Mohd.Tariq Mir vs State and others

Petitioner is challenging government order No. 22nd Jan'99 whereby the petitioner has been placed at Serial, No. 257 of the seniority list. This

is the list, of those officers who stand inducted in the; Kashmir Administrative Service. He submits that he should have been placed at serial No.

He submits that he was to be clubbed with Sh. G.N. Bodha, Smt Suriya Bhat, S. Jagat Singh, Sh. M. Abas Dar, Sh. M. S. Koka and Smt.

Shagufta Parveen.

Respondent authorities have filed objections. The stand taken by them is that the seniority is determined as per merit obtained by the concerned

officer. Reliance is being placed on Rule 8 of the Jammu and Kashmir Administrative Service Rules of 1979. As the merit of the petit ioner, it is

submitted was lower, he has been rightly placed at serial No. 257.

Rules 8 and 16 which are relevant are being reproduced below:

8: Preparation of select list:

(1) The Selection Committee shall prepare a list of officers from the members of the Services mentioned in Clause (b) of sub rule (i) of Rule 5

whom it considers on the basis of merit, suitable for appointment to service. The list shall contain names of not more than twice the number of

vacancies existing at the time of selection and those expected to occur until the next selection.

(2) The selection committee shall classify assessment of their service records.

(3) Those classified as ""Outstanding"", ""Very Good"" shall be included in the select list in the same order i.e. those classified as ""Outstanding"", will

appear first and the remaining thereafter according to respective classification.

(4) The Selection Committee shall adopt the same procedure as laid down in sub rules (1), (2) and (3) above while considering the suitability of

officers, referred to in clause (c) of sub rule (1) of Rule 5 here in above, for appointment to the service at its time scale.

16: Seniority:

(1) The relative seniority interse 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 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 seniority of those who belong to different services but have been grouped in one class by the Selection Committee under Rule 8 shall

be 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.

(4) The interse seniority of the direct recruits on their promotion to the time scale visavis 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.

A perusal of rule 8 does indicate that it is the merit position and classification which is done by the competent authority who is to determine the

seniority. ""Outstanding"" is to be placed above. ""Very good"" and an officer with ""very good"" record is naturally to rank over and above ""Good"". If

this be the position then the complaint of the petitioner is without any basis. As a matter of fact, this aspect of the matter has been considered by a

Division Bench of this Court in the case of Ali Asgar Choudhary and others vs.. State of Jammu and Kashmir and others LPA (SW) No. 665/99,

decided on 21st Sep'2000. When was observed in the above case is being reproduced below:

The merit has to be determined by the respondents. Selection based on merit tested impartially and objectively is the essential foundation of any

useful and efficient public service. The object of any process of selection for entry and further promotion into a public service is to secure the best

and the most suitable person for the job avoiding patronage and favouritism. The term 'merit system' finds elaborated in Corpus Juris Secundum

vol. 57 at page 1070.

The origin of this system under the American Constitutional set up has been traced in the following words: ""Merit system in American government

are comparatively recent development. The federal government began about 1886 in a tentative way to make certain appointments based at least

upon an effort to ascertain the ability of the appointee to perform properly the services of his position, rather than his contributions to the success of

the party which happened to be in power and this system has spread to a greater or less extent in all parts of the country, although it no means

universal, ""Taylor vs. McSwain, 95 p, 2d 415, 421, 54 Ariz 295.

After tracing out the origin of the term, the term 'merit system' has a well defined and wellunderstood meaning. It is defined as the system of

appointing employees to office in the civil service, and of promoting them for competency only: a system whereby selection for appointments in

certain branches of the public service may be made on the basis of demonstrated relative fitness, without regard to political considerations. Such a

system would necessarily include a fair and impartial selection and appointment of all personnel on the basis of open and competitive merit

examinations specific reasons for removal and a reasonable hearing. The purpose and effect of the merit system is to take from the appointing

officer the right of arbitrary removal, either directly or indirectly of an appointee which he otherwise would have. The system is some time referred

to as a 'non partisan merit system'. In the United States it is oppose to the 'Spoils System.'

A person to be inducted in the Administrative Service, has to display his ability to deal with pressing problems of economic and alertness,

resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in meeting and dealing with others,

adaptability, judgement, ability to make decision, ability to lead intellectual and moral integrity are to be seen. This is a function to be performed by

the respondents. They have done so. In this exercise, they have gone by the record and the rules applicable to the service. This court is not to sit as

a court of appeal in these matters. This has to be done by a Committee.

What is said in the above case would apply to the facts of this case also. In view of the rules noticed above and which rules have been

interpreted by this court, no case is made out for interference. This petition as such is found to be without merit and is dismissed.