JUDGMENT :

Dhiraj Singh Thakur.

SWP No.1350/2011 & SWP No.748/2009

Since common questions of law and fact are involved in the present petitions, we propose to decide the same by way of a common judgement and order.

1. With a view to understand clearly the issues that arise in the present petitions, it is necessary to state in brief the material facts:-

2. The J&K Public Service Commission initiated the process for recruitment against 50 vacancies of Munsiffs, as requisitioned by the High Court, by utilizing the roster point from 81 onwards on a 100 point roster. A notification dated 04.12.2001 was issued in this regard. Examinations were conducted and a select list was prepared in terms of Rule 13(2) of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967, which envisages that the candidates would be arranged by the Commission in the order of merit as disclosed by the aggregate marks including those obtained in viva-voce and that such of the candidates who were found by the Commission to be qualified in the examination would be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination.

3. The Public Service Commission it is stated, vide communication dated 09.05.2003, based on the overall performance of the candidates in the written examination, viva-voce and the medical examination recommended the names of the candidates including the petitioners for appointment as Munsiffs. Pursuant to the recommendations by the Public Service Commission, appointments of the selected officers were made vide Government Order dated 06.08.2003 in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial) Recruitment Rules, 1967.

4. The case set-up by the petitioners is that respondent No. 2 did not prepare, circulate or publish any seniority list, which would reflect their seniority position qua others, who had been appointed in the said selection process. It is stated that a request for framing such a seniority list fell on deaf ears and finally in the year 2011, when respondent No. 2 started the process for effecting promotions of 2003 batch to the next grade of Sub-Judge, it was learnt that there was a gradation/seniority list dated 01.06.2010, which was being made the basis for effecting promotions, which was not as per merit but as per roster for direct recruitment under Rule 5 of the Jammu & Kashmir Reservation Rules of 2005. Promotions made on the basis of the said gradation list in regard to respondent Nos. 3 & 4, to the post of Sub-Judge, it was claimed violated the seniority position of the petitioners relevant to their merit position obtained in the examination conducted by the Public Service Commission.

5. The petitioners would argue that the concept of reservation and fixation of roster points in terms of Reservation Rules of 2005 was distinct and that the same could not have been used for determining the inter-se seniority of the candidates. Reliance in this regard was placed upon Rule 31 of the Jammu & Kashmir Reservation Rules, 2005, which is as under:-

“31. Seniority:- As hither to, the rosters prescribed for direct recruitment/promotion shall only be an aid to determine the entitlement of different categories with regard to the quota reserved for them and these are not for determination of seniority:

Provided that the inter-se seniority of the category candidates viz-a-vis general category candidates on their appointment by direct recruitment shall be determined strictly in accordance with the order of the merit in the Select List prepared by the Selection Authority in accordance with rule 7 of these rules and rule 24(b) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956:

……………………………………………………………..”

6. Reliance was also placed upon the General Rules of seniority as provided under 24(1)(b) of the Jammu &