Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. 11039 OF 2022
MANOJ PARIHAR & ORS. ……PETITIONER(S)
VERSUS
STATE OF JAMMU & KASHMIR & ORS. .....RESPONDENT(S)
O R D E R
1.
This petition seeking leave to appeal under Article 136 of the
Constitution is at the instance of unsuccessful original
respondents in a writ application filed before the High Court of
Jammu & Kashmir (Judicial Officers) and is directed against the
judgment and order passed by a Division Bench of the High Court
dated 27.05.2022 in the SWP No. 1350/2011 by which the High
Court allowed the Writ Petition filed by the Respondents No. 3 to
Signature Not Verified
19 herein (original writ applicants).
Digitally signed by
VISHAL ANAND
Date: 2022.07.04
14:17:09 IST
Reason:
[1]
2. The facts giving rise to this special leave petition may be
summarized as under:
2.1 At the outset, we may state that this is a 2nd
round of litigation before this Court on the issue relating
to fixation of the seniority of the Munsiffs (Batch of 2003)
for promotion to the post of SubJudge in the State of
Jammu & Kashmir (Now Union Territory).
2.2 This Court in the 1st round of litigation took
notice of the fact that the respondents herein (original
writ applicants) qualified at the Jammu and Kashmir
Civil Services (Judicial) Examinations 2002 and were
appointed as the Judicial Magistrates in 200203. They
were placed higher in the merit list compared to the
petitioners herein. However, the gradation list was
prepared by applying the roster for direct recruitment as
provided under Rule 5 of the Jammu and Kashmir
Reservation Rules, 2005. This in effect led to the reserved
category petitioners displacing the general category
respondents in the gradation list. A Writ Petition was filed
seeking to quash the gradation list of the Judicial
Magistrates and for a direction to prepare the gradation
[2]
list based on merit.
3. The High Court held as under:
“16. The issue raised in the present petition
squarely falls within the judgment rendered by the
Division Bench in Ashok Kumar Sharma’s case.
Though petitioners do not assail the Gradation List
and the consequent promotion order on the ground
that these are not constitutionally permissible and
therefore ultra vires Constitution yet the law laid
down in Indra Sawhney’s case and relied upon in
Ashok Sharma’s case cannot go unnoticed, while
dealing with present case as it touches
constitutionally of the Reservation Rules
whereupon the impugned Gradation List is based
and therefore, validity of the High Court orders
promoting private respondents on the basis of this
placement in Gradation List. The Gradation List in
question and promotion orders made on the basis
thereof, in favour of private respondents, in
implementation of reservation policy, are therefore,
liable to be set aside on this ground alone. The
conclusion so drawn, ordinarily, would clinches the
matter. However, it would be, if not necessary, but
appropriate to deal with the issues, other that
constitutionality of Reservation in promotion
scheme, raised in the petition.….
25. For the reasons discussed above, we find
merit in challenge to Gradation List dated
01.06.2010 issued by respondent No. 2 as also
order promoting respondents 3 and 4 as Civil
Judge (Senior Division) on the basis of their
placement in the Gradation List. Challenge to such
other orders passed on the basis of the impugned
Gradation List, allowing the private respondents,
[3]
belonging to different Reserved Categories to steal
march over the petitioners, is also to succeed. We
are told that Petitioner 1 to 10 stand already
promoted as Civil Judges (Senior Division) and so
are respondents 3 to 12 and 14 and 15. The
interest of petitioners 1 to 10 is, therefore,
restricted to their placement at appropriate place in
the seniority list of Civil Judges (Senior Division)
maintained by respondent No. 2……
26. Petitioners 11 to 16 and Mis Mir Afroz (on
deputation) Abdul Qayoom Mir and Manzoor
Ahmad Zargar figuring at S.No. 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 M/s. 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. The respondent No. 2 by ignoring petitioners
claim and failure to accord consideration to their
claim has infringed their fundamental rights
guaranteed under Article 16 of the Constitution.
However, M/s. Mir Afroz (on deputation) Abdul
Qayoom Mir and Manzoor Ahmad Zargar, have not
joined as petitioners in present petition. Petitioners
have not questioned the orders whereby private
respondents 4, 5, 7 to 12 were promoted including
High Court order No. 252 dated 04.07.2015.
Respondents 4, 5, 7 to 12 presumably have been
working as Civil Subordinate Judges, Senior
Division for quite sometime. We do not have
definite information about the posts of Civil Judges
(Senior Division) lying vacant as on date so as to
[4]
examine whether petitioners 11 to 16 and M/s. 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).
We direct 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. Let such
exercise be completed with three months from
today. In the event, no such posts (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 respondent No. 2 shall reframe and
notify the seniority list in accordance with merit.”
4. The petitioners herein being dissatisfied with the aforesaid
judgment and order passed by the High Court challenged the
same before this Court by way of the Special Leave Petition (Civil)
No. 3786 of 2016. Leave was granted. The Special Leave
Petition got culminated in the Civil Appeal No. 6928 of 2021. The
[5]
Civil Appeal No. 6928 of 2021 ultimately came to be disposed of by
this Court holding as under:
“10. The main issue in the writ proceedings
before the High Court is whether the seniority for
the purpose of the gradation list can be founded on
the basis of roster points and this issue would
depend upon the view which is taken by the High
Court on the legal position. As noted above, Mr.
Gaurav Pachnanda, learned senior counsel has
stated that the High Court has accepted the view
that the gradation list is invalid. The High Court on
its Administrative side is not precluded from taking
a considered decision on this aspect of the
matter…..
11. Consequently, the impugned judgment
and order of the High Court dated 27 November,
2015 is set aside. The writ petition is restored to
the file of the High Court for a decision afresh.
Having regard to the pendency of the proceedings,
we would request the High Court to dispose of the
petition, on remand, preferably within a period of
two months from the date of receipt of a certified
copy of this order. In the meantime, pending the
decision of the High Court, it would be appropriate
if consequential directions on the basis of the
gradation list for the batch of 2003 are held in
abeyance so as to abide by the final result of the
proceedings before the High Court. The High Court
is at liberty on the administrative side to take a
decision in the meantime….
12. The appeal is accordingly disposed of in
the above terms.”
5. In view of the aforesaid, the High Court reheard the matter
[6]
and took the view that the seniority should be fixed in accordance
with the merit determined by the Public Service Commission and
not in accordance with the roster points. We quote the relevant
observations made by the High Court including the operative part
of the impugned judgment and order as under:
“13. In the past, while it may be true that the
High Court had been maintaining the seniority
based upon the roster points, as mentioned under
Rule 14 of the Reservation Rules of 1994 may be
on the strength of the ratio of the judgment in P.S.
Ghalaut, yet it cannot be ignored that the Apex
Court on 10.03.2003 having declared the decision
in P.S. Ghalaut as not laying good law on the
subject, none of the authorities, including the High
Court could have proceeded to make the roster
points as the basis for determining the seniority
and further make that a basis for promotions to the
post of SubJudges. It needs to be reiterated that in
the present case appointments of the selected
officers were made in terms of Rule 42 of the
Jammu & Kashmir Civil Services (Judicial)
Recruitment Rules, 1967 vide Government Order
dated 06.08.2003, i.e. much after the
pronouncement of the judgment in Bimlesh
Tanwar’s case.
It was precisely for that reason that the counsel
representing the High Court had admitted before
the Apex Court that the gradation list was invalid,
which is the subjectmatter of challenge in the
present petitions….
14. We are told that both the petitioners and
the private respondents have since been promoted
[7]
as SubJudges and, therefore, even when there
was an initial challenge to the promotion of
respondent Nos. 3 & 4 in the writ petition, no
promotions would be effected if the seniority was
directed to be fixed as per merit….
15. Having considered the matter in the light
of the facts and the law discussed hereinabove, we
hold as under:
a. The gradation list dated 01.06.2010
to the extent, and insofar as, it
pertains to the selection made by
the Public Service Commission for
the post of Munsiffs in reference to
Notification No. PSC/Ex2001/64
dated 04.12.2001, is quashed.
b. The respondent No. 2 is directed to
reframe the seniority list in regard
to the selection process for the post
of Munsiffs, pertaining to
notification dated 04.12.2001,
strictly in accordance with merit
obtained by the selected candidates
in the examination conducted by the
Public Service Commission.
c. Such of the candidates, including
the petitioners, who on account of
the impugned gradation list were
not promoted on time and,
therefore, could not gain the
requisite experience for appearing in
the limited competitive examination
in terms of the Jammu & Kashmir
Higher Judicial Service Rules, 2009,
would be held eligible to take such
an examination, if another Civil
Judge in the same post but lower in
[8]
the reframed seniority list was
eligible to take such an
examination.
16. The writ petitions are, accordingly,
disposed of.”
6. Being dissatisfied with the aforesaid, the petitioners are once
again before this Court with the present petition.
7. Mr. Ranjit Kumar, the learned Senior Counsel appearing for
the petitioners vehemently submitted that the High Court
committed a serious error in passing the impugned order. The
learned Senior Counsel vehemently submitted that it cannot be
argued as an absolute proposition of law that for the purposes of
fixing seniority only merit is to be considered and not the roster
points. He would submit that it should be left to the authorities
such as the High Court in the case on hand to evolve a fair and
just principle, more particularly, whether the Rules governing the
seniority are absent. He would submit that since the Recruitment
Rules 1967 are silent with regard to the procedure of promotion of
Munsiffs to the posts of SubJudges as well as the manner of
determination of their interse seniority. The High Court on its
administrative side in exercise of powers under Article 111 of the
Constitution of Jammu & Kashmir which is with
pari materia
[9]
Article 235 of the Constitution of India had decided in its Full
Court Resolution dated 04.12.1994 to adopt the Reservation Rules
1994 for the purpose of fixing the interse seniority of recruits for
the post of Munsiff and this practice was followed consistently
between 1995 and 2003.
8. Mr. Ranjit Kumar pointed out that the High Court adopted
the methodology of fixing the seniority in accordance with the
roster since 1995. First, it was applied to the 11 Munsiffs
appointed in the year 1995, thereafter to the 10 Munsiffs
appointed in the year 1997, thereafter to the 32 Munsiffs
appointed in the year 2000, thereafter to the 17 Munsiffs
appointed in the year 2001 and in the last 47 Munsiffs appointed
in the year 2003 which included the petitioners and the
respondents herein before this Court.
9. The learned Senior Counsel laid much emphasis on the fact
that neither the petitioners herein nor the respondents herein
thought fit to challenge either the Reservation Rules 1994 or the
Full Court Resolution dated 04.12.1994 on the basis of which the
candidates were appointed and their seniority was fixed in
accordance with the roster. Both the sides were aware and
[10]
conscious that the fixation of seniority in accordance with the
roster was based on the decision of the Full Court and, more
particularly, for the reason that the 2003 batch was not the first
batch where roster was applied in terms of the Reservation Rules
1994.
10. He would submit that both the sides since their appointment
in the year 2003 never questioned the legality and validity of the
methodology adopted by the High Court for the purpose of fixation
of seniority in accordance with the roster.
11. The learned Senior Counsel vehemently submitted that the
High Court committed a serious error in applying the Jammu &
Kashmir Reservation Rules 2005 which in turn came to be framed
under the Jammu & Kashmir Reservation Act 2004 and notified
on 21.10.2005 for the purpose of fixation of the interse seniority.
The argument of the learned Senior Counsel is that the Act and
the Rules framed thereunder, do not have any retrospective
operation and they could not have been made applicable to fix the
seniority of the appointees of the year 2003. Mr. Ranjit Kumar
invited the attention of this Court to the proviso to Rule 37 which
mandates that the Rules shall not apply to the vacancies or posts
[11]
in respect of which advertisement have been issued or the
selection process have been initiated before coming into force of
the Rules 2005. In short, the argument of the learned Senior
Counsel is that there cannot be any prospective operation of the
Rules 2005. In the last, the learned Senior Counsel submitted that
why should the petitioners suffer for no fault on their part as the
2003 batch is the last one to whom the Rules of 2005 are sought
to be made applicable. In other words, the argument is that if the
seniority is to be fixed in accordance with the merit of the
appointees of the batch of 2003 and not on the basis of the roster
points then many of the petitioners would have no chances of any
further promotion.
12. In such circumstances referred to above, the learned Senior
Counsel prays that there would be merit in his petition. Leave may
be granted and the appeal may be admitted.
13. On the other hand, this petition has been vehemently
opposed by the respective learned Counsel appearing for the
private respondents, the High Court of Jammu & Kashmir and
also the State of Jammu & Kashmir. All the learned Counsel in
one voice submitted that no error, not to speak of any error of law
[12]
could be said to have been committed by the High Court in taking
the view that the seniority should be fixed in accordance with the
merit determined by the Public Service Commission and not in
accordance with the roster points. All the learned Counsel would
submit that the law in this regard is no longer res integra and is
well settled.
14. In such circumstances referred to above, all the learned
Counsel appearing for the respondents pray that no case is made
out for grant of leave and the petition may be dismissed.
Analysis
15. Having heard the learned Counsel appearing for the parties
and having gone through the materials on record the only
question that falls for our consideration is whether the interse
seniority of the Munsiffs appointed by way of direct recruitment on
the recommendations of the State Public Service Commission
should be fixed/ determined on the basis of the roster points or in
terms of the order of their interse merit at the time of their
selection?
16. The first and the foremost aspect, we would like to clarify, is
that in the case of direct recruitment, the preparation of inter se
[13]
merit list of the selected candidates is inevitable, even in the
absence of an explicit provision in the rule or policy, the
recruitment authority cannot place the candidates in the
inter se
select list under the rule of thumb or by adopting the methodology
which is inconsistent with the spirit of Articles 14 and 16 of the
Constitution. The inter se merit list of the selected candidates can
be prepared as a combined effect of several factors like written
test, objective test, vivavoce and/or other parameters as may
have been prescribed keeping in view the special requirement of
service. Similarly, though not concerned in the present case, even
in a case of promotion based on meritcumseniority, seniority by
itself is not the only qualification for promotion to a selection post.
If the criteria for promotion is meritcumseniority, the
comparative merit has to be evaluated in which seniority will be
one of the factors only. However, in the case of meritcum
seniority even a junior most person may steal a march over his
seniors and jump the queue for accelerated promotion.
17. Keeping the aforesaid fundamental principle of service
jurisprudence, we now proceed to consider the case law on the
subject governing the rights of the parties before us as under.
18. In , (1995) 2 SCC 745,
R.K. Sabharwal v. State of Punjab
[14]
this Court said as follows:
“5. We see considerable force in the second con
tention raised by the learned counsel for the peti
tioners. The reservations provided under the im
pugned Government instructions are to be operated
in accordance with the roster to be maintained in
each Department. The roster is implemented in the
form of running account from year to year. The pur
pose of “running account” is to make sure that the
Scheduled Castes/Schedule Tribes and Backward
Classes get their percentage of reserved posts. The
concept of “running account” in the impugned in
structions has to be so interpreted that it does not
result in excessive reservation. “16% of the posts
…” are reserved for members of the Scheduled
Castes and Backward Classes. In a lot of 100
posts those falling at Serial Numbers 1, 7, 15, 22,
30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have
been reserved and earmarked in the roster for the
Scheduled Castes. Roster points 26 and 76 are re
served for the members of Backward Classes. It is
thus obvious that when recruitment to a cadre
starts then 14 posts earmarked in the roster are to
be filled from amongst the members of the Sched
uled Castes. To illustrate, first post in a cadre must
go to the Scheduled Caste and thereafter the said
class is entitled to 7th, 15th, 22nd and onwards up
to 91st post. When the total number of posts in a
cadre are filled by the operation of the roster then
the result envisaged by the impugned instructions
is achieved. In other words, in a cadre of 100 posts
when the posts earmarked in the roster for the
Scheduled Castes and the Backward Classes are
filled the percentage of reservation provided for the
reserved categories is achieved. We see no justifi
cation to operate the roster thereafter. The “running
account” is to operate only till the quota provided
[15]
| under the impugned instructions is reached and<br>not thereafter. Once the prescribed percentage of<br>posts is filled the numerical test of adequacy is sat<br>isfied and thereafter the roster does not survive.<br>The percentage of reservation is the desired repre<br>sentation of the Backward Classes in the State<br>Services and is consistent with the demographic<br>estimate based on the proportion worked out in re<br>lation to their population. The numerical quota of<br>posts is not a shifting boundary but represents a<br>figure with due application of mind. Therefore, the<br>only way to assure equality of opportunity to the<br>Backward Classes and the general category is to<br>permit the roster to operate till the time the respec<br>tive appointees/promotees occupy the posts meant<br>for them in the roster. The operation of the roster<br>and the “running account” must come to an end<br>thereafter. The vacancies arising in the cadre, after<br>the initial posts are filled, will pose no difficulty. As<br>and when there is a vacancy whether permanent<br>or temporary in a particular post the same has to<br>be filled from amongst the category to which the<br>post belonged in the roster. For example the Sched<br>uled Caste persons holding the posts at roster<br>points 1, 7, 15 retire then these slots are to be filled<br>from amongst the persons belonging to the Sched<br>uled Castes. Similarly, if the persons holding the<br>post at points 8 to 14 or 23 to 29 retire then these<br>slots are to be filled from among the general cate<br>gory. By following this procedure there shall nei<br>ther be shortfall nor excess in the percentage of<br>reservation.” | ||
|---|---|---|
| 19. In Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC<br>604, this Court stated thus: | ||
| “19. It was submitted that having regard to the in<br>structions issued by the Haryana Government in |
[16]
| its circular letter dated 2741972, roster points<br>cannot be considered as seniority points and fur<br>ther having regard to the fact that these instruc<br>tions have been followed by the High Court for a<br>long time, there is absolutely no reason as to why<br>such a practice should be deviated from. The<br>learned counsel contended that this Court in Ajit<br>Singh (II) 5 having categorically held that roster<br>points are not intended to determine seniority be<br>tween general candidates and reserved candi<br>dates, the impugned judgment cannot be faulted<br>with. | ||
|---|---|---|
| 24. The Rules, therefore, indisputably lay empha<br>sis on merit. It for all intent and purport excludes<br>the applicability of rule of appointment in terms of<br>roster points. | ||
| 33. The question as to whether the determination<br>of inter se seniority would depend upon the filling<br>up of the vacancies so far as the reserved cate<br>gories are concerned, having regard to the roster<br>points, in our opinion, is no longer res integra. | ||
| 40. An affirmative action in terms of Article 16(4) of<br>the Constitution is meant for providing a represen<br>tation of a class of citizenry who are socially or eco<br>nomically backward. Article 16 of the Constitution<br>of India is applicable in the case of an appoint<br>ment. It does not speak of fixation of seniority. Se<br>niority is, thus, not to be fixed in terms of the roster<br>points. If that is done, the rule of affirmative action<br>would be extended which would strictly not be in<br>consonance of the constitutional schemes. We are<br>of the opinion that the decision in P.S. Ghalaut<br>does not lay down a good law.” | ||
| 20. In G.P. Doval v. Govt. of U.P., (1984) 4 SCC 329, this Court<br>stated as follows: |
[17]
“16. A grievance was made that the petitioners
have moved this Court after a long unexplained de
lay and the Court should not grant any relief to
them. It was pointed out that the provisional se
niority list was drawn up on March 22, 1971 and
the petitions have been filed in the year 1983. The
respondents therefore submitted that the Court
should throw out the petitions on the ground of de
lay, laches and acquiescence. It was said that pro
motions granted on the basis of impugned seniority
list were not questioned by the petitioners and they
have acquiesced into it. We are not disposed to ac
cede to this request because Respondents 1 to 3
have not finalised the seniority list for a period of
more than 12 years and are operating the same for
further promotion to the utter disadvantage of the
petitioners. Petitioners went on making representa
tions after representations which did not yield any
response, reply or relief. Coupled with this is the
fact that the petitioners belong to the lower eche
lons of service and it is not difficult to visualise that
they may find it extremely difficult to rush to the
court. Therefore, the contention must be rejected.
17. In view of the discussion, these petitions suc
ceed and are allowed and a writ in the nature of
certiorari is issued quashing the impugned senior
ity list dated March 22, 1971 in respect of Khand
sari Inspectors. The Respondents 1 to 3 are di
rected to draw up a fresh seniority list based on
the principle of length of continuous officiation reck
oned from the date of first appointment if the ap
pointment is followed by confirmation i.e. selec
tion/approval by the State Public Service Commis
sion. We order accordingly, but in the circum
stances of the case, there will be no order as to
costs.”
[18]
| 21. In Kuldip Chand v. Union of India, (1995) 5 SCC 680, this<br>Court stated thus: | ||
|---|---|---|
| “4. It is next contended by Mr. M.M. Kashyap,<br>learned counsel for the appellant, that Ashok Ku<br>mar disputed the correctness of the seniority list<br>made on 23121982 in his representations dated<br>1011983 and 181983 which were duly consid<br>ered and rejected. He allowed it to become final as<br>he did not challenge the same till post of accoun<br>tant became vacant. When it was rejected, he filed<br>the writ petition in the High Court. There is a con<br>siderable delay in claiming his seniority over the<br>appellant. It is true that the seniority list was pre<br>pared as early as on 23121982 but no vacancy<br>had arisen thereafter and, therefore, the mere re<br>jection of the claim for seniority does not disentitle<br>him to claim his seniority over the appellant for<br>consideration by the respondentUnion. | ||
| 5. When the aforesaid facts are taken into consid<br>eration, it would be obvious that the preparation of<br>seniority list per se was illegal. Therefore, the mere<br>fact that he did not challenge the seniority list,<br>which was illegally prepared, till he was aggrieved<br>for nonconsideration of the claim to the post of ac<br>countant, his legitimate right to be considered can<br>not be denied. Under these circumstances, the de<br>lay is of no consequence for considering the claims<br>of Ashok Kumar for the post of accountant.” |
22. The question as to whether the determination of interse
seniority would depend upon the filling up of the vacancies so far
as the reserved categories are concerned, having regard to the
roster points, in our opinion, is no longer res integra.
[19]
23. In , (1999) 7 SCC 209, a five
Ajit Singh v. State of Punjab
Judge Bench of this Court has laid down the law in the following
terms:
“40. “It must be noted that whenever a reserved candidate
goes for recruitment at the initial level (say Level 1), he is
not going through the normal process of selection which is
applied to a general candidate but gets appointment to a
post reserved for his group. That is what is meant by
“reservation”. That is the effect of “reservation”.
41. Now in a case where the reserved candidate has not
opted to contest on his merit but has opted for the reserved
post, if a roster is set at Level 1 for promotion of the
reserved candidate at various roster points to Level 2, the
reserved candidate, if he is otherwise at the end of the
merit list, goes to Level 2 without competing with general
candidates and he goes up by a large number of places. In
a roster with 100 places, if the roster points are 8, 16, 24
etc. at each of these points the reserved candidate if he is
at the end of the merit list, gets promotion to Level 2 by
sidestepping several general candidates. That is the effect
of the rosterpoint promotion.
42. It deserves to be noticed that the roster points fixed at
Level 1 are not intended to determine any seniority at
Level 1 between general candidates and the reserved
candidates. This aspect we shall consider again when we
come to Mervyn Continho v. Collector of Customs (1966) 3
SCR 600 lower down. The roster point merely becomes
operative whenever a vacancy reserved at Level 2
becomes available. Once such vacancies are all filled, the
roster has worked itself out. Thereafter other reserved
candidates can be promoted only when a vacancy at the
reserved points already filled arises. That was what was
decided in R.K. Sabharwal v. State of Punjab (1995) 2 SCC
745.”
24. In Ajit Singh (II) , the decision of this Court in R.K.
Sabharwal case has, thus, been explained as under:
[20]
“P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625]
relied upon by Dr. Chauhan, is a decision rendered by a
two Judge bench. In that case Rule 13 of the Rules
envisaged that the seniority inter se of members of the
service shall be determined by the length of continuous
service on any post in the service; provided further that in
the case of two or more members appointed by direct
recruitment, the order of merit determined by the
Commission shall not be disturbed in fixing the seniority.
Despite the said Rule, it was held as under:
“Take for instance Vacancies Nos. 1 and 6, as
pointed out in the Chief Secretary's letter have
admittedly been reserved for Scheduled Castes.
Suppose recruitment was made to fill up ten
vacancies, three candidates from Scheduled
Castes were selected on the basis of reserved
quota. The question is whether the first
candidate will be put in the quota allotted to the
Scheduled Castes in the roster. Having been
selected as a general candidate, though he is
more meritorious than the second and third
candidates, he will not get the placement in the
roster, reserved for Scheduled Castes i.e. Nos. 1
and 6 points. Consequently candidates Nos. 2
and 3 will get the placement at Nos. 1 and 6 and
the first candidate will get the placement in the
order of merit along with the general candidates
according to the order of merit maintained by the
Selection Committee or the Public Service
Commission. He cannot complain that having
been selected in the merit, he must be placed in
the placement reserved for Scheduled Castes at
Point No. 1 in the roster. Equally, though general
candidate is more meritorious in the order of
merit prepared by the Public Service Commission
or the Selection Committee, when the
appointments are made and the vacancies are
filled up according to the roster, necessarily and
inevitably the reserved candidates though less
meritorious in the order of merit maintained by
the Public Service Commission would occupy the
respective places assigned in the roster. Thereby
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they steal a march over some of the general
candidates and get seniority over the general
candidates. This scheme is, therefore,
constitutional, valid and is not arbitrary.”
We have not been able to persuade ourselves to the aforesaid
view.”
25. It will be of interest to note that the hypothetical situation
taken up by this Court in (supra) where two
P.S. Ghalaut
reserved category candidates were pitted against each other, was
actually extracted by this Court in para 36 of the report in
Bimlesh Tanwar (supra) and this Court recorded that the same
was not correct. In para 40 of the report this Court eventually held
as follows:
“40. An affirmative action in terms of Article 16(4) of
the Constitution is meant for providing a
representation of class of citizenry who are socially or
economically backward. Article 16 of the Constitution
of India is applicable in the case of an appointment. It
does not speak of fixation of seniority. Seniority is,
thus, not to be fixed in terms of the roster points. If
that is done, the rule of affirmative action would be
extended which would strictly not be in consonance
of the constitutional schemes. We are of the opinion
that the decision in P.S. Ghalaut does not lay down a
good law.”
26. What was done in Bimlesh Tanwar (supra) was actually a
declaration of law. Therefore, the same will have retrospective
effect. In , (2007) 3 SCC 557, this
P.V. George v. State of Kerala
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Court held that “the law declared by a court will have retrospective
effect, if not otherwise stated to be so specifically”.
27. This Court was conscious of the fact, as could be seen from
paragraph 19 of the report in P.V. George (supra), that when the
doctrine of stare decisis is not adhered to, a change in the law may
adversely affect the interest of the citizens. But still this Court
held that the power to apply the doctrine of prospective overruling
(so as to remove the adverse effect) must be exercised in the
clearest possible term.
28. Therefore, it is clear that anything done as a consequence of
the decision of this Court in (supra), cannot stand
P.S. Ghalaut
since this Court did not apply the doctrine of prospective
overruling in (supra) in express terms. It goes as
Bimlesh Tanwar
follows:
“(i) In Union of India v. Virpal Singh [(1995) 6 SCC
684], this Court upheld the stand taken by the
Railways that reserved category candidates who
got promotion at roster points would not be
entitled to claim seniority at the promotional level
as against senior general category candidates
who got promoted at a later point of time to the
same level. The Court held that the State was
entitled to provide, what came to be known in
popular terms as the “catch up rule” enabling the
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senior general category candidates who got
promoted later, to claim seniority over and above
the roster point promotee who got promoted
earlier.
(ii) The catch up rule formulated in Virpal was
approved by a three member Bench in Ajit Singh
Januja v. State of Punjab [(1996) 2 SCC 715].
This case came to be known as Ajit Singh (I).
(iii) But, another three member Bench took a
different view in Jagdish Lal v. State of Haryana
[(1997) 6 SCC 538] and held that while the rights
of the reserved candidates under Article 16(4)
and 16(4A) were fundamental rights, the right to
promotion was a statutory right and that
therefore, the roster point promotees have to be
given seniority on the very same basis as those
having continuous officiation in a post.
(iv) Since Jagdish Lal took a view contrary to the
views expressed in Virpal Singh and Ajit Singh
(I), the State of Punjab filed Interlocutory
Applications before this Court, seeking
clarifications. These Interlocutory Applications
were placed before a Constitution Bench
comprising of 5 Judges, in view of the fact that
two Benches of coordinate jurisdiction (both three
member Benches) had taken diametrically
opposite views. The decision rendered by the
larger Bench of 5 Judges on these Applications
came to be known as Ajit Singh (II), in Ajit Singh
v. State of Punjab [(1999) 7 SCC 209].
(v) Eventually, the Constitution Bench held in Ajit
Singh (II) that the roster point promotees cannot
count their seniority in the promoted category,
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from the date of their continuous officiation in the
promoted post, visavis the general category
candidates who were senior to them in the lower
category and who were later promoted. As a
consequence, Virpal and Ajit Singh (I) were
declared to have been decided correctly and
Jagdish Lal was declared to be incorrect.”
29. Thus, the principle of law discernible from all the aforesaid
decisions of this Court is that the roster system is only for the
purpose of ensuring that the quantum of reservation is reflected in
the recruitment process. It has nothing to do with the interse
seniority among those recruited. To put it in other words, the
roster points do not determine the seniority of the appointees who
gain simultaneous appointments; that is to say, those who are
appointed collectively on the same date or are deemed to be
appointed on the same date, irrespective when they joined their
posts. The position of law as discussed about could be said to be
prevailing even while the High Court of Jammu & Kashmir
decided by a Full Court Resolution to determine the seniority on
the basis of roster points.
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30. We are not inclined to carve out an exception for the 2003
appointees that is the petitioners herein before us. The High Court
in our view rightly applied the principle of law explained by this
Court in the case of Bimlesh Tanwar (supra).
31. There is one another important aspect of this matter, we
need to take notice of. The High Court in its impugned judgment
and order has observed that the appointments of the selected
officers were made in terms of Rule 42 of the Jammu & Kashmir
Civil Services (Judicial) Recruitment Rules 1967 vide the
Government order dated 06.08.2003 that is much after the
pronouncement of the judgment in the case of Bimlesh Tanwar
(supra). It makes all the differences.
32. In the overall view of the matter, we are convinced that there
is no jurisdictional infirmity or any other infirmity in the
impugned judgment passed by the High Court warranting
interference at our end
[26]
33. In the result, this petition fails and is hereby dismissed.
………………………………………..J.
(SURYA KANT)
………………………………………..J.
(J.B. PARDIWALA)
JUNE 27, 2022
NEW DELHI
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