Neither The Appellant Nor The Private Respondents Could Have Been Appointed But For Equitable Jurisdiction | J&K High Court Refuses Retrospective Appointment, Upholds Seniority Based On Merit
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar dismissed an intra-court appeal seeking retrospective appointment and seniority over previously appointed candidates. The court directed that the appellant, who was granted appointment solely on equitable considerations, was not entitled to seniority above others selected in an arbitrary and flawed process. The Bench stated that since the appointments, including that of the appellant, were outcomes of the Court’s equitable intervention rather than procedural entitlement, seniority must be determined based on the original merit position.
The appellant, Muneer Ahmad Shigan, had challenged a judgment dated 2nd August 2023 passed in WP(C) No. 2029/2019. The controversy stemmed from Advertisement Notice No. 01 of 2004 dated 19th November 2004, issued by Sher-I-Kashmir University of Agricultural Sciences & Technology (SKUAST) for the recruitment of Computer Programmer (Training Assistant), later redesignated as Programme Assistant (Computer). The appellant, along with several other candidates including private respondents Sumaira Shafi, Yasir Arfat, Naser-ul-Islam, and Mohd Iqbal Koul, submitted applications in response to the notification.
The appellant was not among the selected candidates. Aggrieved by the selection result, he filed SWP No. 778/2007, contending the selection process was arbitrary and violative of Articles 14 and 16 of the Constitution of India. The learned Single Judge allowed the petition on 29th November 2014, holding the entire selection process to be arbitrary and unlawful. It was found that the private respondents were ineligible for the posts advertised and the selection violated constitutional guarantees of equality.
Despite these findings, the Single Judge refrained from disturbing the appointments of the private respondents who had served for more than seven years. Instead, the Court directed SKUAST to appoint the appellant against any available post subject to formalities. When this order was not complied with, the appellant filed a contempt petition. Consequently, SKUAST issued Order No. 824(Est.) of 2015 dated 24th September 2015 appointing the appellant with immediate effect. The contempt petition was then disposed of, granting liberty to challenge the order of appointment.
Subsequently, the appellant filed WP(C) No. 2029/2019 seeking retrospective appointment from 15th March 2006 and seniority over the private respondents. The official respondents resisted, asserting no retrospective direction was issued earlier. They argued that the appellant had accepted his appointment and could not now seek a backdated effect. They further contended that the post for appointment became available only upon the death of one Shri Riyaz Ahmad Pandit on 15th February 2013.
The writ court dismissed the petition, holding the appellant was not entitled to retrospective appointment or seniority over others. The present appeal was then filed by the appellant challenging this judgment.
The Division Bench thoroughly reviewed the judgment passed in SWP No. 778/2007 and the subsequent legal proceedings. The Bench recorded: "The entire edifice of the case of the appellant rests on the true import and understanding of judgment passed by the learned Single Judge dated 29th November, 2014."
It further stated: "The learned Single Judge found the entire selection process vitiated being arbitrary and in conflict with Articles 14 and 16 of the Constitution. That being the position, the appellant was not entitled to be appointed as a matter of right."
The court found the direction for the appellant’s appointment was an equitable concession: "This concession for appointment of the appellant came to be granted by the learned Single Judge with a view to save the appointment of the private respondents on equitable grounds."
The Bench clarified the nature of the appointment, recording: "The appointment to be offered to the appellant was to be made against an available post." It reiterated that such a post became available only upon the death of the incumbent on 15th February 2013, and the appointment order dated 24th September 2015 complied with that direction.
Regarding seniority, the Bench observed: "The appellant as well as the private respondents are the equal beneficiaries of the benevolence of this Court... Once the official respondents accepted the judgment... the seniority of the appellant as well as the private respondents was required to be determined on the basis of their inter se merit, as there is no other mode prescribed for determining the seniority."
It further recorded: "Despite the vehement arguments... we could not persuade ourselves to accept that the appellant being eligible to hold the post was better placed than the private respondents."
The court concluded that equitable considerations saved the appointments of both the appellant and the private respondents. The appellant’s lower merit rank (33) precluded him from seeking superior seniority. Judicial precedents cited by the appellant’s counsel were held to be distinguishable and inapplicable.
The High Court dismissed the appeal stating: "We are of the considered opinion that the judgment passed by the writ Court is legally perfect and the view taken by the writ Court in the given facts and circumstances of the case, is unexceptionable."
It concluded: "For the foregoing reasons, we find no merit in this appeal and the same is, accordingly, dismissed."
Advocates Representing the Parties:
For the Petitioner: Mr. Altaf Haqani, Senior Advocate with Mr. Aasif Wani, Advocate
For the Respondents: Mr. M.Y. Bhat, Senior Advocate with Mr. Sajid Ahmad, Advocate; Mr. Mian Tufail, Advocate with Mr. Mian Rouf, Advocate
Case Title: Muneer Ahmad Shigan v. Sher-i-Kashmir University of Agricultural Sciences and Technology & Ors.
Case Number: LPA No. 158/2023 in WP(C) No. 2029/2019
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar
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