Jammu & Kashmir High Court - Srinagar Bench
Javaid Ahmad Shah & Ors vs State Of J&K And Others). Learned on 30 May, 2016
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWPs 2275 of 2015, 1762 of 2015, 2548 of 2015 & 2235 of 2015 JAVAID AHMAD SHAH & ORS PETITIONERS STATE & ORS RESPONDENTS !M/S. M. A. QAYOOM & G. Q. BHAT ^M/S. N.H.SHAH, AAG, ZAFAR A.SHAH, LD. ADV, M.Y.BHAT & LONE ALTAF, ADVOCATE HONBLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR, JUDGE Date: 30/05/2016 : J U D G M E N T :
01/ In SWP 2275/2015, the petitioners have prayed that by issuance of writ of Certiorari or any other writ, order or direction, the seniority of Patwaries of District Cadre, Kupwara, issued by respondent No.4 vide order dated 16th August, 2014, be quashed. It is also prayed that the respondents, more particularly, respondent No.4, be directed to prepare the seniority list of Patwaries of District Cadre Kupwara in order of merit secured by the petitioners and their batch mates in the Patwar Training Course Examination, result whereof was declared by respondent No.2 vide Notifications dated 30th September, 2003 & 29th November, 2003. It is also prayed that till the seniority list is prepared, respondents be directed not to make any promotion to the post of Girdawar/Office Qanoongo. Similar prayer is made in SWP 1762/2015, which is filed by the Patwaries of District Cadre Baramulla.
02/ In SWP 2235/2015, it is prayed by the petitioners that by issuance of writ of Certiorari, seniority list of Patwaries, working in District Anantnag, framed by the Deputy Commissioner (DC), Anantnag, dated 04th August, 2015, be quashed. It is also prayed that respondent No.4 be directed to issue fresh seniority list of Patwaries of District Anantnag by placing the petitioners above and below the private respondents at their proper places. It is further prayed that respondents be directed not to act upon the seniority list of Patwaries impugned in the writ petition. It is also prayed that respondents 4&5 be directed to implement Government Order No. Rev (NG) 52 of 2015 dated 09th March, 2015. Further relief is sought that respondents be directed not to make any promotion to the post of Girdawar in Kashmir Division till the fresh seniority list, in accordance with rules, more particularly in accordance with Government Order dated 09th March, 2015, is made. It is also prayed that respondent No.4 be directed to transfer the Patwaries hailing from District Kulgam to the said District in the light of Government order dated 09th March, 2015. 03/ In SWP 2458/2015, prayer is made that promotion order issued by respondent No.3 dated 17th November, 2015, forming annexure H to the writ petition, be quashed.
04/ Mr. M.A.Qayoom, learned counsel appearing for petitioners in SWPs 2275/2015 & 1762/2015, made elaborate submissions but the sheet anchor of his argument is that the seniority of Patwaries has to be determined and settled on the basis of merit secured by them in the Patwar Training Course Examination. Mr. Qayoom further submitted that the official respondents have, wrongly and illegally, fixed the seniority of Patwaries on the basis of their initial selection made by the Service Selection Board (SSB). Learned counsel, in support of his contention, referred to rule 22,23 & 24 of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules 1956 (for short Rules of 1956) and Jammu & Kashmir Revenue (Subordinate) Service Recruitment rules 1973 (for short Rules of 1973). It is also argued by Mr. Qayoom that the Advertisement Notice No.2 of 2000 dated 26th September, 2000 was issued by SSB, whereunder applications on prescribed forms were invited from the permanent residents of J&K State for selection of candidates to undergo Patwar training in the Revenue Training Institute, Jammu/Srinagar. He also submitted that the said notice provided that the candidates, who will successfully complete the said training course, will be eligible for appointment as Patwaries/Office Patwaries/Consolidation Patwaries. Learned counsel submitted that this Advertisement Notice has been made the basis for appointment to the post of Patwaries when, as a matter of fact, it was issued to select the candidates for undergoing Patwar Training Course alone. Mr. Qayoom submitted that when this is the fact position, then the selection made by SSB, in terms of aforesaid Notification, could not become basis for determining the seniority of Patwaries. He also referred to Government Order No. FC(Adm) 391 of 2002 dated 03rd July, 2002, whereunder sanction was accorded to the appointment of candidates in annexure I, appended to the said order, as Probationers, against the posts of Patwaries carrying pay scale of Rs. 3050-4590. He also submitted that these appointments were made as per selection made by the SSB. It was further submitted that the appointed candidates were to remain on probation for two years and were governed by rule 7, sub rules 1,2&3 of Rules of 1973 and rule 2F(i) and F(ii) of Rules of 1956. Mr. Qayoom also submitted that in terms of said order, the appointees were to undergo training as prescribed by Office Order No. FC(NG)-I of 1999 dated 01st January, 1999. Learned counsel also referred to order dated 04th July, 2002, whereunder sanction was accorded to the appointment of 48 candidates. This order was passed in sequel to order dated 03rd July, 2002 and contained similar conditions. Learned counsel also referred to the result of Patwar candidates, which was notified on 30th September, 2003.
05/ As already stated, Mr. Qayoom, submitted that in terms of rules, it is the merit secured by the competing candidates in the result declared after undergoing Patwar Training Course, which has to become basis for determining the seniority of the appointed candidates. Learned counsel submitted that in terms of Advertisement Notice dated 26th September, 2000, the candidates were to be selected for undergoing Patwar Training Course and not for their appointment as patwaries. Learned counsel, in support of his contention, referred to and relied upon the judgement of this Court, reported in 2000 KLJ 714 (S. Shabir Ahmad Khan and another versus State of J&K and others). Learned counsel also referred to and relied upon order of Honble the Supreme Court dated 05th December, 2001, passed in case titled S.J.Ravo and others versus State of J&K and others. Learned counsel, accordingly, prayed for allowing of the writ petitions. 06/ Mr. G.Q.Bhat, learned counsel appearing for petitioners in other two petitions submitted that the seniority of Patwaries is to be determined and settled on the basis of merit list prepared by the SSB. He, however, submitted that the Deputy Commissioners are dutybound to implement the Government Order No. Rev(NG)-52 of 2015 dated 09th March, 2015 and have to prepare the seniority list of Patwaries in accordance with the directions contained therein and promotions to the next higher posts can be validly made only thereafter. 07/ Mr. N.H.Shah, learned AAG, submitted that seniority of Patwaries has been determined in accordance with rules and prayed for dismissal of these writ petitions.
08/ M/s. Zafar A. Shah, learned Senior Advocate and M.Y.Bhat, appearing for private respondents, submitted that the seniority has been determined strictly in accordance with rules. They, while referring to their respective pleadings, further submitted that the selection was made by the SSB on the basis of merit of the competing candidates. Learned counsel submitted that the position, secured by the candidates, in the selection list prepared by the SSB, has been rightly made basis for framing of Seniority List of Patwaries.
09/ The petitioners in SWP 2275/2015 have placed on record along with Rejoinder Affidavit, copy of order dated 08th May, 1998, issued by the Financial commissioner, Srinagar. The subject matter of this order is appointment of candidates for the posts of Patwaries and fixation of seniority. It is provided in the said order that the candidates appointed against substantive vacancies by the concerned Deputy Commissioners on the recommendations of SSB, shall get their inter-se seniority fixed in accordance with the position, assigned to them, in the respective merit list issued by the SSB. It is also provided therein that in the event of failure of a candidate in the examination, his position in the seniority list would depend upon the period of probation prescribed for him in the appointment letter. It is also provided that in case a candidate qualifies the examination after the probation of two years, he shall figure junior most in his batch in the order of seniority in the Seniority list. 10/ The learned counsel for the petitioners in SWP 2275/2015 & SWP 1762/2015 argued with vehemence that the Advertisement Notice No. 02 of 2000 dated 26th September, 2000 could not become basis for making selection of the candidates for being appointed on the posts of Patwaries as same has been issued only to select the candidates for undergoing Patwar Training Course and, thus, the selection/appointment of candidates is illegal. This submission cannot be accepted for the reason that there is no such pleading or prayer in the writ petitions, notwithstanding the fact that such a plea is taken up in the Rejoinder Affidavit. The plea taken in the Rejoinder Affidavit is absolutely self destructive, in as much as, though same cannot be accepted in law because there being no such pleading and prayer in the writ petition, it would otherwise lead the petitioners in these petitions to nowhere. Assume for argument sake that their plea, as projected in the Rejoinder Affidavit, is accepted, though not legally permissible, then these petitioners have no case before the Court for fixation of seniority, their appointment, in their own submission, being non-est. 11/ The petitioners claim for their placement in the seniority list, at the appropriate place, would require to be determined. The petitioners, admittedly, rank junior to other selected candidates in the selection list prepared by the SSB. The petitioners are beneficiaries of the selection made by SSB. The selection has been made on the basis of merit of the competing candidates. The seniority of the appointed candidates, in the facts of these cases, in view of the mandate contained in rule 7 of the Rules of 1973, would depend on successful completion of the training course during the probation period. This view is taken in view of the mandate contained in rule 7 of the Rules of 1973 read with rules 22, 23 & 24 of the Rules of 1956. The appointed Patwaries, who have successfully qualified the Patwar Training Course Examination within the probation period, have to be assigned seniority on the basis of merit secured by them in the merit list prepared by SSB at the time of their initial selection. However, in view of the mandate contained in order of 1998, those Patwaries, who have qualified Patwar Training Course Examination after the period of probation, shall have to rank junior to the candidates, who have qualified it within the probation period but ranked junior to them in the selection list prepared by the SSB. 12/ The concerned official respondents shall have to further comply with order dated 09th March, 2015 and revert the Patwaries to their parent District and seniority lists, wherever required, have to be amended accordingly. The concerned official respondents shall have to undertake the exercise of framing of seniority list in view of observations made in this order. The promotions of Patwaries to the posts of Girdawars will depend upon fresh seniority list to be framed by the concerned official respondents.
13/ For the above stated reasons, these writ petition along with connected IAs are disposed of in the following manner :
a) The official respondents are directed to undertake the exercise to find out as to which, amongst the selected/appointed candidates, qualified their Patwar Training Course Examination within the probation period and thereafter determine their seniority in accordance with the merit secured by them in the selection/merit list prepared by the Service Selection Board at the time of their initial selection. Those Patwaries, who qualified the Patwar Training Course Examination beyond the probation period, shall rank junior to those Patwaries, who qualified the said examination within the probation period, though they ranked below them in the initial Selection List prepared by the Service Selection Board.
b) After framing of fresh seniority list, in view of the aforesaid direction, the concerned official respondents shall amend the promotion orders, already made, and grant promotion to the Patwaries on the basis of the seniority list so framed. The concerned official respondents shall also, while amending/framing the seniority list, ensure that the Government order No. No. Rev(NG)-52 of 2015 dated 09th March, 2015, is complied with ;
c) The concerned official respondents to initiate and conclude the aforesaid exercise within eight weeks from the date copy of this order is received by them.
d) Till the aforesaid exercise is completed, the promotion orders made, shall remain undisturbed. Interim directions in all these petitions, shall stand vacated. 14/ Writ petitions are disposed of along with CMPs.
(MUZAFFAR HUSSAIN ATTAR) JUDGE TARIQ Mota SRINAGAR 30-05 -2016