Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 326 (JK)

G. R. Bhat v. State Of J. &K.

2001-12-12

A.M.MIR

body2001
1. Through the medium of this petition order No. 113-Agri of 2000 dated: 04-04-2000 is sought to be quashed, whereunder the final seniority list issued under Govt. order No. 298-Agri of 1997 dated: 02-05-1997 was modified and respondent No. 4, who in the final seniority list figured at S.No. 20 was brought up and placed at S.No. 6-A. The main grievance of the petitioner is that the final seniority list was never challenged nor was it put to any judicial scrutiny. Therefore, the placement of respondent No. 4 over and above the petitioners is illegal, as the same was done, without hearing the petitioners. 2. Petitioners case is that they are senior. It be made clear that petitioner were placed in the revised grade of Area Marketing Office on 23-07-1987, while as respondent No. 4 has been placed in the same grade with effect from 01-04-1987. Induction of respondent No. 4 was ordered vide Govt. order No. 433-Agri of 1988 dated: 16-03-1988. For making things clear, it is deemed proper to reproduce the text of this order, which reads as under: - Government order No. 433-AGRI of 1988 dated: 16-03-1988. Pursuant to Government order No. 2018-GD of 1987 dated: 13-11-1987, sanction is accorded to the transfer of the post of Area Marketing Officers, from the Department of Horticulture (P&M) to the civil secretariat for purpose of drawal of pay of Shri B.A. Banday posted as RPO to Hon™ble Agriculture Minister. It is further ordered that the above order shall take effect from the date Shri Banday was posted as RPO to Hon™ble Agriculture Minister i.e. fromOl-04-1987. By order of the Government of Jammu and Kashmir.� 3. The petitioners have not assailed the above quoted order. It be noted that respondent No. 4 is a direct recruit and the petitioners have come from service. Appointment of respondent No. 4 was originally made vide Govt. order No. 2018-GD of 1987 dated: 13-11-1987. After his appointment when a tentative seniority list was drawn, respondent No. 4 was made to figure in the cadre of gazetted officers of the Horticulture Department. A group of officers aggrieved by his placement in the cadre of officers filed SWP 1186/95, asking for deletion of his name from the seniority list and for quashing his appointment order. After his appointment when a tentative seniority list was drawn, respondent No. 4 was made to figure in the cadre of gazetted officers of the Horticulture Department. A group of officers aggrieved by his placement in the cadre of officers filed SWP 1186/95, asking for deletion of his name from the seniority list and for quashing his appointment order. This court on 07-10-1998 while disposing of that writ petition held as under:- The main ground of challenge is that private respondent was not qualified for the post and has been illegally appointed. However, there is not a whisper in the petition explaining the delay of eight years to challenge his appointment since 1987. Even otherwise, the order of appointment has been made in relaxation of rules and since he was a member of the Secretariat as PRO to the Minister for Agriculture, his appointment is by transfer which is permissible under rules because direct appointment includes appointment by transfer. Assuming that he did not fulfill the qualification, the order of appointment being in relaxation of rules, the qualification is deemed to have been relaxed by the Government.� While upholding the appointment of respondent No. 4, the court in the same judgment added as under:- In any case the order of appointment having not been challenged for more than eight years, the same cannot be challenged while challenging the tentative seniority list. So far as the challenge to the seniority list is concerned, the petition is premature as it is subject to objections.� 4. Thus the appointment of respondent No. 4 was upheld by dismissing the writ petition against the same. Subsequent to the passing of order of appointment order date: 16-03-1988 was passed whereby the order of appointment dated: 13-11 -1987 enforceable with effect from 01-04-1987. As already observed, this order has never been challenged and this is how, the appointment of respondent No. 4 has been held to date back from 01-04-1987, as the same was accepted as fait accompli. After having located the date of appointment of respondent No. 4, it becomes easy for the court to observe that inter-se seniority of the petitioners and respondent No. 4, in terms of Rule 24 of C.C.A. Rules will be reckoned from the date they entered into the present grade. After having located the date of appointment of respondent No. 4, it becomes easy for the court to observe that inter-se seniority of the petitioners and respondent No. 4, in terms of Rule 24 of C.C.A. Rules will be reckoned from the date they entered into the present grade. On going through the order impugned, one comes to the conclusion that the State-respondent while issuing the order impugned was clear that the dates on which the contesting officers joined as Area Marketing Officers (Rs. 2200-3800) were different and respondent No. 4 had joined that grade much earlier than the petitioners. It is also clear that determination of seniority of respondent No. 4 viz-a-viz the petitioner was made on presentation of a review petition by respondent No. 4. For purposes of clarification the relevant portion of the impugned order is reproduced as under:- Whereas B. A. Banday, Area Marketing Officer aggrieved by his placement at S. No. 20 of the said seniority list filed a review petition for refixation of his seniority at S. No. 6 on the following grounds:- i. he was appointed as Area Marketing Officer against direct recruitment post from 01-04-1987 in the pre-revised pay scale of Rs. 2200-3800 vide Government order No. 2018-GAD dated: 13-11-1987 and G.O. No. 433-Agri of 1998 dated: 16-06-1998; ii. officers shown senior to him at pre-revised pay scale of Rs. 2200-3800 from 23-07-19 87 vide Government order No. 413-Agri of 1987 dated: 23-07-1987 pending clearance by DPC/PSC. iii. on the basis of appointment in the grade of the post, he deserves to be given seniority position over and above the names of those officers who were appointed in the same pay scale, class and category subsequently." Then coming to the operative part, the order reads as under:- Now, therefore, it is ordered that the seniority of Shri B.A. Banday, Area Marketing Officer shall be deemed to have been fixed at serial No. 6-A i.e. below the names of Shri A.D. Shah and above Shri Wali Mohd Mir instead of at serial No. 20 of Government order No. 298-Agri of 1997 dated: 02-05-1997. This shall be, however, without prejudice to the outcome of the writ petition, if any pending before Hon™ble court. By order of the Government of Jammu and Kashmir.� 5. This shall be, however, without prejudice to the outcome of the writ petition, if any pending before Hon™ble court. By order of the Government of Jammu and Kashmir.� 5. The only question that remains to be answered is as to whether or not the State-respondent, could have passed the order impugned, without having issued notice to the petitioners. An answer to this question has been provided by law of precedent and is handy. A Full Bench of Patna High Court in a judgment titled Saf Abbas Vs. State of Bihar reported in AIR 1970 Patna 397, held that fixation of seniority and its alteration is purely an administrative matter and while dealing with such a matter it is not necessary to adhere to rules of natural justice. Their Lordships held as under:- In the matter of administration (fixing of seniority)...is open to the departmental authority to pass such suitable order, if materials be on record for assessing the merit of claim or claims of the officer or officers concerned. If, however, any officer feels aggrieved by such an order, it is open to him to put in a representation for reconsideration of the decision and if the authority taking the decision is satisfied that there is a substance in the grievance made by the officer adversely affected by that order, the decision must be altered and justice done between the parties. Normally this should be done within a reasonable time to avoid further complications by virtue of any officer having enjoyed the benefit of that decision for such a long time and unless there by very compelling reason to do so, such a decision should not be altered. As an abstract question of administration policy, if a decision has been arrived at by the Government on the administration side, it can be altered if the Government is satisfied that the decision was wrong. There is no question either of violation of the principles of natural justice in this case because there is no proviso for a personal hearing.� In a subsequent case coming before the Apex Court titled Bachitter Singh Grawal and others Vs. State of Punjab and others, reported in 1973 (1) S.L.R. 963, their lordships approved the decision of the Full Bench of the Patna High Court (supra). 6. Their lordships of the Supreme Court yet in another case titled M/s Mahavir Jute Mills Ltd. Vs. State of Punjab and others, reported in 1973 (1) S.L.R. 963, their lordships approved the decision of the Full Bench of the Patna High Court (supra). 6. Their lordships of the Supreme Court yet in another case titled M/s Mahavir Jute Mills Ltd. Vs. Shri Shibhan Lal Sexana and others, reported in 1975 (2) SCC 818 held that principles of natural justice, although very essential had got their own limits and could not be stretched very far. Their lordships, while delivering the judgment were very clear that such proceedings were administrative in nature and while undertaking these proceedings State was discharging its quasi-judicial functions. The only limitation placed by their lordships on such a review was that it should be based on reasoning and material on record. Their lordships held as under:- The legal position therefore is that the Government or the appropriate authority when exercising quasi-judicial functions must pass a speaking order and give reasons in support of the same. The order must disclose that to authority applied its mind to the material on the record. However, when the Government is to pass an administrative or executive order it is not expected to have a judicial approach of the type when it exercises quasi-judicial functions in the matter of administration i.e. fixing seniority of officers it is open to the departmental authorities to pass any suitable order from the material on record to assess their merits If a decision has been arrived at by the Government on the administrative side it could be altered if the Government is satisfied that the decision was wrong and in such a case there is no violation of the principles of natural justice. The decision of the Government fixing the seniority of officers and its alterations are administrative matters and the rules of natural justice have no application on the same.� 7. A Bench of this Court (Dr. A.S. Anand J, as His lordship then was), while dealing with a case of the same nature, titled Kulbushan Singh Vs. The decision of the Government fixing the seniority of officers and its alterations are administrative matters and the rules of natural justice have no application on the same.� 7. A Bench of this Court (Dr. A.S. Anand J, as His lordship then was), while dealing with a case of the same nature, titled Kulbushan Singh Vs. Chief Engineer, reported in 1997, All India Service Law Journal page 230, followed the same line of thought and held:- On the other hand there is ample authority for the proposition that in matters relating to fixation or refixation of seniority, the rules of natural justice have no application and no order fixing seniority would be interfered with unless the petitioner can show any manifest injustice to have been done to him and it is within the competence of the Government or the authority to undo the wrong and do justice between the parties, if it is satisfied that its earlier order or decision relating to fixation or refixation of seniority was wrong, as such an order is only administrative in character.� 8. Mr. Abrol, appearing for the writ petitioners, laid stress on Rule 55 of Civil Services (Classification, Control And Appeals) Rules, 1956. According to him it is only in cases where new facts and circumstances warrant reconsideration or there has been mistake or error apparent on the face of the record that an order can be reviewed. I have considered this argument. In my opinion there can be no better case of mistake or error apparent on the face of record than the one in hand. In the light of there being two different dates of entry to the grade of Area Marketing Officers, their seniority will, in terms of rule 24 of Civil Services (Classification, Control And Appeals) Rules, 1956, have to be reckoned from the date of such entry. While issuing a final seniority list an error had been committed and the same was apparent on the face of the record. In addition to this rule 55 (supra) provides that an order can be reviewed for any other sufficient reasons also. Dr. While issuing a final seniority list an error had been committed and the same was apparent on the face of the record. In addition to this rule 55 (supra) provides that an order can be reviewed for any other sufficient reasons also. Dr. A.S. Anand J: while determining the contours of review powers of the state, in the light of the Supreme Court judgments, has laid down that while making a review or fixation or refixation of seniority, if the competent authority is satisfied that a manifest injustice was done to a particular employee, the wrong done can be undone and rightful position of the official restored. 9. It will be pertinent to place on record here that the Court repeatedly asked the learned counsel for the petitioner as to how was he prejudiced and by what standards the petitioners claim to be senior to respondent No.4. He could not satisfy the Court. The fact of the matter is that respondent No. 4 on the strength of material on record is senior to the petitioners and by issuing the impugned order, what has been done is that a wrong has been rectified and right position of respondent No. 4 determined. 10. Summing up, it is held that fixation and refixation of seniority is the function of the employer State, which has always to be on guard to see that while discharging this function justice between its servants working in the same cadre is done. This function is an administrative function and the proceedings undertaken while discharging this function and proceedings undertaken while discharging this function are quasi judicial only. Rules of natural justice as applicable to judicial proceedings have no application. Thus, it is always permissible for the employer State to rectify an error which was committed while fixing the seniority earlier. The refixation, however, should be made on the strength of record and should not cause manifest injustice or prejudice. 11. On the foregoing analogy I find no error of law in the order impugned. It has rightly fixed the seniority and caused no injustice or prejudice. On the other hand it has done complete justice. Therefore, I find no substance in this petition, which is accordingly dismissed, without there being any order as to costs. As far SWP No. 854/2000 goes, it seeks the same reliefs which were sought by the writ petitioners of SWP 1186/1995. On the other hand it has done complete justice. Therefore, I find no substance in this petition, which is accordingly dismissed, without there being any order as to costs. As far SWP No. 854/2000 goes, it seeks the same reliefs which were sought by the writ petitioners of SWP 1186/1995. Those reliefs have been refused and the petition dismissed. SWP No. 854/2000, filed after a period of five years of the decision in SWP No. 1186/95, on the same reasoning is dismissed. Interim direction issued on 30-05-2000 shall stand vacated.