Jammu & Kashmir High Court
Abdul Rashid Mir vs State Of Ors. on 4 September, 2003
Equivalent citations: 2004(1)JKJ140, 2004 LAB. I. C. 965, (2004) 21 ALLINDCAS 771 (J&K) (2004) 2 SCT 616, (2004) 2 SCT 616
Author: R. C. Gandhi
Bench: R.C. Gandhi
JUDGMENT R. C. Gandhi, J.
1. Petitioner by means of this petition seeks issuance of writ of certiorari to quash order No. PFC/83/2002 dated: 21.11.2002 whereby final seniority list of Junior Assistants of the Provident Fund Department, Kashmir Division, has been issued as on 1.11.2002. Petitioner and the respondents 5 and 6 were appointed as Junior Assistants, on the recommendation of the Recruitment Board, by the Provident Fund Commissioner.
2. Respondents framed and circulated the seniority list as on 8.10.1986 of the subordinate staff. In this seniority list, petitioner figured at S. No. 57 whereas respondent No. 5 and 6 at S. No. 12 and 68 respectively. The respondents issued another seniority list of the Divisional cadre (Kashmir Division) as on 31.3.2002 wherein the petitioner appeared at S. No. 2 and respondents 5 and 6 at S.No. 33 and 31 respectively. Final seniority list was issued on 21.11.2002 which has been impugned in this petition The petitioner has been shown at S. No. 39 whereas respondents 5 and 6 have been shown at S. No. 37 and 35 respectively. Petitioner has been lowered in seniority position and shown junior to respondents 5 and 6 as he was is earlier shown above to the respondents 5 and 6. Aggrieved of this position in the seniority list, petitioner seeks relief prayed for.
3. Heard learned counsel for the parties and perused the record.
4. The writ petition is admitted to hearing and taken up for final disposal with the Consent of the learned for the parties.
5. Learned counsel for the petitioner has submitted that the petitioner has joined against the post earlier to the joining of the respondents 5 and 6, therefore, the respondents have rightly prepared the seniority list issued in the year 1986, according to the date of first appointment of the petitioner vis-a-vis the respondents. It is not disputed by the petitioner that the appointment order was issued on the same date i.e. on 10.9.1985 of the petitioner and respondents 5 and 6. Learned counsel for the respondents has submitted that the seniority is required to be fixed, if any competitive test is held on the basis of merit position secured by candidate. To resolve this controversy the respondents 1 to 4 were directed to produce the record of selection and appointment of the petitioner and respondents 5 and 6. The selection list has been produced before the court and perusal whereof reveals that the respondent No. 6 appears at S.No. 4 and respondent No. 5 at S. No. 8 whereas the petitioner at S. No. 11 of the merit list, on the basis of which the appointment orders have been issued by the Provident Fund Commissioner in September, 1985.
6. There appears no substance in the plea of the learned counsel for the petitioner that the seniority is to be fixed from the date of joining against the post in this case for the reason that Rule 24 of the J&K Civil Services (Classification, Control and appeal) Rules, 1956, which deals with the maintenance of seniority provides that the appointment is made on the basis of the selection the seniority list is to be prepared as per the merit secured by the candidate. The relevant portion of the rule applicable to the present case is reproduced hereunder:-
"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 ease may be.
Note: 1...........
Interpretation: -... ... .....
Provided that the interse seniority of two or more persons appointed to the same service class, category per grade simultaneously will, notwithstanding the fact that they may assume the duties of their appointments on different dates by reason of being posted to different stations, 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;
(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."
7. The issue in hand is covered by proviso (b) which envisages that in Case of those recruited directly the seniority is required to be fixed according to the position attained by and assigned to them in order of merit at the time of competitive examination. Petitioner and responent No. 5 and 6 were subjected to the process of selection and merit secured by the petitioner is at S. No. 11 whereas respondents 6 and 5 at S. No. 4 and 8 respectively. It is not the case of the petitioner that the respondents 5 and 6 have not joined when the vacancies were offered to them. The respondents therefore, issued the impugned senioritylist strictly in terms of the aforesaid provisions of law which needs no interference.
8. For the aforesaid reasons, the petition being deviod of merit is dismissed.