Jammu & Kashmir High Court - Srinagar Bench
Union Territory Of Jammu And ... vs Ghulam Ahmad Wani on 3 August, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 18/2023
CM No. 588/2023
Reserved On: 19th of July, 2023
Pronounced On: 3rd of August, 2023.
Union Territory of Jammu and Kashmir & Anr.
... Appellant(s)
Through: -
Mr Mohsin-ul-Showkat Qadri, Sr. AAG with
Mr Syed Musaib, Dy. AG.
V/s
Ghulam Ahmad Wani
... Respondent(s)
Through: -
Mr M. Y. Bhat, Senior Advocate with
Mr Faizan Majeed, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE
(JUDGMENT)
[Chowdhary-J:]
01. This intra Court appeal, under Clause 12 of the Letters Patent,
has been preferred by the Appellants against the final Order/ Judgment
dated 18th of September, 2018 passed by the learned Single Judge in SWP
No. 2276/2015 titled 'Ghulam Ahmad Wani v. State of Jammu and
Kashmir & Anr.', whereby the said Writ Petition filed by the Writ
Petitioner/ Respondent herein stands allowed.
02. From the perusal of the pleadings on record, it emerges that a
Writ Petition bearing SWP No. 3269 of 1992 came to be filed by the
Respondent herein, challenging the selection and the appointment of private
respondents therein as Prosecuting Officers. The said Writ Petition was
decided by an Order dated 26th of November, 2009, whereby the
Respondents therein were directed to consider the case of the Writ
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CM No. 588/2023
Petitioner/ Respondent herein for his appointment against the post of
Prosecuting Officer and pass appropriate orders in that behalf within a
period of four weeks. In compliance of the aforesaid Judgment, the
Respondent No. 2/ Appellant No.2 herein appears to have issued an Order
dated 15th of September, 2010, whereby the Writ Petitioner/ Respondent
herein was appointed as Prosecuting Officer.
03. Since, the aforesaid Order was silent about the entitlement of
the Writ Petitioner/ Respondent herein from the day the illegal
appointments were made and, as such, the Writ Petitioner/ Respondent
herein filed a representation immediately after the issuance of Order dated
15th of September, 2010. In the representation, it was prayed that the
seniority of the Writ Petitioner/ Respondent herein be fixed from the day
the other appointees were appointed, that is 1st of January, 1993 and the
consequential benefits of promotion may also be awarded in his favour.
04. The representation was not decided despite lapse of
considerable period of time, which compelled the Writ Petitioner/
Respondent herein to file another Writ Petition bearing SWP No. 1939 of
2013, which came to be disposed of on 9th of December, 2013, with the
direction to the Respondent No. 2/ Appellant No.2 herein to consider the
representation of the Writ Petitioner/ Respondent herein for fixing of his
seniority ahead of the private Respondents in SWP No. 3269 of 1992 and
pass a consideration order within a period of two months. The said
Judgment passed by this Court was considered and the claim of the Writ
Petitioner/ Respondent herein was rejected by an Order dated 29th of
November, 2014, on the ground that there is no specific direction for the
appointment of the Writ Petitioner with retrospective effect or even
allowing his seniority on notional basis.
05. This order of consideration was challenged by the Writ
Petitioner through the medium of SWP No. 2276/2015, wherein the Writ
Petitioner, besides seeking quashing of Order dated 29 th of November,
2014, also sought a direction upon the Respondents therein/ Appellants
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herein to give effect to the order of appointment of the Writ Petitioner
placing him senior to ineligible candidates. The Respondents resisted the
Petition of the Writ Petitioner/ Respondent herein on the grounds, inter alia,
that in compliance of the Judgment dated 26th of November, 2009, the Writ
petitioner was appointed as a Prosecuting Officer with prospective effect, as
there was no specific direction in the Judgment for his appointment
retrospectively or even allowing him seniority or promotion on notional
basis at par with those who had applied along with him and were appointed
as Prosecuting Officers in the Police Department in the year 1993. The Writ
Court, after hearing the learned Counsel for the parties, in terms of
impugned Judgment dated 18th of September, 2018, allowed the Petition
and quashed the Order dated 29th of November, 2014, besides holding the
Writ Petitioner/ Respondent herein entitled to all the consequential benefits,
including the promotion. The Writ Court further directed that the Writ
Petitioner/ Respondent herein shall figure over and above the heads of the
private Respondents in the order of seniority.
06. The impugned final Order/ Judgment has been assailed by the
Appellants, inter alia, on the following grounds:
"a. That, the impugned judgment passed by the Ld. Writ
Court is contrary to law and facts and as such deserves to be set
aside.
b. That the impugned Judgment has been passed by the
Hon'ble Writ Court without considering the objections of the
Appellants in its right perspective, wherein the correct regulatory
position was brought to the notice of the Hon'ble Writ Court. Had
the Ld. Writ Court considered the objections, the impugned
Judgment would not have been passed. The impugned Judgment,
therefore, is contrary to the correct, factual and regulatory position
attending the case, as such deserves to be set aside.
c. That the impugned judgment is totally against the basic
facts involved in the matter. The Ld. Writ Court has not considered
the factual and legal aspect of the case in its right perspective. It was
categorically stated before the Ld. Writ Court that in compliance of
the judgment dated 26.11.2009, the respondent herein was appointed
as a Prosecuting Officer with prospective effect, as there was no
specific direction in the judgment for his appointment
retrospectively or even allowing him seniority or promotion on
notional basis at par with those who had applied along with him and
were appointed as Prosecuting Officers in the Police Department in
the year 1993. Therefore, the order dated 15.09.2010 passed by the
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appellant department is in accordance with the directions of this
Hon'ble Court and as such, no relief as sought by the petitioner in
his petition can be granted to him. However, the Ld. Writ Court did
not appreciate the aforesaid submissions of the Appellants had
proceeded to pass the impugned order which in the facts and
circumstances of the case is liable to be set aside.
d. That, the impugned Judgment is also bad in law for the
reason that the petitioner (respondent herein) was not selected earlier
by the recruiting agency, instead has been appointed by the appellant
department later on by giving respondent herein exceptional
treatment purely on the basis of Hon'ble Court orders and that too on
the vacancy, which were required to be filled-up through open
selection by notifying the post as per the procedure laid down in the
recruitment rules. As such, the Ld. Writ Court has made an error in
the impugned judgment while advancing the benefit of irrelevant
judgment to the respondent herein. Therefore, on this ground also
the impugned order is bad in law and deserves to be set aside.
e. That, it is settled position of law as has been held by the
Hon'ble Supreme Court that a person is disentitled to claim seniority
from a date when he was not borne in service. It is also settled
position of law that a person cannot be said to have been recruited to
the service only on the basis of initiation of the process of
recruitment, but he/she is borne in the post only when formal
appointment order is issued. While as, in the instant matter, a formal
appointment order dated 15.09.2010 stands issued by the Appellant
department, in pursuance of which respondent herein has joined in
the appellant department, as such, fixation of seniority of respondent
herein has been accordingly maintained by the appellant department
as per the rules governing the subject, hence, claiming retrospective
seniority does not hold good. Therefore, on this ground also the
impugned order is bad in law and deserves to be set aside.
f. Even otherwise also, the service of the official is reckoned
from the date he/she is actually appointed and borne on that service
and cannot be considered from the date when the Post was not held
by him/her. In the instant matter, the petitioner (respondent herein)
willingly and without any conditions, joined the department in
pursuance of the order dated 15.09.2010, as such, the seniority is to
be maintained from the date the petitioner (respondent herein) has
occupied the post. Hence, on this ground also, the impugned
Judgment is bad in law and deserves to be set aside.
g. That the Ld. Writ Court did not appreciate that it is
impossible for the department to fix the seniority of the respondent
from a retrospective date. There is a set procedure for fixing
seniority of Prosecuting Officer in the department and the
respondent herein in tune with the relevant rules has already been
placed at an appropriate position in the seniority list. Hence, on this
ground also, the impugned Judgment is bad in law and deserves to
be set aside.
h. That, the impugned order/Judgment being ex-facie
contrary to law and the facts and circumstances of the case, need to
be set aside."
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07. Mr Mohsin-ul-Showkat Qadri, the learned Senior Additional
Advocate General, appearing for the Appellants, has vehemently argued
that the Respondent had been appointed as a Prosecuting Officer vide Order
No. 2966 of 2010 dated 15th of September, 2010 issued by the J&K Police
Headquarters in pursuance to a Judgment dated 26th of November, 2009
passed by this Court in SWP No. 3269/1992, whereby the Appellants herein
had been directed to consider the case of the Respondent herein for
appointment against the post of Prosecuting Officer and pass appropriate
orders in that behalf within four weeks and, as such, there was no direction
in the Judgment passed by this Court so as to fix the seniority of the
Respondent herein from any date and nothing of the sort was said with
regard to fixation of his seniority. He further argued that since the
Appellants had appointed the Respondent herein on 15 th of September,
2010, his seniority, as a matter of course, had to be fixed from the date of
his appointment. It is further argued that the representation of the
Respondent with regard to fixation of his seniority, as directed by this Court
in another Writ Petition bearing SWP No. 1939/2013 filed by the
Respondent herein, was considered and a speaking Order No. 3060 of 2014
dated 29th of November, 2014 was passed, wherein the contention of the
Respondent was rejected, being devoid of any merit. The learned Senior
Additional Advocate General also argued that the matter had been
considered by a designated committee at PHQ for examination of the
representation of the Respondent, which came to the conclusion that in
view of no specific mention or direction for appointment with retrospective
effect or even allowing his seniority or promotion on notional basis at par
with those who had applied along with him and were appointed as
Prosecuting Officers in the Police Department in the year 1993 and who are
presently either DPOs or CPOs and, therefore, opined that the PHQ Order
dated 15th of September, 2010 regarding the appointment of the Respondent
herein was in tandem with the direction passed by this Court in SWP No.
3269/1992 and the Respondent was not entitled to be given seniority from
the date the officers with whom he had competed in the selection process
and a prospective effect was rightly accorded to his seniority from the year
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2010. Mr Qadri further argued that the learned Single Judge in a Petition
bearing SWP No. 2276/2015 has, against the factual and legal position,
directed that the Writ Petitioner, that is the Respondent herein, is deemed to
have been appointed from the date when the private Respondents, who were
ineligible to man the posts, were appointed as Prosecuting Officers and, as a
sequel thereto, the impugned Order No. 3060 of 2014 dated 29 th of
November, 2014 was quashed holding the Respondent herein entitled to all
consequential benefits, including the promotions with further direction that
he shall figure over and above the heads of the private Respondents in the
order of seniority. In the light of these facts, it was, accordingly, prayed that
the impugned final Order/ Judgment be set aside, having been passed
without appreciating the legal position.
08. Mr M. Y. Bhat, the learned Senior Counsel appearing on
behalf of the Respondent, on the other hand, argued that the Respondent
had not been selected in response to the advertisement for recruitment of
Prosecuting Officers, though being eligible and having merit as against the
private Respondents, namely, Syed Abdul Bari Andrabi, Riyaz Ahmad
Darzi, Murtaza Nasir and Dawood Ahmad Tota, who were not even eligible
to be considered for selection and appointment. He has further argued that
though the learned Single Judge of this Court, while passing the Judgment
in SWP No. 3269/1992 on 26th of November, 2009, had held that the
aforesaid persons being ineligible had been selected for the posts of
Prosecuting Officer, leaving the Respondent who was not only eligible but
had been a meritorious candidate to be selected and appointed as
Prosecuting Officer and that the learned Single Judge had allowed the Writ
Petition filed by the Respondent herein and directed that the Respondent
herein be also considered to be appointed against the post of Prosecuting
Officer, deemed to have been selected along with the aforesaid persons who
were arrayed therein as Respondent Nos. 4 to 7 in the year 1993. The
learned Senior Counsel further argued that as a natural consequence, the
Appellants herein were under an obligation to have given effect to the
appointment of the Respondent herein as Prosecuting Officer from 1st of
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January, 1993, when the aforesaid persons, namely, Syed Abdul Bari
Andrabi, Riyaz Ahmad Darzi, Murtaza Nasir and Dawood Ahmad Tota,
though being ineligible, had been selected and appointed. It is next argued
that on the inaction on the part of the Appellants herein, the Respondent
filed another Writ Petition bearing SWP No. 1939/2013, which came to be
decided by a Single Bench of this Court on 9th of December, 2013, whereby
the Appellants herein were directed to consider the representation of the
Respondent herein for fixation of his seniority ahead of the private
Respondents in SWP No. 3269/1992 and pass consideration order within
two months. Mr Bhat further argued that, on this direction passed by this
Court, the Appellants, vide Order No. 3060 of 2014 dated 29th of
November, 2014, passed by the J&K Police Headquarters rejected the claim
of the Respondent herein for fixation of his seniority from the date the other
persons with whom he had competed in the selection process had been
appointed. The learned Senior Counsel for the Respondent further argued
that the Respondent has, now, retired upon reaching the age of
superannuation on 31st of March, 2022 and he had also filed an undertaking
prior to his retirement, while his case was being processed, that he shall be
satisfied in case his order of appointment No. 2966 of 2010 dated 15 th of
September, 2010 is given the effect from 8th of August, 1993, on which date
the appointments had been made in favour of the illegal appointees, so that
he is found entitled for calculation of pensionary benefits and with no claim
of monetary benefits, besides the notional appointment as suggested shall
only be for reckoning purpose of seniority of the Respondent herein for
calculating his pensionary benefits and not the monetary benefits to which
he reserves his right from the date of his actual appointment, i.e., 15 th of
September, 2010. The learned Senior Counsel has further argued that the
Appellants herein have not given a fair deal as was required under the
service jurisprudence to the Respondent for the reasons that, firstly, he,
being eligible and meritorious, was not selected and ineligible and less
meritorious candidates were selected; second, his seniority was not fixed
from the date the illegal appointments were made and he was compelled to
file litigation in the Court on different occasions as his genuine case was not
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settled by the Appellants. He has further argued that the Respondent, who
should have been in service right from the year 1993, was appointed in the
year 2010 after a long-drawn litigation and he, accordingly, retired from the
service after putting in less than 12 years only, as such, he was not even
entitled to full pension as he should have been. It is also argued that the
Respondent, now, after his superannuation seeks his seniority above the
batch of Prosecuting Officers of the year 1995 and below the batch of 1998
as per his undertaking, that too for the purposes of reckoning his service for
calculation of his pensionary/ retiral benefits. In this backdrop, the learned
Senior Counsel prayed that the impugned final Order/ Judgment passed by
the learned Single Judge is a reasoned one and does not call for any
interference in this intra Court appeal and, therefore, the appeal be
dismissed with costs.
09. We have heard the learned Counsel for the parties, perused the
pleadings on record and considered the matter.
10. An advertisement had been issued by the Appellants herein on
10th of September, 1991 by the J&K Police Headquarters for recruitment for
the posts of Prosecuting Officer in the Jammu and Kashmir Police with
qualification of Law Graduation and two years Bar practice. The
Respondent herein, besides other candidates, applied for the said posts,
however, he was not selected and he had challenged the selection list,
particularly the selection of some ineligible candidates, who were stated to
not have the requisite qualification/ eligibility for the said posts and filed a
Petition bearing SWP No. 3269/1992. This Petition filed by the Respondent
was decided on 26th of November, 2009 by the Writ Court holding that the
private Respondents/ selectees were ineligible, however, it would be harsh
to direct their termination and, while allowing the Petition, the Appellants
herein were directed to consider the case of the Respondent herein for his
appointment against the post of Prosecuting Officer and pass appropriate
orders within four weeks. It appears that the Respondent herein was,
thereafter, appointed as Prosecuting Officer vide Order No. 2966 of 2010
dated 15th of September, 2010 as Prosecuting Officer by the Director
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General of Police, Jammu and Kashmir. Since, the appointment order did
not provide for his retrospective appointment from the date when other
selectees had been appointed, the Respondent herein filed a representation
which did not evoke any response, as such, the Respondent herein again
filed Writ Petition bearing SWP No. 1939/2013 which was disposed of by
this Court vide Judgment dated 9th of December, 2013 with a direction to
the Appellants herein to consider the representation filed by the Respondent
herein. The representation so filed by the Respondent herein was also
rejected by the Appellants herein vide Order No. 3060 of 2014 dated 29th of
November, 2014. Aggrieved of this rejection Order of his representation
filed for fixation of seniority, the Respondent herein was constrained to file
another Writ Petition bearing SWP No. 2276/2015, seeking quashing of the
consideration order and, vide Judgment dated 18 th of September, 2018, the
Petition filed by the Respondent herein was allowed and the rejection order
was quashed with a further direction that the Respondent herein shall figure
over and above the heads of private Respondents in the order of seniority
with all consequential benefits, including the promotions.
11. The Hon'ble Apex Court, in a case titled 'Inder Parkash
Gupta v. State of JK & Ors.', reported as '2004 (6) SCC 786', while
dealing with a case of identical facts and after taking an overall view of the
matter, concluded that the Appellant therein, in view of the Judgment of the
High Court, was not only entitled to be placed in the select panel above the
private Respondents therein, but also should have been given all
consequential benefits which would include the monetary benefits,
seniority, etc. It was further held by their Lordships in the aforesaid
Judgment that in ordinary course, we would have allowed the appeal, but
we cannot lose sight of the fact that the selections had been made in the
year 1994, meaning thereby that a valuable period of 10 years has elapsed
and the private Respondents had been working in their positions for the last
ten years. The Hon'ble Supreme Court, finally, observed that the interests
of justice would be subserved if the State is directed to fully comply with
the directions of the High Court by giving all benefits to the Appellant
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therein, including monetary benefits and seniority by placing him in the
select list above the private Respondents therein.
12. The Hon'ble the Supreme Court, in another case titled 'Sanjay
Dhar v. JK Public Service Commission & Anr.', reported as '2002 (8)
SCC 182', wherein the experience certificate of two years practice at Bar
was disputed, as having been issued by the Registrar of Delhi High Court
and not by the District Judge in terms of the Rules, and the Appellant
therein had not been appointed in the year 1995 pursuant to the selection of
1992/93, however, the Hon'ble Apex Court ordered that his seniority be
fixed as per his merit in the list of 1995 holding that he was fully entitled to
the relief of his appointment being calculated w.e.f. the same date with
which the candidates finding their place in the order of appointments issued
pursuant to the select list prepared by the J&K Public Service Commission
for 1992-93 were appointed and that he deserves to be assigned notionally a
place in seniority consistently with the order of merit assigned by the J&K
Public Service Commission.
13. From a plain reading of the impugned final Order/ Judgment,
we find that the learned Single Judge has rightly held that the
Petitioner/Respondent herein could not have been denuded of his right for
having meritoriously made his place in the selection list and that merit
cannot, at any stage, be changed into demerit and, vice-versa, demerit
cannot be changed into merit. In view of the law laid down on the subject
by the Hon'ble Apex Court and this Court as well, the Respondent herein,
under no circumstances, can be thought to have been figuring junior to the
private Respondents who were not even eligible or meritorious and had,
instead, occupied their positions by deceit and fraud. It was the learned
Single Judge of this Court who had come to their rescue by holding that it
will not be in the interests of justice to direct their termination after they
have served the Department for a great deal of time.
14. Apart from the above, we also find that the learned Single
Judge had rightly held that the Respondent herein had to and has to steal a
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march over and above the heads of the private Respondents, as a corollary
to which he has to be ranked senior to them and that the private
Respondents cannot figure at a higher pedestal when they played fraud in
the matter of their selection and appointment as Prosecuting Officers.
15. The Respondent had participated in the selection process along
with other selectees, out of whom private Respondents before the Writ
Court were ineligible also. The Respondent succeeded in his Petition for
appointment as Prosecuting Officer, as such, the Appellants were directed
to appoint him as well. He was entitled to be given all the benefits that were
admissible to him, for his deemed selection to the process initiated in the
year 1991 by the J&K Police, which were not provided to him by the
Appellants, by taking umbrage under the plea that the Court did not direct
them to do so. Such inaction, on the part of the Appellants, per se, appears
to be not only bad, but violative of Articles 14 and 16 of the Constitution of
India as well, inasmuch as his fundamental rights were infringed by the
Appellants, particularly in the face of the appointment of ineligible
candidates, ignoring eligibility and merit of the Respondent.
16. Without going into the actual fixation of seniority of the
Respondent as Prosecuting Officer, this Court takes notice of the
undertaking filed by the Respondent before a designated committee of the
Jammu and Kashmir Police Headquarters which has been brought to our
notice by the learned Counsel for the Respondent, wherein the Respondent
has restricted his claim of seniority to be fixed below the batch of
Prosecuting Officers of 1995 and above the batch of 1998, besides the
seniority being notional for the purpose of retiral/ pensionary benefits and
not for monetary benefits. Having said so, on a consideration of the
impugned Judgment passed by the learned Single Judge, we are of the
considered opinion that there is no merit in the instant appeal preferred by
the Appellants against the impugned final Order/ Judgment passed by the
learned Single Judge.
17. However, in view of the peculiar facts and circumstances of
the case, coupled with the submissions made by the learned Counsel for
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both the sides and having regard to the undertaking filed by the Respondent,
we direct as under:
i. The Respondent herein shall be deemed to have been appointed on 1st
of January, 1993 notionally;
ii. The said notional appointment shall be for the purposes of reckoning
his length of service for calculation of his pensionary benefits; and
iii. The Respondent herein shall be entitled for actual monetary benefits
of service from the date of his actual appointment, i.e., 15th of
September, 2010.
18. Disposed of as above, along with the connected CM.
19. Writ Court record be returned.
(M. A. CHOWDHARY) (N. KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
SRINAGAR
August 3rd, 2023
"TAHIR"
i. Whether the Judgment is speaking? Yes/ No.
ii. Whether the Judgment is reportable? Yes/ No.
