Excelsior Correspondent
JAMMU, May 6: The High Court of Jammu & Kashmir and Ladakh has dismissed a writ petition filed by four Munsiffs seeking higher placement in the seniority list, holding that appointees accommodated against future vacancies cannot claim seniority over candidates appointed earlier against clear and available posts.
A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar delivered the judgment in SWP No. 1577/2018, filed by Tabassum Qadir Parray, Meyank Gupta, Sajad ur Rehman and Altaf Hussain Khan against the High Court of Jammu and Kashmir and others.
The petitioners were represented by Advocate Salih Pirzada. The High Court was represented by Advocate M I Qadiri while Government Advocate Waseem Gul, Advocate Showkat Ali Khan and Government Advocate Faheem Nisar Shah appeared for the respondent.
The petitioners had challenged the seniority list of Munsiffs issued by the High Court vide order dated November 19, 2011, claiming that they should have been placed at serial numbers 16, 17, 18 and 26 respectively on the basis of their merit position in the selection list prepared by the J&K Public Service Commission.
The controversy arose out of a selection process initiated in 2008 for recruitment of Munsiffs. The High Court had requisitioned 31 vacant posts, including four backlog vacancies under the Scheduled Tribe category. However, due to an error in the vacancy reference, 35 posts were notified by the PSC and 35 candidates were recommended.
The Court noted that only 31 clear vacancies were actually available. Therefore, 31 candidates were appointed as Munsiffs vide Government order dated April 1, 2011, while the petitioners were not appointed at that stage as they were beyond the available vacancies.
Later, after fresh vacancies arose due to promotions, the petitioners were accommodated and appointed as Munsiffs vide Government order dated September 29, 2011. In the seniority list issued on November 19, 2011, they were placed below those who had been appointed earlier.
The petitioners argued that since their names figured in the same select list and their merit position was higher than some of the appointed candidates, their seniority ought to be fixed on the basis of merit rather than the date of appointment.
Rejecting the argument, the Division Bench held that the petitioners were not appointed simultaneously with those who had been appointed against clear vacancies. The Court observed that the petitioners were appointed later against future vacancies and, therefore, their date of first appointment had to be taken as September 29, 2011.
The Bench held that a candidate does not acquire an indefeasible right to appointment merely because his or her name appears in a select list, particularly when the selection is beyond the number of available vacancies. It further observed that the selection process legally came to an end with the appointment of 31 candidates against the available vacancies.
In strong observations, the Court said that the appointment of the petitioners against future vacancies was de hors the rules and irregular, if not void ab initio. The Bench further remarked that the High Court had taken a compassionate view by accommodating the petitioners against future vacancies and that they could not thereafter seek to overtake those who were regularly appointed earlier.
The Court also held that the petition was hit by delay and laches, as the seniority list had been finalized in 2011 and challenged only in 2018, after nearly seven years. During this period, the seniority position had already been acted upon and promotions to the rank of Sub-Judge had been made.
Relying on settled Supreme Court law, the Bench reiterated that seniority once settled and acted upon cannot be unsettled after a long delay, especially at the instance of persons who approach the court belatedly.
Dismissing the petition, the High Court held that the challenge to the seniority list was not only barred by delay and laches but was also devoid of merit.
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