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2014 DIGILAW 135 (JK)

State Of J&K v. Syed Amjad Ali

2014-03-27

Hasnain Massodi, M.M.Kumar

body2014
Per Massodi, J. 1. S/Shri Syed Amjad Ali, Gh. Mohi-ud-din, Rashid Ahmad, respondents herein, responded to Advertisement Notification no. 5 dated 29.12.1992 issued by J&K Service Selection Recruitment Board (SSRB) to fill up vacancies of Junior Engineers in Public Works Department of the State Government. They offered their candidature under Schedule Tribe Category. However, they were not able to get Schedule Tribe Category certificate from the competent authority even by the date they appeared in interview for the advertised posts. Their application for grant of Schedule Tribe Category certificate was rejected by the competent authority - Tehsildar concerned. They aggrieved with the order, preferred an appeal in June 1993 against rejection order, before the Appellate authority. 2. The respondents apprehending that they may be denied selection and appointment on the ground that they did not possess the Schedule Tribe Category Certificate on the relevant date, approached this court with the writ petition SWP No.1046/93. They sought a direction to the Appellate Authority to expeditiously dispose of their appeal as also direction to SSRB not to fill up four posts of Junior Engineers under Schedule Tribe Category, till their appeal was disposed of and in the event, requisite certificate was issued in their favour and accord consideration to their selection and appointment against the advertised posts. 3. The writ court on 28.06.1993 passed an interim order in favour of the respondents - writ petitioners. The order read as under:- "...Issue notice in the CMP also returnable within the same period. In the meanwhile, subject to objections of the other side, the respondent No.3 Dy. Commissioner Leh is directed to dispose of the appeals of the petitioners within the prescribed period as given in schedule Tribe (issuance of Certificates) Rules, 1990. The petitioners have filed the appeals on 8.06.1993 and in terms of the rules mentioned above, respondent No.3 is supposed to dispose of the appeals by 8.7.1993. The respondents are also directed to reserve four posts of Junior Engineers in Schedule Tribe Category over and above those who have already been appointed till the matter is considered by the Court." 4. The respondents appealed against order of Tehsildar concerned declining grant of Schedule Tribe Category Certificate in their favour, succeeded in the appeal and requisite certificates were issued in their favour in the year 1996 and 1997. They brought grant of Schedule Tribe Category certificates to the notice of writ court. The respondents appealed against order of Tehsildar concerned declining grant of Schedule Tribe Category Certificate in their favour, succeeded in the appeal and requisite certificates were issued in their favour in the year 1996 and 1997. They brought grant of Schedule Tribe Category certificates to the notice of writ court. The writ petition in SWP No. 1046/93 was disposed of vide judgment dated 18.02.1998 in the following manner:- "...Therefore, this writ petition is disposed of with the direction that the second respondent shall, on production of the Schedule Tribe Certificate, examine the petitioners' merit and if selected forward their names to the Government on the basis of which the first respondent shall consider them for appoint under the schedule tribe category against the four posts reserved by the order o this court dated 08.06.1993. This process shall be completed within a period of two months from the date of receipt of this order." 5. The SSRB accorded consideration to respondents -writ petitioners' claim and recommended them for appointment as Junior Engineers. The recommendation prompted the Government to appoint respondents -writ petitioners as Junior Engineers vide Government Order No.72-Hyd of 1998 dated 23.10.1998. The respondents writ-petitioners accepted appointment and reported to District Superintending Engineer, PWD (R&B) Circle, Leh, in terms of their appointment order. The respondents- writ petitioners, two years after they joined the duty, approached this Court with a writ petition registered as SWP No. 1509/2000, now complaining that their seniority was to be given effect from the date their colleagues were appointed on finalization of the selection process pursuant to Advertisement Notification no.5 of 1992. 6. The case set up was that their appointment was delayed, for the reason not attributable to them. The delay on the part of Appellate Authority to decide their appeal against the order of Tehsildar concerned, according to respondents-writ petitioners, was not to be used to deny them seniority from the date their competitors for the advertised posts were appointed. 7. The writ court found merit in the case pleaded by the respondents-writ petitioners and disposed of the writ petition as under:- "By issuance of writ of mandamus respondents are directed to give seniority benefit to the petitioners in the Schedule Tribe Category as Jr. 7. The writ court found merit in the case pleaded by the respondents-writ petitioners and disposed of the writ petition as under:- "By issuance of writ of mandamus respondents are directed to give seniority benefit to the petitioners in the Schedule Tribe Category as Jr. Engineers Grade II from 15.06.1993 when their other colleagues were appointed to the service and after fixing the seniority, petitioners be considered for all consequential benefits which would accrue to them on such fixation." 8. The State has come up with an appeal against the writ court judgment dated 03.06.2010 whereby seniority of respondents-writ petitioners was directed to be counted w.e.f. 15.06.1993 on the grounds urged in the appeal. 9. We have gone through the memo of appeal, the writ Court judgment as also the writ record. We have heard learned counsel for the parties. 10. The writ court judgment is questioned primarily on the ground that the respondents-writ petitioners after accepting the appointment, could not turn around to seek seniority from a retrospective date, more so, two years after joining their duty. It is next urged that the delay in appointing respondents-writ petitioners could not by any stretch of imagination, be attributed to the appellants. The writ court judgment is also questioned on the ground that the judgment on implementation is bound to adversely affect the seniority of other Junior Engineers in the Department and failure on part of the respondents-writ petitioners to implead all those likely to be affected by outcome of the writ petition, disentitles them from any relief. 11. Learned counsel for respondents-writ petitioners insists that petitioners were otherwise working as Junior Engineers in the Public Works Department on adhoc basis since 1990 and the writ court cannot be faulted for directing the appellant to reckon their seniority w.e.f. 15.06.1993 i.e. the date other aspirants for the advertised posts were appointed. It is further argued that writ court while granting ad-interim order on 28.06.1993 in SWP No.1046/93 in effect directed that the appointment in favour of respondents-writ petitioners is to have retrospective effect. Learned Single Judge while disposing of SWP No.1509/2000 vide judgment dated 03.06.2010 is stated to have given effect to the interim order dated 28.06.1993 read with writ court judgment dated 18.02.1993. 12. Mr. Learned Single Judge while disposing of SWP No.1509/2000 vide judgment dated 03.06.2010 is stated to have given effect to the interim order dated 28.06.1993 read with writ court judgment dated 18.02.1993. 12. Mr. Shah, learned counsel for respondents-writ petitioners conceding that writ court judgment was likely to have negative fall out on seniority of other Junior Engineers, stated that appellant can be directed to hear all the affected Junior Engineers while implementing the judgment impugned in the appeal. 13. We do not find merit in any of the arguments advanced by learned counsel for respondents-writ petitioners. In the first place, judgment questioned in the present appeal is not based on adhoc appointment of respondents-writ petitioners. Writ court did not allow the writ petition on the ground that respondents-writ petitioners served the department as adhoc Junior Engineers and that the services rendered as such would earn them seniority w.e.f. 15.06.1993. 14. The argument that ad-interim order dated 28.06.1993 left room for retrospective appointment of the respondents-writ petitioners, is equally specious, and deserves to be ignored. The ad-interim order in question, was granted only to ensure that in the event, respondents writ petitioners succeeded in getting Schedule Tribe Category certificate, they may not be denied consideration on the ground that the posts for which they competed were already filled up. It was to protect their interests and not to deprive them of the fruits of litigation after a long drawn battle to have their rights determined. The ad-interim order dated 28.06.1993 cannot be interpreted to confer a right on the respondents-writ petitioners to get their seniority computed w.e.f. 15.06.1993. 15. It is well settled law that all those who are likely to be affected by the outcome of writ petition, deserves to be given a right to project their stand. They cannot be caught unaware and their seniority position changed without affording them the opportunity to project their view point. Respondents-writ petitioners, obviously, sought change in their seniority position. Their seniority in terms of Government Order No.72-Hyd of 1998 dated 23.10.1998 is to be reckoned from the date they reported to District Superintending Engineer, PWD (R&B) Circle, Leh in the order their names appeared in the said Government Order. Respondents-writ petitioners instead prayed their seniority be counted w.e.f. 15.06.1993 i.e. more than 7 years anterior to their appointment. Their seniority in terms of Government Order No.72-Hyd of 1998 dated 23.10.1998 is to be reckoned from the date they reported to District Superintending Engineer, PWD (R&B) Circle, Leh in the order their names appeared in the said Government Order. Respondents-writ petitioners instead prayed their seniority be counted w.e.f. 15.06.1993 i.e. more than 7 years anterior to their appointment. Respondents-writ petitioners, were obviously aware of the fall out of the judgment in the writ petition on their colleagues in the department and ought to have impleaded all those who were likely to be affected so that they had an opportunity to respond to the averments made in the writ petition. The settled seniority position cannot be unsettled without hearing the affected members of the cadre. 16. The hearing before appellants cannot be a substitute for hearing before the writ court. The affected parties have a right to respond to the writ petition and admit or controvert the averments made in the writ petition. The appeal must succeed on this ground alone. A hearing by the appellant would not end the controversy but new litigation is likely to sprout out of such a recourse. The dictates of Public policy make it imperative to exclude chances of multiplicity of litigation. 17. It is contended by learned counsel for the appellant that as the respondents-writ petitioners were not denied appointment on erroneous grounds or fraudulently chased out of the selection process, or any fraudulent appointments made, latter set aside at their instance, they cannot insist on computing their seniority from the date their colleagues were appointed. We do not want to comment on this aspect of the case as the writ court is likely to deal with the matter afresh after all those affected by the judgment are afforded opportunity to project their stand. 18. We, for the reasons discussed, find merit in the appeal. The appeal is accordingly allowed. The writ court judgment dated 18.02.1998 is set aside. The matter is remanded to the writ court for disposal afresh after notice is issued to all affected parties whose particulars would be provided by the appellant and allowed to get impleaded as party respondents and to respond to the writ petition. 19. Disposed of.