MANOJ PARIHAR & ORS. versus STATE OF JAMMU & KASHMIR & ORS on 27 June 2022

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1. This petition seeking leave to appeal under Article 136 of theConstitution is at the instance of unsuccessful original respondents in a H

writ application filed before the High Court of Jammu & Kashmir (JudicialOfficers) and is directed against the judgment and order passed by aDivision 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 theRespondents No. 3 to 19 herein (original writ applicants).

2. The facts giving rise to this special leave petition may besummarized as under:

2.1 At the outset, we may state that this is a 2nd round of litigationbefore this Court on the issue relating to fixation of the seniorityof 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 factthat the respondents herein (original writ applicants) qualified atthe Jammu and Kashmir Civil Services (Judicial) Examinations2002 and were appointed as the Judicial Magistrates in 2002-03.They were placed higher in the merit list compared to the petitionersherein. However, the gradation list was prepared by applying theroster for direct recruitment as provided under Rule 5 of theJammu and Kashmir Reservation Rules, 2005. This in effect ledto the reserved category petitioners displacing the general categoryrespondents in the gradation list. A Writ Petition was filed seekingto quash the gradation list of the Judicial Magistrates and for adirection to prepare the gradation list based on merit.

3. The High Court held as under:

“16. The issue raised in the present petition squarely fallswithin the judgment rendered by the Division Bench in AshokKumar Sharma’s case. Though petitioners do not assail theGradation List and the consequent promotion order on theground that these are not constitutionally permissible andtherefore ultra vires Constitution yet the law laid down in IndraSawhney’s case and relied upon in Ashok Sharma’s case cannotgo unnoticed, while dealing with present case as it touchesconstitutionally of the Reservation Rules whereupon theimpugned Gradation List is based and therefore, validity ofthe High Court orders promoting private respondents on thebasis of this placement in Gradation List. The Gradation Listin question and promotion orders made on the basis thereof, A

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in favour of private respondents, in implementation ofreservation policy, are therefore, liable to be set aside on thisground alone. The conclusion so drawn, ordinarily, wouldclinches the matter. However, it would be, if not necessary,but appropriate to deal with the issues, other thatconstitutionality of Reservation in promotion scheme, raisedin the petition.….

25. For the reasons discussed above, we find merit in challengeto 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 in theGradation List. Challenge to such other orders passed on thebasis of the impugned Gradation List, allowing the privaterespondents, belonging to different Reserved Categories tosteal march over the petitioners, is also to succeed. We aretold that Petitioner 1 to 10 stand already promoted as CivilJudges (Senior Division) and so are respondents 3 to 12 and14 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)Abdul Qayoom Mir and Manzoor Ahmad Zargar figuring atS.No. 19 to 27 in order of merit in the Merit List rank seniorto 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) vide different High Court Orders includingHigh Court order No. 252 dated 04.07.2015. Petitioners 11to 16 and M/s. Mir Afroz (on deputation) Abdul Qayoom Mirand Manzoor Ahmad Zargar, therefore, had a right to beconsidered for promotions as Civil Judges (Senior Division)ahead of respondents 4, 5, 7 to 12. The respondent No. 2 byignoring petitioners claim and failure to accord considerationto their claim has infringed their fundamental rightsguaranteed under Article 16 of the Constitution. However,M/s. Mir Afroz (on deputation) Abdul Qayoom Mir andManzoor Ahmad Zargar, have not joined as petitioners inpresent petition. Petitioners have not questioned the orders whereby private respondents 4, 5, 7 to 12 were promotedincluding High Court order No. 252 dated 04.07.2015.Respondents 4, 5, 7 to 12 presumably have been working asCivil Subordinate Judges, Senior Division for quite sometime.We do not have definite information about the posts of CivilJudges (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,directed to be considered for promotion as Civil Judges (SeniorDivision) against such post without disturbing respondents4, 5, 7 to 12 and thereafter placed in the seniority list of CivilJudges (Senior Division) to be prepared by respondent No. 2strictly in accordance with merit. We, therefore, refrain fromsetting aside the orders whereby respondents 4, 5, 7 to 12have been promoted as Civil Judges (Senior Division). Wedirect respondent No. 2 to undertake an exercise to find outwhether any posts of Civil Judge (Senior Division) are lyingvacant as on date so that consideration is accorded topetitioners promotion against available posts. Let suchexercise be completed with three months from today. In theevent, no such posts (s) is/ are found lying vacant or lessthan the posts required to consider petitioners 11 to 16 arelying vacant, the order (s) whereby respondents 4, 5, 7 to 12have been promoted as Civil Judges (Senior Division), to theextent necessary to accord consideration to petitioners 11 to16, shall stand set aside on expiry of three months from todayand consideration accorded to the petitioners’ promotionagainst the available vacancies. On completion of the exerciseeither way respondent No. 2 shall reframe and notify theseniority list in accordance with merit.”

4. The petitioners herein being dissatisfied with the aforesaidjudgment and order passed by the High Court challenged the same beforethis Court by way of the Special Leave Petition (Civil) No. 3786 of2016. Leave was granted. The Special Leave Petition got culminated inthe Civil Appeal No. 6928 of 2021. The Civil Appeal No. 6928 of 2021ultimately came to be disposed of by this Court holding as under:

“10. The main issue in the writ proceedings before the HighCourt is whether the seniority for the purpose of the gradation ABCD

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list can be founded on the basis of roster points and this issuewould depend upon the view which is taken by the High Courton the legal position. As noted above, Mr. GauravPachnanda, learned senior counsel has stated that the HighCourt has accepted the view that the gradation list is invalid.The High Court on its Administrative side is not precludedfrom taking a considered decision on this aspect of thematter…..

11. Consequently, the impugned judgment and order of theHigh Court dated 27 November, 2015 is set aside. The writpetition is restored to the file of the High Court for a decisionafresh. Having regard to the pendency of the proceedings,we would request the High Court to dispose of the petition,on remand, preferably within a period of two months from thedate of receipt of a certified copy of this order. In the meantime,pending the decision of the High Court, it would beappropriate if consequential directions on the basis of thegradation list for the batch of 2003 are held in abeyance soas to abide by the final result of the proceedings before theHigh Court. The High Court is at liberty on the administrativeside 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 re-heard the matterand took the view that the seniority should be fixed in accordance withthe merit determined by the Public Service Commission and not inaccordance with the roster points. We quote the relevant observationsmade by the High Court including the operative part of the impugnedjudgment and order as under:

“13. In the past, while it may be true that the High Court hadbeen maintaining the seniority based upon the roster points,as mentioned under Rule 14 of the Reservation Rules of 1994may be on the strength of the ratio of the judgment in P.S.Ghalaut, yet it cannot be ignored that the Apex Court on10.03.2003 having declared the decision in P.S. Ghalaut asnot laying good law on the subject, none of the authorities,including the High Court could have proceeded to make theroster points as the basis for determining the seniority and further make that a basis for promotions to the post ofSubJudges. It needs to be reiterated that in the present caseappointments of the selected officers were made in terms ofRule 42 of the Jammu & Kashmir Civil Services (Judicial)Recruitment Rules, 1967 vide Government Order dated06.08.2003, i.e. much after the pronouncement of thejudgment in Bimlesh Tanwar’s case.

It was precisely for that reason that the counselrepresenting the High Court had admitted before the ApexCourt that the gradation list was invalid, which is the subject-matter of challenge in the present petitions….

14. We are told that both the petitioners and the privaterespondents have since been promoted as Sub-Judges and,therefore, even when there was an initial challenge to thepromotion of respondent Nos. 3 & 4 in the writ petition, nopromotions would be effected if the seniority was directed tobe fixed as per merit….

15. Having considered the matter in the light of the facts andthe law discussed hereinabove, we hold as under:- a.The gradation list dated 01.06.2010 to the extent, andinsofar as, it pertains to the selection made by the PublicService Commission for the post of Munsiffs in referenceto Notification No. PSC/Ex-2001/64 dated 04.12.2001,is quashed.

b.The respondent No. 2 is directed to re-frame the senioritylist in regard to the selection process for the post ofMunsiffs, pertaining to notification dated 04.12.2001,strictly in accordance with merit obtained by the selectedcandidates in the examination conducted by the PublicService Commission.

c.Such of the candidates, including the petitioners, whoon account of the impugned gradation list were notpromoted on time and, therefore, could not gain therequisite experience for appearing in the limitedcompetitive examination in terms of the Jammu &Kashmir Higher Judicial Service Rules, 2009, wouldbe held eligible to take such an examination, if another AB

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Civil Judge in the same post but lower in the reframedseniority list was eligible to take such an examination.

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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.B

7. Mr. Ranjit Kumar, the learned Senior Counsel appearing forthe petitioners vehemently submitted that the High Court committed aserious error in passing the impugned order. The learned Senior Counselvehemently submitted that it cannot be argued as an absolute propositionof law that for the purposes of fixing seniority only merit is to be consideredCand not the roster points. He would submit that it should be left to theauthorities such as the High Court in the case on hand to evolve a fairand just principle, more particularly, whether the Rules governing theseniority are absent. He would submit that since the Recruitment Rules1967 are silent with regard to the procedure of promotion of Munsiffs toDthe posts of Sub-Judges as well as the manner of determination of theirinter-se seniority. The High Court on its administrative side in exerciseof powers under Article 111 of the Constitution of Jammu & Kashmirwhich is pari materia with Article 235 of the Constitution of India haddecided in its Full Court Resolution dated 04.12.1994 to adopt theReservation Rules 1994 for the purpose of fixing the inter-se seniority ofErecruits for the post of Munsiff and this practice was followed consistentlybetween 1995 and 2003.

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8. Mr. Ranjit Kumar pointed out that the High Court adopted themethodology of fixing the seniority in accordance with the roster since1995. First, it was applied to the 11 Munsiffs appointed in the year 1995,thereafter to the 10 Munsiffs appointed in the year 1997, thereafter tothe 32 Munsiffs appointed in the year 2000, thereafter to the 17 Munsiffsappointed in the year 2001 and in the last 47 Munsiffs appointed in theyear 2003 which included the petitioners and the respondents hereinbefore this Court.

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G9. The learned Senior Counsel laid much emphasis on the factthat neither the petitioners herein nor the respondents herein thought fitto challenge either the Reservation Rules 1994 or the Full Court Resolutiondated 04.12.1994 on the basis of which the candidates were appointedand their seniority was fixed in accordance with the roster. Both thesides were aware and conscious that the fixation of seniority inH

accordance with the roster was based on the decision of the Full Courtand, more particularly, for the reason that the 2003 batch was not thefirst batch where roster was applied in terms of the Reservation Rules1994.

10. He would submit that both the sides since their appointment inthe year 2003 never questioned the legality and validity of the methodologyadopted by the High Court for the purpose of fixation of seniority inaccordance with the roster.

11. The learned Senior Counsel vehemently submitted that theHigh Court committed a serious error in applying the Jammu & KashmirReservation Rules 2005 which in turn came to be framed under theJammu & Kashmir Reservation Act 2004 and notified on 21.10.2005 forthe purpose of fixation of the inter-se seniority. The argument of thelearned Senior Counsel is that the Act and the Rules framed thereunder,do not have any retrospective operation and they could not have beenmade applicable to fix the seniority of the appointees of the year 2003.Mr. Ranjit Kumar invited the attention of this Court to the proviso toRule 37 which mandates that the Rules shall not apply to the vacanciesor posts in respect of which advertisement have been issued or theselection process have been initiated before coming into force of theRules 2005. In short, the argument of the learned Senior Counsel is thatthere cannot be any prospective operation of the Rules 2005. In the last,the learned Senior Counsel submitted that why should the petitionerssuffer for no fault on their part as the 2003 batch is the last one to whomthe Rules of 2005 are sought to be made applicable. In other words, theargument is that if the seniority is to be fixed in accordance with themerit of the appointees of the batch of 2003 and not on the basis of theroster points then many of the petitioners would have no chances of anyfurther promotion.

12. In such circumstances referred to above, the learned SeniorCounsel prays that there would be merit in his petition. Leave may begranted and the appeal may be admitted.

13. On the other hand, this petition has been vehemently opposedby 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 A

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Aby the High Court in taking the view that the seniority should be fixed inaccordance with the merit determined by the Public Service Commissionand not in accordance with the roster points. All the learned Counselwould submit that the law in this regard is no longer res integra and iswell settled.

14. In such circumstances referred to above, all the learnedCounsel appearing for the respondents pray that no case is made out forgrant of leave and the petition may be dismissed.

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Analysis

15. Having heard the learned Counsel appearing for the partiesCand having gone through the materials on record the only question thatfalls for our consideration is whether the inter-se seniority of the Munsiffsappointed by way of direct recruitment on the recommendations of theState Public Service Commission should be fixed/ determined on thebasis of the roster points or in terms of the order of their inter-se merit atthe time of their selection?D

16. The first and the foremost aspect, we would like to clarify, isthat in the case of direct recruitment, the preparation of inter se meritlist of the selected candidates is inevitable, even in the absence of anexplicit provision in the rule or policy, the recruitment authority cannotEplace the candidates inter se in the select list under the rule of thumb orby adopting the methodology which is inconsistent with the spirit of Articles14 and 16 of the Constitution. The inter se merit list of the selectedcandidates can be prepared as a combined effect of several factors likewritten test, objective test, viva-voce and/or other parameters as mayhave been prescribed keeping in view the special requirement of service.FSimilarly, though not concerned in the present case, even in a case ofpromotion based on merit-cum-seniority, seniority by itself is not the onlyqualification for promotion to a selection post. If the criteria for promotionis merit-cum-seniority, the comparative merit has to be evaluated in whichseniority will be one of the factors only. However, in the case of merit-Gcum-seniority even a junior most person may steal a march over hisseniors and jump the queue for accelerated promotion.

17. Keeping the aforesaid fundamental principle of servicejurisprudence, we now proceed to consider the case law on the subjectgoverning the rights of the parties before us as under.

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MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR& ORS.

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 raisedby the learned counsel for the petitioners. The reservationsprovided under the impugned Government instructions are tobe operated in accordance with the roster to be maintainedin each Department. The roster is implemented in the form ofrunning account from year to year. The purpose of “runningaccount” is to make sure that the Scheduled Castes/ScheduleTribes and Backward Classes get their percentage of reservedposts. The concept of “running account” in the impugnedinstructions has to be so interpreted that it does not result inexcessive reservation. “16% of the posts …” are reserved formembers of the Scheduled Castes and Backward Classes. Ina 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 reservedand earmarked in the roster for the Scheduled Castes. Rosterpoints 26 and 76 are reserved for the members of BackwardClasses. It is thus obvious that when recruitment to a cadrestarts then 14 posts earmarked in the roster are to be filledfrom amongst the members of the Scheduled Castes. Toillustrate, first post in a cadre must go to the Scheduled Casteand thereafter the said class is entitled to 7th, 15th, 22nd andonwards up to 91st post. When the total number of posts in acadre are filled by the operation of the roster then the resultenvisaged by the impugned instructions is achieved. In otherwords, in a cadre of 100 posts when the posts earmarked inthe roster for the Scheduled Castes and the Backward Classesare filled the percentage of reservation provided for thereserved categories is achieved. We see no justification tooperate the roster thereafter. The “running account” is tooperate only till the quota provided under the impugnedinstructions is reached and not thereafter. Once the prescribedpercentage of posts is filled the numerical test of adequacy issatisfied and thereafter the roster does not survive. Thepercentage of reservation is the desired representation of theBackward Classes in the State Services and is consistent withthe demographic estimate based on the proportion workedout in relation to their population. The numerical quota of A

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SUPREME COURT REPORTS

Aposts is not a shifting boundary but represents a figure withdue application of mind. Therefore, the only way to assureequality of opportunity to the Backward Classes and thegeneral category is to permit the roster to operate till the timethe respective appointees/promotees occupy the posts meantfor them in the roster. The operation of the roster and theB“running account” must come to an end thereafter. Thevacancies arising in the cadre, after the initial posts are filled,will pose no difficulty. As and when there is a vacancy whetherpermanent or temporary in a particular post the same has tobe filled from amongst the category to which the post belongedCin the roster. For example the Scheduled Caste persons holdingthe posts at roster points 1, 7, 15 retire then these slots are tobe filled from amongst the persons belonging to the ScheduledCastes. Similarly, if the persons holding the post at points 8to 14 or 23 to 29 retire then these slots are to be filled fromamong the general category. By following this procedure thereDshall neither be shortfall nor excess in the percentage ofreservation.”

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 instructionsissued by the Haryana Government in its circular letter dated27-4-1972, roster points cannot be considered as senioritypoints and further having regard to the fact that theseinstructions have been followed by the High Court for a longtime, there is absolutely no reason as to why such a practiceshould be deviated from. The learned counsel contended thatthis Court in Ajit Singh (II) 5 having categorically held thatroster points are not intended to determine seniority betweengeneral candidates and reserved candidates, the impugnedjudgment cannot be faulted with.

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24. The Rules, therefore, indisputably lay emphasis on merit.It for all intent and purport excludes the applicability of ruleof appointment in terms of roster points.

33. The question as to whether the determination of inter seseniority would depend upon the filling up of the vacancies H

so far as the reserved categories are concerned, having regardto the roster points, in our opinion, is no longer res integra.

40. An affirmative action in terms of Article 16(4) of theConstitution is meant for providing a representation of a classof citizenry who are socially or economically backward.Article 16 of the Constitution of India is applicable in thecase of an appointment. It does not speak of fixation ofseniority. Seniority is, thus, not to be fixed in terms of theroster points. If that is done, the rule of affirmative actionwould be extended which would strictly not be in consonanceof the constitutional schemes. We are of the opinion that thedecision 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 Courtstated as follows:

“16. A grievance was made that the petitioners have movedthis Court after a long unexplained delay and the Court shouldnot grant any relief to them. It was pointed out that theprovisional seniority list was drawn up on March 22, 1971and the petitions have been filed in the year 1983. Therespondents therefore submitted that the Court should throwout the petitions on the ground of delay, laches andacquiescence. It was said that promotions granted on the basisof impugned seniority list were not questioned by thepetitioners and they have acquiesced into it. We are notdisposed to accede to this request because Respondents 1 to3 have not finalised the seniority list for a period of morethan 12 years and are operating the same for furtherpromotion to the utter disadvantage of the petitioners.Petitioners went on making representations afterrepresentations which did not yield any response, reply orrelief. Coupled with this is the fact that the petitioners belongto the lower echelons of service and it is not difficult tovisualise that they may find it extremely difficult to rush to thecourt. Therefore, the contention must be rejected.

17. In view of the discussion, these petitions succeed and areallowed and a writ in the nature of certiorari is issuedquashing the impugned seniority list dated March 22, 1971

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Ain respect of Khandsari Inspectors. The Respondents 1 to 3are directed to draw up a fresh seniority list based on theprinciple of length of continuous officiation reckoned fromthe date of first appointment if the appointment is followedby confirmation i.e. selection/approval by the State PublicService Commission. We order accordingly, but in theBcircumstances of the case, there will be no order as to costs.”

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21. In Kuldip Chand v. Union of India, (1995) 5 SCC 680, thisCourt stated thus:

“4. It is next contended by Mr. M.M. Kashyap, learned counselfor the appellant, that Ashok Kumar disputed the correctnessof the seniority list made on 23-12-1982 in his representationsdated 10-1-1983 and 1-8-1983 which were duly consideredand rejected. He allowed it to become final as he did notchallenge the same till post of accountant became vacant.When it was rejected, he filed the writ petition in the HighCourt. There is a considerable delay in claiming his seniorityover the appellant. It is true that the seniority list was preparedas early as on 23-12-1982 but no vacancy had arisenthereafter and, therefore, the mere rejection of the claim forseniority does not disentitle him to claim his seniority overthe appellant for consideration by the respondent-Union.

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5. When the aforesaid facts are taken into consideration, itwould be obvious that the preparation of seniority list per sewas illegal. Therefore, the mere fact that he did not challengethe seniority list, which was illegally prepared, till he wasaggrieved for non-consideration of the claim to the post ofaccountant, his legitimate right to be considered cannot bedenied. Under these circumstances, the delay is of noconsequence for considering the claims of Ashok Kumar forthe post of accountant.”

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22. The question as to whether the determination of inter-seseniority would depend upon the filling up of the vacancies so far as thereserved categories are concerned, having regard to the roster points, inour opinion, is no longer res integra.

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23. In Ajit Singh v. State of Punjab, (1999) 7 SCC 209, a fiveJudge Bench of this Court has laid down the law in the following terms:H

“40. “It must be noted that whenever a reserved candidategoes for recruitment at the initial level (say Level 1), he is notgoing through the normal process of selection which is appliedto a general candidate but gets appointment to a post reservedfor his group. That is what is meant by “reservation”. That isthe effect of “reservation”.

41. Now in a case where the reserved candidate has not optedto contest on his merit but has opted for the reserved post, ifa roster is set at Level 1 for promotion of the reserved candidateat various roster points to Level 2, the reserved candidate, ifhe is otherwise at the end of the merit list, goes to Level 2without competing with general candidates and he goes upby a large number of places. In a roster with 100 places, ifthe roster points are 8, 16, 24 etc. at each of these points thereserved candidate if he is at the end of the merit list, getspromotion to Level 2 by side-stepping several generalcandidates. That is the effect of the roster-point promotion.

42. It deserves to be noticed that the roster points fixed atLevel 1 are not intended to determine any seniority at Level 1between general candidates and the reserved candidates. Thisaspect we shall consider again when we come to MervynContinho v. Collector of Customs (1966) 3 SCR 600 lowerdown. The roster point merely becomes operative whenever avacancy reserved at Level 2 becomes available. Once suchvacancies are all filled, the roster has worked itself out.Thereafter other reserved candidates can be promoted onlywhen a vacancy at the reserved points already filled arises.That was what was decided in R.K. Sabharwal v. State ofPunjab (1995) 2 SCC 745.”

24. In Ajit Singh (II), the decision of this Court in R.K. Sabharwalcase has, thus, been explained as under:

“P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625] reliedupon by Dr. Chauhan, is a decision rendered by a two Judgebench. In that case Rule 13 of the Rules envisaged that theseniority inter se of members of the service shall be determinedby the length of continuous service on any post in the service;provided further that in the case of two or more members A

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appointed by direct recruitment, the order of merit determinedby the Commission shall not be disturbed in fixing the seniority.Despite the said Rule, it was held as under:

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“Take for instance Vacancies Nos. 1 and 6, as pointed outin the Chief Secretary’s letter have admittedly beenreserved for Scheduled Castes. Suppose recruitment wasmade to fill up ten vacancies, three candidates fromScheduled Castes were selected on the basis of reservedquota. The question is whether the first candidate will beput in the quota allotted to the Scheduled Castes in theroster. Having been selected as a general candidate, thoughhe is more meritorious than the second and thirdcandidates, 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 theplacement at Nos. 1 and 6 and the first candidate will getthe placement in the order of merit along with the generalcandidates according to the order of merit maintained bythe 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 ScheduledCastes at Point No. 1 in the roster. Equally, though general B

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candidate is more meritorious in the order of meritprepared by the Public Service Commission or the SelectionCommittee, when the appointments are made and thevacancies are filled up according to the roster, necessarilyand inevitably the reserved candidates though lessmeritorious in the order of merit maintained by the PublicService Commission would occupy the respective placesassigned in the roster. Thereby they steal a march over someof the general candidates and get seniority over the generalcandidates. This scheme is, therefore, constitutional, validand is not arbitrary.”

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We have not been able to persuade ourselves to the aforesaidview.”

25. It will be of interest to note that the hypothetical situationtaken up by this Court in P.S. Ghalaut (supra) where two reservedHcategory candidates were pitted against each other, was actually extracted by this Court in para 36 of the report in Bimlesh Tanwar (supra) andthis Court recorded that the same was not correct. In para 40 of thereport this Court eventually held as follows:- “40. An affirmative action in terms of Article 16(4) of theConstitution is meant for providing a representation of classof citizenry who are socially or economically backward.Article 16 of the Constitution of India is applicable in thecase of an appointment. It does not speak of fixation ofseniority. Seniority is, thus, not to be fixed in terms of theroster points. If that is done, the rule of affirmative actionwould be extended which would strictly not be in consonanceof the constitutional schemes. We are of the opinion that thedecision in P.S. Ghalaut does not lay down a good law.”

26. What was done in Bimlesh Tanwar (supra) was actually adeclaration of law. Therefore, the same will have retrospective effect.In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court heldthat “the law declared by a court will have retrospective effect, ifnot otherwise stated to be so specifically”.

27. This Court was conscious of the fact, as could be seen fromparagraph 19 of the report in P.V. George (supra), that when the doctrineof stare decisis is not adhered to, a change in the law may adverselyaffect the interest of the citizens. But still this Court held that the powerto apply the doctrine of prospective overruling (so as to remove theadverse effect) must be exercised in the clearest possible term.

28. Therefore, it is clear that anything done as a consequence ofthe decision of this Court in P.S. Ghalaut (supra), cannot stand sincethis Court did not apply the doctrine of prospective overruling in BimleshTanwar (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 reservedcategory candidates who got promotion at roster points wouldnot be entitled to claim seniority at the promotional level asagainst senior general category candidates who got promotedat a later point of time to the same level. The Court held thatthe State was entitled to provide, what came to be known inpopular terms as the “catch up rule” enabling the seniorgeneral category candidates who got promoted later, to claim A

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seniority over and above the roster point promotee who gotpromoted earlier.

(ii) The catch up rule formulated in Virpal was approved by athree member Bench in Ajit Singh Januja v. State of Punjab[(1996) 2 SCC 715]. This case came to be known as Ajit Singh(I).

(iii) But, another three member Bench took a different view inJagdish Lal v. State of Haryana [(1997) 6 SCC 538] andheld that while the rights of the reserved candidates underArticle 16(4) and 16(4-A) were fundamental rights, the rightto promotion was a statutory right and that therefore, the rosterpoint promotees have to be given seniority on the very samebasis as those having continuous officiation in a post.

(iv) Since Jagdish Lal took a view contrary to the viewsexpressed in Virpal Singh and Ajit Singh (I), the State ofPunjab filed Interlocutory Applications before this Court,seeking clarifications. These Interlocutory Applications wereplaced before a Constitution Bench comprising of 5 Judges,in view of the fact that two Benches of coordinate jurisdiction(both three member Benches) had taken diametrically oppositeviews. The decision rendered by the larger Bench of 5 Judgeson these Applications came to be known as Ajit Singh (II), inAjit Singh v. State of Punjab [(1999) 7 SCC 209].

(v) Eventually, the Constitution Bench held in Ajit Singh (II)that the roster point promotees cannot count their seniority inthe promoted category, from the date of their continuousofficiation in the promoted post, vis-a-vis the general categorycandidates who were senior to them in the lower categoryand who were later promoted. As a consequence, Virpal andAjit Singh (I) were declared to have been decided correctlyand Jagdish Lal was declared to be incorrect.”

29. Thus, the principle of law discernible from all the aforesaiddecisions of this Court is that the roster system is only for the purpose ofensuring that the quantum of reservation is reflected in the recruitmentprocess. It has nothing to do with the inter-se seniority among thoserecruited. To put it in other words, the roster points do not determine theseniority of the appointees who gain simultaneous appointments; that is

to say, those who are appointed collectively on the same date or aredeemed to be appointed on the same date, irrespective when they joinedtheir posts. The position of law as discussed about could be said to beprevailing even while the High Court of Jammu & Kashmir decided bya Full Court Resolution to determine the seniority on the basis of rosterpoints.

30. We are not inclined to carve out an exception for the 2003appointees that is the petitioners herein before us. The High Court in ourview rightly applied the principle of law explained by this Court in thecase of Bimlesh Tanwar (supra).

31. There is one another important aspect of this matter, we needto take notice of. The High Court in its impugned judgment and orderhas observed that the appointments of the selected officers were madein terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial)Recruitment Rules 1967 vide the Government order dated 06.08.2003that is much after the pronouncement of the judgment in the case ofBimlesh Tanwar (supra). It makes all the differences.

32. In the overall view of the matter, we are convinced that thereis no jurisdictional infirmity or any other infirmity in the impugned judgmentpassed 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)

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