JUDGMENT : 1. In both the writ petitions Government Order No. 56-Agri of 2016 dated 16.02.2016 is under challenge. In terms of the said order seniority issue has been re-opened with the object of rectifying the mistake committed while preparing and notifying the seniority list of HODs (Horticulture Development Officers). Background of the case:- 2. Recruitment process had been initiated as a result whereof Public Service Commission had made recommendations for appointment of 97 HODs under direct recruitment quota on 19.03.2001, same was accepted and they were appointed vide Government order Nos. 110-Agri of 2001 dated 16.04.2001, 136-Agri of 2001 dated 24.05.2001 and 144-Agri of 2001 dated 11.06.2001. Due to non-joining of some of the candidates and in pursuance of the directions of the High Court, Public Service Commission made recommendations regarding appointment of more candidates who were also appointed vide Government order No. 99-Agri of 2008 dated 09.04.2008 and Government Order No. 296-Agri of 2008 dated 16.10.2008. Following the Reservation Rules, the candidates belonging to various categories, who had made the grade, were appointed which also include present petitioners. 3. Vide Government Order No.257-Agri of 2003 dated 17.09.2003 final seniority list of Gazetted Officers of the Jammu and Kashmir Horticulture Department was issued in accordance with roster position. Subsequently one more Government order No. 04-Agri of 2010 dated 08.01.2010 was issued regarding final seniority list of the Gazetted officers in view of certain developments as referred to in the order itself. In short the final seniority list, first on 17.09.2003 and then second on 08.01.2010, has been issued. 4. The official respondents noticing that the mistake has crepted in while issuing the said seniority list initiated process for rectifying the error and in the process after obtaining opinion from the Law Department and GAD (General Administration Department) have issued order impugned wherein it is specifically mentioned that instead of issuing appointment orders on the basis of merit obtained by the candidates in the Public Service Commission these orders were issued on the basis of the reservation roster, thereby placing less meritorious category candidates selected against reservation quota over and above the meritorious candidates selected against open merit, as a result whereof the candidates selected on the basis of reservation with inferior merit continued to be indicated higher up in the seniority list viz. the candidates (HODs) selected in the open category with the superior merit. the candidates (HODs) selected in the open category with the superior merit. In the first seniority list, the candidates who were appointed in the year 2008 vide Government order No. 99-Agri of 2008 dated 09.04.2008 and Government Order No. 296-Agri of 2008 dated 16.10.2008 were not mentioned that is why the second final seniority list had been issued in the year 2010. 5. Respondents after examining the entire position including the Reservation Rules and applicability of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, have finally observed that in order to correct the mistakes fresh tentative seniority list of HODs as were appointed in the year 2001 shall be issued in accordance with Rule 24 of Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956. It has also been mentioned therein that the officers aggrieved, if any with the tentative position assigned to them in the seniority, if they so chooses, shall represent along-with the facts and material in support of their claim to the Government within a period of 15 days from the date of issue of the order. Aggrieved petitioners instead of filing objections have filed the instant two writ petitions. 6. The centre of controversy for determination is as to whether seniority could be fixed as per the merit of all the candidates including the candidates belonging to reserved categories or whether it could be fixed in accordance with roster position. 7. Learned counsel for the petitioners with all vehemence highlighted and projected that the settled seniority cannot be unsettled after a long gap of 15 years; buttressing the submission would submit that the final seniority list has been issued vide Government order No. 257-Agri of 2003 dated 17.09.2003 and later on for inclusion of those candidates who were appointed in the year 2008 fresh seniority list in the year 2010 was issued vide Government order No. 04-Agri of 2010 dated 08.01.2010. On the basis of the seniority, so fixed, petitioners have been placed in the next higher position on Incharge basis and in case the settled seniority is unsettled that will have direct impact of jeopardizing their legitimate rights. 8. The argument of learned counsel for the petitioners at the first blush viz. unsettling the settled seniority after a long gap appears to be very attractive but on scrutiny is difficult to be accepted. 9. 8. The argument of learned counsel for the petitioners at the first blush viz. unsettling the settled seniority after a long gap appears to be very attractive but on scrutiny is difficult to be accepted. 9. The final seniority list of 2003 followed by seniority list of 2010 is totally in deviation and is in consistent with the law as laid down by the Hon’ble Apex Court in the judgment captioned Bimlesh Tanwar Vs. State of Haryana 2003(2) Supreme 699 , wherein earlier judgment supporting the cause of the petitioners herein captioned P.S.Ghalaut Vs. State of Haryana & ors., has been overruled. Para 35 of the said judgment is advantageous to be quoted:- “35. P.S.Ghalaut vs. State of Haryana & ors. [ 1995 (5) SCC 625 ] relied upon by Dr. Chauhan, is a decision rendered by a two judge Bench. In that case Rule 13 of the Rules envisaged that the seniority inter-se of members of the service shall be determined by the length of continuous service on any post in the service: provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority. Despite the said Rule, it was held: “Take for instance vacancies Nos. 1 and 6, as pointed out in the Chief Secretary’s letter have admittedly been reserved for scheduled castes. Suppose recruitment was made to fill up ten vacancies, three candidates from scheduled castes were selected on the basis of reserved quota. The question is whether the first candidate will be put in the quota allotted to the scheduled castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and third candidates he will not get the placement in the roster, reserved for scheduled castes i.e. Nos. 1 and 6 points. Consequently candidates Nos. 2 and 3 will get the placement at Nos. 1 and 6 and the first candidate will get the placement in the order of merit alongwith the general candidates according to the order of merit maintained by the Selection Committee or the Public Service Commission. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for scheduled castes at Point No.1 in the roster. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for scheduled castes at Point No.1 in the roster. Equally, though general candidate is more meritorious in the order of merit prepared by the Public Service Commission or the Selection Committee, when the appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid and is not arbitrary.” 10. In order to make it clear it shall be advantageous to refer to the Reservation Rules as to what is prescribed. Reservation in service is in tune with the constitutional scheme and it is in the same background in the State of Jammu and Kashmir, Reservation Rules of 1994 came into force on 26.06.1994. Part II of the said rules provide for reservation for appointment by direct recruitment, whereas Rule 14 provides to give effect to the reservation in respect of each service, class, category or grade; 100 point roster has been prepared but viz. fixation of seniority nothing has been prescribed therein, however, the petitioners are governed by the J&K Horticulture Gazetted Recruitment Rules, 2002. Rule 10 of the said Rules provide that the seniority of the members of the service shall be regulated under the J&K Civil Services (Classification, Control & Appeal) Rules, 1956. Rule 24, Clause(1), Note 1(b) of the said Rules is relevant to be quoted:- “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 selections.” 11. It provides that in case of direct recruits the seniority has to be prepared on the basis of merit, which they have obtained at the time of the competitive examination, so in effect both Public Service Commission as well as appointing authority after giving due representation to the reserved categories as per the roster positions were to issue appointment orders in order of merit. 12. The object of Reservation Rules is to give representation which has to be in accordance with roster position. Reservation Rules of 1994 nowhere provide that the seniority has to be maintained as per the roster position. On the other hand Rule 10 of the Horticulture Rules, 2002 read with Rule 24 of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956, the seniority has to be maintained in accordance with merit. In the Reservation Rules of 2005, same position has been prescribed. Rule 31 of the Reservation Rules of 2005 is relevant to be quoted:- “Seniority As hither to, the rosters prescribed for direct recruitment/promotion shall only be an aid to determine the entitlement of different categories with regard to the quota reserved for them and these are not for determination of seniority: Provided that the inter-se seniority of the category candidates vis-à-vis general category candidates on their appointment by direct recruitment shall be determined strictly in accordance with the order of merit in the select list prepared by the Selection Authority in accordance with rule 7 of these rules and rule 24(b) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956: Provided also that the inter-se seniority of the category candidates vis-à-vis general category candidates in appointment by promotion shall be determined by order of the select list as per rule 11 of these rules in accordance with the merit/seniority in the feeding cadre and Rule 24(a) of Jammu and Kashmir Civil Services(Classification, Control and Appeal) Rules, 1956 where seniority is the basis for promotion. However, in respect of selection posts, the seniority on promotion shall be determined on the basis of the order of merit prepared by the Selection Authority.” 13. The contention of learned counsel for the petitioners that the law declared by the Hon’ble Apex Court has prospective effect not retrospective. However, in respect of selection posts, the seniority on promotion shall be determined on the basis of the order of merit prepared by the Selection Authority.” 13. The contention of learned counsel for the petitioners that the law declared by the Hon’ble Apex Court has prospective effect not retrospective. In view of the position of the case same pales into insignificance because the judgment has been rendered by the Hon’ble Apex Court in Bimlesh Tanwar’s case on 10.03.2003 whereas first seniority list has been issued vide Government order No. 257-Agri of 2003 dated 17.09.2003 then again vide Government order No. 04-Agri of 2010 dated 08.01.2010, so in essence the seniority list issued on the basis of roster position runs contrary to the law declared by the Hon’ble Apex Court in the month of March 2003. It is in the same background the Law Department has given opinion which is referred to in the impugned order, the following portion is relevant to be quoted:- “In view of the rule position, the action of the department by issuing appointment orders on the basis of reservation roster is in violation of rules and the law on the subject. There are catena of Apex Court judgments laying down law on the subject. The seniority list has to be prepared in accordance with the rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 which provides that the inter-se seniority of two or more persons appointed to the same service, class, category or grade simultaneously will, in case of those recruited direct, except those who do not join their duties when vacancies are offered to them, be determined according to positions attained by them in order of merit at the time of selection.” 14. The argument of learned counsel for the petitioners that the seniority cannot be unsettled; in case allowed to do so the vested rights of the petitioners will get infringed. 15. True it is but when the seniority list is issued in contravention to law which was in force at the time seniority list was issued more particularly when the judgment of Hon’ble Apex Court in Bimlesh Tanwar’s case was in existence. 16. Learned counsel for the respondents has rightly placed reliance on the judgment of the Hon’ble Apex Court rendered in Union of India & anr. Vs. 16. Learned counsel for the respondents has rightly placed reliance on the judgment of the Hon’ble Apex Court rendered in Union of India & anr. Vs. Narendra Singh 2008(2) SCC 750 , Para 28 shall be advantageous to be quoted:- “28. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In Indian Council of Agricultural Research & anr. v. T.K.Suryanarayan & ors., 1997(4) SCT 156: (1997)6 SCC 766 , it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules.” 17. Learned counsel for the petitioners while placing reliance on the Hon’ble Apex Court judgment rendered in Shiba Shankar Mohapatra & ors. Vs. State of Orissa & ors., 2010(12) SCC 471 , would submit that the long standing seniority cannot be disturbed at the belated stage. 18. The law as laid down by the Hon’ble Apex Court on seniority propositions has to be applied in the background of the facts and features of a particular case. In the reported judgment the aggrieved officers challenged the seniority position after a long gap which was not allowed because there was no explanation for delay. 19. In the case in hand, the position is altogether different. The official respondents of their own after noticing the mistake committed by them have initiated the process of rectifying the same which finally was rectified. For rectification of the genuine mistake law laid down by the Hon’ble Apex Court in the judgment of 2008(2) SCC 750 as referred to above has been taken care of and action so taken is clearly protected. 20. Learned counsel for the petitioners again highlighted that the petitioners on the basis of the seniority have been given higher responsibility on Incharge basis; in case said seniority is disturbed their present position will not sustain. 21. It is made clear that to hold position on Incharge basis is not any promotion. 20. Learned counsel for the petitioners again highlighted that the petitioners on the basis of the seniority have been given higher responsibility on Incharge basis; in case said seniority is disturbed their present position will not sustain. 21. It is made clear that to hold position on Incharge basis is not any promotion. I have gone through the orders wherein it is clearly mentioned that the said Incharge position shall be subject to clearance by the DPC, so as on date there are no vested rights of the petitioners because for promotion there are certain rules which govern the field and in the process it is not only the petitioners but others also who shall be in the zone of consideration to be considered. Seniority dispute infact gives riseto acrimonious situation much to the annoyance of the officers/officials and in the process their position gets disturbed. 22. It was rightly pointed out by the learned counsel for the respondents that the process for promotion is initiated, may be petitioners will also get promoted because the seniority is not the only criteria for promotion. In addition thereto vide order impugned itself all aggrieved officers have been given opportunity to represent against the tentative seniority list as has been afresh notified in terms of the order impugned; that course is still available to them. 23. The contention may be correct so far as Incharge seniority is concerned but so far as position of dispute of seniority on the basis of roster position is concerned, that virtually is closed not open for interference, rightly so because law has to be followed in its real sense. 24. Learned counsel for both the sides rendered their assistance; results are quite obvious i.e. there is no scope for any interference with the order impugned. However, when the process for promotion will be initiated in that eventuality if the petitioners also fall within the zone of consideration, their experience, which shall be recognized under rules, shall also be taken note of. 25. Petition succeeds, is disposed of as above along-with connected petition.