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2015 DIGILAW 674 (JK)

Gulzar Ahmad Reshi v. State

2015-12-17

MUZAFFAR HUSSAIN ATTAR

body2015
Judgment : In SWP. No. 2235/2015, the petitioners are aggrieved of the seniority list of Patwaries working in District Anantnag, which has been framed by the Deputy Commissioner, Anantnag, on 4th August, 2015 (Annexure-C). The further prayer made in the writ petition is that respondents, more particularly respondent no. 4, be directed to issue fresh seniority list of Patwaris in District Anantnag and to place the petitioners above and below the private respondents at their proper places. It is also prayed that the revised list be forwarded to respondent no. 3 for finalization of District Level Seniority List of Patwaries. It is further prayed that official respondents be directed not to act upon the seniority list of Patwaries (Annexure-C), or the seniority list of any other district till all such seniority lists are made in accordance with the rules governing the subject. It is further prayed that respondents 4 and 5 be directed to implement the Government Order No. Rev(BNG)52 of 2015 dated th March, 2015 in letter and spirit. Further relief is sought that respondents 1 to 3 be restrained from constituting any DPC for making promotion of the Patrwaries to the next higher post i.e. Girdwar in Kashmir Division till the question of seniority is determined in accordance with the rules governing the subject particularly in accordance with the aforesaid Government order. Further prayer is made that respondent no. 4 be directed to transfer the Patwaries hailing from District Kulgam to their parent district in light of Government Order dated 9th March, 2015. It is also prayed that respondent no. 5 be directed to reframe the seniority list in accordance with the law. The Court on 13th October, 2015, while issuing notice in the writ petition provided that subject to objections and till next date before the Bench, status quo as on date be maintained. The petitioners have filed SWP. No. 2548/2015, wherein they have called in question the promotion order issued by respondent no. 3 vide No. 275-DIVK-E of 2015 dated 17th November, 2015 (Annexure-H). It has been also prayed that official respondents shall not proceed ahead in the matter on the basis of impugned promotion order and shall not allow the private respondents to function as Girdawars Qanoongos on the basis of impugned promotion order. 3 vide No. 275-DIVK-E of 2015 dated 17th November, 2015 (Annexure-H). It has been also prayed that official respondents shall not proceed ahead in the matter on the basis of impugned promotion order and shall not allow the private respondents to function as Girdawars Qanoongos on the basis of impugned promotion order. Further relief is sought that official respondents be prohibited from making promotion of Patwaries to the post of Girdawars Qanoongos in District Anantnag on the basis of impugned seniority list. The Court on 30th November, 2015, while issuing notice in this writ petition kept the impugned promotion order dated 17th November, 2015 in abeyance. MP. No. 03/2015 has been filed by applicants/private respondents 118 to 136 of SWP. No. 2548/2015, wherein they have prayed for vacation of interim Order dated 30th November, 2015. Paras 2 and 3 of the said application are taken note of:- “...2. That the writ petitioners on suppression of facts had been able to obtain the interim order dated 30th November, 2015 against the replying respondents which stay needs to be vacated to serve the interests of justice. In fact the writ petitioners have not only mislead this Hon’ble Court by presenting false and frivolous facts but have also deceived this Hon’ble Court by concealing the hiding the true and material facts. The Hon’ble Court because of bonafide believe has stayed the promotion of private respondents/applicants herein made in District Kulgam when the writ petitioners belong to District Anantnag and they have no right to challenge the promotion of District Kulgam. Hence the interim direction passed by this Hon’ble Court deserves to be vacated and writ petition deserves to be dismissed with exemplary costs. 3. That the petitioners have filed the present writ petition on false and fabricated grounds to mislead this Hon’ble Court. The petitioners have because of filing of above numbered writ petition have succeeded in obtaining the interim direction dated 30.11.2015. Since the petitioners have no prima-facie case nor any balance of convenience tilts in favour of the writ petitioners nor any loss has been caused to the petitioners, in fact passing of said interim has badly affected the service rights of the petitioners, therefore, interim direction passed by this Hon’ble Court on 30.11.2015 deserves to be vacated. Since the petitioners have no prima-facie case nor any balance of convenience tilts in favour of the writ petitioners nor any loss has been caused to the petitioners, in fact passing of said interim has badly affected the service rights of the petitioners, therefore, interim direction passed by this Hon’ble Court on 30.11.2015 deserves to be vacated. Since the petitioners have no, good, prima-facie or sound case, and unfortunately the petitioners have approached this Hon’ble Court with unclean hands and tried to mislead this Hon’ble Court by projecting false and concocted story before this Hon’ble Court...” Mr. M.Y.Bhat, learned counsel, appearing for the applicants/private respondents submitted that the applicants/private respondents are members of services of District Cadre Kulgam. The promotion order, which is impugned in SWP. No. 2548/2015, has been passed in their favour. Learned counsel submitted that the petitioners are members of District Cadre Anantnag. Learned counsel also submitted that in the first writ petition, the seniority list of the applicants/private respondents, which though is part of the writ record, has not been called in question. Learned counsel referred to Annexure-D of the earlier writ petition to show that the seniority list of Patwaries of District Kulgam has not been called in question either in the first writ petition or in the second writ petition. Learned counsel further submitted that the promotions to the posts of Girdawars Qanoongos are being made in respect of the posts from out of the respective District Cadres. Learned counsel submitted that the seniority list of the District Kulgam (Annexure-D) having neither been challenged in SWP. No. 2235/2015 nor in the present writ petition and applicants having not been made party respondents in the first writ petition, the order of the Court dated 30th October, 2015 passed in the first writ petition would not, thus, affect their right of consideration for being appointed by way of promotion on the post of Girdawars Qanoongos. Learned counsel also submitted that the petitioners in the second writ petition in fact have mislead the Court and for this reason the Court has passed the Order dated 30th November, 2015. Learned counsel also submitted that the order impugned in the second writ petition does not in any way affect the legal rights of the petitioners. Learned counsel also submitted that the petitioners in the second writ petition in fact have mislead the Court and for this reason the Court has passed the Order dated 30th November, 2015. Learned counsel also submitted that the order impugned in the second writ petition does not in any way affect the legal rights of the petitioners. Learned counsel accordingly prayed for vacation of the order dated 30th November, 2015, to enable the applicants/private respondents to reap the benefits of promotion order. Mr. G.Q.Bhat, learned counsel for the petitioners in both the writ petitions, invited the attention of the Court to Annexure-A of the second writ petition to indicate that the persons from both districts viz. Anantnag and Kulgam figure in the seniority list. Learned counsel also referred to the seniority list of the District Kulgam which is part of the first writ petition to indicate that some persons from District Anantnag figure in the seniority list. The sheet anchor of the argument of Mr. Bhat is that the Deputy Commissioners of Kashmir Division have not implemented the Government Order No. Rev(BNG)52 of 2015 dated 09th March, 2015, inasmuch as, all the Patwaries serving outside their districts have not been detached/reverted back to their parent Cadre viz. districts, where they stand initially appointed. Learned counsel submitted that until such time this Government order is implemented in letter and spirit and all the Patwaries are detached/reverted back to their parent District Cadres, no promotions can be made to the posts of Girdawars Qanoongos, inasmuch as, the seniority list has to be reframed after these Patwaries are detached/revered back to their parent District Cadres. Learned counsel also referred to Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010, for short (‘Act of 2010’) and submitted that Section 13 of the Act of 2010 defines the residence. As already stated, the grievances of the petitioners, who belong to District Cadre Anantnag, is that some other persons from District Kulgam figure in the seniority list, which has been issued in the year 2015 which is called in question in SWP. No. 2235/2015. As already stated, the grievances of the petitioners, who belong to District Cadre Anantnag, is that some other persons from District Kulgam figure in the seniority list, which has been issued in the year 2015 which is called in question in SWP. No. 2235/2015. In view of the pleadings of the first writ petition and for the reason that the applicants/private respondents were not impleaded as party respondents and could have not been impleaded, as such, they being members of the services of District Cadre Kulgam, and also none of them figure in the seniority list of District Cadre Anantnag. The grievances of the petitioners in the first writ petition is in respect of those persons who are from different districts and figure in the seniority list of District Cadre Anantnag. The Order dated 13th October, 2015 passed in the first writ petition would, thus, relate to the subject matter of that writ petition. It would not affect the service rights of the members of other districts including district Kulgam. It, prima facie, appears that Government Order dated 9th March No. 2015 was issued in the backdrop of the fact that some Patwaries appointed against the District Cadre posts were transferred to other districts from time to time. The Government directed for detachment/reversion of such Patwaries to their parent District Cadres. The seniority list is to be maintained in respect of all those members who are appointed in a particular district and are residents of that district. The competent Authority, while framing the seniority list, would not be prevented from determining the seniority of those members of services who have been attached in other districts, because they continue to be members of their parent District Cadres and their attachment in another district would not affect the right of the competent Authority to determine their seniority in their parent District Cadres. The seriousness, with which, the learned counsel for the petitioners argued in respect of Order dated 9th March, 2015, however, would not mean that the seniority lists which are framed in different districts of Kashmir Division would remain in limbo and the employees who have to get the service benefits would be deprived of the same because certain persons who belong to one district figure in the seniority list of other districts. As already stated, admittedly, there was no grievance against the applicants in the first writ petition. As already stated, admittedly, there was no grievance against the applicants in the first writ petition. In law the petitioners would not have any grievance against the applicants in the first writ petition because they belong to different district. The applicants have been promoted to the posts of Girdawars in their own district which is different than that of the petitioners. The petitioners cannot stall the promotion of persons belonging to other districts merely on the ground that the issue of seniority in respect of their district has not been settled. The members of services of other district Cadres cannot be held as hostages till such time the seniority of the petitioners in their own district is settled. Annexure-A of SWP. No. 2548/2015 has been issued in June, 2002. At that point of time Anantnag and Kulgam was one district. After bifurcation of districts, the seniority lists have been issued which are part of the record. The promotion of the applicants/private respondents, who have been impleaded as party respondents, does not affect any legal rights of the petitioners. Petitioners have no prima-facie case in their favour. Petitioners claim suffers from confusion worst confounded. For the above stated reason the Order dated 30th November, 2015, whereunder promotion order dated th November, 2015 has been kept in abeyance is vacated. List in the month of February, 2016. Meanwhile, pleadings be completed.