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| DB quashed seniority list of Munsiffs of 2000 and 2001 batches and directs to prepare the seniority list | | | Early Times Report
JAMMU, Oct 17: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Sindhu Sharma and Justice Sanjay Dhar quashed the seniority list of the Munsiffs of 2000 and 2001 batches prepared by the High Court. DB further directed that 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.
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.
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.
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').
DB after hearing Sr. Advocate RS Thakur with Adv Ashwani Thakur for the petitioner, observed that 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 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. 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.
DB further observed that the 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 refixation 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.
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 14 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. 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, DB said.
With these observations, Division Bench disposed the petition with the directions that 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 15 marks obtained by them in the competitive examination held by the PSC; 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; 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. Db further said that 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; Since the Munsiffs of 2001 batch are not before us, as such, DB request 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. —JNF |
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