J&K High Court says 4 civil judges were illegally appointed in 2011: Here's why and how

The Jammu & Kashmir and Ladakh High Court recently said that it “illegally” appointed four civil judges in 2011 after a clerical mistake was committed by the State law department and the J&K Public Service Commission (PSC) in an advertisement for recruitment of judicial officers [Tabassum Qadir Parray v. High Court of Jammu and Kashmir and Another].A Division Bench of Justices Sanjeev Kumar and Sanjay Parihar said that though the appointment of these munsiffs (now called civil judges) was a clear illegality, only a compassionate view saved them. However, it opined that the decision affected the rights of other candidates.“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,” the Court said..The Court made these observations while dealing with a petition related to the seniority of these 4 judicial officers who continue to serve in the State judiciary since their appointment to the posts was never challenged. The controversy dates back to 2008, when the law department referred 35 posts of munsiffs – including four backlog vacancies in the Scheduled Tribe (ST) category – to the PSC for recruitment. This, despite the High Court having made a requisition only for 31 posts including the 4 vacancies under ST category. In a major blunder, the law department is stated to have told the PSC that the 4 posts were in addition to 31 posts referred by the High Court.It is not clear why no one – from the High Court to State government authorities - noticed the mistake during the process of selection..After the posts were advertised, more than 1,000 candidates appeared in the exams. Following the selection process, 35 candidates, including the 4 petitioner judges, were recommended for appointment in September 2010. The government accorded approval to the selection of 35 candidates in October 2010. However, the High Court in April 2011 only sanctioned the appointment of 31 selected candidates, as only these many posts were vacant. In September 2011, the 4 other candidates were also appointed as more posts of munsiffs became available. The controversy was soon reborn when the High Court in a seniority list placed these 4 judges below those appointed in April 2011. Aggrieved by this, they argued that they deserve the same seniority, as they cannot be blamed for the delay in their appointments. .Dealing with a petition moved by the four judges in 2018, the Division Bench noted that the 4 candidates were appointed only after government’s concurrence, which came only after the High Court said that they can be accommodated against fresh vacancies that had arisen due to certain promotions in the judiciary.The Court said that these 4 judges had no right to be appointed only on the basis of their mere placement in the selection list, particularly when they were selected over and above the available vacancies. They could have been denied the appointment as there was no obligation to accommodate them against the future vacancies, it added. However, the Bench noted that the High Court took “a compassionate view” in the matter and appointed them to the 4 posts that fell vacant much after the conclusion of the selection process. It said that ordinarily, future vacancies – which were 15 in number - ought to have been notified afresh for selection.“The utilisation of 04 posts out of these posts was to the prejudice of and to the detriment of the candidates who had acquired eligibility after the cut-off date in the advertisement notification issued in the year 2008. The utilisation of four future vacancies to accommodate the petitioners was clearly de hors the Rules and against the settled position of law,” the Court said..The Court added that these appointments were “de hors the Rules and, in any case, irregular, if not void ab initio.” Considering the same, the Court said that these 4 judges cannot consider themselves equal to the other 31 judges. “The selection process, as stated above, came to close with the appointment of Munsiffs against the 31 available posts. The subsequent appointment of the petitioners against future vacancies is neither by operation of a waiting list nor a continuation of the selection process initiated in the year 2008, which, as stated above, came to be concluded in the year 2011 with the appointment of 31 candidates recommended by the High Court,” the Bench said.Further, the Court noted that the law is clear that those appointed irregularly or even in relaxation of the rules cannot take precedence over candidates appointed in accordance with the rules. It added that the candidates appointed in breach of law or rules constitute a class distinct from those appointed in accordance with the rules. “Acting otherwise would be putting a premium on the irregular appointments made and would be tantamount to acting to the prejudice of those who had secured a berth in the selection and appointment by following the procedure laid down by the rules and the law obtaining on the subject,” the Bench said.The Court observed that the government had shown grace by accepting the High Court recommendation for adjusting these candidates and that they should have been thankful that they got appointed to the posts despite lack of an indefeasible right. It, thus, dismissed the petition.“Not only did the petitioners accept the prospective appointment as Munsiffs, but, on the basis of the impugned seniority that was framed on 19.11.2011, they got promoted to the rank of Sub Judge. They, however, thought of challenging the seniority list by filing the instant writ petition in the year 2018. The writ petition, as rightly contended by the respondents, is hit by delay and laches and deserves to be dismissed at the threshold,” the Court said..The idiom “to have your cake and eat it too” completely fits in the controversy raised and the relief prayed for in this petition.J&K High Court.Advocate Salih Pirzada represented the 4 judicial officers.Advocates MI Qadiri, Waseem Gul, Showkat Ali Khan and Faheem Nisar Shah represented the respondents. .[Read Judgment]