Jammu & Kashmir High Court
Reserved On: 29.08.2024 vs The State Of Jammu And Kashmir Through; ... on 7 October, 2024
Author: Sanjay Dhar
Bench: Sindhu Sharma, Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
JAMMU
SWP No. 1840/2007
Reserved on: 29.08.2024
Pronounced on: 07.10.2024
1 Sh. Ashwani Kumar Sharma son of Sh. Gian Chand Sharma resident
of village Fatwal Tehsil Bishnah District Jammu
2. Sh. Aijaz Ahmed Khan son of Sh. G.N.Khan resident of
Maharajpora Batmalu Srinagar.
3. Sh. Deepak Sethi son of Sh. Ghan Shyam Sethi resident of 165
Kachhi Chawani Jammu
4. Sh. Sunil Sangra son of Sh. Dwarka Nath Sangra resident of House
No. 153 Maheshpura Jammu
5.Sh. Mohd Ashraf son of Sh. Sher Din Khan resident of village
Bigwar Tehsil Haveli District Poonch.
6. Sh. Mohd Anwar Alnasir son of Sh. Majid Anwar Salaria resident of
128 Gujjar Nagar Jammu.
7. Sh. Rajesh Kumar Abrol son of Sh. Ishwar Dass Abrol resident of
House No. 6 Gali Kaka Ram Pacca Danga Jammu.
...petitioners
Through: -Mr. R.S.Thakur Sr. Advocate with
Mr. Ashwani Thakur Advocate
Vs
1.The State of Jammu and Kashmir through; a). The Chief Secretary,
Government of Jammu and Kashmir, Jammu. b) the
Commissioner/Secretary, Law Department, Government of Jammu and
Kashmir; (c ) The Commissioner/Secretary, General Administrative
Department,Government of Jammu and Kashmir, Jammu/Srinagar.
2 The High Court of Jammu and Kashmir, through the Registrar
General,Jammu.
3: The Jammu and Kashmir Public Service Commission, through its
Chairman,Jammu/Srinagar.
4. Sh. Riaz-ul-Haq Mirza, S/o Sh. Nissar Hussain Mirza.
5-Sh. Mahmood Ahmed Chowdhary, S/o Sh: Lạl Mohd. Sabir, R/o
H.No.17, Gujjarnagar, Jammu.
6 Sh. Ranbir Singh Jasrotia, S/o Sh. Kishan Singh Jasrotia, R/o H.No.
152,Sector 6, Street No.5, Nanak Nagar.
7.Sh. Sarfaraz Hussain Shah, S/o Sh. Fazal Hussain Shah.
8..Sh. Balbir Lal, S/o Sh. Thoru Ram, R/o Village Mandigarh Samba
9. Sh. S.C. Katal, S/o Late Swami Raj Katal, R/o H.No. 183-B, Ram
Vihar Old Janipur, Jammu.
10.Sh. Khalil Ahmed Chowdhary, S/o Sh. Mohd. Shafi
11. Sh. Chain Lal Babria, S/o Sh. Amarnath, R/o 5/117, Vikas Nagar,
Janipur Jammu.
Page 1 of 15
2
12. Ms. Kusum Lata Pandita, D/o Pitambar Nath Pandita, R/o
H.No.623, Janipur Housing Colony, Jammu
13. Sh. Mohd. Rafiq Chak, S/o Sh. Ahmed Din Chak, R/o Opp. Shiv
Art Painters, Mohalla Ustad Jammu
14.Sh. Vijay Manhas, S/o Sh. Natha Singh Manhas, R/o 202, Block 'D',
Lower Shiv Nagar Jammu.
15. Sh. Mohd. Yousuf Allie, S/o Sh. Gulam Ahmad Allie, R/o VPO
Mirgund Pattan, Baramulla.
...respondents
Through: -Ms Nazia Fazal Advocate
vice Ms Monika Kohli Sr. AAG
Mr C.M.Koul Sr. Advocate with
Mr. A.R.Bhat Advocate
Mr. Rajnish Raina Advocate
Mr. M.A.Bhat Advocate.
Mr. Rahil Raja Advocate.
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA,JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar, J
1 The petitioners and private respondents No. 4 to 15 were
appointed as Munsiffs in the District Judiciary of erstwhile Jammu and
Kashmir State in terms of Government Order No. 662-LD(A) of 2000
dated 20.04.2000 read with Government Order No. 1339-LD(A) of
2000 dated 25.08.2000 pursuant to their selection on the basis of a
competitive test conducted by the Jammu and Kashmir Public Service
Commission (hereinafter referred to as „PSC‟) in accordance with the
provisions contained in Jammu and Kashmir Civil Services (Judicial)
Recruitment Rules, 1967 (hereinafter referred to as the „1967 Rules).
Through the medium of present writ petition, the petitioners have called
in question the seniority position accorded to them vis a vis the private
respondents who belong to various reserved categories.
2 It appears that the PSC while initiating the process for
recruitment against the vacancies of Munsiffs as requisitioned by the
High Court, utilised the roster point from 31 to 63. After conducting the
examination, the PSC prepared a select list of candidates in the order of
merit/category-wise which was approved by the Government in terms
of Government Order No. 6469 LDA of 1999 dated 13.12.1999 read
with Government Order No.02-LDA of 2000 dated 20.01.2000. The
select list was prepared by the PSC in terms of Rule 13(ii) of 1967
Rules which provides 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. The said rule further provides
that the candidates, who are found by the Commission to be qualified
in the examination, would be recommended for appointment up-to the
number of unreserved vacancies, decided to be filled on the result of
examination. As already indicated, the select list was approved by the
Governor in terms of Rule 39 of 1967 Rules, pursuant whereto,
appointment orders in respect of (34) Munsiffs (hereinafter referred to
as „Munsiffs of 2000 batch‟) were issued in terms of Rule 42 of 1967
Rules.
3. It appears that the High of Jammu and Kashmir, upon
appointments of Munsiffs of 2000 batch which include the petitioners
and the private respondents, fixed their seniority in terms of the note
approved by the Hon‟ble Chief Justice on 12.08.2000 read with Order
No. 374 dated 22.08.2003 not as per merit, but as per the Roster for
direct recruitment provided under Rule 14 of Jammu and Kashmir
Reservation Rules, 1994 (hereinafter referred to as „1994 Rules‟).
4. The legal issue which falls for our determination in this
case is as under:
"whether the seniority of candidates appointed by direct
recruitment on the basis of a competitive examination has
to be fixed with reference to the merit obtained by them in
the competitive examination or the same has to be fixed
with reference to the position in the Roster meant for
according reservation to different categories"?.
5 It has been contended by the petitioners that so far as the
1994 Rules are concerned, the same have nothing to do with the
fixation of seniority. It is being contended that the roster points
provided in Rule 14 of 1994 Rules are meant for earmarking number of
vacancies to different reserved categories and the same cannot be made
basis for fixation of seniority of the candidates. It has been further
contended that the only criteria for fixation of seniority of Munsiffs,
who have been selected on the basis of a competitive examination, is
merit obtained by them in the said examination which is clear from the
provisions contained in Rule 24 (1)(b) of Jammu and Kashmir Civil
Services Classification, Control and Appeal Rules, 1956
(hereinafter referred to as '1956 Rules')
6 Per contra, the private respondents have contended that
Rule 24 of 1956 Rules cannot be made applicable for fixation of
seniority of the Judicial Officers as the said Rules have not been
adopted by the High Court of Jammu and Kashmir. It has been
contended that in the Rules of 1967, it is nowhere provided that, 1956
Rules, or any other Rules applicable to the State Government
employees would govern the fixation of seniority of Judicial Officers.
According to the private respondents, in the absence of any rules on the
subject, it was open to the High Court to adopt any criteria/procedure
for fixation of seniority. It is being contended that the High Court, in its
wisdom, has adopted the method of fixing the seniority of Judicial
Officers as per the roster provided under 1994 Rules and this has been
the practice even in the previous past as well. It has been contended
that the seniority of the Munsiffs appointed in the year 1995 and in the
year 1997 has also been fixed in the similar manner. According to the
private respondents, the High Court in exercise of its powers under
Article 235 of the Constitution, is vested with jurisdiction to adopt a
criteria/method for fixation of seniority in the absence of any statutory
rules on the subject, as such, the petitioners cannot contend that the
merit alone should be the criteria for fixation of seniority of Munsiffs.
7. The private respondents have further contended that, at the
relevant time, the law laid down by the Supreme Court in
P.S.Ghalaut vs State of Haryana, (1995) 5 SCC 625 was holding the
field and as per the ratio laid down in the said judgment, it was legally
permissible to fix the seniority in accordance with the roster points
meant for reservation of posts. Thus, the manner, in which the seniority
of Munsiffs of 2000 batch was fixed, was perfectly in accordance with
law. It has been contended that the law laid by the Supreme Court in
Bimlesh Tanwar vs State of Haryana (2003) 5 SCC 604 cannot be
made applicable to the present case as the seniority of Munsiffs of
2000 batch has been fixed before the judgment in Bimlesh Tanwar's
case (supra) was delivered by the Supreme Court.
8 It has also been contended by the respondents that the
petitioners have approached this Court belatedly, in as much as the
seniority of Munsiffs of 2000 batch was fixed in the year 2000, but they
have filed the writ petition only in the year 2007, therefore, they have
acquiesced in the action of the High Court relating to fixation of their
seniority. It has been contended that during the interregnum the rights
of private respondents have been crystallized and the seniority fixed in
the year 2000 has been acted upon, inasmuch as, some of the private
respondents have been granted promotion to the posts of Sub-Judge
even before filing of the writ petition. It has been contended that
undoing the seniority fixed at this stage would unsettle the whole
position and there would be chaos and confusion in the District
Judiciary. Lastly, it has been contended that during pendency of this
writ petition, all the petitioners as well as the private respondents have
been appointed to the Higher Judicial Service on the basis of their merit
and suitability and this position has not been assailed by the petitioners
by making appropriate amendment(s) to the writ petition, as such, it
would not be open to this Court to unsettle the said position.
9 So far as the stand of the High Court is concerned, it has
justified the fixation of seniority on the ground that it has only followed
the practice prevalent in the previous past. It has been submitted that in
the previous past, the seniority of the Judicial Officers was being fixed
on the basis of roster points as contained in Rule 14 of 1994 Rules and
the same methodology has been adopted in the instant case as well.
10 We have heard learned counsels for the parties and
perused the record.
11 Before proceeding to deal with the rival contentions raised
by learned counsels appearing for the parties, it is pertinent to mention
here that a similar issue was dealt with by this Court in a writ petition
filed by Munsiffs of 2003 batch bearing SWP No. 1350/2011 titled
„Arvind Sharma and ors vs. State and others‟ and SWP
No. 748/2008 titled „Shabir Ahmed Malik and others vs State and ors‟.
The said petitions were decided by a Division Bench of this Court of
which one of us (Sanjay Dhār-J) was a member in terms of judgment
dated 27.05.2022 and it was held that the seniority of the Munsiffs has
to be fixed strictly in accordance with the merit obtained by the
selected candidates in the examination conducted by the PSC and not
with reference to the roster points. The said judgment was assailed by
some of the respondents therein before the Supreme Court by filing a
Special Leave Petition. The said SLP came to be dismissed by the
Supreme Court by a detailed judgment reported in (2022) 3 SCC 448
(Manoj Parihar and ors vs. State and ors).
12 In the aforesaid judgment, the Supreme Court has, while
upholding the view of Division Bench of this Court that the senority of
the Munsiffs has to be fixed strictly as per the merit obtained by them
in the competitive examination, observed that the Roster system is only
for the purpose of ensuring that the quantum of reservation is reflected
in the recruitment process. The Supreme Court further went on to hold
that the Roster system has nothing to do with the inter se seniority
among those recruited. It was held that the roster points do not
determine the seniority of the appointees who gain simultaneous
appointments i.e those who are appointed collectively on the same date
or are deemed to be appointed on the same date, irrespective of when
they joined their posts. The Supreme Court went on to hold that the
position of law as discussed could be said to be prevailing even while
the High Court of Jammu and Kashmir decided by a Full Court
Resolution to determine the seniority on the basis of roster points. The
Supreme Court also held that the law declared by it in Bimlesh
Tanwar's case (supra) is actually a declaration of law and the same
will have retrospective effect. It was further held by the Supreme Court
that anything done as a consequence of the decision in P.S.Ghalaut's
case (supra) cannot stand, because in Bimlesh Tanwar's case, no
provision for prospective overruling was made in express terms.
13 It is pertinent to mention here that in Bimlesh Tanwar's
case (supra), it has been clearly held that the seniority is not to be fixed
in terms of the roster points as the roster points are only applicable in
the case of an appointment(s) and not for fixation of seniority. In the
said case, the ratio laid in P.S. Ghalaut's case (supra) was overruled
and termed as „not a good law‟.
14 The ratio laid down by the Supreme Court in Manoj
Parihar's case (supra) leaves no manner of doubt in concluding that
the seniority of Munsiffs in the erstwhile State of Jammu and Kashmir
was required to be fixed strictly in accordance with the merit obtained
by them in the selection process undertaken by the PSC and that the
roster points have nothing to do with the fixation of seniority. We are
also of the view that the stand of the High Court that the seniority of the
Munsiffs was being fixed with reference to the roster points as provided
in the Rules 1994, on the basis of past practice which may have had the
approval of the Hon‟ble Chief Justice or the Full Court, does not alter
the situation. As already indicated, the Supreme Court in Manoj
Parihar‟s case (supra) has held that any such practice or resolution of
the Full Court does not stand in view of the law laid down by it in
Bimlesh Tanwar‟s case (supra) which has retrospective application.
Similarly, the private respondents cannot take refuge under the ratio
laid down by the Supreme Court in P.S.Ghalaut's case (supra) because
the same has been overruled by the Supreme Court in Bimlesh
Tanwar's case (supra).
15 In the face of the aforesaid situation, there is no manner of
doubt in holding that the methodology adopted by the respondent-High
Court in fixing the seniority of Munsiffs of 2000 batch is wholly
erroneous and without any sanction in law. The only method by which
the seniority of Munsiffs of 2000 batch could have been fixed is based
upon their position in the merit obtained in the competitive examination
conducted by the PSC.
16 That takes us to the question as to whether, at this stage, it
would be open to this Court to unsettle the seniority which has been in
operation for the last so many years. In this regard, the learned counsel
appearing for the private respondents has vehemently contended that
the petitioners have approached this Court after seven years of fixation
of their seniority and, by that time, even the promotion of some of the
private respondents had already taken place, as such, on account of
delay and laches, it is not open to the petitioners to challenge the
seniority. To support their contention, the private respondents have
relied upon judgment of the Supreme Court in the case of Shiba
Shankar Mohapatra & ors vs State of Orissa & ors, (2010) 12 SCC
471 wherein it has been held that a belated dispute as to long standing
seniority cannot be allowed to be maintained. It has also been held in
the said case that a period of 3 to 4 years is a reasonable period for
challenging the seniority.
17 In the instant case, the seniority of the petitioners and the
private respondents was fixed by the High Court in terms of approval
accorded by Hon‟ble Chief Justice on 12.08.2000. Seniority of one of
the private respondents, namely Sh. Suresh Chander Katal was fixed on
06.08.2003. Pursuant to the direction of this Court, the Registrar
General of this Court has filed an affidavit dated 25.07.2023 in which it
has been stated that gradation lists dated 01.07.2000 and 01.07.2003
were circulated amongst the Judicial Officers meaning thereby that
after fixation of seniority of the petitioners and the private respondents,
the first gradation list, that was circulated, is dated 01.07.2003. It has
been admitted by the respondent-High Court in its counter affidavit that
a representation was made by one of the petitioners in the year 2003
which was rejected by the High Court and the same was communicated
to the Officer on 09.10.2003. It has also been admitted in the counter
affidavit filed by the High Court that another representation dated
21.12.2004 was received by it. The petitioners have also placed on
record copies of further representations which are stated to have been
received by the High Court. When their grievance was not redressed,
the petitioners filed the present writ petition on 08.06.2007.
18 From the aforesaid sequence of events, it can safely be
stated that the petitioners have not slept over the matter relating to
fixation of their seniority, but it is a case where the petitioners have
been agitating the matter relating to fixation of their seniority
repeatedly with the High Court by filing representations. It is not a case
where the petitioners have waited for unreasonably long time after
submission of their representations for approaching the Court The
record clearly shows that the petitioners have been prompt in agitating
their rights by making representations with the respondent- High Court
and they have approached this Court within a reasonable time. Even
otherwise, the aspect of delay in approaching the Court has been dealt
with by the Supreme Court in Manoj Parihar's case (supra) by
placing reliance upon its earlier judgment in G.P. Doval vs
Government of UP (1984) 4 SCC 329. In the said judgment, it has
been held by the Supreme Court that delay would be of no consequence
in challenging the seniority list which has been prepared illegally. In
the face of this position of law, the contention of the private
respondents, that the petitioners have approached this Court belatedly,
appears to us, without any merit.
19 That takes us to the contention of the private respondents,
that during pendency of the writ petition, petitioners No. 1 to 5 and
private respondents except private respondent no. 15 have been
appointed/promoted to the Higher Judicial Service, which is a different
service, as such, without assailing the appointment/promotion of
private respondents to the Higher Judicial Service, no relief can be
granted in favour of the petitioners. The said contention is also without
any merit, for the reason that, so far as the promotion of Civil Judges
(Senior Division) to the Higher Judicial Service is concerned, the same
may be based upon merit-cum-seniority, but the fact of the matter
remains that the seniority is one of the important factors in appointment
to the said service. It may be a fact that the primary consideration for
appointment/promotion to the Higher Judicial Service from the cadre of
Civil Judges (Senior Division) is merit and suitability, but, in the
instant case, petitioners No. 1 to 5, although promoted to the Higher
Judicial Service at a later point in time, were found suitable for their
promotion. Therefore, it has to be inferred that aforesaid petitioners No.
1 to 5 were suitable for promotion to the said service on the date(s)
when the private respondents were considered and promoted to the
Higher Judicial Service in their place. Having regard to the settled legal
position that it is the merit and not the roster point which determines
the seniority, the appointment of petitioners No.1 to 5 to the Higher
Judicial Service has to be worked out after re-fixation of the seniority
in accordance with their merit position determined by the PSC.
20 However, aforesaid position would not be applicable to the
cases of petitioners No. 6 and 7. Petitioner No. 6 has been superseded a
number of times as has been clearly indicated by the private
respondents in their counter affidavit which is not in dispute. So far as
petitioner No. 7 is concerned, he is stated to have been terminated from
service and this fact is also not in dispute. Private respondent No. 15 is
also stated to have been terminated from service. So, to the extent of
petitioners No. 6 & 7 and private respondent No. 15, the exercise of re-
fixation of seniority is not required to be undertaken. Similarly,
petitioner No. 5, respondents No. 4, 7 and 14 have superannuated from
service and in their cases also, re-fixation of their seniority would only
be an academic exercise.
21 Lastly, it has been contended that if seniority of the
Munsiffs of 2000 batch is re-fixed at this stage, it would unsettle the
settled position relating to seniority and the same may not be in the
interests of the Institution. In this regard, it is to be noted that pursuant
to the judgment passed by the Supreme Court in Manoj Parihar's case
(supra), seniority of Munsiffs of 2003 batch has already been re-fixed.
So far s the seniority of the Munsiffs from 2010 batch onwards is
concerned, the same is being fixed in terms of the ratio laid down by
the Supreme Court in Bimlesh Tanwar's case (supra), as such, there is
no requirement of re-fixing of the same. The re-fixation of seniority is
required to be undertaken in respect of Munsiffs of 2000 batch and
Munsiffs of 2001 batch only. Since the question relating to re-fixation
of seniority for Munsiffs of 1995 batch and Munsiffs of 1997 batch is
not under consideration before us, as such, to give it a quietus, we are
of the view that only the seniority of Munsiffs of 2000 and 2001
batches is required to be re-fixed in accordance with the ratio laid
down by the Supreme Court in Manoj Parihar's case (supra) which is
equally applicable to the present case.
22 In order to take care of concern of the private respondents
that re-fixation of seniority would result in unsettling the settled
position is concerned, it can be provided that the directions for
re-fixation of senority would apply in respect of Munsiffs of 2000 and
2001 batches only and the rights already accrued to the judicial officers
who have been placed in a higher position in the seniority list should
not be upset. In other words, any promotions or higher grades already
granted to the private respondents, or to others who may be impacted
by the re-fixation of seniority, shall not be disturbed. The revised
seniority list will not result in previously promoted Judicial Officers or
those granted higher grades being demoted to a lower position.
23 Accordingly, the writ petition is disposed of with the
following directions:
(i) The seniority list of the Munsiffs of 2000 and 2001
batches prepared by the High Court is quashed. The
revised seniority list of the Munsiffs of aforesaid two
batches shall be prepared by the High Court on the basis of
marks obtained by them in the competitive examination
held by the PSC;
(ii) The above direction will not apply to appointees
recruited to the posts of Civil Judges (Junior Division)
prior to the batches of the year 2000;
(iii) Promotions/higher grades obtained by the Munsiffs of
the batch of 2000 and 2001 till date will remain unaffected
by this judgment in the sense that no-one already
promoted/granted higher grade should be demoted to a
lower grade/post;
(iv) Even if the revision results in a higher-ranked officer
remaining in a lower position than a lower-ranked officer,
promotions will be based on the availability of prospective
vacancies in the promotional post/higher grade.
(v) Such of the Judicial Officers, including petitioners No.
1 to 5, who, on account of the impugned seniority fixed by
the High Court, were not granted promotion/higher grades
on time and, therefore, could not gain requisite experience
for placing them in higher grades, would be held eligible
for such grades, if the vacancies in those grades are
available;
(vi) Since the Munsiffs of 2001 batch are not before us, as
such, we request Hon‟ble the Chief Justice to constitute a
Committee of Hon‟ble Judges to hear all those officers of
2000 and 2001 batches, who may be affected by this
judgment before undertaking the process of re-fixation of
seniority in accordance with the directions passed in this
judgment.
(Sanjay Dhar) (Sindhu Sharma)
Judge Judge
Jammu
07 .10.2024
"Sanjeev"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
