Paragraph numbers below are the court’s original numbering, recovered from the source text.
6. At the outset, we must note that Mr Gaurav Pachnanda, Senior Counsel appearing on behalf of the High Court has stated that the High Court accepts the correctness of the judgment of the Division Bench insofar as it found infirmities in the gradation list, independent of the observations in paragraph 16.
7. Mr A Mariarputham, Senior Counsel, has appeared on behalf of the appellants and Mr Sanjay Hegde, Senior Counsel, has appeared on behalf of the respondents who were the original petitioners before the High Court.
8. Mr Sanjay Hegde has submitted that there was no occasion for the High Court to consider the subject matter of the challenge raised before the High Court by applying the ratio in Ashok Kumar’s case, since this did not form the scope of the challenge at all. Learned Counsel urged that this aspect did not form the subject matter of the petition or of the submissions.
9. The High Court had observed that the ratio in Ashok Kumar’s case would be sufficient to settle the principle issue raised. The reference to the decision in Ashok Kumar Sharma’s case was wholly unnecessary since no submission was urged on the basis of that decision by the petitioners before the High court. However, the High Court also undertook an analysis of the validity of the gradation list independent of the ratio in Ashok Kumar’s case. However, the decision of the High Court seems to intertwine the reasoning on both aspects. Without commenting on the merits of the independent grounds on which the gradation list has been faulted, we are of the considered view that it would be appropriate to remand the matter back to the High Court. It was not necessary for the High Court or, for that matter, appropriate to rely upon the decision in Ashok Kumar’s case, since such a ground was not urged either in the writ proceedings or in the course of the submissions by the petitioners before the High Court. Consequently and for the above reasons, we are of the view that it would be appropriate to set aside the impugned judgment and order of the High Court and to remit the proceedings to the High Court for determination afresh. We clarify that the grounds which have weighed in paragraph 16 of the impugned judgment, are not sought to be raised by the respondents – original petitioners before the High Court.
10. The main issue in the writ proceedings before the High Court is whether the seniority for the purpose of the gradation 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 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 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 appropriate if VINOD KUMAR BHAGAT v. STATE OF JAMMU & KASHMIR 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.
12. The appeal is accordingly disposed of in the above terms
13. Pending application, if any, stands disposed of. Devika Gujral Appeal disposed of.