Javed Iqbal Balwan vs State of J & K

Doabia,J.

For more than four decades, the courts in this country have been resolving the seemingly ""perpetual rivalry between the direct recruits and

promotees. This dispute has been not only visaavis their quota but also regarding the place which they are to be accorded while fixing their

seniority among the promotees. It is this dispute which stands reflected in the present petitions.

Applications were invited for filling the vacancies to the various gazetted posts. Resort was had to the J and K Combined Competitive

Examination Rules of 1975. The number of posts which were to be filled were not indicated in the notification. In response to the notification so

issued, 1500 candidates are said to have applied. Their application forms were duly screened. Thereafter, examination was held. The result of the

examination was declared in the year 1981. As many as 529 candidates were sent for medical examination. As all the candidates were not given

actual letters of appointment, they felt aggrieved. Some of them preferred petitions directly before the Supreme Court of India. The basic argument

which was urged in these writ petitions was that in the various services to which the appointments were to be made,50% of the posts were

reserved for direct recruits. The remaining vacancies were to go to these candidates who seeking appointment by way of promotion. As this quota

of 50% was not adhered to and some candidates who were otherwise eligible were left out, they as indicated above, approached this court and

also the Supreme Court of India.

So for as this court is concerned, the judgment was delivered by the learned Single judge of this Court. This came to be delivered in SWP NO.

680/84. This happened on 27.6.1984. An appeal was preferred against the said judgment. This appeal came to be decided by a Division Bench of

this Court and an agreed order was passed.

The further fact is that when some of the writ petitions filed by various petitioners came for consideration before the Division Bench of this Court

at Jammu, an order came to be passed on these writ petitions. The State was directed to place on record the position regarding the number of

vacancies which become available with the State Government in various services between September, 1979 to September, 1984. Ultimately a

decision was given. Against the judgment given by the Division Bench, the matter was taken before the Supreme Court of India. The Supreme

Court of India gave its decision in Civil Appeal NO. 3485/92 on 27th August, 1992. The Supreme Court of India was of the opinion that the view

expressed by this court was in consonance with the rule in question. Some suggestions were made by the State. These were to the effect that the

actual vacancies were not 260 by 181. This aspect of the matter was taken not of. Ultimately it was found that it is not necessary to go into the

question as to whether the existing vacancies were 181 or 260. This was because the Supreme Court of India was of the view that the relief is to

be granted only to those petitioners who had approached and sought relief from the courts. As the number of such candidates was less than 181,

the dispute as to the number of deficient vacancies was treated as purely academic. The net result was that the view expressed by the Court was

upheld. The appeal preferred by the State of Jammu and Kashmir was disposed of by making the following observations:

It may be mentioned that all the petitioners before the High Court and before this court belong to the category of direct recruits. On the above

findings the High Court by its judgment dated August 23, 1991 allowed the writ petition in the following terms

In the result the writ petitions succeed and are allowed. The respondents are directed that they shall appoint the petitioners and others out of 529

candidates selected by the Public Service Commission and rectify the imbalance between the departmental promotees and the direct recruits .

Since 260 promotees have been appointed during the relevant period. 260 more candidates out of 529 candidates selected by the Public Service

Commission shall be appointed to the seventeen aforementioned gazetted services in accordance with the merit. Even some or any of these

candidates have become overage during the pendency of these writ petitions. They shall also be appointed because those candidates had become

overage for no fault of their own but because of the unjustified refusal to the respondents to appoint them despite their selection. Since the matter

has already been delayed the appointments shall be made within two months."" This appeal by way of special leave is against the above quoted

Judgment of the High Court.

We have heard learned counsel for the parties. The finding of fact reached by the High Court is based on the appreciation of detailed interpretation

supplied by the State Government at the hearing of the petition. We find no infirmity in the reasoning and the conclusions reached by the High

Court.

Mr. D.P Gupta, learned Solicitor General appearing for the State of Jammu and Kashmir has contended that the latest affidavit containing

complete information regarding the vacancies was filed by Mr. R.C. Gupta, Deputy Secretary to Govt. General Administration Department.

According to him the Division Bench of the High Court did not take the said affidavit into consideration. Mr. D.D.Thakaur, learned counsel

appearing for the respondents writ petitioners has very fairly conceded that the is a discrepancy while counting the deficient number of vacancies in

the quota of direct recruits. According to him the number of deficient vacancies comes to 181 and not 260 as found by the High Court the view we

are taking it is not necessary for us to go into this question.

The selection in this case was completed in the year 1982. Most of the writ petitions were filed in the High Court and in this court during the year

1984. Some of the petitions before the High Court were also filed during the period 1985 to 1989. We are of the view that only the candidates

who filed the writ petitions are entitled to the relief granted by the High Court. We, therefore, modify the relief granted by the High Court to the

extent that only the candidates who filed writ petitions in the High Court or in this court are entitled to be appointed in terms of the High Court

Judgment. We grant two months time from today to the State Government to make the necessary appointment in terms of the High Court

Judgment as modified by us"".

The further fact is that in pursuance to the decision given by the supreme Court of India on 2781992 the petitioners came to be appointed to the

various Gazetted services against the vacancies which were notified in the year 1979 and regarding which, the result was declared by the J and K

Public Service Commission on 9101984.

The petitioners in this petition now seek fixation of seniority. They submit that their seniority should be determined from the date the other direct

recruits were given appointment. The fact that the petitioners were not given appointments earlier on account andf the wrong stand taken by the

state should not operate to their disadvantage. The petitioners submit that the date of entry into service should be the same as indicated in Rule 24

of the Jammu and Kashmir Civil Services (Classification, control and Appeal) Rules 1956. It was this aspect of the matter which was noticed by

the learned Single Judge of this Court. He formed an opinion that this matter is of importance. As it was likely to affect a large number of

Government employees, it was thought apt to refer the matter to a Division Bench an order to this effect was passed on 31121997. Two questions

of law were framed. These questions are as under:

(1) "" Whether in the light of judgment by Division Bench of this High Court in case Javed Iqbal Balwan and others v/s State and others dated

2381991 holding that;

'.... The respondents are directed that they shall appointed the petitioners and others out of 529 candidates selected by the public Service

Commission and rectify the imbalance between the departmental promotees and the direct recruits. Since 260 promotees have been appointed

during the relevant period. 260 more candidates out of 529 candidate selected by the Public Service Commission shall be appointed to the

seventeen aforementioned gazetted services in accordance with the merit....'

and upheld by the apex Court vide judgment dated 2781992 with the modification that only the candidates who filed that petition in the High Court

or Supreme Court would be entitled to be appointed in terms of the judgment of the High Court the petitioners seniority will have to be reckoned

alongwith direct appointees of 1984 out of the same list of from the date of their actual appointment?

(ii) Whether in view of the judgment of the apex Court in Keshav Chandra Joshi and others vs Union of India and others, 1992 Supp( 1) SCC

272 and M.S.L. Petal Vs State of Maharashtra (1996) II SCC 361, holding that when promotees came to be promoted in excess of the quota,

they cannot be given seniority from the respective date of their promotion, the issue of seniority in this case can be finally determined in the absence

of those likely to be affected, even though petitioners could perhaps be entitled only to notional appointment before their appointments were made

in order to claim seniority against the promotees in excess of the quota?

It is under these circumstances, these petitions have been taken up for final disposal, the learned counsel for the parties are agreed that after

answer in these questions, the petitions be finally disposed of.

The question which is thus required to be gone into in this petition is whether the petitioners who had approached this court or the Supreme

Court of India are entitled to get there seniority determined with effect from a date on which other direct recruited were given actual letters of

appointment or they should be given seniority with effect from the actual date of their entry into service. In nutshell, the petitioners want notional

benefit to be given to them, they submit that they should not be put to a disadvantageous position merely because the state was placing wrong

interpretation to the rules while determining the quota for direct recruits and promotees.

The learned counsel for the states submits that the petitioners are not entitled to any relief. For this he submits that these petitions should be

dismissed on the ground that the plea sought to be taken now by the petitioners was not taken by them when they approached this court or the

Supreme Court of India. They cannot raise their point now. The principle of constructive resjudicate is the sheetanchor of the stand of the

respondent State.

It be seen that the basic issue which arises for determination in this petition is as to whether the petitioners are entitled to claim that they be

deemed to have been inducted into respective services with effect from the dates the other direct recruits were inducted. If they are held entitled to

this relief then the further question as to whether they are entitled to seniority on the basis of rotaquota would be a question which would have to be

decided by the State Government.

The first question is as to whether the petitioners are entitled to get their seniority determined along with other direct appointees of 1984 i.e.

When other persons out of the same list came to be appointed.

The learned counsel for the petitioners submit that such a relief can be granted. For this reliance is being placed on several decisions of the

Supreme Court and also of this Court. These decisions are being noticed.

In Miss Neelima Shangle Vs State of Haryana and others (1986 (4) SCC 268) appointments to Haryana Civil Service (Judicial Branch) were

made. The Public Service Commission was supposed to prepare complete list of all successful candidates and communicate the same to the

Government. The Public Service Commission erred in with holding names of several successful candidates on the ground that there were limited

number of vacancies. Miss Neelima Shangla was not appointed as a Subordinate Judge. Ultimately it was found by the Supreme Court of India

that the petitioner was wrongly excluded. Once this conclusion was arrived at the Supreme Court of India gave direction to the State Govt. of

Haryana to include the name of the petitioner in 1984 list of candidates selected for appointment as subordinate Judges in Haryana Civil Service

(Judicial Branch). She was held entitled to her due place in the seniority list to 1984 batch. Thus where on account of wrong interpretation placed

by the selecting authority a candidate was left out in justice done to that candidate was rectified and the directions were given to take remedial

measures.

Pilla Sitaram Patrudu and others v/s Union of India and others (1996 (8) SCC 637 is another authority for the same proposition. Direct

recruits whose appointment was delayed for no fault of their were held entitled to appointment according to the rules. The Supreme Court of India

observed that once a candidate is found to be eligible, according to the rules then his seniority s required to be determined as per the procedure

prescribed in the rules in vogue. A contention was raised that the fifth respondent was not qualified since he had not completed requisite length of

service. Even this contention was negatived. As his appointment was delayed for no fault of his and he came to be appointed later on he was held

entitled to the ranking given in the select list and his appointment was to be made accordingly.

This authority again supports the proposition put across by the learned counsel for the petitioners.

Surinder Narain Singh and others v/s State of Bihar and others (AIR) 1998 SC 1841) is again an authority for the proposition that if there is delay

in forwarding the list of the appointees then the appointees cannot be made to suffer on that account.

The afore mentioned decisions of the Supreme Court do support the argument put across by the learned counsel for the petitioners. As a

matter of fact same view has been expressed by this court in the case of State v/s Indu Bhushan and others LPA (SW) No.469/98 decided on

331999. In the above case the respondent Indu Bhushan appeared in examination for selection and appointment to the J and K Administrative

Service. This examination was conducted in the year 1976. He qualified in the written as well as Viva voce test. He was at S.Ro.1 in the merit list.

He was denied appointment. He preferred a writ petition in the year 1981. This was allowed. A direction was given to the State to appoint him

against the available post. This direction was implemented. He was however not accorded due seniority. He approached this court seeking relief to

fix seniority alongwith other similarly situated persons. The interim directions were given to consider the claim of the petitioner. A contempt petition

was also filed. The writ petition was decided in favour of the respondent Indu Bhushan. The State of Jammu and Kashmir preferred an appeal.

This appeal was dismissed by making the following observations:

x x x The appellant deprived the respondent of his appointment illegally which has been set right by the court. The respondent belongs to the

batch of candidates appointed pursuant to the selection of 1976. The respondent was also one of the successful candidates entitled to

appointment. Because the State failed in its duty to adhere to the selection list and the service rules and for the misdeeds of the appellant, the

respondent cannot be penalised. Respondent No. 1 did whatever was within has power and possession and secured relief of his appointment

alongwith his batchmates on the basis of the same examination. Therefore, the respondent could not be denied the benefit of seniority alongwith the

candidates of the same selection.

In view of the aforementioned decisions, there is no escape from the conclusion that the petitioner s who were deprived of entering into service

alongwith other selected candidates, are entitled to claim the seniority with effect from the same date on which the other direct recruits came to be

inducted.

The learned counsel appearing for the petitioner also placed reliance on Rules 23 and 24 of the Jammu and Kashmir Civil Services

(Classification Control and Appeal) Rules 1956. for facility of reference these rules are being noticed.

23(1) Appointment of Member A probationer shall of a substantive vacancy in the permanent cadre of the category for which he was selected

exist, be appointed to the service at the earliest possible opportunity in order seniority, and if such vacancy existed from a date previous to the

issue of the order of appointment, he may be so appointed with retrospective effect from such date or as the case may be, from such subsequent

date from which he was continuously on duty as a member of the service.

(2) Where recruitment to any service shall normally be both by direct recruitment and by transfer or promotion , the provisions of subrule (1) shall

apply separately as regards:

(a) Vacancies against which persons have recruited direct, and

(b) Other vacancies.

Seniority (1): The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to

which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class category grade as the

case may be.

Note1: The rule in this clause will not effect the seniority on the date on which these rules came into force of a member of any service, class,

category or grades as fixed in accordance with the rules and orders in force before the date on which these rules come into force.

Interpretation: the words ""date of first appointment"" occurring in the above rule will mean the date of first substantive appointment, meaning there

by the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject

to good work and conduct and/or passing of any examination or examination and /or tests:

Provided that the interse seniority of two or more persons appointed to the same service, class, category or grade simultaneously will,

notwithstanding the fact that they may assume the duties of their appointments on different dates by reasons of being posted to different stations, be

determined.

a) in the case of those promoted by their relative seniority in the lower service, class, category or grade;

b) in the case of the 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) as between those promoted and recruited direct by the order in which appointments have to Be allocated for promotion and direct recruitment

as prescribed by the rules.

Note 2 : any substantive appointments or permanent promotions made in any department prior to 15th May, 1953, will not be disturbed if

otherwise in order unless such appointments or promotions are already the subject of any appeal, review or revision or otherwise pending

decisions.

(2) A member of a service, class, category or grade, unless he is reduced in seniority as a punishment shall retain seniority in such service or grade

as determined by subrule(l) notwithstanding any delay in the completion of his probation his appointment as a member of such service, class

category or grade.

(3) Where member of any service, class, category grade reduce to lower service, class, category or grade he shall be placed at the to[ of the latter

unless the authority ordering such reduction directs that he shall rank in such lower service, class, category or grade next below any specified

member thereof.

A perusal of the aforementioned rules, indicate that in the case of a person appointed on probation his date of appointment would be the date

on which substantive vacancy came into existence. When a substantive vacancy existed in the permanent cadre and the petitioner came to be

selected against that vacancy, they are entitled to the benefit of Rules 23 and 24, referred to herein above. This is the plain meaning of rule 23( 1).

Rules say in categoric term that probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected4dc

exists, be appointed to the service at the earliest possible opportunity in the order of seniority and if such vacancy existed from a date previous to

the issue of the order of appointment he may be so appointed with retrospective effect.

In this case the vacancies did exist, therefore, the direct recruits are well within their right to contend that they be given notional appointments.

Again their interse seniority is to be determined in terms of rule 24. Rule 24 does lay down that the order of merit at the time of competitive

examination has to be given due recommendation, the direct recruits would this be entitled to the benefit of both the rules i.e. Rule 23 and 24.

The argument of the state that this petition is barred by the principle of constructive resjudicata may now be examined . It be seen that the

question at what place the seniority the petitions were entitled to be put, was not an issue at the time when the earlier petition was preferred by the

petitioners. They were not in service. Therefore, the question of fixation of seniority would not arise, they were claiming induction in service. On

this relief being granted they naturally thought that the State would be fair enough to grant proper seniority. This having not been done, the

petitioners have been forced to come to this court again. Therefore, the objections taken by the State that this petition is bared by the principle of

resjudcata or constructive resjudicata is devoid of merit.

Second question as to whether the seniority can be determined in the absence of those who were promoted be now examined. In C.K.

Antony Vs B.Muraleedharan 1998 (4) SCT 151, in para 11 of the judgment it was said: ""Any appointment in excess of the quota prescribed for

the prpmotees cannot prejudice the rights of the direct recruits.

With a view to support the contention that a person who came to be appointed as temporary against the post meant for direct recruits can

have no benefit over and above the direct recruits. Reference is being place on the following decisions:

In R.N.Pandit, Officiating Superintending Engineer and others Vs K.B.Vig, X.EN Irrigation, 1984 S.L.R Vol 3 page 344, a Division Bench of

the Punjab and Haryana High Court concluded that a promotee appointed on officiating basis on a post without first becoming a member of the

service cannot get his service rendered on officiating basis counted for purpose of determining seniority.

In Direct Recruit Class II Engineering officers Association Vs State of Maharashtra and others (AIR 1990 SC 1607) it has been held that

once an incumbent is appointed to post according to rule, his seniority has to be counted from the date of his appointment and not according to

the date of his confirmation"". The further observations made by the Supreme Court is to the effect, ""the corollary of the above rule in that where the

initial appointment is only adhoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into

account for considering the seniority.

Keshav Candra Joshi and others s union of India and others, 1992 Suppl.I (SCC) 272 is another decision which lays down that before a

service can be counted, it must be shown that the incumbent was in fact member of the service in which he wants officiating service to be counted.

It has been observed that unless and until, an order is passed by which a person is made member of the service he cannot get the period of

officiating service counted for the purposes of seniority. The other decisions in which similar view was expressly given by the Supreme Court of

India are A.K/Saigal and others V/s N.Nagraajan, 1993 (3) SCC page 42. State of West Bengal Vs Aghore Nath and others,1993(3) SCC 371.

These are also being relied for the same purpose. In State of West Bengal Vs Aghore nath Dey and others (Supra), it has been indicated that

adhoc service followed by regular service cannot be counted if appointment was made in violation of the Rules. As a mater of fact the view

expressed in Direct Recruits case stands explained in 'State of West Bengal Vs Aghore Nath Dey and others (Supra). If a case falls with in the

scope of proposition enumerated in para ""A"" then what was said in the aforementioned judgment, in para ""B"" would stand excluded. For this,

specific reference be made to paragraph22 of the judgment. This pares being reproduced below:

There can be no doubt that these two conclusions have to be read harmoniously and conclusion (B) cannot cover cases which are expressly

exclude by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted

from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed according

to rules. The corollary set out in conclusion (A), then is that where the initial appointment and not according to the date of confirmation, the

incumbent of the post has to be initially appointed according to rules The corollary set out in conclusion (A), then is that 'where the initial

appointment is only adhoc and not according to rules and made as a stop gap arrangement, the officiation in such posts cannot be taken into

account for considering the seniority'. Thus the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment in

only ad hoc and not according to rules, being made only as a stop gap arrangement. The case of the writ petitioners squarely falls within this

corollary in. conclusion(A) which says that the officiation in such posts cannot be taken into acount for counting the seniority.

Another judgment dealing with the proposition is as Kedar Nath etc Vs State of Madhya Pradesh, AIR 199 ISC 1224.

The legal position has been further clarified in the case reported as C.K.Antony etc Vs B.Muraleedharan,1998 (4) Services Cases Today 151.

the dispute in the above case was the method and manner in which the inter se Claims of direct promotees ought to be regulated. In the

aforementioned case following conclusions were indicated:

'(i) a person, who has been appointed to service or post temporarily or provisionally as a stopgap arrangement can never be considered as one,

who has been appointed to that post or service, (ii) If their is no substantive vacancy in the permanent cadre available, no direct recruitment can be

resorted to. the direct recruits should get substantive vacancies in the permanent cadre, while recruits by transfer can be adjusted against a

permanent vacancy or a temporary vacancy depending upon the vacancy position, (iii) a person who gets a temporary appointment or promotion,

as the case may be shall not be regarded probationer in the category and on account of that temporary appointment or promotion, he cannot have

any preferential claim to that post, (iv) Any commencement of probation for the purpose of counting seniority must be preceded by an appointment

in accordance with the rules. In case a temporary appointee is allowed to start his probation from a date anterior to the date of his subsequent

appointment in accordance with the rules, that should be with out prejudice to the seniority of other in the service.

Ultimately it was found that as promotees were appointed in excess of their quota, therefore, any appointments in excess of the quota

prescribed for the promotees cannot prejudice the rights of the direct recruits.

From the perusal of the aforementioned decisions, it becomes apparent that any appointments made in excess of the quota cannot operate to

the prejudice of the direct recruits. The State would take notice of the position of law and take remedial measures at its own level. This would also

answer the second question. The question posed is that can the relief be granted in the absence of persons, who are likely to be affected. It be

seen that absence of promotees as respondents would not affect the claim of the direct recruits, firstly because they are held entitled notional

appointments in terms of answer given to question No. 1. Secondly when effect is being given to what is said visa vis question No. 1 and also the

decisions of the Supreme Court of India noticed above, then the respondents State can hear the persons concerned and thereafter order placement

at proper place. As a matter of fact such a course was clearly adopted in L.P.A, referred to at page 9 of this order. This is LPA (SW) No.469/98

decided on 331999. Accordingly two questions referred to this Division Bench are answered as under:

(i) The direct recruits i.e. The petitioners are entitled to claim notional seniority with effect from the date the other direct recruits came to be

appointed. This question is answered in favour of the direct recruits;

(ii) That in view of the position of law noticed above the seniority of the petitioners is to be fixed. While fixing so the persons who are likely to be

affected even though not party to this petition can be heard by the State Government. The State Government after taking note of the points of view

which they would like to put across will refix the seniority. No direction is given at this stage to fix the seniority over and above such and such

persons. As and when the question of fixing the seniority is examined by the State Government the persons who are likely to be affected to heard,

this question is again answered in favour of the Direct recruits. 28. In view of the agreed stand taken by the parties that this petition be decided on

merit, this is being finally decided. The respondent State would take notice of the answers given to the two questions referred to above and take

remedial measures. Let this be done so far as the relief which is to be granted visavis question No.1, within a period of one month from the date a

copy of this order is made available to the respondents State, by the petitioners. The other matter be decided within a period of three months. This

period would also begin in the same manner i.e with effect from the date a copy of this order is made available to the Respondents State. The

process be initiated within a period of one week of the receipt and it be completed within the period referred to above. The petitions are disposed

of accordingly.