VINOD KUMAR BHAGAT AND ORS versus STATE OF JAMMU & KASHMIR AND ORS on 17 November 2021

ORDER

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theHigh Court of Jammu and Kashmir (at Jammu) dated 27 November2015.

3. The respondents, who are the petitioners before the High Court,qualified at the Jammu and Kashmir Civil Services (Judicial) Examinations2002 and were appointed as Judicial Magistrates in 2002-03. They wereplaced higher in the merit list compared to the petitioners. However, thegradation list was prepared by applying the roster for direct recruitment A

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Aas provided under Rule 5 of the Jammu and Kashmir Reservation Rules,2005[1]. This in effect led to the reserved category petitioners displacingthe general category respondents in the gradation list. The third andfourth petitioners were promoted as Sub-Judge on the basis of theirplacement in the gradation list. A Writ Petition was filed seeking to quashthe gradation list of Judicial Magistrates and for a direction to prepareBthe gradation list, based on merit. The contention of the respondentsbefore the High Court was that Rule 5 of the 2005 Rules will be applicableonly for direct recruitment and not for determination of inter se seniorityfor the purpose of promotion. For this purpose, reference was also madeto Rule 31 of the 2005 Rules and Rule 24 of the Jammu and KashmirC(Classification, Control & Appeal) Rules 1956.

4. While disposing of the writ petition filed before the High Court,the Division Bench relied upon its earlier decision in Ashok Kumarand Others v State of J&K and Others (SLP No 1290/2014 alongwith connected matters). For convenience of reference, the finding ofDthe High Court, on this aspect, is extracted below:

“16. The issue raised in the present petition squarely falls withinthe judgment rendered by the Division Bench in Ashok KumarSharma’s case. Though petitioners do not assail the GradationList and the consequent promotion order on the ground that theseEare not constitutionally permissible and therefore ultra viresConstitution yet the law laid down in Indra Sawhney’s case andrelied upon in Ashok Sharma’s case cannot go unnoticed, whiledealing with present case as it touches constitutionally of theReservation Rules whereupon the impugned Gradation List isbased and therefore, validity of the High Court orders promotingFprivate respondents on the basis of this placement in GradationList. The Gradation List in question and promotion orders madeon the basis thereof, in favour of private respondents, inimplementation of reservation policy, are therefore, liable to beset aside on this ground alone. The conclusion so drawn, ordinarily,Gwould clinches the matter. However, it would be, if not necessary,but appropriate to deal with the issues, other that constitutionalityof Reservation in promotion scheme, raised in the petition.”

5. Having come to the conclusion that the earlier decision in AshokKumar’s case would govern the proceedings, the High Court dealt with H1 2005 Rules other issues, other than the constitutionality of reservation in promotionin the then State of Jammu and Kashmir. Eventually, by its judgment, theHigh Court held that there was merit in the challenge to the gradation listdated 1 June 2010 issued by the High Court and to the promotions grantedto the post of Civil Judge (Senior Division) on the basis of the placementin the gradation list. The operative directions of the High Court arecontained in paragraphs 25 and 26 of the judgment, which are extractedbelow:

“25 For the reasons discussed above, we find merit in challengeto Gradation List dated 01.06.2010 issued by respondent No. 2 asalso order promoting respondents 3 and 4 as Civil Judge (SeniorDivision) on the basis of their placement in the Gradation List.Challenge to such other orders passed on the basis of the impugnedGradation List, allowing the private respondents, belonging todifferent Reserved Categories to steal march over the petitioners,is also to succeed. We are told that Petitioners 1 to 10 stand alreadypromoted as Civil Judges (Senior Division) and so are respondents3 to 12 and 14 and 15. The interest of petitioners 1 to 10 is,therefore, restricted to their placement at appropriate place in theseniority list of Civil Judges (Senior Division) maintained byrespondent No. 2.

26. Petitioners 11 to 16 and Mis Mir Afroz (on deputation) AbdulQayoom Mir and Manzoor Ahmad Zargar figuring at S.No. 19 to27 in order of merit in the Merit List rank senior 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 Judges (Senior Division) videdifferent High Court Orders including High Court order No. 252dated 04.07.2015. Petitioners 11 to 16 and M/s. Mir Afroz (ondeputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar,therefore, had a right to be considered for promotions as CivilJudges (Senior Division) ahead of respondents 4, 5, 7 to 12. Therespondent No. 2 by ignoring petitioners claim and failure to accordconsideration to their claim has infringed their fundamental rightsguaranteed under Article 16 of the Constitution. However, M/s.Mir Afroz (on deputation) Abdul Qayoom Mir and Manzoor AhmadZargar, have not joined as petitioners in present petition. Petitionershave not questioned the orders whereby private respondents 4, 5,7 to 12 were promoted including High Court order No. 252 dated AB

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SUPREME COURT REPORTS

A04.07.2015. Respondents 4, 5, 7 to 12 presumably have beenworking as Civil Subordinate Judges, Senior Division for quitesometime. We do not have definite information about the posts ofCivil Judges (Senior Division) lying vacant as on date so as toexamine whether petitioners 11 to 16 and M/s. Mir Afroz (ondeputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar,Bdirected to be considered for promotion as Civil Judges (SeniorDivision) against such post without disturbing respondents 4, 5, 7to 12 and thereafter placed in the seniority list of Civil Judges(Senior Division) to be prepared by respondent No. 2 strictly inaccordance with merit. We, therefore, refrain from setting asideCthe orders whereby respondents 4, 5, 7 to 12 have been promotedas Civil Judges (Senior Division). We direct respondent No. 2 toundertake an exercise to find out whether any posts of Civil Judge(Senior Division) are lying vacant as on date so that considerationis accorded to petitioners promotion against available posts. Letsuch exercise be completed with three months from today. In theDevent, no such post (s) is/ are found lying vacant or less than theposts required to consider petitioners 11 to 16 are lying vacant,the order (s) whereby respondents 4, 5, 7 to 12 have been promotedas Civil Judges (Senior Division), to the extent necessary to accordconsideration to petitioners 11 to 16, shall stand set aside on expiryEof three months from today and consideration accorded to thepetitioners’ promotion against the available vacancies. Oncompletion of the exercise either way respondent No. 2 shallreframe and notify the seniority list in accordance with merit.”

6. At the outset, we must note that Mr Gaurav Pachnanda, Senior FCounsel appearing on behalf of the High Court has stated that the HighCourt accepts the correctness of the judgment of the Division Benchinsofar as it found infirmities in the gradation list, independent of theobservations in paragraph 16.

7. Mr A Mariarputham, Senior Counsel, has appeared on behalfGof the appellants and Mr Sanjay Hegde, Senior Counsel, has appearedon behalf of the respondents who were the original petitioners beforethe High Court.

8. Mr Sanjay Hegde has submitted that there was no occasion forthe High Court to consider the subject matter of the challenge raisedHbefore the High Court by applying the ratio in Ashok Kumar’s case, since this did not form the scope of the challenge at all. Learned Counselurged that this aspect did not form the subject matter of the petition or ofthe submissions.

9. The High Court had observed that the ratio in Ashok Kumar’scase would be sufficient to settle the principle issue raised. The referenceto the decision in Ashok Kumar Sharma’s case was wholly unnecessarysince no submission was urged on the basis of that decision by thepetitioners before the High court. However, the High Court also undertookan analysis of the validity of the gradation list independent of the ratio inAshok Kumar’s case. However, the decision of the High Court seemsto intertwine the reasoning on both aspects. Without commenting on themerits of the independent grounds on which the gradation list has beenfaulted, we are of the considered view that it would be appropriate toremand the matter back to the High Court. It was not necessary for theHigh Court or, for that matter, appropriate to rely upon the decision inAshok Kumar’s case, since such a ground was not urged either in thewrit proceedings or in the course of the submissions by the petitionersbefore the High Court. Consequently and for the above reasons, we areof the view that it would be appropriate to set aside the impugned judgmentand order of the High Court and to remit the proceedings to the HighCourt for determination afresh. We clarify that the grounds which haveweighed in paragraph 16 of the impugned judgment, are not sought to beraised by the respondents – original petitioners before the High Court.

10. The main issue in the writ proceedings before the High Courtis whether the seniority for the purpose of the gradation list can befounded on the basis of roster points and this issue would depend uponthe view which is taken by the High Court on the legal position. As notedabove, Mr Gaurav Pachnanda, learned senior counsel has stated thatthe High Court has accepted the view that the gradation list is invalid.The High Court on its Administrative side is not precluded from taking aconsidered decision on this aspect of the matter.

11. Consequently, the impugned judgment and order of the HighCourt dated 27 November 2015 is set aside. The writ petition is restoredto the file of the High Court for a decision afresh. Having regard to thependency of the proceedings, we would request the High Court to disposeof the petition, on remand, preferably within a period of two monthsfrom 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 AB

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310SUPREME COURT REPORTS

Aconsequential directions on the basis of the gradation list for the batch of2003 are held in abeyance so as to abide by the final result of theproceedings before the High Court. The High Court is at liberty on theadministrative side to take a decision in the meantime.

12. The appeal is accordingly disposed of in the above termsB13. Pending application, if any, stands disposed of.

Devika Gujral

Appeal disposed of.

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