Jammu & Kashmir High Court
Omkar Raina vs High Court Of J&K; & Anr on 2 July, 2018
Equivalent citations: AIRONLINE 2018 J AND K 78
Bench: Dhiraj Singh Thakur, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.1029/2015
MP No.1313/2015
Date of order: 02.07.2018
Omkar Raina v. High Court of J&K & anr.
Coram:
Hon‟ble Mr Justice Dhiraj Singh Thakur, Judge
Hon‟ble Mr Justice Sanjeev Kumar, Judge
Appearance:
For the petitioner(s) : Mr Abhinav Sharma, Advocate.
For the respondent(s) : Mr A. V. Gupta, Sr Advocate, with
Mr Aditya Gupta, Advocate, for R-1.
Mr C. M. Koul, Advocate, for R-2.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per, Dhiraj Singh Thakur, J.
01. Through the medium of the present petition, the petitioner claiming to be senior to private respondent no.2 seeks issuance of a writ of certiorari for quashing order No.582 dated 27.07.2009 passed by the High Court of Jammu & Kashmir, whereby the private respondent no.2 was promoted as Reader from the post of Head Assistant in violation of order No.579 dated 24.10.2008 issued by the High Court of J&K, governing the mode, manner and method of recruitment and promotion to various posts in Jammu and Kashmir High Court.
02. The petitioner also prays for writ of co-warranto for declaring the respondent no.2 as usurper of the post of Bench Secretary as also seeks issuance SWP No. 1029/2015 Page 1 of 16 of a writ of certiorari for quashing the seniority list of Bench Secretaries working in the High Court of J&K to the extent it places the petitioner at serial no.11 below private respondent no.2 who figures at serial number 10.
03. Briefly stated the material facts are as under:-
04. The petitioner came to be appointed as Junior Assistant in the High Court of J&K on 23.02.1987. He was further promoted as Senior Assistant on 3 on 30.07.1991 and as Head Assistant on 31.07.1998.
05. In purported exercise of powers conferred under Rule 6 of the Jammu & Kashmir High Court Staff (Condition of Service Rules), 1968 and in supersession of all orders, the then Hon'ble the Chief Justice of Jammu & Kashmir, on the basis of a report submitted by a committee of judges constituted for the purpose, issued an order bearing No.579 dated 24.10.2008 prescribing the qualification and mode of recruitment for appointment and promotion to various posts in the High Court of J&K.
06. It was urged that the post of Section Officer, in accordance with order No.579 dated 24.10.2008, was required to be filled up by promotion from amongst Head Assistants, who possessed Graduation degree with two years experience as Head Assistant.
The petitioner being eligible came to be promoted as Section Officer vide order dated 26.10.2008 with effect from 28.07.2008.
07. As per order No.579 of 2008, the post of Reader was required to be filled up 75% by direct recruitment from those candidates who possessed an LLB Professional Degree and rest of 25% posts were to be filled up by promotion from and amongst those Section Officers who were Law Graduates with two years experience as Section Officer on the basis of merit cum seniority. The SWP No. 1029/2015 Page 2 of 16 order, however, envisaged that the minimum period of experience could be relaxed in exceptional and appropriate cases.
08. The petitioner thereafter came to be temporarily adjusted as Reader in his own pay and grade vide order dated 24.11.2008. Subsequently, vide order dated 14.03.2011, he was substantively promoted as Reader with effect from 28.07.2010.
Respondent No.2:
09. Respondent no.2 initially came to be appointed as Junior Assistant on 14.05.1998. She was further promoted as Senior Assistant on 19.05.2003 and as Head Assistant on 28.07.2008.
10. Vide order No.582 dated 27.07.2009, impugned in the present petition, respondent no.2 was promoted as Reader. The order reads thus:-
"Smt. Saima Maqbool, Head Assistant, is appointed as reader by promotion with the explicit proviso that she will not be entitled to any increments arrears from 01.05.2007, nor claim any seniority, whatever, in that scale over any of her colleagues in any seniority list or lists prepared, and that she will have to joint at the lowest rank in the list of Readers, in the grade of Rs.7500-12000 prepared for the Readers of the High Court of J&K."
11. For purposes of clarity, the following table shall clearly depict the dates of appointment and promotion of the petitioner as also the private respondent no.2 against various posts:
Date of Date of Date of Date of Date of Date of Date of appointment promotion promotion promotion promotion promotion promotion as Jr. as Senior as Head as Section as Reader as Reader as Bench on SWP No. 1029/2015 Page 3 of 16 Assistant Assistant Assistant Officer OPG substantive Secretary.
basis
Petitioner 23.02.87 30.7.91 31.7.98 26.10.08 24.11.08 28.7.10 5.4.11
Respondent 14.5.98 5.9.03 28.7.08 Skips the ........ 27.7.09 5.4.11
no.2 promotion
GRIEVANCE OF THE PETITIONER:
12. The petitioner feels aggrieved of the orders impugned primarily on the ground that respondent no.2 was ineligible for promotion to the post of Reader inasmuch as she without even being promoted against the post of Section Officer, was promoted to the post of Reader directly from the post of Head Assistant. It was urged that this was impermissible and in violation of order No.579 dated 24.10.2008. Consequently, it was urged that her further promotion to the post of Bench Secretary was also not sustainable in law. The second grievance of the petitioner is that he ought to have been promoted as Reader with effect from 24.11.2008 when he was temporarily adjusted as Reader in his own pay and grade.
13. Feeling aggrieved with the action of respondent no.1, representations appear to have been preferred before the High Court, inter alia, claiming seniority over private respondent no.2. One such representation is dated
12.03.2013. The High Court appears to have not decided the representations of the petitioner. However, in its order dated 05.04.2011, the High Court while promoting the petitioner and private respondent no.2 to the post of Bench Secretaries in relaxation of the experience observed that their inter-se seniority would be subject to the outcome of the representation filed by the petitioner. In the tentative seniority list of the Bench Secretaries, however, the name of the SWP No. 1029/2015 Page 4 of 16 petitioner figures at sr.no.11 below private respondent no.2, Saima Maqbool, who figures at sr.no.10.
STAND OF RESPONDENT NO.2:
14. According to the stand taken by respondent no.2, the order no.579 dated 24.10.2008 was not at all applicable to her case. According to her, the eligibility qualification prescribed for the post of Reader was Law Graduate as per the full court decision dated 27.04.2001 and in case no candidate from the specified categories possessed the prescribed qualification, the selection was to be made from amongst other categories of staff from the High Court. Reliance in this regard was placed upon communication of the Registrar General to the Registrar Judicial dated 14.02.2006.
15. The respondent no.2 claims to be a Law Graduate. It was urged that she being eligible applied in the prescribed manner for being appointed as a Reader and for that she participated in the written test which was held on 07.12.2006 and subsequently also in the viva voce. It was stated that in the said process of selection as against the one post of Reader, which was to be filled up, one Joginder Singh, Head Assistant, came to be selected and appointed. It was stated that respondent no.2 stood at sr.no.2 in the order of merit. It was stated that a waiting list was prepared where she figure at sr.no.1. The waiting list, it was urged, was to remain valid for a period of one year with effect from 01.04.2007 in terms of the recommendations made by an appropriate committee and subsequently approved by Hon'ble the Chief Justice. It was stated that in the ordinary course, the petitioner ought to have been appointed by operating the waiting list during its life time and currency inasmuch as the following three vacancies of Readers fell vacant.SWP No. 1029/2015 Page 5 of 16
(a) The first vacancy of Reader, it was urged became available on 1st May, 2007, when one Mehraj-ud-Din Naqash retired on 31.04.2007.
(b) The second vacancy, it was urged, became available on 01.06.2007 when Sh. Raghunath, retired on 30.05.2007.
(c) The third vacancy, it was urged, became available on 01.12.2007, when Sh. Jagdish Raj, retired on 30.11.2007.
16. It was urged that despite the availability of vacancies and despite the fact that wait list was in operation, the respondent no.1, the High Court, failed to appoint the petitioner to her dis-advantage.
17. It was urged that despite repeated representations, no action was taken to redress the grievance and finally a representation was filed before Hon'ble the Chief Justice dated 27.06.2009 which was accepted resulting in passing the order impugned bearing No.582 dated 27.07.2009.
18. It was thus urged that case of respondent no.2 was not to be considered at all in terms of order No.579 of 2008. Additionally it was urged that the petition was barred by laches inasmuch as the order of promotion of the petitioner as Reader was issued in the year 2009 whereas, the petitioner was filed as late as in the year 2015. It was also urged that the petitioner had not at all participated in the process of selection in the year 2006 with the respondent no.2 and therefore had no reason or basis to challenge her promotion at this belated stage.
HIGH COURT‟S STAND:
19. The stand taken by the High Court, however, is not specific. In regard to the appointment of respondent no.2, it was stated that her name figured in the waiting list which was to remain valid for a period of one year with effect from SWP No. 1029/2015 Page 6 of 16 01.04.2007 and that Hon'ble the Chief Justice being the competent authority, was pleased to approve the promotion of respondent no.2 as Reader pursuant to which order no.582 dated 27.07.2009 came to be passed with the explicit proviso that she would not be entitled to any increments or arrears from 01.05.2007, nor she shall claim any seniority, whatever, in that scale any of her colleagues and that she would have to join at the lowest rank in the list of Readers in the grade of Rs.7500-12000.
20. On the issue of seniority, it was stated that the petitioner came to be promoted as Reader later in point of time than the respondent no.2 and that the representation with regard to grant of seniority benefits as claimed by the petitioner was pending before the promotion committee of the High Court. A stand, however, has been taken that respondent no.2 was senior to the petitioner inasmuch as she was promoted in the cadre of Readers vide order dated 27.07.2009 as against the petitioner who was promoted in the cadre of Readers by virtue of order dated 14.03.2014 with effect from 28.07.2010.
21. Heard counsel for the parties.
22. It appears that a full court of the High Court of Jammu & Kashmir took a decision dated 27th April, 2001, whereby, inter alia, the qualification for the post of Reader was prescribed as a Law Graduate. It was also decided that in case no candidate from the specified categories possess the prescribed qualification, the selection was to be made among other categories of staff of the High Court.
23. Admittedly, the High Court initiated the process of selection and appointment against the post of Reader in the year 2006 and admittedly as against one post, one Joginder Singh, was appointed as Reader. It is also an admitted fact that the relevant committee had submitted a proposal for SWP No. 1029/2015 Page 7 of 16 maintaining a wait list in which the name of respondent no.2 figured at sr.no.1, for a period of one year with effect from 01.04.2007. The recommendations of the committee which got the approval of Hon'ble the Chief Justice was thus:-
"In order to avoid the administrative costs involved in repeated selection process it may be appropriate to maintain a waiting list of candidates who are next in order of merit as per their performance in their shorthand typing test, written test and viva voce and in case of Sr. Scale stenographers who have attained 300 words accuracy. This shall save the High Court Registry hassle of initiating selection process now and then and improve overall efficiency as in case a position of Reader and Sr. Scale Stenographer falls vacant there is no waiting period for the new recruits to join. In the said backdrop following waiting list is submitted for approval and the same may be directed to remain in force for a period of one-year w.e.f. 01.04.2007.
Waiting list for the post of Reader:
1) Ms. Saima Maqbool, who figures at S.No.2 in the merit list."
24. The following two issues arise for consideration at this stage:-
(a) Could the waiting list be made to operate for a period of one year in regard to vacancies which yet had not fallen vacant?
(b) Assuming that the answer in regard to the first question is in affirmative, could the said wait list be operated after the expiry of one year which would end on 28.03.2008.
25. In so far as the first issue is concerned, the Supreme Court in case titled Madan Lal Vs. State of Jammu and Kashmir reported in 1995(3) SCC 486, SWP No. 1029/2015 Page 8 of 16 while considering Rule 41 of the J&K Civil Services (Judicial) Recruitment Rules, 1967 observed as under:
"41. The list and the waiting list of the selected candidates shall remain in operation for one year from the date of its publication in the Government Gazette or till it is exhausted by appointment of the candidates whichever is earlier, provided that nothing in this rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will remain in operation till the list or the waiting list is exhausted."
26. In Madanlal's case (supra), the Government had made a requisition for eleven posts requiring the Public Service Commission (PSC) to prepare a merit list of suitable candidates. As per the Government's requisition, the PSC was required to start a process of selection for eleven posts of Munsiffs in KCS (Judicial) Service with a rider that the select list of 20 candidates be prepared and furnished to the Government. The Apex Court, while dealing with the issue held that only eleven candidates in the select list had a right of appointment and the candidates figuring at serial No. 12 to 20 in the list could be considered only in case all the eleven vacancies did not get filled up for any reason, within a period of one year of its publication.
27. It was held in the case (supra) that list of candidates beyond eleven candidates would serve as reservoir from which meritorious suitable candidates could be drawn in order of merit to fill up remaining requisitioned and advertised vacancies. It was further held that if requisition for recruitment was for eleven vacancies and the merit list prepared was for twenty candidates, the moment all the eleven vacancies are filled in accordance with merit, the list gets exhausted and that if further vacancies or remaining vacancies are to be filled in after one year, in that eventuality, a fresh process of recruitment had to SWP No. 1029/2015 Page 9 of 16 be initiated giving a fresh opportunity to all the open market candidates to compete.
28. The Apex Court in Virender S. Hooda & Ors. v. State of Haryana & Anr. reported in (1999) 3 SCC 696 was dealing with a case where Haryana Public Service Commission, advertised 12 posts of Haryana Civil Service (Executive Branch). The Commission conducted the written examination and final result was published on 19.06.1992. The appellants did not rank sufficiently high but appellants No. 2 and 3 were offered appointments as Excise and Taxation Officer and Tehsildar respectively. They joined against the said posts. Thereafter, appellant No. 1 filed a writ petition before the High Court asserting therein that the Government of Punjab had issued instructions, prescribing the procedure to be adopted by the Commission, that apart from those selected against the vacancies all notified additional vacancies which arise within six months from the recommendation of the names could be filled up from amongst the names recommended by the Commissioner.
29. Similar instructions were also issued by the Government of Haryana on 26.05.1972. The assertion of the appellant No. 1 was that 23 posts were vacant which could be filled up by direct recruitment when the advertisement was made for examination which was held in 1991. Appellant No. 1 was informed that since there were only seven posts in the general category and he had secured rank at Serial No. 8 in the said selection process, he could not be selected.
30. While the High Court had dismissed the writ petition filed by the petitioner, the Apex Court, while setting aside the judgment and order of the High Court, held that a policy was declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these SWP No. 1029/2015 Page 10 of 16 instructions are not contrary to the rules the respondents ought to follow the same.
31. Accordingly, a direction was issued to consider the cases of the appellants for appointment to the post of Haryana Public Service Commission (Executive Branch) against those vacancies which arise within six months from the date of previous selection.
32. In the backdrop of aforesaid judgments, it will be seen that in the absence of any rule/Government order/Government instruction prescribing vacancies occurring on account of resignation to be filled up from out of the select panel or waiting list, the moment the appointments are made and the selected candidates join the list exhausts itself and any subsequent vacancy on account of resignation of the selected candidate(s) cannot be filled up except by way of a fresh process of selection. However, if there is a rule/Government order/Government instruction which permits any such course to be adopted, then in that case, the view taken in Madanlal's case (supra) may not apply.
33. The Apex court in Gujrat State Deputy Executive Engineers Association v. State of Gujrat reported in 1994 (suppl. 2) SCC 591, while dealing with the issue of waiting list, its purpose and the rights of the candidates whose name figure therein held in paragraph 8 as under:
"8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by SWP No. 1029/2015 Page 11 of 16 the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent, authority prepares a waiting list then it is in respect of those ten seats only for Which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided „then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it‟. She has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons. "
34. In the backdrop of the ratio of the judgments discussed above, it is clear that the wait list prepared by the High Court which was to remain valid and effective for a period of one year could not have been used as a perennial source to replenish the vacancies which would fall vacant in future even when the said vacancies were never subjected to a process of selection.
35. In so far as the second issue is concerned, admittedly, the order impugned dated 27.07.2009, promoting the respondent no.2, was issued after the expiry of SWP No. 1029/2015 Page 12 of 16 the life of the wait list. In the meantime, the rules of the game had changed inasmuch as the Hon'ble Acting Chief Justice of the High Court had issued order no.579 dated 24.10.2008 in purported exercise of powers conferred in terms of Rule 6 of the Jammu & Kashmir High Court Staff (Condition of Service Rules), 1968, whereby a Reader could be appointed in the following manner:
Name of the Mode of appointment Minimum Minimum Existing pay scale.
post qualification experience, if any,
required required
Reader (A) 75% by direct (A) Law Graduate 7500-12000
recruitment subject to (Professional)
passing of such
examination/ test as may
be prescribed by the
Chief Justice from time to
time.
(B) 25% by promotion Two years
amongst Section Officers (B) Law Graduate
(Admn.) on the basis of
merit-cum-seniority and
subject to passing of such
examination/ test as may
be prescribed by the
Chief Justice from time to
time.
36. It will be apt to reproduce order No.579 which prescribe thus:
"In exercise of the powers conferred on me under Rule 6 of the Jammu and Kashmir High Court Staff (Condition of Service Rules) 1968 and in supersession of all previous orders in this behalf, I, Nisar Ahmad Kakru, Acting Chief Justice of High Court of Jammu and Kashmir, on the basis of report submitted by the committee of Hon‟ble Judges, constitute for the purpose, prescribe the following qualification and mode of recruitment for appointment and promotion of various posts in the High Court of Jammu and Kashmir............."
SWP No. 1029/2015 Page 13 of 16 A reading of the aforementioned order would make it clear that with coming into force the said order, all previous orders in regard to appointment against different post in the High Court, inter alia, the post of Readers stood superseded without any exception. What was in force on the date when the order dated 27.07.2009, promoting the respondent no.2 came to be passed, was the order no.579, according to which promotion to the post of Reader could be made only from out of the cadre of Section Officers. In the present case admittedly, respondent no.2 was not a Section Officer. Therefore, the order impugned promoting respondent no. 2 to the post of Reader was contrary to the order no.579 dated 24.10.2008.
On delay and laches:
37. It was next contended by the counsel for the respondent no.2 that whereas, the order impugned dated 27.07.2009 was issued by the High Court in the year 2009, the petitioner did not challenge the same immediately and the petition on that ground should be dismissed being barred by delay and laches. This issue, however, is no longer res-integra. The apex Court in Central Electricity Supply Utility of Udisha v. Dhobei Sahoo & Ors., 2014 (1) SCC 161, held that the doctrine of delay and laches was inapplicable in regard to a writ of co-warranto.
It needs to be emphasized that had it been a simple case of making a promotion or granting promotion to respondent no.2 over and above the petitioner who otherwise claims to be eleven years senior to the said respondent perhaps the issue of delay and laches highlighted by respondent no.2 would have carried weight, although the petitioner has explained that representations were filed by him. However, in the present case, we cannot ignore the fact that promotion granted to respondent no.2 was in violation of the High Court's own SWP No. 1029/2015 Page 14 of 16 order fixing the eligibility criteria for making the promotions which require the respondent no.2 to first get promoted to the post of Section Officer which respondent no.2 admittedly does not possess. For that reason, the respondent No. 2 can be said to be a usurper of a public office.
38. Having considered the matter in its entirety, we are of the opinion that the promotion granted in favour of respondent no.2 as Reader by virtue of order dated 27.07.2009 was not justified in law because:
(i) Waiting list prepared by the High Court could not have been operated against future vacancies which were never the subject matter of the selection in terms of the ratio of the Apex Court judgment in Gujrat State Deputy Executive Engineers Association v. State of Gujrat reported in 1994 (suppl. 2) SCC 591. The vacancies which became available in the cadre of Readers during the lifetime of waiting list ought to have been subject to a fresh process of selection according to the norms which were in existence before coming into force of High Court order No.579 of 2008 dated 24.10.2008.
(ii) In addition to the above, even otherwise, the order impugned was issued in the year 2009 which was beyond the one year validity period envisaged for the operation of the waiting list as per the recommendations of the Committee and approved by the then Hon'ble the Acting Chief Justice of the High Court of Jammu and Kashmir. The vacancies then ought to have been filled up in accordance with High Court order No.579 of 2008.
(iii) The respondent no.2 was not eligible to be promoted as Reader inasmuch as by the date of passing of the order impugned, it was necessary for her to first get promoted to the post of Section Officer for being considered SWP No. 1029/2015 Page 15 of 16 eligible for promotion as against 25% promotional quota meant for the cadre of Section Officers.
39. For the reasons above, order dated 27.07.2009, to the extent it promotes respondent no.2 as Bench Secretary is quashed. The tentative seniority list in the cadre of Bench Secretaries be accordingly reframed. The case of the petitioner for retrospective promotion from 24.11.2008 be considered on its own merits and appropriate decision be taken within three months.
40. Disposed of accordingly along with connected MP(s).
(Sanjeev Kumar) (Dhiraj Singh Thakur)
Judge Judge
Jammu
02.07.2018
Abdul Qayoom, PS
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