TaxTMI 
TaxTMI 
2022 (6) TMI 1400
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..... 2. The facts giving rise to this special leave petition may be summarized as under: 2.1 At the outset, we may state that this is a 2nd round of litigation before this Court on the issue relating to fixation of the seniority of the Munsiffs (Batch of 2003) for promotion to the post of Sub-Judge in the State of Jammu & Kashmir (Now Union Territory). 2.2 This Court in the 1st round of litigation took notice of the fact that the respondents herein (original writ applicants) qualified at the Jammu and Kashmir Civil Services (Judicial) Examinations 2002 and were appointed as the Judicial Magistrates in 200203. They were placed higher in the merit list compared to the petitioners herein. However, the gradation list was prepared by applying the roster for direct recruitment as provided under Rule 5 of the Jammu and Kashmir Reservation Rules, 2005. This in effect led to the reserved category petitioners displacing the general category respondents in the gradation list. A Writ Petition was filed seeking to quash the gradation list of the Judicial Magistrates and for a direction to prepare the gradation list based on merit. 3. The High Court held as under: "....
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....to 16 and M/s. Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar, therefore, had a right to be considered for promotions as Civil Judges (Senior Division) ahead of respondents 4, 5, 7 to 12. The respondent No. 2 by ignoring petitioners claim and failure to accord consideration to their claim has infringed their fundamental rights guaranteed under Article 16 of the Constitution. However, M/s. Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar, have not joined as petitioners in present petition. Petitioners have not questioned the orders whereby private respondents 4, 5, 7 to 12 were promoted including High Court order No. 252 dated 04.07.2015. Respondents 4, 5, 7 to 12 presumably have been working as Civil Subordinate Judges, Senior Division for quite sometime. We do not have definite information about the posts of Civil Judges (Senior Division) lying vacant as on date so as to examine whether petitioners 11 to 16 and M/s. Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar, directed to be considered for promotion as Civil Judges (Senior Division) against such post without disturbing respondents 4, 5, 7 to 12 and thereafter placed i....
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.... dispose of the petition, on remand, preferably within a period of two months from the date of receipt of a certified copy of this order. In the meantime, pending the decision of the High Court, it would be appropriate if consequential directions on the basis of the gradation list for the batch of 2003 are held in abeyance so as to abide by the final result of the proceedings before the High Court. The High Court is at liberty on the administrative side to take a decision in the meantime.... 12. The appeal is accordingly disposed of in the above terms." 5. In view of the aforesaid, the High Court reheard the matter and took the view that the seniority should be fixed in accordance with the merit determined by the Public Service Commission and not in accordance with the roster points. We quote the relevant observations made by the High Court including the operative part of the impugned judgment and order as under: "13. In the past, while it may be true that the High Court had been maintaining the seniority based upon the roster points, as mentioned under Rule 14 of the Reservation Rules of 1994 may be on the strength of the ratio of the judgment in P.S. Ghalaut,....
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.... 16. The writ petitions are, accordingly, disposed of." 6. Being dissatisfied with the aforesaid, the petitioners are once again before this Court with the present petition. 7. Mr. Ranjit Kumar, the learned Senior Counsel appearing for the petitioners vehemently submitted that the High Court committed a serious error in passing the impugned order. The learned Senior Counsel vehemently submitted that it cannot be argued as an absolute proposition of law that for the purposes of fixing seniority only merit is to be considered and not the roster points. He would submit that it should be left to the authorities such as the High Court in the case on hand to evolve a fair and just principle, more particularly, whether the Rules governing the seniority are absent. He would submit that since the Recruitment Rules 1967 are silent with regard to the procedure of promotion of Munsiffs to the posts of Sub-Judges as well as the manner of determination of their interse seniority. The High Court on its administrative side in exercise of powers under Article 111 of the Constitution of Jammu & Kashmir which is pari materia with Article 235 of the Constitution of India had decided in its Fu....
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....s have been initiated before coming into force of the Rules 2005. In short, the argument of the learned Senior Counsel is that there cannot be any prospective operation of the Rules 2005. In the last, the learned Senior Counsel submitted that why should the petitioners suffer for no fault on their part as the 2003 batch is the last one to whom the Rules of 2005 are sought to be made applicable. In other words, the argument is that if the seniority is to be fixed in accordance with the merit of the appointees of the batch of 2003 and not on the basis of the roster points then many of the petitioners would have no chances of any further promotion. 12. In such circumstances referred to above, the learned Senior Counsel prays that there would be merit in his petition. Leave may be granted and the appeal may be admitted. 13. On the other hand, this petition has been vehemently opposed by the respective learned Counsel appearing for the private respondents, the High Court of Jammu & Kashmir and also the State of Jammu & Kashmir. All the learned Counsel in one voice submitted that no error, not to speak of any error of law could be said to have been committed by the High Court in ta....
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....) 2 SCC 745, this Court said as follows: "5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts ..." are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illust....
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....nment in its circular letter dated 2741972, roster points cannot be considered as seniority points and further having regard to the fact that these instructions have been followed by the High Court for a long time, there is absolutely no reason as to why such a practice should be deviated from. The learned counsel contended that this Court in Ajit Singh (II) 5 having categorically held that roster points are not intended to determine seniority between general candidates and reserved candidates, the impugned judgment cannot be faulted with. 24. The Rules, therefore, indisputably lay emphasis on merit. It for all intent and purport excludes the applicability of rule of appointment in terms of roster points. 33. The question as to whether the determination of inter se seniority would depend upon the filling up of the vacancies so far as the reserved categories are concerned, having regard to the roster points, in our opinion, is no longer res integra. 40. An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution ....
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.... counsel for the appellant, that Ashok Kumar disputed the correctness of the seniority list made on 23121982 in his representations dated 1011983 and 181983 which were duly considered and rejected. He allowed it to become final as he did not challenge the same till post of accountant became vacant. When it was rejected, he filed the writ petition in the High Court. There is a considerable delay in claiming his seniority over the appellant. It is true that the seniority list was prepared as early as on 23121982 but no vacancy had arisen thereafter and, therefore, the mere rejection of the claim for seniority does not disentitle him to claim his seniority over the appellant for consideration by the respondent-Union. 5. When the aforesaid facts are taken into consideration, it would be obvious that the preparation of seniority list per se was illegal. Therefore, the mere fact that he did not challenge the seniority list, which was illegally prepared, till he was aggrieved for non-consideration of the claim to the post of accountant, his legitimate right to be considered cannot be denied. Under these circumstances, the delay is of no consequence for considering the claims of A....
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.... that case Rule 13 of the Rules envisaged that the seniority inter se of members of the service shall be determined by the length of continuous service on any post in the service; provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority. Despite the said Rule, it was held as under: "Take for instance Vacancies Nos. 1 and 6, as pointed out in the Chief Secretary's letter have admittedly been reserved for Scheduled Castes. Suppose recruitment was made to fill up ten vacancies, three candidates from Scheduled Castes were selected on the basis of reserved quota. The question is whether the first candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and third candidates, he will not get the placement in the roster, reserved for Scheduled Castes i.e. Nos. 1 and 6 points. Consequently candidates Nos. 2 and 3 will get the placement at Nos. 1 and 6 and the first candidate will get the placement in the order of merit along with the gen....
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....pra), that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. But still this Court held that the power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term. 28. Therefore, it is clear that anything done as a consequence of the decision of this Court in P.S. Ghalaut (supra), cannot stand since this Court did not apply the doctrine of prospective overruling in Bimlesh Tanwar (supra) in express terms. It goes as follows: "(i) In Union of India v. Virpal Singh [(1995) 6 SCC 684], this Court upheld the stand taken by the Railways that reserved category candidates who got promotion at roster points would not be entitled to claim seniority at the promotional level as against senior general category candidates who got promoted at a later point of time to the same level. The Court held that the State was entitled to provide, what came to be known in popular terms as the "catch up rule" enabling the senior general category candidates who got promoted later, to claim seniority over and above the roster point promotee who got prom....