Jammu & Kashmir High Court
B.B. Sharma And Ors. vs State And Ors. on 23 December, 2005
Equivalent citations: 2006(2)JKJ124
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Petitioners and respondent No. 2 to 5 are Members of the J&K Engineering ( Gazetted) Service. Petitioners were appointed as Assistant Engineers by direct recruitment on being selected by the Public Service Commission. Similarly respondents No. 2 & 3 also came to be selected, consequent upon their selection by the Public Service Commission. All of them were appointed vide the same Govt order No. PW-86 of 1979 dated 15-2-1979. As far as respondents No. 4 & 5 are concerned, they came to be appointed as Assistant Engineers in the years 1985 and 1987 respectively by promotion. Both the parties i.e. the petitioners and respondents No. 2 to 5 were allotted Hydraulic Wing of the Engineering Service. Petitioners having better merit than respondents No. 1 to 3 at the time of their selection/appointment they were placed higher in the merit list and the merit being the determinative factor in the seniority they were admittedly senior to respondents No. 2 & 3. Respondents No. 4 & 5 having been appointed much later than to the petitioners in the Engineering (Gazetted) Service they also rank junior to the petitioners as Assistant Engineers. A seniority list of the Assistant Engineers, Hydraulic Wing was circulated vide Govt order No. 371-Works of 2002 dated 23-7-2002 wherein petitioner figured at S.No. 107, 109 and 111 respectively. As far as respondents No. 2,3,4 & 5 are concerned, respondents No. 2 & 3 belong to the Scheduled Caste category and respondents No. 4 & 5 to the Scheduled Tribe category. These respondents figure at S.No. 114, 122, 240 and 294 respectively in the seniority list. In the year 1987 re-organization was carried out in the Engineering Service and all the existing posts of Assistant Engineers were up-graded to the newly created cadre of Assistant Engineers vide Govt order No. PWD 1012 of 1987 dated 13-11-1987. Consequently petitioners and private respondents came to be up-graded as Assistant Executive Engineers. The up-gradation to the post of Assistant Executive Engineers was subject to clearance by the DPC. The DPC/PSC considered the cases of all promotees who are placed in the cadre of Assistant Executive Engineers in the " Hydraulic Wing and on the basis of recommendations the sanction was accorded to the regularization of the Assistant Engineers to the posts of Assistant Executive Engineers (Civil) Hydraulic Wing vide Govt order No. 153-PWD (Hyd) of 2005 dated 26-4-2005 and issued the regularization/promotion/up-gradation of Assistant Executive Engineers vide Govt order dated 13-11-1987. It is relevant to note that the petitioners figured at S.Nos 231, 233 and 235 of this Govt order and respondents No. 2 & 3 at S.No. 238 and 246, whereas respondents No. 4 & 55 figured at S.No. 363 and 417 of the aforesaid Govt order. Regularization in the cadre of Assistant Executive Engineers from the dates indicated in the aforesaid Govt order is also determinative of their inter-se seniority as Assistant Executive Engineers.
2. Before the regularization of these Engineers vide Govt order No. 153-PWD (Hyd) of 2005 dated 26-4-2005, respondent No. 1 had issued various orders placing Assistant Executive Engineers as Incharge Executive Engineers to work in various Divisions to over come the immediate functional requirement of those Divisions. Respondents No. 2 to 5 were made Incharge Executive Engineers of Divisions vide Govt order No. 264-Works of 2001 dated 14-6-2001. Similarly, petitioner and respondents No. 1 & 2 also posted as Incharge Executive Engineers, incharge of the Divisions vide Govt order No. 410-Works of 2001 dated 11-9-2001, whereas petitioner No. 3 was made incharge of the Division vide Govt order No. 478-Works dated 9-11-2001. All these Govt orders contained a stipulation that these Incharge arrangements are in their own pay and grade. They were asked to discharge routine work of the Divisions till the regular appointments are made in accordance with the rules. While these engineers were working as Incharge Divisions, holding their substantive rank of Assistant Executive Engineers, respondent No. 1 issued a communication No. PW/Hyd-G/170/2004 dated 25-8-2005 asking the Chief Engineers, PHE, I&FC, RTIC, UEED, and Managing Director, PDC to furnish the service particulars of 10 years posting of Incharge Executive Engineers. Names of as many as 10 Engineers were listed in this communication which included the names of petitioner No. 1 and respondents No. 2 to 5. As far as petitioners No. 2 & 3 are concerned their names do not figure in this communication. This information was sought allegedly for the purposes of further promotion to the post of Superintending Engineers in the Incharge Capacity. It is this communication which appears to have prompted the petitioners to file the present writ petition.
3. Though the communication do not indicate the purpose and purport for which the information is sought, however, it is specifically alleged in para 9 of the writ petition that the information is intended to be used for the purposes of considering them for promotion to the post of Superintending Engineers. Petitioners claimed to have filed a representation resenting the promotion of respondents No. 2 to 5 to the post of Superintending Engineers giving them the benefit of reservation as Scheduled Caste and Scheduled Tribe candidates.
4. The main contention of the petitioners to challenge this communication is that they are senior to respondents No. 2 to 5 all along in the hierarchy of service be it in the initial recruitment as Assistant Engineers, promotion/up-gradation as Assistant Executive Engineers. It is further alleged that placement as Incharge Executive Engineers in the Division temporarily subject to over come the necessity of manning the post does not provide a basis for determination of seniority. The petitioners have raised three-fold contentions;
(i) that the placement of respondents No. 2 to 5 as Incharge Divisions (Executive Engineers) till regular appointment is made cannot be used as a ground for determination of their seniority to even if their placement as Incharge Executive Engineers is considered to be a promotion granting benefit of Reservation to respondents No. 2 to 5 on being promoted as Incharge Divisions (Executive Engineers) in the similar manner the petitioners are entitled to re-gain their seniority by applying catch-up rule;
(ii) respondents No. 2 to 5 are not entitled to further promotion to the post of Superintending Engineers on the basis of reservation as the post of Superintending Engineer carries higher pay scale of 12000-16500 and under the J&K Reservation Act 2004 the benefit of reservation in promotion is available only upto the scale of Deputy Secretary i.e 10,000-15,000.
It is accordingly pleaded on behalf of the petitioners that the private respondents were not entitled to the benefit of reservation for making promotion to the post of Superintending Engineers and if those promotions are to be made on the basis of seniority the petitioners being senior to them have a preferential right of consideration on the basis of their seniority, merit and suitability.
5. State respondents and respondents No. 2 & 3 and respondent No. 5 have filed their separate disclaimer to this petition. It is relevant to notice the stand of the State. The State respondent in its reply admitted the seniority of the petitioners over and above respondents No. 2 to 5 both in the cadre of Assistant Engineers and Assistant Executive Engineers. The position as reflected in the initial seniority list of Assistant Engineers notified vide Govt order No. 371-Works of 2002 dated 23-7-2002 is admitted. Similarly their regularization as Assistant Executive Engineers vide Govt order No. 153-PWD (Hyd) of 2005 dated 26-4-2005 on the recommendation of the DPC/PSC and the seniority of the petitioners in this category on regularization i.e. substantive appointment is also specifically admitted. However, the State respondents have disputed the seniority position as far as the post of Executive Engineer is concerned. It is alleged that respondents No. 2 to 5 were made incharge of the Divisions vide Govt order dated 14-6-2001 by applying the Reservation Rules as prescribed under SRO 126 of 1994, whereas petitioners became incharge of the Divisions (Executive Engineers) vide Govt orders dated 11-9-2001 and 9-10-2001 and thus the private respondents stole a march over the petitioners being reserved category candidates having been granted the benefit of reservation. In answer to the petitioner's contention as raised in the writ petition that on being promoted as Incharge Divisions (Executive Engineers) petitioners' seniority qua the respondents in the feeding channel gets revived by applying the catch-up rule, it is stated that consequent upon the judgment of the Apex Court wherein cath-up rule was invoked. SRO 186 dated 30-5-1997 was issued restoring the seniority of the petitioners over the private respondents on their placement as Incharge Divisions (Executive Engineers). However, on account of subsequent development of law SRO 186 was withdrawn vide SRO 110 dated 14-9-2000. According to the State respondent after withdrawal of aforesaid SRO 186, the private respondents who are promotees are made Incharge Divisions (Executive Engineers) earlier than the petitioners will continue to be senior than the petitioners as the catch-up rule is no more applicable to their case. In so far as the question of grant of reservation for the post of Superintending Engineer to the private respondents is concerned, it is admitted that this benefit is available only upto the rank of Executive Engineer i.e. upto the pay scale of Deputy Secretary, the maximum of which is Rs 15,0007- and the post of Superintending Engineer being in the scale of Rs 12000-16500 no benefit of reservation is made applicable to the respondents for such promotion. Respondents have also placed on record a specific averment that the private respondents are not being considered for promotion as reserved category candidates but are being accorded consideration on the basis of their seniority in the cadre of Executive Engineers, they being senior to the petitioners in the said cadre having been placed incharge Divisions prior to the petitioners and catch-up rule being in-applicable they have attained seniority over the petitioners.
6. Though the impugned letter dated 25-8-2005 do not in any manner notify that the information sought for is for the purposes of granting promotion to the post of Superintending Engineers, petitioners have specifically alleged that the information asked for is intended to be used for promotion to the post of Superintending Engineers. State-respondents have admitted the allegation of the petitioners in this regard in the reply which reads as under:
The respondent further submits that in order to meet the administrative exigency and to serve the public purpose an exercise was initiated vide letter No. PW(Hyd)-G/170/200 dated 25-8-2005 seeking the particulars of 10 Nos Incharge Exeutive Engineers. It is intended to place the incharge executive engineers as Incharge Superintending Engineers. The communication dated 25-8-2005 with the object of collecting the particulars do not, in any manner, violate any of the rights of the petitioners.
7. As far as the private respondents are concerned, respondent No. 4 was set exparte, whereas respondents 2 and 3 in their reply while admitting the seniority position upto the rank of Assistant Executive Engineers have pleaded that on their placement as Incharge Divisions (Executive Engineers) earlier than the petitioners they have gained seniority over them. It is further stated that though the catch-up rule was applied on the basis of the judgment of the Apex Court vide SRO 186 of 1997, however, subsequently the catch-up rule was negated vide SRO 186 by which the catch up rule came to be withdrawn. The private respondents have also relied upon the office memorandum dated 21-1-2002 issued by the Government of India granting benefit of seniority also to the promotees on the basis of their roster point and reservation. The relevant portion of the memorandum reads as under:
In other words, the candidates belonging to General/OBC category promoted later will be placed junior to the SC/ST Government servants promoted earlier though by virtue of the Rule of Reservation.
8. Based upon the aforesaid office memorandum issued by the Government of India, Ministry of Personnel Grievances and Pensions Department of Personnel and Training, it is pleaded that the private respondents will continue to have the benefit of seniority in the cadre of Executive Engineer, having been promoted earlier than the petitioners. Respondents have further pleaded that because of the negative effect of the Supreme Court judgment on the seniority of the reserved category candidates due to application of catch-up rule the Parliament has amended Article 16 of the Constitution of India by introduction of Article 16(4A) by Eighty-Fifth Constitutional Amendment and maintained the seniority of the reserved category promotees on such promotions over and above the general category candidates, even when the reserved category candidates have been granted the benefit of reservation while allowing promotions.
9. As far as the State of Jammu and Kashmir is concerned, the reservation is governed and earlier regulated by Jammu and Kashmir Reservation Rules 1994 as notified vide SRO 126 of 1994 dated 26-6-1994. In so far as the Reservation in promotions is concerned, it is Rule 17 which deals with the Reservation and reads as under:
17. Reservation in Government Service (by promotion).
(1) Except as otherwise provided in these rules, vacancies in any service, class, category or grade carrying a pay scale the maximum of which is Rs 3800 or below, to be filled by promotion, shall be reserved for the members of the Scheduled Castes and Scheduled Tribes according to the percentage specified below:
(i) Where direct recruitment quota specified under the rules or order regulating such service, class, category or grade is at 25% or less, the reservation in promotion quota shall be-
(a) for Scheduled caste 8% (b) for Scheduled Tribe 5%
(ii) Where direct recruitment quota specified under the rules or orders regulating such service, class, category or grade is more than 25% the reservation shall be-
(a) for Scheduled Caste 4% (b) for Scheduled Tribe 5%
A roster was prepared in accordance with Rule 17 for giving effect to reservation in promotions.
10. In the year 2004 the State Legislature enacted Jammu and Kashmir Reservation Act, 2004 (Act No. XIV of 2004 which came to be notified on 23-3-2004. Chapter II of this Act deals with the Reservation for appointment by direct recruitment, whereas Chapter III deals with the Reservation in Government Service by promotion. Rule 6 which make provision for Reservation in Promotions reads as under:
6 Reservation in promotions - Except as otherwise provided in the Act, available vacancies to the extent as may be notified by the Government from time to time, shall be reserved in any service, class, category or grade carrying a pay scale the maximum of which does not exceed the pay scale of the post of Deputy Secretary to Government by promotion from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes.
Provided that total percentage of reservation shall not exceed 25% of the available vacancies:
Provided further that the Government shall exclude the services and posts, which on account of their nature and skill are such as call for highest level of intelligence, skill and excellence, from the operation of the Act.
11. Admittedly no reservation is permissible for the reserved categories of Scheduled Caste and Scheduled Tribes in so far as promotion to the post of Superintending Engineers is concerned. As per its own admission the said respondents have specifically stated that the benefit of reservation is applicable only upto the post of Executive Engineers.
12. The dispute relate to the seniority amongst the reserved category candidates and open category candidates in the cadre of service where reserved category candidates were promoted earlier than the open category candidates getting benefit of reservation. In the present case respondents No. 2 to 5 who belong to reserved categories of Scheduled Caste and Scheduled Tribe were granted promotions though in the stop gap arrangement prior to the petitioner in the rank of Executive Engineer. State as also the private respondents have taken a stand that by virtue of their length of service in the cadre of executive engineers respondents No. 2 to 5 are deemed to be senior. This question came up for consideration before the Apex Court in case of Union of India and Ors. v. Virpal Singh Chauhan and Ors. . Relying upon principles of reservation initiated by the Constitution Bench of the Supreme Court in case of R.K. Sabarwal v. State of Punjab , the Apex Court thus held:
(iii) A harmonious construction of Clauses (4) and (1) of Article 16-both of which are indeed facets of the very same principle of equality- implies that while the members of reserved categories will be entitled to equal treatment in all matters relating to service conditions, they cannot claim accelerated seniority in addition to accelerated promotion. If this principle is not recognized, it would result in the reserved category members stealing an additional march over the general candidates which defeats the guarantee of equality extended by Article 16(1) to general candidates. In other words, giving accelerated seniority in addition to accelerated promotion amounts to conferring double benefit upon the members of reserved category and is violative of rule of equality in Article 16(1).
(iv) The command of Article 335 of the Constitution shall also have to be kept in mind in this behalf. Accelerated promotion-cum-accelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration come to be occupied almost entirely by members of reserved categories- at any rate, far beyond the percentage of reservation prescribed for them.
(v) The decisions of this Court clearly establish the distinction between promotion and seniority. It would be too simplistic to say that seniority automatically follows the promotion.
13. The view expressed by the Apex Court in Sabarwal's case (Supra) was further affirmed by another judgment of the Apex Court in Ajit Singh Januja and Ors. v. State of Punjab , wherein it has been held as under:
We respectfully concur with the view in Union of India v. Virpal Singh Chauhan, that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with, reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated 'consequential seniority'. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted Scheduled Caste/Tribe candidate. As already pointed out above that when a Scheduled Caste/Tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such Scheduled Caste/Tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this process there was no occasion to examine the merit of such Scheduled Caste/Tribe candidate vis-s-vis his seniors belonging to general category. As such, it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded-the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.
14. The mandate of law laid in the afore-said cases however, did not find favour with the Apex Court in later judgment in case Jagdish Lal and Ors. v. State of Haryana and Ors. . The Apex Court while considering the earlier judgments in R.K. Sabarwal v. State of Punjab; Union of India and Ors. v. Virpal Singh Chauhan and Ors., and Ajit Singh Januja and Ors. v. State of Punjab, has held as under:
On promotion to the higher cadre, the reserved candidate steals a march over general candidates and becomes a member of the service in the higher cadre or grade earlier to the general candidates. Continuous length of service gives him seniority as determined under Rule 11. Therefore, seniority cannot get reopened, after the general candidate gets promoted to the higher cadre/grade, though he was erstwhile senior in the feeder cadre/grade.
15. The conflict of judicial pronouncements noticed above attracted the attention of the Apex Court and matter came to be considered by another constitutional Bench in case Ajit Singh and Ors. (II) v. State of Punjab and Ors. . The Apex Court in para 3 of the afore-said judgment noticed the conflict as under:
We also make it clear that what we are deciding today is based on principles already laid down by this Court since 1950 and in particular since 1963. Basing on those principles, we are concerned with the limited question as to whether Union of India v. Virpal Singh Chauhan and Ajit Singh Januja v. State of Punjab which were earlier decided in favour of the general candidates are to be affirmed or whether the latter deviation made in Jagdish Lal v. State of Haryana against the general candidates, is to be accepted.
16. After taking note of various judgments, the Apex Court formulated four points for consideration.
On the above contentions, the following four main points arise for consideration:
Points:
(1) Can the roster-point promotees (reserved category) count their seniority in the promoted category from the date of their continuous officiating vis-'-vis general candidates who were senior to them in the lower category and who were later promoted to the same level?
(2) Have Virpal and Ajit Singh been correctly decided and has Jagdish Lal been correctly decided?
(3) Whether the 'catch-up' principles contended for by the general candidates are tenable?
(4) What is the meaning of the 'prospective' operation of Sabharwal and to what extent can Ajit Singh be prospective?
Points (1) and (2).
A word with regard to Article 16(4) and Article 16(4).
17. With a view to resolve the conflict and laying down the correct position in law, the Apex Court held as under:
52. In the light of the above discussion, the proper balancing of the rights, in our view, will be as follows:
The general candidates who are senior at Assistants' level (Level 2) and who have reached Superintendent Grade II (Level 3) before the reserved candidate moved to Level 4 (Superintendent Grade I), will have to be treated as senior at Level 3 also (Superintendent Grade II) and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a later point of time are not first considered for promotion to Level 4, and if the roster-point promotee at Level 3 is treated senior and promoted to Level 4, there will be violation of Article 14 and 16(1) of the Constitution of India. Such a promotion and the seniority at Level 4 has to be reviewed after the decision of Ajit Singh. But if a reserved category candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above accords, in fact with what was actually stated in Ajit Singh. In that case N.P. Singh, J observed:
It also cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for purpose of their promotion
53. That, in our view, is the correct approach for balancing the fundamental rights under Article 14 and Article 16(1) on the one hand and the provisions relating to reservation in Article 16(4) and Article 16(4A) on the other"
94. We dispose of the clarification applications 1As Nos 1 to 3 of 1998 filed by the State of Punjab accordingly and hold that Ajit Singh and Virpal lay down the correct law and not Jagdish Lal which must be considered as confined to its own peculiar facts. We shall be passing separate orders in the Punjab, Haryana and Rajasthan cases and contempt cases and other 1As on the basis of the principles laid down in this judgment which, for convenience will be called Ajit Singh II.
18. From the above referred judgments what emerges is that general category candidates on being promoted to the next post after their juniors belonging to the reserved category candidates who were promoted earlier in time on account of benefit of accelerated promotion on the basis of roster point will regain their seniority by applying the catch-up rule. Applying this principle of law finally formulated by the Apex Court, the petitioner on being promoted to the post of (Executive Engineer) Incharge Division though later in time will be considered to be senior to private respondents in the said category and thus respondents No. 2 to 5 are not entitled to the benefit of seniority on the basis of length of service in the said cadre. This principle is again to be tested on the basis of the rules as are prevalent in the State of Jammu and Kashmir. SRO 126 and Reservation Act have been noticed above. Both these rules deal with the question of accelerated promotion and not the seniority. As far as the seniority is concerned the same is governed and regulated by Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 which reads as under:
24 Seniority (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be.
Note-1: The rule in this clause will not effect the seniority on the date on which these rules come into force a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force.
Interpretation- The words "date of first appointment" occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and/or tests:
Provided that the inter se seniority of two or more person appointed to the same service, class, category or grade simultaneously will, notwithstanding the fact that they may assume the duties of their appointment on different dates by reason of being posted to different stations, be determined-
(a) in the case of those promoted by their relative seniority in the lower service, class, category or grade:
(Deleted).
(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.
Note 2: Any substantive appointments or permanent promotions made in any department prior to 15th May, 1953 , will not be disturbed if otherwise in order unless such appointment or promotions are already the subject of any appeal, review or revision or otherwise pending decision.
19. In terms of Rule 24(1) the seniority has relation with the substantive appointment and any officiating or temporary appointment does not determine the inter-se seniority of the promotees. Rule 24 further provides where the persons are promoted from the lower cadre simultaneously, their seniority will be determined on the basis of their relative seniority in the lower cadre. Though respondents No. 2 to 5 were promoted earlier on account of roster point granting them benefit of accelerated promotion, this does not in any way destroy the basic seniority of the members of the lower cadre service namely, Assistant Engineer and Assistant Executive Engineer, particularly when as late as in the year 2005 the petitioners and private respondents were regularized as Assistant Executive Engineers and the petitioners' rank higher than the private respondents. As far as SRO 186 is concerned, it only adopted the judgment of the Apex Court in R.K. Sabarwal's case; Ajit Singh (I)'s case and Ajit Singh (II)'s case. Revocation of this SRO vide SRO 110 also does not in any manner change the position in law. SRO 186 only re-affirmed the principle laid down by the Supreme Court. By rescinding this SRO, the position of Rules or the law laid down by the Supreme Court has not undergone any change. Law laid down by the Supreme Court of India is binding on all the courts in the country by virtue of Article 141 of the Constitution of India and its directions are to be implemented by all the authorities in the country. These Articles are quoted hereunder for reference:
Article 141 - The law declared by the Supreme Court shall be binding on all courts within the territory of India.
Article 144 - All authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court.
20. By virtue of SRO 186, catch-up rule as laid down by the Hon'ble the Supreme Court was applied. With the withdrawal of this SRO the judgment still remains operative by virtue of Articles 141 and 144 of the Constitution of India and is required to be implemented by all concerned including the State.
21. Now coming to the other contention of the respondents that by the amendment in Article 16 of the Constitution of India, the reserved category candidates are entitled to retain their seniority on the promotional post where they reached earlier than the general category candidates on account of accelerated promotion by applying the reservation quota and roster point. A Nine Judges Bench of the Apex Court in case of Indra Sawhney v. Union of India and Ors. (1992) Supp (3) SCC 215 while considering the scope of Article 16 in relation to reservation in promotions held as under:
(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion-be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12- Such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievements of the objective of Article 16(4). If any authority, thanks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so.
22. This judgment was set at naught by the law framers by introducing 77th Constitutional Amendment vide Constitution (Seventy-seventh Amendment) Act 1995 w.e.f. 17-6-1995 and subsequently Eighty-fifth Amendment as introduced by the Constitution (Eighty-fifth Amendment) Act 2001, Article 16 after the amendment reads as under:
16. Equality of opportunity in matters of public employment-(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an officer (under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory ) prior to such employment or appointment..
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(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.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filed up in that year in accordance with any provision for reservation made under Clause (4) or Clause(4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year).
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
23. Though Part-III of the Constitution of India contains the fundamental rights is applicable to the State of Jammu and Kashmir, however all the constitutional provisions have no application except those as made applicable by Presidential Order 1954 and other Presidential orders through the window of Article 370 of the Constitution of India original Article 16 is applicable to the State of Jammu and Kashmir. The amendments introduced in Article 16 vide Seventy-seventh amendment arid eighty-fifth constitutional amendment do not extent to the State of Jammu and Kashmir. A larger question is required to be considered whether on account of non-application of these amendments the state is entitled to make any provision for promotion for reserved categories in view of Indira Sawhney's judgment. I do not like to answer these larger and more debatable questions of constitutional relevance in this petition as the issue involved can be answered without deciding this question.
24. Though these above mentioned amendments are not applicable and Sub-article 4-A of Article 16 will not apply to the State of Jammu and Kashmir assuming for the sake of argument that this amendment applies to the State of Jammu and Kashmir, what the Article provides should be taken into consideration. Sub-Article 4-A of Article 16 is again being noticed here-under, even at the cost of repetition:
(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.
25. What this Article has introduced is the power of the State to make the provision for Reservation in the 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 Scheduled Tribes which in the opinion of the State are not adequately represented. This amendment in Article 16 does not in any manner provide either reservation in promotion or confer right of seniority in favour of the category promotees, merely on account of their accelerated promotion. It is only an enabling provision. The State has been given the authority to enact a law to make reservations in promotions and consequential seniority. Admittedly, the State has not made or enacted any law so far which inter-alia provides consequential seniority in favour of the category promotees. Both these laws deal only with the promotion and not the seniority.
26. After this petition was reserved for judgment the State has framed Rules under the Reservation Act 2004 and the relevant Rule 31 in Para VII which deals with the question of seniority reads as under:
31. Seniority: As heither to, the rosters 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:
Provided that the inter-se seniority of the category candidates vis-avis general category candidates on their appointment by direct recruitment shall be determined strictly in accordance with the order of the merit in the Select List prepared by the Selection Authority in accordance with Rule 7 of these rules and Rule 24(b) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal Rules) 1956:
Provided also the inter-se seniority of the categories candidates vis-a-vis general category candidates in appointment by promotion shall determined by Order of the Selection List as per Rule 11 of these rules in accordance with the merit/seniority in the feeding cadre and Rule 24(a) of Jammu and Kashmir Civil Services (Classification, Control and Appeal Rules) 1956 where seniority is the basis for promotion. However, in respect of selection posts, the seniority on promotion shall be determined on the basis of the order of merit prepared by the Selection Authority.
27. A careful reading of this rule clearly establish that the State has not made any provision for consequential seniority in favour of the reserved category candidates. On the other hand the rule pertains to the contrary and provides for seniority as was operative in the feeding category where seniority is basis for promotions. Therefore, respondents No. 2 to 5 are not entitled to claim the seniority over and above the petitioners or for that matter other general category officers in the cadre of Executive Engineer who were seniors to them as A.E.E , merely on account of their length of service as Incharge Executive Engineer. Catch-up rule will still operate and the petitioners and all such persons will be deemed to be senior to respondents No. 2 to 5 notwithstanding their promotion as Executive Engineer on a later date. The reliance placed by the private respondents on the memorandum of Government of India date 21-1-2002 in respect to the benefit of seniority on account of length of service as Incharge Executive Engineer is misplaced; firstly because this memorandum has been issued as a consequence of amendment in Article 16 of the Constitution of India which has no application to the State of Jammu and Kashmir and secondly, the State rules do not permit the benefit of seniority rather the seniority' of lower cadre has been carried to the promotional posts where the promotion is based upon rule of seniority in the feeding category. Undisputedly, promotion to the post of Executive Engineer is on the basis of seniority and suitability, hence the seniority in the feeding channel i.e. Assistant Executive Engineer is to be applied in the cadre of Executive Engineer as and when the general category candidates are promoted to the post of Executive Engineer even on a later date than the reserved category candidate who were promoted earlier in time on roster point.
28. Though the State-respondents have challenged the competence of this petition on the ground that the communication is only a informatory latter, however, the stand taken by the State clearly demonstrates its intentions to operate the seniority in the manner prejudicial to the interest of the petitioners and to their detriment. It is under these circumstances that this Court took up the issue of settlement of question of seniority amongst the reserved and general category candidates, based upon the pleadings of the parties. This issue being specifically raised and substantially involved in this petition.
29. For what has been stated above, this petition is allowed. The respondents are directed to fix the seniority of the members of the Gazetted Engineering Service in Hydraulic Wing to which the petitioners and private respondents belong in the cadre of Assistant Executive Engineers/Executive Engineers by applying the catch-up rule, meaning thereby if the general category candidates are promoted later in time than the reserved category candidates who were promoted earlier because of accelerated promotion, the relative seniority of General Category candidates in the lower cadre will be restored on such promotion to the higher rank/category.
30. Petitioners shall be deemed to be senior to the respondents No. 2 to 5 both in the category of Assistant Executive Engineer and Executive Engineers. Any further promotion to the post of Superintending Engineer shall be made on the basis of seniority determined in view of the above direction and in accordance with the Recruitment Rules . As far as the impugned letter is concerned, I refuse to quash the same as it merely seeks information. However, such information shall not be used to determine the right of promotion, contrary to the directions issued hereinabove.