Manoj Parihar & Ors. v. State of Jammu & Kashmir & Ors
The following Order of the Court was passed:
O R D E R
1. This petition seeking leave to appeal under Article 136 of the
Constitution is at the instance of unsuccessful original respondents in a
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writ application filed before the High Court of Jammu & Kashmir (Judicial
Officers) and is directed against the judgment and order pa ssed by a
Division Bench of the High Court dated 27.05.2022 in the SWP No.
1350/2011 by which the High Court allowed the Writ Petition filed by the
Respondents No. 3 to 19 herein (original writ applicants).
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 tofixation 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 2002-03.
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:
“16. The issue raised in the present petition squar ely falls
within the judgment rendered by the Division Bench in Ashok
Kumar Sharma’s case. Though petitioners do not assail the
Gradation List and the consequent promotion order o n the
ground that these are not constitutionally permissi ble and
therefore ultra vires Constitution yet the law laid down in Indra
Sawhney’s case and relied upon in Ashok Sharma’s case cannot
go unnoticed, while dealing with present case as it touches
constitutionally of the Reservation Rules whereupon the
impugned Gradation List is based and therefore, valid ity of
the High Court orders promoting private respondents on the
basis of this placement in Gradation List. The Gradation List
in question and promotion orders made on the basis thereof,
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
in favour of private respondents, in implementation of
reservation policy, are therefore, liable to be set aside o n this
ground alone. The conclusion so drawn, ordinarily, would
clinches the matter. However, it would be, if not n ecessary,
but appropriate to deal with the issues, other that
constitutionality of Reservation in promotion scheme, r aised
in the petition.….
25. For the reasons discussed above, we find merit in challenge
to Gradation List dated 01.06.2010 issued by respondent No.
2 as also order promoting respondents 3 and 4 as Civil Judge
(Senior Division) on the basis of their placement i n the
Gradation List. Challenge to such other orders passed on the
basis of the impugned Gradation List, allowing the private
respondents, belonging to different Reserved Catego ries to
steal march over the petitioners, is also to succeed . We are
told that Petitioner 1 to 10 stand already promoted as Ci vil
Judges (Senior Division) and so are respondents 3 to 12 and
14 and 15. The interest of petitioners 1 to 10 is, therefore,
restricted to their placement at appropriate place in the
seniority list of Civil Judges (Senior Division) maintai ned by
respondent No. 2……
26. Petitioners 11 to 16 and Mis Mir Afroz (on deput ation)
Abdul Qayoom Mir and Manzoor Ahmad Zargar figuring at
S.No. 19 to 27 in order of merit in the Merit List rank seni or
to respondents 4, 5, 7 to 12 at S. Nos. 32, 37, 31, 33, 34, 41 ,
38, 30 in the Merit List, and already promoted as Civil Jud ges
(Senior Division) vide different High Court Orders includin g
High Court order No. 252 dated 04.07.2015. Petition ers 11
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 D ivision)
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 righ ts
guaranteed under Article 16 of the Constitution. Ho wever,
M/s. Mir Afroz (on deputation) Abdul Qayoom Mir and
Manzoor Ahmad Zargar, have not joined as petitioner s in
present petition. Petitioners have not questioned the orders
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whereby private respondents 4, 5, 7 to 12 were prom oted
including High Court order No. 252 dated 04.07.2015 .
Respondents 4, 5, 7 to 12 presumably have been working a s
Civil Subordinate Judges, Senior Division for quite sometime.
We do not have definite information about the posts of Ci vil
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 resp ondents
4, 5, 7 to 12 and thereafter placed in the seniority list o f Civil
Judges (Senior Division) to be prepared by respondent No. 2
strictly in accordance with merit. We, therefore, refrain f rom
setting aside the orders whereby respondents 4, 5, 7 to 12
have been promoted as Civil Judges (Senior Division ). We
direct respondent No. 2 to undertake an exercise to fin d out
whether any posts of Civil Judge (Senior Division) are l ying
vacant as on date so that consideration is accorded to
petitioners promotion against available posts. Let such
exercise be completed with three months from today. In the
event, no such posts (s) is/ are found lying vacant or less
than the posts required to consider petitioners 11 to 16 are
lying vacant, the order (s) whereby respondents 4, 5, 7 to 12
have been promoted as Civil Judges (Senior Division), to t he
extent necessary to accord consideration to petitione rs 11 to
16, shall stand set aside on expiry of three months from today
and consideration accorded to the petitioners’ prom otion
against the available vacancies. On completion of the exer cise
either way respondent No. 2 shall reframe and notif y the
seniority list in accordance with merit.”
4. The petitioners herein being dissatisfied with the afores aid
judgment and order passed by the High Court challenged the same before
this Court by way of the Special Leave Petition (Civil) N o. 3786 of
2016. Leave was granted. The Special Leave Petition got culminated in
the Civil Appeal No. 6928 of 2021. The Civil Appeal No. 6928 of 2021
ultimately came to be disposed of by this Court holding as under:
“10. The main issue in the writ proceedings before the High
Court is whether the seniority for the purpose of the gradation
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
list can be founded on the basis of roster points and this issue
would depend upon the view which is taken by the High Court
on the legal position. As noted above, Mr. Gaurav
Pachnanda, learned senior counsel has stated that the H igh
Court has accepted the view that the gradation list is invali d.
The High Court on its Administrative side is not pr ecluded
from taking a considered decision on this aspect of the
matter…..
11. Consequently, the impugned judgment and order o f the
High Court dated 27 November, 2015 is set aside. The writ
petition is restored to the file of the High Court for a decision
afresh. Having regard to the pendency of the procee dings,
we would request the High Court to dispose of the pet ition,
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 basi s of the
gradation list for the batch of 2003 are held in abeyance so
as to abide by the final result of the proceedings befo re the
High Court. The High Court is at liberty on the administrati ve
side to take a decision in the meantime….
12. The appeal is accordingly disposed of in the above term s.”
5. In view of the aforesaid, the High Court re-heard the mat ter
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 observat ions
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 poi nts,
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, yet it cannot be ignored that the Apex Cou rt on
10.03.2003 having declared the decision in P.S. Ghala ut as
not laying good law on the subject, none of the author ities,
including the High Court could have proceeded to make the
roster points as the basis for determining the seni ority and
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further make that a basis for promotions to the pos t of
SubJudges. It needs to be reiterated that in the present case
appointments of the selected officers were made in te rms of
Rule 42 of the Jammu & Kashmir Civil Services (Judi cial)
Recruitment Rules, 1967 vide Government Order dated
06.08.2003, i.e. much after the pronouncement of th e
judgment in Bimlesh Tanwar’s case.
It was precisely for that reason that the counsel
representing the High Court had admitted before the Apex
Court that the gradation list was invalid, which is the subj ect-
matter of challenge in the present petitions….
14. We are told that both the petitioners and the p rivate
respondents have since been promoted as Sub-Judges and,
therefore, even when there was an initial challenge to the
promotion of respondent Nos. 3 & 4 in the writ petit ion, no
promotions would be effected if the seniority was directed to
be fixed as per merit….
15. Having considered the matter in the light of the fact s and
the law discussed hereinabove, we hold as under:-
a. The gradation list dated 01.06.2010 to the extent, and
insofar as, it pertains to the selection made by the Publi c
Service Commission for the post of Munsiffs in referen ce
to Notification No. PSC/Ex-2001/64 dated 04.12.2001,
is quashed.
b. The respondent No. 2 is directed to re-frame the seniority
list in regard to the selection process for the pos t of
Munsiffs, pertaining to notification dated 04.12.200 1,
strictly in accordance with merit obtained by the selected
candidates in the examination conducted by the Public
Service Commission.
c. Such of the candidates, including the petitioners, who
on account of the impugned gradation list were not
promoted on time and, therefore, could not gain the
requisite experience for appearing in the limited
competitive examination in terms of the Jammu &
Kashmir Higher Judicial Service Rules, 2009, would
be held eligible to take such an examination, if another
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
Civil Judge in the same post but lower in the reframed
seniority list was eligible to take such an examination.
16. The writ petitions are, accordingly, disposed of.”
6. Being dissatisfied with the aforesaid, the petitioners are on ce
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 gove rning 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
inter-se 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 Full Court Resolution dated 04.12.1994 to adop t the
Reservation Rules 1994 for the purpose of fixing the inter-se seniority of
recruits for the post of Munsiff and this practice was followed consistently
between 1995 and 2003.
8. Mr. Ranjit Kumar pointed out that the High Court adopted the
methodology of fixing the seniority in accordance with the roster since
1995. First, it was applied to the 11 Munsiffs appointed in the year 1995,
thereafter to the 10 Munsiffs appointed in the year 1997, t hereafter to
the 32 Munsiffs appointed in the year 2000, thereafter to the 17 Munsiffs
appointed in the year 2001 and in the last 47 Munsiffs appointed in the
year 2003 which included the petitioners and the respondents herein
before this Court.
9. The learned Senior Counsel laid much emphasis on the fac t
that neither the petitioners herein nor the respondents herein thought fit
to challenge either the Reservation Rules 1994 or the Full Court Resolution
dated 04.12.1994 on the basis of which the candidates were appointed
and their seniority was fixed in accordance with the roster . Both the
sides were aware and conscious that the fixation of seniority in
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accordance with the roster was based on the decision of the Full Court
and, more particularly, for the reason that the 2003 batch wa s not the
first batch where roster was applied in terms of the Reserv ation Rules
1994.
10. He would submit that both the sides since their appointment in
the year 2003 never questioned the legality and validity of the methodology
adopted by the High Court for the purpose of fixation of senior ity in
accordance with the roster.
11. The learned Senior Counsel vehemently submitted that the
High Court committed a serious error in applying the Jammu & Kashmir
Reservation Rules 2005 which in turn came to be framed under the
Jammu & Kashmir Reservation Act 2004 and notified on 21.10.2005 for
the purpose of fixation of the inter-se seniority. The arg ument of the
learned Senior Counsel is that the Act and the Rules framed thereunder,
do not have any retrospective operation and they could not have been
made applicable to fix the seniority of the appointees of the year 2003.
Mr. Ranjit Kumar invited the attention of this Court to the provi so to
Rule 37 which mandates that the Rules shall not apply to the vacancies
or posts in respect of which advertisement have been is sued or the
selection process 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 petitio ners
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 accordanc e 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 Se nior
Counsel prays that there would be merit in his petition. Leav e 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 Jamm u &
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 be en committed
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
by the High Court in taking 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. All the learned Counsel
would submit that the law in this regard is no longer res integra and is
well settled.
14. In such circumstances referred to above, all the learned
Counsel appearing for the respondents pray that no case is made out for
grant of leave and the petition may be dismissed.
Analysis
15. Having heard the learned Counsel appearing for the part ies
and having gone through the materials on record the only question that
falls for our consideration is whether the inter-se seniority of the Munsiffs
appointed by way of direct recruitment on the recommendations of the
State Public Service Commission should be fixed/ determined on the
basis of the roster points or in terms of the order of their inter-se merit at
the time of their selection?
16. The first and the foremost aspect, we would like to clarify, is
that in the case of direct recruitment, the preparation of inter se merit
list of the selected candidates is inevitable, even in the absence of an
explicit provision in the rule or policy, the recruitment authority cannot
place the candidates inter se in the select list under the rule of thumb or
by adopting the methodology which is inconsistent with the spirit of Articles
14 and 16 of the Constitution. The inter se merit list of the selected
candidates can be prepared as a combined effect of several factors like
written test, objective test, viva-voce and/or other param eters as may
have been prescribed keeping in view the special requirement of service.
Similarly, though not concerned in the present case, even in a case of
promotion based on merit-cum-seniority, seniority by itself is not the only
qualification for promotion to a selection post. If the criteria for promotion
is merit-cum-seniority, the comparative merit has to be evaluated in which
seniority will be one of the factors only. However, in the case of merit-
cum-seniority even a junior most person may steal a march over his
seniors and jump the queue for accelerated promotion.
17. Keeping the aforesaid fundamental principle of s ervice
jurisprudence, we now proceed to consider the case law on the subject
governing the rights of the parties before us as under.
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18. In R.K. Sabharwal v. State of Punjab , (1995) 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 rese rvations
provided under the impugned Government instructions are to
be operated in accordance with the roster to be mainta ined
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 rese rved
posts. The concept of “running account” in the impu gned
instructions has to be so interpreted that it does not res ult 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 t o a cadre
starts then 14 posts earmarked in the roster are to be filled
from amongst the members of the Scheduled Castes. T o
illustrate, first post in a cadre must go to the Scheduled C aste
and thereafter the said class is entitled to 7th, 15th, 22nd and
onwards up to 91st post. When the total number of posts in a
cadre are filled by the operation of the roster then th e result
envisaged by the impugned instructions is achieved. In other
words, in a cadre of 100 posts when the posts earmarked i n
the roster for the Scheduled Castes and the Backward Classes
are filled the percentage of reservation provided f or the
reserved categories is achieved. We see no justific ation to
operate the roster thereafter. The “running account ” is to
operate only till the quota provided under the impu gned
instructions is reached and not thereafter. Once the prescri bed
percentage of posts is filled the numerical test of ade quacy is
satisfied and thereafter the roster does not surviv e. The
percentage of reservation is the desired representati on of the
Backward Classes in the State Services and is consistent with
the demographic estimate based on the proportion wo rked
out in relation to their population. The numerical q uota of
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
posts is not a shifting boundary but represents a figu re with
due application of mind. Therefore, the only way to assure
equality of opportunity to the Backward Classes and the
general category is to permit the roster to operate till the time
the respective appointees/promotees occupy the posts meant
for them in the roster. The operation of the roster and the
“running account” must come to an end thereafter. T he
vacancies arising in the cadre, after the initial posts are filled,
will pose no difficulty. As and when there is a vacancy whethe r
permanent or temporary in a particular post the same has to
be filled from amongst the category to which the post belonge d
in the roster. For example the Scheduled Caste persons holding
the posts at roster points 1, 7, 15 retire then these sl ots are to
be filled from amongst the persons belonging to the Schedule d
Castes. Similarly, if the persons holding the post at points 8
to 14 or 23 to 29 retire then these slots are to be filled from
among the general category. By following this procedure the re
shall neither be shortfall nor excess in the percen tage of
reservation.”
19. In Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604,
this Court stated thus:
“19. It was submitted that having regard to the instruct ions
issued by the Haryana Government in its circular letter d ated
27-4-1972, roster points cannot be considered as se niority
points and further having regard to the fact that t hese
instructions have been followed by the High Court for a lon g
time, there is absolutely no reason as to why such a practic e
should be deviated from. The learned counsel contended that
this Court in Ajit Singh (II) 5 having categorically hel d that
roster points are not intended to determine seniority between
general candidates and reserved candidates, the imp ugned
judgment cannot be faulted with.
24. The Rules, therefore, indisputably lay emphasis on mer it.
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 vacanc ies
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so far as the reserved categories are concerned, having rega rd
to the roster points, in our opinion, is no longer res inte gra.
40. An affirmative action in terms of Article 16(4) of the
Constitution is meant for providing a representation of a cl ass
of citizenry who are socially or economically backw ard.
Article 16 of the Constitution of India is applicab le in the
case of an appointment. It does not speak of fixati on of
seniority. Seniority is, thus, not to be fixed in t erms of the
roster points. If that is done, the rule of affirma tive action
would be extended which would strictly not be in consonance
of the constitutional schemes. We are of the opinion that th e
decision in P.S. Ghalaut does not lay down a good law.”
20. In G .P . Doval v. Govt. of U.P., (1984) 4 SCC 329, this Court
stated as follows:
“16. A grievance was made that the petitioners have mov ed
this Court after a long unexplained delay and the Court should
not grant any relief to them. It was pointed out th at the
provisional seniority list was drawn up on March 22 , 1971
and the petitions have been filed in the year 1983. The
respondents therefore submitted that the Court should throw
out the petitions on the ground of delay, laches an d
acquiescence. It was said that promotions granted on the basis
of impugned seniority list were not questioned by t he
petitioners and they have acquiesced into it. We ar e not
disposed to accede to this request because Respondents 1 to
3 have not finalised the seniority list for a perio d of more
than 12 years and are operating the same for furthe r
promotion to the utter disadvantage of the petition ers.
Petitioners went on making representations after
representations which did not yield any response, r eply or
relief. Coupled with this is the fact that the petitione rs belong
to the lower echelons of service and it is not diff icult to
visualise that they may find it extremely difficult to ru sh to the
court. Therefore, the contention must be rejected.
17. In view of the discussion, these petitions succee d and are
allowed and a writ in the nature of certiorari is i ssued
quashing the impugned seniority list dated March 22, 1971
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
in respect of Khandsari Inspectors. The Respondents 1 to 3
are directed to draw up a fresh seniority list base d on the
principle of length of continuous officiation recko ned from
the date of first appointment if the appointment is followed
by confirmation i.e. selection/approval by the State Public
Service Commission. We order accordingly, but in th e
circumstances of the case, there will be no order as to co sts.”
21. In Kuldip Chand v. Union of India, (1995) 5 SCC 680, this
Court stated thus:
“4. It is next contended by Mr. M.M. Kashyap, learned counsel
for the appellant, that Ashok Kumar disputed the correctness
of the seniority list made on 23-12-1982 in his representations
dated 10-1-1983 and 1-8-1983 which were duly consid ered
and rejected. He allowed it to become final as he d id not
challenge the same till post of accountant became v acant.
When it was rejected, he filed the writ petition in th e High
Court. There is a considerable delay in claiming his sen iority
over the appellant. It is true that the seniority list was pre pared
as early as on 23-12-1982 but no vacancy had arisen
thereafter and, therefore, the mere rejection of th e claim for
seniority does not disentitle him to claim his senior ity over
the appellant for consideration by the respondent-Un ion.
5. When the aforesaid facts are taken into considera tion, 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, t ill he was
aggrieved for non-consideration of the claim to the post of
accountant, his legitimate right to be considered c annot be
denied. Under these circumstances, the delay is of no
consequence for considering the claims of Ashok Kumar for
the post of accountant.”
22. The question as to whether the determination of int er-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.
23. In Ajit Singh v. State of Punjab , (1999) 7 SCC 209, a five
Judge Bench of this Court has laid down the law in the following terms:
625
“40. “It must be noted that whenever a reserved cand idate
goes for recruitment at the initial level (say Level 1), he is not
going through the normal process of selection which is applied
to a general candidate but gets appointment to a post reser ved
for his group. That is what is meant by “reservation”. That is
the effect of “reservation”.
41. Now in a case where the reserved candidate has not opted
to contest on his merit but has opted for the reserved pos t, if
a roster is set at Level 1 for promotion of the reserved candidate
at various roster points to Level 2, the reserved candidate, if
he is otherwise at the end of the merit list, goes to Level 2
without competing with general candidates and he goes up
by a large number of places. In a roster with 100 pla ces, if
the roster points are 8, 16, 24 etc. at each of these points the
reserved candidate if he is at the end of the merit l ist, gets
promotion to Level 2 by side-stepping several gener al
candidates. That is the effect of the roster-point pr omotion.
42. It deserves to be noticed that the roster points fixed at
Level 1 are not intended to determine any seniority at Level 1
between general candidates and the reserved candidates. This
aspect we shall consider again when we come to Merv yn
Continho v. Collector of Customs (1966) 3 SCR 600 l ower
down. The roster point merely becomes operative whenever a
vacancy reserved at Level 2 becomes available. Once such
vacancies are all filled, the roster has worked its elf out.
Thereafter other reserved candidates can be promoted only
when a vacancy at the reserved points already filled arises.
That was what was decided in R.K. Sabharwal v. State of
Punjab (1995) 2 SCC 745.”
24. In Ajit Singh (II), the decision of this Court in R.K. Sabharwal
case has, thus, been explained as under:
“P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625] relied
upon by Dr. Chauhan, is a decision rendered by a two Judge
bench. In that case Rule 13 of the Rules envisaged t hat the
seniority inter se of members of the service shall be dete rmined
by the length of continuous service on any post in the servi ce;
provided further that in the case of two or more me mbers
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
appointed by direct recruitment, the order of merit det ermined
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 bee n
reserved for Scheduled Castes. Suppose recruitment w as
made to fill up ten vacancies, three candidates fro m
Scheduled Castes were selected on the basis of reser ved
quota. The question is whether the first candidate will be
put in the quota allotted to the Scheduled Castes i n 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 ro ster,
reserved for Scheduled Castes i.e. Nos. 1 and 6 poi nts.
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 general
candidates according to the order of merit maintained b y
the Selection Committee or the Public Service Commission.
He cannot complain that having been selected in the merit,
he must be placed in the placement reserved for Scheduled
Castes at Point No. 1 in the roster. Equally, though general
candidate is more meritorious in the order of merit
prepared by the Public Service Commission or the Selection
Committee, when the appointments are made and the
vacancies are filled up according to the roster, necessar ily
and inevitably the reserved candidates though less
meritorious in the order of merit maintained by the Publi c
Service Commission would occupy the respective plac es
assigned in the roster. Thereby they steal a march over some
of the general candidates and get seniority over the general
candidates. This scheme is, therefore, constitutional, valid
and is not arbitrary.”
We have not been able to persuade ourselves to the aforesaid
view.”
25. It will be of interest to note that the hypothetical s ituation
taken up by this Court in P .S. Ghalaut (supra) where two reserved
category candidates were pitted against each other, was actually extracted
627
by this Court in para 36 of the report in Bimlesh Tanwar (supra) and
this Court recorded that the same was not correct. In para 40 of the
report this Court eventually held as follows:-
“40. An affirmative action in terms of Article 16(4 ) of the
Constitution is meant for providing a representation of c lass
of citizenry who are socially or economically backw ard.
Article 16 of the Constitution of India is applicab le in the
case of an appointment. It does not speak of fixati on of
seniority. Seniority is, thus, not to be fixed in t erms of the
roster points. If that is done, the rule of affirma tive action
would be extended which would strictly not be in consonance
of the constitutional schemes. We are of the opinion that th e
decision in P.S. Ghalaut does not lay down a good law.”
26. What was done in Bimlesh Tanwar (supra) was actually a
declaration of law. Therefore, the same will have retrospec tive effect.
In P .V . George v. State of Kerala, (2007) 3 SCC 557, this Court held
that “the law declared by a court will have retrospectiv e effect, if
not otherwise stated to be so specifically”.
27. This Court was conscious of the fact, as could be seen from
paragraph 19 of the report in P .V . George (supra), 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 re move the
adverse effect) must be exercised in the clearest possib le 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
T anwar (supra) in express terms. It goes as follows:-
“(i) In Union of India v. Virpal Singh [(1995) 6 SC C 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 kno wn in
popular terms as the “catch up rule” enabling the s enior
general category candidates who got promoted later, to clai m
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.
seniority over and above the roster point promotee w ho got
promoted earlier.
(ii) The catch up rule formulated in Virpal was approved by a
three member Bench in Ajit Singh Januja v. State of Pun jab
[(1996) 2 SCC 715]. This case came to be known as Ajit Singh
(I).
(iii) But, another three member Bench took a different view in
Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] a nd
held that while the rights of the reserved candidate s under
Article 16(4) and 16(4-A) were fundamental rights, the right
to promotion was a statutory right and that therefore, the roster
point promotees have to be given seniority on the very s ame
basis as those having continuous officiation in a post.
(iv) Since Jagdish Lal took a view contrary to the views
expressed in Virpal Singh and Ajit Singh (I), the S tate of
Punjab filed Interlocutory Applications before this Court,
seeking clarifications. These Interlocutory Application s were
placed before a Constitution Bench comprising of 5 Jud ges,
in view of the fact that two Benches of coordinate juris diction
(both three member Benches) had taken diametrically opposite
views. The decision rendered by the larger Bench of 5 Judges
on these Applications came to be known as Ajit Singh (II) , in
Ajit Singh v. State of Punjab [(1999) 7 SCC 209].
(v) Eventually, the Constitution Bench held in Ajit Sing h (II)
that the roster point promotees cannot count their seniority i n
the promoted category, from the date of their conti nuous
officiation in the promoted post, vis-a-vis the general c ategory
candidates who were senior to them in the lower cat egory
and who were later promoted. As a consequence, Virpal and
Ajit Singh (I) were declared to have been decided co rrectly
and Jagdish Lal was declared to be incorrect.”
29. Thus, the principle of law discernible from all the af oresaid
decisions of this Court is that the roster system is only for the purpose of
ensuring that the quantum of reservation is reflected in the recruitment
process. It has nothing to do with the inter-se seniority among t hose
recruited. To put it in other words, the roster points do not determine the
seniority of the appointees who gain simultaneous appointments; that is
629
to say, those who are appointed collectively on the same dat e or are
deemed to be appointed on the same date, irrespective when they joined
their posts. The position of law as discussed about could be sa id to be
prevailing even while the High Court of Jammu & Kashmir decided by
a Full Court Resolution to determine the seniority on the basis of roster
points.
30. We are not inclined to carve out an exception for the 2003
appointees that is the petitioners herein before us. The High Court in our
view rightly applied the principle of law explained by this Court in the
case of Bimlesh Tanwar (supra).
31. There is one another important aspect of this matter, we need
to take notice of. The High Court in its impugned judgment and order
has observed that the appointments of the selected officers were made
in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial)
Recruitment Rules 1967 vide the Government order dated 06.08.2003
that is much after the pronouncement of the judgment in the c ase of
Bimlesh Tanwar (supra). It makes all the differences.
32. In the overall view of the matter, we are convinced that there
is no jurisdictional infirmity or any other infirmity in the impugned judgment
passed by the High Court warranting interference at our end
33. In the result, this petition fails and is hereby dismissed.
Nidhi Jain Petition dismissed.
(Assisted by : Tamana, LCRA)
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR
& ORS.