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2017 DIGILAW 885 (JK)

Peerzada Altaf Ahmad Shah v. State of JK

2017-09-26

ALI MOHAMMAD MAGREY, BADAR DURREZ AHMED

body2017
JUDGMENT : BADAR DURREZ AHMED, J. 1. The present appeals are directed against the judgment dated 30.05.2016 which has been delivered by a learned Single Judge of this Court in, inter alia, SWP No.1762/2015 and SWP No.2275/2015. The operative portion of the impugned judgment reads as under: - “13. For the above stated reasons, these writ petitions along with connected IAs are disposed of in the following manner: “(a) The official respondents are directed to undertake the exercise to find out as to which, amongst the selected/appointed candidates, qualified their Patwar Training Course Examination within the probation period and thereafter determine their seniority in accordance with the merit secured by them in the selection/ merit list prepared by the Service Selection Board at the time of their initial selection. Those Patwaries, who qualified the Patwar Training Course Examination beyond the probtation period, shall rank junior to those Patwaries, who qualified the said examination within the probation period, though they ranked below them in the initial Selection List prepared by the Service Selection Board. (b) After framing of fresh seniority list, in view of the aforesaid direction, the concerned official respondents shall amend the promotion orders, already made, and grant promotion to the Patwaries on the basis of the seniority list so framed. The concerned official respondents shall also, while amending/ framing the seniority list, ensure that the Government order No. Rev(NG)-52 of 2015 dated 09th March, 2015, is complied with; (c) The concerned official respondents to initiate and conclude the aforesaid exercise within eight weeks from the date copy of this order is received by them. (d) Till the aforesaid exercise is completed, the promotion orders made, shall remain undisturbed. Interim directions in all these petitions, shall stand vacated.” 2. The appellants are aggrieved by the aforesaid directions. It is an admitted position that the appellants were ranked higher on merit, as per the selection done by the Service Selection Board for the posts of Patwaries, than the private respondents in these appeals. However, the appellants qualified the Patwar Training Course Examination subsequent to the private respondents. The appellants had also qualified the Patwar Training Course Examination beyond the prescribed period of probation. The entire controversy is as to how the inter-se seniority between the appellants and the private respondents is to be determined. However, the appellants qualified the Patwar Training Course Examination subsequent to the private respondents. The appellants had also qualified the Patwar Training Course Examination beyond the prescribed period of probation. The entire controversy is as to how the inter-se seniority between the appellants and the private respondents is to be determined. The learned Single Judge noted the controversy and gave his reasons for the aforesaid decision as under: “11. The petitioners claim for their placement in the seniority list, at the appropriate place, would require to be determined. The petitioners, admittedly, rank junior to other selected candidates in the selection list prepared by the SSB. The petitioners are beneficiaries of the selection made by SSB. The selection has been made on the basis of merit of the competing candidates. The seniority of the appointed candidates, in the facts of these cases, in view of the mandate contained in rule 7 of the Rules of 1973, would depend on successful completion of the training course during the probation period. This view is taken in view of the mandate contained in rule 7 of the Rules of 1973 read with rules 22, 23 & 24 of the Rules of 1956. The appointed Patwaries, who have successfully qualified the Patwar Training Course Examination within the probation period, have to be assigned seniority on the basis of merit secured by them in the merit list prepared by SSB at the time of their initial selection. However, in view of the mandate contained in order of 1998, those Patwaries, who have qualified Patwar Training Course Examination after the period of probation, shall have to rank junior to the candidates, who have qualified it within the probation period but ranked junior to them in the selection list prepared by the SSB.” 3. It is evident from the above extract that the learned Single Judge placed reliance on an office order of 1998 (to be precise of 08.05.1998). Before we proceed any further, it would be necessary to notice the said office order which is extracted herein below: - “Subject: Appointment of candidates for the post of Patwaries and fixation of seniority. It is evident from the above extract that the learned Single Judge placed reliance on an office order of 1998 (to be precise of 08.05.1998). Before we proceed any further, it would be necessary to notice the said office order which is extracted herein below: - “Subject: Appointment of candidates for the post of Patwaries and fixation of seniority. I am directed to refer you to your letter No.102/(III)/970 dated 18.01.1998 regarding the subject cited above and to say that the candidates appointed against substantive vacancies by the concerned Deputy Commissioners on the recommendations of the Service Selection Recruitment Board got their inter-se seniority fixed in accordance with the position assigned to them in the respective merit list issued by the service selection recruitment board. In the event of failure, a candidate in the examination his position in the seniority would depend upon the period of probation prescribed for him in the appointment letter. Since the Patwar candidates are probationers for utilizing the requisite chances for qualifying the examination in accordance with the J&K Patwari Examination instructions. In case, the candidate has qualified the examination after the probation of two years he shall figure junior most to his batch and in case of failure then one candidate they shall figure junior most in their batch in the order of their seniority in the selection list. As regards the Patwaris who have been/ shall be appointed under the proviso of compassionate appointment Rules they shall be assigned the seniority on the basis of their date of joining/ appointment whichever is later.” 4. The question that arises is whether this office order can supplant the rules or not? The answer is obvious that it cannot unless the rules themselves give a specific power to the Financial Commissioner to do so. That, unfortunately for the private respondents, is not the case here. 5. We now need to examine the relevant rules. Seniority is to be determined as per the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Rule 24 of the said Rules specifically deals with seniority. The same is reproduced herein below: - “24. Seniority (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Rule 24 of the said Rules specifically deals with seniority. The same is reproduced herein below: - “24. Seniority (1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be. Note 1. The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force. Interpretation.—The words “date of first appointment” occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct any/ or passing of any examination or examinations and or tests: Provided that the inter se senioirity of two or more person appointed to the same service, class, category or grade simultaneously will, notwithstanding the fact that they may assume the duties of their appointment on different dates by reason of being posted to different stations, be determined,— (a) in the case of those promoted by their relative seniority in the lower service, class, category or grade; (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 an 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 selections; (c) as between those promoted and recruited direct by the order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the rules. Note 2. Any substantive appointments or permanent promotions made in any department prior to 15th May, 1953, will not be disturbed if otherwise in order unless such appointments or promotions are already the subject of any appeal, review or revision or otherwise pending decision. Note 2. Any substantive appointments or permanent promotions made in any department prior to 15th May, 1953, will not be disturbed if otherwise in order unless such appointments or promotions are already the subject of any appeal, review or revision or otherwise pending decision. (2) A member of a service, class, category or grade, unless he is reduced in seniority as punishment shall retain seniority in such service or grade as determined by sub-rule (1) notwithstanding any delay in the completion of his probation or his appointment as a member of such service, class, category or grade. (3) Where a member of any service, class, category or grade is reduced to a lower service, class, category or grade he shall be paced at the top of the latter unless the authority ordering such reduction directs that he shall rank in such lower service, class, category or grade next below any specified member thereof.” 6. On a plain reading of the above mentioned rule, it is evident that seniority is to be determined by the date of “first appointment”. The said expression has been interpreted in the provision itself to, inter alia, mean the date of first appointment on probation on a clear vacancy. Of course, in the case of probation, confirmation would be subject to good work and conduct and/or passing of any examination or examinations and or tests. 7. Rule 24(2) of the said Rules further stipulates that a member of a service, class, category or grade, unless he is reduced in seniority as a punishment, shall retain the seniority in such service or grade as determined by sub-rule (1) “notwithstanding any delay in the completion of his probation or his appointment as a member of such service, class, category or grade”. 8. We must also, for the sake of completeness, refer to Rule 7 of the Jammu & Kashmir Revenue (Subordinate) Service Recruitment Rules, 1973, because the learned counsel for the private respondents had placed reliance on the same. The said Rule 7 deals with probation and not with seniority. The same reads as under: - “7. Probation.-(1) Persons appointed, whether direct or by promotion to any class or category in the service shall be on probation for two years and their confirmation in the class or category shall be regulated under the provisions of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956. The same reads as under: - “7. Probation.-(1) Persons appointed, whether direct or by promotion to any class or category in the service shall be on probation for two years and their confirmation in the class or category shall be regulated under the provisions of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956. (2) During the period of probation, the probationers in Class I shall have to qualify in the prescribed departmental examination. (3) The Government may in the case of a person who fails to qualify in the departmental examination within the period prescribed in sub-rule (1) above, extend the period of probation by one year. A probationer, who does not pass the examination within the extended period, shall be liable to be discharged from service.” 9. It is evident from the above extract that Rule 7(1) stipulates that persons appointed, whether directly or by promotion, are to be on probation for two years and that their confirmation in the class or category is to be regulated under the provisions of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Sub-rule (2) of Rule 7 of the 1973 Rules stipulates that during the period of probation, the probationer in class I shall have to qualify the prescribed departmental examination and, sub-rule (3) enables the Government, in case a person fails to qualify in the departmental examination within the prescribed period of two years, to extend the period of probation by a further one year. It also stipulates that a probationer, who does not pass the examination even during the extended period, shall be liable to be discharged from service. 10. In the facts of the present case, all the Patwaries had cleared the departmental examination and completed their training. It is only that the private respondents had done so during the period of probation, whereas the appellants had done so during the extended period of probation/ after that period. The fact, however, remains that though the Government had the option to discharge some of them from service it did not do so and they were confirmed in their appointments as Patwaries. 11. In these circumstances, in our view, Rule 7 would not come to the aid of the private respondents nor work to the detriment of the appellants. The fact, however, remains that though the Government had the option to discharge some of them from service it did not do so and they were confirmed in their appointments as Patwaries. 11. In these circumstances, in our view, Rule 7 would not come to the aid of the private respondents nor work to the detriment of the appellants. In any event, the said Rule 7 of the 1973 Rules deals with probation and not with seniority. The specific rule which prescribes the mode of determining seniority is Rule 24 of the 1956 Rules, which we have already extracted above. Unfortunately, the learned Single Judge did not give effect to these rules but gave priority to the office order dated 08.05.1998, which can never be the case. Going by the Rules themselves and, in particular, Rule 24 of the 1956 Rules, it is evident that the seniority is to be determined by the date of first appointment, which in the present case, would mean the date of first appointment on probation on a clear vacancy subject, however, to subsequent confirmation. It is an admitted position that appointments of all the parties, the appellants and the private respondents, were subsequently confirmed. Therefore, the only factor for determining the seniority would be the date of first appointment. This position is further fortified by sub-rule (2) of Rule 24 of the 1956 Rules which makes it clear that unless a person is reduced in seniority as a punishment, he shall retain the seniority in the service as determined by sub-rule (1) of Rule 24 notwithstanding any delay in the completion of his probation etc. 12. We may also notice a Division Bench decision of this Court in the case of Nirmal Singh Bali & others v. Mohd Yousuf and others : 2012 (II) SLJ 342, wherein it was held that the seniority of the members of the subordinate service is governed by Rule 24 of the 1956 Rules, in terms whereof, the date of first appointment to the service determines the seniority of the members of the subordinate service. The Division Bench also observed as under: - “23. The Division Bench also observed as under: - “23. For all what has been said above, the Judgment and order passed by the learned Single Judge issuing directions to the State Respondents to settle the Seniority of the Members of the Jammu and Kashmir Excise and Sales Tax Service, on the basis of the passing of the prescribed Departmental Examination, cannot, therefore, be sustained and the respondents’ Writ Petition, SWP No.921/2010, being devoid of merit deserves to be dismissed.” 13. In the result, the decision of the learned Single Judge which is impugned before us has to be set aside and the appeals have to be allowed. This is so because seniority is to be determined in terms of Rule 24 of the 1956 Rules notwithstanding any delay on the completion of the probation period. Therefore, the seniority as determined on the date of first appointment by the Revenue Department on the basis of merit of the select list prepared by the Service Selection Board shall prevail. The consequence of this would be that SWP No.1762/2015 and SWP 2275/2015 shall stand dismissed. The appeals shall stand allowed and the position of the seniority shall be the same as was obtaining prior to filing of the writ petitions. 14. The appeals are allowed. There shall be no order as to costs.