Jammu & Kashmir High Court
High Court Of J&K vs Tahir Khurshid Raina on 16 February, 2024
Bench: Rajnesh Oswal, Rahul Bharti
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT JAMMU
(Through virtual mode)
Reserved on: 12.02.2024
Pronounced on: 16.02.2024
CM 340/2024 in RP 74/2023
High Court of J&K
... Petitioner/Appellant(s)
Through: Mr. Aditya Gupta, Advocate
V/s
Tahir Khurshid Raina
... Respondent(s)
Through: Mr. Rahul Pant, Senior Adv. with Mr. Dhruv Pant, Adv.
Mr. K. S. Johal, Senior Adv. with Mr.Karman Singh Johal, Adv.
CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
16.02.2024
Per Rahul Bharti J'
1. The High Court of J&K and Ladakh finds itself on the horns
of a dilemma. On its judicial side, in terms of a judgment
dated 05.12.2022 passed in a writ petition SWP 2224/2018
titled "Tahir Khurshid Raina Vs. High Court of J&K and
others" by the Division Bench comprising of the then Chief
Justice Mr. Justice A. M. Magrey (as his lordship then was)
and one of us (Rahul Bharti J.), the High Court came to be
mandated with a directive to decide and notify the seniority of
the District Judges in tune with the Rules and application of
the J&K Higher Judicial Service Rules, 2009 and as settled by
the Hon„ble Supreme Court of India within two months‟ time
given for doing the needful with a rider that while deciding
and finalizing the seniority the affected parties, if any, are to
be heard. A prohibition came to be appended to the direction
as given in terms of the judgment that till the time the
seniority is finalized as directed; the grant of Super Time
Scale in the Higher Judicial Service shall stay deferred.
2. A review of this judgment has been sought by the High Court
of J&K and Ladakh which review petition is now pending
before us on the grounds as set up therein one of which being
that the adjudication of the writ petition came to take place
without full picture of facts taken cognizance of by the
Division Bench at the time of passing of the judgment. This
review petition has been entertained for adjudication.
3. During the pendency of this review petition, the High Court
finds itself pressed with an urgency to carry out a promotion
exercise of the judicial officers, in particular, of the Higher
Judiciary (District) in view of the directions of Hon‟ble
Supreme Court of India coming forth in the case of "All India
Judges Association vs. Union of India and others" in terms
of an order dated 29.05.2023.
4. The directions so given by the Hon‟ble Supreme Court of
India have been reproduced in the application CM 340/2024
filed by the High Court of J&K, as a review petitioner, and
which directions for the facility of reference are reproduced
herein:
"44.16 (i) The post of District Judges (Selection Grade) shall be
increased to 35% of the cadre strength as against existing 25%, and
the District Judges (Super Time Scale) shall be increased to 15%
of the cadre strength as against the existing 10%. It will be
effective from 01.1.2020."
5. Three (3) months‟ time has been given by the Hon‟ble
Supreme Court of India for carrying out application of the
recommendations by calling upon all the respective High
Courts to file affidavits within a period of four months
reporting compliance.
6. Given the fact that the vexed issue of settlement of seniority of
the District Judges in the Higher Judicial Service of the
Jammu & Kashmir and Ladakh in the context of direct recruits
and promotees, is going to take time even when the time
duration of two months given in its judgment by the Division
Bench has long expired and there is a simultaneous stay
operating against grant of Super Time Scale, the High Court is
caught in a Catch-22 situation and, therefore, has come up
with an application CM 340/2024 seeking permission for
initiating promotion to the Selection Grade as well as Super
Time Scale of the Higher Judicial Service in compliance to the
directions of the Hon‟ble Supreme Court of India and then
enable itself to submit the requisite affidavit before the
Hon‟ble Supreme Court of India.
7. The writ petitioner in SWP 2224/2018 is a direct recruit
District Judge pursuant to selection process which had come to
be set into effect in August 2011 and matured in 2013.
8. At the time of institution of the writ petition, the writ
petitioner was concerned in the context of his seniority vis-à-
vis two promotee District Judges as named in the writ petition
and was, thus, seeking, as one of the reliefs, in fact, as a lead
relief in the writ petition, the consideration of his case for
grant of Selection Grade along with cases of other direct
recruit District and Sessions Judges in accordance with the
J&K Higher Judicial Services Rules, 2009.
9. In that context, the writ petitioner insisted for segregation of
inter se seniority of the direct recruit and promotee District
Judges as envisaged under the J&K Higher Judicial Service
Rules 2009.
10. The institution of the writ petition had taken place in 2018
while its disposal came to take place in December 2022.
During this intervening period, a development of importance
came to take place in the manner that vide an Order no. 183 of
2021/RG dated 30.3.2021 passed by the High Court of J&K
and Ladakh, six (6) number of District Judges came to be
granted the Selection Time Scale (57,700-1230-58,930-1380-
67,210-1540-70,290) of the J&K Higher Judicial Services.
These six (6) District Judges granted and placed in the
Selection Time Scale included the promotee District Judges as
well as the direct recruit District Judges, one of them being the
petitioner.
11. The grant of Selection Time Scale in terms of the aforesaid
order no. 183 in the context of the petitioner and other direct
recruit District Judge Mr. Haq Nawaz Zargar was kept subject
to outcome of litigation pending before the Hon‟ble Supreme
Court of India. Nevertheless, the writ petitioner came to avail
the grant of Selection Time Scale along with promotee District
Judges and thus did not insist for settlement of inter se
seniority at the first instance and the grant of Selection Time
Scale later.
12. This intervening aspect escaped notice and mention before the
Division Bench before and while passing the judgment dated
05.12.2022 bearing the direction of finalization of the
seniority and till that happening the stay of grant of Super
Time Scale.
13. However, direction with respect to deferment of the process of
grant of Super Time Scale as imparted in the judgment dated
05/12/2022 by the Division Bench, now when examined in the
context of the cause agitated by the writ petitioner in his writ
petition, prima facie seems to be out of sync as in his writ
petition the petitioner was relating his cause with respect to
Selection Time Scale which he came to avail during the
pendency of the writ petition itself that too without insisting
for settlement of inter se seniority in terms of rule 17 and then
not apprising the Division Bench, hearing and disposing of the
writ petition, about the said aspect. In fact, even the High
Court of J&K and Ladakh as respondent in the writ petition
defaulted in apprising the said fact at the relevant point of time
to the Division Bench.
14. There is no and cannot be any escape from the fact that sooner
rather than later the pending settlement of the inter se seniority
of the District Judges as mandated by rule 17 read with
schedule B of the J&K Higher Judicial Service Rules, 2009 is
to be carried out as a course correction by the High Court of
J&K and Ladakh with or without the judgment dated
05.12.2022 but it equally came to be provided by the Division
Bench in its said judgment under review that all the affected
persons/parties are to be heard before deciding and finalizing
the seniority as per the rule requirement, thereby latently
acknowledging that it requires ironing out some long settled
creases obtaining in the cadre of district judges.
15. Thus, to subject the grant of super time scale to stay on hold
till the settlement of inter se seniority of district judges taking
place first within period of two months was an avoidable
direction when now seen in retrospect keeping in view the
mandate of the Hon‟ble Supreme Court of India which has
come interceding.
16. Therefore, the direction deferring grant of Super Time Scale
till finalization of the seniority of District Judges if allowed to
persist is surely going to operate adverse to the interest of the
entire cadre of the District Judges thereby rendering and
risking the exercise with respect to compliance of the
directions of the Hon‟ble Supreme Court of India within the
time given a non-starter with respect to the High Court of J&K
and Ladakh which may result in an utter failure on the part of
the High Court of J&K and Ladakh of compliance of the
Hon‟ble Supreme Court of India‟s direction obtaining in terms
of the order dated 29.05.2023
17. Keeping in view the aforesaid scenario, we are of the
considered opinion that by relaxing the direction of deferment
of grant of Super Time Scale in the J&K Higher Judicial
Services as given in the judgment dated 05.12.2022, no
prejudice whatsoever occasion to the cause of the petitioner,
as anything done pursuant to the modification/relaxation
hereby being given, can, later on, in the course of time be
taken care of by this court, be at its judicial side or on its
administrative side as the case may be.
18. Therefore, this court permits the High Court of J&K and
Ladakh to undertake the requisite exercise towards compliance
of the directions of the Hon‟ble Supreme Court of India and
for that purpose the rider of deferment of grant of Super Time
Scale as imparted in the judgment dated 05.12.2022 shall
cease to be in effect and operation in any manner whatsoever.
Nothing observed herein shall be read as expression of any
observation/opinion with respect to the merits of the review
petition with respect to the judgment dated 05.12.2022.
19. CM disposed of.
20. List the main petition (RP 74/2023) on 13.3.2024.
(RAJNESH OSWAL) (RAHUL BHARTI)
JUDGE JUDGE
Srinagar
16.02.2024
N Ahmad
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
