*Directs for preparing revised list
Excelsior Correspondent
JAMMU, Oct 17: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sindhu Sharma and Justice Sanjay Dhar today quashed the seniority list of the Munsiffs of 2000 and 2001 batches and directed that revised seniority list be prepared by the High Court on the basis of marks obtained by them in the competitive examination held by the Public Service Commission.
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The petitioners and private respondents were appointed as Munsiffs in the District Judiciary of erstwhile Jammu and Kashmir State in terms of Government Order No. 662-LD(A) of 2000 dated 20.04.2000 read with Government Order No. 1339-LD(A) of 2000 dated 25.08.2000 pursuant to their selection on the basis of a competitive test conducted by the Jammu and Kashmir Public Service Commission in accordance with the provisions contained in Jammu and Kashmir Civil Services (Judicial) Recruitment Rules, 1967.
Through the medium of writ petition, the petitioners have called in question the seniority position accorded to them vis a vis the private respondents who belong to various reserved categories.
After hearing Senior Advocate RS Thakur with Advocate Ashwani Thakur for the petitioner, DB observed, “it can safely be stated that the petitioners have not slept over the matter relating to fixation of their seniority, but it is a case where the petitioners have been agitating the matter relating to fixation of their seniority repeatedly with the High Court by filing representations”.
“It is not a case where the petitioners have waited for unreasonably long time after submission of their representations for approaching the court. The record clearly shows that the petitioners have been prompt in agitating their rights by making representations with the respondent- High Court and they have approached this court within a reasonable time”, the DB said, adding “the contention of the private respondents that the petitioners have approached this court belatedly is without any merit”.
“This takes us to the contention of the private respondents that during pendency of the writ petition petitioners and private respondents except one private respondent have been appointed/promoted to the Higher Judicial Service, which is a different service, as such, without assailing the appointment/promotion of private respondents to the Higher Judicial Service, no relief can be granted in favour of the petitioners”, the DB said, adding “this contention is also without any merit, for the reason that, so far as the promotion of Civil Judges (Senior Division) to the Higher Judicial Service is concerned, the same may be based upon merit-cum-seniority, but the fact of the matter remains that the seniority is one of the important factors in appointment to the said service”.
“It may be a fact that the primary consideration for appointment/promotion to the Higher Judicial Service from the cadre of Civil Judges (Senior Division) is merit and suitability, but, in the instant case, petitioners although promoted to the Higher Judicial Service at a later point in time, were found suitable for their promotion. Therefore, it has to be inferred that petitioners were suitable for promotion on the date(s) when the private respondents were considered and promoted to the Higher Judicial Service in their place”, the DB said.
The DB further said, “having regard to the settled legal position that it is the merit and not the roster point which determines the seniority, the appointment of petitioners to the Higher Judicial Service has to be worked out after re-fixation of the seniority in accordance with their merit position determined by the PSC”, adding “it has been contended that if seniority of the Munsiffs of 2000 batch is re-fixed at this stage, it would unsettle the settled position relating to seniority and the same may not be in the interests of the Institution”.
“In this regard, it is to be noted that pursuant to the judgment passed by the Supreme Court in Manoj Parihar’s case, seniority of Munsiffs of 2003 batch has already been re-fixed. So far as the seniority of the Munsiffs from 2010 batch onwards is concerned, the same is being fixed in terms of the ratio laid down by the Supreme Court in Bimlesh Tanwar’s case as such there is no requirement of re-fixing of the same”, the DB said, adding “the re-fixation of seniority is required to be undertaken in respect of Munsiffs of 2000 batch and Munsiffs of 2001 batch only”.
In order to take care of concern of the private respondents that re-fixation of seniority would result in unsettling the settled position the DB directed that re-fixation of seniority would apply in respect of Munsiffs of 2000 and 2001 batches only and the rights already accrued to the judicial officers who have been placed in a higher position in the seniority list should not be upset.
“In other words, any promotions or higher grades already granted to the private respondents, or to others who may be impacted by the re-fixation of seniority, shall not be disturbed. The revised seniority list will not result in previously promoted Judicial Officers or those granted higher grades being demoted to a lower position”, DB said.
Committee to hear officers affected by judgment
Chief Justice of High Court of J&K and Ladakh has constituted a committee to hear all those officers of 2000 and 2001 batches of Munsiffs, who may be affected by re-fixation of their seniority in terms of judgment of the Division Bench.
The committee is comprised of Justice Atul Sreedharan, Justice Sanjeev Kumar, Justice Rajnesh Oswal and Justice Mohammad Akram Chowdhary.
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