Jammu & Kashmir High Court
Renu Mahajan vs State Of J&K; And Others on 30 January, 2018
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 1042/2014, MP No. 01/2015
and
SWP No. 309/2016, MPNos. 01/2016 and 03/2016
Date of decision: 30.01.2018
RenuMahajan vs.State of J&K and another
RenuMahajan vs.State of J&K and others
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearance:
For the appellant/petitioner(s) : Mr. Rahul Pant, Advocate.
For the respondent(s) : Mr.H. A. Siddiqui, Sr. AAG
Mr. D. C. Raina, Sr. Advocate with Mr.AnujDewanRaina, Advocate Mr. K. S. Johal, Sr. Advocate With Mr.Paras Gupta, Advocate.
i. Whether approved for
reporting in Press/Media : Yes/No
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Petitioner, RenuMahajan, was initially appointed as Public Law Officer in the pay scale of Rs. 2000-3200 in the office of the Advocate General in stopgap arrangement for a period of 89 days vide Government order No. 304-LD dated 29.01.1993 issued by the Law Department. The term of her appointment, however, was extended from time to time up to the year, 1999.
2. On the other hand, the private respondent, Nazir Ahmed Thakur, was initially appointed as Public Law Officer in the pay scale ofRs. 1760-3200 in stopgap arrangement vide Government Order No. LA(A) 16 of 1992 dated 13.05.1992, issued by the Secretary to Government, Ladakh Affairs Department, in the office of the District Development Commissioner, Leh on SWP Nos. 1042/2014, 309/2016 Page 1 of 19 18.05.1992. Vide Government Order dated 28.09.1994 issued by the Law department, the private respondent was regularized against the post held by him with retrospective effect from the date he joined in the office of Deputy Commissioner, Leh. (There is divergence in regard to the number of this order. The petitioner has referred to this order as Government Order No. 1593-LD (Estt) of 1994, whereas respondents 1 and 2 as Government Order No. 1590-LD (Estt) of 1994, whereas respondents 1 and 2 as Government Order No. 1590-LD (Estt) of 1994, the private respondent in para 5 of preliminary objections has referred to this order as Order No. 1590-LD (Estt) of 1994 and in para 12 of para wise reply as Order No. 1593-LD (Estt) of 1994. Hereafter this order shall be referred to as Order dated 28.09.1994. In quick succession, vide Government Order No. LD(A) 1655 of 1994 dated 21.10.1994 issued by the Law department, the private respondent was transferred from the office of the Deputy Commissioner, Leh and adjusted against available post of Law Officer in the pay scale of Rs.2000-3200 in the office of the Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir, with a rider that he will retain lien against one of the posts of legal assistants in law department. This order as it assumes importance hereafter in its substance is reproduced:
"Subject: Transfer and adjustments.
Reference: Commissioner Power Development Department's Letter No. PDD/VI/35/93 dated 21.10.1994 Govt. Order No: LD(A)1655 of 1994 Dated 21.10.1994 As agreed to by the Commissioner Power Development Department, J&K, Srinagar vide above cited communication sanction is accorded to the transfer and adjournment of Mr. Nazir Ahmad, Law Officer, presently working in the office of Deputy Commissioner-cum- District Development Commissioner, Leh, against the available post of Law Officer (2000-3200) in the office of Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir. He will retain lien against one of the posts of LA in the Law Deptt.SWP Nos. 1042/2014, 309/2016 Page 2 of 19
The transferee will move immediately. Sanction is also accorded to grant of Advance TA in favour of the transferee. By order of the Government of Jammu & Kashmir.
Sd/-
Addl. Secretary to Govt.
Law Department"
3. Common ground of both the sides is that up to the year 1997, Public Law Officers/Law Officers had been engaged in different departments from time to time in different grades and there was no unified service or cadre of Public Law Officers or Law Officers in the State. In the year 1997, pursuant to the Cabinet decision No. 177/99 dated 06.08.1997, the State Government vide Government Order No. 1467-LD (Estt) of 1997 dated 13.08.1997 (hereinafter to be referred as the Government Order dated 13.08.1997) constituted a separate Service of Law Officers (hereinafter to the referred as the Law Officer's Service) under the administrative control of the Law department with following hierarchy:
S. No. Designation Grade Qualification
1. 2. 3. 4.
A/ Public Law Officer, Grade-I. Rs. 2200-3800. L.L.B (three years/Professional) B/ Public Law Officer, Grade-II. Rs. 2125-3600. -do-
C/ Legal Assistants Rs. 2000-3200. -do-
D/ Public Law Officer, Grade-II. Rs. 1400-2600. -do-
4. The Government Order dated 13.08.1997, while creating the Law Officers Service, inter alia provided for thetransfer of specified number of posts of Public Law Officers/Law Officers from below mentioned departments to the Law Department and their encadrement in the proposed service :
Forest Department .... 5
Geology and Mining .... 1
Power Development Department .... 1
Roads and Buildings ..... 1
Directorate of Litigation .....1
Social Welfare Department ......1
SWP Nos. 1042/2014, 309/2016 Page 3 of 19
and re-designation of remaining posts of Public Law Officers/Law Officers in the grade of Rs. 2000-3200 as Legal Assistants.
5. After creation of the Law Officer's Service, the services of the petitioner, who initially had been appointed on stopgap arrangement, were regularized vide Government Order No. 6401-LD(Estt) of 1999 dated 17.11.1999 issued by the Law department, "against the posts of Public Law Officer and Legal Assistant respectively held by her from time to time with effect from 30.04.1993 in the pay scale of Rs. 2000-3200 (pre-revised) in the office of Director Litigation, Jammu". It is worthwhile to point out here that with the creation of the Law Officer's Service in the year 1997, the post of Public Law Officer/Law Officer in the pay grade of Rs. 2000-3200 was re-designated as Legal Assistant so the services of the petitioner were accordingly regularized as Public Law Officer and Legal Assistant.
6. Vide Government Order No. 758-LD (Estt) of 2005 dated 04.04.2005, the petitioner was promoted from Legal Assistant to Law Officer, Grade-II in the pay scale of Rs. 7500-12000, however, subject to clearance by the Departmental Promotion Committee(DPC) and was posted in the office of the Service Selection Board, Jammu along with post. The private respondent, however, had already been similarly promoted as Law Officer, Grade-II in the pay scale of Rs. 7500-12000 vide Government Order No. 758-LD(Estt) of 2001 dated 24.10.2001, subject to clearance by DPC/PSC. Admittedly thus, the private respondent was promoted as Law Officer, Grade-II in the pay scale of Rs. 7500-12000 on 24.10.2001, whereas the petitioner was similarly promoted on 04.04.2005.
7. Vide Government Order No. 2181-LD(Estt) of 2007 dated 03.09.2007 the petitioner as well as the private respondent were promoted from Law Officer, Grade-II as Senior Law Officer, pending confirmation by DPC/PSC. In this SWP Nos. 1042/2014, 309/2016 Page 4 of 19 order, the private respondent was shown at serial No. 1 and the petitioner at serial No. 2. Here it is important to note that by virtue of the order dated 13.08.1997, whereby the Public Law Officer's Service was created, the highest post in the hierarchy was that of the Public Law Officer, Grade-I and in that the petitioner and the private respondent should have been promoted as Public Law Officer Grade-I. However, in this regard it has come in the pleadings that in the year 2001 vide Government Order No.545-LD(Estt) of 2001 dated 28.02.2001 some posts of Public Law Officer Grade-I were upgraded and re-designated as Senior Law Officer and similar up-gradation was made in the year 2006 also vide Government Order No. 2095-LD(Estt) of 2006 dated 20.06.2006 when some posts of Law Officers Grade-I and Law Officers Grade-II were amalgamated and re-designated as Senior Law Officers. This might be the reason that by virtue of Order dated 03.09.2007 (supra) the petitioner and the private respondent came to be promoted from Public Law Officer Grade-II directly as Senior Law Officer.
8. In the year 2010 vide Government Order No. 1884-LD (Estt) of 2010 dated 26.08.2010 read with SRO 51, Notification dated 14.02.2011, the Law Officer's Service was amalgamated with the J&K Legal (Gazetted) Service (for short, hereinafter to be referred as the Legal Service) and the Law Officer's Service ceased to exist. By virtue of this order, posts of Special Secretary, Additional Secretary and Senior Law Officer were created in descending order. By virtue of SRO 51, Schedule-I and Schedule-II of the Legal Service were substituted by new Schedules and the posts of Special Secretary, Additional Secretary and Senior Law Officer were included in Class-I, Class-II and Class-III respectively.
9. After amalgamation of the Law Officer's Service with the Legal Service, the petitioner as well as the private respondent by virtue of Government Order SWP Nos. 1042/2014, 309/2016 Page 5 of 19 No. 1845-LD (Estt) of 2013 dated 22.05.2013 were given officiating promotion from Senior Law Officer to Additional Secretary subject to confirmation by the Public Service Commission/Departmental Promotion Committee. In this order again private respondent figures at serial No.1 and the petitioner at serial No.2.
10. Petitioner felt aggrieved as according to her she was entitled to promotion as Additional Secretary in the year 2010 as by that time she had completed three years as Senior Law Officer and persons junior to her were promoted earlier than her. She, therefore, filed writ petition in SWP No. 1042 of 2014. In this petition, petitioner sought writ ofMandamus commanding respondents to regularize/substantively promote her as Public Law Officer Grade-II w.e.f. 04.04.2005, that is, from the date she was so promoted, however, subject to clearance by DPC/PSC and to regularize her as Senior Law Officer w.e.f. 03.09.2007, that is, from the date she was so promoted subject to confirmation by DPC. She sought further writ of Mandamus commanding respondent No.1 to fix her seniority as Senior Law Officer accordingly. She sought further writ of Mandamus directing respondents to consider her for promotion to the post of Additional Secretary with effect from the year 2011 or 2012.
11. She has contended in this petition that three posts of Additional Secretaries had become available with effect from May, 2011 up to 29th December, 2012. She was eligible for consideration to promotion at that time but she was not considered. She alleged that she was denied consideration for promotion on the ground that she has not been confirmed as Public Law Officer, Grade-II or as Senior Law Officer. In this petition, she contended also that Nazir Ahmed Thakur (private respondent), who was made I/C Additional Secretary along with her, did not avail the said promotion and Government was constrained to SWP Nos. 1042/2014, 309/2016 Page 6 of 19 cancel his promotion vide Government Order No. 1035-LD (Estt) of 2014 dated 24.02.2014.
12. In SWP No. 1042/2014, when it came up before this Court on 24.04.2014, this Court as interim measure directed the respondents to consider the claim of the petitioner under rules during the notice period and to maintain status quo in the matter with respect to the post of Special Secretary to Government in the Law Department.
13. During pendency of SWP No. 1042/2014, the Government vide Government Order No. 2129-LD (Estt) of 2015 dated 20.07.2015 issued category wise Seniority List of the members of Legal Service as it stood on 01.07.2015. Petitioner and private respondent figure in the category of Legal Assistants shown as 'Category-D'. Private respondent figures at seniority position No. 1. The date of his entry into Government service and date of clearance/confirmation by the DPC have been shown as 10.09.1992. The petitioner figures at position No.2. Her date of entry into Government service and date of clearance/confirmation by the DPC have been shown as 29.04.1993.
14. Petitioner, feeling aggrieved by having been shown junior to the private respondent in the category of Legal Assistants, filed writ petition in SWP No. 309/2016. She seeks writ of Certiorari quashing Government Order No. 2129-LD (Estt) of 2015 dated 20.07.2015 whereby the final seniority list has been issued to the extent it places the private respondent over and above the petitioner in the category 'D' of legal Assistants in erstwhile Law Officer's Service. She seeks further writ of Mandamus commanding respondent No.1 to place her at Serial No.1 in the seniority list of Legal Assistants, writ of Mandamus commanding respondent No.1 to not act on the seniority list SWP Nos. 1042/2014, 309/2016 Page 7 of 19 issued vide Government Order dated 20.07.2015 (supra) and writ of Mandamus commanding respondent Nos. 1 and 2 not to treat the private respondents as senior to the petitioner, while regularizing the petitioner and private respondent against the post of Public Law Officer Grade-II, Senior Law Officer and Additional Secretary to Government.
15. The crux of the petitioner's plea is that she was appointed against the post of Public Law Officer in the pay scale of Rs.2000-3200 (pre-revised), which later came to be re-designated as Legal Assistant by virtue of Government Order dated 13.08.1997 (supra), in stop gap arrangement in the year 1993 and vide order dated 17.11.1999 (supra) issued by the Law Department, she was regularized against the said post w.e.f 30.04.1993. On the other hand, the private respondent, even though appointed in stop gap arrangement prior to her in the year 1992 and regularized from the date of his stop gap appointment, was appointed and regularized in a lower grade of Rs.1760- 3200 and he continued in this grade till vide Government order dated 21.10.1994, he was transferred from the office of Deputy Commissioner, Leh to the office of the Chief Engineer, Electric Maintenance and Rural Development, Kashmir against available post of Law Officer in the pay grade ofRs.2000-3200. Petitioner has, thus, contended that respondent was appointed in the pay scale of Rs.2000-3200 vide order dated 21.10.1994, that is, later than her. She has even contended that the private respondent as a matter of fact has never been regularized in pay scale of Rs.3200 as he was simply transferred against a post in that grade.
16. Respondents 1 and 2 in their objections filed in both the petitions have not addressed the plea raised by the petitioner in regard to her seniority vis a vis the private respondent. In the brief objections filed in SWP No. 1042/2014, it is stated that the matter relating to regularization/clearance of members of Legal Service and Law Officer's Servicepromoted from time to time, SWP Nos. 1042/2014, 309/2016 Page 8 of 19 including the petitioner, was taken up with respondent No.2, that is, the Public Service Commission. The respondent No.2 cleared the cases of the members of Legal Service whereas the other cases including that of the petitioner were returned and after that respondent No.1 vide Government Order No. 2129-LD (Estt) of 2015 dated 20.07.2015 issued the final seniority list in which the petitioner has been placed at appropriate place. Likewise, in the objections filed in SWP No. 309/2016, it is stated on behalf of respondents 1 and 2 that the final seniority list was issued after considering the objections filed to the tentative seniority list including the objections filed by the petitioners.
17. The plea raised by the petitioner, however, has been addressed by the private respondent in his reply filed in SWP No. 306/2016. It is stated that the private respondent was appointed on stop gap basis on 18.05.1992 vide Government Order No. LA(A) 16 of 1992 dated 03.05.1992 and his services were regularized by the Government vide Government Order No. 1590-LD (Estt) of 1994 dated 28.09.1994 against the post held by him with retrospective effect, that is, the date from which he joined his duties as Public Law Officer. It is contended that with retrospective regularization of the petitioner and the private respondent, the date of first appointment of the petitioner became 29.01.1993 and that of private respondent it became 18.05.1992 and therefore, private respondent is senior to the petitioner. Contextually, it is contended by the private respondent that there was ambiguity in pay scale given to him, against which he strongly agitated and respondent No.1 after considering his representation, vide Government Order No. LD/Estt/1655 of 1994 dated 21.10.1994 read with Law Department's letter bearing No. LD (Estab) 5-94 dated 19.12.1994 granted the pay scale of Rs.2000-3200 in hisfavour too. Contextually, it is important to note the reply of the private SWP Nos. 1042/2014, 309/2016 Page 9 of 19 respondent to para 12 of the writ petition in SWP No. 309/2016, which I reproduce:
"12. That the contents of para 12 of the petition are denied being absolutely false. However, it is submitted initially Government order No. 1499-LD (Estt) of 1994 dated 23.08.1994 with respect to regularization of the answering respondent was issued by the Law Department, but the same was not acted upon. However, the case of the answering respondent was considered for regularization and after obtaining necessary approval from the competent authority i.e. General Administration Department, the services of the answering respondent were regularized vide Government Order No. 1593-LD (Estt) of 1994 dated 28.09.1994. With the issuance of this regularization order of the answering respondent, the earlier order on the same issue became redundant and was never acted upon."
18. The core question, thus, raised for consideration in these writ petitions is, as to who among the petitioner and the private respondent is senior in the category of Legal Assistant (earlier Public Law Officer) in the pay scale of Rs.2000-3200. The determination of their inter se seniority at that level will guide the fixation of seniority in the higher categories of Public Law Officer, Grade-II, Senior Public Law Officer and above, which so far have not been fixed.
19. There is no dispute in regard to the date of initial appointment/regularization of the petitioner as Legal Assistant (earlier Public Law Officer) in pay scale of Rs.2000-3200. It is admitted that she was initially appointed as Public Law Officer in pay grade of Rs.2000-3200 in stop gap arrangement against an available vacancy in the office of Advocate General vide Government Order No. 304-LD dated 29.01.1993 issued by the Law Department and later vide Government Order No. 6401 LD (Estt) of 1999 dated 17.11.1999 she was regularized as Public Law Officer/Legal Assistant in the same pay scale with retrospective effect from 30.04.1993. It is, thus, admitted that petitioner has been regularized as Legal Assistant (earlier Public Law Officer) with effect from 30.04.1993. The date of appointment/regularization of the private respondent in pay scale of Rs.2000-3200, however, is disputed.
SWP Nos. 1042/2014, 309/2016 Page 10 of 1920. In regard to the private respondent, the undisputed position is that his initial appointment as Public Law Officer in stop gap arrangement was in the lower pay scale of Rs.1760-3200 by virtue of Government Order No. LA (A) 16 of 1992 dated 13.05.1992 issued by the Ladakh Affairs Department and pursuant thereto he joined in the office of the District Development Commissioner, Leh on 18.05.1992. The undisputed position further is that by virtue of Government Order dated 28.09.1994 (supra) issued by the Law Department, the private respondent was regularized as Public Law Officer against the post held by him in the Office of the Deputy Commissioner, Leh with retrospective effect from the date he joined his duties. The admitted position, thus, is that the private respondent was regularized as Public Law Officer in the lower pay scale of Rs.1760-3200 w.e.f. 18.05.1992. Disputed area begins thereafter.
21. Shortly after his regularization, the private respondent, vide Government Order No. LD (A) 1655 of 1994 dated 21.10.1994 was transferred from the Office of the Deputy Commissioner, Leh and adjusted in the office of the Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir against the available post of Law Officer in the pay scale of Rs.2000-3200, however, with a condition that he will retain lien against the post of Legal Assistant in the Law Department.
22. The ancillary question, thus, arises, as to when the private respondent can be said to have been appointed as Public Law Officer/Legal Assistant in the pay scale of Rs.2000-3200. The normal inference to be drawn is that the private respondent joined against the post of Public Law Officer/Legal Assistant in the pay scale of Rs.2000-3200 for the first time by virtue of his adjustment against such a post in the Office of the Chief Engineer Electric Maintenance SWP Nos. 1042/2014, 309/2016 Page 11 of 19 and Rural Electrification Department, Kashmir vide Government Order No. LD (A) 1655 of 1994 dated 21.10.1994, that is, later than the date of regularization of the petitioner in the said grade. It is important to note contextually that this adjustment was virtually by way of a deputation from a post held in a lower grade in one department to a post in a higher grade in the other department inasmuch as the transfer/adjustment order provided that he shall retain lien against a post of LA in the Law Department.
23. It is, thus, clear and indisputable that the petitioner was regularized as Public Law Officer/Legal Assistant in the pay scale of Rs.2000-3200 w.e.f 30.04.1993, whereas the private respondent was regularized as Public Law Officer/Legal Assistant in the lower pay scale of Rs.1760-3200 w.e.f 18.05.1992 and was later transferred and adjusted against a post in the pay scale of Rs. 2000-3200 vide the order dated 21.10.1994 (supra). The appointment/regularization of the petitioner in the pay scale of Rs.2000-3200, therefore, is earlier than the adjustment of the private respondent against a post carrying the said pay scale. The important contention of the private respondent stated in para 5 of the preliminary objections, however, is that since there was ambiguity in the pay scale given to him against which he strongly agitated and represented and the Government in the Law Department after considering the representation filed by him, vide Government Order No. LD/Estab/1655 of 1994 dated 21.10.1994 read with Law Department's letter bearing No. LD (Estab) 5-94 dated 19.12.1994 granted the pay scale of Rs.2000-3200 in his favour also. Contextually, it is contended by the private respondent that with the grant of the pay scale of Rs.2000-3200 to him at a later stage his regularization in that grade takes effect from 18.05.1992.
24. Dilating the plea of the private respondent, it was argued on behalf of the private respondent that even though at the time of his regularization with SWP Nos. 1042/2014, 309/2016 Page 12 of 19 effect from 18.05.1992 the private respondent was in the pay scale of Rs.1760-3200 but the ambiguity about his pay scale was removed and he was also given the grade of Rs.2000-3200 so his regularization as Public Law Officer/Legal Assistant in this scale takes effect from the date of his regularization, that is, 18.05.1992 and in that he is senior to the petitioner. Reference in regard to grant of the pay scale of Rs.2000-3200 to the private respondent has been made to "Government Order No. LD/Estab/1655 of 1994 dated 21.10.1994" and the Law Department's letter "No. LD (Estab) 5-94 dated 19.12.1994". None of these two documents, however, have been produced by the private respondent to support his plea nor any such plea has been taken by the respondents 1 and 2 in the objections filed on their behalf. Learned Senior Additional Advocate General, appearing on behalf of respondent No.1, on having been specifically asked in this regard, could not lay hand on either of these two documents in the record produced by him. It is rather noticed that the "Government Order No. LD/Estab/1655 of 1994"being referred to in this context is the order by virtue of which the private respondent was transferred from the Office of the Deputy Commissioner, Leh and adjusted in the Office of the Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir with a condition that he will retain lien against the post of Legal Assistant in the Law Department.
25. The plea of the private respondent that he was ever put in the pay scale of Rs.2000-3200 with effect from the date of his regularization as Public Law Officer, later designated as Legal Assistant, in the Office of the Deputy Commissioner, Leh, therefore, is without any basis and cannot be accepted, also for the reason that no such plea has been taken on behalf of the respondent No.1. To do so could not have been possible also because the initial appointment of the private respondent in stop gap arrangement, as it is evident from entry in his Service Book, copy whereof is annexed to the SWP Nos. 1042/2014, 309/2016 Page 13 of 19 objections filed on behalf of respondents 1 & 2, was made by the Ladhak Affairs Department in the pay scale of Rs.1760-3200 and the pay scale could not have been upgraded without creation of a post in that grade with retrospective effect from the date of initial appointment. ,,,,,,
26. I would, thus, hold that even though the private respondent was appointed/regularized as Public Law Officer/Legal Assistant earlier than the petitioner but his initial appointment/regularization was in the pay scale of Rs.1760-3200 and he was adjusted against a post in the pay scale of Rs.2000- 3200 by virtue of Government Order dated 21.10.1994 (supra) whereby he was transferred from the Office of the Deputy Commissioner, Leh to the Office of the Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir. The private respondent, therefore, at the most can be deemed to have been appointed as Public Law Officer/Legal Assistant in the pay scale of Rs.2000-3200 by virtue of Government Order dated 21.10.1994, that is, later than the regularization of the petitioner in this pay scale. Petitioner is, therefore, senior in the category of Legal Assistant (earlier Public Law Officer) in the pay scale of Rs.2000-3200 than the private respondent.
27. The next important question, thus, arising is as to whether the petitioner should have been ranked higher than the private respondent in the category-D (Legal Assistants) shown in the impugned seniority list, in which private respondent figures at seniority position 1 followed by the petitioner at seniority position 2.
28. It was submitted by learned counsel for the petitioner, Mr. Rahul Pant, that by virtue of the Government Order dated 13.08.1997, whereby Law Officer's Service was created, only the Public Law Officers/Law Officers in the pay scale of Rs.2000-3200 were encadered in the service and re-designated as Legal Assistants so the seniority will have reference to the post of Legal SWP Nos. 1042/2014, 309/2016 Page 14 of 19 Assistant (earlier called Public Law Officer/Law Officer) in the pay scale of Rs.2000-3200 and the seniority position of the private respondent at the most would be reckoned from the date he joined in the Office of the Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir by virtue of order dated 21.10.1994 whereas the seniority of the petitioner would be reckoned from the date of her regularization in the said grade, that is, 30.04.1993. Learned counsel, thus, argued that respondent No.1 has erred in showing the date of entry into Government service as also date of clearance/confirmation by the DPC of the private respondent as 10.09.1992. Dilating his point, learned counsel argued further that under Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 seniority has reference to the service, class, category or grade in which seniority is to be fixed and not to the date of entry in service in a lower category or grade. Learned counsel, thus, concluded that even if it is presumed that by virtue of his transfer to the office of the Chief Engineer Electric Maintenance and Rural Electrification Department, Kashmir, the private respondent was permanently brought in the pay scale of Rs.2000-3200 his date of appointment in the said grade would be the date of his joining the said post and seniority would be reckoned from that date and therefore, placing him at seniority position No.1 over the head of the petitioner is illegal and liable to be quashed.
29. Per contra, learned Senior Advocate, Mr. K.S.Johal, appearing on behalf of the private respondent submitted that the starting point for fixing the seniority would be the date of creation of Law Officer's Service and the date of appointment at earlier stage will not determine the seniority. Learned counsel relied upon a DB judgment of this Court in Abdul GaniBeigh v. J&K Agro Industries Development Corporation Limited and Ors, 2005 (1) JKJ SWP Nos. 1042/2014, 309/2016 Page 15 of 19
27.The submissions of the learned Senior Additional Advocate General, Mr. H. A. Siddiqui were also on the similar line.
30. The authority cited by learned counsel appearing on behalf of the private respondent though relating to altogether different fact situation reiterates the rule position in Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. It is stated by the learned Division Bench that "a cadre of service has different classes and categories. Seniority of the employee has to be fixed by reference to particular service, class, category or the grade."
31. In this case, it is to be noticed that prior to the creation of Law Officer's Service by virtue of Government Order dated 13.08.1997, Public Law Officers/Law Officers were appointed in different departments and there was no unified service under the Administrative Control of a particular department, say, the Law Department. So seniority of the Officers at that point of time might have been maintained at respective departmental level. The Law Officer's Service created vide order dated 13.08.1997 by virtue of the same order encadered the post of Public Law Officer/Law Officer in the pay scale of Rs.2000-3200 in the service and re-designated the same as Legal Assistant. All those Public Law Officers/Law Officers, therefore, entered the Service as Legal Assistants, who were in the pay scale of Rs.2000-3200. Both, the petitioner and the private respondent, thus, entered the Law Officer's Service simultaneously as both of them at the time of creation of the service were in the pay scale of Rs.2000-3200. The date of their appointment/regularization in the said grade, however, assumes importance when it comes to fixation of their inter se seniority. Under Rule 24 of the Civil Services (Classification, Control and Appeal) Rules, 1956, seniority of a person has a reference to the service, class, category or grade in which the SWP Nos. 1042/2014, 309/2016 Page 16 of 19 seniority is to be fixed and it is well settled that the seniority is relatable to substantive appointment. The inter se seniority in the same service, class, category or grade is determined by the date of first appointment to such service, class, category or the grade. The inter se seniority of the persons who enter a newly created service can be determined only with reference to their initial appointment to a particular post in a particular grade and not to the date of entering the newly created service. Same principle as a matter of fact has been adopted by respondent No.1 in fixing the seniority of Legal Assistants in category D but error has been committed in assigning the private respondent date of appointment (entry) in the said grade earlier than the petitioner ignoring that he had been appointed in the said grade later thanthe date of regularization of the petitioner. As explained above, petitioner's appointment as Legal Assistant (earlier Public Law Officer) in the pay scale of Rs.2000- 3200 is earlier than that of the private respondent's adjustment against a post in the said pay scale. Showing her junior to the private respondent is, therefore, illegal.
32. It was argued by the learned Senior Additional Advocate General also that the private respondent was promoted as Public Law Officer, Grade-II in the year 2001 much earlier than the petitioner, who was so promoted in the year 2005 and the petitioner having not questioned the promotion of the private respondent at that time cannot now question the seniority list prepared after that. Contextually, it was argued by Mr. Siddiqui that in the subsequent orders, whereby the petitioner and the private respondent were simultaneously promoted as the Senior Law Officer and Additional Secretary, the private respondent was shown at serial No.1 and the petitioner was shown at serial No.2. Reply of learned counsel for the petitioner to this argument was that all such promotions were made without fixing the seniority in the category of Legal Assistants and the private respondent arbitrarily was promoted earlier SWP Nos. 1042/2014, 309/2016 Page 17 of 19 than the petitioner and the protest raised by the petitioner was ignored. In this regard, learned counsel refers to petitioner's plea in para 6 of the petition in SWP No. 309/2016 to the effect that "respondent No.3 despite being junior to the petitioner was promoted as Law OfficerGr.II in the year 2001 subject to clearance by the DPC/PSC. Petitioner being senior agitated the matter but she was told that since this is only temporary arrangement and final/substantive promotion is to be made by DPC/PSC as such claim of seniority shall be considered by DPC/PSC at the time of regular promotion after the finalization of seniority." Contextually, learned counsel pointed out that the said plea of the petitioner has not been denied. Learned counsel argued also that the Public Service Commission had returned the case of the petitioner as well as the private respondent and had asked the respondent No.1 to fix the seniority of the members of the J&K Legal Service as by that time Law Officer's Service was amalgamated with the J&K Legal Service.
33. The plea taken by the learned Senior Additional Advocate General cannot sustain. It is noticed that all the successive promotions of the petitioner and the private respondent as Law Officer-Grade-II, Senior Law Officer and Additional Secretary were made without fixing their seniority in the basic category of Legal Assistants (earlier Public Law Officer) pending clearance/confirmation by the DPC/PSC. When it came to clearance by the Public Service Commission, the Public Service Commission seems to have returned the cases for fixation of seniority. After that seniority of the petitioners and the private respondent among others was fixed in the category of Legal Assistants. Fixation of seniority in the said category has to determine the seniority in the subsequent posts and benefit so arising cannot be refused even if something wrong was done at an earlier stage, which in any case was subject to clearance by the PSC/PSC.
SWP Nos. 1042/2014, 309/2016 Page 18 of 1934. For all that said and discussed above, these petitions have merit and are allowed as follows:
i) by issue of a writ of Certiorari,the impugned seniority list issued vide Government Order No. 2129-LD (Estt) of 2015 dated 20.07.2015 to the extent of the private respondent and the petitioner shown at seniority position 1 and 2 respectively in category-D (Legal Assistants) is quashed.
ii) by issue of a writ of Mandamus,respondent No.1 is directed to redraw the seniority list by showing petitioner at seniority position 1 and the private respondent at seniority position 2 in category-D (Legal Assistants).
iii) by issue of a writ of Mandamus,respondents 1 and 2 are directed to give the promotional benefit to the petitioner and the private respondent in accordance with the re-fixed seniority, however, subject to fulfillment of other requisites.
(Janak Raj Kotwal) Judge Jammu:
30.01.2018 Pawan Chopra* SWP Nos. 1042/2014, 309/2016 Page 19 of 19