Jammu & Kashmir High Court - Srinagar Bench
Peerzada Altaf Ahmad Shah & Ors vs State Of Jk And Others on 26 September, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial No. 03
Suppl. List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No. 199/2016
MP No. 01/2016
c/w
LPASW No.206/2016
MP No.01/2016
Date of judgment: 26.09.2017
Peerzada Altaf Ahmad Shah & Ors. v. State of JK and others.
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the petitioner(s) : Mr M. M. Dar, Advocate.
For the respondent(s) : Mr M. A. Rathore, AAG.
Mr Lone Altaf Ahmad, Advocate.
i) Whether approved for reporting in Yes.
Law journals etc.:
ii) Whether approved for publication
in press: Yes.
Badar Durrez Ahmed, CJ (Oral)
01. The present appeals are directed against the judgment dated 30.05.2016
which has been delivered by a learned Single Judge of this Court in, inter alia,
SWP No.1762/2015 and SWP No.2275/2015. The operative portion of the
impugned judgment reads as under: -
"13/ For the above stated reasons, these writ petitions along with
connected IAs are disposed of in the following manner:
"a) The official respondents are directed to undertake the
exercise to find out as to which, amongst the selected/
LPASW NO.199/2016 c/w LPASW No.206/2016 Page 1 of 9
appointed candidates, qualified their Patwar Training
Course Examination within the probation period and
thereafter determine their seniority in accordance with the
merit secured by them in the selection/ merit list prepared
by the Service Selection Board at the time of their initial
selection. Those Patwaries, who qualified the Patwar
Training Course Examination beyond the probtation
period, shall rank junior to those Patwaries, who qualified
the said examination within the probation period, though
they ranked below them in the initial Selection List
prepared by the Service Selection Board.
b) After framing of fresh seniority list, in view of the
aforesaid direction, the concerned official respondents
shall amend the promotion orders, already made, and grant
promotion to the Patwaries on the basis of the seniority list
so framed. The concerned official respondents shall also,
while amending/ framing the seniority list, ensure that the
Government order No. Rev(NG)-52 of 2015 dated 09th
March, 2015, is complied with;
c) The concerned official respondents to initiate and
conclude the aforesaid exercise within eight weeks from
the date copy of this order is received by them.
d) Till the aforesaid exercise is completed, the promotion
orders made, shall remain undisturbed. Interim directions
in all these petitions, shall stand vacated."
02. The appellants are aggrieved by the aforesaid directions. It is an admitted
position that the appellants were ranked higher on merit, as per the selection done
by the Service Selection Board for the posts of Patwaries, than the private
respondents in these appeals. However, the appellants qualified the Patwar
Training Course Examination subsequent to the private respondents. The
appellants had also qualified the Patwar Training Course Examination beyond the
prescribed period of probation. The entire controversy is as to how the inter-se
seniority between the appellants and the private respondents is to be determined.
The learned Single Judge noted the controversy and gave his reasons for the
aforesaid decision as under: -
LPASW NO.199/2016 c/w LPASW No.206/2016 Page 2 of 9
"11. The petitioners claim for their placement in the seniority list,
at the appropriate place, would require to be determined. The
petitioners, admittedly, rank junior to other selected candidates
in the selection list prepared by the SSB. The petitioners are
beneficiaries of the selection made by SSB. The selection has
been made on the basis of merit of the competing candidates. The
seniority of the appointed candidates, in the facts of these cases,
in view of the mandate contained in rule 7 of the Rules of 1973,
would depend on successful completion of the training course
during the probation period. This view is taken in view of the
mandate contained in rule 7 of the Rules of 1973 read with rules
22, 23 & 24 of the Rules of 1956. The appointed Patwaries, who
have successfully qualified the Patwar Training Course
Examination within the probation period, have to be assigned
seniority on the basis of merit secured by them in the merit list
prepared by SSB at the time of their initial selection. However,
in view of the mandate contained in order of 1998, those
Patwaries, who have qualified Patwar Training Course
Examination after the period of probation, shall have to rank
junior to the candidates, who have qualified it within the
probation period but ranked junior to them in the selection list
prepared by the SSB."
03. It is evident from the above extract that the learned Single Judge placed
reliance on an office order of 1998 (to be precise of 08.05.1998). Before we
proceed any further, it would be necessary to notice the said office order which
is extracted herein below: -
"Subject: Appointment of candidates for the post of Patwaries
and fixation of seniority.
I am directed to refer you to your letter No.102/(III)/970
dated 18.01.1998 regarding the subject cited above and to say
that the candidates appointed against substantive vacancies by
the concerned Deputy Commissioners on the recommendations
of the Service Selection Recruitment Board got their inter-se
seniority fixed in accordance with the position assigned to them
in the respective merit list issued by the service selection
recruitment board. In the event of failure, a candidate in the
examination his position in the seniority would depend upon the
LPASW NO.199/2016 c/w LPASW No.206/2016 Page 3 of 9
period of probation prescribed for him in the appointment letter.
Since the Patwar candidates are probationers for utilizing the
requisite chances for qualifying the examination in accordance
with the J&K Patwari Examination instructions. In case, the
candidate has qualified the examination after the probation of
two years he shall figure junior most to his batch and in case of
failure then one candidate they shall figure junior most in their
batch in the order of their seniority in the selection list.
As regards the Patwaris who have been/ shall be appointed
under the proviso of compassionate appointment Rules they shall
be assigned the seniority on the basis of their date of joining/
appointment whichever is later."
04. The question that arises is whether this office order can supplant the rules
or not? The answer is obvious that it cannot unless the rules themselves give a
specific power to the Financial Commissioner to do so. That, unfortunately for
the private respondents, is not the case here.
05. We now need to examine the relevant rules. Seniority is to be determined
as per the Jammu & Kashmir Civil Services (Classification, Control and Appeal)
Rules, 1956. Rule 24 of the said Rules specifically deals with seniority. The same
is reproduced herein below: -
"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 of
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.
LPASW NO.199/2016 c/w LPASW No.206/2016 Page 4 of 9
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 any/ or passing of any examination or
examinations and or tests:
Provided that the inter se senioirity 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;
(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 an 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 appointments or promotions are
already the subject of any appeal, review or revision
or otherwise pending decision.
(2) A member of a service, class, category or grade, unless he
is reduced in seniority as punishment shall retain seniority in
such service or grade as determined by sub-rule (1)
notwithstanding any delay in the completion of his probation or
his appointment as a member of such service, class, category or
grade.
LPASW NO.199/2016 c/w LPASW No.206/2016 Page 5 of 9
(3) Where a member of any service, class, category or grade
is reduced to a lower service, class, category or grade he shall be
paced at the top of the latter unless the authority ordering such
reduction directs that he shall rank in such lower service, class,
category or grade next below any specified member thereof."
06. On a plain reading of the above mentioned rule, it is evident that seniority
is to be determined by the date of "first appointment". The said expression has
been interpreted in the provision itself to, inter alia, mean the date of first
appointment on probation on a clear vacancy. Of course, in the case of probation,
confirmation would be subject to good work and conduct and/or passing of any
examination or examinations and or tests.
07. Rule 24(2) of the said Rules further stipulates that a member of a service,
class, category or grade, unless he is reduced in seniority as a punishment, shall
retain the seniority in such service or grade as determined by sub-rule (1)
"notwithstanding any delay in the completion of his probation or his appointment
as a member of such service, class, category or grade".
08. We must also, for the sake of completeness, refer to Rule 7 of the Jammu
& Kashmir Revenue (Subordinate) Service Recruitment Rules, 1973, because the
learned counsel for the private respondents had placed reliance on the same. The
said Rule 7 deals with probation and not with seniority. The same reads as under:
-
"7. Probation.-(1) Persons appointed, whether direct or by promotion to any class or category in the service shall be on probation for two years and their confirmation in the class or category shall be regulated under the provisions of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956.
(2) During the period of probation, the probationers in Class I shall have to qualify in the prescribed departmental examination.
LPASW NO.199/2016 c/w LPASW No.206/2016 Page 6 of 9(3) The Government may in the case of a person who fails to qualify in the departmental examination within the period prescribed in sub-rule (1) above, extend the period of probation by one year. A probationer, who does not pass the examination within the extended period, shall be liable to be discharged from service."
09. It is evident from the above extract that Rule 7(1) stipulates that persons appointed, whether directly or by promotion, are to be on probation for two years and that their confirmation in the class or category is to be regulated under the provisions of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Sub-rule (2) of Rule 7 of the 1973 Rules stipulates that during the period of probation, the probationer in class I shall have to qualify the prescribed departmental examination and, sub-rule (3) enables the Government, in case a person fails to qualify in the departmental examination within the prescribed period of two years, to extend the period of probation by a further one year. It also stipulates that a probationer, who does not pass the examination even during the extended period, shall be liable to be discharged from service.
10. In the facts of the present case, all the Patwaries had cleared the departmental examination and completed their training. It is only that the private respondents had done so during the period of probation, whereas the appellants had done so during the extended period of probation/ after that period. The fact, however, remains that though the Government had the option to discharge some of them from service it did not do so and they were confirmed in their appointments as Patwaries.
11. In these circumstances, in our view, Rule 7 would not come to the aid of the private respondents nor work to the detriment of the appellants. In any event, the said Rule 7 of the 1973 Rules deals with probation and not with seniority. The specific rule which prescribes the mode of determining seniority is Rule 24 of the LPASW NO.199/2016 c/w LPASW No.206/2016 Page 7 of 9 1956 Rules, which we have already extracted above. Unfortunately, the learned Single Judge did not give effect to these rules but gave priority to the office order dated 08.05.1998, which can never be the case. Going by the Rules themselves and, in particular, Rule 24 of the 1956 Rules, it is evident that the seniority is to be determined by the date of first appointment, which in the present case, would mean the date of first appointment on probation on a clear vacancy subject, however, to subsequent confirmation. It is an admitted position that appointments of all the parties, the appellants and the private respondents, were subsequently confirmed. Therefore, the only factor for determining the seniority would be the date of first appointment. This position is further fortified by sub-rule (2) of Rule 24 of the 1956 Rules which makes it clear that unless a person is reduced in seniority as a punishment, he shall retain the seniority in the service as determined by sub-rule (1) of Rule 24 notwithstanding any delay in the completion of his probation etc.
12. We may also notice a Division Bench decision of this Court in the case of Nirmal Singh Bali & others v. Mohd Yousuf and others : 2012 (II) SLJ 342, wherein it was held that the seniority of the members of the subordinate service is governed by Rule 24 of the 1956 Rules, in terms whereof, the date of first appointment to the service determines the seniority of the members of the subordinate service. The Division Bench also observed as under: -
"23. For all what has been said above, the Judgment and order passed by the learned Single Judge issuing directions to the State Respondents to settle the Seniority of the Members of the Jammu and Kashmir Excise and Sales Tax Service, on the basis of the passing of the prescribed Departmental Examination, cannot, therefore, be sustained and the respondents' Writ Petition, SWP No.921/2010, being devoid of merit deserves to be dismissed."
13. In the result, the decision of the learned Single Judge which is impugned before us has to be set aside and the appeals have to be allowed. This is so because LPASW NO.199/2016 c/w LPASW No.206/2016 Page 8 of 9 seniority is to be determined in terms of Rule 24 of the 1956 Rules notwithstanding any delay on the completion of the probation period. Therefore, the seniority as determined on the date of first appointment by the Revenue Department on the basis of merit of the select list prepared by the Service Selection Board shall prevail. The consequence of this would be that SWP No.1762/2015 and SWP 2275/2015 shall stand dismissed. The appeals shall stand allowed and the position of the seniority shall be the same as was obtaining prior to filing of the writ petitions.
14. The appeals are allowed. There shall be no order as to costs.
(Ali Mohammad Magrey) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar
26.09.2017
Abdul Qayoom, PS
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