Jammu & Kashmir High Court
Mohan Lal And Ors vs State Of J&K; And Others on 17 August, 2017
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 1221/2013,
MP Nos. 1/2017 & 1772/2013.
Date of order : 17.08.2017
Mohan Lal and ors. V/s State of J&K & ors.
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Appearing Counsel:
For the petitioner(s) : Mr. O. P. Thakur, Advocate.
Mr. R. K. S. Thakur, Advocate.
For the respondent(s) : Mr. Ehsan Mirza, Dy. AG.
(Oral)
1. A process of selection was conducted by the SSB for the post of Patwaris for District Kathua. Thereafter, a select list was prepared, in which petitioners' name figured higher than the names of some of the private respondents in this petition.
2. It appears that whereas the orders of appointment of private respondents herein were issued on 18.02.1999 the orders of appointment of the petitioners herein could be issued only on 25.02.1999 and the delay was attributed to the late receipt of character verification report from the Criminal Investigation Department (CID).
3. It appears that a tentative seniority list has been prepared by the official respondents, wherein the names of the petitioners' figure below the private respondents herein. Objection to the tentative SWP No. 1221/2013 Page 1 of 5 seniority list were rejected on the ground that the benefit of seniority could not be given to the petitioners', inasmuch as, they were appointed later in point of time than the private respondents herein.
4. Learned counsel for the petitioners states that both the petitioners as well as the private respondents had participated in the same process of selection and that the petitioners' name figured higher in the select panel prepared by the SSB and, therefore, but for the late receipt of the character verification report from the Criminal Investigation Department, the order of appointment also should be deemed to relate back to 18.02.1999 i.e. from the date when their juniors were so appointed.
5. Learned counsel for the petitioners has placed reliance upon proviso to Clause 24 of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956.
6. Heard learned counsel for the parties.
7. It is an admitted case of the parties that both the petitioners and the private respondents herein appeared in the same selection process conducted by the SSB and that the names of some of the petitioners' were reflected higher in the merit list, SWP No. 1221/2013 Page 2 of 5 details whereof have been given in paragraph 5 of the writ petition.
8. Admittedly, the orders of appointment in regard to the private respondents were issued on 18.02.1999 and those in regard to the petitioners were issued on 25.02.1999, as the character verification report was received late by the appointing authority.
9. Even a reading of the order dated 25.02.1999 would show that "the said order was in continuation to the earlier order dated 18.02.1999". This only shows that even the official respondents did not treat the appointment of the petitioners as independent of the appointments made in regard to the private respondents in this petition.
10. If that be so, then as has been urged by the learned counsel for the petitioners, while framing the seniority list, the official respondents ought to have followed the proviso to Clause 24 of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, which is reproduced hereunder:-
"Provided that the inter se seniority of two or more persons appointed to the same service, class, category or grade simultaneously will, notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being, posted to different stations, be determined -SWP No. 1221/2013 Page 3 of 5
(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;
(b) in the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit, ability and physical fitness etc., in case no such examination is held for the purpose of making selections;
(c) as between those promoted and recruited direct by the order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the rules.
11. Needless to say that the appointment of the petitioners herein would relate back to the date of appointment of the private respondents herein i.e. 18.02.1999 and their seniority has to be determined keeping in view their placement in merit list prepared for the post of Patwaris.
12. In the interregnum, it appears that based upon the seniority list, which is impugned in the present writ petition, further promotion to the post of Girdawars has been made by the official respondents, whereby respondent Nos. 3 to 10 have been promoted as Girdawars by virtue of order dated 30.03.2013.
13. Needless to say that any consideration for promotion accorded on the basis of the seniority list, which does not subscribe to the rule position SWP No. 1221/2013 Page 4 of 5 as mentioned hereinabove would be nonest in the eyes of law.
14. Be that as it may, this petition is allowed. The seniority list dated 12.12.2009 is hereby quashed. Respondents are directed to reframe the seniority list of Patwaris by showing the petitioners at their appropriate place, based upon their merit in the select list so prepared by SSB after following the principle as laid down in Clause 24 of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, by treating the petitioners to have been appointed on notional basis with effect from the date the private respondents were so appointed.
15. Upon placing the petitioners at their correct place in the seniority list, the official respondents shall consider the case of the petitioners for promotion to the post of Girdawars with effect from the date the respondent Nos. 3 to 10 were so promoted. It is made clear that the benefits, if any, shall be given only on notional basis. Let the requisite consideration be accorded within a period of three months from today.
16. Disposed of as above along with connected MP.
(Dhiraj Singh Thakur) Judge Jammu 17.08.2017 (Muneesh) SWP No. 1221/2013 Page 5 of 5