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2009 DIGILAW 635 (JK)

State Of J. &K. v. Farooq Ahmad Renzo

2009-12-11

GH.HASNAIN MASSODI, J.P.SINGH

body2009
J.P. Singh, J. 1. Applicant-Farooq Ahmad Renzos Writ Petition SWP No. 188/1999 was allowed by a Learned Single Judge of this Court vide Judgment dated 06.03.2002, directing the State, in the General Administration Department, to allot him, due place in the Seniority List of the members of the Jammu and Kashmir Administrative Service, taking his date of entry into the pay scale of Rs.2125-3600, the date relevant for determination of inter-se Seniority of those inducted into the time scale of the Service by promotion, from amongst the members of the Services of the Departments indicated in Rule 5 of the Jammu and Kashmir Administrative Service Rules, 1979, as 21.02.1984, by taking note of Government Orders dated 29.12.1997 and 21.08.1998. 2. The Judgment delivered by the Learned Single Judge, was however, set aside by a Division Bench of this Court, vide its Judgment of September 03, 2005 in States LPANo.98/2002. 3. Allowing the Letters Patent Appeal, the Bench was, inter alia, of the view that the very basis of the herein applicants case, before the Writ Court that the Pay scale of the post of Information Officer, held by him, had been upgraded to Rs.2125-3600, with effect from February 21, 1984, vide Government Order No.93-ID of 1997 dated 29.12.1997 of the Information Department, entitling him to Seniority in the Kashmir Administrative Service from that date, having vanished with the State Governments rescinding the aforementioned Government Order vide Order No.02-ID of 2002 dated January 08, 2002, he was not entitled to the issuance of directions, which the Learned Single Judge, allowing his Writ Petition, had issued to the State Government. 4. The Division Bench was further of the view that the Seniority, being an incident of service, and having bearing on ones future prospects in service, was a matter of great consequence, and any change, in the inter-se Seniority, was bound to affect the right of the persons, placed above the aggrieved person, and therefore, no alteration could be made in the impugned Gradation List, without affording opportunity of hearing to the Officers affected thereby. 5. The Bench had further noticed that even if the inter-se placement in the Gradation List was incorrect, it would still create right in favour of the person, which could not be taken away without Notice to him. 6. 5. The Bench had further noticed that even if the inter-se placement in the Gradation List was incorrect, it would still create right in favour of the person, which could not be taken away without Notice to him. 6. In a nutshell, therefore, what was held by the Division Bench, while disposing of LPA No.98/2002, was that the existing position of the members of the Jammu and Kashmir Administrative Service, in the Seniority List, could not be altered to their detriment, without providing opportunity of hearing to them. The Judgment delivered by the Learned Single Judge was, thus, found unsustainable, as it had allowed Farooq Ahmad Renzos Writ Petition when those, who were likely to be affected by the correction in the Seniority List, as sought for by the applicant, had not been arrayed as party respondents to the Writ Petition. 7. Appearing for Mr. Renzo, his learned counsel Mr. Riaz Jan seeks review of the Judgment of the Division Bench, saying that the Division Bench had committed an error, apparent on the face of records, in taking the above mentioned view, which according to the learned counsel was contrary to the law laid down in A. Janardhana v. Union of India, reported as (1983) 3 SCO 601 and V.P. Shrivastava and others v. State of M.P. and others, reported as (1996) 7 SCO 759, warranting Review of the Judgment. 8. We have considered the learned counsels submissions but do not find any merit therein, in that, what was held in A. Janardhanas case, was that the challenge thrown in the case was to the criteria adopted by the Union Government in drawing up the impugned Seniority List, which was to be defended by the Union Government and in this view of the matter, those who may be resultantly affected thereby, were not considered, necessary parties to the proceedings. 9. 9. Applicant, Farooq Ahmad Renzo, had neither challenged the rules governing the Seniority of the members of the Jammu and Kashmir Administrative Service, nor had he questioned any decision of the Government, or for that matter any Policy decision governing the Seniority of the members of the Service, and all that he had claimed in the Writ Petition was his entitlement to a higher position in the Seniority List, as against the one, that had been allotted to him by the impugned Government Order issuing the Seniority List, on the plea that his entitlement to the higher Seniority position, was on the basis of Government Order issued by the Information Department, placing him in the higher grade of Rs.2125-3600, from the retrospective date. 10. The view taken by the Division Bench, proceeding on the premise that the very basis of the applicants claim in the Writ Petition stood vanished, with the State Governments rescinding the Information Departments Order placing the applicant in the higher grade of Rs.2125-3600, from the retrospective date, that the Writ Court had erred in considering the applicants case and directing the State-respondents to treat his date of entry into the Pay Scale of Rs.2125-3600, as 21.02.1984, for the purpose of fixation of his Seniority, in the absence of those who were likely to be affected in their Seniority as members of the Jammu and Kashmir Administrative Service, does not appear to us, against the law laid down by the Honble Supreme Court of India, in A. Janardhanas case, because the decision in Janardhanas case had been so rendered, in different set of facts and circumstances, in favour of the petitioner therein, who had questioned the Policy decision of the Government of India, which plea could have been determined, even in the absence of those likely to be affected by the determination of the Court on the questioned Policy decision, which however, was not the applicants case before the Writ Court. 11. We, therefore, do not find any error of law apparent on the face of records in the Judgment delivered by the Division Bench, justifying exercise of jurisdiction in Review to interfere with the Judgment. 12. There is, thus, no merit in the Review Petition, which is, accordingly, dismissed.