REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1801  OF 2009 [Arising out of SLP (C) No.4326/2007]

State of Jammu & Kashmir & Ors. … Appellants

Versus

Javed Iqbal Balwan & Ors. … Respondents

W I T H

                CONTEMPT PETITION (C) NO.309 OF 2007 IN SLP( C ) NO.4326 OF 2007

J U D G M E N T

AFTAB ALAM,J.

1. Leave granted.

2. This  appeal  arises  from  a  dispute  of  seniority  in  the  cadre  of

Tahsildars in the J & K Revenue (Gazetted) Service. A dispute of seniority

between  direct  recruits  and  promotees  normally  tends  to  be  bitter  and

thorny. This one is particularly so as it is the product  of years of ad-hoc

arrangements and it further involved, at least at the stage of the High Court

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the  additional  dispute  in  regard  to  the  date  with  effect  from which  the

promotee  Naib  Tahsildars  were  regularised  as  Tahsildars.  In  this  appeal,

however,  on  behalf  of  the  State  of  Jammu  and  Kashmir  we  are  only

concerned  with  the  dispute  of  seniority  between  the  promotees  and  the

direct recruits in the J & K Revenue (Gazetted) Service. The dispute is now

almost  a quarter  of a century old (the other  part,  with  which we are not

concerned in this appeal, of course goes far behind it). During this period of

about twenty five years the matter has undergone three rounds of litigations

and has seen countless writ petitions and Letters  Patent  Appeals  in  the

High  Court of  J & K ending up in appeals, (including the one in hand),

before this Court. The first round was in regard to the claim by a number of

candidates, who, though finding place in the select list prepared by the State

Public  Service  Commission  were  denied  appointment  by  the  State

government.  They claimed appointment to the different services under the

State government  on the basis  of their  selection  by the Commission.  On

being successful in the first round and on entering the service, some of the

direct recruits started the next round claiming what they considered their

due seniority on the basis of the vacancies against which their appointments

were made. At the end of round two, following the orders of the High Court

and  this  Court,  the  State  Government,  gave  the  direct  recruits  notional

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seniority with effect from 1984. This led to the beginning of the third round

of litigation in which the direct recruits challenged the government order of

their notional seniority and claimed seniority over the Naib Tahsildars who

on being promoted as Tahsildars were regularised on those posts with effect

from January 1, 1984 allegedly far in excess of their quota in the service and

in violation of the statutory rules. In the last round a division bench of the

High Court once again grappled with the matter and tried to finally resolve

and settle the issue by a long and exhaustive judgment at the end of which

the direct recruits were granted almost everything that they prayed for.

3. Before proceeding further it will be useful to state the relevant facts

and we propose here to confine to the barest, necessary for disposing of this

appeal.  On  October  8,  1973  the  State  Government  appointed  about  118

people as Naib Tahsildars in the State’s Revenue (Subordinate) Service. The

appointments were temporary and subject to the express condition that the

appointees  would pass  the departmental  examination  for  Naib Tahsildars

conducted  by  the  State’s  Public  Service  Commission  within  two  years

(being the period of probation under the relevant rules) failing which they

would be liable  to  be discharged from service.  Only a few were able to

satisfy the condition but the default stipulation was never invoked in regard

to those who were not able to clear the examination. Instead, the period of

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Probation  was  extended  by one  year  for  about  83  appointees  who  were

unable to pass the examination within the prescribed time. Later on, some of

those Naib Tahsildars who were able to pass the departmental examination

for Naib Tahsildar also appeared in the examination of Tahsildar held by the

J  &  K  Public  Service  Commission.  The  result  of  the  examination  was

published on December 7, 1981 and four Naib Tahsildars who were able to

pass the examination were promoted as Tahsildars in the State’s Revenue

(Gazetted)  Service  by  order  dated  February  2,  1982.  Later,  the  govt.

retrospectively modified the relevant rules concerning the examination with

effect from June 1, 1981. The relaxation of the rules benefitted a number of

Naib Tahsildars who were shown as failed in the original result published

on December 7, 1981 and consequently they too were declared passed in the

examination.  The  government  then  constituted  a  selection  committee  for

promotion  of  eligible  officers  as  Tahsildars  in  the  State’s  Revenue

(Gazetted)  Service.  The  committee  held  interviews  but  before  any

promotion orders were issued writ  petitions came to be filed in the High

Court challenging the amendment in the rules and the constitution of the

promotion  committee  etc.  in  which  the  High  Court  gave  certain  interim

directions. In the year 1983 the State Government felt that its programme of

agrarian reforms was badly suffering due to large number of vacancies at

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the  level  of  Tahsildars.  It,  accordingly,  took  the  decision,  in  interest  of

government  work,  to  make  temporary  arrangements  and  by  order  dated

March 17, 1983 granted promotion to 31 Naib Tahsildars as Tahsildars in

their own pay scale, pending final selection by the departmental selection

committee/Public Service Commission (as required by the rules) and subject

to the result of the cases pending in High Court. That order too came under

challenge before the High Court and as a result of the orders passed by the

High  Court  the  arrangement  was  discontinued  in  the  year  1985.  On

February 9, 1989 the government accorded sanction to the confirmation of

28 Naib Tahsildars, who had passed the Naib Tahsildar examination within

the stipulated period of two years against  lien free posts with effect from

October  8,  1975.   On July 17,  1992  the  government  issued an order  by

which  Naib  Tahsildars,  named in  the  order,  were  allowed  the  pay  scale

admissible for the post of Tahsildar from the respective dates they held the

charge  of  that  post.  Further  by government  order  dated  June  11,  1993  a

number of Tahsildars were posted with immediate effect as Special Officers,

Revenue from the dates shown against their names in the order. The officers

were assigned higher responsibilities in their own pay and grade. Later, on

February 18, 1994 some of those officers were, having regard to their merit

and  suitability,  appointed,  as  Assistant  Commissioners.  On February 24,

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1994  the  State  Government  came out  with  a  circular  stating  that  it  was

contemplating to induct the Revenue Officers into the J & K Administrative

Service.  The circular asked all the concerned officers to furnish their annual

performance reports to the authorities by March 5, 1994. On November 20,

1996  the  government  sanctioned  release  of  the  pay  scale  of  Deputy

Secretaries in favour of 34 Under Secretaries who were earlier promoted to

the post of Deputy Secretary in their own pay scale. Finally, by order No.

Rev (A)128 of 1997, dated June 17, 1997 the government, in relaxation of

the rules, accorded sanction to the regular appointment of Naib Tahsildars,

the members of J & K Revenue (Subordinate) Service (whose names were

stated  in  the  annexure  to  the  said  order)  as  Tahsildars  with  effect  from

January 1, 1984. It needs to be stated here that the government order failed

to satisfy some of the promotee Tehsildars  who went to the High Court,

challenging it and claiming regularisation from the respective dates (earlier

to January 1, 1984) from which they were given the charge of the post of

Tahsildar.

4. It is thus to be seen that over a period of about twenty four years over

a  hundred  Naib  Tahsildars  appointed  in  the  year  1973  in  the  State’s

Revenue  (Subordinate)  Service  were  inducted  into  the  State’s  Revenue

(Gazetted) Service as Tahsildars and some of them were even able to pass

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on into the State’s Administrative Service. They would be given the charge

of the superior post initially on ad hoc and temporary basis and in their own

scale of pay but later they would be sanctioned the pay scale of the superior

post  and accorded regular  promotion to  that  post.  The State Government

would  do  so  either  by  relaxing  or  sometimes  even  by  amending  or

modifying  the relevant  rules.  This  process  went  on  for  a very long time

amidst numerous orders passed by the J & K High Court in countless writ

petitions and internal court appeals filed to challenge the seniority lists of

the Naib Tahsildars/Tahsildars issued by the State Government from time to

time or to question the actions of the State Government in granting ad hoc

and temporary promotions to some from the Naib Tahsildars or in relaxing

or amending the relevant  rules to  facilitate  their  promotion to  the higher

service/post.

5. Even  while  the  disputes  relating  to  inter  se  seniority  of  the  Naib

Tehsildars appeared to be hopelessly mired on the one hand in government

orders/actions comprising grant of ad hoc promotions, issuance of circulars

and amendment of  statutory rules  facilitating regularisation of  those who

were unable to satisfy the conditions of appointment and on the other hand

in the litigations before the High Court, a fresh chapter was opened up by

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induction of direct  recruits  in various Gazetted services including State’s

Revenue (Gazetted) Service.  

6. The process for direct recruitment commenced in May 1979 when the

J  &  K  Public  Service  Commission  issued  the  notification  inviting

applications  to  fill  up  the  vacancies  in  different  services  for  which

requisition was made by the State Government. After about four years the

Commission was able to prepare and notify the select list of 529 candidates

in  the  year  1983.  From the Commission’s  list  only 265 candidates  were

appointed  by  the  State  Government  in  four  batches  from February  9  to

September  20,  1984.  Many  of  the  selected  candidates  thus  left  behind

approached the J & K High Court in a large number of writ petitions. Their

main grievance was that though the rules provided for appointment of direct

recruits  and  promotees  in  equal  numbers,  the  government  had  created

imbalance in the services between the two groups by appointment of the

departmental  promotees  far  in  excess  of  their  quota;  that  there  were

sufficient posts to accommodate all the candidates from the Commission’s

select  list  but  those  posts  were  wrongly  filled  up  by the  promotees  and

further that the candidates had acquired the right for appointment by virtue

of their  being selected by the Commission on the basis  of the  combined

competitive selection list. They, accordingly, prayed for a direction to the

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State Government to follow the quota rules that provided for appointment of

direct recruits and promotes on 50:50 basis. In one of those writ petitions

(SWP No. 680/1984) a learned single judge of the High Court upheld the

claim  of  the  petitioners  and  gave  the  following  directions  to  the  State

Government:

“(a) That  the  respondent  No.2 shall  prepare a roaster (sic)  indicating  the  number  of  vacancies  available  in respect of Combined Competitive Services on 20.8.1983 and  show  the  number  of  departmental  candidates promoted  against  the  vacancies  substantively.  This would include those also who have retired from service after 20.8.1983.

“(b) After ascertaining the exact number of Departmental promotees to the various services,  the same number of vacancies  shall  be  filled  up  from  among  the  direct recruits  who  have  qualified  in  the  Combined Competitive Service Examination and who are included in  the  list  of  529  candidates.  For  the  vacancies  those candidates  shall  be considered for appointment who as arranged in order of merit beyond 265 candidates already appointed.    “(c) Till  the  imbalance  is  rectified  and  parity  is achieved  between  the  direct  recruits  and  the Departmental  promotes  in  terms  of  Govt.  Order No.1285-GD of 1983 no departmental candidate should be promoted. In order to achieve the balance and parity between  the  two  feeding  channels  of  the  Combined Competitive Service ratio of 50:50 should be adhered to while making the appointments.    “(d) Till  the  parity  is  achieved  and  imbalance  is rectified  between  direct  recruits  and  departmental candidates,  the  list  of  529  candidates  selected  by  the

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respondent No.3 shall remain operative. After the parity is  achieved,  respondent  No.3  may  be  at  liberty  to conduct  fresh  examination  for  filling  up  the  vacancies which may arise in future.    “(e) Respondent No.2 shall prepare the list of available vacancies  as  on  20.8.1983  as  also  departmental candidates appointed against the said vacancies till date within two months from today. The number of vacancies which  were  in  existence  as  on  20.8.1983  shall  be published department wise after the period fixed herein above so as to inform the petitioners and other similarly situated with them who are included in the list  of 529 candidates  about  their  right  to  seek  consideration  for appointment against any post in order of merit arranged by the Public Service Commission.”  

7. In the internal court appeal (L. P. A. 20/1986) preferred on behalf of

the  State  against  that  order  the  Division  Bench,  presided  over  by  Chief

Justice  A.  S.  Anand  (as  his  Lordship  then  was)  slightly  modified  the

directions  of  the  Single  Judge  and  passed  the  following  order  with  the

agreement of the parties:

“The  respondent  State  shall  ascertain  exact  number  of the  departmental  promotees  to  the  various  services referred  to  Public  Service  Commission  for  making selection or otherwise promoted by the State (other than in stop gap arrangement) from 1979 till the last reference was made by the respondent State to the Public Service Commission in  September,  1984 and after  ascertaining the same and taking into consideration the appointments of  265  candidates  as  direct  recruits,  rectify  the imbalance,  if  any,  between  the  direct  recruits  and  the departmental promotees in the ratio, if any, prescribed in the Rules regulating the respective service, if any, shall

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be filled from the category to which they belong. In the event  as  a  result  of  rectification  of  the  imbalance between  the  departmental  promotees  and  the  direct recruits,  it  is  found  that  the  resultant  vacancies  arise which have to  go to the  direct  recruits,  the State  shall consider the cases of such candidates who had appeared in the written/viva voce and medical test conducted by the  Public  Service  Commission  in  1983  and  the vacancies shall be filled up on merit accordingly. After the  vacancies  are  so  filled  up,  the  list  of  the  Public Service  Commission  prepared  on  30  September,  1983 shall cease to be effective and the future vacancies may be filled up by the respondent State in accordance with rules as and when the same arise.”

8. A large number of writ petitions on the same issue were also pending

before the Jammu Bench of the High Court. In view of the order passed in

LPA 20 of 1986 all those cases were referred to a Division Bench and were

disposed of by order dated August 22, 1991. In this order the Court gave the

following directions:

“…….The  respondents  are  directed  that  they  shall appoint the petitioners and other out of 529 candidates selected by the Public Service Commission and rectify the imbalance between the departmental promotees and the  direct  recruits.  Since  260  promotees  have  been appointed  during  the  relevant  period,  260  more candidates out of 529 candidates selected by the Public Service Commission shall be appointed to the seventeen aforementioned gazetted services in accordance with the merit.  Even  some  or  any  of  these  candidates  have become  overage  during  the  pendency  of  these  writ petitions.  They  shall  also  be  appointed  because  those candidates,  if any, had become overage for no fault  of

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their  own but  because  of  the  unjustified  refusal  of  the respondents  to  appoint  them  despite  their  selection. Since  the  matter  has  already  been  delayed,  the appointments shall be made within two months.”

9. Against the order of the High Court dated August 22, 1991 the State

Government came to this Court in SLP (C) No. 518 of 1992, giving rise to

Civil  Appeal No. 3485 of 1992 which was disposed of by judgment and

order dated August 27, 1992. It appears that this Court was informed that

only 181 vacancies  were available  for  the direct  recruits  and not  260 as

represented  before  the  Division  Bench  of  the  High  Court.  This  Court,

however, declined to go into that aspect of the matter but directed that only

those candidates would be considered for appointment who approached the

Court for seeking relief. The observations and direction of this Court in the

aforesaid appeal, insofar as relevant for the present are reproduced below:

“Mr.  D.  P.  Gupta,  learned  Solicitor  General  appearing for the State of Jammu and Kashmir has contended that the  latest  affidavit  containing  complete  information regarding  the  vacancies  was  filed  by  Mr.  R.C.  Gupta, Deputy  Secretary  to  Government,  General Administration  Department.  According  to  him  the Division Bench of the High Court did not take the said affidavit  into consideration.  Mr. D. D. Thakur,  learned counsel  appearing  for  the  respondents-writ  petitioners has very fairly conceded that there is a discrepancy while counting the deficient number of vacancies in the quota of  direct  recruits.  According  to  him  the  number  of deficient vacancies comes to 181 and not 260 as found

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by the  High  Court.  The  view we  are  taking  it  is  not necessary for us to go into his question.  

“The  selection  in  this  case  was  completed  in  the  year 1982. Most of the writ petitions were filed in the High Court and in this Court during the year 1984. Some of the  petitions  before  the  High  Court  were  also  filed during the period 1985 to 1989. We are of the view that only  the  candidates  who  filed  the  writ  petitions  are entitled  to  the  relief  granted  by  the  High  Court.  We, therefore, modify the relief granted by the High Court to the  extent  that  only  the  candidates  who  filed  writ petitions in the High Court or in this Court are entitled to be appointed in terms of  the High Court Judgment. We  grant  two  months  time  from  today  to  the  State Government  to  make  the  necessary  appointments  in terms of the High Court Judgment as modified by us.  

The  appeal  is  accordingly  disposed  of  in  the  above terms.”

                                                                [emphasis added]

A few things need to be noted at this stage. The orders of the High Court

were  clearly  based  on  the  plea  for  restoration  of  parity  between  the

promotees and the direct recruits in the State’s gazetted services. In order to

restore the parity the High Court directed the State Government to freeze

any further promotions to the gazetted services and to keep alive the select

list  prepared  by the  Commission  in  the  year  1983  for  filling  up  all  the

available  vacancies  till  the  ratio  of  50:50  was  restored  between  the

promotees and the direct recruits. This Court, on the other hand viewed the

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matter  in  the  light  of  the  individual  rights  of  the  candidates  in  the

Commission’s select list who approached the Court for enforcement of their

rights. This Court accordingly modified the relief granted by the High Court

and directed that only the candidates who filed writ  petitions in the High

Court or in this Court would be entitled to appointment in terms of the High

Court Judgment. This Court clearly wanted to put a quietus to the matter.

The other significant thing to note is that there is no indication in the High

Court orders, much less in the order of this Court that the candidates from

the  Commission’s  select  list  should  be  appointed  from any retrospective

dates  or  in  order  to  make  room for  their  appointment  the  departmental

promotees should  be pushed back to  their  inferior  parent  service or as  a

consequence  of  the  appointments  of  the  direct  recruits  the  departmental

promotees would get pushed down in the seniority position.   

10. Following the order  of  this  Court  the State  Government  appointed

ninety seven candidates  in  eleven different  services  under the  State  vide

order No.1065-GAD of 1992 dated November 13, 1992. Eighteen out of the

ninety seven fresh recruits were appointed in the J & K Revenue (Gazetted)

Service.  Twenty  three,  among  the  newly  appointed  candidates  (eight  of

them being out of the eighteen appointed to the J & K Revenue (Gazetted)

Service) then started the second round of litigation by filing writ petitions

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before the High Court claiming their seniority with effect from 1984 when

their batch mates were appointed. One of the writ petitions SWP No. 904 of

1993 (Javed Iqbal Balwan and Ors. vs. State and Ors.) came up for hearing

before a Division Bench of the High Court and was finally disposed of by

Judgment and Order dated June 2, 1998 with the following directions:

“(i) The direct recruit, i. e., the petitioners are entitled to claim notional  seniority  with  effect  from the  date  the other direct recruit came to be appointed. This question is answered in favour of the direct recruits.  

“(ii) That in view of the position of law noticed above the seniority of the petitioners is to be fixed while fixing so the person who are likely to be affected even though not  party  to  this  petition  can  be  heard  by  the  State Government. The State Government after taking note of the points of view which they would like to put across will  re-fix  the  seniority.  No  direction  is  given  at  this stage to fix the seniority over and above such and such persons. As and when question of fixing the seniority is examined by the State Government the persons who are likely  to  be  affected  be  heard.  This  question  is  again answered in favour of the direct recruits.  

“In view of the agreed stand taken by the parties that this petition be decided on merit this is being finally decided. The respondent-State would take notice of the answers given to the two questions, referred to above and taken remedial measurers. Let this be done so far as the relief which is to be granted vis-à-vis question No.1, within a period of one month from the date a copy of this order is made  available  to  the  respondents-State,  by  the petitioners. The other matter be decided within a period of  three  months.  This  period  would  also  begin  in  the same manner i.e.,  with effect from the date of copy of this order is made available to the Respondent-State. The

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process be intimated within the period of one week of the receipt and it be completed within the period referred to above.  

“The petitions are disposed of accordingly”

11. The State Government, aggrieved by the order of the High Court once

again brought the matter to this Court in CA No.6138 of 2001 which was

disposed of on February 26, 2003 with the following directions:

“Having  heard  the  learned  counsel  on  either  side  and after perusal of the impugned judgment keeping in view the facts and circumstances of the case we do not find any good reason or valid ground to disturb the impugned judgment….

“We  are  informed  that  the  directions  given  in  the impugned judgment have yet not been complied with by the State Government, although a time frame was set in the  impugned  judgment.  We think  it  is  appropriate  to direct the State Government to comply with the direction given  in  the  impugned  judgment,  within  three  months from today.  We direct  accordingly.  In  complying  with these  directions  the  State  Government  shall  hear  the concerned  parties  as  indicated  in  direction  No.2,  their point of view supported by the decision of this Court, if any.  We  are  also  told  that  contempt  proceedings  are initiated  by  the  aggrieved  parties.  In  the  light  of  the directions  we  have  given  above,  the  contempt proceedings  need  not  be  perused.  Hence  the  contempt proceedings  are  dropped.  We  are  also  told  that  there have been some promotions during this period and some of the officers have also retired from service. We do not say  any  thing  on  this  aspect.  It  is  for  the  State Government to examine all the aspect while considering the direction no.2 given in the impugned judgment.

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“We also make it clear that till the directions contained in the impugned judgment are complied with, no regular promotions shall be made.”

12. In compliance with the directions of this Court, the State Government

constituted a Committee of officers vide G.O.No.386-GAD of 2003, dated

March 24,  2003  for  hearing  the  concerned  parties.  The  Committee  after

giving opportunity of hearing to all interested parties submitted its report to

the Government. The Government considered the report of the Committee

and vide Order No. 1145-GAD of 2003 dated September 4, 2003 granted

notional seniority to the petitioners (of SWP 904 of 1993) with effect from

September 24, 1984, that is, the date on which the last appointments were

made  from  the  Commission’s  1983  select  list.  The  State  Government,

however, declined to disturb the promotions granted to the members of the

services,  including  the  promotions  made  into  the  J  & K Administrative

Service during the period from 24.9.1984 to 4.9.2003 taking the stand that it

was neither expedient nor in the interest of public administration to unsettle

the settled positions.

13. Since this order formed the basis for the present round of litigation it

would be expedient to reproduce it in full:

“……Whereas, the Government is of the opinion that in terms of the judgment of the Hon’ble High Court  read with  judgment  of  Hon’ble  Supreme  Court  dated

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26.02.2003,  the  petitioners  are  entitled  to  notional seniority  from 24.09.1984,  i.  e.,  date  when  last  direct recruit  was appointed on the recommendations  of  PSC after holding Combined Competitive Examination.  

“Whereas,  certain  promotions  have  been  made during  the  aforesaid  period  in  different  Services including promotions to J & K Administrative Service;

“Whereas, it is neither expedient nor in the interest of  public  administration  to  unsettle  the  settled  issues; and  

“Whereas, Government is further of the view that the promotions granted to the members of the Services including  the  promotions  made  into  KAS  during  the period 24.09.1984 till  issuance of this order should not be  disturbed  by  grant  of  notional  seniority  to  the petitioners.

“Now, therefore, it  is ordered that the petitioners are  hereby granted  notional  seniority;  with  effect  from 24.09.1984 i.e. date on which the last direct recruit was appointed on the basis of recommendations of PSC after conducting Combined Competitive Examination.  

“It  is  further  ordered  that  grant  of  such notional seniority  shall  not  disturb  promotion  effected  in  the Services  w. e.  f.  24.09.1984 till  issuance  of  this  order including promotions made into KAS.

“All the  Departments  shall  assign the petitioners seniority  on notional  basis  in  their  respective  seniority list.”

14. Javed Iqbal  Balwan and Ors. (petitioners  in SWP No.904 of 1993)

naturally felt  aggrieved by the Govt.  order  dated September 4,  2003 and

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they once again moved the High Court ( in the third round of litigation) in

SWP No.2111 J of 2003 challenging the Govt. order dated September 4,

2003  as  violative  of  the  directions  of  the  Court  in  the  earlier  round  of

litigation. At that time a number of writ petitions and internal court appeals

were also pending in the High Court on different aspects of the same matter.

Also pending were cases filed by some of the promotees challenging the

government order dated June 17, 1997 granting them regularisation on the

post  of  Tahsildar  with  effect  from  January  1,  1984  and  claiming

regularisation on the post of Tahsildar with effect from the respective dates

(earlier  to  January  1,  1984)  from  which  they  held  charge  of  that  post.

Before the High Court all these cases and SWP 2111 J of 2003 were put

together in a large group and came up for hearing before a Division Bench.

The Division Bench painstakingly traced out the history of the dispute from

the very beginning, meticulously examined all the points of conflict among

the various contending groups, referred to a very large number of case-law

authorities  and  finally  disposed  of  all  the  cases  by a  long  and elaborate

judgment giving a number of directions to the State Government. The Court

identified two main issues arising in the cases, one concerning the validity

of the departmental  promotees’ regularisation as  Tahsildars in the J & K

Revenue (Gazetted Service) with effect from January 1, 1984 and the other

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regarding  the  direct  recruits’  claim of  material  and  substantive  seniority

with effect from September 24, 1984, the date when the last appointments

were made from the Commission’s 1983 select list and their challenge to the

Govt. order dated September 4, 2003 by which they were granted merely

notional seniority from that date. On the first issue the Court took the view

that in the special facts and circumstances of the case the regularisation of

the promotees on the post Tahsildar in relaxation of the rules did not call for

any interference. In this regard it observed in its judgment (at page 95 of the

paper-book) as follows:

“In  the  present  case  we  are,  however,  faced  with  a peculiar  situation.  The Naib Tehsildars  were appointed as Tehsildars on temporary basis. They got appointed as they possessed the requisite qualifications for the post. They  had  qualified  the  departmental  examination through the Commission.  They continued to  hold such posts for years together. The government took steps for their  regularization  through  the  Commission  but  the same did not materialise. Various cases were filed by the parties and interim directions passed by the Courts from time  to  time  in  such  cases  delayed  the  efforts  of  the Government  to  finalise  the  seniority  lists.  During  this period  most  of  the  promotees  got  retired  from  the service. Some of the promotees were further promoted as Assistant Commissioners while a few of them have even been  inducted  into  the  KAS. Now it  appears  not  only difficult  but practically impossible to get regularization of  these promotees done through  the Commission.  We feel it  will not be in the interest of justice to ask these officers  to  get  their  regularizations  approved  by  the Commission  at  this  stage.  Following the principle  laid down in Narender Chadha v. Union of India ( supra), we

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find  that  since  the  promotees  have  been  allowed  to function on higher posts for more than 15 years with due deliberation, it would be unjust to hold that they have no sort of claim to such posts. Treating the present case as an exception, in view of the circumstances indicated, we hold the regularization of the promotees in relaxation of the rule cannot be interfered with.”

There  is  no  appeal  against  this  part  of  the  judgment  and  it  has  attained

finality.  

15. On the issue concerning the direct recruits and their challenge to the

government order granting them merely notional seniority the High Court

upheld their claim and held that direct recruits were entitled to substantive

seniority with all consequential  benefits with effect from the date the last

candidate was appointed from the Commissions select list in the year 1984.

The High Court was conscious that this would lead to a lot of upsetting in

the seniority list  with highly adversely consequences for the departmental

promotees but it felt that that could not be helped. In the judgment coming

under appeal it is observed (at pages 136-137 of the paper book):  

“We are conscious of the fact that with the re-drawl of the seniority list, most of the promotees, who have been promoted  or  inducted  into  the  KAS  on  the  basis  of existing seniority, may get effected. But that cannot be helped.  They  cannot  be  allowed  to  continue  at  the present place of seniority at the cost of the rights of the direct recruits. We only wish that the Government may, while  considering  the  matter  try to  adjust  them on the positions held by them and as far as practicable try not to

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oust  them  lest  it  may  cause  humiliation  to  and dissatisfaction  amongst  them.  In  case  the  situation permits  the  Government  may  consider  sanction  of supernumerary  posts  for  them  in  case  any  of  such promotees  is  under  a  threat  of  reversion.  We however leave it to the Government to deal with the matter and adjust such promotees, if any, in a just and suitable way without causing any prejudice to the rights of the direct recruits.”  

In  conclusion  the  court  gave  as  many  as  15  directions  to  the  state

government.  We need not refer to all of them since the Advocate General

appearing  for  the  appellant  State  submitted  that  all  the  directions  of  the

High Court  were  acceptable  to  the  State  Government  excepting those  at

Serial Nos. XI, XIII, XIV and XV. These are as follows:  

“XI. Direct recruits (Petitioners (DR)) shall be placed in the seniority list immediately after the last direct recruit appointed in the year 1984 namely Mohd Ismail Baji, as per the availability of posts within their quota. This shall be  notwithstanding  the  promotions  granted  to  the promotees during the period.   

“XIII.  Those  petitioners  who  have  qualified  such examination  and  possess  the  requisite  qualification, eligibility and other requirements of the rules  shall  be, subject  to  availability  of  the  posts  be  considered  for promotion  and  also  for  induction  into  the  KAS  in accordance with the rules from the date their immediate junior, got such promotion/induction.

“XIV. While according consideration and granting such promotion or induction into the KAS, as far as possible,

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grant of grade and promotion to the promotees or their induction into the KAS shall  not  be disturbed. In case posts are not available for the qualified petitioners (DR), the  Government  may  consider  sanctioning  of supernumerary  post  for  them  till  the  post  become available.  

“XV. Direct recruits who are promoted or inducted into the KAS as a result  of this exercise shall  be given the same seniority position vis-à-vis  the promotees as they are entitled to as a result of their notional seniority w.e.f. 24.9.1984.”

The  impugned  direction  at  serial  number  XI  tends  to  give  to  the  direct

recruits  substantive and fully effective seniority from the year 1984.  The

other directions that follow are consequential to the basic direction at serial

number XI.

16. The appellant, the Government of the State of J & K questions the

correctness and validity of the directions of the High Court granting to those

candidates who were appointed, pursuant to the Courts’ directions, in the

year 1992 substantive seniority with effect from 1984. It is stated on behalf

of the State that  though the dispute of seniority was confined mainly to the

J  &  K  Revenue  (Gazetted)  Service,  the  High  Court’s  directions  would

unsettle the long settled positions and cause dislocation across the board in

all the services under the State even where there was earlier no controversy.

Appearing for the State the Advocate General submitted that the impugned

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directions were bad and illegal being contrary to the law laid down by this

Court  and would  lead  to  highly disruptive  consequences  not  only in  the

State’s Revenue Service but also in other services of the State.    

17. Dr. Rajiv Dhawan learned senior advocate appearing on behalf of the

respondents, on the other hand, contended that the issue of seniority of the

direct recruits was no longer res integra and it was concluded in the earlier

round of litigation. He submitted that by the judgment coming under appeal

the  High  Court  had  simply  given  effect  to  its  earlier  order  that  was

confirmed by this Court but was not complied with by the state government.

He submitted that the Government order dated September 4, 2003, though

issued in purported compliance with the Courts’ order, was, as a matter of

fact, in derogation of the Courts’ direction and the High Court had rightly

set it aside. In support of his submission Dr. Dhawan heavily relied upon the

division bench order of the High Court dated June 2, 1998 in SWP No.904

of 1993 (  Javed Iqbal Balwan & Ors. vs.  State and Ors. ) and the order

dated February 26, 2003 passed by this Court in the appeal ( CA No.6138 of

2001) arising from the High Court order.

18. We are unable to accept Dr. Dhawan’s submission. In the order dated

June 2, 1998 the High Court had clearly said that the direct recruits were

entitled to claim notional seniority with effect from the date the other direct

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recruits from the Commission’s list were appointed. Further, their seniority

was directed to be fixed only after hearing those who might be affected by

the exercise.  This Court while endorsing the order of the High Court had

directed the State Government to hear the concerned parties and to consider

their point of view supported by the decision of this Court, if any. It was

thus  fully  open  to  state  government  to  take  an  independent  view of  the

matter  after  giving  an  opportunity  of  hearing  to  those  (departmental

promotees) who would be affected by re-fixation of seniority in light of the

decision of the Court.  

19. It was in this context that the State Government took the decision to

grant  the  direct  recruits  notional  seniority  without  disturbing  the  earlier

promotions  as  that  would have  resulted  in  unsettling  positions  that  were

long settled.

20. We see no infirmity in the decision taken by the State Government

and we find the submissions of the learned Advocate General well founded.

The  impugned  directions  of  the  High  Court  are  clearly  contrary  to  the

decision of this Court in a case coming from J & K itself in Suraj Prakash

Gupta vs. State of J & K, AIR 2000 SC 2386. We find that among the large

number of  decisions  referred by it,  the decision in  Suraj  Prakash Gupta

(supra) was also noticed by the High Court, at more than one places, in its

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judgment coming under appeal  but  the High Court  referred to and relied

upon  the  decision  on  the  issue  of  regularization  of  service  of  the

departmental  promotees  on  the  post  of  Tehsildar  in  the  States  Revenue

(Gazetted)  Service.  Strangely  the  High  Court  completely  overlooked  the

decision on the point of antedating the seniority of the direct recruits. It may

be  noted  that  in  paragraph  17  of  the  decision  in  Suraj  Prakash  Gupta

(supra) this Court had framed one of the points arising for consideration as

follows:

“(4)  Whether  the  direct  recruits  could  claim  a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?”

21. This  Court  answered the  question  in  paragraphs  78  and  79 of  the

judgment in the following terms:  

“Point 4:

“Direct  recruits  cannot  claim  appointment  from date of vacancy in quota before their selection:

“78. We have next to refer to one other contention raised  by  the  respondent-direct  recruits.  They  claimed that the direct recruitment appointment can be ante-dated from the date of occurrence of a vacancy in the direct recruitment quota,  even if  on that  date the said person was not  directly recruited.  It  was  submitted that  if  the

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promotees  occupied  the  quota  belonging  to  direct recruits  they had  to  be  pushed  down,  whenever  direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under direct recruitment quota.  

“79.  This  contention,  in  our  view,  cannot  be accepted. The reason as to why this argument is wrong is that  in service jurisprudence, a direct recruit  can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born  in  the  service.  This  principle  is  well  settled.  In N.K.Chauhan v. State of Gujarat, (1977) 1 SCC 308 (at p.321): (AIR 1977 SC 251 at P.259: 1977 Lb IC 38 at P.46) Krishna Iyer, J. stated:

“later  direct  recruit  cannot  claim  deemed dates  of  appointment  for  seniority  with effect from the time when direct recruitment vacancy arose.  Seniority will  depend upon length of service.”

“Again, in A.Janardhana v. Union of India, (1983) 2 SCR 936: (AIR 1983 SC 769: 1983 Lab IC 849) it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it  was pointed out in A.N. Pathak  vs.  Secretary  to  the  Government,  1987  Suppl SCC 763 (at p.767): (AIR 1987 SC 716 at P.718: 1987 Lab IC 638 at P.651) that slots cannot be kept reserved for the direct recruits for retrospective appointments.”

Had the High Court  noticed the  above passage in  the decision in  Suraj

Prakash Gupta (supra) it would not have fallen into the error and made the

impugned directions.  

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22. Seen in the light of the decision in  Suraj Prakash Gupta (supra) the

impugned  directions  appear  quite  contrary  to  the  law laid  down  by this

Court and are clearly unsustainable. We accordingly accept the appeal of the

State Government and set aside the impugned directions. It is made clear

that  we do  not  propose  to  disturb  the  other  directions  particularly  those

relating to monetary and other benefits to the direct recruits.  

23. In the result this appeal is allowed but with no order as to costs.

24. In  view  of  the  decision  in  the  Civil  Appeal,  the  prayer  for

impleadment (I.A.No.6) is rejected.  

25.  For  the  same reason  Contempt  Petition  (C)  No.309  of  2007  is  also

dismissed.    

                …………………………..J.                [Arijit Pasayat]

             …………………………..J.               [P.Sathasivam]

            .…………………………..J.              [Aftab Alam]

New Delhi, March 23, 2009.  

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