State Of Jammu & Kashmir & Ors vs Javed Iqbal Balwan & Ors

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 2 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 3 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 4 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 5 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, 6 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.

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.

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 1 9 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 2 0 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:

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

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.

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.

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.