Jammu & Kashmir High Court
Arvind Sharma And Others vs State Through Law Department And ... on 27 May, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 27.05.2022.
SWP No. 1350/2011
c/w
SWP No. 748/2009
Arvind Sharma and others .....Appellant(s)/Petitioner(s)
Shabir Ahmad Malik and others
Through: Mr. F. A. Natnoo, Advocate in
SWP No. 1350/2011
Mr. S. F. Qadri, Sr. Advocate with
Mr. Iqra Khalid, Advocate in
SWP No. 748/2009
Vs
State through Law Department and others ..... Respondent(s)
Through: Mr. A. V. Gupta, Sr. Advocate with
Mr. Aditya Gupta, Advocate
Mr. M. I. Qadri, Sr. Advocate with
Mr. Naveed Gul, Advocate
Mr. Kishore Kumar, Advocate
Mr. Mohsin Qadri, Sr. Advocate with
Ms. Saima, Advocate
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGEMENT
Per: Thakur-J
SWP No. 1350/2011 & SWP No. 748/2009
Since common questions of law and fact are involved in the present
petitions, we propose to decide the same by way of a common judgement and
order.
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SWP No. 748/2009
01. With a view to understand clearly the issues that arise in the present
petitions, it is necessary to state in brief the material facts:-
02. The J&K Public Service Commission initiated the process for
recruitment against 50 vacancies of Munsiffs, as requisitioned by the High
Court, by utilizing the roster point from 81 onwards on a 100 point roster. A
notification dated 04.12.2001 was issued in this regard. Examinations were
conducted and a select list was prepared in terms of Rule 13(2) of the Jammu
& Kashmir Civil Services (Judicial) Recruitment Rules, 1967, which envisages
that the candidates would be arranged by the Commission in the order of merit
as disclosed by the aggregate marks including those obtained in viva-voce and
that such of the candidates who were found by the Commission to be qualified
in the examination would be recommended for appointment upto the number
of unreserved vacancies decided to be filled on the result of the examination.
03. The Public Service Commission it is stated, vide communication
dated 09.05.2003, based on the overall performance of the candidates in the
written examination, viva-voce and the medical examination recommended the
names of the candidates including the petitioners for appointment as Munsiffs.
Pursuant to the recommendations by the Public Service Commission,
appointments of the selected officers were made vide Government Order dated
06.08.2003 in terms of Rule 42 of the Jammu & Kashmir Civil Services
(Judicial) Recruitment Rules, 1967.
04. The case set-up by the petitioners is that respondent No. 2 did not
prepare, circulate or publish any seniority list, which would reflect their
seniority position qua others, who had been appointed in the said selection
process. It is stated that a request for framing such a seniority list fell on deaf
ears and finally in the year 2011, when respondent No. 2 started the process
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SWP No. 748/2009
for effecting promotions of 2003 batch to the next grade of Sub-Judge, it was
learnt that there was a gradation/seniority list dated 01.06.2010, which was
being made the basis for effecting promotions, which was not as per merit but
as per roster for direct recruitment under Rule 5 of the Jammu & Kashmir
Reservation Rules of 2005. Promotions made on the basis of the said gradation
list in regard to respondent Nos. 3 & 4, to the post of Sub-Judge, it was
claimed violated the seniority position of the petitioners relevant to their merit
position obtained in the examination conducted by the Public Service
Commission.
05. The petitioners would argue that the concept of reservation and
fixation of roster points in terms of Reservation Rules of 2005 was distinct and
that the same could not have been used for determining the inter-se seniority
of the candidates. Reliance in this regard was placed upon Rule 31 of the
Jammu & Kashmir Reservation Rules, 2005, which is as under:-
"31. Seniority:- As hither to, the rosters
prescribed for direct recruitment/promotion
shall only be an aid to determine the
entitlement of different categories with
regard to the quota reserved for them and
these are not for determination of seniority:
Provided that the inter-se seniority of the
category candidates viz-a-vis general
category candidates on their appointment by
direct recruitment shall be determined strictly
in accordance with the order of the merit in
the Select List prepared by the Selection
Authority in accordance with rule 7 of these
rules and rule 24(b) of the Jammu and
Kashmir Civil Services (Classification, Control
and Appeal) Rules, 1956:
......................................................................."
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SWP No. 748/2009
06. Reliance was also placed upon the General Rules of seniority as
provided under 24(1)(b) of the Jammu & Kashmir Civil Services (Classification,
Control & Appeal) Rules, 1956, which reads as under:-
"24. Seniority:-
(1) .................................
(a) ......................
(b) in the case of those recruited direct
except those who do not join their duties
when vacancies are offered to them
according to the positions attained by
and assigned to them in order of merit at
the time of competitive examination or
on the basis of merit, ability and physical
fitness etc., in case no such examination
is held for the purpose of making
selections;
(c) .............................."
07. At this stage, with a view to understand the impact of the gradation-
list prepared on the basis of roster points on the seniority of the petitioners, it
is necessary to reproduce herein not only the merit list/select list prepared by
the Public Service Commission, which forms Annexure-A to the writ petition,
but also the gradation-list issued on 01.06.2010. The impact of the gradation-
list can be assessed from Table-C on the petitioners.
Table -A : Merit List/ Select List
Sr. G. Total
Roll No. Name of Candidate Category
No. (Marks)
7A. - Arvind Sharma - -
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SWP No. 748/2009
Table-B : Gradation List (As on 01.06.2010)
(In the grade of Rs. 10750-300-13150-350-14900) (ACP Scale)
Date of Date of
Sr. Entry Entry in Date of
Name of the Officer D. O. B. Category
No. in Present Retirement
Service Grade
1. - - - - - -
2. - - - - - -
3. - - - - - -
4. - - - - - -
5. - - - - - -
6. - - - - - -
7. - - - - - -
8. - - - - - -
9. - - - - - -
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SWP No. 748/2009
10. - - - - - -
11. Amarjit Singh Lingha 12.12.1971 - - - -
12. Sandeep Kour 25.12.1969 - - - -
13. Amit Kumar Gupta 11.07.1973 - - - -
14. Yahya Firdous Ahanger 19.11.1969 - - - RBA
15. Sandeep Gandotra 14.06.1971 - - - -
16. Raja Mohd. Tasleem 04.05.1967 - - - ST
17. Anoop Kumar 20.03.1973 - - - -
18. Farooq Ahmad Bhat 01.08.1970 - - - -
19. Madan Lal 15.01.1971 - - - SC
20. Manoj Parihar 05.10.1972 - - - RBA
21. Shabir Ahmad 06.05.1968 - - - -
22. Arvind Sharma 05.11.1974 - - - -
23. Yash Pal Sharma 30.05.1973 - - - -
24. Imtiaz Ahmad Lone 13.03.1967 - - - -
25. Bashir Ahmad Munshi 05.04.1968 - - - -
26. Amit Sharma 10.10.1971 - - - -
27. Manjit Rai 18.01.1972 - - - SLC
28. Khurshid-ul-Islam 01.11.1967 - - - -
29. Anjum Ara 03.03.1970 - - - RBA
30. Arti Mohan 28.07.1973 - - -
31. Rajni Sharma 26.07.1969 - - - -
32. Vinod Kumar 16.09.1969 - - - SC
33. Umi Kulsoom 15.02.1970 - - - -
34. Pawan Kumar Sharma 28.04.1968 - - - -
35. Ahsan-ullah Parvez Malik 18.10.1967 - - - RBA
36. Iqbal Ahmad Masoodi 18.01.1966 - - - -
37. Renu Dogra 27.05.1972 - - - -
38. Muzaffar Iqbal Khan 14.04.1972 - - - ALC
39. Sudesh Sharma 10.05.1972 - - - -
40. Javed Ahmad Naik 01.01.1970 - - - RBA
41. Spalzes Angmo 01.04.1968 - - - -
42. Adnan Sayed 25.12.1970 - - - -
43. Sushil Singh 16.04.1967 - - - SC
44. Arun Kumar Kotwal 02.03.1966 - - - RBA
45. Khem Raj 18.08.1972 - - - -
46. Dinesh Gupta 19.04.1975 - - - -
47. Parvaiz Iqbal 03.05.1975 - - - -
48. Mir Afroz 10.09.1972 - - - -
49. Mansoor Ahmad Lone 03.05.1966 - - - RBA
50. Prem Sagar 19.06.1968 - - - -
51. Archana Charak 18.01.1974 - - - -
52. Ab. Qayoom Mir 14.11.1970 - - - -
53. Ramesh Lal 15.05.1971 - - - SC
54. Manzoor Ahmad Zargar 25.11.1968 - - - RBA
55. Manzoor Ahmad Khan 27.03.1966 - - - -
Table-C : Change in seniority position
Place Place in Place
Place
in the Down- the given
given Upgra-
Sr. Merit graded Sr. Private Respondent's Merit in
Petitioner's Name in ded by
No. List of
Gradat-
by No. Name List of Grad-
Steps
Batch steps Batch ation
ion list
2003 2003 List
1. Arvind Sharma 7A 12 4 1. Yahaya Firdose Ahanger 28 4 24
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SWP No. 748/2009
2. Yash Pal 8 13 4 2. Raja Mohammed Tasleem 32 6 26
3. Imtiyaz Ahmed Lone 9 14 5 3. Madan Lal 37 7 30
4. Amit Sharma 10 16 6 4. Manoj Parihar 29 8 21
5. Khursheed-ul- Islam 11 18 7 5. Bashir Ahmed Munshi 31 15 16
6. Aarti Mohan 12 20 8 6. Manjit Rai 33 17 16
7. Umi Kulsoom Mir 13 23 10 7. Anjum Ara 34 19 15
8. Iqbal Ahmed Masoodi 15 26 11 8. Rajni Sharma 36 21 15
9. Renu Dogra 16 27 11 9. Vinod Kumar 41 22 19
10. Sudesh Sharma 17 29 12 10. Ahsan Ullah Parvez Malik 38 25 13
11. Adnan Sayeed 19 32 13 11. Muzaffer Iqbal Khan 30 28 2
12. Khem Raj 20 35 15 12. Javed Ahmad Naik 39 30 9
13. Dinesh Gupta 21 36 15 13. Sushil Singh 42 33 6
14. Parvaiz Iqbal 22 37 15 14. Arun Kumar Kotwal 40 34 6
15. Prem Sagar 24 40 16 15. Manzoor Ahmed Lone 44 39 5
16. Archana Charak 25 41 16
17. Manzoor Ahmed Lone 35 45 10
08. In the response filed by response No. 2, i.e. the J&K High Court, the
stand taken was that after the promulgation of the J&K Reservation Rules of
1994 vide SRO 126 dated 22.06.1994, selections and appointments to the post
of Munsiffs were made in the year 1994, 1997 & 2000. It was stated that
according to Rule 14 of the Reservation Rules of 1994, a roster of 100
vacancies had to be maintained and the vacancies filled up from the select list
in accordance with the Rules 14 & 15 of the said rules. It was stated that in
the year 2001, 50 more vacancies were required to be filled up, for which a
requisition was made to the J&K Public Service Commission by utilizing the
roster from direct recruitment from point 81 onwards in terms of Rule 14 of
the Jammu & Kashmir Reservation Rules of 1994. The High Court also took a
stand that Rule 31 of the J&K Reservation Rules of 2005 had absolutely no
application, inasmuch as, the selection of the petitioners had taken place
before Reservation Rules of 2005 came into existence and that the petitioners
were governed by the Reservation Rules of 1994.
09. This petition was heard and finally decided by a Division Bench of
this Court vide judgement and order dated 27.11.2015. The said judgement
and order however was challenged by the private respondents in SLP(C)
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SWP No. 748/2009
No.3786/2016 titled "Vinod Kumar Bhagat and others Vs State of Jammu and
Kashmir and others." The Hon'ble Apex Court having considered the matter
vide judgement and order dated 17.11.2021 set aside the judgement and
order of the J&K High Court dated 27.11.2015 and was pleased to remand the
matter for a fresh consideration. It was held that reference made to the
decision in "Ashok Kumar and others Vs State of J&K and others" in SWP No.
1290/2014 was unnecessary, since no submission was urged on the basis of
that decision by the petitioners before the High Court and further that while an
analysis of the validity of the gradation-list was undertaken independent of the
ratio in Ashok Kumar's Case, the decision seemed to intertwine the reasoning
on both aspects.
Another important aspect which needs to be highlighted is in regard
to the statement made by the learned counsel appearing for the High Court in
the aforementioned proceedings before the Hon'ble Apex Court admitting that
the impugned gradation-list was invalid. Based upon such a statement, the
Hon'ble Apex Court was pleased to observe that the High Court on its
administrative side was thus not precluded from taking a considered decision
on that aspect of the matter.
10. The private respondents in the response have taken a stand that
neither was there any gradation-list nor was there any seniority list and that
reliance placed by the petitioners on the same was misplaced. It was stated
that even as per the stand of the High Court, there was no merit list available
with the High Court and further that in the absence of such a merit list, the
issues cannot be adjudicated properly, especially when the Public Service
Commission was not made a party respondent in the present proceedings.
With regard to Rule 31 of the Reservation Rules of 2005, it was stated that the
said rules do not have application at all in view of the fact that the selection of
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SWP No. 748/2009
the petitioners and the private respondents was made during the currency of
the Reservation Rules of 1994 and, therefore, it was sought to be emphasized
that there was no obligation to comply with the provisions of Section 31 of the
Reservation Rules of 2005.
11. In the backdrop of the aforementioned facts, the only question that
arises for consideration is whether seniority ought to be fixed as per the merit
determined by the Public Service Commission or whether it ought to be fixed
in accordance with the roster points. This issue infact is no longer res integra.
The Apex Court in "Bimlesh Tanwar Vs State of Haryana and others"
reported in (2003)5 SCC 604 in paragraph 40 held as under:-
"40. An affirmative action in terms of Article
16(4) of the Constitution is meant for providing a
representation of class of citizenry who are
socially or economically backward. Article 16 of
the Constitution of India is applicable in the case
of an appointment. It does not speak of fixation of
seniority. Seniority is, thus, not to be fixed in
terms of the roster points. If that is done, the rule
of affirmative action would be extended which
would strictly not be in consonance of the
constitutional schemes. We are of the opinion that
the decision in P.S. Ghalaut does not lay down a
good law."
12. Needless to say that in "P.S. Ghalaut vs. State of Haryana &
Ors," reported in 1995(5) SCC 625, the Apex Court held that it would be
constitutionally valid even if the reserved category candidates though less
meritorious in the order of merit maintained by the Public Service Commission,
occupied the places assigned in accordance with the roster, even when they
stole a march over some of the general candidates as regards seniority. What
was held in paragraph 4 is reproduced hereunder:-
"4. ...............................................................
..................................................................Take
for instance vacancy No. 1 and 6, as pointed
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SWP No. 748/2009
out in the Chief Secretary's letter have
admittedly been reserved for Scheduled
Castes. Suppose recruitment was made to fill
up ten vacancies, three candidates from
Scheduled Castes were selected. The first one
as general and second and third were
selected on the basis of reserved quota. The
question is whether the first candidate will be
put in the quota allotted to the Scheduled
Castes in the roaster. Having been selected as
a general candidate, though he is more
meritorious than the second and third
candidates, he will not get the placement in
the roaster, reserved for Scheduled Castes i.e.
No. 1 and 6 points. Consequently candidates
Nos. 2 and 3 will get the placement at No.1
and 6 and the first candidate will get the
placement in the order of merit along with
the general candidates according to the order
of merit maintained by the Selection
Committee or the Public Service Commission.
He cannot complain that having been selected
in the merit, he must be placed in the
placement reserved for Scheduled Castes at
point No. 1 in the roaster. Equally, though
general candidate is more meritorious in the
order of merit prepared by the Public Service
Commission or the Selection Committee,
when the appointments are made and the
vacancies are filled up according to the
roaster, necessarily and inevitably the
Reserved candidates though less meritorious
in the order of merit maintained by the Public
Service Commission would occupy the
respective places assigned in the roaster.
Thereby they steal a march over some of the
general candidates and get seniority over the
general candidates. This scheme is, therefore,
constitutional, valid and is not arbitrary."
13. In the past, while it may be true that the High Court had been
maintaining the seniority based upon the roster points, as mentioned under
Rule 14 of the Reservation Rules of 1994 may be on the strength of the ratio
of the judgment in P.S. Ghalaut, yet it cannot be ignored that the Apex Court
on 10.03.2003 having declared the decision in P.S. Ghalaut as not laying
good law on the subject, none of the authorities, including the High Court
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SWP No. 748/2009
could have proceeded to make the roster points as the basis for determining
the seniority and further make that a basis for promotions to the post of Sub-
Judges. It needs to be reiterated that in the present case appointments of the
selected officers were made in terms of Rule 42 of the Jammu & Kashmir Civil
Services (Judicial) Recruitment Rules, 1967 vide Government Order dated
06.08.2003, i.e. much after the pronouncement of the judgment in Bimlesh
Tanwar's case.
It was precisely for that reason that the counsel representing the
High Court had admitted before the Apex Court that the gradation list was
invalid, which is the subject-matter of challenge in the present petitions.
14. We are told that both the petitioners and the private respondents
have since been promoted as Sub-Judges and, therefore, even when there was
an initial challenge to the promotion of respondent Nos. 3 & 4 in the writ
petition, no promotions would be effected if the seniority was directed to be
fixed as per merit.
15. Having considered the matter in the light of the facts and the law
discussed hereinabove, we hold as under:-
a. The gradation list dated 01.06.2010 to the extent, and
insofar as, it pertains to the selection made by the
Public Service Commission for the post of Munsiffs in
reference to Notification No.PSC/Ex-2001/64 dated
04.12.2001, is quashed.
b. The respondent No. 2 is directed to re-frame the
seniority list in regard to the selection process for the
post of Munsiffs, pertaining to notification dated
04.12.2001, strictly in accordance with merit obtained
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SWP No. 748/2009
by the selected candidates in the examination conducted
by the Public Service Commission.
c. Such of the candidates, including the petitioners, who
on account of the impugned gradation list were not
promoted on time and, therefore, could not gain the
requisite experience for appearing in the limited
competitive examination in terms of the Jammu &
Kashmir Higher Judicial Service Rules, 2009, would be
held eligible to take such an examination, if another
Civil Judge in the same post but lower in the reframed
seniority list was eligible to take such an examination.
16. The writ petitions are, accordingly, disposed of.
(Sanjay Dhar) (Dhiraj Singh Thakur)
Judge Judge
Jammu
27.05.2022
Muneesh
Whether the order is reportable : Yes
Whether the order is speaking : Yes
This judgement is being pronounced by me in terms of Rule
138(4) of the Jammu & Kashmir High Court Rules, 1999.
(Dhiraj Singh Thakur)
Judge
