.jpeg)
Srinagar, Sep 16: In O.A./1039/2025 (SRINAGAR) titled BASHIR AHMAD KHAN Vs UTS JAMMU AND KASHMIR after hearing CAT ordered as under:-
01/ Through the medium of this petition, the petitioners have, inter alia, prayed for a relief to set-aside the impugned seniority list passed by respondent No. 4 vide order No. DYSSO/Kup/Estt/592/93 dated 16-05-2025 with further direction to the respondents to maintain the seniority of the applicants from S. No. 53 onwards immediately after the appointees of 2009 of the department while counting their first appointment from 26/27-09/2010 as settled by the Hon’ble High Court of J&K while deciding the writ petition filed by them.
The petitioners have further sought a relief as an interim measure that till the final disposal of this petition, the impugned seniority list of Physical Education Teachers issued by respondent No. 4 vide order No. DYSSO/Kup/Estt/592/93 dated 16-05-2025 may be stayed.
02/ What can be gathered from the averments urged in this petition is that the petitioners claim to have been appointed in the respondent department on consolidated basis and they were allowed to continue on consolidated wages from time to time and were regularized by the Govt. vide order Nos. 33-Edu (Tech) of 2013 dated 13- 01-2013, and Govt. order No. 32-Edu(Tech) of 2013 dated 13-01-2013 prospectively in terms of J&K Civil Services (Special provisions Act 2010).
03/ It is stated by learned counsel for the petitioners that in terms of section 5 of the Jammu & Kashmir Civil Services (Special Provisions Act 2010), the petitioners were entitled to be regularized immediately on completion of continuous consolidated/ad hoc service of seven years and, therefore, their regularization should have been given effect from the date of coming into operation of the Act of 2010.
The applicants had already completed seven years of consolidated/ad hoc service, as such, they were entitled to be regularized with effect from the date of their initial appointment but their services were regularized from the date they were regularized in the year 2013, which compelled them to file a writ petition before the Hon’ble High Court of Jammu & Kashmir and sought reliefs for regularization of their services w.e.f the appointed date i.e 26/27- 09/2010, when the Act of 2010 came into force with all consequential benefits.
The said writ petition was disposed of by the Hon’ble High Court of Jammu & Kashmir in terms of order dated 11-07-2018 passed in a bunch of cases with lead case SWP No. 2147/2017 and the petitioners were held entitled for the reliefs which they have sought in the writ petition and the operative portion of the judgement, inter alia, read as “In light of the above, all these petitions are allowed and the respondents are directed to give the benefit of regularization to the services of petitioners within a period of four months from the date, certified copy of the order is served upon them.”
It is stated by the learned counsel for the petitioners that the State thereafter preferred various SLPs, which were dismissed.
04/ The petitioners are aggrieved of their placement in the tentative seniority list of Incharge Physical Education Masters/Teachers of District Kupwara. Perusal of the impugned Circular reveals that the impugned seniority list is a tentative seniority list and a tentative seniority list is only issued in order to seek objections from an employee, whose rights are being affected and it is only after objections are filed and considered that a final seniority list is issued.
05/ Learned counsel for the petitioners submitted that the tentative seniority list is in fact a final seniority list and the respondents have issued the said tentative list earlier to the issuance of impugned seniority list dated 09- 04-2025, as such, learned counsel submits that the impugned order is a final seniority list.
He has referred to the last paragraph of the impugned circular which reads ‘please note that no objections or representations will be entertained after expiry of the above deadline and the list shall be deemed final.” Learned counsel further submits that all the petitioners have filed their objections to the tentative seniority list dated 16-05-2025, but, however, despite that, the respondents have not taken note of the such objections which the petitioners have filed against issuance of the tentative seniority list. He further submits that the impugned circular is otherwise illegal and arbitrary as the tentative seniority list was to be followed by a final one, particularly after the competent authority having considered the objections so raised.
He further submits that each and every representation/objections filed by the aggrieved employees should have been disposed of by the respondents by passing a speaking order before issuance of the impugned circular. Learned counsel further submits that such action of the respondents smacks of arbitrariness and preconceived mind of the District Youth Service and Sports office, Kupwara, to deprive the petitioners their place in the seniority list.
06/ In terms of law, every tentative list is to be followed by a final seniority list. Learned counsel for the petitioners submitted that in terms of the judgement, which the petitioners have earned from the writ court, the respondents were under obligation to give the benefits of the judgement to them, but same has been denied to them. He was confronted as to whether the petitioners have preferred any contempt petition before and higher forum for non compliance of the judgement dated 11-07-2018.
Answering in affirmative, learned counsel submitted that the contempt petition is pending before the apex court as on date. The fair statement so made by learned counsel for the petitioners has further clarified his stand that the respondents, during the pendency of the contempt petition, could not have given effect to the judgement dated 11-07-2018 or thereafter the orders passed by the Division Bench of the Hon’ble High Court of J&K, in view of pendency of the petition.
He submits that as the contempt petition is pending before the apex court, as such, any order, at this stage, would not be in conformity with the judicial discipline and dictum.
07/ Heard learned counsel for the petitioners at length.
08/ Issue notice. 09/ Mr. Syed Musaib – DAG caused his appearance and waived notice on behalf of respondents 1 to 4. He shall file his detailed reply in the matter by or before next date of hearing. As regards service upon the respondents 5 to 89, learned counsel for the petitioners is directed to file equal number of AD Covers along with equal sets of paper book before the Registry for service upon the rest of the respondents.
10/ Before parting, learned counsel for the petitioners submitted that he would like to serve the private respondents through publication and, accordingly, sought some time to file an M.A in this regard. Prayer allowed.
Let Mr. Hilal A. Wani, learned counsel appearing for the petitioners, do so positively within one week. Registry shall, in the meantime, serve notice on the official respondents only.
11. List the matter for consideration along with M.A, to be filed by the learned counsel for the petitioners, on 27-11-2025. 1
12/ Learned counsel for the petitioners vehemently submitted that the impugned seniority list be stayed till objections are filed in the matter. The relief is denied at this stage as, in absence of stand of the private respondents in the matter, who are yet to be served, such prayer cannot be allowed at their back.
To this effect, I am fortified by a catenae of judgements issued in Asit Kumar Kav versus State of West Bengal, 2009(2) SCC703, State of Punjab and others versus Bavinder Paul Singh Dhullar 2011 (14) SCC – 770, Gagan Banga & another versus State of West Bengal 2024 Legal Eagle 877 & Rajaram Ahasaheb Deshmukh versus Sate of Maharashtra & others, 2022- Legal Eagle, SC 1270.
However, in order to preserve the subject matter of the lis, it is provided that the instant tentative seniority list shall remain subject to outcome of the main O.A.
13/ Joint Application (M.A 1304/2025), is accordingly, disposed of. M. S. Latif Member (J)
|