Excelsior Correspondent
JAMMU, Nov 27: In a landmark judgment, Division Bench of State High Court comprising Justice Hasnain Massodi and Justice B S Walia today held that even if reservation in promotion is taken to be permissible (an assumption not available at all in view of discussion), the post of Civil Judge (Senior Division) falls beyond purview of Rule 17 of Reservation Rules, 1994 as well as Rule 9 of Reservation Rules, 2005 and benefit of reservation cannot be given effect while making promotion to the post.
The DB made this judgment in a petition filed by Judicial Officers of 2003 batch challenging promotion in reservation category. The DB also directed Registrar General to reframe and notify the seniority list in accordance with merit.
According to case, the petitioners and respondents are 2003 batch Judicial Officers. They responded under their respective categories to the Advertisement Notice No. PSC/Ex-2001/64 dated 04.12.2001 issued by J&K State Public Service Commission inviting applications from the eligible candidates for posts of Munsiffs.
They and other aspirants for advertised posts participated in the selection process and on the strength of merit secured, found place in the select list issued by the J&K Public Service Commission. The merit position of petitioners, private respondents as also of other candidates as per the list issued by the J&K Public Service Commission vide PSC/Ex-2002/KCS (Judicial) dated 09.05.2003 was forwarded to the respondents. The respondent Registrar General on receipt of the select list recommended appointment of selected candidates as Munsiffs in the pay scale of Rs.8000-12950 in the Subordinate Judiciary.
The selected candidates on their appointment ordered vide Government Order No. 1815-LD (A) of 2003 dated 06.08.2003 became members of J&K Civil Services (Judicial). The High Court of J&K through its Registrar General issued Gradation List on 01.06.2010 wherein the private respondents though below petitioners in the order of merit notified earlier, were shown at a higher place and therefore, senior to the petitioners. Private respondents were allowed a jump in seniority position by 2 to 30 steps in the Gradation List. Resultantly, seniority of selected candidates below S. No. 3 was adversely affected by their placement in Gradation List after their colleagues with lower merit.
After hearing battery of lawyers, Division Bench observed, “the petitioners case is that the course followed by Registrar General offends Rule 31 of J&K Reservation Rules, 2005 as also Rule 24 of J&K Civil Services (Classification, Control & Appeal) Rules, 1956. It is pleaded that impugned Gradation List, in effect, changed their seniority position and was issued at their back without affording them an opportunity to put forth their stand and therefore, is violative of principles of natural justice”, adding “it is next pleaded that promotion granted to respondents 3 and 4 on the basis of Reserved Category, is not otherwise permissible under Reservation Rules providing for reservation in promotions, inasmuch as, post of Civil Judge (Senior Division)/Sub Judge) carries pay scale higher to that of Deputy Secretary”.
Division Bench observed, “let us assume for a while (though such assumptions is not available because of clear stand taken by respondent No. 2 that the Gradation List has been prepared having regard to Reservation Rules of 1994), that Gradation List has been prepared in accordance with Rule 10, J&K Reservation Rules, 2005. The list does not even tally with the Roster for Promotion prescribed under Rule 10, Reservation Rules 2005”, adding “the Roster prepared in terms of Rule 14 Reservation Rules of 1994, to effect reservation provided under Rule 10 at the time of recruitment, identifies slots for all the reserved categories mentioned in Rule 10. However, Roster prepared under Rule 18 to effect reservation in promotions provided under Rule 17, identifies slots for Scheduled Tribe and Scheduled Caste categories only”.
“The impugned Gradation List on the other hand identifies slots for all the Categories—- SC, ST, RBA, OSC, ALC Category. It may be pointed out that while Rule 10 Reservation Rules of 1994 provides for reservation at the stage of recruitment of all the reserved categories, Rule 17 providing for reservation in promotions, restricts such reservation only to SC and ST categories. It does not leave any room for reservation in promotions for Reserved Backward Area, ALC, Social Caste and Other Social Caste Category”, the DB said, adding “the Gradation List, in the circumstances, is neither in tune with the Reservation Rules 1994, nor does it satisfy the requirements of Reservation Rules 2005. It depicts non application of mind and arbitrariness on part of the concerned authority, while fixing inter se seniority of 2003 batch Judicial Officers”.
DB further observed that reservation in promotions under Reservation Rules 1994 as well as Reservation Rules 2005, is restricted up to particular pay scale. The benefit of reservation is not available above the prescribed pay scale. In terms of Rule 17, Reservation Rules 1994 the benefit is available to the pay scale, the maximum of which is Rs 3800. Rule 9 Reservation Rules, 2005 makes the benefit available to the pay scale of Deputy Secretary to Government. The posts above the prescribed pay scale are to be filled up strictly on the basis of merit cum seniority as provided under J&K Civil Services (Classification, Control, Appeal) Rules, 1956.
“Even if reservation in promotion is taken to be permissible (an assumption not available at all in view of above discussion), the post of Civil Judge (Senior Division) falls beyond purview of Rule 17 Reservation Rules, 1994 as well as Rule 9 Reservation Rules, 2005 and benefit of reservation cannot be given effect while making promotion to the post”, the DB made it clear.
Finding merit in challenge to Gradation List dated 01.06.2010 as also order promoting respondents 3 and 4 as Civil Judge (Senior Division) on the basis of their placement in the Gradation List, the DB said, “challenge to such other orders passed on the basis of the impugned Gradation List, allowing the private respondents, belonging to different Reserved Categories, to steal march over the petitioners, is also to succeed”, adding “we are told that petitioners 1 to 10 stand already promoted as Civil Judges (Senior Division) and so are respondents 3 to 12 and 14 and 15. The interest of petitioners 1 to 10 is, therefore, restricted to their placement at appropriate place in the seniority list of Civil Judges (Senior Division)”.
“The respondent by ignoring petitioners claim and failure to accord consideration to their claim has infringed their fundamental rights guaranteed under Article 16 of the Constitution. We do not have definite information about the posts of Civil Judges (Senior Division) lying vacant as on date. We, therefore, refrain from setting aside the orders whereby respondents 4, 5, 7 to 12 have been promoted as Civil Judges (Senior Division), the DB said and directed respondent No. 2 to undertake an exercise to find out whether any posts of Civil Judge (Senior Division) are lying vacant as on date so that consideration is accorded to petitioners’ promotion against available posts.
“Let such exercise be completed within three months from today. In the event, no such post(s) is/are found lying vacant or less than the posts required to consider petitioners 11 to 16 are lying vacant, the order(s) whereby respondents 4, 5, 7 to 12 have been promoted as Civil Judges (Senior Division), to the extent necessary to accord consideration to petitioners 11 to 16, shall stand set aside on expiry of three months from today and consideration accorded to the petitioners’ promotion against the available vacancies”, the DB said, adding “on completion of the exercise either way Registrar General shall reframe and notify the seniority list in accordance with merit”.
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