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2010 DIGILAW 638 (JK)

Aijaz Rasool Wani v. State Of J&K

2010-12-22

Sunil Hali

body2010
1. The dispute in the present petition relates to inter se seniority of the petitioners as also the private respondents who carne to be appointed as Inspectors in Forest Protection Force, in pursuance to a common selection process initiated in the year 1996-97. 2. The case set up by the petitioners is that after the selection process was concluded and the list of selected candidates was forwarded by the J&K Service Selection Recruitment Board to the Administrative department, a communication dated 7th of January 1998, was addressed to respondents 2 and 3 to issue formal appointment orders in favour of the selectees only after receipt of their verification report from the concerned police. On receipt of the said report, the letters of appointment came to be issued in favour of the petitioners as also the private respondents on different dates depending upon the receipt of the report from the police and CID department. Thereafter, a tentative seniority list of Inspectors of Forest Protection Force, of Divisional Cadre, Kashmir, came to be issued on 10th of February 2009, to which objections were called from the concerned within a period of 21 days from the date of issue of the said tentative seniority list. 3. It is contended by the petitioners that as they were placed at the right position in the said tentative seniority list i.e. at S.Nos. 1, 4, 5, 6, 7, 9, 10, 11, 12, 16 and 24 and the private respondents at S.Nos. 8, 13, 14, 15, 17, 18 to 22 and 25 to 29, no objections were preferred by them against the said tentative seniority list. 4. It is further contended that even though, no objections were filed by the petitioners, some of the candidates did file their objections against the tentative seniority list. On receipt of these objections, the respondent No.1, issued a communication to respondent No.3, dated 5th of Oct’09, whereby he was asked to fix the seniority of employees of the Forest Protection Force in accordance with the Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (here-in-after called the Rules). 5. On receipt of these objections, the respondent No.1, issued a communication to respondent No.3, dated 5th of Oct’09, whereby he was asked to fix the seniority of employees of the Forest Protection Force in accordance with the Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (here-in-after called the Rules). 5. The grievance projected by the petitioners is that even though necessary instructions were issued by respondent No.1 to the concerned authority for fixing the seniority in terms of the provisions of Rules referred to above, the respondent No.2 vide order impugned No.815 of 2009 dated 18th of December 2009, issued the final seniority list of Forest Protection Force Inspectors thereby changing the position of the petitioners as it existed in the tentative seniority list which was their right position in the seniority. In the final seniority list, the petitioners were shown at S. Nos. 13, 14, 15, 19 to 22, 24 and 26 to 28, and the private respondent 4 to 18 were placed at S. Nos. 1 to 12, 16 to 18, 23 and 25. This, as per the petitioners has been done in violation of Rules. 6. The contention raised by the petitioners is that in terms of the provisions of Rules, referred to above, those who are directly recruited, their seniority is to maintained in terms of the positions attained by them in the order of merit at the time of competitive examination. It is stated that the Recruitment Board had prepared the select list on the basis of merit obtained by the petitioners as also the private respondents and forwarded the same to the Government for approval. On receipt of the said approval, the respondent No.1 had forwarded the list to respondents 2 and 3 for issuing the appointment orders which were issued on different dates only after the receipt of verification report from the concerned Police and CID. What is sought to be urged is that only because the verification report of a particular candidate even though higher in merit, was received by the concerned respondents after the report of a candidate lesser in merit and the resultant appointment order issued thereafter, would not alter his position in the seniority. He automatically has to rank senior to a candidate who is lesser in merit as prepared by the Recruiting Agency. He automatically has to rank senior to a candidate who is lesser in merit as prepared by the Recruiting Agency. It is stated that in the tentative seniority list issued by the respondents, the petitioners were placed at their right position depending upon the merit obtained by the them in the selection process but vide impugned order, referred to above, the said position has been changed which is violative of the Rules referred to above. 7. Official respondents in their reply have resisted the petition on the ground that the petitioners have been appointed as Inspectors, Forest Protection Force, on different dates and it was keeping in view the said fact, the final seniority list dated 18th of December 2009, was issued, in which the petitioners as also the private respondents have been assigned the right position. It is stated that the select list issued by the Recruiting agency was a combined list of Forest Protection Inspectors as also that of Foresters and the final appointments were required to be made from amongst the selected candidates on the basis of option/choice exercised by them in this regard. It is pleaded that the provisions of Rule 24(1), of the Rules would be applicable in the present case and not Rule 24(b). 8. Private respondents have somewhat taken a similar stand as taken by the official respondents, noticed above. It is, thus, submitted by them that the petitioners cannot have any grievance against the final seniority list issued by the official respondents which has been issued in accordance with the rules. 9. Heard learned counsel for the parties. Admitted. 10. There is no dispute with regard to the fact that the appointment of petitioners as also the private respondents was the outcome of the same selection process. Their seniority, thus, has to be maintained in terms of Rule 24(b) of the Rules, referred to above. The said rule reads as under:- "24(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 and 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 selection;" 11. A perusal of the above rule shows that an exception has been carved out regarding determination of seniority of those who are directly recruited and the exception is with regard to those candidates who do not join their duties when the vacancies are offered to them. In the case in hand, it is not the case that the petitioners did not join their duties after they were issued the appointment orders. Their appointment was delayed due to the reason that their verification reports were not sent by the concerned police department to the official respondents. This led to the issuance of appointment orders in favour of the petitioners and their ultimate joining against the posts on different dates. Clause (b) of the Rules noticed above, clearly lays down that in case the candidates are directly recruited by way of a common selection process, their inter-se seniority has to be determined on the basis of the merit obtained by them in the said selection process. The date of issuance of appointment orders is dependent upon the verification submitted by the respondents. In such eventuality, the date of appointment will loose its significance in view of clause (b) of the rules noticed above. I am fortified in this view by a judgment of the Division Bench of this Court in the case of L.K. Mengi v. State and ors, LPA No. 741/99, decided on 10th of May’2000. What was observed by the Division Bench after noticing clause (b) of the rules referred to above, is being reproduced below:- "The above reproduced proviso makes it clear that in case of candidates directly recruited, their inter-se seniority has reference to the select list and not to the different dates on which they joined the post, especially when posts are offered to them on different dates. Once the Government operates upon the select list, it has to be done in accordance with the positions the candidates enjoy in that list. An indefeasible right accures to the candidates ranking higher over those who rank below them." 12. The respondents placing reliance on the judgment reported as Ashok Kumar Gupta v. State of J&K and others in SLJ 1989 J&K 475, have contended that seniority has to be maintained on the basis of date of first appointment. An indefeasible right accures to the candidates ranking higher over those who rank below them." 12. The respondents placing reliance on the judgment reported as Ashok Kumar Gupta v. State of J&K and others in SLJ 1989 J&K 475, have contended that seniority has to be maintained on the basis of date of first appointment. What has been observed in the above case may be noticed as under:- "Civil Services, Classification Control & Appeal Rules (J&K) Rule 24 : Seniority is to be determined by date of first, substantive appointment or appointment on probation on a clear vacancy, date of passing of competitive examination is irrelevant so far as the fixation of seniority is concerned when the date of appointment is different." 13. What the above judgment contemplates is that where appointment is made against a clear vacancy subject to clearance of the probation period, seniority will be determined from the date of first appointment after completion of the probation. The issue in the aforementioned writ petition was as to whether the date of seniority will relate to first appointment or passing of the competitive examination after such selection was made. It was not a case where date of appointment got delayed due to verification, which was to be conducted by the respondents. However, in the present case the issue is not as to whether seniority has to be fixed from the date of first appointment or from the date of qualifying the competitive examination but is an issue where the date of first appointment is determined on the basis of merit obtained in the competitive examination and not from the date of actual appointment. Therefore, the above judgment has no relevance in the present case. 14. In the case in hand, as indicated above, the petitioners as also the private respondents are the direct recruits and their selection has been held by a common selection process. Their inter-se seniority, thus, has to be maintained in terms of the merit obtained by them in the selection process. Merely because some of the petitioners were issued the appointment orders after the private respondents and this resulted in delay of their joining against the post in question, would not change their seniority which has to be fixed in terms of the merit obtained by them in the selection process in terms of provisions of Rule 24(b) referred to above. Merely because some of the petitioners were issued the appointment orders after the private respondents and this resulted in delay of their joining against the post in question, would not change their seniority which has to be fixed in terms of the merit obtained by them in the selection process in terms of provisions of Rule 24(b) referred to above. The stand of the respondents that while determining the seniority of the petitioners as also that of private respondents, the respective date of first appointment has to be taken into consideration is without any force and cannot be accepted. 15. For the reasons mentioned above, this petition is allowed. Order No. 815 of 2009 dated 18th of December 2009, passed by respondent No.3 is quashed. The official respondents are directed to maintain the inter-se of the petitioners and that of private respondents strictly in accordance with Rule 24(b) of the Rules. 16. Disposed of accordingly along with connected CMPs, if any.