LPA No. 47/2022 Page 1 of 5 Sr. No. 59 Suppl. Cause List. 1 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM No. 1407/2022 in LPA No. 47/2022 Union Territory of JK & Ors. …Petitioner(s)/Appellant(s) Through: Mr. Abdul Rashid Malik, Sr. AAG with Mr. Mohd Younus Hafiz, AC & Ms. Rahella Khan, AC Vs. Nighat Jabeen ...Respondent(s) Through: Mr. Mir Majid Bashir, Adv. CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE O R D E R 20.02.2025 Sanjeev Kumar, J CM No. 1407/2022 This is an application filed seeking condoning the delay of 708 days in filing the appeal. Objections have been filed. With the consent of both the parties and having regard to the nature of controversy involved, the delay in filing the appeal is condoned. COD application is disposed of. LPA No. 47/2022 This intra-court appeal by the Union Territory of JK & Ors arises out of an order and judgment dated 5th February 2020 passed by the learned Single Judge of this Court [“Writ Court”) in SWP No. 2208/2017 titled Nighat Jabeen vs. State of JK & Ors. The impugned judgment is challenged by the appellants only to the extent of directions No. III and IV and the challenge is premised on the ground that the seniority of Accounts Assistants is to be fixed from the date of appointment given to the candidates after they successfully complete/qualify ACC examination and, that too, in the order of merit. It is Mohd Altaf Nima I attest to the accuracy and authenticity of this document 21.02.2025 LPA No. 47/2022 Page 2 of 5 thus argued that direction No. III and IV whereby the appellants have been ordered to fix the seniority of the respondent from the date the other selectees have been appointed is dehors the Kashmir Subordinate Accounts Service Rules, 1966 (for short the Rules of 1966). Per contra, Mr. Mir Majid Bashir, learned counsel for the respondent would argue that the judgment passed by the writ court is perfectly in consonance with Rules of 1966 read with Schedule XI of J&K CSR Vol. II and, therefore, does not call for any interference. He would submit that the Writ Court has, after coming to the conclusion that the selection and appointment to the respondent was denied due to negligence/fault solely attributable to the appellants, held that she cannot be discriminated vis-à-vis a candidate who were selected in the same selection and appointed prior to appointment of the petitioner pursuant to the judgment impugned. He would further argue that the appellants have erroneously given the appointment to the respondent prospectively and thereby regulating her initial pay during probation under SO 192 dated 17.06.2020. Having heard learned counsel for the parties and perused the material on record, we deem it necessary to first set out the reliefs granted by the Writ Court herein below:- I. The respondent No.3/Chairman, J&K Services Selection Board, by a Writ of Mandamus, is directed to release the recommendations in favour of the petitioner against the post of Accounts Assistant (Finance Department), District Baramulla, advertised vide advertisement notice No. 07 of 2010 dated 12th of November, 2010 under Item No. 399, as expeditiously as possible, and, in any case, not later than three weeks from today; II. The respondent Nos. 1 and 2, on receipt of the recommendations from the respondent No.3, shall forthwith issue the appointment order in favour of the petitioner against the aforesaid post in accordance with the rules governing the subject; III. The petitioner shall be entitled to the benefit of appointment, as aforesaid, from the date the other selectees stand appointed on the concerned post in the order of merit and her seniority shall be maintained in accordance with the merit secured by the petitioner; and Mohd Altaf Nima I attest to the accuracy and authenticity of this document 21.02.2025 LPA No. 47/2022 Page 3 of 5 IV. The appointment of the petitioner, for purpose of seniority/ other service benefits, excluding monetary benefits, shall be reckoned from the date other selectees have been appointed. The writ petition has been allowed by the Writ Court on being satisfied that the respondent had secured 75.6654 points, while as, the candidate last selected had obtained only 69.0956 points in the selection initiated by J&K Service Selection Board vide Advertisement Notification No. 07 of 2010 dated 12th November 2010. The Writ Court has rightly concluded that on the basis of her merit, the respondent would have figured at serial No. 39 of the select list of Open Merit, however, due to negligence on the part of the appellants in particular J&K Service Selection Board, she could not find her name in the select list. The J&K Service Selection Board or for that matter, the Department of Finance could not point out any negligence or fault which could be attributed to the respondent. It is on this realization of this mistake, the appellants have implemented the judgment qua the direction No. I and II reproduced hereinabove. In compliance with direction No. I, the J&K Service Selection Board released the selection of the respondent in terms of letter dated 15th December 2017 followed by an order dated 15th September 2020 and the Director General, Accounts and Treasuries, Finance Department vide order No. 144-Acctts of 2020 dated 22nd December 2020 deputed the respondent for undergoing one year’s ACC Training in the Accounts Training Institute, Srinagar. On successful completion of the ACC training, the respondent was appointed as Accounts Assistant vide order No. 121-Acctts of 2022 dated 28th July 2022. Since the appellants have accepted the direction No. I and II contained in paragraph No. 5 of the judgment and have implemented the same in letter and spirit and, as such, they are rightly not in appeal against the aforesaid directions. The appeal is, therefore, restricted to the issuance of direction No. III and IV of the judgment which we have reproduced hereinabove. From a plain reading of direction Nos. III and IV, it clearly transpires that the Writ Court has held the respondent entitled to benefit of appointment from the date the other selectees in reference to Advertisement Notice No. 07 of 2010 dated 12th November 2010 stood appointed, of course, after the successful completion of the ACC Training. Mohd Altaf Nima I attest to the accuracy and authenticity of this document 21.02.2025 LPA No. 47/2022 Page 4 of 5 The direction No. III deals with fixation of seniority and the writ court has directed the appellants to fix the seniority of the respondent taking her to be appointed along-with other selectees. There seems to be some confusion in the mind of appellants in understanding direction No. III and IV and probably this confusion has arisen due to the ambiguity in the language used in direction No. III and IV. Having regard to the facts and circumstances of the case and the context in which the directions No. III and IV have been issued by the Writ Court, we are of the considered opinion that the directions III and IV need to be recast so as to avoid any confusion at the time of their implementation. Indisputably, the Writ Court has held the respondent entitled to be selected at Sr. No. 39 of the select list prepared in reference to Advertisement Notification No. 07 of 2010 dated 12th November 2010. The appellants have accepted that position and in compliance of the direction No. I deputed her to ACC Training. There is no dispute with regard to the fact that the respondent has successfully completed her ACC Training. That being the admitted position, the respondent cannot be discriminated vis-à-vis the candidate selected along-with her in reference to Advertisement Notification No. 07 of 2010 dated 12th November 2010. She is very well entitled to maintain her position at serial No. 39 of the selection list and her appointment from the date the other selected candidates in reference to Advertisement Notice No. 07 of 2010 dated 12th November 2010 came to be appointed after successful completion of ACC Training. For all these reasons, the direction Nos. III and IV are recast and substituted in the following manner:- III. The petitioner shall be entitled to the benefit of appointment with effect from the date the other selectees of the select list prepared pursuant to the selection process carried in terms of Advertisement Notification No. 07 of 2010 dated 12th November 2010 came to be appointed after successful completion of ACC Training and her seniority shall be fixed in accordance with the Kashmir Subordinate Accounts Service Rules, 1966 read with Schedule XI of J&K CSR Vol. II. IV. For the purposes of emoluments and fixation of her salary also, she shall be deemed to have been appointed along- Mohd Altaf Nima I attest to the accuracy and authenticity of this document 21.02.2025 LPA No. 47/2022 Page 5 of 5 with other selectees and, therefore, shall not be deprived of the full salary for the period of nine months i.e. w.e.f. commencement of SO 192 dated 17th June 2020 till it was repealed by SO 425 of 2022. With the aforesaid modification, this LPA is disposed of. (PUNEET GUPTA) (SANJEEV KUMAR) JUDGE JUDGE SRINAGAR: 20.02.2025 Altaf Whether approved for reporting? Yes/No Mohd Altaf Nima I attest to the accuracy and authenticity of this document 21.02.2025