The Jammu & Kashmir and Ladakh High Court declared the 2011 appointment of four civil judges illegal due to a recruitment error, holding, “We have no hesitation to say that the appointment of the petitioners was not only irregular but illegal.”
The High Court of Jammu & Kashmir and Ladakh has dismissed a petition filed by four judicial officers seeking higher seniority in the cadre of Munsiffs, holding that candidates appointed against future vacancies cannot claim seniority over those appointed against existing vacancies merely because they ranked higher in the selection merit list.
Delivering the judgment in Tabassum Qadir Parray & Ors. v. High Court of Jammu & Kashmir and Another, the Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar observed that the petitioners were trying to enjoy the benefit of appointments made against future vacancies while simultaneously claiming seniority from the original recruitment process.
At the very beginning of the judgment, the Bench remarked,
“The idiom ‘to have your cake and eat it too’ completely fits in the controversy raised and the relief prayed for in this petition.”
The Court said,
“We have no hesitation to say that the appointment of the petitioners was not only irregular but illegal and in derogation of the settled legal position. By accommodating the petitioners against the four future vacancies, the right of invisible candidates who had acquired eligibility to seek consideration against these posts was clearly taken away,”
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The dispute arose from the recruitment process for Munsiffs initiated in 2008. The High Court had requested the Law Department to fill 31 vacant posts, including four backlog vacancies meant for Scheduled Tribe candidates.
However, due to a clerical error by the Law Department, the Public Service Commission (PSC) was informed that there were 35 vacancies instead of 31.
Acting on the incorrect requisition, the PSC advertised and selected 35 candidates. The petitioners were among the last four candidates included in the select list.
Although the Government initially approved all 35 selections, the High Court later discovered that only 31 vacancies actually existed. Consequently, only 31 candidates were appointed as Munsiffs through Government Order dated April 1, 2011.
The petitioners were left out because no vacancies were available at that time.
A few months later, after promotions created fresh vacancies in the cadre, the High Court recommended the petitioners for appointment against four future vacancies. They were accordingly appointed as Munsiffs on September 29, 2011.
After joining service, the petitioners challenged the seniority list issued by the High Court in November 2011. They argued that since they ranked higher in the PSC merit list than several candidates appointed earlier, their seniority should also be fixed according to merit under Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.
The High Court rejected this argument.
The Bench held that if the Law Department had correctly referred only 31 vacancies to the PSC, the petitioners would never have been selected in the first place. Their names appeared in the select list solely because of the administrative mistake committed while referring vacancies.
The Court observed that once appointments were made against the 31 available vacancies, the selection process had come to an end. The later appointments of the petitioners against future vacancies did not become part of the original recruitment.
The judgment states,
“The petitioners acquired no right to be appointed only on the basis of their mere placement in the select list, particularly when they were the candidates selected over and above the available vacancies of Munsiffs.”
The Bench further held that the High Court was under no legal obligation to appoint the petitioners at all and had merely taken a compassionate view by accommodating them against vacancies created later through promotions.
The Court noted,
“The High Court took a compassionate view in the matter and utilised the four future vacancies that fell vacant after the conclusion of the selection process.”
Rejecting the plea for higher seniority, the Bench ruled that the petitioners’ appointments against future vacancies were outside the normal recruitment rules.
It observed,
“The appointment of the petitioners against the future vacancies was de hors the Rules and, in any case, irregular, if not void ab initio.”
The Court explained that Rule 24 gives seniority according to the date of first substantive appointment. Merit determines seniority only when candidates are appointed simultaneously through the same recruitment process.
Since the petitioners were appointed almost six months after the original batch, they could not claim the benefit of merit-based seniority.
The Court clarified,
“Rule 24 of the CCA Rules will not, therefore, be attracted in the given facts and circumstances of the case.”
The Bench also reiterated the settled legal principle that inclusion in a select list does not automatically create an enforceable right to appointment. Referring to Supreme Court precedents including Shankarsan Dash v. Union of India, Sudesh Kumar Goyal v. State of Haryana, and State of U.P. v. Rafiquddin, the Court held that appointments can lawfully be denied when advertised vacancies are unavailable.
Another significant finding of the Court was that persons appointed irregularly or outside the recruitment rules cannot claim seniority over regularly appointed candidates.
The judgment states,
“It is trite law that those appointed irregularly or de hors or even in relaxation of the rules cannot take precedence over candidates who are regularly appointed in accordance with the rules in the matter of seniority.”
Apart from dismissing the petition on merits, the High Court also found that the challenge suffered from unexplained delay.
The petitioners had accepted their appointments in 2011, obtained promotions based on the same seniority list, and challenged the seniority only in 2018 after seven years.
The Court observed,
“It needs no reiteration that seniority once settled and acted upon cannot be unsettled, that too, at the instance of those who are fence-sitters and approach the Court after long delay.”
Holding that the petition was barred by delay and lacked legal merit, the Division Bench dismissed the writ petition and upheld the existing seniority list of Munsiffs.
Case Title: Tabassum Qadir Parray v. High Court of Jammu and Kashmir and Another]