Md, J And K Spc And Anr. vs Surinder Singh Jamwal And Ors. on 18 November, 2005

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Jammu & Kashmir High Court

Md, J And K Spc And Anr. vs Surinder Singh Jamwal And Ors. on 18 November, 2005

1. Five of these eleven appeals have been filed by J&K State Forest Corporation and six by private respondents. All the appeals involve common questions of fact and law, raise a dispute about fixation of seniority in the category of Deputy Manager (Divisional) of the Corporation and are being disposed of by this common judgment.

2. The issue that falls for consideration and determination is whether the seniority was to be fixed in terms of Rule 15 of the J&K State Forest Corporation Rules, 1981 (for short "Corporation Rules') on the basis of the merit obtained by the contenders in the DDR (Rangers Training Course) or on the basis of the merit secured by them at the interview by the selection committee for appointment to the post of Deputy Manager (Divisional) or on the basis of their seniority in their lower grades?

3. Three writ petitions, SWP No. 742/1992, SWP No. 790/1992 and SWP No. 718/1992, were filed in this Court by three writ petitioners -- Surinder Singh Jamwal, Ashok Kumar Koul and Liaqat Ali Dar -- all working as Deputy Managers (Divisional) in the J&K State Forest Corporation (briefly 'the Corporation). All these petitions were directed against the final seniority list of Deputy Managers (Divisional) dated 11th July, 1992, issued by the Corporation, allegedly altering the seniority position of the petitioners vis-' vis private respondents in those writ petitions and the consequential promotion of these private respondents to the post of Divisional Manager by order dated 17th July, 1992.

4. The case of these writ petitioners was that they were adjusted against the post of Deputy Manager (Divisional) by order No. 507 of 1985 dated 11th December, 1985 after undergoing the DDE (Rangers Training Course). The Corporation later issued order No. 553 of 1986 dated 20th January, 1986 which directed fixation of seniority of Deputy Managers (Divisional), adjusted vide the aforesaid order, on the basis of merit obtained by them in the DDR (Rangers Training Course). A tentative seniority list was, thereafter, prepared and issued on the basis of this order, which showed the writ-petitioners at a higher position than those of private respondents. Then again, a revised tentative seniority list was issued in 1989 by the Corporation, which maintained this position. Writ-petitioners as also the private respondents in these writ petitions made representations against these tentative seniority lists upon which the Corporation considered the matter and passed order dated 11th July, 1992 fixing seniority of the contenders in the category of Deputy Managers (Divisional) on the basis of their seniority in their lower grades, which was followed by promotions of private respondents to the post of Divisional Manager on the basis of this seniority list.

5. The final seniority list dated 11th July, 1992 was challenged by the writ-petitioners on several grounds, including that it had altered their seniority on mala fide considerations and that their higher placement in the tentative seniority lists of 1985 and 1989 was totally ignored and overlooked and this could not be altered by the impugned final seniority list to their detriment.

6. Both official respondents as well as the private respondents who were placed on a higher pedestal in the impugned final seniority list contested these writ petitions.

7. The case of the Corporation was that an advertisement notice was issued to fill up 22 posts of Deputy Manager (Divisional) pursuant whereto only those employees of the Corporation applied who had completed the DDR (Rangers Training Course). An interview was held but, in his discretion, the Managing Director of the Corporation decided to treat the matter as a case of promotion and the applicants to the posts were promoted to the post of Dy. Manager (Divisional). The names of the applicants were placed serially in order on the basis of merit obtained by them in the DDR (Rangers Training Course) which position was later substantiated by order No. 553 of 1986 dated 20th January, 1986 passed by the Managing Director of the Corporation, making it clear that seniority of these applicants / promotees would be based in order of their merit in the DDR (Rangers Training Course). This, however, resulted in representations being made by all those officers who were holding lower posts of Assistant Divisional Manager, in which they pleaded that fixation of seniority on the basis of any merit in the DDR (Rangers Training Course) was in violation of Rule 15 of the Corporation Rules. These representations were considered, and finding some weight in them, the Corporation revised the tentative seniority on 15th December, 1989 to which objections were invited and which were filed by all the Deputy Managers (Divisional) who were promoted to these posts earlier. The legal opinion was also sought from the Law Department of the Government and it was decided to finally determine the inter se seniority of all Deputy Managers (Divisional) on the basis of their, seniority in the lower grade by order dated 11th July, 1992.

8. The private respondents in these writ petitions also took their own stand and submitted that they had made representations to the tentative seniority lists issued by the Corporation and had pointed out that the inter se seniority of the Deputy Managers (Divisional) could not be fixed on the basis of merit obtained in the DDR (Rangers Training Course), but was to be based on their merit in the interview held pursuant to advertisement notice dated 8th April, 1985 which was issued by the Corporation inviting applications for filling up the posts of Deputy Manager (Divisional) and which was required to be so determined in terms of Rule 15 of the State Forest Corporation Rules.

9. It was in this conspectus that the Writ Court passed the impugned judgment dated 11th August, 1998 allowing the writ petitions of the writ-petitioners and holding that since they were figuring at higher places / positions in the tentative seniority lists issued by the Corporation in 1985 and 1989, their seniority could not be altered by the final seniority list dated 11th July, 1992 which was also in line with even Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. The impugned order, though does not specifically quash the final seniority list nor the consequential promotion of the private respondents, makes an interesting reading, and this reasoning requires to be quoted to bring out its crux:

...The names of private respondents figure below the petitioner. If above be the position, then the petitioner is right in his submission that in terms of the norms laid down by the Managing Director and in terms of the merit determined at the Rangers Trainings Course, petitioner was entitled to rank senior to private respondents, and his claim has been wrongly ignored.

The above norms laid down by the Managing Director are also in line with Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. As a matter of fact, what is there in Rule 24 of the Rules referred to above, is found incorporated in Rule 15 of the J&K State Forest Corporation Rules of 1981. If above be the position, then the petitioner is right in his submission that he should have been promoted over and above the private respondents. As this has not happened, the petition deserves to be allowed and it is allowed accordingly. It is, however, made clear that private respondents, who have been working in the promoted posts, would not be disturbed. A direction is given to the respondents to promote the petitioner retrospectively w. e. f. the date the persons who were below him in Order No. 507 of 1985 were promoted.

10. It is this reasoning in the impugned judgment that has attracted all these appeals and, in our view, rightly so. The appeals highlight the wrong premise on which the impugned judgment proceeds.

11. It is submitted by the Appellant-Corporation that the Writ Court had gone wrong both on facts and law inasmuch as it had only referred to objections filed by the Corporation partly and overlooked the crux of the stand taken by it in these objections, to lend weight to its preconceived conclusion. It is also pointed out that the Writ Court had wrongly taken the view that determination of seniority was on the basis of merit obtained by the contenders in the DDR (Rangers raining Course) which was in line with Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 when these rules did not contain any such provision. Similar was the position about the view taken on the interpretation placed on the relevant Corporation Rules.

12. The appeals filed by private respondents also proceed on similar lines, projecting that the view taken by the Writ Court, that seniority was rightly determined on the basis of merit in the DDR (Rangers Training Course), was wholly wrong and contrary to the relevant rules more particularly Rule 15 of the State Forest Corporation Rules.

13. In the written submissions filed by the Corporations it is explained that the its order No. 507 of 1985 dated 11th July, 1985, whereby writ-petitioners and private respondents were adjusted on the post of Deputy Manager (Divisional), was not an order based on the recommendations of the selection committee as per the performance of candidates at the interview, nor was the ad seriatum placement of the appointees in this order based on any merit obtained in the DDR (Rangers Training Course). It was also contrary to the official record that any merit of the DDR (Rangers Training Course) existed on which basis the impugned seniority could be determined. It is also submitted that the Corporation had deputed candidates for undergoing DDR (Rangers Training Course) and, thereafter, an advertisement notice dated 8th April, 1985 was issued to fill up twenty two posts of Deputy Manager (Divisional), An interview was also held and the merit list of the candidates on the basis of their performance at the interview was also prepared. However, later, it was found that under the relevant recruitment rules the post of Deputy Manager (Divisional) was to be filled up 50% by promotion, 25% by direct recruitment and 25% by deputation from Government Departments and in this manner it was seen that out of 21 in-service candidates who had applied for the post of Deputy Manager (Divisional) pursuant to the aforesaid advertisement notice, only eleven could be accommodated as direct recruits in terms of the quota rule and, therefore, with a view to building up its own cadre, it was decided by the Corporation to treat this as a case of promotion and to make promotion to the post of Deputy Manager (Divisional) from amongst the in-service eligible candidates, except one candidate, shri Wajahat Koul, who fell to the share of direct recruitment quota by order No. 507 dated 11th December, 1985. There was no better alternative than to do this for the simple reason that in case all candidates were to be treated as direct recruits then it would have become mandatory to promote forty-four persons from the post of Assistant Divisional Manager in promotion quota. It is submitted that this should be treated as the only viable solution than to treat all twenty-two officers adjusted to the post of Deputy Manager (Divisional) as direct recruits to avoid administrative implications, which would require the Corporation to make forty-four more promotions to the post of Deputy Manager (Divisional).

14. The whole matter appears to us replete with comedy of errors. What is worse it has been made more complicated by misdirected approach to the issues involved and misappreciation of factual and legal positions by the untenable stands taken by all parties concerned -- both official and private -- and the impugned Writ Court judgment doing no better than compounding all this.

15. The simple issue that required to be resolved before the Writ Court was whether seniority in the category of Deputy Manager (Divisional) was to be determined on the basis of any merit obtained by the contenders in the DDK (Rangers Training Course), or on the basis of merit secured by them at the interview held for selection to the post of Deputy Manager (Divisional) pursuant to Corporation's advertisement notice dated 8th April, 1985, or on the basis of seniority of the contenders in their lower grade, all in terms of Rule 15 of Corporation Rules the seniority rule could be enforced.

16. The sequence of events shows that all contenders were working in lower grades and they were supervisors or Assistant Managers etc. They were sent to undergo DDR (Rangers Training Course). After they had completed their training course, the Corporation issued advertisement notice dated 8th April, 1985 inviting applications for the post of Deputy Manager (Divisional) in the scale of Rs. 835-1510. The relevant part of the notice is extracted below:

Applications from the permanent residents of Jammu and Kashmir are invited which should reach the office of the undersigned on or before 1st May 85 for following posts.

_______________________________________________________________________________ S. No. Name of posts No. of Qualification post _______________________________________________________________________________

1. Dy. Manager (Divisional) 22 i) DDR or equivalent (835-

1510) qualification.

_______________________________________________________________________________

17. It will be interesting to note that this notice did not specify whether these posts fell in the promotion quota or whether any promotion was to be made to the posts of Deputy Manager (Divisional) pursuant to this advertisement notice.

18. Both the writ petitioners and private respondents (contenders herein) along with other candidates applied for these posts pursuant to the advertisement notice culminating in SFC order No. 507 of 1985 dated 11th December, 1985 which read as under:

As approved by the Establishment Committee in its meeting held on 4-12-1985, the following officials who have qualified their Rangers Course from various Colleges are hereby adjusted as Deputy Managers against the available vacancies in the pay scale of (835-1510) with effect from 1-4-1985 under Forest Corporation service rules and regulations.

19. A perusal of this order shows that the placement of the contenders in the order was not on the basis of any merit position, be that in the DDR (Rangers Training Course) or, for that matter, obtained by them in the interview pursuant to advertisement notice dated 8th April, 1985. Subsequently, the Corporation issued order No. 553 of 1986 dated 20th January, 1986 passed by its Managing Director, saying that seniority of the DDR officers, who were adjusted as Deputy Managers vide earlier SFC order No. 507 dated 11th December, 1985, shall be based in order of their merit in the Rangers Training Course, and then proceeded to give the placement of officers from serial No. 1 to 24 in that order.

20. A tentative seniority list was prepared by the Corporation on this basis and issued some time in 1985. Aggrieved officers made representations against this tentative seniority list. Thereafter, a revised tentative seniority list was again issued in 1989. This also invited objections from the concerned officers and eventually an exercise was undertaken by the Corporation, which ended up with passing of order dated 11th July, 1992, determining the seniority of Deputy Managers (Divisional) on the basis of seniority of the contenders in the lower grade. The official noting of the Corporation showing the circumstances leading to the passing of this order would require to be extracted for proper appreciation of the issue involved:

After perusing representations of the Deputy Managers, it has been noticed that crux of these representations is that Corporation should follow Rule 15 of J&K State Forest Corporation Rules which in clear terms provides the law for fixation of the seniority. The rule is reproduced hereunder:

'(I) Seniority shall be determined by the order in which appointments are made to any category of posts. Provided that where more than one person is selected simultaneously for the same category of posts by a Selection Committee, the inter se seniority of such persons shall be as recommended by the Selection Committee either specifically or in the order in which the names appear in the panel recommended by the Selection Committee;

(II) In case of departmental promotions seniority of an employee in a grade shall be from the date of his promotion to that grade. When more than one employee is promoted on the same date, their inter se seniority shall be determined on the basis of their seniority in the lower grade;

(III) In case of appointments made both by promotion and direct recruitment, the order of seniority will follow the proportion in which vacancies are allocated as between direct and departmental hand.

(IV) In case of change of appointment from one class or category of posts to another, on an employees own requests provided the time scale attached to both the posts in identical, the seniority in the new post shall be reckoned from the date the employee actually joins the new post after such changeover is ordered by the competent authority. Employee's claim to seniority and future promotion in the old post or cadre shall cease to exist. In case, however, such changeover is ordered by the competent authority in the interests of Corporation the seniority and promotion prospects of the employee in his own class/category shall not be affected adversely.

21. As may be seen in the order which has fixed the seniority of the Deputy Managers on the basis of their merit in the Training Colleges is not satisfying the criteria laid down in Rule 15 quoted above and as such it is felt that Corporation should refix the seniority of the Deputy Managers strictly as per Rule 15 of the SFC Rules.

22. The first batch of the Deputy Managers appointed / promoted after 1984 consisting of 24 Dy. Managers senior most among them has already been promoted as Assistant General Manager in view of his having acquired further professional training the relevant line. The seniority of the rest of the Dy, Managers has to be governed in light of the Rule 15 Clauses (I & III) as all the 23 Deputy Managers were promoted from the same date i.e. 1.4.1985. One of the 23 Deputy Managers is not an in-service candidate and his seniority has to be fixed as a direct recruit.

23. As may be seen, the inter se seniority of the departmental candidates (Deputy Managers) has to be determined on the basis of their seniority in the lower grade (Assistant Mangers / Supervisors). As regards the direct appointee the order of seniority has to follow the proportion in the vacancy allocated as between 'direct' and 'departmental' hands. Since there is only one direct appointee, no lengthy exercise need to be made as the said direct appointee is to be placed at the top of the seniority list and the other departmental promotees have to have their positions as Deputy Managers in the same order in which they were holding their posts as Assistant Managers / Supervisors figuring next lower to Assistant Managers..."

24. Before we examine the rival stands leading to the fixation of seniority on varying basis, it would be necessary to reproduce the relevant part of Rule 15 of the SFC Rules (seniority rule) as under:

(I) Seniority shall be determined by the order in which appointments are made to any category of posts. Provided that, where more than one person is selected simultaneously for the same category of posts by a Selection Committee, the inter se seniority of such persons shall be as recommended by the Selection Committee either specifically or in the order in which the names appear in the panel recommended by the Selection Committee.

25. A perusal of this rule shows that seniority was to be determined by the order in which appointments were made to any category of posts. This rule also provides that if there were more than one person selected simultaneously for the same category of posts, by a selection committee, the inter se seniority of such persons shall be as recommended by the selection committee either specifically or in the order in which names appear in the panel recommended by the selection committee.

26. The fundamental question that arises is whether adjustment / appointment of contenders by SFC order No. 507 of 1985 dated 11th December, 1985 was by promotion or by direct recruitment? If it was by promotion, then under the relevant Rule 15 the final seniority determined vide order dated 11th July, 1992 would have to be affirmed and upheld. But if this order of appointment / adjustment is found to be the outcome of a direct recruitment pursuant to advertisement notice dated 8th April, 1985, then the fixation of the inter se seniority on the post of Deputy Manager (Divisional) would have to be on the basis of the merit as recommended by the selection committee or in the order in which the names appear in the panel prepared by that selection committee. The third basis of determination of seniority on the basis of any merit obtained in the DDR (Rangers Training Course) is neither here nor there and has to be ruled out as it is not contemplated by the seniority rule or by any analogous rule position or precedent.

27. Therefore, what remains to be seen is whether the appointment and adjustment of contenders was a case of promotion or of direct recruitment. If history of the case was to be made any index or barometer, it emerges loud and clear that it was a case of direct recruitment, and not of promotion. Because it goes without saying that after the contenders had completed the DDR (Rangers Training Course) the Corporation had issued advertisement notice dated 8th April, 1985 inviting applications for twenty two posts of Deputy Manager (Divisional) to which contenders had responded and for which a selection committee was constituted, interview held and also the merit list of the candidates prepared pursuant thereto. The only other step that remained to be taken was to issue the order of appointment on the basis of the merit list prepared by the selection committee so that the seniority of the contenders could be fixed or determined in accordance with seniority Rule 15 on the basis of the order prepared by such selection committee. But that seems to have been abandoned half way and, that too, on a mistaken notion and on a second thought of the Corporation that it should not have advertised all twenty two posts of Deputy Managers (Divisional) for direct recruitment in terms of the ratio prescribed under the recruitment rules which also contained a provision for promotion quota.

28. It is surprising that the Corporation should have been reminded of the quota rule after it had already projected the recruitment of the twenty two posts of Dy. Managers (Divisional) by a representation to the public vide advertisement notice dated 8th April, 1985. The submission by their counsel, Mr. Jalali, in this regard is wholly fallacious. Because if the Corporation had any obligation to observe the quota rule, it should have known it at the time of issuing the advertisement notice dated 8th April, 1985 inviting applications from both in-service and open market candidates for the post of Deputy Manager (Divisional). Its second thought behind the back of the candidates of treating this exercise as a case of promotion was patently illegal and unsustainable. Resultantly, we are left with no option but to hold that the Corporation had embarked upon a direct recruitment course and had abandoned it at the end and that too on an untenable premise treating it as a case of promotion leading to determination of the seniority of the contenders on the basis of their seniority in the lower grade. It is innocently submitted by their counsel that this was done to avoid inconvenient administrative implications because the Corporation would have to create forty four more posts for giving promotion to the promotion quota aspirants. This, in our view, deserves outright rejection. Because any administrative inconvenience or implication cannot be allowed to change the nature of the action emanating in the representation made by the Corporation through its advertisement notice dated 8th April, 1985 and take away the rights of the contenders vested in them by this notice.

29. We are also at odds to appreciate the view taken by the Writ Court in its impugned judgment, which it supports by a reference to Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. It is not known how Rule 24 of the Classification, Control and Appeal Rules could be inked in support when it was the admitted position before the Writ Court that the Corporation had a different seniority rule (Rule 15) in place and in force. We also find that this judgment had wholly proceeded on a wrong premise and had even failed to consider the objections filed by the Corporation which had explained its case, for whatever was its worth, justifying determination of the seniority on the basis of the seniority of the contenders in the lower grade. We find no justification for excluding these objections from consideration by the Writ Court and dealing with the stand of the parties to the writ petition in, rather, a generalised and casual way.

30. Having said all this, we feel convinced that the only right and correct basis for determination of inter se seniority in the category of the post of Deputy Manager (Divisional) was the merit secured by the contenders at the interview and the list prepared in order of this merit by the selection committee pursuant to advertisement notice dated 8th April, 1985, and not the merit obtained by them at the DDR (Rangers Training Course) or, for that matter, the seniority of the contenders in the lower grade.

31. The result of all this is that the final seniority list issued by the Forest Corporation dated 11th July, 1992 shall stand quashed. The State Forest Corporation and its competent authority is directed to undertake a fresh exercise for re-determination of seniority in the category of Deputy Manager (Divisional) on the basis of the merit obtained by the candidates at the interview conducted by the selection committee pursuant to advertisement notice dated 8th April, 1985 -- (the marks obtained by the candidates at the interview are a part of record and have been seen by us. It is not known if the merit position of the candidates has been prepared in that order by the selection committee. If not, the Corporation is directed to prepare a merit list on the basis of the marks secured by the contenders at the interview and to fix their seniority in the category of Deputy Manager (Divisional) on the basis of that merit. This exercise shall be completed within four months from receipt of this order.

32. At this stage, it is submitted by learned Counsel for private appellants that private respondents had already stolen march over them after they were promoted to the post of Divisional Manager by order dated 17th July, 1992 by acting upon the impugned seniority list dated 11th July, 1992 which now stands quashed. We are not in a position to examine the validity of these promotions at this stage which is not a case set up by the private appellants on the basis of the new determination of the seniority. They shall, accordingly, enjoy liberty to take appropriate remedy in the matter after the out come of the new exercise involving re-determination of the inter se seniority of the contenders on the basis of the merit of the selection becomes known. The declining of the relief to the writ petitioners relating to quashing of such promotion in their writ petitions out of which the Appeals have come up will not come in their way in taking such remedy. All these appeals are disposed of accordingly.

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