provided post is available in his quota and he was eligible in terms of Recruitment Rules on that anterior date”.
“It is admitted position that the PSC/DPC considered the claim of the appellants and recommended them for being appointed by way of promotion from the dates the substantive vacancies existed in the permanent cadre of the gazetted service”, the DB said, adding “Schedule-B appended to the Rules of 1977 provides that Inspector can be selected for being appointed to the post of Excise ad Taxation Officer. The appointing authority, in view of the mandate contained in 1st limb of Rule 23 (1) of the Rules of 1956 appointed the appellants on the post of Excise and Taxation Officers from the date they were recommended to be appointed by the PSC/DPC”.
“In view of the mandate contained in Paragraph 51 of the Suraj Parkash Gupta’s case, the order of promoting a person in the service regularly from anterior date and order of probation from an anterior date could be simultaneously passed. The moment appellants were appointed on the post of Excise and Taxation Officers, in terms of 1st limb of Rule 23(1), they were, thus, put on probation from the dates from which they were appointed”, the DB further said.
“In view of the language in which 1st limb of the Rule 23 (1) of the Rules of 1956, is couched it confers power upon the appointing authority to issue an order of appointment as probationer from an anterior date which date is also simultaneously the date of appointment”, the DB said.
The DB further observed, “there is no incongruity or infirmity in the interpretation placed on 1st limb of Rule 23 (1) of the Rules of 1956. For placing such an interpretation on Rule 23(1) of Rules of 1956 would advance the cause of justice and would ensure that a person who was appointed to the service is not subjected to any kind of injustice. Placing contrary interpretation on the Rule 23(1) of the Rules of 1956 would render it unjust thereby incapable of being applicable to any set of appointments. Courts have favoured the interpretation on a particular statute/rule which advances the cause of justice”.
Holding that the appointing authority has power to appoint the appellants on the post of Excise and Taxation Officers and also appoint them as probationers simultaneously from the date the substantive vacancies were available in the permanent cadre or category/class of the service, the DB set aside the impugned judgment dated 07.05.2013 and dismissed the Writ petition.
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