Jammu & Kashmir High Court - Srinagar Bench
Laeeq Ahmad Dar vs State Of J&K & Ors on 1 November, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.1613/2013
Reserved on:26.09.2019
Pronounced on:01.11.2019
Laeeq Ahmad Dar ...Petitioner
Through: Petitioner present in person.
V/s
State of J&K & Ors. ...Respondent(s)
Through: Mr. B. A. Dar, Sr. AAG-for R1 & R2.
Mr. Azhar-ul-Amin, Adv.-for R3.
None for R4.
Respondent No.5 present in person.
CORAM:
=
Hon'ble Mr Justice Rashid Ali Dar, Judge.
JUDGMENT
RASHID ALI DAR, J
1. By medium of instant petition, petitioner has sought indulgence of this Court for grant of following reliefs:
a. By way of writ of Certiorari, the order No.Home-102(P) of 2012 dated 09.02.2012 to the extent of placing respondent Nos.4 & 5 at Sr. Nos.15 & 22, over and above that of the petitioner, be quashed.
b. By way of writ of Mandamus, respondents be directed to re-draw the seniority list of Chief Prosecuting Officers by placing the petitioner at an appropriate place over and above that of the respondent Nos.4 & 5.
c. By way of writ of Mandamus, respondents be directed to consider the regularization/promotion of petitioner as Chief Prosecuting Officer with effect from 06.09.2007 as against the clear vacancy of Sh. Onkar Singh.
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d. By way of writ of Prohibition, the official respondents be restrained from considering the case of the respondent Nos.4 & 5 for regularization /promotion as against the post of Deputy Director over and above that of the petitioner, by giving them the benefit of accelerated promotion.
e. By way of writ of Mandamus, the official respondents be directed to consider the case of the petitioner for promotion as against the post of Deputy Director over and above that of the respondent Nos.4 & 5.
2. In the writ petition it is being pleaded that:
(i) The petitioner and respondent Nos.4 & 5 came to be appointed as Prosecuting Officers under and in terms of order bearing No.2250 of 1995 dated 12.08.1995 wherein petitioner figures at serial No.02 in the order while as the respondent Nos.4 and 5 figure at serial No.4 and 10 respectively. The petitioner and respondent Nos.4 and 5 were selected in open merit category.
(ii) Respondent No.2 under and in terms of notification No.Estt/Pros-
3/99/25907-26063 dated 20.07.199, notified a tentative seniority list of Prosecuting Officers as on 01.07.1999 and sought objections, if any, against the position assigned to Prosecuting Officers mentioned in the list. No objection was filed against the tentative seniority list relating to petitioner's position in the seniority list. However, some meritless representations were received and considered by respondent No.2. Having regard to the consideration accorded to the objections filed, the final seniority list of the Prosecuting Officers as on 01.06.1999 was notified vide order No.Estt/Pros-3/99/25907-26063 dated 20.071999 wherein petitioner figures at serial No.12 while as respondent Nos.4 and 5 figure at serial No.21 and 26 respectively.
SWP No.1613/2013 Page 2 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document(iii) Thereafter the petitioner was placed as Senior Prosecuting Officer in his own pay and grade vide Government Order No.Home-512(P) of 2000 dated 10.07.2000. The adjustment/promotion of the petitioner against the post of Senior Prosecuting Officer was regularized in terms of order No.Home-240(P) of 2001 dated 28.05.2001 after clearance by the DPC.
(iv) In terms of Government Order No.280 (P) of 2002 dated 30.05.2002, final seniority list of Gazetted Officers of Prosecution cadre (Senior Prosecuting Officers) was notified wherein petitioner figured at serial No.37 while as respondent No.4 and 5 were placed at serial Nos.45 and 50 respectively. The seniority of petitioner and respondent No.4 and 5 was determined by taking recourse to Rule 24 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956.
(v) Having regard to the eligibility and merit of the petitioner, the petitioner was placed as Chief Prosecuting Officer in his own pay and grade vide Government Order No.Home-433 of 2007 dated 06.09.2007. Thereafter process was initiated by the official respondents for regularizing the promotions of Chief Prosecuting Officers of the Prosecution cadre and in this regard under and in terms of communication No.Gz/G-18/Pros/Prom/09 dated 11.06.2009, name of the petitioner was recommended for being regularized against the vacancy caused on account of promotion of one Shri Onkar Singh w.e.f. 06.09.2007. Notwithstanding the fact that the case of the petitioner for regularization of promotion as against the post of Chief Prosecuting Officer was made with effect from 06.09.2007, under and in terms of order No.393 (P) of 2011 dated 13.04.2011, sanction was accorded to the regularization/ promotion of the petitioner as against the post of Chief Prosecuting Officer with effect from 01.08.2008. It appears that in terms of aforesaid order, respondent No.4 and 5 have been regularized/promoted by considering them against the roster point SWP No.1613/2013 Page 3 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document available to the official belonging to RBA category. This position has been assigned to the respondent No.4 and 5 notwithstanding the fact that respondent No.4 and 5 had obtained the status of being a resident of backward area after their appointment as Prosecuting Officer and even thereafter as that of the Senior Prosecuting Officer. Not only that, respondent No.1 without inviting objections from aggrieved officials, under and in terms of order No.Home-102 (P) of 2012 dated 09.02.2013, notified final seniority list of Chief Prosecuting Officers as on 01.01.2012. As per the aforesaid order, the respondent No.4 and 5 have been placed at serial Nos.15 and 22 respectively, over and above the petitioner who has been placed at serial No.25. Immediately on issuance of the final seniority list of Chief Prosecuting Officers, the petitioner filed detailed objections.
(vi) When no decision was taken by the official respondents, the petitioner filed a representation which was duly received by the respondent No.1 wherein it was specifically projected that the respondent No.4 and 5 cannot be placed above the head of the petitioner in view of the law laid down by Hon'ble Supreme Court in the case titled "Ajit Singh v. State of Punjab" and in violation of the judgment passed by the Division Bench of this Court in "State v. Abdul Rashid" (LPA No.212/2007). Despite representation, the official respondents till date have not redrawn the seniority list.
(vii) The petitioner feeling aggrieved of Government Order No.Home-
102 (P) of 2012 dated 09.02.2012 to the extent of placing respondent Nos.4 and 5 over and above petitioner and the process initiated by the official respondents for promoting the respondent No.4 and 5 against the post of Deputy Director Prosecution by acting upon impugned seniority list, has challenged the same by medium of instant petition.
3. On appearance, respondents 1 to 3 filed their reply/objections.
Respondent No.1 and 2, in their reply/objections have stated that:
SWP No.1613/2013 Page 4 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document(1) The answering respondents have not at all caused any harm or violation to any of the fundamental rights of the petitioner, as such, no cause has accrued to the petitioner to maintain the present writ petition.
(2) The impugned government order does not suffer from any legal infirmity at all, as such, challenge thrown to the same by the petitioner is misplaced and misconceived, both in law as well as on facts.
(3) The seniority list of Chief Prosecuting Officer (CPO) has been notified by the Home Department vide Government Order No.Home-102 (P) of 2012 dated 09.02.2012. In the said seniority, Shri Ravinder Kumar (RBA) figures at S. No.15 on the basis of his date of promotion as CPO w.e.f 14.07.2006, Shri Mohammad Ashraf Bakshi figures at S. No.22 on the basis of his date of promotion as CPO w.e.f.
01.04.2008. Petitioner Shri Laeeq Ahmad Dar figures at S. No.25 on the basis of his date of promotion as CPO w.e.f. 01.08.2008.
(4) Petitioner Shri Laeeq Ahmad Dar, at present Chief Prosecuting Officer, Security Headquarter, J&K, has separately submitted a representation to the Home Department pleading therein that a reserved category candidate, who is figuring below a general category candidate in the seniority if promoted earlier than the said general category, will get accelerated promotion but not accelerated seniority. Instead, the general category candidate, who is senior to the reserved category candidate but promoted later will regain his seniority as per the catch- up rule.
(5) In terms of the Jammu & Kashmir Reservation Rules, 2005, notified vide SRO 294 dated 21.10.2005 (Rule 31), roster SWP No.1613/2013 Page 5 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document prescribed for direct recruitment/promotion shall only be an aid to determine the entitlement of different categories with regard to the quota reserved for them and these are not for determination of seniority.
(6) As regards the inter-se seniority between a general category and reserved category candidate, the former is entitled to a higher position in the seniority in the next grade/scale or cadre provided he has been appointed/promoted to the said scale or grade earlier or on the same date as that of reserved category candidate, who is otherwise junior to him in the feeding cadre. However, a reserved category candidate, who is junior in the feeding cadre, is entitled to seniority ahead of a general category candidate in next rank/grade/cadre who is otherwise senior to him in the feeding cadre, if his date of promotion/appointment to the said post is earlier to the general category candidate. In the instant case, petitioner (Laeeq Ahmad Dar), who is senior to the two reserved category candidates viz. private respondent No.4(Shri Ravinder Kumar RBA) and private respondent No.5 (Shri Mohammad Ashraf Bakshi RBA) in the cadre of Chief Prosecuting Officers from the last date later than the said two reserved category officers/officials. While, petitioner was promoted as Chief Prosecuting Officer w.e.f.
01.08.2008, Shri Ravinder Kumar (RBA) was promoted as Chief Prosecuting Officer w.e.f 14.07.2006 and Shri Mohammad Ashraf Bakshi (RBA) was promoted as Chief Prosecuting Officer w.e.f 01.04.2008 in accordance with the eligibility, reservation roster and vacancy. Consequent upon above, petitioner Shri Laeeq Ahmad Dar will rank junior to two reserved category candidates/officers in the cadre of Chief Prosecuting Officer inasmuch as the petitioner Shri Laeeq Ahmad Dar figures at serial No.25, Shri Mohammad Ashraf Bakshi figures at serial No.22 and Shri Ravinder SWP No.1613/2013 Page 6 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document Kumar figures at S. No.15 in the seniority list of Chief Prosecuting Officers issued vide Government Order No.Home-102 (P) of 2012 dated 09.02.2012.
(7) The representation of petitioner Shri Laeeq Ahmad Dar, CPO, Security Headquarters, J&K, was referred to the Department of Law, Justice & Parliamentary Affairs for advice and the said Department has advised as under:
"Department is advised to await for the decision of the Government with regard to application of catch-up rule. As soon as the recommendations of the Committee constituted by the Government for the purpose are accepted by the Government, necessary instructions to all the Departments will be issued and the instant case can be decided by the Department in light of said instruction."
(8) Finally, it has been prayed that the writ petition be dismissed with exemplary costs.
4. Respondent No.3 (J&K Public Service Commission), in its reply has stated that:
(1) The answering respondent had earlier received a proposal from Home Department with regard to regularization of Senior Prosecuting Officers as Chief Prosecuting Officers.
The case was examined and placed before DPC in its meeting held on 24.09.2010 under the Chairmanship of the Shri Ruplal Bharti. Accordingly, approval of the Commission was conveyed to Home Department vide letter dated 29.03.2011 for promotion/regularization of the officers to the post of Chief Prosecuting Officer including the petitioner who was cleared w.e.f. 01.08.2008.
(2) Home Department vide their letter dated 25.04.2013 submitted a proposal for regularization/promotion of Chief Prosecuting Officer as Deputy Directors Prosecution. The SWP No.1613/2013 Page 7 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document case was examined and DPC meeting was convened on 24.06.2014 under the Chairmanship of then member Shri H. M. Samoon. Accordingly, DPC in its meeting cleared nine officers for promotion to the post of Deputy Director, Prosecution and kept the recommendation withheld in respect of seven officers for want of vigilance clearance. The DPC deferred the consideration of the petitioner in terms of interim orders passed by the Court on 30.08.2013 in SWP No.1613/2013. However, a post was kept reserved for him by the DPC.
(3) The answering respondent has no role to play in fixation of interse seniority or passing of Government order No.102 (P) of 2012 dated 09.12.2012.
5. The petitioner filed his rejoinder affidavit wherein he projected that he represented before the respondent No.1 to 3 in light of the judgment dated 27 th of August, 2015 passed by Hon'ble Supreme Court. A Committee was constituted by the Government of J&K under the Chairmanship of Ld. Advocate General, J&K, vide order No.LD (Ser) of 2013 dated 26.06.2013 regarding the issue of catch-up rule and reservation. The said committee submitted its report/recommendations to the Government vide No.AG/PSS/2013/1217 dated 16.09.2013. The petitioner filed another representation regarding seniority of Chief Prosecuting Officers of Prosecution cadre issued vide Govt. order No.Home-102 (P) of 2012 dated 09.12.2012 before the Principal Secretary to Govt. Home Department, J&K, in light of the judgment dated 9th February, 2017 passed in Civil Appeal No.2368 of 2011 titled "B. K. Pavitra & Others vs. Union of India & Others".
It is further projected that the Home Department after a long gap of four years SWP No.1613/2013 Page 8 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document vide its communication bearing No.Home/Gaz/WP/66/2013/4384 dated 06.10.2017 intimated consideration of representation of the petitioner as under:
"I am directed to refer to your communication No.GZ/P- Case/LA/CPO/Pross dated 26.08.2017 regarding the subject cited above and intimate that the matter regarding reservation in promotions in the State of J&K is under consideration of the Hon'ble Supreme Court of India in SLP (C) No.32820/2015 titled Mohammad Haneef Lone and Others v/s Ashok Kumar Sharma and Others clubbed with SLP (C) No.22909/2014, SLP (C) Nos.34488- 34489/2015, SLP (C) No.26261-26266/2014 and SLP (C) No.8489/2016. The representation of the officer shall be considered after the above referred SLP(s) are decided by the Hon'ble Supreme Court."
6. The petitioner, in the rejoinder, has further projected that he has never challenged the reservation in promotion but has challenged the seniority list of CPO's issued by the respondents vide Oder No.Home-102 (P) of 2012 dated 09.12.2012 wherein the petitioner has been shown as junior to the respondents 4 and 5 who have been accorded benefit of reservation. The reservation rules governing the State provide for accelerated promotion as per the reservation roster but not for accelerated seniority. Same is substantiated by the judgment dated 27th August, 2015 passed by the Hon'ble Supreme Court. It is also projected in the rejoinder that the J&K Public Service Commission vide its communication dated 29.03.2011 vide No.PSC/DPC/ Home/40/2010 has conveyed approval for regularization of Senior Prosecuting Officers as Chief Prosecuting Officers wherein the seniority SWP No.1613/2013 Page 9 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document position of the petitioner in seniority list has been shown at serial No. 37 while as the respondents 4 and 5 have been shown at serial No.45 and 50 respectively. It is also projected in the rejoinder that the State respondents had started the process for promotion of respondent No.4 in utter violation of interim direction dated 30.08.2013 and the petitioner was left with no option but to agitate the matter before this court by filing MP No.01/2017 and this Court vide order dated 24.04.2018 was pleased to direct that "status quo i.e. present position of respondent No.4 and 5 as it exist today shall be maintained.
7. The petitioner has been heard in person. The respondent No.4 and 5 despite notice had not chosen to appear and, as such, were set exparte (both prior to admission and post admission). However, on 26.09.201, respondent No.5 caused his appearance before the Court. He was heard in person but sought time for submission of written arguments. Written arguments were submitted by him on his own behalf and on behalf respondent No.4 as well.
The petitioner also submitted his written arguments.
8. Hear and perused the record.
9. It is being submitted by the petitioner that the petitioner and respondent No.4 and 5 were selected and appointed by a common order and were later promoted also. The action taken by the respondent State in terms of Government order No.Home-102 (P) of 2012 dated 09.02.2012, whereby respondent No.4 was placed at serial No.15, respondent No.5 at serial No.22 and petitioner at serial No.25, was not in consonance with the provisions of law and the judgments of the Hon'ble Supreme Court on the subject. Reliance, in particular, has been placed on two judgment of the Hon'ble Supreme Court SWP No.1613/2013 Page 10 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document in "S. Panneer Selvam & Ors. Vs. Government of Tamil Nadu & Ors." (Civil Appeal Nos.6631-6632 of 2015 arising out of SLP (Civil) Nos.8366-8367 of 2012) and "B. K. Pavitra & Ors. Vs. Union of India & Ors" (Civil Appeal No.2368 of 2011).
10. Further it is contended by the petitioner that the impugned seniority list has been framed without inviting objections. The petitioner has not been heard before notifying the final seniority list. Compliance with the principles of natural justice was not made, while notifying the final seniority list, as the requirement of inviting objections to the tentative seniority framed was given a good bye.
11. Respondent No.5 has submitted that the claim of the petitioner is not correct. The respondent No.4 and 5 have been promoted to the post of CPOs in the Police Department under Reserved Category (RBA) prior to the petitioner. The Hon'ble Supreme Court has held that the seniority is to be fixed on the fist date of appointment as per rules, as such, the promotion got by the candidates from their respective dates of promotion cannot be wiped out after the promotion of other general candidates and the general candidates remain junior in higher echelons to the reserved candidates.
12. It is further submitted by respondent No.5 that the writ petition is vague.
The petitioner has falsely and without any basis claimed that no objections to the tentative seniority list were filed when as a matter of fact the seniority of the petitioner is already challenged by the aggrieved persons. The petitioner has not deliberately filed any objections to the placement of the respondent No.4 and 5 in the seniority list of CPOs. The petitioner by misrepresentation SWP No.1613/2013 Page 11 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document of facts before the Court has got stayed the process of promotion. In support of the arguments, reliance has been placed on the judgment of Hon'ble Supreme Court in Jagdesh Lal & others vs. State of Haryana & ors , (1997) 6 SCC 538.
13. Considered the rival arguments.
14. It has been noted hereinabove that there is substantively no dispute about factual matrix of the case which is put forth in terms of the pleadings.
The respondent No.4 and 5, as noted above, have made an endeavor to justify the action of official respondents in the light of principle laid down in Jagdesh Lal & others vs. State of Haryana & ors, (1997) 6 SCC 538. Nothing more is being canvassed on their behalf to depict as to how the seniority of the petitioner and respondent No.4 and 5 and others who had been appointed as Prosecuting Officers in pursuance of order No.2250 of 1995 dated 12.08.1995, got disturbed after accelerated promotion of respondent No.4 and 5, due to roster point under Reservation Rules in J&K. The petitioner has taken reliance on the judgments noted above i.e. S. Panneer Selvam & Ors.
Vs. Government of Tamil Nadu & Ors." and "B. K. Pavitra & Ors. Vs. Union of India & Ors", to sound the course adopted by official respondents was improper. The judgment in Jagdesh Lal's case relied on by the petitioner as well as respondent No.4 and 5 have been discussed and considered by Hon'ble Supreme Court in "Sudhakar Baburao Nangnure v. Noreshwar Raghunathrao Shende & Ors", 2019 4 Scale 417. It has been clearly laid down that the roster-
point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the SWP No.1613/2013 Page 12 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document promoted post vis-à-vis the general candidates who were senior to them in the lower category and who were later promoted. It would be pertinent to reproduce paras 35 to 39 of the judgment, which reads as under:
"35. A line of cases before this Court considered the effect of an accelerated promotion granted to a member of a Scheduled Caste or Scheduled Tribe in terms of consequential seniority in a higher post. More specifically, the vexed issue was whether a member of such a case and tribe who obtains promotion earlier than a senior belonging to the general or open category in the feeder cadre would retain that seniority on the latter being promoted to a higher post.
36. In Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 ("Virpal Singh Chauhan"), a two judge Bench of this Court held that the State could provide that a candidate who had been promoted earlier on the basis of reservation and on the application of the roster would not be entitled to seniority over a senior belonging to the general category in the feeder category. A senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over the reserved candidate.
37. The decision in Virpal Singh Chauhan (supra) led to the Constitution (Eighty-fifth Amendment) Act 2001 with effect from 17 June 1995. Clause (4A), as amended, expanded the ambit of the earlier provision by enabling the State to also provide for consequential seniority, while making the provision for reservation in matters of promotion. Clause (4A) of Article 16, in its present form, reads thus:
"(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."SWP No.1613/2013 Page 13 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document
38. The principle which has been enunciated in Virpal Singh Chauhan (supra) has come to be known as the 'catch-up' rule. In Ajit Singh Januja v State of Punjab, (1996) 2 SCC 715 ("Ajit Singh I"), a three judge Bench of this Court adopted the catch-up rule propounded in Virpal Singh Chauhan (supra). This Court held that a balance has to be maintained so as to avoid reverse discrimination and a rule or circular which gives seniority to a candidate belonging to the reserved category promoted on the basis of the roster point would violate Articles 14 and 16 of the Constitution.
39. A contrary view was taken by another three Judge Bench in Jagdish Lal v State of Haryana, (1997) 6 SCC 538 ("Jagdish Lal") to the effect that by virtue of the principle of continuous officiation, a candidate belonging to the reserved category who is promoted earlier than a general candidate due to an accelerated promotion would not lose seniority in the higher cadre. This conflict of decisions was resolved by a Constitution Bench in Ajit Singh (II) v State of Punjab ("Ajit Singh II"). The Constitution Bench upheld the principle laid down in Virpal Singh Chauhan (supra) and Ajit Singh I (supra) and disapproved of the decision in Jagdish Lal (supra). This Court held thus:
"77. We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, -- vis-à-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate -- he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold that Virpal [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] and Ajit Singh [(1996) 2 SCC 715 : 1996 SCC (L&S) 540 : (1996) 33 ATC 239] have been correctly decided and that Jagdish Lal [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] is not correctly decided. Points 1 and 2 are decided accordingly."SWP No.1613/2013 Page 14 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document
15. The petitioner, as seen above, has been selected in pursuance of recommendations of respondent No.3, along with respondent No.4 and 5 and later appointment of the selectees figuring in the said list was made in pursuance of order dated 12.08.1995. The benefit of roster point was given vis-à-vis respondent No.4 and 5 on 13.04.2011 and accordingly they had been promoted as Chief Prosecuting Officers. The petitioner too has been promoted from the general category. Reservation for appointments on posts in favour of backward classes of citizens is enabled by Article 16(4) of the Constitution.
No rule made in exercise of powers conferred under any provision of the Constitution has been relied on either by the official respondents or the private respondents to lend support to the contention raised that the seniority of the petitioner and respondent No.4 and 5 could be fixed in the manner it has been done in terms of the impugned order. Determination of the seniority is a vital aspect in the service career of an employee and his future promotion is dependent on this. Determination of seniority has to be based on some principles which are just and fair. The promotion of any official having been made on the basis of reservation and on application of roster point would not entitle him to seniority over a senior belonging to general category in the feeding cadre, who is promoted to a higher post simultaneously or subsequently as the senior belonging to general category would regain seniority over the reserved category, nonetheless the roster point enables the reserved personnel to jump over others in getting promotion.
16. Viewing the matter in the light of what is stated above and the principle laid down by the Hon'ble Apex Court in Sudhakar Baburao Nangnure v.
Noreshwar Raghunathrao Shende & Ors", 2019 4 Scale 417, I am of the SWP No.1613/2013 Page 15 of 16 MOHAMMAD ALTAF BHAT 2019.11.02 13:57 I attest to the accuracy and integrity of this document opinion that the petitioner has been able to show that the impugned action of the official respondents is bereft of legal sanctity and needs to be struck down.
Impugned order issued vide No.Home-102(P) of 2012 dated 09.02.2012, whereby the petitioner has been placed at serial No.25 and respondent No.4 and 5 at serial No.15 and 22 in the seniority list, is adjudged bad necessitating the petitioner to be placed ahead of respondent No.4 and 5 on earning the promotion under general category.
17. For what has been stated above, the writ petition is allowed in following terms:
(i) By issuance of Writ of Certiorari, order No. Home-102(P) of 2012 dated 09.02.2012, to the extent of placing respondent No.4 and 5 over and above the petitioner, is quashed.
(ii) By issuance of Writ of Mandamus, the official respondents are directed to re-frame the seniority of the petitioner and respondent No.4 and 5 along with other appointees figuring in order No.2250 of 1995 dated 12.08.1995, by placing them at an appropriate place permissible under rules. As a necessary corollary thereto, consequential benefits including promotion, whatever accrue, be granted in favour of petitioner and respondent No.4 and 5 accordingly.
(iii) No order as to costs.
(Rashid Ali Dar)
Judge
Srinagar
01.11.2019
"Bhat Altaf, PS"
1.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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