S.J. Ravoo v. State of Jammu, (SC)
BS193328
SUPREME COURT OF INDIA
Before:- G.B. Pattanaik and Y.K. Sabharwal, JJ.
CA No. 8329-31 of 2001. D/d.
5.12.2001.
S.J. Ravoo and Ors. - Petitioners
Versus
State of Jammu & Kashmir and Ors. - Respondents
Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, Rule 24(1)(b) - Jammu and Kashmir Civil Servants (Removal of Doubts and declaration of Rights) Ordinance, 1956, Section 3(1) - Constitution of India, 1950 Article 133 Civil appeal - Post of Naib Tehsildar - Determination of inter se seniority - Recruitment on being selected by a recruitment board - Under provision of Rule 24, since recruitment board while selecting candidates had not adjudged relevant merit and selection list not sent in accordance with merit - Therefore, government order evolving the procedure by stating that if a person completes departmental examination earlier and is absorbed earlier will be held senior - Appellants unable to pass departmental examination within a period of two years - Respondents did complete the probation period and pass departmental examination within the period of probation of two years - Appellants cannot claim to be senior to respondents in cadre of naib tehsildar.
[Para 4]
ORDER
Delay condoned.
2. Leave granted.
3. These appellants, who were not parties in some of the writ petitions before the Jammu and Kashmir High Court, on getting permission from the court, filed special leave petitions against the judgment of the division bench of Jammu and Kashmir High Court. The dispute centres round the question as to inter se seniority between the appellants and the private respondents in cadre of naib tahsildar. It is undisputed that all of them were recruited as naib tehsildar on being selected by a recruitment board by order dated 8.10.1973. Under the relevant rules, each such naib tehsildar is required to undergo probation for a period of two years, and then within that period of two years he is further required to pass the departmental examination in four chances available within the aforesaid period. Such examination usually is held twice a year. It is also the common case that these appellants did not pass the said departmental examination within the period of two years, that means by 8.10.1975, whereas the respondents did complete the probation period and pass the departmental examination within the period of probation of two years. The competent authority extended the period of probation so far as the appellants are concerned by one more year by order dated 26.4.1976. The appellants passed the departmental examination held in December, 1975. Be it be stated that a departmental examination was scheduled to be held on 9.12.1974, but it could not be held and was postponed by order dated 5.12.1974. The respondents contend that it was so postponed because in 1974, two examinations had already been held, whereas according to the appellants, such postponement of examination debarred the appellants from passing the departmental examination within the period of probation of two years, and therefore, they should not suffer on that score. The respondents on the basis of their completion of the probation within the time provided under the rules have already been confirmed as naib tehsildar since 1989, whereas the appellants have not been confirmed in the said post as yet. The question of inter se seniority in the cadre is required to be determined under the provisions of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as the "Recruitment Rules"). The aforesaid rule has been framed under sub-section (1) of section 3 of the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956. This is undisputably a statutory rule. Rule 24 deals with the question of seniority. Rule 24(1) provides that the seniority in a service, class, category or grade shall be determined by the date of his first appointment to such service, class, category or grade as the case may be. The date of first appointment has been interpreted in the aforesaid rule itself, to mean the date of permanent appointment or the date of first appointment on probation of a clear vacancy. Clause (b) of section 24(1) is relevant for our purpose since all the appellants as well as the private respondents were recruited directly. The said clause (b) is extracted herein below in extenso:
"In the case of those recruited directly except those who do not join their duties when vacancies are offered to them according to the positions attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit, ability and physical fitness etc., in case no such examination is held for the purpose of making selections."
4. Since the recruitment was not by any competitive examination, the second part of the clause (b) would govern the seniority of these appellants vis-a-vis the respondents. Necessarily, therefore, it would be on the basis of merit, ability and physical fitness, etc. if such merit, ability and physical fitness has been determined at the time of making selection. The appellants contend that the recruitment board while sending the list of the government has sent the list in accordance with the merit, and that is required to be sent in accordance with merit under the rule. But on being asked, Mr. Bhat is unable to place his finger on any relevant rule, which cast obligation on the recruitment board to send the list of selected candidates on the basis of their respective merit. The very document, on which the reliance was placed, to indicate that selection was by merit, also in fact does not indicate the same. In the absence of any rule or any relevant document to indicate that the selection in question has been made on the basis of their respective merit and the list sent was in accordance with merit, it is difficult for us to accept the contention of Mr. Bhat that the list, that was sent, was on the basis of merit adjudged by the recruitment board. It is in this connection it would be appropriate to notice the subsequent government order dated 22.2.1971 (government) no. 488-GD of 1971. That order clearly indicates the exigencies for which it was necessary for the government to issue the aforesaid administrative order for determining the inter se seniority. The aforesaid order unequivocally stipulates that so far as the naib tehsildars are concerned, the seniority of the selected candidates on their absorption has to be determined in accordance with the merit obtained in the examination at the conclusion of the training period. Necessarily, therefore, if a person completes the examination earlier and is absorbed earlier, will be held senior to those who complete the said examination later and absorbed later in the cadre. Mr. Bhat appearing for the appellants, vehemently contended that the aforesaid government order will not override the provisions of the statutory rules. There is no dispute to the aforesaid proposition of law. But having regard to the provisions contained in rule 24, which we have already extracted and discussed, since the recruitment board while selecting candidates had not adjudged the relevant merit and has not sent the list in accordance with the merit, the government has evolved the aforesaid procedure by issuing a government order which supplements the statutory rules in force. In this view of the matter, the appellants cannot claim to be senior to the respondents in the cadre of naib tehsildar. Mr. Bhat apprehended that by the impugned judgment, the appellants may have to be reverted, but on going through the judgment in question, we do not find any direction by the High Court to revert them from the post they are holding, and on the other hand, the impugned direction really indicates that the respondents, who are held senior as naib tehsildar, are entitled to get the promotion with effect from the date his juniors like the appellants, had got the promotion of any higher rank. These appeals are disposed of with this observation.
.