MANOJ PARIHAR & ORS.versusSTATE OF JAMMU & KASHMIR & ORS

                          [2022] 7 S.C.R. 611                                611


                     MANOJ PARIHAR & ORS.                                    A
                                    v.
             STATE OF JAMMU & KASHMIR & ORS.
            (Special Leave Petition (C) No. 11039 of 2022)
                            JUNE 27, 2022                                    B
          [SURYA KANT AND J. B. PARDIWALA, JJ.]
       Service law: Judicial service – Seniority – Fixation of –
Appointment of Munsiffs by way of direct recruitment on the
recommendations of the State Public Service Commission in the State
                                                                             C
of Jammu & Kashmir (Now Union Territory) – Fixation/determination
of inter-se seniority, on the basis of the roster points or in terms of
the order of their inter-se merit at the time of their selection – Held:
In the case of direct recruitment, the preparation of inter se merit list
of the selected candidates is inevitable, even in the absence of an
explicit provision in the rule or policy, the recruitment authority          D
cannot place the candidates inter se in the select list under the rule
of thumb or by adopting the methodology which is inconsistent with
the Arts. 14 and 16 – Inter-se merit list of the selected candidates
can be prepared as a combined effect of several factors like written
test, objective test, viva-voce and/or other prescribed parameters –
                                                                             E
Even in a case of promotion based on merit-cum-seniority, seniority
by itself is not the only qualification for promotion to a selection
post, it will be one of the factors only – Roster system is only for the
purpose of ensuring that the quantum of reservation is reflected in
the recruitment process – It has nothing to do with the inter-se seniority
among those recruited – High Court rightly held that the seniority           F
should be fixed in accordance with the merit determined by the Public
Service Commission and not in accordance with the roster points,
thus, order by the High Court not interfered with – Jammu and
Kashmir Reservation Rules, 2005 – r. 5 – Jammu and Kashmir Civil
Services (Judicial) Recruitment Rules, 1967 – r. 42 – Jammu &
                                                                             G
Kashmir Reservation Rules 2005 – Jammu and Kashmir Reservation
Act 2004 – Jammu and Kashmir Reservation Rules, 1994 –
Constitution of Jammu & Kashmir – Art 111 – Constitution of India
– Arts. 235, 14 and 16.

                                                                             H
                                  611
612            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A            Retrospective operation: Judgment, when retrospective in
      operation – Held: Law declared by the court will have retrospective
      effect, if not otherwise stated to be so specifically – Judgment/order.
            Bimlesh Tanwar v. State of Haryana (2003) 5 SCC 604
            : [2003] 2 SCR 757; P. V. George v. State of Kerala
B           (2007) 3 SCC 557 : [2007] 1 SCR 1198 – relied on.
            R. K. Sabharwal v. State of Punjab (1995) 2 SCC 745 :
            [1995] 2 SCR 35; G. P. Doval v. Govt. of U.P. (1984) 4
            SCC 329 : [1985] 1 SCR 70; Kuldip Chand v. Union
            of India (1995) 5 SCC 680 : [1995] 3 Suppl. SCR 45;
C           Ajit Singh v. State of Punjab (1999) 7 SCC 209 : [1999]
            2 Suppl. SCR 521 – referred to.
                              Case Law Reference
      [1995] 2 SCR 35                    referred to            Para 18

D     [1985] 1 SCR 70                    referred to            Para 20
      [1995] 3 Suppl. SCR 45             referred to            Para 21
      [1999] 2 Suppl. SCR 521            referred to            Para 23
      [2007] 1 SCR 1198                  relied on              Para 26, 27
E     [2003] 2 SCR 757                   relied on               Para 30
            CIVIL APPELLATE JURISDICTION: Special Leave Petition
      (C) No. 11039 of 2022.
            From the Judgment and Order dated 27.05.2022 of the High Court
      of Jammu & Kashmir and Ladakh at Jammu in SWP No. 1350 of 2011.
F
           Ranjit Kumar, Sr. Adv., Ms. Binu Tamta, Dhruv Tamta, M/s Tamta
      Advocates, Advs. for the Petitioners.
            Sanjay Hegde, Sr. Adv., F. A. Natnoo, Ashok Mathur, Tanveer
      Ahmed Mir, Kartik Venu, Ms. Swati Khanna, Arjun Singh Bhati, Faheem
      Shah, Advs. for the Respondents.
G
            The following Order of the Court was passed:
                                    ORDER
            1. This petition seeking leave to appeal under Article 136 of the
      Constitution is at the instance of unsuccessful original respondents in a
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                               613
                     & ORS.

writ application filed before the High Court of Jammu & Kashmir (Judicial      A
Officers) and is directed against the judgment and order passed by a
Division Bench of the High Court dated 27.05.2022 in the SWP No.
1350/2011 by which the High Court allowed the Writ Petition filed by the
Respondents No. 3 to 19 herein (original writ applicants).
    2. The facts giving rise to this special leave petition may be             B
summarized as under:
      2.1 At the outset, we may state that this is a 2nd round of litigation
      before this Court on the issue relating to fixation of the seniority
      of the Munsiffs (Batch of 2003) for promotion to the post of Sub-
      Judge in the State of Jammu & Kashmir (Now Union Territory).             C
      2.2 This Court in the 1st round of litigation took notice of the fact
      that the respondents herein (original writ applicants) qualified at
      the Jammu and Kashmir Civil Services (Judicial) Examinations
      2002 and were appointed as the Judicial Magistrates in 2002-03.
      They were placed higher in the merit list compared to the petitioners    D
      herein. However, the gradation list was prepared by applying the
      roster for direct recruitment as provided under Rule 5 of the
      Jammu and Kashmir Reservation Rules, 2005. This in effect led
      to the reserved category petitioners displacing the general category
      respondents in the gradation list. A Writ Petition was filed seeking
      to quash the gradation list of the Judicial Magistrates and for a        E
      direction to prepare the gradation list based on merit.
      3. The High Court held as under:
      “16. The issue raised in the present petition squarely falls
      within the judgment rendered by the Division Bench in Ashok              F
      Kumar Sharma’s case. Though petitioners do not assail the
      Gradation List and the consequent promotion order on the
      ground that these are not constitutionally permissible and
      therefore ultra vires Constitution yet the law laid down in Indra
      Sawhney’s case and relied upon in Ashok Sharma’s case cannot
      go unnoticed, while dealing with present case as it touches              G
      constitutionally of the Reservation Rules whereupon the
      impugned Gradation List is based and therefore, validity of
      the High Court orders promoting private respondents on the
      basis of this placement in Gradation List. The Gradation List
      in question and promotion orders made on the basis thereof,
                                                                               H
614      SUPREME COURT REPORTS                        [2022] 7 S.C.R.


A     in favour of private respondents, in implementation of
      reservation policy, are therefore, liable to be set aside on this
      ground alone. The conclusion so drawn, ordinarily, would
      clinches the matter. However, it would be, if not necessary,
      but appropriate to deal with the issues, other that
      constitutionality of Reservation in promotion scheme, raised
B
      in the petition.….
      25. For the reasons discussed above, we find merit in challenge
      to Gradation List dated 01.06.2010 issued by respondent No.
      2 as also order promoting respondents 3 and 4 as Civil Judge
      (Senior Division) on the basis of their placement in the
C     Gradation List. Challenge to such other orders passed on the
      basis of the impugned Gradation List, allowing the private
      respondents, belonging to different Reserved Categories to
      steal march over the petitioners, is also to succeed. We are
      told that Petitioner 1 to 10 stand already promoted as Civil
D     Judges (Senior Division) and so are respondents 3 to 12 and
      14 and 15. The interest of petitioners 1 to 10 is, therefore,
      restricted to their placement at appropriate place in the
      seniority list of Civil Judges (Senior Division) maintained by
      respondent No. 2……
E     26. Petitioners 11 to 16 and Mis Mir Afroz (on deputation)
      Abdul Qayoom Mir and Manzoor Ahmad Zargar figuring at
      S.No. 19 to 27 in order of merit in the Merit List rank senior
      to respondents 4, 5, 7 to 12 at S. Nos. 32, 37, 31, 33, 34, 41,
      38, 30 in the Merit List, and already promoted as Civil Judges
      (Senior Division) vide different High Court Orders including
F     High Court order No. 252 dated 04.07.2015. Petitioners 11
      to 16 and M/s. Mir Afroz (on deputation) Abdul Qayoom Mir
      and Manzoor Ahmad Zargar, therefore, had a right to be
      considered for promotions as Civil Judges (Senior Division)
      ahead of respondents 4, 5, 7 to 12. The respondent No. 2 by
G     ignoring petitioners claim and failure to accord consideration
      to their claim has infringed their fundamental rights
      guaranteed under Article 16 of the Constitution. However,
      M/s. Mir Afroz (on deputation) Abdul Qayoom Mir and
      Manzoor Ahmad Zargar, have not joined as petitioners in
      present petition. Petitioners have not questioned the orders
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                           615
                     & ORS.

      whereby private respondents 4, 5, 7 to 12 were promoted              A
      including High Court order No. 252 dated 04.07.2015.
      Respondents 4, 5, 7 to 12 presumably have been working as
      Civil Subordinate Judges, Senior Division for quite sometime.
      We do not have definite information about the posts of Civil
      Judges (Senior Division) lying vacant as on date so as to
                                                                           B
      examine whether petitioners 11 to 16 and M/s. Mir Afroz (on
      deputation) Abdul Qayoom Mir and Manzoor Ahmad Zargar,
      directed to be considered for promotion as Civil Judges (Senior
      Division) against such post without disturbing respondents
      4, 5, 7 to 12 and thereafter placed in the seniority list of Civil
      Judges (Senior Division) to be prepared by respondent No. 2          C
      strictly in accordance with merit. We, therefore, refrain from
      setting aside the orders whereby respondents 4, 5, 7 to 12
      have been promoted as Civil Judges (Senior Division). We
      direct respondent No. 2 to undertake an exercise to find out
      whether any posts of Civil Judge (Senior Division) are lying
                                                                           D
      vacant as on date so that consideration is accorded to
      petitioners promotion against available posts. Let such
      exercise be completed with three months from today. In the
      event, no such posts (s) is/ are found lying vacant or less
      than the posts required to consider petitioners 11 to 16 are
      lying vacant, the order (s) whereby respondents 4, 5, 7 to 12        E
      have been promoted as Civil Judges (Senior Division), to the
      extent necessary to accord consideration to petitioners 11 to
      16, shall stand set aside on expiry of three months from today
      and consideration accorded to the petitioners’ promotion
      against the available vacancies. On completion of the exercise
                                                                           F
      either way respondent No. 2 shall reframe and notify the
      seniority list in accordance with merit.”
      4. The petitioners herein being dissatisfied with the aforesaid
judgment and order passed by the High Court challenged the same before
this Court by way of the Special Leave Petition (Civil) No. 3786 of
2016. Leave was granted. The Special Leave Petition got culminated in      G
the Civil Appeal No. 6928 of 2021. The Civil Appeal No. 6928 of 2021
ultimately came to be disposed of by this Court holding as under:
      “10. The main issue in the writ proceedings before the High
      Court is whether the seniority for the purpose of the gradation
                                                                           H
616            SUPREME COURT REPORTS                         [2022] 7 S.C.R.


A           list can be founded on the basis of roster points and this issue
            would depend upon the view which is taken by the High Court
            on the legal position. As noted above, Mr. Gaurav
            Pachnanda, learned senior counsel has stated that the High
            Court has accepted the view that the gradation list is invalid.
            The High Court on its Administrative side is not precluded
B
            from taking a considered decision on this aspect of the
            matter…..
            11. Consequently, the impugned judgment and order of the
            High Court dated 27 November, 2015 is set aside. The writ
            petition is restored to the file of the High Court for a decision
C           afresh. Having regard to the pendency of the proceedings,
            we would request the High Court to dispose of the petition,
            on remand, preferably within a period of two months from the
            date of receipt of a certified copy of this order. In the meantime,
            pending the decision of the High Court, it would be
D           appropriate if consequential directions on the basis of the
            gradation list for the batch of 2003 are held in abeyance so
            as to abide by the final result of the proceedings before the
            High Court. The High Court is at liberty on the administrative
            side to take a decision in the meantime….
E           12. The appeal is accordingly disposed of in the above terms.”
            5. In view of the aforesaid, the High Court re-heard the matter
      and took the view that the seniority should be fixed in accordance with
      the merit determined by the Public Service Commission and not in
      accordance with the roster points. We quote the relevant observations
F     made by the High Court including the operative part of the impugned
      judgment and order as under:
            “13. In the past, while it may be true that the High Court had
            been maintaining the seniority based upon the roster points,
            as mentioned under Rule 14 of the Reservation Rules of 1994
G           may be on the strength of the ratio of the judgment in P.S.
            Ghalaut, yet it cannot be ignored that the Apex Court on
            10.03.2003 having declared the decision in P.S. Ghalaut as
            not laying good law on the subject, none of the authorities,
            including the High Court could have proceeded to make the
            roster points as the basis for determining the seniority and
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                       617
                     & ORS.

   further make that a basis for promotions to the post of             A
   SubJudges. It needs to be reiterated that in the present case
   appointments of the selected officers were made in terms of
   Rule 42 of the Jammu & Kashmir Civil Services (Judicial)
   Recruitment Rules, 1967 vide Government Order dated
   06.08.2003, i.e. much after the pronouncement of the
                                                                       B
   judgment in Bimlesh Tanwar’s case.
      It was precisely for that reason that the counsel
   representing the High Court had admitted before the Apex
   Court that the gradation list was invalid, which is the subject-
   matter of challenge in the present petitions….
                                                                       C
   14. We are told that both the petitioners and the private
   respondents have since been promoted as Sub-Judges and,
   therefore, even when there was an initial challenge to the
   promotion of respondent Nos. 3 & 4 in the writ petition, no
   promotions would be effected if the seniority was directed to
   be fixed as per merit….                                             D

   15. Having considered the matter in the light of the facts and
   the law discussed hereinabove, we hold as under:-
   a.    The gradation list dated 01.06.2010 to the extent, and
         insofar as, it pertains to the selection made by the Public   E
         Service Commission for the post of Munsiffs in reference
         to Notification No. PSC/Ex-2001/64 dated 04.12.2001,
         is quashed.
   b.    The respondent No. 2 is directed to re-frame the seniority
         list in regard to the selection process for the post of       F
         Munsiffs, pertaining to notification dated 04.12.2001,
         strictly in accordance with merit obtained by the selected
         candidates in the examination conducted by the Public
         Service Commission.
   c.    Such of the candidates, including the petitioners, who
                                                                       G
         on account of the impugned gradation list were not
         promoted on time and, therefore, could not gain the
         requisite experience for appearing in the limited
         competitive examination in terms of the Jammu &
         Kashmir Higher Judicial Service Rules, 2009, would
         be held eligible to take such an examination, if another      H
618             SUPREME COURT REPORTS                             [2022] 7 S.C.R.


A                   Civil Judge in the same post but lower in the reframed
                    seniority list was eligible to take such an examination.
               16. The writ petitions are, accordingly, disposed of.”
            6. Being dissatisfied with the aforesaid, the petitioners are once
      again before this Court with the present petition.
B
             7. Mr. Ranjit Kumar, the learned Senior Counsel appearing for
      the petitioners vehemently submitted that the High Court committed a
      serious error in passing the impugned order. The learned Senior Counsel
      vehemently submitted that it cannot be argued as an absolute proposition
      of law that for the purposes of fixing seniority only merit is to be considered
C     and not the roster points. He would submit that it should be left to the
      authorities such as the High Court in the case on hand to evolve a fair
      and just principle, more particularly, whether the Rules governing the
      seniority are absent. He would submit that since the Recruitment Rules
      1967 are silent with regard to the procedure of promotion of Munsiffs to
D     the posts of Sub-Judges as well as the manner of determination of their
      inter-se seniority. The High Court on its administrative side in exercise
      of powers under Article 111 of the Constitution of Jammu & Kashmir
      which is pari materia with Article 235 of the Constitution of India had
      decided in its Full Court Resolution dated 04.12.1994 to adopt the
      Reservation Rules 1994 for the purpose of fixing the inter-se seniority of
E     recruits for the post of Munsiff and this practice was followed consistently
      between 1995 and 2003.
             8. Mr. Ranjit Kumar pointed out that the High Court adopted the
      methodology of fixing the seniority in accordance with the roster since
      1995. First, it was applied to the 11 Munsiffs appointed in the year 1995,
F     thereafter to the 10 Munsiffs appointed in the year 1997, thereafter to
      the 32 Munsiffs appointed in the year 2000, thereafter to the 17 Munsiffs
      appointed in the year 2001 and in the last 47 Munsiffs appointed in the
      year 2003 which included the petitioners and the respondents herein
      before this Court.
G            9. The learned Senior Counsel laid much emphasis on the fact
      that neither the petitioners herein nor the respondents herein thought fit
      to challenge either the Reservation Rules 1994 or the Full Court Resolution
      dated 04.12.1994 on the basis of which the candidates were appointed
      and their seniority was fixed in accordance with the roster. Both the
      sides were aware and conscious that the fixation of seniority in
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                              619
                     & ORS.

accordance with the roster was based on the decision of the Full Court        A
and, more particularly, for the reason that the 2003 batch was not the
first batch where roster was applied in terms of the Reservation Rules
1994.
       10. He would submit that both the sides since their appointment in
the year 2003 never questioned the legality and validity of the methodology   B
adopted by the High Court for the purpose of fixation of seniority in
accordance with the roster.
       11. The learned Senior Counsel vehemently submitted that the
High Court committed a serious error in applying the Jammu & Kashmir
Reservation Rules 2005 which in turn came to be framed under the              C
Jammu & Kashmir Reservation Act 2004 and notified on 21.10.2005 for
the purpose of fixation of the inter-se seniority. The argument of the
learned Senior Counsel is that the Act and the Rules framed thereunder,
do not have any retrospective operation and they could not have been
made applicable to fix the seniority of the appointees of the year 2003.
Mr. Ranjit Kumar invited the attention of this Court to the proviso to        D
Rule 37 which mandates that the Rules shall not apply to the vacancies
or posts in respect of which advertisement have been issued or the
selection process have been initiated before coming into force of the
Rules 2005. In short, the argument of the learned Senior Counsel is that
there cannot be any prospective operation of the Rules 2005. In the last,     E
the learned Senior Counsel submitted that why should the petitioners
suffer for no fault on their part as the 2003 batch is the last one to whom
the Rules of 2005 are sought to be made applicable. In other words, the
argument is that if the seniority is to be fixed in accordance with the
merit of the appointees of the batch of 2003 and not on the basis of the
roster points then many of the petitioners would have no chances of any       F
further promotion.
      12. In such circumstances referred to above, the learned Senior
Counsel prays that there would be merit in his petition. Leave may be
granted and the appeal may be admitted.
                                                                              G
       13. On the other hand, this petition has been vehemently opposed
by the respective learned Counsel appearing for the private respondents,
the High Court of Jammu & Kashmir and also the State of Jammu &
Kashmir. All the learned Counsel in one voice submitted that no error,
not to speak of any error of law could be said to have been committed
                                                                              H
620             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A     by the High Court in taking the view that the seniority should be fixed in
      accordance with the merit determined by the Public Service Commission
      and not in accordance with the roster points. All the learned Counsel
      would submit that the law in this regard is no longer res integra and is
      well settled.
B            14. In such circumstances referred to above, all the learned
      Counsel appearing for the respondents pray that no case is made out for
      grant of leave and the petition may be dismissed.
             Analysis
              15. Having heard the learned Counsel appearing for the parties
C     and having gone through the materials on record the only question that
      falls for our consideration is whether the inter-se seniority of the Munsiffs
      appointed by way of direct recruitment on the recommendations of the
      State Public Service Commission should be fixed/ determined on the
      basis of the roster points or in terms of the order of their inter-se merit at
D     the time of their selection?
              16. The first and the foremost aspect, we would like to clarify, is
      that in the case of direct recruitment, the preparation of inter se merit
      list of the selected candidates is inevitable, even in the absence of an
      explicit provision in the rule or policy, the recruitment authority cannot
E     place the candidates inter se in the select list under the rule of thumb or
      by adopting the methodology which is inconsistent with the spirit of Articles
      14 and 16 of the Constitution. The inter se merit list of the selected
      candidates can be prepared as a combined effect of several factors like
      written test, objective test, viva-voce and/or other parameters as may
      have been prescribed keeping in view the special requirement of service.
F     Similarly, though not concerned in the present case, even in a case of
      promotion based on merit-cum-seniority, seniority by itself is not the only
      qualification for promotion to a selection post. If the criteria for promotion
      is merit-cum-seniority, the comparative merit has to be evaluated in which
      seniority will be one of the factors only. However, in the case of merit-
G     cum-seniority even a junior most person may steal a march over his
      seniors and jump the queue for accelerated promotion.
             17. Keeping the aforesaid fundamental principle of service
      jurisprudence, we now proceed to consider the case law on the subject
      governing the rights of the parties before us as under.
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                        621
                     & ORS.

       18. In R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745,      A
this Court said as follows:
     “5. We see considerable force in the second contention raised
     by the learned counsel for the petitioners. The reservations
     provided under the impugned Government instructions are to
     be operated in accordance with the roster to be maintained         B
     in each Department. The roster is implemented in the form of
     running account from year to year. The purpose of “running
     account” is to make sure that the Scheduled Castes/Schedule
     Tribes and Backward Classes get their percentage of reserved
     posts. The concept of “running account” in the impugned
     instructions has to be so interpreted that it does not result in   C
     excessive reservation. “16% of the posts …” are reserved for
     members of the Scheduled Castes and Backward Classes. In
     a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22,
     30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved
     and earmarked in the roster for the Scheduled Castes. Roster       D
     points 26 and 76 are reserved for the members of Backward
     Classes. It is thus obvious that when recruitment to a cadre
     starts then 14 posts earmarked in the roster are to be filled
     from amongst the members of the Scheduled Castes. To
     illustrate, first post in a cadre must go to the Scheduled Caste
     and thereafter the said class is entitled to 7th, 15th, 22nd and   E
     onwards up to 91st post. When the total number of posts in a
     cadre are filled by the operation of the roster then the result
     envisaged by the impugned instructions is achieved. In other
     words, in a cadre of 100 posts when the posts earmarked in
     the roster for the Scheduled Castes and the Backward Classes       F
     are filled the percentage of reservation provided for the
     reserved categories is achieved. We see no justification to
     operate the roster thereafter. The “running account” is to
     operate only till the quota provided under the impugned
     instructions is reached and not thereafter. Once the prescribed
     percentage of posts is filled the numerical test of adequacy is    G
     satisfied and thereafter the roster does not survive. The
     percentage of reservation is the desired representation of the
     Backward Classes in the State Services and is consistent with
     the demographic estimate based on the proportion worked
     out in relation to their population. The numerical quota of        H
622           SUPREME COURT REPORTS                         [2022] 7 S.C.R.


A          posts is not a shifting boundary but represents a figure with
           due application of mind. Therefore, the only way to assure
           equality of opportunity to the Backward Classes and the
           general category is to permit the roster to operate till the time
           the respective appointees/promotees occupy the posts meant
           for them in the roster. The operation of the roster and the
B
           “running account” must come to an end thereafter. The
           vacancies arising in the cadre, after the initial posts are filled,
           will pose no difficulty. As and when there is a vacancy whether
           permanent or temporary in a particular post the same has to
           be filled from amongst the category to which the post belonged
C          in the roster. For example the Scheduled Caste persons holding
           the posts at roster points 1, 7, 15 retire then these slots are to
           be filled from amongst the persons belonging to the Scheduled
           Castes. Similarly, if the persons holding the post at points 8
           to 14 or 23 to 29 retire then these slots are to be filled from
           among the general category. By following this procedure there
D
           shall neither be shortfall nor excess in the percentage of
           reservation.”
            19. In Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604,
      this Court stated thus:
E          “19. It was submitted that having regard to the instructions
           issued by the Haryana Government in its circular letter dated
           27-4-1972, roster points cannot be considered as seniority
           points and further having regard to the fact that these
           instructions have been followed by the High Court for a long
           time, there is absolutely no reason as to why such a practice
F          should be deviated from. The learned counsel contended that
           this Court in Ajit Singh (II) 5 having categorically held that
           roster points are not intended to determine seniority between
           general candidates and reserved candidates, the impugned
           judgment cannot be faulted with.
G          24. The Rules, therefore, indisputably lay emphasis on merit.
           It for all intent and purport excludes the applicability of rule
           of appointment in terms of roster points.
           33. The question as to whether the determination of inter se
           seniority would depend upon the filling up of the vacancies
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                           623
                     & ORS.

      so far as the reserved categories are concerned, having regard       A
      to the roster points, in our opinion, is no longer res integra.
      40. An affirmative action in terms of Article 16(4) of the
      Constitution is meant for providing a representation of a class
      of citizenry who are socially or economically backward.
      Article 16 of the Constitution of India is applicable in the         B
      case of an appointment. It does not speak of fixation of
      seniority. Seniority is, thus, not to be fixed in terms of the
      roster points. If that is done, the rule of affirmative action
      would be extended which would strictly not be in consonance
      of the constitutional schemes. We are of the opinion that the
      decision in P.S. Ghalaut does not lay down a good law.”              C

       20. In G.P. Doval v. Govt. of U.P., (1984) 4 SCC 329, this Court
stated as follows:
      “16. A grievance was made that the petitioners have moved
      this Court after a long unexplained delay and the Court should       D
      not grant any relief to them. It was pointed out that the
      provisional seniority list was drawn up on March 22, 1971
      and the petitions have been filed in the year 1983. The
      respondents therefore submitted that the Court should throw
      out the petitions on the ground of delay, laches and
      acquiescence. It was said that promotions granted on the basis       E
      of impugned seniority list were not questioned by the
      petitioners and they have acquiesced into it. We are not
      disposed to accede to this request because Respondents 1 to
      3 have not finalised the seniority list for a period of more
      than 12 years and are operating the same for further                 F
      promotion to the utter disadvantage of the petitioners.
      Petitioners went on making representations after
      representations which did not yield any response, reply or
      relief. Coupled with this is the fact that the petitioners belong
      to the lower echelons of service and it is not difficult to
      visualise that they may find it extremely difficult to rush to the   G
      court. Therefore, the contention must be rejected.
      17. In view of the discussion, these petitions succeed and are
      allowed and a writ in the nature of certiorari is issued
      quashing the impugned seniority list dated March 22, 1971
                                                                           H
624            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A           in respect of Khandsari Inspectors. The Respondents 1 to 3
            are directed to draw up a fresh seniority list based on the
            principle of length of continuous officiation reckoned from
            the date of first appointment if the appointment is followed
            by confirmation i.e. selection/approval by the State Public
            Service Commission. We order accordingly, but in the
B
            circumstances of the case, there will be no order as to costs.”
            21. In Kuldip Chand v. Union of India, (1995) 5 SCC 680, this
      Court stated thus:
            “4. It is next contended by Mr. M.M. Kashyap, learned counsel
C           for the appellant, that Ashok Kumar disputed the correctness
            of the seniority list made on 23-12-1982 in his representations
            dated 10-1-1983 and 1-8-1983 which were duly considered
            and rejected. He allowed it to become final as he did not
            challenge the same till post of accountant became vacant.
            When it was rejected, he filed the writ petition in the High
D           Court. There is a considerable delay in claiming his seniority
            over the appellant. It is true that the seniority list was prepared
            as early as on 23-12-1982 but no vacancy had arisen
            thereafter and, therefore, the mere rejection of the claim for
            seniority does not disentitle him to claim his seniority over
E           the appellant for consideration by the respondent-Union.
            5. When the aforesaid facts are taken into consideration, it
            would be obvious that the preparation of seniority list per se
            was illegal. Therefore, the mere fact that he did not challenge
            the seniority list, which was illegally prepared, till he was
F           aggrieved for non-consideration of the claim to the post of
            accountant, his legitimate right to be considered cannot be
            denied. Under these circumstances, the delay is of no
            consequence for considering the claims of Ashok Kumar for
            the post of accountant.”

G           22. The question as to whether the determination of inter-se
      seniority would depend upon the filling up of the vacancies so far as the
      reserved categories are concerned, having regard to the roster points, in
      our opinion, is no longer res integra.
            23. In Ajit Singh v. State of Punjab, (1999) 7 SCC 209, a five
      Judge Bench of this Court has laid down the law in the following terms:
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                             625
                     & ORS.

      “40. “It must be noted that whenever a reserved candidate              A
      goes for recruitment at the initial level (say Level 1), he is not
      going through the normal process of selection which is applied
      to a general candidate but gets appointment to a post reserved
      for his group. That is what is meant by “reservation”. That is
      the effect of “reservation”.
                                                                             B
      41. Now in a case where the reserved candidate has not opted
      to contest on his merit but has opted for the reserved post, if
      a roster is set at Level 1 for promotion of the reserved candidate
      at various roster points to Level 2, the reserved candidate, if
      he is otherwise at the end of the merit list, goes to Level 2
      without competing with general candidates and he goes up               C
      by a large number of places. In a roster with 100 places, if
      the roster points are 8, 16, 24 etc. at each of these points the
      reserved candidate if he is at the end of the merit list, gets
      promotion to Level 2 by side-stepping several general
      candidates. That is the effect of the roster-point promotion.          D
      42. It deserves to be noticed that the roster points fixed at
      Level 1 are not intended to determine any seniority at Level 1
      between general candidates and the reserved candidates. This
      aspect we shall consider again when we come to Mervyn
      Continho v. Collector of Customs (1966) 3 SCR 600 lower                E
      down. The roster point merely becomes operative whenever a
      vacancy reserved at Level 2 becomes available. Once such
      vacancies are all filled, the roster has worked itself out.
      Thereafter other reserved candidates can be promoted only
      when a vacancy at the reserved points already filled arises.
      That was what was decided in R.K. Sabharwal v. State of                F
      Punjab (1995) 2 SCC 745.”
      24. In Ajit Singh (II), the decision of this Court in R.K. Sabharwal
case has, thus, been explained as under:
      “P.S. Ghalaut v. State of Haryana [(1995) 5 SCC 625] relied            G
      upon by Dr. Chauhan, is a decision rendered by a two Judge
      bench. In that case Rule 13 of the Rules envisaged that the
      seniority inter se of members of the service shall be determined
      by the length of continuous service on any post in the service;
      provided further that in the case of two or more members
                                                                             H
626            SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A           appointed by direct recruitment, the order of merit determined
            by the Commission shall not be disturbed in fixing the seniority.
            Despite the said Rule, it was held as under:
                “Take for instance Vacancies Nos. 1 and 6, as pointed out
                in the Chief Secretary’s letter have admittedly been
B               reserved for Scheduled Castes. Suppose recruitment was
                made to fill up ten vacancies, three candidates from
                Scheduled Castes were selected on the basis of reserved
                quota. The question is whether the first candidate will be
                put in the quota allotted to the Scheduled Castes in the
                roster. Having been selected as a general candidate, though
C               he is more meritorious than the second and third
                candidates, he will not get the placement in the roster,
                reserved for Scheduled Castes i.e. Nos. 1 and 6 points.
                Consequently candidates Nos. 2 and 3 will get the
                placement at Nos. 1 and 6 and the first candidate will get
D               the placement in the order of merit along with the general
                candidates according to the order of merit maintained by
                the Selection Committee or the Public Service Commission.
                He cannot complain that having been selected in the merit,
                he must be placed in the placement reserved for Scheduled
                Castes at Point No. 1 in the roster. Equally, though general
E               candidate is more meritorious in the order of merit
                prepared by the Public Service Commission or the Selection
                Committee, when the appointments are made and the
                vacancies are filled up according to the roster, necessarily
                and inevitably the reserved candidates though less
F               meritorious in the order of merit maintained by the Public
                Service Commission would occupy the respective places
                assigned in the roster. Thereby they steal a march over some
                of the general candidates and get seniority over the general
                candidates. This scheme is, therefore, constitutional, valid
                and is not arbitrary.”
G
            We have not been able to persuade ourselves to the aforesaid
            view.”
            25. It will be of interest to note that the hypothetical situation
      taken up by this Court in P.S. Ghalaut (supra) where two reserved
H     category candidates were pitted against each other, was actually extracted
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                                627
                     & ORS.

by this Court in para 36 of the report in Bimlesh Tanwar (supra) and            A
this Court recorded that the same was not correct. In para 40 of the
report this Court eventually held as follows:-
      “40. An affirmative action in terms of Article 16(4) of the
      Constitution is meant for providing a representation of class
      of citizenry who are socially or economically backward.                   B
      Article 16 of the Constitution of India is applicable in the
      case of an appointment. It does not speak of fixation of
      seniority. Seniority is, thus, not to be fixed in terms of the
      roster points. If that is done, the rule of affirmative action
      would be extended which would strictly not be in consonance
      of the constitutional schemes. We are of the opinion that the             C
      decision in P.S. Ghalaut does not lay down a good law.”
       26. What was done in Bimlesh Tanwar (supra) was actually a
declaration of law. Therefore, the same will have retrospective effect.
In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court held
that “the law declared by a court will have retrospective effect, if            D
not otherwise stated to be so specifically”.
       27. This Court was conscious of the fact, as could be seen from
paragraph 19 of the report in P.V. George (supra), that when the doctrine
of stare decisis is not adhered to, a change in the law may adversely
affect the interest of the citizens. But still this Court held that the power   E
to apply the doctrine of prospective overruling (so as to remove the
adverse effect) must be exercised in the clearest possible term.
       28. Therefore, it is clear that anything done as a consequence of
the decision of this Court in P.S. Ghalaut (supra), cannot stand since
this Court did not apply the doctrine of prospective overruling in Bimlesh      F
Tanwar (supra) in express terms. It goes as follows:-
      “(i) In Union of India v. Virpal Singh [(1995) 6 SCC 684],
      this Court upheld the stand taken by the Railways that reserved
      category candidates who got promotion at roster points would
      not be entitled to claim seniority at the promotional level as            G
      against senior general category candidates who got promoted
      at a later point of time to the same level. The Court held that
      the State was entitled to provide, what came to be known in
      popular terms as the “catch up rule” enabling the senior
      general category candidates who got promoted later, to claim
                                                                                H
628             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A           seniority over and above the roster point promotee who got
            promoted earlier.
            (ii) The catch up rule formulated in Virpal was approved by a
            three member Bench in Ajit Singh Januja v. State of Punjab
            [(1996) 2 SCC 715]. This case came to be known as Ajit Singh
B           (I).
            (iii) But, another three member Bench took a different view in
            Jagdish Lal v. State of Haryana [(1997) 6 SCC 538] and
            held that while the rights of the reserved candidates under
            Article 16(4) and 16(4-A) were fundamental rights, the right
C           to promotion was a statutory right and that therefore, the roster
            point promotees have to be given seniority on the very same
            basis as those having continuous officiation in a post.
            (iv) Since Jagdish Lal took a view contrary to the views
            expressed in Virpal Singh and Ajit Singh (I), the State of
D           Punjab filed Interlocutory Applications before this Court,
            seeking clarifications. These Interlocutory Applications were
            placed before a Constitution Bench comprising of 5 Judges,
            in view of the fact that two Benches of coordinate jurisdiction
            (both three member Benches) had taken diametrically opposite
            views. The decision rendered by the larger Bench of 5 Judges
E           on these Applications came to be known as Ajit Singh (II), in
            Ajit Singh v. State of Punjab [(1999) 7 SCC 209].
            (v) Eventually, the Constitution Bench held in Ajit Singh (II)
            that the roster point promotees cannot count their seniority in
            the promoted category, from the date of their continuous
F           officiation in the promoted post, vis-a-vis the general category
            candidates who were senior to them in the lower category
            and who were later promoted. As a consequence, Virpal and
            Ajit Singh (I) were declared to have been decided correctly
            and Jagdish Lal was declared to be incorrect.”
G            29. Thus, the principle of law discernible from all the aforesaid
      decisions of this Court is that the roster system is only for the purpose of
      ensuring that the quantum of reservation is reflected in the recruitment
      process. It has nothing to do with the inter-se seniority among those
      recruited. To put it in other words, the roster points do not determine the
      seniority of the appointees who gain simultaneous appointments; that is
H
MANOJ PARIHAR & ORS. v. STATE OF JAMMU & KASHMIR                                   629
                     & ORS.

to say, those who are appointed collectively on the same date or are               A
deemed to be appointed on the same date, irrespective when they joined
their posts. The position of law as discussed about could be said to be
prevailing even while the High Court of Jammu & Kashmir decided by
a Full Court Resolution to determine the seniority on the basis of roster
points.
                                                                                   B
      30. We are not inclined to carve out an exception for the 2003
appointees that is the petitioners herein before us. The High Court in our
view rightly applied the principle of law explained by this Court in the
case of Bimlesh Tanwar (supra).
       31. There is one another important aspect of this matter, we need           C
to take notice of. The High Court in its impugned judgment and order
has observed that the appointments of the selected officers were made
in terms of Rule 42 of the Jammu & Kashmir Civil Services (Judicial)
Recruitment Rules 1967 vide the Government order dated 06.08.2003
that is much after the pronouncement of the judgment in the case of
Bimlesh Tanwar (supra). It makes all the differences.                              D

        32. In the overall view of the matter, we are convinced that there
is no jurisdictional infirmity or any other infirmity in the impugned judgment
passed by the High Court warranting interference at our end
       33. In the result, this petition fails and is hereby dismissed.             E

Nidhi Jain                                                   Petition dismissed.
(Assisted by : Tamana, LCRA)



                                                                                   F




                                                                                   G




                                                                                   H