Saqib Saleem vs State

Mr. Alok Aradhe, J. - In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of

the State of Jammu and Kashmir, the petitioners inter alia seek quashment of seniority list of Naib-Tehsildars dated 08.10.2013 insofar it pertains

to inter se seniority of the petitioners and respondents 4 to 75 notified by Financial Commissioner, Jammu and Kashmir, Jammu. The petitioners

also seek a direction to the respondents 1 and 2 to fix the inter se seniority of the petitioners and respondents 4 to 75 as Naib-Tehsildars in the

order of merit obtained by them in the selection process after preparation of combined merit list of the candidates selected pursuant to

advertisement notices dated 26.04.2002, 14.12.2005 and 26.05.2008. In order to appreciate the petitioners' grievances, few facts need mention

which are stated infra:

Admittedly, an advertisement Notification dated 26.04.2002 was issued by which applications were invited for 52 posts of Naib-Tehsildars. It

is also not in dispute that in response to aforesaid advertisement, respondents 4 to 75 submitted their applications. However, the process of

selection was kept pending. Thereafter another advertisement notification dated 14.12.2005 was issued by which 39 posts were advertised and

pursuant to which petitioners 2 and 4 submitted their applications. However, the process of selection initiated pursuant to aforesaid advertisement

notice could also not be brought to its logical conclusion and another advertisement notification dated 26.05.2008 was issued by which 20 posts of

Naib â€"Tehsildars were advertised pursuant to which the petitioners 1 and 3 submitted their applications. It is also not in dispute that a common

written test was held for all three advertisement notices on 22.03.2009 and based on the aforesaid test, the candidates were short listed for

interview and three provisional select lists with reference to each notification was issued on 08.09.2009 and thereafter the orders of appointment to

the selected candidates were issued on 20.11.2009. It is the case of the petitioners that on 05.04.2011, a tentative seniority list was issued

pursuant to which they submitted a representation dated 25.04.2011 which was not decided. Thereafter another tentative seniority list was issued

on 12.04.2013 and eventually a final seniority list was issued on 08.10.2013 in which the petitioners have been shown junior to respondents 4 to

75 even though the petitioners are more meritorious. In the aforesaid factual background, the petitioners have approached this Court.

Learned counsel for the petitioners submitted that the process of selection was the same and the date of appointment was the same and

therefore in view of Rule 24 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 (hereinafter referred to as

rules, 1956), the seniority ought to have been fixed on the basis of merit position secured by the candidates in the merit list. It is further submitted

that seniority list has been prepared in contravention of Rule 24 of the Rules, 1956 and the occurrence of vacancies has no relevance to the

seniority. It is further submitted that the petitioners have approached this Court with utmost dispatch without any delay.

On the other hand, learned Deputy Advocate General for respondents 1 and 2 submitted that the petitioners admittedly did not apply in

pursuance to the notification issued in the year 2002. It is further submitted that Rule 24 has no application to the facts of the case and the

petitioners never lodged any objections with regard to tentative seniority list learned Senior Counsel for respondents 4, 5, 6, 8, 9, 11 to 14, 16, 18

to 22, 32 ,34, 35, 41, 42 & 46 submitted that admittedly private respondents have responded to the advertisement notification issued in the year

2002. It is argued that the tentative select list in the year 2009 was issued on the basis of the candidatures of the petitioners and the private

respondents with reference to the particular advertisement notice. It is also argued that it is not the case of the petitioners that they were eligible to

submit their applications in pursuance to the advertisement notice which was issued in the year 2002. It is submitted that in peculiar fact situation of

the case, the action of the respondents in placing the private respondents over and above the petitioners is justified and the petitioners who had

accepted the initial select list without any protest or objection cannot turn around and be permitted to challenge the same.

It is further submitted that Rule 24 of the Rules applies in a case where the selections are made pursuant to one single advertisement notice and

the same has no application to the fact situation of the case. It is also submitted that the petitioners have approached this Court after an inordinate

delay of four years and the conduct of the petitioners dis-entitles them to any discretionary relief in exercise of powers under Article 226 of the

Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir.

I have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is

apposite to take note of the relevant extract of Rule 24 (1) of the Rules, 1956:

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 or grade as

the case may be.

Provided that the inter-se 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 reason 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 those 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.

Rule 24(1) inter alia provides that seniority of persons appointed by way of direct recruitment shall be determined 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 purposes of making

selections.

Admittedly in the instant case, advertisement notices were issued in the year 2002, 2005 and 2008. It is not in dispute that petitioners 1 and 3

responded to notification No.04 of 2008 dated 26.05.2008 and petitioners 2 and 4 responded to the notification dated 14.12.2005. It is not the

case of the petitioners that they were eligible to submit application forms in response to the advertisement notice issued in the year 2002.

Therefore, the Commission has taken a conscious decision in the peculiar facts of the case to place the candidates who had responded to the

advertisement notice issued in the year 2002 over and above the candidates who submitted their applications in the year 2005 and 2008. It is also

pertinent to mention here that initially three select lists were issued with reference to three different advertisement notices; however, the petitioners

did not lodge any protest or objection and joined on the posts. It is also pertinent to mention here that in Paragraph (iii) of the objections filed on

behalf of respondents 1 and 2, it has been stated that the tentative seniority list of Naib-Tehsildars issued vide order dated 12.14.2013 was widely

circulated and a period of 21 days was fixed to file objections. However, no objections to the tentative seniority list were preferred by the

petitioners. Accordingly, the tentative seniority list was finalized on 08.10.2013.

In the peculiar fact situation of the case, the stand taken by the respondents appears to be justifiable and the conduct of the petitioners dis-

entitles them to any discretionary relief in exercise of powers conferred under Article 226 of the Constitution of India read with Section 103 of the

Constitution of the State of Jammu and Kashmir. It is well settled legal principle that in the absence of any satisfactory explanation for delay in

questioning the validity of the inter se seniority assigned, the belated challenge to the seniority list cannot be entertained. In service jurisprudence,

immense sanctity is attached to a final seniority list. The seniority list once published cannot be disturbed at the behest of person who chooses not

to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do

substantial justice. (See State of Orissa v. Pyarimohan Samantaray and others, (1997) 3 SCC 396, Dayaram Asanand Gursahani v.

State of Maharashtra and ors., (1984) 3 SCC 36, Rajendra Pratap Singh Yadhav and others v. State of U.P. and others, AIR 2011 SC

2737).

In view of the preceding analysis, I am not inclined to grant any relief to the petitioners. In the result, the writ petition fails and is hereby

dismissed along with connected MPs.