Selection Process Ends With Appointment; Future Vacancies Not Part Of Same Process: J&K&L High Court Dismisses Judicial Officers' Seniority Plea

The Court further held that candidates appointed irregularly or dehors the rules cannot take precedence over regularly appointed candidates in the matter of seniority, and that once a seniority list remains unchallenged for several years and is acted upon, it cannot be unsettled.

The Court was hearing a writ petition filed by four selected candidates who were appointed as Munsiffs against future vacancies, seeking quashing of a seniority list issued in 2011 and a direction to fix their seniority on the basis of their inter se merit in the selection process conducted by the Public Service Commission.

A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar, while dismissing the petition, observed that “the idiom 'to have your cake and eat it too' completely fits in the controversy raised and the relief prayed for in this petition.”

Background:

The Department of Law referred 35 posts of Munsiffs, including 04 backlog vacancies in the Scheduled Tribe category, to the J&K Public Service Commission for selection. However, the High Court had initially requisitioned only 31 posts, including the 04 backlog vacancies.

Due to a clerical mistake by the Law Department, the PSC notified 35 posts and selected 35 candidates, including the petitioners. The Government approved the selection. However, the High Court, upon noticing that only 31 vacancies were available, recommended only 31 candidates for appointment, excluding the petitioners. Those 31 were appointed vide Government order dated 01.04.2011.

Thereafter, promotions created fresh vacancies, and the High Court recommended the petitioners for appointment against future vacancies. They were appointed vide Government order dated 29.09.2011. A seniority list issued on 19.11.2011 placed the petitioners below the Munsiffs appointed earlier. After their representation was rejected, the petitioners filed the writ petition in 2018 challenging the seniority list.

Court's Observations:

Adjudicating the matter the Court observed that the petitioners were selected only because of a bona fide error committed by the Law Department in referring 35 posts instead of 31 available posts. The Court held that “had the Department of Law referred 31 available posts and not committed the mistake of referring 35 posts, the petitioners would not have figured in the select list.”

The Court further observed that the petitioners acquired no indefeasible right to be appointed merely because their names appeared in the select list. The Court held,

“There could be no dispute with regard to the proposition that the petitioners acquired no right to be appointed only on the basis of their mere placement in the select list, particularly when they were the candidates selected over and above the available vacancies of Munsiffs. The petitioners could have been very well denied the appointment and there was no obligation on the respondents to accommodate them against the future vacancies.”

The Court noted that the High Court took a compassionate view and utilized four future vacancies that fell vacant after the conclusion of the selection process on account of promotions of Munsiffs to the posts of Sub Judge. However, the Court held,

“The utilisation of four future vacancies to accommodate the petitioners was clearly de hors the Rules and against the settled position of law. The appointment of the petitioners against the future vacancies was de hors the Rules and, in any case, irregular, if not void ab initio.”

Examining Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, the Court reproduced the provision and observed that seniority is determined by the date of first appointment to the service, class, category or grade. Inter se seniority of two or more persons appointed simultaneously will, in the case of direct recruitment, be determined according to their order of merit. However, the Court held that the petitioners and the private respondents were not appointed simultaneously. The Court observed,

“The selection process, as stated above, came to close with the appointment of Munsiffs against the 31 available posts. The subsequent appointment of the petitioners against future vacancies is neither by operation of a waiting list nor a continuation of the selection process initiated in the year 2008, which, as stated above, came to be concluded in the year 2011 with the appointment of 31 candidates recommended by the High Court. Rule 24 of the CCA Rules will not, therefore, be attracted in the given facts and circumstances of the case.”

The Court held that the date of first appointment of the petitioners is 29.09.2011, and they must take seniority accordingly. The Court remarked,

“They cannot claim to be senior to the candidates appointed against the clear vacancies in terms of Government order dated 01.04.2011 merely on the ground that they have higher merit in the selection than some of the category candidates.”

The Court extensively quoted from State of U.P. v. Rafiquddin (1987) Supp SCC 401 , where the Supreme Court considered a similar situation of irregular appointments and reiterated,

“The result of a particular examination must come to an end at some point of time, like a 'dead ball' in cricket. It could not be kept alive for years to come for making appointments.” The Court applied this principle to hold that the 2008 selection process concluded with the appointment of 31 candidates in 2011.

The Court further held,

“It is trite law that those appointed irregularly or de hors or even in relaxation of the rules cannot take precedence over candidates who are regularly appointed in accordance with the rules in the matter of seniority.”

Addressing the issue of delay and laches, the Court observed that the seniority list was issued in 2011 and the writ petition was filed in 2018, after seven years, without any satisfactory explanation. The Court emphasized that seniority once settled and acted upon cannot be unsettled, that too, at the instance of those who are fence-sitters and approach the Court after long delay.

The doctrine of delay and laches applied with greater vigour to matters relating to seniority and promotion as this has adverse effect on third parties, who in the meantime, have moved up the ladder of seniority and/or promotion, the Court underscored.

The petitioners had also attempted to challenge the allocation of roster points to various categories, contending violation of the Reservation Act. The Court declined to examine this issue, observing that In the absence of any challenge to the select list and the manner in which the roster has been applied, we are not inclined to examine the issue in much detail.

“.. The petitioners should have been thankful that they got the appointment to the posts of Munsiffs, to which they had acquired no indefeasible right…. They, however, thought of challenging the seniority list by filing the instant writ petition in the year 2018. The writ petition, as rightly contended by the respondents, is hit by delay and laches and deserves to be dismissed at the threshold”, said the court and dismissed the petition.

Case Title: Tabassum Qadir Parray & Ors. v. High Court of Jammu and Kashmir & Anr.

Citation: 2026 LiveLaw (JKL)

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