JUDGMENT : Dhiraj Singh Thakur. SWP No.1350/2011 & SWP No.748/2009 Since common questions of law and fact are involved in the present petitions, we propose to decide the same by way of a common judgement and order. 1. With a view to understand clearly the issues that arise in the present petitions, it is necessary to state in brief the material facts:- 2. The J&K Public Service Commission initiated the process for recruitment against 50 vacancies of Munsiffs, as requisitioned by the High Court, by utilizing the roster point from 81 onwards on a 100 point roster. A notification dated 04.12.2001 was issued in this regard. Examinations were conducted and a select list was prepared in terms of Rule 13(2) of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967, which envisages that the candidates would be arranged by the Commission in the order of merit as disclosed by the aggregate marks including those obtained in viva-voce and that such of the candidates who were found by the Commission to be qualified in the examination would be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. 3. The Public Service Commission it is stated, vide communication dated 09.05.2003, based on the overall performance of the candidates in the written examination, viva-voce and the medical examination recommended the names of the candidates including the petitioners for appointment as Munsiffs. Pursuant to the recommendations by the Public Service Commission, appointments of the selected officers were made vide Government Order dated 06.08.2003 in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967. 4. The case set-up by the petitioners is that respondent No. 2 did not prepare, circulate or publish any seniority list, which would reflect their seniority position qua others, who had been appointed in the said selection process. It is stated that a request for framing such a seniority list fell on deaf ears and finally in the year 2011, when respondent No. 2 started the process for effecting promotions of 2003 batch to the next grade of Sub-Judge, it was learnt that there was a gradation/seniority list dated 01.06.2010, which was being made the basis for effecting promotions, which was not as per merit but as per roster for direct recruitment under Rule 5 of the Jammu & Kashmir Reservation Rules of 2005. Promotions made on the basis of the said gradation list in regard to respondent Nos. 3 & 4, to the post of Sub-Judge, it was claimed violated the seniority position of the petitioners relevant to their merit position obtained in the examination conducted by the Public Service Commission. 5. The petitioners would argue that the concept of reservation and fixation of roster points in terms of Reservation Rules of 2005 was distinct and that the same could not have been used for determining the inter-se seniority of the candidates. Reliance in this regard was placed upon Rule 31 of the Jammu & Kashmir Reservation Rules, 2005, which is as under:- “31. 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 viz-a-vis general category candidates on their appointment by direct recruitment shall be determined strictly in accordance with the order of the 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: ……………………………………………………………..” 6. Reliance was also placed upon the General Rules of seniority as provided under 24(1)(b) of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, which reads as under:- “24. Seniority:- (1) ………………..…………. (a) …………………. (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 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; (c) …………………………” 7. At this stage, with a view to understand the impact of the gradation-list prepared on the basis of roster points on the seniority of the petitioners, it is necessary to reproduce herein not only the merit list/select list prepared by the Public Service Commission, which forms Annexure-A to the writ petition, but also the gradation-list issued on 01.06.2010. The impact of the gradation- list can be assessed from Table-C on the petitioners. The impact of the gradation- list can be assessed from Table-C on the petitioners. Table -A : Merit List/ Select List Sr. No. Roll No. Name of Candidate Category G. Total (Marks) 1. - Amerjeet Singh Langeha RBA 646 2. 049 Sandeep Kour RBA 608 3. 082 Amit Kumar Gupta OM 604 4. 014 Sandeep Gandotra OM 603 5. 064 Anoop Kumar OM 597 6. 154 Farooq Ahmad Bhat OM 595 7. 138 Shabeer Ahmad OM 587 7A. - Arvind Sharma - - 8. 202 Yash Paul OM 573 9. 020 Imtiyaz Ahmed Lone OM 571 10. 117 Amit Sharma OM 570 11. 011 Khursheed Ul-Islam OM 569 12. 034 Arti Mohan OM 563 13. 147 Umi Kul Soom Mir OM 561 14. 107 Pawan Kumar Sharma OM 559 15. 141 Iqbal Ahmad Massodi OM 558 16. 072 Renu Dogra SLC 554 17. 079 Sudesh Sharma OM 552 18. 018 Spalzes Angmo ST 550 19. 042 Adnan Sayeed RBA 541 20. 100 Khem Raj OM 541 21. 201 Dinesh Gupta OM 540 22. 074 Parvaiz Iqbal OM 539 23. 165 Mir Afroz OM 537 24. 063 Prem Sagar OM 536 25. 016 Archana Charak OM 535 26. 160 Ab. Quayom Mir OM 533 27. 030 Manzoor Ahmad Zargar OM 532 28. 007 Yahya Firdoos Ahanger RBA 531 29. 098 Manoj Parihar RBA 504 30. 143 Muzaffer Iqbal Khan LAC 503 31. 013 Bashir Ahmed Munshi RBA 494 32. 025 Raja Mohammed Tasleem ST 485 33. 015 Manjeet Rai SLC 480 34. 058 Anjum Ara RBA 475 35. 002 Manzoor Ahmed Khan LAC 460 36. 181 Rajni Sharma RBA 447 37. 041 Madan Lal SC 436 38. 144 Ahsan Ullah Parvez Malik RBA 429 39. 146 Javed Ahmad Naik RBA 408 40. 121 Arun Kumar Kotwal RBA 379 41. 038 Vinod Kumar SC 379 42. 051 Sushil Singh SC 369 43. 039 Romesh Lal SC 367 44. 150 Mansoor Ahmed Lone RBA 340 45. 168 Mohd. Naseem RBA 333 Table-B : Gradation List (As on 01.06.2010) (In the grade of Rs. 10750-300-13150-350-14900) (ACP Scale) Sr. No. Name of the Officer D. O. B. Date of Entry in Service Date of Entry in Present Grade Date of Retirement Category 1. - - - - - - 2. - - - - - - 3. - - - - - - 4. - - - - - - 5. 10750-300-13150-350-14900) (ACP Scale) Sr. No. Name of the Officer D. O. B. Date of Entry in Service Date of Entry in Present Grade Date of Retirement Category 1. - - - - - - 2. - - - - - - 3. - - - - - - 4. - - - - - - 5. - - - - - - 6. - - - - - - 7. - - - - - - 8. - - - - - - 9. - - - - - - 10. - - - - - - 11. Amarjit Singh Lingha 12.12.1971 - - - - 12. Sandeep Kour 25.12.1969 - - - - 13. Amit Kumar Gupta 11.07.1973 - - - - 14. Yahya Firdous Ahanger 19.11.1969 - - - RBA 15. Sandeep Gandotra 14.06.1971 - - - - 16. Raja Mohd. Tasleem 04.05.1967 - - - ST 17. Anoop Kumar 20.03.1973 - - - - 18. Farooq Ahmad Bhat 01.08.1970 - - - - 19. Madan Lal 15.01.1971 - - - SC 20. Manoj Parihar 05.10.1972 - - - RBA 21. Shabir Ahmad 06.05.1968 - - - - 22. Arvind Sharma 05.11.1974 - - - - 23. Yash Pal Sharma 30.05.1973 - - - - 24. Imtiaz Ahmad Lone 13.03.1967 - - - - 25. Bashir Ahmad Munshi 05.04.1968 - - - - 26. Amit Sharma 10.10.1971 - - - - 27. Manjit Rai 18.01.1972 - - - SLC 28. Khurshid-ul-Islam 01.11.1967 - - - - 29. Anjum Ara 03.03.1970 - - - RBA 30. Arti Mohan 28.07.1973 - - - - 31. Rajni Sharma 26.07.1969 - - - - 32. Vinod Kumar 16.09.1969 - - - SC 33. Umi Kulsoom 15.02.1970 - - - - 34. Pawan Kumar Sharma 28.04.1968 - - - - 35. Ahsan-ullah Parvez Malik 18.10.1967 - - - RBA 36. Iqbal Ahmad Masoodi 18.01.1966 - - - - 37. Renu Dogra 27.05.1972 - - - - 38. Muzaffar Iqbal Khan 14.04.1972 - - - ALC 39. Sudesh Sharma 10.05.1972 - - - - 40. Javed Ahmad Naik 01.01.1970 - - - RBA 41. Spalzes Angmo 01.04.1968 - - - - 42. Adnan Sayed 25.12.1970 - - - - 43. Sushil Singh 16.04.1967 - - - SC 44. Arun Kumar Kotwal 02.03.1966 - - - RBA 45. Khem Raj 18.08.1972 - - - - 46. Dinesh Gupta 19.04.1975 - - - - 47. Javed Ahmad Naik 01.01.1970 - - - RBA 41. Spalzes Angmo 01.04.1968 - - - - 42. Adnan Sayed 25.12.1970 - - - - 43. Sushil Singh 16.04.1967 - - - SC 44. Arun Kumar Kotwal 02.03.1966 - - - RBA 45. Khem Raj 18.08.1972 - - - - 46. Dinesh Gupta 19.04.1975 - - - - 47. Parvaiz Iqbal 03.05.1975 - - - - 48. Mir Afroz 10.09.1972 - - - - 49. Mansoor Ahmad Lone 03.05.1966 - - - RBA 50. Prem Sagar 19.06.1968 - - - - 51. Archana Charak 18.01.1974 - - - - 52. Ab. Qayoom Mir 14.11.1970 - - - - 53. Ramesh Lal 15.05.1971 - - - SC 54. Manzoor Ahmad Zargar 25.11.1968 - - - RBA 55. Manzoor Ahmad Khan 27.03.1966 - - - - Table-C : Change in seniority position Sr. No. Petitioner’s Name Place in the Merit List of Batch 2003 Place given in Gradation list Downgraded by steps 1. Arvind Sharma 7A 12 4 2. Yash Pal 8 13 4 3. Imtiyaz Ahmed Lone 9 14 5 4. Amit Sharma 10 16 6 5. Khursheed-ul-Islam 11 18 7 6. Aarti Mohan 12 20 8 7. Umi Kulsoom Mir 13 23 10 8. Iqbal Ahmed Masoodi 15 26 11 9. Renu Dogra 16 27 11 10. Sudesh Sharma 17 29 12 11. Adnan Sayeed 19 32 13 12. Khem Raj 20 35 15 13. Dinesh Gupta 21 36 15 14. Parvaiz Iqbal 22 37 15 15. Prem Sagar 24 40 16 16. Archana Charak 25 41 16 17. Manzoor Ahmed Lone 35 45 10 Sr. No. Private Respondent’s Name Place in the Merit List of Batch 2003 Place given in Gradation Upgraded by Steps 1. Yahaya Firdose Ahanger 28 4 24 2. Raja Mohammed Tasleem 32 6 26 3. Madan Lal 37 7 30 4. Manoj Parihar 29 8 21 5. Bashir Ahmed Munshi 31 15 16 6. Manjit Rai 33 17 16 7. Anjum Ara 34 19 15 8. Rajni Sharma 36 21 15 9. Vinod Kumar 41 22 19 10. Ahsan Ullah Parvez Malik 38 25 13 11. Muzaffer Iqbal Khan 30 28 2 12. Javed Ahmad Naik 39 30 9 13. Sushil Singh 42 33 6 14. Arun Kumar Kotwal 40 34 6 15. Manzoor Ahmed Lone 44 39 5 8. Anjum Ara 34 19 15 8. Rajni Sharma 36 21 15 9. Vinod Kumar 41 22 19 10. Ahsan Ullah Parvez Malik 38 25 13 11. Muzaffer Iqbal Khan 30 28 2 12. Javed Ahmad Naik 39 30 9 13. Sushil Singh 42 33 6 14. Arun Kumar Kotwal 40 34 6 15. Manzoor Ahmed Lone 44 39 5 8. In the response filed by response No. 2, i.e. the J&K High Court, the stand taken was that after the promulgation of the J&K Reservation Rules of 1994 vide SRO 126 dated 22.06.1994, selections and appointments to the post of Munsiffs were made in the year 1994, 1997 & 2000. It was stated that according to Rule 14 of the Reservation Rules of 1994, a roster of 100 vacancies had to be maintained and the vacancies filled up from the select list in accordance with the Rules 14 & 15 of the said rules. It was stated that in the year 2001, 50 more vacancies were required to be filled up, for which a requisition was made to the J&K Public Service Commission by utilizing the roster from direct recruitment from point 81 onwards in terms of Rule 14 of the Jammu & Kashmir Reservation Rules of 1994. The High Court also took a stand that Rule 31 of the J&K Reservation Rules of 2005 had absolutely no application, inasmuch as, the selection of the petitioners had taken place before Reservation Rules of 2005 came into existence and that the petitioners were governed by the Reservation Rules of 1994. 9. This petition was heard and finally decided by a Division Bench of this Court vide judgement and order dated 27.11.2015. The said judgement and order however was challenged by the private respondents in SLP(C) No.3786/2016 titled “Vinod Kumar Bhagat and others Vs State of Jammu and Kashmir and others.” The Hon’ble Apex Court having considered the matter vide judgement and order dated 17.11.2021 set aside the judgement and order of the J&K High Court dated 27.11.2015 and was pleased to remand the matter for a fresh consideration. It was held that reference made to the decision in “Ashok Kumar and others Vs State of J&K and others” in SWP No. 1290/2014 was unnecessary, since no submission was urged on the basis of that decision by the petitioners before the High Court and further that while an analysis of the validity of the gradation-list was undertaken independent of the ratio in Ashok Kumar’s Case, the decision seemed to intertwine the reasoning on both aspects. Another important aspect which needs to be highlighted is in regard to the statement made by the learned counsel appearing for the High Court in the aforementioned proceedings before the Hon’ble Apex Court admitting that the impugned gradation-list was invalid. Based upon such a statement, the Hon’ble Apex Court was pleased to observe that the High Court on its administrative side was thus not precluded from taking a considered decision on that aspect of the matter. 10. The private respondents in the response have taken a stand that neither was there any gradation-list nor was there any seniority list and that reliance placed by the petitioners on the same was misplaced. It was stated that even as per the stand of the High Court, there was no merit list available with the High Court and further that in the absence of such a merit list, the issues cannot be adjudicated properly, especially when the Public Service Commission was not made a party respondent in the present proceedings. With regard to Rule 31 of the Reservation Rules of 2005, it was stated that the said rules do not have application at all in view of the fact that the selection of the petitioners and the private respondents was made during the currency of the Reservation Rules of 1994 and, therefore, it was sought to be emphasized that there was no obligation to comply with the provisions of Section 31 of the Reservation Rules of 2005. 11. In the backdrop of the aforementioned facts, the only question that arises for consideration is whether seniority ought to be fixed as per the merit determined by the Public Service Commission or whether it ought to be fixed in accordance with the roster points. This issue infact is no longer res integra. The Apex Court in “Bimlesh Tanwar Vs State of Haryana and others” reported in (2003)5 SCC 604 in paragraph 40 held as under:- “40. This issue infact is no longer res integra. The Apex Court in “Bimlesh Tanwar Vs State of Haryana and others” reported in (2003)5 SCC 604 in paragraph 40 held as under:- “40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the decision in P.S. Ghalaut does not lay down a good law.” 12. Needless to say that in “P.S. Ghalaut vs. State of Haryana & Ors,” reported in 1995(5) SCC 625 , the Apex Court held that it would be constitutionally valid even if the reserved category candidates though less meritorious in the order of merit maintained by the Public Service Commission, occupied the places assigned in accordance with the roster, even when they stole a march over some of the general candidates as regards seniority. What was held in paragraph 4 is reproduced hereunder:- “4. ……………………………………………………… …………………………………………………………Take for instance vacancy No. 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. The first one as general and second and third 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 roaster. 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 roaster, reserved for Scheduled Castes i.e. No. 1 and 6 points. Consequently candidates Nos. 2 and 3 will get the placement at No.1 and 6 and the first candidate will get the placement in the order of merit along with the general candidates according to the order of merit maintained by the Selection Committee or the Public Service Commission. Consequently candidates Nos. 2 and 3 will get the placement at No.1 and 6 and the first candidate will get the placement in the order of merit along with 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 roaster. 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 roaster, 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 roaster. 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.” 13. In the past, while it may be true that the High Court had been maintaining the seniority based upon the roster points, as mentioned under Rule 14 of the Reservation Rules of 1994 may be on the strength of the ratio of the judgment in P.S. Ghalaut, yet it cannot be ignored that the Apex Court on 10.03.2003 having declared the decision in P.S. Ghalaut as not laying good law on the subject, none of the authorities, including the High Court could have proceeded to make the roster points as the basis for determining the seniority and further make that a basis for promotions to the post of Sub-Judges. It needs to be reiterated that in the present case appointments of the selected officers were made in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967 vide Government Order dated 06.08.2003, i.e. much after the pronouncement of the judgment in Bimlesh Tanwar’s case. It was precisely for that reason that the counsel representing the High Court had admitted before the Apex Court that the gradation list was invalid, which is the subject-matter of challenge in the present petitions. 14. We are told that both the petitioners and the private respondents have since been promoted as Sub-Judges and, therefore, even when there was an initial challenge to the promotion of respondent Nos. 14. We are told that both the petitioners and the private respondents have since been promoted as Sub-Judges and, therefore, even when there was an initial challenge to the promotion of respondent Nos. 3 & 4 in the writ petition, no promotions would be effected if the seniority was directed to be fixed as per merit. 15. Having considered the matter in the light of the facts and the law discussed hereinabove, we hold as under:- (a) The gradation list dated 01.06.2010 to the extent, and insofar as, it pertains to the selection made by the Public Service Commission for the post of Munsiffs in reference to Notification No.PSC/Ex-2001/64 dated 04.12.2001, is quashed. (b) The respondent No. 2 is directed to re-frame the seniority list in regard to the selection process for the post of Munsiffs, pertaining to notification dated 04.12.2001, strictly in accordance with merit obtained by the selected candidates in the examination conducted by the Public Service Commission. (c) Such of the candidates, including the petitioners, who on account of the impugned gradation list were not promoted on time and, therefore, could not gain the requisite experience for appearing in the limited competitive examination in terms of the Jammu & Kashmir Higher Judicial Service Rules, 2009, would be held eligible to take such an examination, if another Civil Judge in the same post but lower in the reframed seniority list was eligible to take such an examination. 16. The writ petitions are, accordingly, disposed of.