Reserved On 23.11.202 vs Union Territory Of Jk And Others
2021 Latest Caselaw 1632 j&K/2

                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT SRINAGAR

                                   LPA no. 340/2019
                                   CM no. 7840/2019
                                                   Reserved on 23.11.2021
                                                  Pronounced on 20.12.2021
Ravinder Kumar and another
                                                                .... Appellant(s)
                              Through:     Mr M. Y. Bhat, Sr. Advocate with
                                           Mr R. A. Bhat, Advocate

                                           V/s
Union Territory of JK and others
                                                                   ... Respondent(s)
                               Through:    Mr B. A. Dar, Sr. AAG for R-1 & 2
                                           Mr Zahoor Jan, Advocate, vice
                                           Mr Azhar-ul-Amin, Advocate, for R-3
                                           Mr Jahangir Iqbal Ganai, Sr. Adv with
                                           Mr Mir Naveed Gul, Advocate and
                                           Ms Humaira Shafi, Advocate, for R-4
CORAM:
              Hon'ble Mr Justice Ali Mohammad Magrey, Judge
               Hon'ble Mr Justice Vinod Chatterji Koul, Judge

                                    JUDGMENT

Per Magrey, J 01/- This intra Court Appeal, for short appeal is directed against the judgment/

final order passed in writ petition, SWP no. 1613/2013, on 01.11.2019, for short

impugned judgment, whereby the writ petition filed by the respondent no. 4 has been

allowed and the order No. Home-102(P) of 2012 dated 09.02.2012 has been quashed

to the extent respondents 4 and 5, appellants herein, had been placed over and above

the petitioner/ respondent no. 4 herein, and the official respondents had been directed

to re-frame the seniority of the petitioner/ respondent no. 4 and respondents 4 and 5/

appellants along with other appointees figuring in Order No. 2250 of 1995 dated

12.08.1995, by placing them at an appropriate place permissible under rules and in

consequence thereof necessary benefits including promotion, that accrue due, be

granted to the petitioner/ respondent no. 4 and respondents 4 and 5/ appellants,

respectively.

02/- The events that led to the filing of this appeal are taken note of, in the first

instance, thus:

03/- The appellants and the respondent no. 4 are stated to have been appointed as

Prosecuting Officers vide Order No. 2250 of 1995 dated 12.08.1995. The appellants

figure in the appointment list at serial no. 4 and 10 respectively, while as the

respondent no. 4 figures therein at serial no. 02.

04/- The tentative seniority list of Prosecuting Officers as it stood on 01.07.1999

came to be issued vide Notification No. Estt/Pros-3/99/25907-26063 dated

20.07.1999 and the objections were sought from the aggrieved.

05/- The objections filed to the tentative seniority list were considered and final

seniority list was notified in terms of Order No. Estt/Pros-3/99/25907-26063 dated

20.07.1999 as it stood on 01.06.1999. It is apt to record herein that the objections

filed to the tentative seniority list did not relate to the placement of respondent no.

4. In the final seniority list of the Prosecuting Officers as it stood on 01.06.1999 the

appellants figured at serial no. 21 and 26 respectively, while as the respondent no. 4

figured therein at serial no. 12.

06/- Subsequent thereto, the appellants as also the respondent no. 4 were promoted

as Senior Prosecuting Officers in terms of Government Order No. Home-24(P) of

2001 dated 28.05.2001.

07/- Thereafter, the services of the appellants along with respondent no. 4 were

confirmed as Chief Prosecuting Officers in terms of Government Order No. 393(P)

of 2011 dated 13.04.2011 by regularizing their ad-hoc arrangement w.e.f.

14.07.2006 insofar as appellant no. 1 is concerned; 01.04.2008 in respect of

appellant no. 2 and 01.08.2008 in respect of respondent no. 4.

08/- Thereafter, vide Government Order No. Home-102(P) of 2012 dated

09.02.202, final seniority list of Chief Prosecuting Officers was issued wherein the

appellants figure at serial no. 15 and 22 respectively whereas, the respondent no. 4

figures at serial no. 25. The seniority was objected to by the respondent no. 4 by

addressing a representation to the concerned, which did not yield any result,

constraining the respondent no. 4 to file a writ petition before the Writ Court bearing

SWP No. 1613/2013.

09/- The plea raised by the respondent no. 4 before the Writ Court was that he has

all along been senior to the appellants right from the date of appointment and the

course is changed probably for the reason that the appellants have been considered

against the roster point available to the officials belonging to the RBA category. The

respondent no. 4 is shown to be figuring at serial no. 37 whereas appellants figured

at serial no. 45 and 50 respectively in the final seniority list of Senior Prosecuting

Officers.

10/- The respondent no.4 had pleaded before the Writ Court that the appellants

have been placed ahead of respondent no. 4 in disregard of the fact that the appellants

have obtained the status of being the Residents of Backward Area after their

appointment as Prosecuting Officers or even after having been promoted as Senior

Prosecuting Officers.

11/- The dispute, in essence, therefore, before the Writ Court was as regards the

claim of the respondent no. 4 of being senior to the appellants, therefore, deserves

to be placed at the appropriate place therein over and above the appellants and in

consequence whereof is entitled to the relief that may become due to him.

12/- The Learned Single Judge after consideration of the matter agreed with the

contentions of learned counsel for petitioner/ respondent no. 4 and in terms of the

impugned judgment dated 1st November, 2019, allowed the writ petition by quashing

the Government order supra and by directing respondents to reframe the seniority of

the petitioner and the respondents 4 and 5 along with other appointees figuring in

Order No. 2250 of 1995 dated 12.08.1995 by placing them at an appropriate place

permissible under rules.

13/- Appellants/ respondents 4 and 5, feeling aggrieved of the judgment and order

of learned Single Judge, have filed the instant appeal seeking reversal of the

impugned judgment and order inter alia on the grounds that the Writ Court passed

the impugned judgment in absence of the counsel for the appellants; the issue of

catch-up rule is pending consideration before the Hon'ble Supreme Court, therefore,

it was not open for the Writ Court to apply the same law in the writ petition by the

impugned judgment; the seniority of the appellants and the respondent no. 4 is

regulated by Rule 24 (1) of the J&K Civil Services (Classification, Control and

Appeal) Rules, 1956 in terms of Rule 9 of the Jammu and Kashmir Police (Gazetted)

Service Recruitment Rules, 2002 which does not provide for any provision for the

catch-up rule and the seniority is to be reckoned from the date of first appointment;

the pendency of the issue of reservation in promotion before the Hon'ble Supreme

Court was not taken into consideration by the Writ Court; the catch-up rule was

otherwise not applicable in case of appellant no. 1 as he had been placed as Deputy

Director (Prosecution) in his own pay and grade vide Government Order No. Home-

138(P) of 2012 dated 15.02.2012 whereas the respondent no. 4 even as on date

continues to be a Chief Prosecuting Officer and this aspect has not been considered

by the learned Single Judge; etc.

14/- The appellants, therefore, have prayed that the appeal may be allowed by

setting aside the impugned judgment.

15. We have heard learned counsel for the parties.

16. Appellants have come before this court in an appeal and sought the relief

prayed for only on the grounds, that, Writ Court did not appreciate the controversy

in its right perspective; the law applied in the case is not confirmed by the Apex

Court, therefore, the impugned judgment is based on a wrong legal principle; catch-

up rule is not applicable to the instant case.

17/- Mr M. Y. Bhat, learned senior counsel for appellants, submits that since the

Writ Court failed to appreciate the controversy in its right perspective, therefore, the

same is legally untenable, and as such, requires to be set-aside and resultantly

dismissing the writ petition of the respondent no. 4/ petitioner.

18/- The main argument raised by Mr M. Y. Bhat, learned senior counsel, in

questioning the judgment of the learned Single Judge has reference to the provisions

of the Jammu and Kashmir Reservation Act, 2004 and the rules made thereunder of

2005 having seen no major amendment in pursuance to Jammu and Kashmir Re-

Organization Act, 2019, notified on 09.08.2019. Mr Bhat, learned Senior Counsel,

submits that Section 9 and 10 of the Reservation Act including Section 3 dealing

with the reservation of backward classes continue to remain in force and merit list

in case of promotions is thus to be framed in terms of Rule 11 of the said Reservation

Rules and on application of the provisions of the Reservation Act and the Rules, the

selection for promotion with respect to vacancies of a particular year is to be

prepared on the basis of the combined merit list as per roster in Rule 10 to be applied

separately.

19/- The learned senior counsel submits that the seniority of the appellants is to be

maintained at the roster points in promotion list and they would figure at the bottom

of the select list of 2006, while as the respondent no. 4 stands promoted in the

vacancies of 2008 as he was not entitled to be promoted till then and therefore, his

seniority is to be shown in the promotes list of 2008 batch.

20/- The learned senior counsel submits that the respondent no. 4 has not

challenged the said Rules in the said writ petition but only challenged the seniority

list which has been framed in terms of the judgment of the Writ Court, therefore,

without there being any challenge to the Rules pursuant to which the seniority has

been framed, the benefit of seniority to the writ petitioner/ respondent no. 4 has been

given in violation of the law and the rules on the subject.

21/- The learned senior counsel submits that the seniority in the case of the

appellants and the respondent no. 4 has to be reckoned by the date of appointment

on the post of Chief Prosecuting Officer and as such the appellants having been

appointed as Chief Prosecuting Officers ahead of respondent no. 4, therefore, they

must be treated to be senior to the respondent no. 4 for all practical purposes.

22/- The learned senior counsel further submits that the rule which regulates the

seniority of the parties does not provide for any provision for catch-up rule position,

therefore, the Writ Court erred in law by giving benefit of the said rule to the

respondent no. 4/ petitioner.

23/- The learned senior counsel further submits that the appellants, being the

reserved category candidates, are entitled to be given the benefit of a roster point in

terms of the Reservation Rules.

24/- On the other hand, Mr Jahangir Iqbal Ganai, learned senior counsel for the

respondent no. 4, submits that the appellants and the respondent no. 4 are appointed

as general category candidates and Article 16 (4-A) of the Constitution gives the

right of seniority in favour of reserved category candidates.

25/- The learned senior counsel submits that there is absolutely nothing on record

to substantiate the placement of appellants over and above the respondent no. 4,

therefore, the Writ Court was legally justified in quashing such illegal exercise.

26/- The learned senior counsel further submits that even if it is presumed that the

appellants have been given the benefit of reservation in terms of Article 16 (4-A) of

the Constitution, still the same would be an illegal exercise as the Article 16 (4-A)

of the Constitution applies only in case of Scheduled Castes and Scheduled Tribe

category candidates and the appellants before the Court are admittedly belonging to

the RBA category, therefore, are not covered under such provision also.

27/- The learned senior counsel further submits that before the appellants and the

respondent no. 4 were promoted as Chief Prosecuting Officers, the respondent no. 4

figured senior to the appellants at the time of appointment as Prosecuting Officers

and subsequently at the time of promotion as Senior Prosecuting Officers. Therefore,

the learned senior counsel submits that there was no occasion for the official

respondents to have showered such benefit to the appellants which is untenable in

law and is in absolute disregard of the applicable rules.

28/- Mr Jahangir Iqbal Ganai, learned senior counsel, further submits that it is

incorrect on the part of the appellants to say that they were not heard by the Writ

Court as the same is belied by the records. He submits that both the parties were

heard at length by the Writ Court before passing the impugned judgment. He,

therefore, seeks dismissal of the appeal.

29/- Mr B. A. Dar, learned Sr. AAG, also argued on the lines as were adopted by

the learned Senior counsel for respondent no. 4.

30/- Considered the submissions made by the learned counsel for the parties.

31/- We have gone through the impugned judgment and the allied documents

placed before us. It would be pertinent to reproduce the portion of the impugned

judgment which appears to have been recorded while taking cue from the judgment

of the Hon'ble Apex Court reported as 2019 (4) Scale 417 titled Sudhakar Baburao

Nangnure v. Noreshwar Raghunathrao Shende & others, hereunder, in the first

instance, thus:

"The petitioner, as seen above, has been selected in pursuance of recommendations of respondent No. 3, along with respondent No. 4

and 5 and later appointment of the selectees figuring in the said list was made in pursuance of order dated 12.08.1995. The benefit of roster point was given vis-à-vis respondent No. 4 and 5 on 13.04.2011 and accordingly they had been promoted as Chief Prosecuting Officers. The petitioner too has been promoted from the general category. Reservation for appointments on posts in favour of backward classes of citizens is enabled by Article 16 (4) of the Constitution. No rule made in exercise of powers conferred under any provision of the Constitution has been relied on either by the official respondents or the private respondents to lend support to the contention raised that the seniority of the petitioner and respondent No. 4 and 5 could be fixed in the manner it has been done in terms of the impugned order. Determination of the seniority is a vital aspect in the service career of an employee and his future promotion is dependent on this. Determination of seniority has to be based on some principles which are just and fair. The promotion of any official having been made on the basis of reservation and on application of roster point would not entitle him to seniority over a senior belonging to general category in the feeding cadre, who is promoted to a higher post simultaneously or subsequently as the senior belonging to general category would regain seniority over the reserved category, nonetheless the roster point enables the reserved personnel to jump over others in getting promotion.

Viewing the matter in the light of what is stated above and the principle laid down by the Hon'ble Apex court in Sudhakar Baburao Nangnure v. Noreshwar Raghunathrao Shende & others, 2019 4 Scale 417, I am of the opinion that the petitioner has been able to show that the impugned action of the official respondents is bereft of legal sanctity and needs to be struck down. Impugned order issued vide No. Home-102(P) of 2012 dated 09.02.2012, whereby the petitioner has been placed at serial No. 25 and respondent No. 4 and 5 at serial No. 15 and 22 in the seniority list, is adjudged bad, necessitating the petitioner to be placed ahead of respondent No. 4 and 5 on earning the promotion under general category."

32/- This is not the case of the appellants or of the official respondents that the

appellants belonged to a reserved category and they did not get the benefit of

reservation at the time of their entry into service which compelled them to address

representation for seeking such benefit and the official respondents, acting on such

representations, disturbed the set up and extended the benefit of reservation in favour

of the appellants. There is no material even for a name sake which may suggest that

there existed reasons or a necessity was created by the circumstances to disturb the

seniority of the appellants and the respondent the way it existed at the time of their

appointment or even at a subsequent stage of their promotion as Senior Prosecuting

Officers. If such a scenario would have existed, the court was required to only see

whether the applicability of the reservation rule, pursuant to which the existing

seniority got disturbed, has been done in accordance with law or not. But that is not

at all the case of the appellants or of the official respondents.

33/- Now presuming that there existed such situation and the appellants were

extended the benefit of Article 16 (4-A), yet the appellants would not figure senior

to respondent no. 4 as the law on the subject is no more res integra that the Articles

16 (4) and 16 (4-A) are enabling provisions and it gives discretion to the government

to consider providing reservations, if the circumstances so warrant. Therefore, the

action taken by the official respondents in the instant case is unwarranted as there

were absolutely no circumstances that warranted such exercise of power. The benefit

under the said Articles is further unavailable in respect of the appellants for the

reason that the said Articles cover reservation benefit in respect of scheduled caste

and scheduled tribe candidates and the appellants herein do not fall in any of these

categories, therefore, the exercise made by the official respondents in placing the

appellants ahead of respondent no. 4 does not have any legal sanctity. It would be

appropriate to take note of the law laid down by the Apex Court on the point in case

reported as (2020) 3 SCC titled Mukesh Kumar v. State of Uttarakhand. Paragraph

nos. 12 and 13 of the said judgment, being relevant, is reproduced herein:

"Article 16 (4) and 16 (4-A) do not confer fundamental right to claim reservations in promotion 9. By relying upon earlier judgments of this Court, it was held in Ajit Singh (II) (supra) that Article 16 (4) and 16

(4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant. It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts10. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing 9 Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 10 C.A. Rajendran v. Union of India, (1968) inadequacy of representation of that class in public services. If the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution.

13. Articles 16 (4) and 16 (4-A) empower the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes 'if in the opinion of the State they are not adequately represented in the services of the State'. It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction 11 M. Nagaraj (supra) of the State. The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed. The Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within the subjective satisfaction of the executive are extensively stated in Barium Chemicals v. Company Law Board12, which need not be reiterated."

34/- The Writ Court, while allowing the writ petition of the petitioner/ respondent

no. 4 herein, has appreciated the controversy in its right perspective. The law cannot

come to the rescue of the official respondents in having extended a benefit in favour

of certain employees in disregard of rules and the law on the subject. The Court

cannot be a signatory to the wrong done by the official respondents.

35/- The official respondents, neither before the writ court, nor before this Court,

took a plea in support of its decision that it was for the inadequate representation of

the reserved category candidates that a considered decision was taken by the

Government, based on the quantifiable data collected in this behalf, that reservation

in promotion should be provided in favour of the appellants. Since the enabling

provision to which the reference, during arguments, has been made viz. Aricle 16

(4-A), does not cover the reserved category to which the appellants admittedly

belong, therefore, there was absolutely no occasion for the respondents to have

undone the existing set-up/ seniority position of the respondent no. 4 and the

appellants.

36/- The submission made by the learned senior counsel on behalf of the appellants

that the impugned judgment is based on wrong premise for having taken recourse to

the judgment of this Court which is pending consideration before the Hon'ble Apex

Court is without substance in view of the findings recorded hereinbefore. The

submission that the judgment of this Court, of which the reference is made by the

Writ Court, in the impugned judgment, has not yet been confirmed by the Apex

Court, therefore, is bad in law, is without substance as the position is vividly clear

even in absence of such reference.

37/- Having regard to the above narration, we uphold the view of the learned Single

Judge and dismiss the appeal as meritless along with connected CMs. Respondents

are directed to comply with the directions of the Writ Court without further wastage

of time.

38/- The Writ Records be returned to the concerned against receipt.

39/- No order as to costs.

                          (Vinod Chatterji Koul)                        (Ali Mohammad Magrey)
                                      Judge                                            Judge

     Srinagar
     20.12.2021
     Amjad lone, Secretary
                                      Whether approved for reporting:   Yes/ No.




AMJAD AHMAD LONE
2021.12.20 14:27
I attest to the accuracy and
integrity of this document