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2023 DIGILAW 270 (JK)

Bashir Ahmad Bhat v. State of J&K

2023-07-13

MOKSHA KHAJURIA KAZMI, N.KOTISWAR SINGH

body2023
JUDGMENT : MOKSHA KHAJURIA KAZMI, J. 1. This Intra Court Appeal is directed against the Judgment dated 18.02.2008, for short impugned Judgment, passed by the writ Court in a writ petition, SWP No. 120/2005, whereby the writ petition of the petitioner-appellant has been dismissed, seeking setting aside of the same on the grounds taken in the memo of appeal. 2. In order to appreciate the controversy as set out in the instant appeal as also in the writ petition, it is desirable that the facts that led to filing of the instant appeal is taken note of in brief, thus: Brief facts 3. Appellant is a member of the Kashmir Administrative Service. Prior to his induction into the Kashmir Administrative Service for short KAS, the appellant was serving as the member of J&K Employment Gazetted Service. In terms of the J&K Administrative Service Rules, 1979, the induction into the service had to be considered from amongst the eligible officers of the feeding services. Accordingly, the Selection Committee, for the purpose, was constituted, which considered the merit of all eligible officers for their induction and based on such consideration certain inductions were made to the exclusion of appellant-petitioner. The induction so made by the Selection Committee became the subject matter of litigation as some writ petitions were filed by the aggrieved, including the petitioner-appellant. These writ petitions were considered and decided by the writ Court by a common judgment dated 18.09.2002. The relevant portion of the said judgment is reproduced, for facility of reference, herein, thus: “Petitioners and respondents on consideration by the Selection Committee have been found equal in merit except Mr. Bukhari. The respondents 4 to 6 could be selected, only being senior as per Seniority List of 1986. All the promotes who were inducted have retired. Therefore, keeping in view that the respondents have not shown any reason for not adopting the method of preparation of Seniority List of 1985 for the year 1986 also, the petitioners, therefore, shall be entitled to the benefit of their notional induction to KAS service to the extent of three posts from the date of induction of respondents 4 to 6 and regular induction onwards from the date of their retirement as the petitioners have made out the grade of equal merit and could not be inducted only because the selectees were shown senior according to the seniority list of 1986. Petitioners shall also be entitled to other benefits except monetary benefits. Mr. M.A. Bukhari being meritorious to all as pleaded by the respondent General Administration Department, shall be shown inducted above all. Considering the facts of these cases and of the aforesaid writ petitions, wherein those petitioners have been held entitled to the benefit, I feel that petitioners being similarly situated are also entitled to the relief prayed for, for the same reasons. The petitioners are thus found entitled to the relief of equalization of pay scale from the date of issuance of the Govt. Order No. 1285-Gad of 1983 dated 20.8.1983 and further entitled to the benefit of seniority for purposes of their promotion and induction.” 4. The said judgment upon being challenged was upheld by the Division Bench as also the Supreme Court in terms of judgment dated 03.06.2003 and order dated 24.11.2003 respectively. It appears that subsequent to and in compliance of the above judicial pronouncements, the Government issued order No. 80-GAD of 2004 dated 20.01.2004, releasing the pay scale in favour of the appellant w.e.f. 20.08.1983. The appellant was thereafter placed in the timescale of Rs. 10000-15200 of the J&K Administrative Services from 01.01.2003. The order dated 20.01.2004, in terms whereof the pay scale was released in favour of appellant w.e.f. 20.08.1983, came to be modified by virtue of order No. 377-GAD of 2004 dated 11.03.2004, providing therein that the appellant-petitioner shall be deemed to have been inducted into Kashmir Administrative Service w.e.f. 23.09.1997 on notional basis and w.e.f. 01.01.2002 on regular basis, when the post became available. Subsequently, vide Government Order No. 894-GAD of 2004 dated 14.07.2004, the appellant-petitioner was shown to have been placed in the category of ‘Good’ by the Selection Committee and on the basis whereof his seniority came to be fixed at serial No. 270-A. 5. Being aggrieved of such placement, the appellant challenged the same in a writ petition SWP No. 120/2005, inter-alia on the grounds that the grading given to him is an outcome of illegal exercise of power by the respondents. The induction into KAS w.e.f. 01.01.2003, was modified to 23.09.1997, pursuant to and in compliance of the orders of the Court and of course on the basis of merit of the appellant. The induction into KAS w.e.f. 01.01.2003, was modified to 23.09.1997, pursuant to and in compliance of the orders of the Court and of course on the basis of merit of the appellant. The appellant-petitioner had been found suitable by only one Selection Committee on whose recommendation the appellant-petitioner was inducted into KAS in terms of order dated 24.01.2004. The order dated 11.03.2004, whereby the appellant-petitioner was ordered to be deemed to have been inducted into KAS from 23.09.1997, was issued only in compliance to the orders of the Court as there was no Selection Committee constituted for determining the entitlement of the appellant for his induction from the said date, viz. 23.09.1997. The relative merit/assessment of the appellant as was made by the Selection Committee that order dated 24.01.2004, was issued remained the same. 6. The claim projected by the appellant-petitioner was opposed by the respondents inter-alia on the grounds that the respondents in compliance to the direction of the Court dated 18.09.2002, released the grade in favour of the appellant in terms of Government order No. 80-GAD of 2004 dated 24.01.2004 w.e.f. 20.08.1983. The appellant was inducted into KAS on notional basis w.e.f. 23.09.1997 and on regular basis from 01.01.2002, the date when the vacancy had become available due to retirement of private respondent, without any monetary benefits vide order No. 377-GAD of 2004 dated 11.03.2004. Accordingly, the seniority of the appellant-petitioner was also fixed at serial No. 270-A, in the seniority list of KAS officers vide Government order No. 90-GAD of 1999 dated 22.01.1999 read with subsequent orders on the subject. The respondents had further stated in their reply that the appellant’s induction into KAS was made in terms of Government order No. 118-GAD of 2004 dated 24.01.2004, however, the said induction was given effect from 23.09.1997, while implementing the judgment of the Court and on the basis of assessment made by the Selection Committee, grading him as ‘Good’. The appellant-petitioner cannot turn around at this stage, accepting retrospective induction into KAS from 23.09.1997, on the one hand and seeking re-assessment of his service record, on which the Court had returned its finding in the year 2002, on the other hand. The appellant-petitioner is estopped from raising such issues on which the Court has already returned its finding, accepted by him at the relevant point of time. The appellant-petitioner is estopped from raising such issues on which the Court has already returned its finding, accepted by him at the relevant point of time. The Court cannot sit in appeal over the assessment made by the Selection Committee in respect of the officers while taking judicial review as the Court has only to see whether the decision is without malice or not based on extraneous considerations. 7. The writ Court after considering the matter and upon hearing the learned counsel for the parties, dismissed the writ petition of the appellant on the ground that the appellant did not object the grading at the relevant point of time and since the appellant-petitioner accepted the grading and the Government also acted upon the judgment inducting appellant-petitioner into KAS with retrospective effect, the appellant-petitioner is estopped from raising such plea through a separate writ petition now. The writ Court had further taken note of the fact that the appellant got his induction into KAS w.e.f. 23.09.1997 on the basis of judgment of the writ Court dated 18.09.2002, and the Selection Committee, on the basis of assessment has shown the appellant-petitioner at the proper place in the seniority list of KAS officers. The writ Court also has taken into consideration of there being no allegation of mala-fides against any member of the Selection Committee. 8. Aggrieved of the dismissal of the writ petition, the appellant has filed the instant appeal before this Court, challenging the same inter alia on the grounds that the issue before the writ Court was different to the one projected in the earlier proceedings. The appellant did not know about the grading given to him till the time the impugned order came to be issued, therefore, the appellant could not have challenged such grading in the earlier proceedings as there was no occasion for him to do so. The appellant in the earlier proceedings, as maintained by the respondents therein, was shown at par insofar as his assessment with respondents 4 to 6 is concerned. The gradings of the said respondents 4 to 6 was also not disclosed in the earlier proceedings, therefore, the writ Court erred in law in applying the principle of estoppel against the appellant. It was nowhere pleaded in the earlier proceedings that the appellant has been ranked as ‘Good’ therefore, the question of challenging such ranking did not arise. The gradings of the said respondents 4 to 6 was also not disclosed in the earlier proceedings, therefore, the writ Court erred in law in applying the principle of estoppel against the appellant. It was nowhere pleaded in the earlier proceedings that the appellant has been ranked as ‘Good’ therefore, the question of challenging such ranking did not arise. The appellant’s merit had to be assessed qua other eligible officers for which the service record of five years preceding the year of selection was required to be considered, which has not been done in the instant case as the respondents had specifically stated that the service record of the appellant preceding 1997 was not and is still not available. The appellant had produced ACRs of his three years preceding 1997, to demonstrate that he had to be ranked as excellent by the Selection Committee and subsequently placed at serial No. 44-C in the seniority list of KAS officers. The grading awarded in view of the non-availability of the record was arbitrary. The learned Single Judge has applied a principle of law, which is unsustainable on the basis of established facts and the issue. The appellant has been non-suited by the impugned judgment. The Government order No. 894-GAD of 2004 dated 14.07.2004, was issued in implementation of the decision rendered in the earlier proceedings wherein, the appellant, for the first time, was shown to have been ranked as ‘Good’ therefore, the appellant could not have challenged such grading in the earlier proceedings. The appellant had filed SWP No. 120/2005, in view of the orders passed by the Division Bench in LPA No. 113/2004, which was preferred against the dismissal order of contempt Court in contempt petition No. 353/2003. The Division Bench has specifically recorded that the order dated 14.07.2004, gives a fresh cause of action to the appellant-petitioner. The writ Court has not considered the order of the Division Bench at all, which has resulted in miscarriage of justice. The appellant had specifically pleaded in the writ petition that he was entitled to be ranked as ‘Excellent’ and not ‘Good’ and subsequently placed at serial No. 44-C in the seniority list of KAS officers, which constitutes mala-fides in law, therefore, the finding of the writ Court that the appellant had not alleged mala-fides against the Selection Committee is baseless. The appellant had specifically pleaded in the writ petition that he was entitled to be ranked as ‘Excellent’ and not ‘Good’ and subsequently placed at serial No. 44-C in the seniority list of KAS officers, which constitutes mala-fides in law, therefore, the finding of the writ Court that the appellant had not alleged mala-fides against the Selection Committee is baseless. The finding of the writ Court that opinion of the Selection Committee cannot be substituted by the writ Court is not in sync with the case set up by the appellant as the appellant had projected that the Selection Committee has not assessed his service record, leading to the formation of an opinion, which is improper and illegal. 9. We have heard learned counsel for the parties, went through the material made available, including the record as also the impugned judgment. We have also examined the judgment dated 18.09.2002, passed in batch of writ petitions, the lead case being SWP No. 1218/1993, titled Mohammad Ashraf Bukhari and Others vs. State and Others. 10. Mr. Z.A. Shah, learned senior counsel during the course of arguments referred to Rule 14 and 16 of the Jammu and Kashmir Administrative Service Rules, 1979, which, for facility of reference, are reproduced herein as under: “14. All appointments shall be made to the service and not against any specific post included in the cadre of the service. 16. Seniority: (1) The relative seniority inter se of persons appointed to the service shall be determined on the basis of the order in which names are arranged in the select list prepared under rule 8 of these rules. (2) The inter se seniority of those belonging to one and the same feeding service and who have been classified under rule 8 in the same category shall be determined by reference to their seniority in the feeding service. (3) The inter se seniority of those who belong to different services but have been grouped in one class by the selection committee under rule 8 shall be determined by reference to the service rendered at the time scale level of the feeding service. Wherever, the dates of appointment to the Time Scale are the same, the persons higher in age would be given seniority over the younger persons. Wherever, the dates of appointment to the Time Scale are the same, the persons higher in age would be given seniority over the younger persons. (4) The inter se seniority of the direct recruits on their promotion to the Time Scale, vis-a-vis those appointed by promotion/selection shall be determined in the manner in which the senior scale posts have to be allocated for promotion/selection/direct recruitment as prescribed in the rules. For this purpose a calendar year shall be taken as a unit for determination of the seniority. In case appointment of any group does not take place in a particular calendar year, such a group shall have no claim for relating its seniority with those appointed to the Time Scale in the previous year/years. (5) Seniority of the members of the service appointed to at its junior scale through competitive examination shall be regulated under the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956.” 11. The pith and substance of the case of the appellant is entirely based on the ranking awarded to him by the Selection Committee at the relevant point of time for his induction into KAS. It is the belief of the appellant, based on which a writ petition SWP No. 120/2005, dismissed in terms of the impugned judgment, had been filed, that an erroneous grading given to him has not only affected his timely induction into KAS, but has also resulted in his wrong placement in the seniority. The appellant projects that he did not know as to what his grading was before his induction into KAS and he came to know about such placement only when the order dated 20.01.2004, was issued and, accordingly, he challenged the same before the writ Court. 12. The appellant prior to filing of writ petition SWP No. 120/2005, has filed writ petition No. 3900/1997, decided on 18.09.2002, praying the following reliefs: “(a) a writ, order or direction including one in the nature of certiorari, quash the order Annexure ‘A’ so far as it pertains to induction of respondents (4) to (6) to Kashmir Administrative Service over the head of the petitioner and excluding him from the zone of consideration and induction. (b) a writ, order or direction including one in the nature of certiorari, quashing the seniority list - Annexure ‘E’ so far as it seeks to fix superior seniority of respondents 5 and 6 vis-a-vis the petitioner. (c) a writ, order or direction including one in the nature of mandamus, commanding upon the respondents to induct the petitioners into Kashmir Administrative Service in accordance with rules and on the basis of his superior seniority vis-a-vis the respondents (4) to (6) and issue formal orders of their induction into service with retrospective effect with effect from 23.09.1997 and according him all the benefits of seniority, pay and grade etc. etc. as attached to the post. (d) Any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents, with costs.” 13. It appears that the writ Court dismissed the writ petition of the appellant on the principle of estoppel, holding that the appellant is estopped in law to claim his excellent grading and subsequent placement at serial No. 44-C in the seniority list of KAS officers, as he opted not to seek it in the earlier writ proceedings. The writ Court has further taken a view that since the appellant’s induction into KAS and the date of effect given to such induction is based on the Court orders, therefore, the appellant cannot take what suits him and challenge that does not. The writ Court has further declined the relief on the ground that it cannot substitute the view of the Selection Committee, moreso, when there are no allegations of mala-fides against the Selection Committee. 14. The appellant has taken a plea while challenging the impugned judgment, that he did not know about his grading in the earlier writ proceedings as such, could not have agitated it at that time, therefore, the principle of estoppel is wrongly applied by the writ Court. The challenge to the impugned Judgment further hinges on the factum of the mala-fides having been impliedly or expressly alleged against the decision of the Selection Committee. 15. It needs to be emphasized herein that the appellant was ranked “Good” by the Selection Committee while ranking Mr. The challenge to the impugned Judgment further hinges on the factum of the mala-fides having been impliedly or expressly alleged against the decision of the Selection Committee. 15. It needs to be emphasized herein that the appellant was ranked “Good” by the Selection Committee while ranking Mr. M.A. Bukhari, another officer, as “very good.” No candidate falling in the consideration zone, including the appellant, questioned the said ranking, therefore, the appellant gladly accepted the ranking and his placement at par with other aspirants in the consideration zone: S. No. Name of the Officer 89-90 90-91 91-92 92-93 93-94 94-95 95-96 1. S.M. Sharma VG G G G G VG NA 2. M.A. Qadri G S S S G G NA good 3. M.L. Pandita G X X X G G NA 4. M.A. Darvesh G S S S G G NA good 5. M.A. Shahri E VG G G G G NA 6. B.L. Parimoo S X X X X X NA 7. M.A. Bukhari E G VG VG VG E NA 8. S.C. Gandotra G G G G G G NA 9. B.A. Wani G G G G G G NA 10. B.A. Bhat G S S S G G NA 16. The law on the principle of estoppel is no more res-integra having been deliberated many a times by the Courts of the country, including the Apex Court. It would, as such, be profitable to take a look at what the Supreme Court has held about the manner in which the principle of estoppel will come into play. The Supreme Court in case titled Rajasthan State Industrial Development and Investment Corporation and Another vs. Diamond and Gem Development Corporation Limited and Another, (2013) 5 SCC 470 , has laid down as to when the principle of estoppel will come into play. It would be profitable to reproduce paragraphs 15 and 16 of the said judgment herein: “15. A party cannot be permitted to “blow hot-blow cold” and “fast and loose” or “approbate and reprobate.” Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. A party cannot be permitted to “blow hot-blow cold” and “fast and loose” or “approbate and reprobate.” Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner, so as to violate the principles of, what is right and, of good conscience. 16. Thus, it is evident that the doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.” 17. It would appear from the perusal of the judgments supra that the principle of estoppel is not to be construed as a hard and fast rule with a narrow scope. It rather has to be seen in a broader perspective. It connotes that estoppel will not only apply in respect of an individual, who forgets to lay a claim to which he is entitled to at a particular time and then raises it after certain period, but it also applies to a person, who remains silent when it was time to speak. The Court is conscious that the appellant had filed few writ petitions relating to his service, be it seniority, induction into KAS, enhancement of quota of KAS induction for the feeding cadre to which he belonged etcetera. The subject has seen besides such writ petitions, such few contempt petitions and also some LPAs. While examining such proceedings, we came across certain orders where the grading of the appellant has somehow been referred. We think that such observations have not bothered the appellant, as such, have not been questioned. The subject has seen besides such writ petitions, such few contempt petitions and also some LPAs. While examining such proceedings, we came across certain orders where the grading of the appellant has somehow been referred. We think that such observations have not bothered the appellant, as such, have not been questioned. It further appears that the appellant has gladly accepted his induction into KAS as also his re-fixation of seniority as he continued to enjoy the usufruct of such arrangement, however, as he did not get the benefit, which he could have had if the re-fixation was made according to his wishes, therefore, he preferred to accept the one part of the order that suited him and challenged the other part of the order that appeared non beneficial. In that view of the matter, the finding returned by the writ Court, that the appellant is precluded to seek the relief prayed for in the writ petition on the principle of estoppel, cannot be brushed aside completely. 18. Be that as it may, even if the submission of the learned senior counsel for the appellant that the principle of estoppel was not attracted in the case, is accepted and the claim of the appellant is examined in absence of the application of principle of estoppel, the appellant would still not be getting the relief prayed for in view of the fact that the grading awarded by the Selection Committee comes within its exclusive domain and the Courts of law cannot sit in appeal over such decisions and substitute its opinion through a judicial review. Awarding an incumbent with “Good, Average, Outstanding, Excellent” is based on the assessment made by the Selection Committee on the basis of the material placed before it in this behalf. The Committee comprises of experts as per their expertise in the field, awards such gradings which in no way can be interfered with by the court of law unless the same is shown to be arbitrary and the Selection Committee is alleged to have acted with mala-fides. The instant case, as already stated, does not come within such parameters. The claim projected by the appellant further loses significance for the reason that there is no allegation of mala-fides against the Selection Committee. The instant case, as already stated, does not come within such parameters. The claim projected by the appellant further loses significance for the reason that there is no allegation of mala-fides against the Selection Committee. The learned senior counsel could not justify his submission as to how mere assertion made in the writ petition about wrong grading given by the Selection Committee implies mala-fides. The view taken by the writ Court on this count appears to be carrying weight, therefore, the same is endorsed by this Court. 19. We are guided in our view by the findings of the Apex Court laid down in case titled Tajveer Singh Sodhi and Others vs. State of J&K and Others, MANU/SC/0314/2023 wherein their Lordships have held that the decision of the selection committee can be interfered with on limited grounds i.e. illegality, patent material irregularity in the constitution of the committee, or its procedure vitiating the selection, or proved mala-fides affecting the selection. In the very same authority, the Apex Court has further held that the courts have no expertise to assess the decision of the Selection Committee who have got the requisite expertise. It would be profitable to reproduce paragraph 12.1 of the said judgment herein: “12.1 Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ Petitioners, which are based on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted either 18 marks or 20 marks out of 20. (ii) that although the writ Petitioners had performed exceptionally well in the interview, the authorities had acted in an arbitrary manner while carrying out the selection process, would not hold any water.” 20. The court feels constrained to record herein that the record made available by the learned senior AAG is deficient in material particulars and despite requests for making available the information of which mention is made in the records submitted, the same has not been furnished. 21. The appellant, as would appear from the material placed before us, has got his induction into KAS on the basis of the court orders and the placement that he got subsequent to his induction has also been accepted by him without any demur as he continued to discharge his duties inasmuch as the appellant is stated to have already superannuated from service and has got the benefit to which he was held entitled to by the Court. 22. The documents on the basis whereof the appellant projects his case to show that he has been graded “Excellent” for the year 1996 does not inspire confidence of the Court, despite there being nothing on record or in the reply to controvert the same, in that it cannot outweigh the proceedings of the Selection Committee conducted while awarding grading to the appellant which is obviously based on the official record though missing, but reflected in the reply filed by the respondents on affidavit. The inability of the official respondents to bring any documentary proof in support of the grading awarded by them to the appellant cannot work to their disadvantage inasmuch as the appellant endeavours to produce a document of his liking for its endorsement by the Court. The inability of the official respondents to bring any documentary proof in support of the grading awarded by them to the appellant cannot work to their disadvantage inasmuch as the appellant endeavours to produce a document of his liking for its endorsement by the Court. A full-fledged exercise, based on verified official documents, is undertaken by the Selection Committees to award grading to the Government officers, which can neither be disregarded nor rendered insignificant merely for the reason that the records pertaining to such exercise are not available. We are further persuaded to take such a view for the reason that the appellant, admittedly, has been a top ranked officer, who might have held many sensitive assignments in the Government machinery and in that view of the matter his ignorance, as pleaded, in respect of his grading appears to be just a manipulation. Moreso, when he had access to his APRs being an influential officer. It was within the knowledge of the appellant that he was graded lower/ or not at par with Mr. Bukhari, in terms of the Judgment of 2002 and reply filed by respondents on 05.11.1998, but despite that appellant never raised his claim but accepted his induction w.e.f. 1997 vide order dated 11.03.2004. There is nothing on the file to suggest that the appellant-petitioner was not aware of his grading as awarded in terms of communication dated 06.03.1997. The Court cannot lose sight of the communication dated 06.03.1997 and believe ipso facto that the same was not in the knowledge of the appellant prior to the issuance of order dated 11.03.2004. 23. Having regard to what has been said hereinbefore, the appeal is held to be devoid of any merit. Accordingly, while dismissing the appeal, we uphold the impugned judgment dated 18.02.2008 delivered in SWP 120/2005. Interim direction, if any, granted shall stand vacated. 24. No order as to costs.