28 Jun 2022 6:38 AM GMT
The Supreme Court, on Monday, upheld the order of the Jammu & Kashmir and Ladakh High Court that inter-se seniority for Munsiffs appointed by way of direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection and not roster points. Refusing to interfere with the order of the High...
The Supreme Court, on Monday, upheld the order of the Jammu & Kashmir and Ladakh High Court that inter-se seniority for Munsiffs appointed by way of direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection and not roster points. Refusing to interfere with the order of the High Court, the Apex Court noted -
"The High Court vide impugned judgment relying upon the settled principles, has ruled that such seniority should be determined on the basis of merit on which the candidates were selected by the Public Service Commission as roster points are not meant to assign seniority. In our considered view, the High Court has correctly followed the settled law."
As Senior Advocate, Mr. Ranjit Kumar appearing on behalf of the appellant, vehemently argued that without any fault of theirs, one whole batch of Munsiffs were suffering because of subsequent change in Rules introduced by the High Court, a Bench comprising Justices Surya Kant and J.B. Pardiwala acknowledged it by stating -
"We are not blaming you, the mistake was committed by the High Court on its administrative side. You are good officers, our good wishes are with you."
It added -
"They are judicial officers and to be honest we don't want any uncertainty in their career. Let the seniority issue be settled and they can work peacefully. The temporary hardship may be caused to X, Y, Z, but that would eventually completely settle down the uncertainty in seniority."
Mr. Kumar apprised the Bench that as per the past practice of the High Court, roster point was considered to determine inter-se seniority. In 2005 by way of revised Rules it was based on merit. He clarified that the appointment of the concerned officers were made before the Reservation Rules of 2005 came into existence. It was added that the High Court had admitted these facts in their affidavit.
Justice Kant succinctly elucidated that it is settled law that seniority is to be determined on the basis of merit and not roster. Roster point is meant to ensure the representation of the reserved categories. He also noted that even if a practice as put forth by Mr. Kumar was prevalent in J&K High Court, it was in derogation of the trite law.
"Assuming there was a practice in the High Court determining seniority on the basis of roster points, such a practice was palpably illegal. After R.K. Sabharwal how could it have been done?...Roster points for seniority have never been recognised. Consistently the court has been against it."
After a thorough discussion on the Rules and practices of the High Court, at the request of the Senior Advocate, the Bench recorded -
"We are satisfied that even in absence of 2005 Rules, the High Court was obligated to determine the seniority on the basis of the inter-se merit of the candidates at the time of their selection by the State Public Service Commission."
Last year, the Madras High Court had ruled that the seniority of judicial officers must be fixed on the basis of inter-se merit in the competitive exam and not on the basis of roster points.
Judges' Seniority Can't Be Fixed On Basis Of Roster Points; Must Be Based On Marks In Recruitment Exam : Madras High Court
The J&K Public Service Commission had initiated the process of recruitment to fill up 50 vacancies of Munsiffs, by utilising roster points from 81 onwards on a 100 point roster. Pursuant to a notification dated 04.12.2001, examination was conducted in this regard, and consequently a merit list was prepared as per Rule 13(2) of the Jammu and Kashmir Civil Services (Judicial) Recruitment Rules, 1967. By way of a communication dated 09.05.2003, the Public Service Commission recommended the names of the candidates for appointment based on their overall performance in written examination, viva-voce and the medical examination. As per recommendations appointment was made by the Government order dated 06.08.2003 in terms of Rules 42 of the Jammu and Kashmir Civil Services (Judicial) Recruitment Rules, 1967. However, no seniority list was published. In 2011 when the process for effecting promotion of 2003 batch to the grade of Sub-Judge commenced it came to public knowledge that there existed a seniority list dated 01.06.2010, which was not based on merit, but roster for direct recruitment under Rule 5 of the Jammu and Kashmir Reservation Rules, 2005. The same was challenged before the J&K High Court wherein the petitioners relied on Rule 31 of Jammu and Kashmir Reservation Rules, 2005 and Rule 24(1)(b) of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 to primarily argue that roster points in terms of Reservation Rules is not an aid to determine the inter-se seniority of the candidates. A Division Bench of the High Court had decided the matter which was challenged before the Supreme Court. Upon consideration, the Apex Court had remanded the matter back to the High Court. Thereafter, the High Court quashed the gradation list dated 01.06.2010 stating that it is trite the seniority list had to be prepared strictly in accordance with merit and not roster points. It further permitted the petitioners, who on account of the 01.06.2010 graduation list were not promoted and thus could not gather requisite experience for appearing in the limited competitive examination in terms of J&K Higher Judicial Service Rules, 2009, would be eligible to take such an examination, if another Civil Judge in the same post but lower in the reframed seniority list was eligible to take such an examination.
Manoj Parihar vs State of Jammu And Kashmir | 2022 LiveLaw (SC) 560 | SLP(C) No. 11039 of 2022 | 27 June 2022
Coram: Justice Surya Kant and JB Pardiwala
Service Law - Judicial Service - Munisffs - 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 or are deemed to be appointed on the same date, irrespective when they joined their posts - 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 those recruited. (Para 29)
Prospective Overruling - The law declared by a court will have retrospective effect, if not otherwise stated to be so specifically - Power to apply the doctrine of prospective overruling (so as to remove the adverse effect) must be exercised in the clearest possible term - Referred to P.V. George v. State of Kerala, (2007) 3 SCC 557. (Para 26-28)
Service Law - 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, vivavoce and/or other parameters as may have been prescribed keeping in view the special requirement of service. (Para 16)
Service Law - Promotion based on merit cum seniority - Seniority by itself is not the only qualification for promotion to a selection post - The comparative merit has to be evaluated in which seniority will be one of the factors only - Even a junior most person may steal a march over his seniors and jump the queue for accelerated promotion. (Para 16)