Early Times Report
Jammu, Nov 27: In a petition filed by judicial officers of 2003 batch challenging the promotion in reservation category, a Division bench of State High Court comprising Justice Hasnain Massodi and Justice Bawa Singh Walia in a landmark judgment, held that even if reservation in promotion is taken to be permissible, the post of Civil Judge (Senior Division) falls beyond purview of Rule 17 Reservation Rules, 1994 as well as Rule 9 Reservation Rules, 2005 and benefit of reservation cannot be given effect while making promotion to the post.
Division Bench also directed Registrar General to reframe and notify the seniority list in accordance with merit. Division Bench further observed that petitioners case is that the course followed by Registrar General offends Rule 31 of J&K Reservation Rules, 2005 (Reservation Rules, 2005 for short) as also Rule 24 of J&K Civil Services (Classification, Control & Appeal) Rules, 1956. It is pleaded that impugned Gradation List, in effect, changed their seniority position and was issued at their back without affording them an opportunity to put forth their stand and therefore, is violative of principles of natural justice. It is next pleaded that promotion granted to respondents 3 and 4 on the basis of Reserved Category, is not otherwise permissible under Reservation Rules providing for reservation in promotions, in as much as, post of Civil Judge (Senior Division)/Sub Judge) carries pay scale higher to that of Deputy Secretary. It also averred that Roster in present case has been prepared as per Rule 5 J&K Reservation Rules, 2005 least realizing that Roster prepared in terms of Rule 5 is to be used to determine the vacancy position in different categories for direct recruitment and not to give effect to the reservation in promotion provided in Rule 9, Reservation Rules 2005.
Division observed that let us assume for a while (though such assumptions is not available because of clear stand taken by respondent No. 2 that the Gradation List has been prepared having regard to Reservation Rules of 1994), that Gradation List has been prepared in accordance with Rule 10, J&K Reservation Rules, 2005. The list does not even tally with the Roster for Promotion prescribed under Rule 10, Reservation Rules 2005. DB further observed that the Roster prepared in terms of Rule 14 Reservation Rules of 1994, to effect reservation provided under Rule 10 at the time of recruitment, identifies slots for all the reserved categories mentioned in Rule 10. However, Roster prepared under Rule 18 to effect reservation in promotions provided under Rule 17, identifies slots for Scheduled Tribe and Scheduled Caste categories only. The impugned Gradation List on the other hand identifies slots for all the Categories i.e. SC, ST, RBA, OSC, ALC Category. It may be pointed out that while Rule 10 Reservation Rules of 1994 provides for reservation at the stage of recruitment of all the reserved categories, Rule 17 providing for reservation in promotions, restricts such reservation only to SC and ST categories. It does not leave any room for reservation in promotions for Reserved Backward Area, ALC, Social Caste and Other Social Caste Category. The Gradation List, in the circumstances, is neither in tune with the Reservation Rules 1994, nor does it satisfy the requirements of Reservation Rules 2005. It depicts non application of mind and arbitrariness on part of the concerned authority, while fixing inter se seniority of 2003 batch Judicial Officers.
DB further observed that Reservation in promotions under Reservation Rules 1994 as well as Reservation Rules 2005, is restricted upto particular pay scale. The benefit of reservation is not available above the prescribed pay scale. In terms of Rule 17, Reservation Rules 1994 the benefit is available to the pay scale, the maximum of which is Rs.3800. Rule 9 Reservation Rules, 2005 makes the benefit available to the pay scale of Deputy Secretary to Government. The posts above the prescribed pay scale are to be filled up strictly on the basis of merit cum seniority as provided under J&K Civil Services (Classification, Control, Appeal) Rules, 1956. In the said background, even if reservation in promotion is taken to be permissible, (an assumption not available at all in view of above discussion) the post of Civil Judge (Senior Division) falls beyond purview of Rule 17 Reservation Rules, 1994 as well as Rule 9 Reservation Rules, 2005 and benefit of reservation cannot be given effect while making promotion to the post.
It observed petitioners 11 to 16 and Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar figuring at S.Nos. 19 to 27 in order of merit in the Merit List rank senior to respondents 4,5, 7 to 12 at S.Nos. 32, 37, 31, 33, 34, 41, 38, 30 in the Merit List, and already promoted as Civil Judges (Senior Division) vide different High Court Orders including High Court order No. 252 dated 04.07.2015. Petitioners 11 to 16 and Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar, therefore, had a right to be considered for promotions as Civil Judges (Senior Division) ahead of respondents 4,5, 7 to 12. We do not have definite information about the posts of Civil Judges (Senior Division) lying vacant as on date so as to examine whether petitioners 11 to 16 and Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar, directed to be considered for promotion as Civil Judges (Senior Division) against such post without disturbing respondents 4, 5, 7 to 12 and thereafter placed in the seniority list of Civil Judges (Senior Division) to be prepared by respondent No. 2 strictly in accordance with merit. We, therefore, refrain from setting aside the orders whereby respondents 4, 5, 7 to 12 have been promoted as Civil Judges (Senior Division). Court directed respondent No. 2 to undertake an exercise to find out whether any posts of Civil Judge (Senior Division) are lying vacant as on date so that consideration is accorded to petitioners' promotion against available posts within three months from today. In the event, no such post(s) is/are found lying vacant or less than the posts required to consider petitioners 11 to 16 are lying vacant, the order(s) whereby respondents 4, 5, 7 to 12 have been promoted as Civil Judges (Senior Division), to the extent necessary to accord consideration to petitioners 11 to 16, shall stand set aside on expiry of three months from today and consideration accorded to the petitioners' promotion against the available vacancies. On completion of the exercise either way Registrar General shall reframe and notify the seniority list in accordance with merit. (JNF) |
