Vipan Kumar vs State & Ors

In terms of Advertisement Notice No.03 of 1996 dated 24.12.1996, petitioner had applied for the post of Teacher in the category of "Child of Defence personnel." Service Selection Board published the select list on 30th October, 1998. Since the petitioner was not selected and his grievance was that those with lesser merit stood selected, he filed a writ petition seeking his selection to the post of Teacher in District Cadre Kathua.

This writ petition was dismissed vide order dated 01.02.2000, a Letters Patent Appeal was preferred against the order of dismissal. The Hon"ble Division Bench vide its judgment dated 23.05.2002 in LPASW No.134/2000 directed as under:-

"The respondents would accordingly re-determine the merit of the appellant and if it comes high in the merit, his case be considered for appointment. This would be done within six weeks from the date copy of this order is made available by the petitioner to the respondents."

Since the judgment in LPASW No.134/2000 was not complied, contempt petition No.09/2013 was filed by the petitioners and the Secretary, Jammu and Kashmir Service Selection Board vide his communication No.SSB/V-57/98/432-35/04 dated 26.02.2004 recommended for the post of Teacher District Kathua, but clarified that inadvertently the merit of the last selected candidate was reflected as 57 points but in terms of the revised criteria, actual merit secured by the last select candidate was 53.80 points. Petitioner admittedly was more meritorious have secured 57.56 points. Thus, vide order No.CEOK/WS/12542-46 dated 06.11.2004, the petitioner was appointed as Teacher.

The petitioner has approached the respondents to give effect of his appointment from the date others were appointed pursuant to selection that is in 1998. It is submitted that the petitioner was deprived of the appointment to the post of Teacher from the date, the other candidates were appointed due to wrong calculation of his merit by the Board and this has adversely effected the petitioner as he was deprived not only of his appointment and service as a Teacher from 1998 but also benefits which would accrue to him for no fault of his.

Petitioner has, thus, approached this Court to give effect to his order of appointment as Teacher with effect from 1998 and assign seniority to him in accordance with his merit in the select list.

Mr. Gupta, learned Additional Advocate General appearing for the respondents, has filed his counter to the said petition and has stated that this petition is hit by the principles of res judicata as the relief as prayed for in the present petition is regarding retrospective effect of appointment. This plea has been deemed to have been availed by the petitioner and decided against him in view of the earlier writ petition filed by him. He ought to have pleaded the question of his seniority and other benefits in the earlier writ petition and now is precluded from raising the same. He has relied upon the judgment of the Hon"ble Division Bench of this Court in "Pushpjeet Singh & ors. Vs. State of J&K & ors.' reported as '2013 (1) JKJ [HC] 496'. Pushpjeet's case (supra) was on different facts, since the said case had been decided by directing the respondents to accord similar treatment as had been given to one Rakesh Bamba in COA(SW) No.53 of 2013, as such, not applicable to the facts of the case.

Since the petitioner"s merit was yet to be determined, as such, he could only be selected if he secured more merit than the last selected candidate, therefore, the judgment is not applicable to the petitioner"s case.

Thereafter, the argument raised by the respondents that since the Service Selection Board had recommended the case of the petitioner only in 2004 and his appointment will be from 2004. The petitioner after joining cannot raise the plea of a benefit of seniority retrospectively.

Petitioner immediately after his non-selection to the post of Teacher approached this Court and submitted that since, direction of the Court was to redraw the merit, and after the decision rendered, his merit was assessed and it transpired that he had obtained 57.56 points whereas last selected candidate from District Kathua was obtained 53.80 points, therefore, only issue which was for consideration in the earlier writ petition was his non-selection to the post. Since the direction was of redrawing of merit, the petitioner was selected and appointed as he otherwise was more meritorious, therefore, he was denied his appointment from 1998. After the petitioner was appointed as Teacher in the year 2004 and he was not granted the benefit of seniority as well as pecuniary benefits of the said post, therefore, a fresh cause of action arose to the petitioner, thus, the petitioner has approached this Court for grant of seniority, pay as well as appointment from retrospective date which was denied to him for no fault on his part.

Learned counsel for the petitioner, Mr. Jalmeria, has also placed reliance on judgments of the Hon"ble Supreme Court in case titled "Raghavendra Rao etc. vs. State of Karnataka & ors. etc." reported as "2009 (4) SCC 635' and "Devilal Modi vs. Sales Tax Officer & ors.' reported as "1965 AIR (SC) 1150'. He also placed reliance on judgments of the Coordinate Bench of this Court in "SWP No.425/2007' titled 'Shashi Paul Sharma vs. State of J&K & ors.' decided on 03.08.2017 and "SWP No.3247/2015' titled "Udhay Rani vs.State of J&K & ors." decided on 23.04.2018.

It is admitted case of the parties that the petitioner was selected pursuant to advertisement No.03 of 1996 dated 24.12.1996 and Secretary Service Selection Board vide its communication dated 26.02.2004 to the learned Deputy Advocate General has stated that they had wrongly communicated the merit of the last selected candidate as 57.00 points, but after redrawing merit.

The last selected candidate obtained only 53 points and petitioner, thus, was meritorious in both ways, therefore, his name was recommended for appointment as Teacher.

Thus despite being meritorious, the petitioner was not selected for no fault of his, in ordinary course as per his merit, he would have been appointed as Teacher in 1998 and his seniority would have been fixed as per rule according to his merit in the select list and he would be entitled all the consequential benefits.

So far as the seniority of the petitioner is concerned, in terms of Rule-24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 provides for maintenance of seniority provides that the appointment is made on the basis of selection, the seniority list is to be prepared as per the merit secured by the candidates. Rule-24 is extracted below:- 24. 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.

Note 1.-The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of any service, class, category or grade 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 thereby 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 examinations and / or tests:

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; 58

(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.

Thus, those who are recruited directly, seniority is to be fixed according to the position, attained and assigned to them in the order of merit in the competitive examination.

Since the petitioner"s merit was not rightly determined by the respondents at the time of selection, and if his selection was pursuant to Court directions of redrawing of merit. The respondents themselves have admitted that he secured more merit than the last candidate and the petitioner joined as and when the appointment was offered to him.

Therefore, the petitioner cannot be denied his seniority for the lapse of the recruitment authority. This petition is, accordingly, allowed and the petitioner is deemed to have been notionally appointed in the year 1998 and his seniority is so fixed in accordance with his merit in select list.