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2015 DIGILAW 308 (JK)

Mehraj-ud-Din Zargar v. State of J & K

2015-07-01

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. The petitioners were appointed as Scale-I officers in Ellaqai Dehati Bank (Regional Rural Bank) by different orders issued from 1982 to 1984. Pursuant to the process for making promotions on 23 Scale-II posts initiated by the respondent-Bank, the petitioners, alongwith 20 other persons, were promoted in terms of order dated 17.09.2005. Some of the Scale-I officers of the Bank, who were senior to the petitioners and had participated in the selection process, but were not promoted, filed four writ petitions, viz., SWP Nos. 981/2005, 993/2005, 1144/2005 and 1650/2007, challenging the order dated 17.09.2005 (hereinafter, for short, referred to as earlier writ petitioners and earlier writ petitions, as the case may be). The Court in terms of judgment dated 20.08.2009 passed in the aforesaid four clubbed writ petitions, quashed the order dated 17.09.2005 as being violative of the seniority-cum-merit rule governing the promotions, and directed as under: "The respondents 1 to 3 are directed to reconsider the promotion of the officers to the posts of Scale-II officers strictly on the basis of seniority from amongst 52 persons who had obtained minimum marks and were alone called for interview and promote petitioners to post of Class-II officer. It is further declared that those of the respondents who would continue in service on such reconsideration, the quashment of their promotion order shall not constitute as break in their service and would be treated to have continued in the service in Scale-II officers without any interruption and break. The respondents 1 to 3 are further directed to consider the promotion of petitioners to Scale-II officer post from the date viz. 17.09.2005 and accordingly promote them to Scale-II officer from said date. The petitioners will be paid the salary attached to the post of Scale-II officer from the date their juniors have been promoted to the said post viz. 17.09.2005 and will be entitled to all other service benefits." The Letters Patent Appeals, being LPA Nos. 212/2009, 213/2009, 214/2009 and 215/2009, preferred by the respondent-Bank against the aforesaid judgment and order were dismissed by the Division Bench by judgment dated 14.09.2012. 2. Consequent upon the above, the respondent-Bank issued order No. EDB/HO/KJ/Per/131/2012-13, dated 19.11.2012 re-arranging the promotion list dated 17.09.2005 in accordance with seniority-cum-merit rule. 212/2009, 213/2009, 214/2009 and 215/2009, preferred by the respondent-Bank against the aforesaid judgment and order were dismissed by the Division Bench by judgment dated 14.09.2012. 2. Consequent upon the above, the respondent-Bank issued order No. EDB/HO/KJ/Per/131/2012-13, dated 19.11.2012 re-arranging the promotion list dated 17.09.2005 in accordance with seniority-cum-merit rule. By such rearrangement, only 8 out of the 12 Scale-I Officers, who had earlier been promoted vide order dated 17.09.2005 and figured as respondents 4 to 15 in the writ petitions, found their place in the rearranged list of promotees; whereas four of the 12 erstwhile promotees, being junior, could not find their place in the list of the promotees against the 23 posts in question. They were, therefore, reverted back to the Scale-I positions. 3. Three of the four reverted persons (one having retired) have now filed this writ petition with the following prayers: "In the premises, it is therefore prayed that this Hon'ble Court be pleased to grant appropriate writ order or direction: a. By way of writ of Certiorari, the office order bearing No. EDB/HO/KJ/Per/131/2012-13, dated 19.11.2012 to the extent it provides for reverting the petitioners back to Scale-I with effect from 17.09.2005, be quashed. b. By way of writ of Mandamus, it be declared that the promotion of the petitioners against the post of Scale-II is protected, below that of the writ petitioners of SWP No. 981/2005; SWP No. 9.993/2005; SWP No. 1144/2005 and SWP No. 1650/2007 on account of availability of Scale-II post and the fact that the officials who are juniors to the petitioners have been promoted against the Scale-II in the year 2008 and 2010. c. By way of writ of Mandamus, the service rendered by the petitioners against Scale-II post from 17.09.2005 to 19.11.2012 be not construed as break in service and thereto the petitioners be considered for promotion as against the post of Scale-III officer. d. The Hon'ble Court may pass any other order or direction, which it deems just and proper under the facts and circumstances of the case." 4. d. The Hon'ble Court may pass any other order or direction, which it deems just and proper under the facts and circumstances of the case." 4. The grounds on which the aforesaid reliefs are sought may be summarised ad-seriatim: (i) that having regard to the fact that the petitioners were declared successful in the selection process, were promoted as Scale-II Officers way back in 2005, had completed their probation, were confirmed on the post, had worked as Scale-II officers for seven years from 17.09.2005 to 19.11.2012, and had gained experience even to be promoted as Class-III officers, therefore, they could not have been reverted to Scale-I level, especially so when Scale-II posts were available; (ii) that having regard to the interpretation placed on the Rules by the respondent-Bank in their reply filed in response to the earlier writ petitions and the fact that the respondent-Bank filed Letters Patent Appeals against the judgment dated 20.08.2009 passed by the learned Writ Court in the earlier writ petitions, it was admitted by the Bank that promotions of the petitioners were legal or at best they could be described as irregular, it is unjust on their part to denude the petitioners of the benefit of promotion when posts were available against which they could have been adjusted; (iii) that between 17.09.2005 to 19.11.2012, the period during which the petitioners were working as Scale-II Officers, two more selection processes in the year 2008 and 2010 were undertaken and completed by the respondent-Bank wherein juniors to the petitioners were promoted as Scale-II Officers. It is stated that in the year 2008, 15 Scale-I Officers, as indicated in Annexure K to the writ petition, were promoted and, out of these, the persons figuring from serial No. 4 to 15 were junior to the petitioners. Similarly, in the year 2010, in terms of Annexure K to the writ petition, 8 persons were promoted out of whom the persons figuring from serial No. 4 to 8 were junior to the petitioners. Similarly, in the year 2010, in terms of Annexure K to the writ petition, 8 persons were promoted out of whom the persons figuring from serial No. 4 to 8 were junior to the petitioners. It is stated that such a situation cannot be countenanced in law; (iv) that since the petitioners have 7 years' experience as Scale-II officers, the denial on the part of the respondents to consider them for promotion as Scale-III officers is illegal, arbitrary and discriminatory; (v) that there is no dispute to the preposition that the writ petitioners (in the earlier writ petitions) were required to be promoted against the Scale-II posts over and above the petitioners but, at the same time, the respondent-Bank should have decided the issue as a model employer with an element of compassion and protected the promotion of the petitioners or, in the alternative, promoted the petitioners afresh against the available posts without treating the quashment of their promotion as a break in their service and treating them to have continued in service as Scale-II officers without any interruption and break, in terms of the judgment passed by the learned Writ Court. 5. The respondents in their reply have stated that it was in compliance of the judgment dated 20.08.2009 passed by the Court and the process undertaken thereunder that order dated 19.11.2012 was passed. The list of promotees was rearranged as per seniority of the officers against the 23 vacancies in terms of the directions contained in the judgment and only 23 vacancies of Scale-II posts could be filled up. Pursuant to the said process, all the petitioners in the earlier writ petitions got promoted to the said posts as a result the petitioners herein could not earn such promotions, being low in the order of seniority. It is submitted that the petitioners could not be adjusted against the Vacancies as had become available subsequent to issuance of order dated 17.09.2005 on account of the fact that such vacancies stood filled up in accordance with the process provided by the Rules. It is further submitted that the reversion of the petitioners took place in compliance of the judgment of the Court and since the posts those had fallen vacant after 17.09.2005 stood already filled up strictly in accordance with the rules and no post was available on the date of issue of the impugned order dated 19.11.2012. It is further submitted that the reversion of the petitioners took place in compliance of the judgment of the Court and since the posts those had fallen vacant after 17.09.2005 stood already filled up strictly in accordance with the rules and no post was available on the date of issue of the impugned order dated 19.11.2012. It is further stated that the promotion of officers from Scale-I to Scale-II ordered in the years 2008 and 2010 do not suffer from any illegality. The petitioners, according to the respondent-Bank, have no reason to raise any grievance before the Court, in that their restoration to officers Scale-I has occurred pursuant to a process established by law. It is also stated that the petitioners failed to defend their promotions and participate in the proceedings before the Court in the earlier writ petitions filed against them. The petitioners claim is stated to be hit by doctrine of legal fiction and on that count, it is stated, no grievance can be raised against the respondent-Bank. It is also stated in the reply that the petitioners pursuant to restoration to the posts of Scale-I officer could not be adjusted over and above the officers promoted to Scale-II during the years 2008 and 2010, because they had not participated in the relevant selection processes and had opted and chosen to remain contented with their promotion ordered in the year 2005 irrespective of the same being subject matter of challenge before the Court. Merely because the petitioners had worked in the posts of Scale-II officers from 19.09.2005 to 19.11.2012 would not justify their continuance in the posts in face of the judgment passed by the Court. According to the respondents, the petitioners, having failed to secure any promotion in Scale-II pursuant to the process undertaken by the Bank while implementing the judgment of the Court, could not claim the benefit of continuation. 6. I have heard learned counsel for the parties, perused the material on record and considered the matter. The learned counsel for the parties during the course of arguments, reiterated the assertions and contentions raised by them in their respective pleadings. 7. As seen above, the petitioners seem to be relying on their selection and promotion as Scale-II officers pursuant to the selection process undertaken in 2005, and their experience gained during the period they worked as such Scale-II officers. 7. As seen above, the petitioners seem to be relying on their selection and promotion as Scale-II officers pursuant to the selection process undertaken in 2005, and their experience gained during the period they worked as such Scale-II officers. It is the cardinal principle of law that once an order is quashed, everything that could be said to have flown by virtue of such order or sprung by reason of it, and materialised in abstract form it is rendered non-est in the eyes of law in a manner as if the order had not at all been issued. In the instant case, by judgment dated 20.08.2009 passed in the earlier writ petitions, order dated 17.09.2005 was quashed to the extent it pertained to respondents 4 to 15 therein. Respondents 4 to 15 included the names of the petitioners herein. By the aforesaid judgment, the official respondents were directed to reconsider the promotion of officers to the 23 Scale-II posts strictly on the basis of seniority-cum-merit from amongst the 52 persons who had obtained minimum marks and had been called for interview. It was provided that those of the respondents (4 to 15, vis-a-vis who order dated 17.09.2005 was quashed) who would continue in service on such reconsideration, the quashment of their promotion orders shall not constitute as a break in their service and would be treated to have continued in the service in Scale-II post. In other words, in simplistic terms, it meant that on reconsideration of the competing 52 Scale-I officers for promotion against the 23 available Scale-II posts on the basis of seniority-cum-merit, if any of the respondents 4 to 15 therein would come in the promotion list on the basis of their seniority, the quashment ordered by the Court would not take effect in their case and they would be deemed to have continued on Scale-II posts without break. As regards others from amongst respondents 4 to 15, their promotion orders stood irreversibly quashed. 8. When such exercise of reconsideration was undertaken by the respondent-Bank, four of the 12 persons (who figured as respondents 4 to 15 in those writ petitions), including the present writ petitioners, could not make it to the promotion list on the basis of their seniority and in their place four of the earlier writ petitioners got into the list in question. Resultantly, the condition of reversibility of quashment of order dated 17.09.2005 ordered by the Court did not apply to them. Once the promotion order vis-a-vis them stood quashed, their restoration to the original position as it existed prior to 17.09.2005, in compliance of the judgment of the Court, was automatic. If the respondent-Bank in its order dated 19.11.2012 has mentioned that "the officers mentioned below who were previously promoted vide order dated 17.09.2005 from Scale-I to Scale-II shall be deemed to have been restored back to Scale-I with effect from 17.09.2005", the order or such statement therein would not give a cause to the petitioners to raise any grievance against the said order. This order was simply a follow up action in implementation of the judgment of the Court. Questioning such an order would tantamount to raising a grievance against the judgment of the Court, which cannot be allowed. Curiously, when the petitioners had the opportunity to challenge the judgment dated 20.08.2009 rendered by the learned Writ Court; they did not prefer any appeal against the said judgment. Meaning thereby, they had accepted the judgment. That being the case, they cannot now turnaround and question the order dated 19.11.2012 which only implements the judgment of the Court. In that view of the matter, the sand castle sought to be raised by the petitioners in the shape of the claims made in the present writ petition to that extent as briefly summarised in paragraph 5 above would not stand. 9. It also needs to be observed here that the petitioners cannot derive any advantage out of the misinterpretation that was placed by the respondent-Bank on the relevant Rules in their pleadings before the learned Writ Court in the earlier writ petitions or the stand taken by it in the Letters Patent Appeals. Such misinterpretation placed thereon, or the stand taken, by the respondent-Bank was categorically repelled and rejected both by the leaned Writ Court in its judgment dated 20.08.2009 as well as by the Division Bench while dismissing the LPAs filed against the said judgment. Such misinterpretation placed thereon, or the stand taken, by the respondent-Bank was categorically repelled and rejected both by the leaned Writ Court in its judgment dated 20.08.2009 as well as by the Division Bench while dismissing the LPAs filed against the said judgment. The assertions and statements made in paragraph 12 of the present writ petition that "the promotions of the petitioners being legal having regard to the interpretation place(d) on rules by the Bank" and that "the stand taken by the respondents in the reply filed to the writ petitions and LPAs in itself is indicative of the fact that the promotions of the petitioners at best can be described as irregular", tantamount to an unwarranted lament on the judgments of the learned Writ Court as well as the Division Bench. Once such argument on the connotation of the Rule position was duly considered by the Court and rejected, it is not open to the petitioners to again rely on such argument in a manner as is diametrically opposed to the finding recorded by the Court. 10. It was argued that since the petitioners were declared successful in the selection process, were promoted as Scale-II Officers in 2005, had completed their probation, were confirmed on the post, had worked as Scale-II officers for seven years from 17.09.2005 to 19.11.2012 and thereby had gained experience for more than seven years, the proper course for the respondents was to keep the promotion of the petitioners intact after promoting the writ petitioners (in the earlier writ petitions) against the available Scale-II posts. On the same analogy, it is also contended that the petitioners are also entitled to be promoted to Scale-III posts. 11. The aforesaid claims of the petitioners are again based on a gross misconception of law. Once the order dated 17.09.2005 to the extent it related to them stood quashed by the learned Writ Court by judgment dated 20.08.2009 which judgment was upheld in the LPAs preferred by the respondent-Bank, the petitioners cannot claim any benefit in terms of the order dated 17.09.2005 or derive any advantage of they having functioned as Scale-II officers. Therefore, there was no occasion for, or question of, the respondent-Bank to allow the petitioners to continue on Scale-II posts, since their very order by virtue of which they had come to occupy the Scale-II posts was non-est. Therefore, there was no occasion for, or question of, the respondent-Bank to allow the petitioners to continue on Scale-II posts, since their very order by virtue of which they had come to occupy the Scale-II posts was non-est. As a necessary corollary, the petitioners cannot claim experience on the said post. Consequently, their claim of being eligible for promotion to the Scale-III posts on the basis of such non-existent experience is absolutely an illusion founded on misconception of law and fact. 12. Now, let me come to the most crucial question involved in the matter, it is the case of the petitioners that while they were working as Scale-II officers pursuant to order dated 17.09.2005, the respondent Bank during the pendency of the writ petitions, conducted another selection process whereby 12 Scale-I officers, junior to the petitioners, were promoted as Scale-II officers in the year 2008. Again, during the pendency of the LPAs preferred by the respondent Bank against the judgment dated 20.08.2009, another selection process was conducted in 2010 whereby five more Scale-I officers junior to the petitioner were promoted as Scale-II officers. Since on the relevant dates the petitioners were functioning as Scale-II officers, they did not participate in the two selection processes undertaken by the respondent-Bank. However, when their promotions were quashed by reason whereof they have come to be reverted back to the position as it existed prior to 17.09.2005, an anomalous situation arose pursuant whereto, whereas the petitioners are working as Scale-I officers, their juniors are holding the Scale-II posts. It is submitted by learned counsel for the petitioners that such a situation cannot be countenanced by law. 13. Per contra, it is the case of the respondent-Bank that the petitioners failed to defend their promotions and participate in the proceedings before the Court in the earlier writ petitions filed against them. They did not even file any appeal against the judgment of the learned Writ Court. It is submitted that no grievance can be raised by the petitioners against the respondent-Bank. It is also submitted that the petitioners could not be adjusted over and above the officers promoted to Scale-II during the years 2008 and 2010, because they did not participate in the relevant selection processes. 14. It is submitted that no grievance can be raised by the petitioners against the respondent-Bank. It is also submitted that the petitioners could not be adjusted over and above the officers promoted to Scale-II during the years 2008 and 2010, because they did not participate in the relevant selection processes. 14. It is the admitted case of the petitioners that promotions from Scale-I to Scale-II posts are made pursuant to selection process conducted in that behalf by the respondent-Bank in terms of the Rules governing the subject. It is also the admitted position that if a Scale-I officer does not participate in the selection process or fails to obtain the minimum percentage of marks, he cannot claim promotion, notwithstanding the fact that he may be senior to the participant candidates. Admittedly, the petitioners did not participate in the 2008 or 2010 selection processes. The question is whether the non-participation of the petitioners in the 2008 and 2010 selection, processes is attributable to the respondent Bank? Even if so, then the vital question that would arise is whether the petitioners are entitled to any of the reliefs prayed for by them in this petition? 15. The appointment and promotion of the officers and employees of the respondent-Bank are governed by the provisions of the Regional Rural Banks (Appointment and Promotion of Officers and Employees) Rules, 2010 (for short, the Rules). Rule 6 of the Rules under the caption filling up of vacancies' provides that all vacancies determined under Rule 5 by the Board shall be filled by promotion or direct recruitment in accordance with the provisions contained in the Rules and Third Schedule thereto. Item II of the Third Schedule deals with Officers of Middle Management (Scale II). For purposes of promotion to the said Scale, the zone of consideration is provided to be "three times the number of vacancies including repeaters". The selection process as prescribed in the Third Schedule provides that the selection shall be on the basis of performance in the written test, interview and performance appraisal reports for preceding five years as per the division of marks given there under. It is also established by record that as and when such posts in the respondent-Bank are required to be filled up, the required number of the Scale-I officers, as per seniority, are called to appear in the written test. 16. It is also established by record that as and when such posts in the respondent-Bank are required to be filled up, the required number of the Scale-I officers, as per seniority, are called to appear in the written test. 16. In the instant case, when the selection process commenced in 2008 and/or 2010, there was no occasion for the respondent-Bank to have called the petitioners to appear in the written test, since they were already holding Scale-II posts. However, since the promotion of the petitioners as Scale-II officers was under challenge before the Court at the relevant times (both in 2008 and 2010), it was for them to decide whether to take the risk of not participating in the selection processes. They ought to have been cautious enough to secure their interests by seeking participation in the selection process without prejudice to their claims arising out of order dated 17.09.2005. They could have even sought appropriate directions from the Court to defer the conduct of the selection process till the writ petitions were decided The petitioners have not done anything like that and have allowed the opportunity to secure their interests to pass by. In that view of the matter, the non-participation of the petitioners in the 2008 and 2010 selection processes cannot be attributed to the respondent Bank. 17. Even when the earlier writ petitions filed against them were decided on 20.08.2009, the petitioners could have well imagined the outcome of the process of reconsideration to the promotions on the basis of seniority-cum-merit that was required to be accorded by the respondent-Bank in terms of the Court direction. They could have apprised the learned Writ Court of the anomalous situation that was to arise vis-a-vis them and could have sought appropriate orders for the conduct of a special selection process for them in the year 2009 itself. They could even seek appropriate relief to protect their rights and interests before the Division Bench by filing Letters Patent Appeals. They have not done even that. That was the appropriate time for the petitioners to take the necessary measures to secure their rights and interests. They had even an opportunity to seek appropriate orders in that behalf in the Letters Patent Appeals filed against the judgment dated 20.08.2009 by the respondent-Bank. They have not done even that. That was the appropriate time for the petitioners to take the necessary measures to secure their rights and interests. They had even an opportunity to seek appropriate orders in that behalf in the Letters Patent Appeals filed against the judgment dated 20.08.2009 by the respondent-Bank. The petitioners have unmindfully allowed all the opportunities those have come in their way to seek protection of their interests, to pass by smoothly. The representation made after the respondent-Bank proceeded with implementation of the judgment of the learned Writ Court dated 20.08.2009 read with the Division Bench judgment dated 14.09.2012 was inconsequential. The petitioners shall be deemed to have acquiesced to the situation. 18. Strangely, the petitioners have not challenged the selection process of 2008 or 2010. They have not challenged the promotion of any of their juniors. They have not impleaded any of their juniors as party respondents. Most importantly, it is not their case, nor do they seek any relief of the nature, that the respondent-Bank is obliged to hold a separate selection process as against the 2008 or 2010 selection processes in their respect to provide the them a level field and an opportunity equivalent to and at par with their juniors. Instead, the petitioners have prayed for quashing order bearing No. EDB/HO/KJ/Per/131/2012-13, dated 19.11.2012 to the extent it restores the petitioners back to Scale-I posts with effect from 17.09.2005, which relief cannot be granted, since the said order has been issued by the respondent-Bank only in implementation of the judgment dated 20.08.2009 passed by the learned Writ Court which was later upheld by the Division Bench in terms of judgment dated 14.09.2012. The petitioners have further prayed that it be declared that the promotion of the petitioners against the post of Scale-II is protected, below that of the writ petitioners of SWP No. 981/2005, SWP No. 9.993/2005, SWP No. 1144/2005 and SWP No. 1650/2007 on account of availability of Scale-II post and the fact that the officials who are juniors to the petitioners have been promoted against the Scale-II in the year 2008 and 2010. As seen above, the judgment of the learned Writ Court protected the promotion of only those of the respondents 4 to 15 in the earlier writ petitions as would come within the list of promotees for filling up of the 23 Scale-II posts which was to be prepared on reconsideration on the basis of seniority-cum-merit. The Court did not permit filling up of any post beyond the 23 vacancies for which the selection process had been initiated and completed. In any case, any post that has fallen vacant after the 2010 selection process cannot be directed to be utilized dehors the Rules for adjustment of the petitioners. Similarly, the prayer of the petitioners that quashing of order dated 17.09.2005 to the extent it related to them be not construed as break in their service against Scale-II posts from 17.09.2005 to 19.11.2012, and that the petitioners be directed to be considered for promotion to Scale-Hi officer is totally unfounded, based on misconception and not countenanced by the judgment of the learned Writ Court passed in the earlier writ petitions. Resultantly, none of the reliefs prayed for by the petitioners in the writ petition can be granted in their favour. 19. In light of the above discussions, no ground for admission of the writ petition is made out. This petition is, accordingly, dismissed in limine. This also disposes of the connected CMP No. 2536/2013. Interim direction dated 02.09.2013, extended from time to time, is vacated. No order as to costs.