TMI Blog2022 (6) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 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 - In Ajit Singh v. State of Punjab, [ 1999 (9) TMI 989 - SUPREME COURT ] , a five Judge Bench of this Court has laid down the law that 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. Thus, the principle of law discernible from all the aforesaid 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 interse seniority among those recruited. To put it in other words, the roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 squarely 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 on the ground that these are not constitutionally permissible 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, validity 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, in favour of private respondents, in implementation of reservation policy, are therefore, liable to be set aside on this ground alone. The conclusion so drawn, ordinarily, would clin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oz (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 in the seniority list of Civil Judges (Senior Division) to be prepared by respondent No. 2 strictly in accordance with merit. We, therefore, refrain from 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 find out whether any posts of Civil Judge (Senior Division) are lying 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 the extent necessary to accord consideration to petitioners 11 to 16, shall stand set aside on expiry of three months from today and consideration accorded to the petitioners p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, yet it cannot be ignored that the Apex Court on 10.03.2003 having declared the decision in P.S. Ghalaut as not laying good law on the subject, none of the authorities, including the High Court could have proceeded to make the roster points as the basis for determining the seniority and further make that a basis for promotions to the post of Sub-Judges. It needs to be reiterated that in the present case appointments of the selected officers were made in terms of Rule 42 of the Jammu Kashmir Civil Services (Judicial) Recruitment Rules, 1967 vide Government Order dated 06.08.2003, i.e. much after the pronouncement of the 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 subject-matter of challenge in the present petitions . 14. We are told that both the petitioners and the private respondents have since been promoted as Sub-Judges and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 adopt the Reservation Rules 1994 for the purpose of fixing the interse 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, thereafter 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 fact 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 parties and having gone through the materials on record the only question that falls for our consideration is whether the interse 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 interse 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste 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 the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The running account is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a representation of a class of citizenry who are socially or economically backward. Article 16 of the Constitution of India is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance of the constitutional schemes. We are of the opinion that the 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 moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed out that 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 and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied. 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 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. 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: 40. It must be noted that whenever a reserved candidate 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 reserved 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 post, 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will get the placement in the order of merit along with the general candidates according to the order of merit maintained by 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, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places 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 situation taken up by this Court in P.S. Ghalaut (supra) where two reserved category candidates were pitted agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd above the roster point promotee who 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 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 in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and held that while the rights of the reserved candidates under Article 16(4) and 16(4A) 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 same 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 State of Punjab filed Interlocutory Applications before this Court, seeking clarifications. These Interlocutory Applications were placed 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 opposite views. The decision rendered by the larger Bench of 5 Judges on these Applications came to be known as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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