HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Pronounced on : 27.05.2022.

SWP No. 1350/2011

c/w

SWP No. 748/2009

Arvind Sharma and others

Shabir Ahmad Malik and others

…..Appellant(s)/Petitioner(s)

Through: Mr. F. A. Natnoo, Advocate in

SWP No. 1350/2011

Mr. S. F. Qadri, Sr. Advocate with

Mr. Iqra Khalid, Advocate in

SWP No. 748/2009

Vs

State through Law Department and others

.…. Respondent(s)

Through: Mr. A. V. Gupta, Sr. Advocate with

Mr. Aditya Gupta, Advocate

Mr. M. I. Qadri, Sr. Advocate with

Mr. Naveed Gul, Advocate

Mr. Kishore Kumar, Advocate

Mr. Mohsin Qadri, Sr. Advocate with

Ms. Saima, Advocate

Coram:

HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGEMENT

Per: Thakur-J

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.

2

SWP No. 1350/2011

c/w

SWP No. 748/2009

01.

With a view to understand clearly the issues that arise in the present

petitions, it is necessary to state in brief the material facts:-

02.

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.

03.

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.

04.

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

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SWP No. 748/2009

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.

05.

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 candi