SPECIAL LEAVE PETITION (C) NO. 11039 OF 2022
Manoj Parihar & Ors Vs State Of Jammu & Kashmir & Ors
DATE OF ORDER:
27TH JUNE, 2022
Hon’ble Justice SURYA KANT & J B PARDIWALA
PETITIONER: MANOJ PARIHAR & ORS
RESPONDENT: THE STATE OF JAMMU KASHMIR & ORS
PRPSPECTIVE OVERRULING; SERVICE LAW DIRECT RECRUITMENT; SERVICE LAW
The Supreme Court reiterated that a court's declaration of law will have retroactive effect unless otherwise stated explicitly. While upholding the order of the Jammu and Kashmir and Ladakh High Courts that inter-se seniority for Munsiffs appointed through direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection rather than roster points, the bench comprising Justices Surya Kant observed this.
- In light of the foregoing, the High Court reheard the case and decided that seniority should be determined by merit as determined by the Public Service Commission, rather than by roster points. We quote the High Court's relevant observations, as well as the operative part of the contested judgement.
- It was discovered in Bimlesh Tanwar as follows: "According to Article 16(4) of the Constitution, affirmative action is intended to represent a class of citizens who are socially or economically backward. In the case of an appointment, Article 16 of the Indian Constitution applies. It does not speak of fixation of seniority. As a result, seniority is not to be determined by roster points. If this is done, the rule of affirmative action will be extended, which is strictly contrary to the constitutional schemes. We believe that the decision in P.S. Ghalaut does not establish good law."
- A five-judge Bench of this Court issued the following ruling in Ajit Singh v. State of Punjab, (1999) 7 SCC 209:
- It should be noted that when a reserved candidate applies for recruitment at the initial level (say, Level 1), he does not go through the normal selection process that is applied to a general candidate, but instead is appointed to a post reserved for his group. That is what "reservation" means. This is the result of "reservation."
- Prospective Overruling - If not expressly stated otherwise, a court's decision will have retroactive effect. Referred to P.V. George v. State of Kerala, (2007) 3 SCC 557. (Para 26-28)
- Service Law - Direct Recruitment - The preparation of an inter se merit list of selected candidates is unavoidable; even in the absence of an explicit provision in the rule or policy, the recruitment authority cannot place candidates inter se in the select list on the basis of a rule of thumb or by employing a methodology that is inconsistent with the spirit of Articles 14 and 16 of the Constitution. The inter se merit list of selected candidates can be prepared as a result of a combination of several factors such as written test, objective test, vivavoce, and/or other parameters as may have been prescribed in light of the special service requirements. (Para 16)
- Service Law - Promotion based on merit cum seniority - Seniority is not the only qualification for promotion to a selection post - The comparative merit must be evaluated, with seniority being one of the factors only - A junior most person may steal a march on his seniors and jump the queue for accelerated promotion. (Para 16).
ANALYSIS BY THE COURT
- The court noted that there was a legal statement in BimleshTanwar (supra). As a result, the same will have a retroactive effect. In P.V. George v. State of Kerala, the Supreme Court stated that "the law announced by a court will have retrospective effect, unless otherwise specified to do so specifically."
- The learned Senior Counsel vehemently contended that the High Court made a serious error in applying the Jammu and Kashmir Reservation Rules 2005, which were framed under the Jammu and Kashmir Reservation Act 2004 and notified on October 21, 2005, for the purpose of determining inter-se seniority.
- The learned Senior Counsel contends that the Act and the Rules enacted thereunder have no retroactive application and thus cannot be used to determine the seniority of appointees from 2003.
- According to paragraph 19 of the report in P.V. George, the Court was aware that when the doctrine of stare decisis is ignored, a change in legislation may have a negative impact on the public's interests. However, the Court maintained that when exercising its authority to apply the theory of prospective overruling, it must use the clearest language possible (in order to eliminate the unfavourable effect).
In the overall scheme of things, the court is convinced that the impugned High Court judgement contains no jurisdictional or other flaws that necessitate our intervention. As a result, this petition fails and is dismissed.
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