Jammu & Kashmir High Court - Srinagar Bench
Sher-E-Kashmir Institute Of ... vs Mohammad Ayoub Khan on 14 August, 2023
Page 1 of 5
LPA No. 99/2021
S. No. 17
Regular List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 99/2021 in
SWP No. 1645/2001
CM No. 5321/2021
Sher-e-Kashmir Institute of Medical Sciences Appellant(s)/Petitioner(s)
and Anr.
Through: Mr. Sajad Ashraf, Government Advocate
Vs.
Mohammad Ayoub Khan ...Respondent(s)
Through: Mr. N.A.Beigh, Sr. Adv, with Mr. Irfan Rasool, Adv.
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE RAJESH SEKHRI, JUDGE
ORDER
14.08.2023
Oral:
01. This intra court appeal is directed against the Judgment dated
29th September, 2016, passed by the learned Single Judge of
this Court ("Writ Court") in SWP No. 1645/2001 titled
Mohammad Ayoub Khan vs. S.K. Institute of Medical
Sciences Soura, Sringar and Anr., whereby the Writ Court,
while allowing one of the reliefs claimed by the respondent,
has directed the appellants to accord seniority to the
respondent as per his merit position in the select list with all
consequential benefits. It is this part of the impugned
Judgment, which is assailed before us by the appellants.
02. Mr. Sajad Ashraf, learned Government Advocate, appearing
for the appellants, submits that the respondent, who was
LPA No. 99/2021
appointed vide Order dated 9th January, 1995, along with
others, was to mandatorily join his service on or before 8th
February, 1995. However, he remained absent and joined
only on 9th February, 1996. He, therefore, argues that in view
of the joining of the petitioner on 9th February, 1996, his
seniority cannot be reckoned as per the merit in the select list
to the prejudice of those who had joined their services within
the period stipulated in their appointment orders.
03. Having heard learned counsel for the parties and perused the
material on record as also the Judgment impugned, we are of
the considered opinion that the Judgment passed by the Writ
Court is legally perfect and unexceptionable. The Writ Court
has rightly declined the relief to the respondent seeking to
reckon the period of service spent on temporary/officiating
service towards his seniority. However, the Writ Court came
to a correct conclusion that the respondent was entitled to
seniority as per his merit in the select list for the reason that
having regard to his illness, the appellant had not only
sanctioned the leave for the period of absence, but had, by
issuing a formal order, extended the date of joining.
04. We are also of the considered opinion that once the appellants
extended the period of joining in favour of the respondent and
the respondent submitted his joining report well within the
aforesaid extended period, the benefit of seniority to be
reckoned as per the position of the respondent in the select list
cannot be denied. The Writ Court has extensively dealt with
the issue in the light of judicial pronouncements from this
LPA No. 99/2021
Court as well as from the Hon'ble Supreme Court. We do not
wish to burden this Order with the same Judgments yet again.
It is trite law that the seniority of the appointees is required to
be fixed as per their merit in selection irrespective of date of
joining provided such candidates/appointees have joined
pursuant to their selection within the period stipulated or
permitted. Indisputably, in the instant case, the period
stipulated for joining was one month, but in the case of
respondent, it was, for good reasons, extended up to 9th
February, 1996. Rule 24 of Jammu and Kashmir Civil
Services (Classification, Control and Appeal) Rules, 1956,
specifically takes care of such situation. Rules 24 is set up
below for reference:-
"Rule 24. Seniority.
(1) The seniority of a person who is subject to these
rules has reference to the service, class, category
or grade with reference to which the question has
arisen. Such seniority shall be determined by the
date of his first appointment to such service, class,
category or grade as the case may be.
Note 1. The rule in this clause will not effect
the seniority on the date on which these rules come
into force of a member of any service, class,
category or grade as fixed in accordance with the
rules and orders in force before the date on which
these rules come into force.
Interpretation. The words "date of first
appointment" occurring in the above rule will
mean the date of first substantive appointment,
meaning thereby the date of permanent
appointment or the date of first appointment on
probation on a clear vacancy, confirmation in the
latter case being subject to good work and conduct
and/or passing of any examination or examinations
and / or tests:
Provided that the inter se seniority of two or
more persons appointed to the same service, class,
category or grade simultaneously will,
notwithstanding the fact that they may assume the
duties of their appointments on different dates by
reason of being, posted to different stations, be
determined;
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(a) in the case of those promoted by their
relative seniority in the lower service,
class, category or grade;
(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) as between those promoted and
recruited direct by the order in which
appointments have to be allocated for
promotion and direct recruitment as
prescribed by the rules.
Note 2. Any substantive appointments or
permanent promotions made in any department
prior to 15th May, 1953, will not be disturbed if
otherwise in order unless such appointments or
promotions are already the subject of any appeal,
review or revision or otherwise pending decision.
(2) A member of a service, class, category or
grade, unless he is reduced in seniority as a
punishment shall retain seniority in such service or
grade as determined by sub-rule (1)
notwithstanding any delay in the completion of his
probation or his appointment as a member of such
service, class, category or grade.
(3) Where a member of any service, class,
category or grade reduced to a lower service,
class, category or grade he shall be placed at the
top of the latter unless the authority ordering such
reduction directs that he shall rank in such lower
service, class, category or grade next below any
specified member thereof."
05. From reading of Clause (b) of Rule 24 (supra), it clearly
transpires that as between those recruited direct except those
who do not join their duties when vacancies are offered or
appointment order is issued, seniority shall be assigned to
them as per their merit in the selection.
06. Contextually, if we examine the case on hand, we find that
the respondent was though offered the vacancy/appointment
along with other selected candidate with clear direction to
join duties by or before 8th January, 1995, however, due to
reasons beyond his control, he failed to submit his joining
LPA No. 99/2021
within stipulated period. On his request the appellant, not
only extended the offer to join, but also condoned the absence
by sanctioning leave in favour of respondent.
07. That being the position, it would not be correct to say that the
respondent was a candidate who failed to join within the
period stipulated in the order of his appointment. Having said
that, we find no illegality and infirmity in the Judgment
passed by the Writ Court. This appeal is, therefore, found
devoid of any merit and is, accordingly, dismissed.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR
14.08.2023
"Shamim Dar"
Whether the order is reportable? Yes
Whether the order is speaking? Yes
