Permod Kohli, J.
1. The dispute between the parties in the present petition relate to the fixation of seniority in the cadre of District Horticulture Officers and equivalent post. Petitioner in SWP No. 1848/ 2003 Nazir Ahmed Wani was recruited as a Horticulture Assistant on 14-7-1977, He was deputed for Post-Graduation Diploma Course in Canning and Fruit Preservation vide Govt order No. 1947-GD of 1980 dated 3-10-1980 which he successfully completed after 15 months tenure for the course and re-joined his duties. Vide Horticulture Order No. 8/E/CJ of 1982 dated 20-1-1982 the petitioner was adjusted as Manager-cum-Chemist in a stop-gap arrangement against a post created vide Govt order No. 49-Agri dated 19-1-1982. He continues to occupy this post and paid charge allowance. Respondents No. 4 & 6 were appointed as Manager, Community Canning Centre as direct recruits on the recommendations of the Jammu and Kashmir Public Service Commission on 21-11-1983. A tentative seniority list was issued vide Order No. 257-GR of 1990 dated 11-4-1990 of the Gazetted Officers of the Horticulture Department wherein the petitioner was placed at S. No. 55, whereas respondent No. 4 was listed at S.No. 50. Objections were invited from the members of the service who may have any objection in respect to his seniority position. Petitioner claims to have made representation. On consideration of the objections, a final seniority list came to be issued vide Govt order No. 49-Agri of 1998 dated 2-2-1998. In this seniority list, petitioner's name figured at S.No. 37, whereas those of respondents No. 4 & 6 were at S.No. 32 and 34 respectively. Petitioner represented against this seniority list but was unable to get any relief from the Government. Petitioner filed writ petition SWP No. 490/2003 seeking a direction for the fixation of seniority and other reliefs in Jammu Wing of this Court, wherein the following interim direction was passed on 27-3-2003
'Mr. W.S. Nargal, for the petitioner.
Issue notice. Notice in CMP also. Respondents will settle the seniority position as per rules in order to ensure that no prejudice is caused to the petitioner for non-consideration of seniority position. Let the exercise of consideration be completed within a period of one month from the date copy of this order is received by the respondents.
This order is however, subject to objections from the other-side.'
2. While this writ petition was pending the Government issued Govt order No. 116-Agri of 2003 dated 9-4-2003 whereby grade of Rs. 8000-12950 attached to the post of Manager-cum Chemist was ordered to be released in favour of the petitioner retrospectively w.e.f. 21-1-1982 i.e. the date when he was posted as a stop-gap measure. While releasing the grade the Government also re-fixed the seniority position of the petitioner and he was directed to figure at S.No. 24-A in the Annexure to Govt order No. 49-Agri of 1998 dated 2-2-1998 below Abdul Majid Wachkoo and at S.No. 4-A in Annexure to Govt order No. 329-Agri of 2002 dated 13-12-2002 which was an order for the initial constitution of the officers of J&K; Horticulture Gazetted Service in accordance with the Recruitment Rules as notified vide SRO 106 of 1977 dated 1-3-1997. By virtue of this order the petitioner was given benefit of the promotion to the post of Manager-cum-Chemist w.e.f. 20-1-1982 when he was adjusted as a stop gap measure. Aggrieved of the afore-said order and action of the Government, respondents No. 4 & 6 filed separate writ petitions challenging the Govt order dated 9-4-2003. The writ petition filed by respondent No. 4 came to be listed as SWP No. 676/03 in Jammu Wing of the Court, whereas writ petition (SWP No. 737/2003) was filed by respondent No. 6 in Srinagar Wing of the Court. Interim orders were passed in both the writ petitions. In SWP No. 676/2003 following interim order was passed on 24-4-2003; --
'Mr. Sunil Hali, Advocate:
Mr. W.S. Nargal, who is on Caveat, accepts notice on behalf of respondent No. 4.
Issue notice. Issue notice in CMP also. Till next date of hearing operation of the impugned order is stayed. Mr. Nargal may file objections in two weeks. List after two weeks.'
3. Whereas in SWP No. 737/2003 a direction was issued that no benefit shall be given to Nazir Ahmed Wani on the basis of changed seniority. In the meanwhile the Government filed objections to SWP No. 490 of 2003, wherein Government defended its action of fixation of seniority of the petitioner at S.No. 24-A in the final seniority list as promulgated vide Govt order No. 49-Agri by 2-2-1998 as also his position at S.No. 4-A in the initial constitution of the service as notified vide Govt order No. 329-Agri of 2003. The State justified its action in view of the grant of benefit to a number of other officers belonging to the service in whose favour qualification/experience was relaxed by the Government and the benefit of retrospective promotion was allowed from the date the incumbents were adjusted under stop-gap arrangement. A reference was made to number of officers who were the beneficiaries of relaxed criterion. Accordingly the issuance of the Govt order No. 116-Agri of 2003 dated 9-4-2003 was projected. This writ petition appears to have been disposed of in view of the stand of the Government.
4. Two writ petitions filed by respondents No. 4 & 6 respectively are still pending. During the pendency of these petitions and the operation of interim direction staying Govt. Order dated 9-4-2003 i.e. grant of retrospective benefit of the promotion and re-fixation of the seniority of the petitioner, the issue was re- examined by the State which culminated in the passing of Govt order No. 257-Agri of 2003 dated 17-9-2003 whereby the final seniority position of the petitioner and the private respondents has been re-defined. Petitioner has been shown at S.No. 7 and respondents No. 4 & 6 at S.No. 3 & 5 respectively. Having been denied his earlier seniority position, above private respondents granted to the petitioner vide order dated 9-4-2003, the petitioner has filed the present writ petition challenging Govt order No. 257-Agri of 2003 dated 17-9-2003. This writ petition was taken up for consideration and the following interim order was passed on 1-10-2003:-
'CMP No. 2011/2003
Issue notice, returnable in two weeks.
Mr. Hali accepts notice on behalf of respondent No. 4. Objections be filed within two weeks.
Subject to objections from other-side and till next date of hearing, no promotion shall be made on the basis of seniority as fixed vide Govt order No. 257-Agri of 2003 dated 17-9-2003.'
5. An application has been made by respondent No. 6 for vacation of the interim order. When this application came up for consideration, the learned counsel for the parties agreed for final disposal of the case. This petition was heard for final disposal with the consent of the learned counsel for the parties.
6. According to the learned counsel for the petitioner, the impugned order has been passed without affording any opportunity of being heard to the petitioner and the seniority of the petitioner has been re-determined without any show cause notice to him. On merits of the controversy, it is argued on behalf of the petitioner that petitioner was recruited as Horticulture Assistant in the year 1977. The service was governed and regulated by the Jammu & Kashmir Horticulture Service Recruitment Rules, 1977. The post of Manager, Community Centre Canning was required to be filled up under the recruitment rules. The post of Manager Community Centre Canning was to be filled up under the rules in the following manner:
Class
Category
Designation
Grade
Minimum Qual.
Method of recruitment
IV
H
Manager Community Centre Canning.
Rs 540-950
M.Sc (Food Technology) with B.Sc Agri or B.Sc. Agri with Diploma inFruit Preservation with experience of five years in the line.
(i)25% by direct recruitment; (ii)75% by promotion from Class Vhaving at least five years service in that class.
IV
I
Manager, Plant Protection Store cum workshop
Rs 540-950
By promotion from category B& C of Class V with at least 5 years service in thatclass.
V
A
Horticulture Asstt
Rs 460-850
B.Sc AgriculturewithHorticulture as major subject or all subjects.
By direct recruitment.
V
B
Plant Protection Asstt.
Bachelor in AgricultureEngineering or Graduates in Agriculture having one
By directrecruitment
V
C
Asstt, Manager, Plant protection Workshop andstores
Rs 460-850
Agriculture having one year's experience ofEngineering work at any Govt. Agri/Plant protection Machinery workshop.
V
D
Canning Instructors
Rs 460-850
B.Sc Agri (Essential Diplomain FruitPreservation).
By direct recruitment
V
D
GradingInspector
Rs 460-850
B.Sc. Agri with Horti-cultureas major subject or all subjects.
By direct recruitment.
7. The post is required to be filled up 25% by direct recruit and 75% by promotion from category D & E of Class V from amongst persons having five years service in that class with Diploma in Food preservation. Petitioner, who was appointed as Horticulture Assistant acquired the Diploma in Food preservation in the month of December, 1981, having been deputed vide Govt order No. 197-GD of 1980 dated 3-10-1980. This Diploma course was for a period of 15 months and the petitioner could acquire this qualification not before December, 1981. As far the experience of five years as prescribed under the rules is concerned, he had only four years and six months experience, when he was adjusted as Manager Plant Protection Store-cum Workshop on 20-1-1982. Admittedly he was falling short of the requisite experience. Petitioner's claim is based upon the order of the Government giving relaxation of rules as far as the experience is concerned. Petitioner has placed on record number of Govt orders from pages 72 to 80 whereby officers were granted benefit of retrospective promotion from the date they were allowed to occupy the higher post on stop-gap arrangement in relaxation of the rules. This fact is specifically incorporated in Govt order No. 116-Agri dated 9-4-2003. Petitioner was accordingly given benefit of retrospective promotion in relaxation of rules w.e.f. 21-1-1982 on the parity of similarly situated officers. It is relevant to notice that before passing order dated 9-10-1983 petitioner's case was considered for retrospective promotion and vide the Govt Order No. 240-Agri of 1985 dated 25-4-1985 the petitioner was granted benefit of retrospective promotion of Manager-cum Scientist with effect from the date of passing of the afore-said order. This benefit was allowed to the petitioner on the recommendations of the Departmental Promotional Committee which approved the grant of retrospective promotion to the petitioner prospectively. However, while passing the order dated 9-4-2003 the Public Service Commission does not seem to have been consulted.
8. Petitioner has also relied upon Govt order No. 307-Agri of 2002 dated 6-11-2002 whereby the following criterion was fixed for purposes of initial constitution of the service under the revised Jammu and Kashmir Horticulture (Gazetted) Service Recruitment Rules notified vide SRO No. 161 of 2002 dated 23-4-2002:
'Whereas the department contemplates to frame the initial constitution of the service following notification of the rules and the department while doing so, has had to take note of the following problems: --
(a) The officers who have been working on higher posts in their own pay and grade on the date, the SRO 161 was notified cannot be shown as the members of that class but of a class in which they hold a post substantively;
(b) The officers in whose favour grade of the post has been release (even though junior) have to be shown as members of the higher class and can thereby supersede their seniors.
(c) The officers who have already retired or passed away cannot be included in the constitution of service;
(d) From the commencement of the revised Service Rules the case of the officers already retired to PSC/DPC for regularizing their services on the higher posts on which they have worked for years together;
Now, therefore, taking note of the above mentioned factors and in the interest of giving equitable treatment to all the grade of the corresponding post on which officers of Horticulture Department (as indicated as Annexure-A and B) have been elevated from time to time in their own pay and grade, is hereby released in their favour from the dates shown against each.'
9. It is also argued on behalf of the petitioner that even if it is found that the petitioner was not eligible on 20-1-1982 as he had deficient experience which was only five months and 23 days. The said experience is completed in July, 1982 and even if the petitioner's seniority is commenced w.e.f. July, 1982 he is still senior to private respondents, who were appointed as direct recruits only in the year 1983.
10. Mr. Z.A. Shah and Mr. Sunil Hali, Advocates appearing on behalf of respondents No. 6 & 4 respectively while contesting the case of the petitioner, referred to Govt order No. 1947-DA of 1980 dated 3-10-1980 whereby the petitioner was deputed for Diploma Course for undergoing 15 months duration and it is contended that under the Recruitment Rules of 1977 for promotion to the post Manager-cum-Chemist, the qualification prescribed is not less than five years experience with Diploma in Food Preservation. According to the rules the feeding category is only category D & E of Class V. Petitioner was appointed as Horticulture Assistant in category 'A' of class V which is not the feeding channel for promotion to the post of Manager Community Center Canning in class IV category H. According to the respondents the petitioner was not eligible at all for promotion under the recruitment rules on 20-1-1982 and there-after also till the revised recruitment rules came into being as notified vide SRO 161 dated 25-10-2002 and even if it is considered that the petitioner was entitled to be considered for promotion to the post defined under Category A, B & D being inter-transferable, five years experience is to be reckoned when the petitioner acquired the qualification of Diploma in Food preservation in December, 1981 and accordingly he completed five years experience with Diploma only in 1986. It is accordingly argued that the petitioner was rightly given the benefit of promotion from 1985 on the recommendations of the Public Service Commission. It is further contended that the initial promotion of the petitioner vide order dated 20-1-1982 was only a stop-gap arrangement, with a clear stipulation in the order itself that the petitioner will not be entitled to any benefit or preferential treatment for out of turn promotion/seniority etc.
11. From the record and pleadings of the parties, it emerges that the petitioner was not eligible on 20-1-1982 for promotion to the post of Manager-cum Scientist under 75% promotional quota prescribed under the rules. Admittedly, he was not having minimum five years experience as on the said date. The rules clearly stipulate minimum five years experience with Diploma in Food Preservation. Petitioner acquired the Diploma only in December, 1981. Even if the experience and the qualification are stated to be independent of each other the petitioner was short of requisite five years experience. Irrespective of this qualification, the more important question that a falls for consideration is whether the petitioner was entitled for the promotion being not in the feeding channel as prescribed under the rules. The categorical stand of the petitioner is that the post of Horticulture Assistant under category A Class V and the post of Canning Instructor (Category-D) and Grading Inspector (Category E) were inter-transferable. All these posts carry the same pay scale. As per the Horticulture Assistant and Grading Inspectors are concerned, same qualifications are prescribed for recruitment. However, for Canning Instructor in addition to B.Sc Agriculture (essential Diploma) in Food Preservation is the prescribed qualification. Merely because a person can be transferred to one post or the other does not make him eligible if the post to which he was appointed and holds the lien is not in the feeding category for promotion. It is admitted case of the petitioner that all along he has served as Horticulture Assistant, He has never performed the duties of Canning Instructor/Grading Inspector, which are the only two prescribed feeding categories. The State Government has taken contradictory stand in the reply filed to SWP No. 490/ 2003 and this petition. In the earlier writ petition, it was stated that the posts are inter-transferable and Horticulture Assistant was eligible for promotion. However, altogether different stand has been taken in the present petition. Be that as it may, it is settled proposition of law that when the law prescribes a particular mode and manner for doing an act, it can be done only in the manner so prescribed. In case Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and Ors., (2002) 1 SCC 633, the Apex Court held as under:
' x x x It is normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so, since the commission cannot exercise the power of relaxation found in Section 119 (2) (a) in the manner provided therein it cannot invoke that power under Section 119 (2) (a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in Sub-section (2) of Section 119'.
Petitioner being not in the feeding category and having never performed the job of Canning Instructor and Grading Inspector during his entire service was not eligible for promotion to the post of Manager, Community Centre, Canning. So far as the clear interpretation of the rules is concerned, it prescribes not less than five years service in category D & E Class V. The promotion of the petitioner in the year 1982 was dehors the rules and continues to be so till rules came to be amended and category A is also brought under the feeding channel vide SRO 161 dated 23-4-2002.
12. Learned counsel for the petitioner while referring to the revised recruitment rules (SRO 161) has submitted that Rule 13 of this SRO saves all actions taken under the provisions of the repealed rules i.e. SRO 106 dated 1-3-1977. This argument of the learned counsel is self-defeating. Saving clause of the rules save an action under the repealed rules which was in consonance of the rules. If any action was dehors the rules, no benefit is warranted under the saving clause of SRO 161. The contention of the petitioner is that Similarly situated persons were given the benefit of retrospective promotion and therefore, on the ground of parity he was also allowed the similar benefit which cannot be taken away by the impugned order. I am afraid that this contention can be accepted. Any wrong action of the Government cannot be made a ground for a subsequent wrong action. Article 14 of the Constitution of India is a positive concept and does not justify equality where the action contemplated is contrary to any law. The Apex Court in case State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., AIR 2000 SC 2306 while considering the concept of Article 14 of the Constitution of India has ruled as under: --
'The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.'
13. In the case of Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors., (1996) 2 SCC 459, the Apex Court considered the scope and purport of the rule of equality enshrined under Article 14 of the Constitution of India and observed --
'Under Article 14 guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of the Supreme Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is up-held, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.'
14. From the record it is also evident that in all cases where-ever relaxation in experience was granted by the Government, the same was on the basis of recommendations of the Public Service Commission from a particular date. Respondents have drawn my attention to Govt Order No. 102-Agri of 1982 dated 2-2-1982 and Govt order No. 449-Agri dated 25-5-1982 annexed with the reply filed by respondent No. 6 to show that retrospective benefit in relaxation of rules was approved by the Public Service Commission and in the case of the petitioner also, the Public Service Commission approved his retrospective promotion from 1985. The Government after having accepted the recommendation of the Public Service Commission and granted such benefit to the petitioner vide Govt order No. 240-Agri of 1985 ought not to have issued Government order dated 9-4-2003 giving further relaxation of qualification from 20-1-1982.
15. There is another aspect that the private respondents were appointed on 21-11-1983 as direct recruits. Their appointment was on substantive basis. At that relevant time, the petitioner's substantive appointment was only as a Horticulture Assistant, though he was allowed to function on the higher post, equivalent to the private respondents only under stop-gap arrangement in his own pay and grade. His seniority at the time of recruitment of the petitioner was in a lower category. He was substantively appointed to the higher post only in the year 1985. If the petitioner was to be given any benefit of retrospective seniority, the private respondents were required to be put on notice as their rights were adversely effected. Even in the final seniority list issued Vide Govt order No. 49-Agri of 1998 dated 2-2-1998 the private respondents No. 4 & 6 were shown senior to the petitioner. Admittedly, when this seniority list was changed to their detriment vide Govt order No. 116-Agri of 2003, the private respondents were not put to any notice or afforded an opportunity of being heard. Therefore, Govt order dated 9-4-2003 was not justified, particularly when it tended to disturb the final seniority notified after considering the objections of the petitioner. The Government however, subsequently restored the position vide the impugned order dated 7-9-2003. The impugned order restoring the seniority position of the private respondents cannot be said to be contrary to rules or in violation of the principles of natural justice as alleged. Learned counsel for the petitioner has relied upon case Haryana Warehousing Corporation v. Ram Avtar and Anr., AIR 1996 SC 1081. In this case the Apex Court held as under:
' x x x x The passing of the speaking order, however, does not mean that before the authority concerned comes to the conclusion of stopping of a person at the efficiency bar stage, an opportunity of hearing must be given to him. Consideration of all material before taking the decision in sufficient compliance of the requirement.'
16. This judgment justifies the passing of the impugned order, rather than the case of the petitioner. Further reliance is placed on judgment dated 12-12-2001 passed by a Coordinate Bench of this Court in case G.R. Bhat v. State and Ors., SWP No. 678/2000, wherein it has been held --
'Summing up, it is held that fixation and refixation of seniority is the function of the employer State, which has always to be on guard to see that while discharging this function justice between its servants working in the same cadre is done. This function is an administrative function and the proceedings undertaken while discharging this function are quasi-judicial only. Rules of natural justice as applicable to judicial proceedings have no application. Thus, it is always permissible for the employer State to rectify an error which was committed while fixing the seniority earlier. The refixation, however, should be made on the strength of record and should not cause manifest injustice or prejudice.'
17. The issue of seniority has been finally clinched by a Constitution Bench of the Apex Court in case Direct Recruit Class II Engineering Officers Association v. State of Maharashtra, AIR 1990 SC 1607, wherein it has been held as under: --
'44. To sum up, we hold that --
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only adhoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.'
18. In view of the authoritative pronouncement of the Apex Court, the petitioner can only be accorded benefit of adhoc promotion if he Was eligible at the time of his initial promotion. I have already held that the petitioner's initial appointment was dehors the rules and therefore, he is not entitled to the benefit of adhoc service w.e.f. 20-1-1982 or even from July, 1982 when he completes five years service for the simple reason that he was not included in the feeding channel provided under the recruitment rules of promotion. This petition is accordingly dismissed.
SWP No. 676/2003
MOHD SHAFFI QURESHI v. STATE
Mr. Sunil Hali, Advocate for the Petitioner.
Mr. A.H Qazi, AAG and Mr. W.S. Nargal, Advocates for the Respondents.
The order impugned in this petition stands superseded vide Govt order No. 257-Agri of 2003 dated 17-9-2003 impugned in SWP No. 1848/2003. Said writ petition having been dismissed and the impugned order up-held, this petition is rendered infructuous and is accordingly disposed of.