Jammu & Kashmir High Court - Srinagar Bench
Abdul Bari vs State Of Jk & Anr on 25 July, 2019
Bench: Ali Mohammad Magrey, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
*******
SWP No.783/2019 [WP (C) No.1207/2019]
CM No.2265/2019 [01/2019]
CM No.3619/2019
Dated: 25th of July, 2019.
Abdul Bari
...Petitioner(s)
Through:
Mr Z. A. Shah, Senior Advocate with
Mr A. Hanan, Advocate.
Vs
State of JK & Anr.
Through:
Mr B. A. Dar, Sr. AAG for R-1
Mr R. A. Jan, Senior Advocate with
Mr Suhaib Farooq Banday, Advocate for R-2.
...Respondent(s)
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Tashi Rabstan, Judge.
JUDGMENT (ORAL)
Ali Mohammad Magrey; J:
CM No.3619/2019:
Mr R. A. Jan, Senior Advocate with Mr Suhaib Farooq Banday, Advocate for the applicant/ respondent No.2. Mr Z. A. Shah, Senior Advocate with Mr A. Hanan, Advocate for the non-applicant/ petitioner. Mr B. A. Dar, Sr. AAG for the non-applicant/ respondent No.1
01. This case has its genesis to the issuance of a notification bearing No. 1160/GS dated 5th of November, 2018 by the Registrar General, High Court of Jammu and Kashmir/ respondent No.2 inviting applications for the post of District Judge (direct quota). In pursuance of the aforesaid notification, the CM No.3619/2019 In SWP No.783/2019 Page 1 of 8 petitioner claims to have submitted his application form, however, vide notification No.1623 dated 22nd of March, 2019, the petitioner was informed by the respondent No.2 that his application form is deficient because the experience certificate submitted by him was not as per the prescribed format.
Feeling aggrieved, the petitioner approached this Court with the present petition on hand seeking the following relief(s):
"i) It be declared that Rule 5(2)(b) of the Jammu and Kashmir Higher Judicial Service Rules, 2009 is ultra vires the Constitution offending Article 233(2) of the Constitution and by a writ of certiorari Clause 3(b) of the Advertisement Notification No.1160/GS dated 5th of November, 2018 as also the Notification of the High Court bearing No.1623 dated 22.03.2019, in so far as it relates to the petitioner, be quashed.
ii) That consequent to the grant of aforesaid reliefs the respondents be directed to accept the application of the petitioner for the post of District Judge as "direct recruit", advertised vide Advertisement Notification No: 1160/GS dated 5.11.18 and to allow the petitioner to participate in the selection process.
iii) Any other appropriate writ, direction or order as the Hon'ble Court may deem fit in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents."
02. On 24th of April, 2019, this Court, after hearing the learned counsel for the parties, while granting time to the respondents for filing the reply, permitted the petitioner to appear in the examination in question notwithstanding the issuance of the impugned notification with a further stipulation that same shall remain subject to outcome of the petition and result whereof shall not be declared till further orders. It was also made clear by the Court that the pendency of the petition shall not form an impediment for the respondents to have the matter settled with reference to the application of judgments of Hon'ble the Supreme Court on the subject.
03. During the pendency of the main petition, the instant motion has been filed by the High Court of Jammu and Kashmir, through its Registrar General/ respondent No.2 seeking modification of order passed by this Court CM No.3619/2019 In SWP No.783/2019 Page 2 of 8 on 24th of April, 2019 in view of the directions dated 10 th of May, 2019 passed by Hon'ble the Supreme Court in IA No. 49518/2019 arising out of Special Leave to Appeal (C) No. 14156/2015 tilted 'Dheeraj Mor v. Hon'ble High Court of Delhi'.
04. Notice of the instant application was issued to the counsel for the non- applicant/ petitioner on 1st of July, 2019, which was waived by Mr Shah, the learned senior counsel, on the same day. Thereafter, the matter was directed to be listed on 15th of July, 2019, on which date, however, the matter could not be considered due to paucity of Court time and was adjourned to 22nd of July, 2019. On 22nd of July, 2019, when this matter was taken up for consideration, Mr Jan, the learned senior counsel, representing the applicant/ respondent No.2, insisted for modification/ vacation of the order passed by this Court on 24th of April, 2019, in light of the directions passed by the Hon'ble Apex Court in Dheeraj Mor's case (Supra). Since, Mr Shah, the learned senior counsel, representing the non-applicant/ petitioner was not present before the Court, the Court, while noticing that the matter has come up in the Daily Supplementary Cause list, directed the learned Registrar (Judicial) of this wing of the High Court to post the matter for 25 th of July, 2019, after ensuring advance notice of the listing of the case to the assisting counsel of Mr Shah, the learned senior counsel, against proper receipt.
05. Today, Mr Shah, the learned senior counsel for the non-applicant/ petitioner, has appeared before the Court.
06. Mr Jan, the learned senior counsel appearing on behalf of the applicant/ respondent No.2, has reiterated his submission for seeking CM No.3619/2019 In SWP No.783/2019 Page 3 of 8 modification/ vacation of the order of this Court dated 24th of April, 2019 in light of the directions passed by Hon'ble the Supreme Court in Deeraj Mor's case (Supra). The learned senior counsel, with a view to buttress his case, has invited the attention of the Court to not only the order passed by this Court dated 24th of April, 2019, but also the order passed by Hon'ble the Supreme Court dated 10th of May, 2019 in Deeraj Mor's case (Supra).
07. Mr Shah, the learned senior counsel, appearing on behalf of the non- applicant/ petitioner, submits that this Court has to maintain a proper balance so as to ensure that not only the lis is preserved, but also the rights and interests of the non-applicant/ petitioner, who is, as per the learned senior counsel, working as a member of the Subordinate Judicial Service since 14th of November, 2013, but had joined the Bar on 2nd of September, 2004 and has, thus, more than 07 years of active service as on the cut of date of submission of application forms, are not violated. The learned senior counsel further submits that the issue as regards the entitlement of the members of the Subordinate Judicial Service to stake their claim for the posts which are meant to be filled up through 'Direct Recruitment' from amongst the advocates has been referred to the Larger Bench which till take a call on it, as is brought to the fore by a perusal of the order passed by the Hon'ble Apex Court in Dheeraj Mor's case (Supra). The learned senior counsel has proceeded to state that in the event the Larger Bench comes to the conclusion that the members of the Subordinate Judicial Service are entitled for competing in the process of selection against Direct Recruitment of District Judges, then, in such eventuality, the non-applicant/ petitioner, if not allowed to participate in the examination, at this stage, commencing from CM No.3619/2019 In SWP No.783/2019 Page 4 of 8 September, 2019, will be non-suited and the petition of the petitioner, on culmination of the process of selection initiated in terms of advertisement notice dated 5th of November, 2018, will become infructuous.
08. We have heard the learned counsel for the parties and considered the matter.
09. By order dated 24th of April, 2019, this Court directed as under:
"Petitioner, an aspirant for the post of District Judge, is aggrieved of the notification no. 1623 dated 22.3.2019, issued by the respondent no. 2 asking the petitioner to meet the deficiency with reference to submitting the experience certificate as per the prescribed format.
Mr Z. A. Shah, learned Sr. counsel appearing for the petitioner, invited the attention of the Court to the "Sample of Experience Certificate" appended by the respondent no. 2 with the notification to indicate that the candidate has to produce a certificate that he is a practicing Advocate in the Courts of Civil and Criminal jurisdiction and he is in actual practice for a period of not less than seven years. He further submits that the impugned notification to the extent it declares the experience certificate of the petitioner not being in tune with the prescribed format is incorrect as the petitioner, prior to his joining the judicial service, has been practicing as an Advocate and a certificate to that extent is issued by the Principal District and Sessions Judge, Srinagar, vide No. 1999/PDJS dated 05.09.2016, certifying that the petitioner was in actual practice for a period of not less than seven years as on 01.04.2013.
Notice is waived by Mr B. A. Dar, Sr. AAG, and Mr R. A. Jan, Sr. Advocate, for respondents 1 and 2 respectively Reply within four weeks. In the meanwhile, the petitioner is permitted to appear in the examination in question notwithstanding the impugned notification, which shall, however, remain subject to outcome of the writ petition. Result of the petitioner shall not be declared till further orders. It goes without saying that mere participation in the selection process shall not create any right in favour of the petitioner. It is also made clear that the pendency of the writ petition shall not form an impediment for the respondent/ Registrar General to have the matter settled with reference to the application of judgments of Hon'ble Supreme Court on the subject.
List on 29.5.2019."CM No.3619/2019 In SWP No.783/2019 Page 5 of 8
10. The order passed by Hon'ble the Apex Court in Dheeraj Mor's case (Supra), as relied upon by the applicant/ respondent No.2, is also reproduced hereinbelow, verbatim et literatim:
"In these matters, it is in dispute as to whether the incumbents who have joined the services as Civil Judge can stake their claims for the posts meant for direct recruitment from the Bar reserved for practicing advocates for appointment as District Judges. Since there is a quota in the direct recruitment of Bar Members, in order to attract talent from the Bar out of practicing advocates. There are separate quota of promotional posts for the incumbents who have joined the services as Civil Judge to the post of District Judge. There is a set procedure for that and there is a merit promotion quota which has to be made by virtue of the limited departmental examination as held in "All India Judges Association & Ors. v. Union of India and Ors. (2002) 4 SCC 247 and followed in All India Judges Association & Ors. v. Union of India And Ors. - (2010) 15 SCC 170. Nowhere it is provided that such in- service incumbents can stake their claim as against posts which are reserved for direct recruitment from the Bar.
It was contended that in certain cases, interim relief has been granted by this Court and by virtue of the interim directions issued, certain in-service incumbents participated in the exam and other process by staking claim to be appointed in the quota which is basically meant for lawyers. Since the entitlement of Civil Judges to occupy posts of Bar quota is yet to be decided by hearing matter finally and in case such interim orders are continued to be granted and the Civil Judges from the judiciary are permitted to be appointed as against the quota which basically meant for practicing lawyers, serious prejudice may be caused to the Bar incumbents. In the past, for the last 65-66 years no person from the Civil Judge cadre were permitted to stake their claims as against the posts which are reserved for direct recruitment from the Bar.
It is settled proposition of law that final relief cannot be granted by way of interim measure. When direct recruitment has to be from Bar, we cannot continue to grant interim order of final nature leaving the situation virtually irreversible, an incumbent from Bar has to be deprived of the post given to in-service candidate which is reserved for Bar, question of seniority would also arise and in case relief is not finally granted several other complications would arise. In any case such ad-hoc arrangements by appointing such incumbents is not at all warranted that too in higher judiciary unless and until the case is decided in favour of in-service candidates.
It was also contended that in Dheeraj Mor case, certain interim orders have been passed allowing the members of the judicial service to stake their claims for the posts which are meant to be filled by the direct recruitment from the Advocates. In the circumstances, for years together such interim orders cannot be granted nor interim orders can be treated as a precedent. As they are creating more complications and the question of entitlement of in-service candidates has been referred to Larger Bench which CM No.3619/2019 In SWP No.783/2019 Page 6 of 8 will take call on it. It is considered appropriate that quota meant for the Bar no more filled by in-service candidates. However, the recruitment from Bar shall be subject to the final outcome of the matter which has been referred. We are of the considered opinion that we cannot direct any more appointment by way of interim orders of Civil Judges as against posts meant for practicing advocates or allow the judiciary members to participate in such examination to make position worse. Serious complications would arise in case ultimately in-service candidates are not found eligible for such quota. As such we are not inclined to pass any further interim orders either by permitting in service candidates to stake their claims in the examination or for being appointed as against the quota reserved for Bar. It would not be proper to stop all recruitments for years together, so as to prevent complications as to seniority as well as the quota which is required to be maintained.
It was submitted that if such an anomaly is permitted to be continued, the posts reserved for the Bar members in the High Court too will have to be filled even from the District Judges who might have earlier practiced for 10 years. Be that as it may, as we are not on that issue, in the facts and circumstances of the case, we find that it is not appropriate to pass such interim orders any more. As the matter is urgent, we request Hon'ble The Chief Justice to post the matter before appropriate Bench for hearing it finally as early as possible.
We make it clear that we are not disturbing the appointments which have been made so far by virtue of such interim orders. However, no new appointments be made from now onwards of in-service candidates against quota reserved for Bar. In case even if in-service candidate has been selected in the examination held earlier as against the Bar quota no further appointment to be made of such candidates. However, the practicing advocates who have been found selected for appointment, their result be declared and they be appointed subject to the outcome of the pending matter."
11. Having heard the learned counsel for the parties and gone through the order passed by this Court on 24th of April, 2019 as well as the directions dated 10th of May, 2019 passed by Hon'ble the Supreme Court, we arrive at the undisputed conclusion that the order passed by this Court on 24 th of April, 2019, cannot be maintained as same will, now, definitely run contrary to the import and purport of the directions of Hon'ble the Supreme Court passed in Dheeraj Mor's case (Supra). That being so, the order dated 24th of April, 2019, has to be and, is, accordingly, vacated. We, however, make it clear that having regard to the submissions of Mr Shah, the learned senior counsel, representing the non-applicant/ petitioner, it shall be open for the CM No.3619/2019 In SWP No.783/2019 Page 7 of 8 non-applicant/ petitioner to approach Hon'ble the Supreme Court for seeking redressal of his grievances in appropriate proceedings.
12. CM disposed of as above.
13. Let the main case come up for consideration on the appointed date fixed therein.
(Tashi Rabstan) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
July 25th, 2019
"TAHIR"
TAHIR MANZOOR BHAT
2019.07.26 16:39
CM No.3619/2019
I attest to the accuracy and
integrity of this document
In SWP No.783/2019 Page 8 of 8