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| DB sets aside single judge order; directs for re-fixing seniority of JEs | | | Early Times Reporter
Jammu | Aug 11
Deciding a controversy involved in two LPAs, the Division Bench of J&K High Court Jammu Wing, comprising Chief Justice, Justice KS Radhakrishnan and Justice Sunil Hali, today set aside the order of Single Judge passed on October 17, 2001 and directed the respondents to re-fix the seniority of appellants vis-à-vis respondents taking into consideration the seniority of 1981.
The controversy related to whether a person appointed afresh by the service selection board can claim the benefits of the services rendered by him prior to his fresh appointment.
Following selection by the service selection board the appellants and private respondents came to be appointed as JEs on the basis of direct recruitment quote posts. In pursuance to their appointment as JEs seniority lists was issued by the respondents on September 14, 1981. The appellants in the said seniority lists were shown senior to the private respondents. After reorganization of the department, the appellants/ private respondents were appointed as Assistant Engineers on November 18, 1987. The controversy rose when the respondent state vide its Govt. order No 2 PDD of 1989 dated January 5, 1989 re-designated respondents as Junior Engineer from the date they initially joined the service. The private respondents initially appointed as JEs, were working in the lower grade than the one which was provided to JEs who were appointed by the selection board. The respondents sought their appointment as direct recruits in pursuance to the advertisement notice. It is this act of the state which is subject matter of controversy in the present case.
The appellants challenged the said order before the Writ court. The Single Judge vide judgment October 17, 2001 dismissed the writ petition by holding that the private respondents were given retrospective benefits by placing reliance on Government order dated September 5, 1967. The Single Judge also held that the petition suffers by delay and latches. It is under these circumstances the present appeals have been preferred.
DB, after hearing Sr. Adv MK Bhardwaj assisted by Adv Ajay Abrol whereas Deputy AG S Hakim and Adv Rahul Pant appearing for the respondents, observed that it is not in dispute that both appellants and private respondents came to be appointed as JEs in pursuant to the advertisement notice issued by the SSRB. Appointment for the direct recruits was a fresh appointment and the appellants were admittedly seniors to the private respondents on the basis of their date of appointment. The question that is required to be determined by the Division Bench is whether by the Govt order January 5, 1989 by virtue of which retrospective benefit to private respondents for their appointment as JEs, could be counted towards their services they have rendered prior to their fresh appointment.
DB decided this important matter and referred judgments of the Supreme Court in which the Supreme Court held that once a person participates in the selection process conducted by the service selection Board under rules and is selected; he shall be construed to be a direct recruit. No benefits can be given to him for the service rendered by him in the state prior to his fresh appointment. Grant of seniority from the date of initial appointment rendered on adhoc basis on the same post prior to the appointment substantive basis cannot be counted toward the service. This is a settled position of law. In the other judgment of the Supreme Court it has been held that the retrospective effect cannot be permitted in order to confer the benefit of seniority retrospectively, The DB allowing the appeals set-aside the order of Single Judge and consequently directed the respondents to re-fix the seniority of the appellants and private respondents taking into consideration the seniority of 1981. JNF |
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