Delhi High Court
Atul Kr Sharma & Ors vs The Hon???Ble High Court Of Delhi on 23 October, 2009
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) NO.4077-84/2004
Reserved on : 13.04.2009
Pronounced on: 23.10.2009
ATUL KR SHARMA & ORS ........... PETITIONERS
THROUGH : MR. SANJAY JAIN, SR. ADVOCATE WITH
MR. JAYANT TRIPATHI, MS. RUCHI JAIN &MR. SARFARAZ
AHMAD, ADVOCATES
VS.
THE HON'BLE HIGH COURT OF DELHI ......... RESPONDENT
THROUGH : MR. VIRAJ DATAR, ADVOCATE FOR DHC.
MR. SANJEEV SACHDEVA, ADV. WITH MR. PREET PAL SINGH AND MR. CHETAN CHOPRA
ADVOCATES FOR RESP. 4,8,11,12,13,22,27,30,33,35,37,39 & 50.
MS. JYOTI SINGH WITH MR. ANKUR CHIBBER, ADVOCATES FOR RESP. NO.7.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
JUDGMENT BY THE COURT
*
1. The present petition concerns a perennial source of litigation that has dogged the
administration of this court, i.e recruitment and promotion to certain cadres in the
establishment. All the petitioners originally belonged to the Junior Translators' cadre; their
grievances here are two fold- firstly, that they have not been given the relief of consequential
promotion, they are legitimately entitled to, after the judgment of a Division Bench of this
WP (C) No.4077-84/2004 Page 1
court, in 1998, invalidating a part of the amendment to the Rules, made in 1988; secondly, that
their onward promotion to further cadres have been denied, even while those junior to them,
from the cadre of UDC/Treasurer, (in the joint seniority list of equivalent cadres, published
earlier) were promoted as Administrative Officer (Judicial)/Court Master (referred to hereafter
as "AOJ" and "CM" respectively), and are even now in line for promotion to the post of
Assistant Registrar.
2. The brief facts necessary for deciding case are that Recruitment Rules for various posts
were formulated in relation to the High Court, in 1972; (hereafter referred to as "the 1972
Rules"); they came into effect from 01.09.1972. According to the original rules, 100% of the
posts of Assistants (later designated as Senior Judicial Assistants, and hereafter referred to as
"SJA") were to be filled by selection on the basis of test from members of High Court
Establishment with 5 years' service. With effect from 20.09.1978, (hereafter "the 1978
amendment") the 1972 Rules were amended; 50% of the SJA cadre was to be filled by
promotion on the basis of seniority-cum-suitability from the cadres of Treasurers/UDCs, with 5
years' service; the balance 50% was to be filled, by selection on the basis of test from members
of High Court Establishment with 5 years' service. On 16.03.1988, the Rules were again
amended ("the 1988 amendment"); the cadre of SJA was to be filled up exclusively (100%) by
promotion on the basis of seniority-cum-suitability from Treasurers/UDCs possessing 5 years'
service.
3. In the wake of the 1988 amendment, in April, 1989, M/s. Atul Kumar and M.M. Beg,
Junior Translators, filed a writ proceeding, CWP 1218/89 inter alia challenging 1988
amendment as it excluded Junior Translators from feeder posts for promotion against 50%
seniority quota, to the post of SJA. The petition remained pending for about a decade; on
16.10.1998, a Division Bench of this court delivered its judgment, allowing the writ petition, and
holding among others, that:-
"We find no difficulty in coming to the conclusion that the amendment
brought into force on 16.03.1988, in so far as it affected the service conditions of
the Junior Translator, is void in law offending Articles 14 and 16 of the
Constitution of India and accordingly it is declared void. The High Court shall
WP (C) No.4077-84/2004 Page 2
follow the rule which provided promotional avenues to the Junior Translators also
to the post of Assistant/Jr. Reader/Caretaker prior to the date of the amendment,
namely, 16.03.1988."
4. During the pendency of the writ petition, the court had directed that if any promotions
were made (to the SJA cadre), they were to be subject to the final outcome. With the judgment
being delivered, the question about the modality for its implementation had to be considered.
Therefore, a three judge Committee was constituted to report the appropriate mode of doing
so. The Committee, on 13.01.1999, recommended that the High Court had to follow the Rules,
which were in existence prior to 1988, (i.e. the 1978 amendment). Soon, another event took
place: on 18.03.1999, by an amendment, ("the 1999 amendment") the 1978 amendment was
restored, through a notification. At that stage, there were 30 vacancies in the post of SJA; to fill
them up, on 30.04.1999, the Acting Chief Justice inter alia ordered that:-
"Fifteen (15) posts of Assistant which is 50% of the total existing
vacancies, be filled in by promotion immediately and thereafter steps be taken to
fill up remaining 15 posts by holding written test and interview for which
suggestion at (a) and (b) are approved.
Committee comprising Justice Arun Kumar, Justice D.K. Jain and Justice
A.K. Srivastava is requested to make recommendations for filling 15 vacant posts
by promotion as per mode (a). Office to place all the relevant service records and
ACR dossiers of the eligible officers before the said Committee for consideration."
5. Later, on 17.05.1999, under orders of the Acting Chief Justice, fifteen persons
were promoted to the post of SJA against the 50% promotion quota on the basis of
seniority. The next day, i.e, on 18.05.1999, a notice inviting applications from eligible
candidates for appearing the exam for the post of SJA was issued. This led to immediate
filing of a writ petition, C.W. No. 4974/1999 ( by Mahesh Kumar and others) claiming
quashing of the notice of 18.05.1999 and for stay of examination. On 24.08.1999, the
court issued an interim order restraining the holding of the examination as the
advertisement did "not suggest educational qualification as the eligibility criterion..."
The High Court was however, free to hold the examination "..subject to the requirement
WP (C) No.4077-84/2004 Page 3
of education qualifications as per the amendment of 1995 on the basis of the position
which prevailed prior to the amendment dated 16.03.1988."
6. On 20.06.2000, a notification was issued amending the Rules for appointment to
the post of SJA so as to include Graduation as minimum educational qualification. On
18.07.2000, the Court inter alia permitted the High Court establishment "to proceed
with making appointments as per the notification issued......" Consequently, on
13.08.2000, a departmental test for filling up the 25 posts of SJA (15 of the year 1999
and 10 of the year 2000) was held. In this process, Ms. Uma Sharma and Mr. Manoj
Kapoor both Judicial Translators among 23 others candidates were selected and
appointed to the post of Sr. Judicial Assistant. Mr. Manoj Kumar, Judicial Translator was
also appointed on the basis of the test notionally w.e.f. 05.12.2000, later (actually w.e.f.
28.05.2004), by an administrative order dated 29.05.2004.
7. In the meanwhile, the Junior Translators who had succeeded in their challenge to the
1988 rules, had represented, 15.03.1999 and 25.11.1999, about their proper placement, and
promotion. The matter was again referred to a committee of three judges, which after
considering all the aspects, submitted its recommendations, on 11.05.2000. The relevant
recommendations are extracted below:-
"1. The Junior Translators be given notional promotion from the date
UDC/Treasurer in the combined seniority list, who were junior to these Junior
Translators, were given promotions.
2. In effecting the promotion in the manner mentioned in No.1 above, if the
vacancy of Sr. Translator becomes available in view of promotion of Sr.
Translator to the post of Assistant from a prior date, the next senior most Jr.
Translator who appeared in the test and qualified the same be promoted as Sr.
Translator.
3. The promotions would be notional and the pay fixed from the date of
notional promotion with the benefit of seniority. However, no arrears of pay
would be given to these Jr. Translators who will be promoted to the post of
Assistants or Sr. Translators as the case may be.
WP (C) No.4077-84/2004 Page 4
4. On the basis of aforesaid ante-date promotions as Assistant or Sr.
Translator, if these persons become eligible for promotion to the next higher
grade, i.e. Superintendent etc. they may be considered for that as well. We are
informed that the written test for promotion to the post of Superintendent is
going to be held on 9th September, 2000. Subject to the acceptance of the
aforesaid recommendations, those persons who become eligible for
consideration to the post of Superintendent may be provisionally allowed to sit in
the written examination scheduled for 9th September, 2000."
The above report was approved by the Chief Justice, by an order dated
08.09.2000.
8. On 09.09.2000, a departmental test was held for selection to fill 8 vacancies of
AOJs/CMs. Two translators, i.e Mr. Chandra Shekhar and Mr. Arun Kumar Sharma,
appeared in the said test. However, some other Translators, (Atul Kumar Sharma and
Umesh Kumar Sharma) did not accept the Roll numbers issued to them. Sh. M.M. Beg,
Sr. Judl. Translator, among other candidates, was appointed as AOJ/CM (the next higher
post) w.e.f. 25.07.2002 on the basis of this test. Soon thereafter, Sh. Atul Sharma filed
an application, C.M. No. 8257/2000 in C.W.P. No. 1218/1989 seeking a direction for a
supplementary test, alleging that he had insufficient time for preparing for the test. This
application was allowed by the Court on 19.12.2000. A Special Leave Petition was filed
against the order, which was dismissed on 20.07.2001. Accordingly, a supplementary
examination was held on 25.08.2001. While allowing the application for holding the
supplementary examination the Court had clarified that 'the rights of the applicant and
other similarly situated persons will ultimately depend on the finalization of fixation of
notional seniority. The present application is allowed in the above terms.'
9. In another development, the results of M/s Chandra Shekhar and Arun Kumar Sharma
(who had appeared in the examination held on 09.09.2000) for the post of AOJ/CM, were
withheld. The result of the supplementary examination, held on 25.08.2001, along with the
result of M/s Chandra Shekhar and Sh. Arun Kumar Sharma were declared on 10.09.2001 and
the qualified candidates were called for interview on 19.09.2001. However, the interview of
these two candidates was deferred. Sometime in November, 2000, the Report of the
committee dated 08.09.2000 was challenged by way of a writ petition. During its pendency,
WP (C) No.4077-84/2004 Page 5
representations were made, to implement the committee's recommendations, which had been
accepted by the Chief Justice on 08.09.2000, by Shri Atul Sharma and six other translators
requesting promotion to the post of SJA. These representations were rejected by order of the
Chief Justice dated 24.08.2001. The establishment (or the Registry) had prepared a note, stating
that there were difficulties in accepting the recommendations of the committee of 11th May,
2000 as accepted by the Chief Justice, on 08.09.2000. The issue was again referred to another
committee. This led to another recommendation, this time, dated 08.04.2002. This committee
stated, inter alia, that (hereafter called "the 2000 report"):
".........Those who are promoted on the basis of 1988 amendment and the
promotions were made resubject to the outcome of the writ petition
No.1218/89, may be reverted at least to the extent of 50%, by applying the pre
1988 rules. Consequently on availability of 50% posts, the same be filled on the
basis of written test and interview for which Junior Translators would also be
eligible."
These recommendations were approved by the Chief Justice on 08.04.2002.
10. At the same time, in 2002, Atul Kumar Sharma filed C.M. Nos. 4740-41/2002 in
(disposed of) C.W. 1218/1989 seeking inter alia for implementation of Report dated 08.09.2000
and for holding interviews for the remaining candidates who had qualified the written exam,
for the posts of AOJ/CM and make selection accordingly. Further, the respondents be
restrained from taking any action contrary to Administrative Committee report dated
08.09.2000.
11. On 25.07.2002, the Selection Committee for the post of AOJ/CM made the following
recommendations:
"By its Report dated 08.04.2002, the Committee has recommended that
those who are promoted as Senior Judicial Assistants on the basis of 1988
amendment and the promotions were made subject to the outcome of the writ
petition No.1218/1989, may be reverted at least to the extent of 50% by applying
the pre-1988 rules. Consequently on availability of 50% posts, the same be filled
on the basis of written test and interview for which Junior Translators would also
be eligible. Since the Junior Translators were not eligible to sit in the examination
held on 09.09.2000 for the posts of Administrative Officer (Judicial)/Court
Master, no action is called for in respect of the supplementary examination.
WP (C) No.4077-84/2004 Page 6
XXX XXX XXX"
On 30.07.2002, a Division Bench of the Court, in CM 4740-41/2002 recorded that since the High
Court was "proceeding ahead and taking decision in the matter, the(se) applications will not
survive for consideration."
12. Later, in August, 2002, Shri Atul Kumar Sharma and others filed C.M. No.
8280/2002 (in C.W. No. 1218/1989) seeking implementation of Report dated 08.09.2000
and to promote them and other six translators who had qualified the exam for the post
of AOJ/CM, as per their merit. On 12.08.2002, the Court passed the following orders, on
the said applications:-
"The main writ petition stood disposed of by judgment dated 16.10.1998.
In order to have the order implemented, the petitioner moved miscellaneous
applications. A committee of Hon'ble Judges was appointed on Administrative
Side and lastly, decision was taken on the Administrative Side on 08.09.2000 to
implement the decision. The petitioner's case is that pursuant to the decision he
has been given notional promotion as Assistant but he still has grievance that
pursuant to interim orders passed on the miscellaneous applications as regards
holding of examinations to fill up the posts of AOJs/Court Masters, the petitioner
has not been considered or has not been called for interview.
The above grievance cannot be made a ground for agitation by way of
miscellaneous application. In case the petitioner has any grievance now, the
same cannot be got redressed by moving miscellaneous application in a disposed
of matter. The relief now prayed for in the miscellaneous application is otherwise
beyond the scope of the writ petition.
With leave and liberty granted, the applications are dismissed."
The applicants assailed the above orders by filing special leave petitions, before the Supreme
Court, seeking stay of the examination, scheduled for 08.09.2002 (for the posts of AOJ/CM)
pending disposal of that petition and for direction to the High Court to call the petitioner and
other six Junior/Senior Translators who had already qualified in the Written Exam for the post
of AOJ/CM for interview and they be appointed to the said post in accordance with their merit.
On 08.09.2002, a test was held for the post of AOJ/CM pursuant to notice dated 07.08.2002.
S/Sh. Mohd. Naqi, Atul Kumar Sharma, A.K. Gupta and Umesh Chandra Sharma, Senior Judicial
WP (C) No.4077-84/2004 Page 7
Translators and Sh. Abdul Sattar, Judicial Translator appeared in the said test. S/Sh. Atul Kumar
Sharma and Ajay Kumar Gupta, Senior Judicial Translators who qualified the test, were
appointed to the post of AOJ/CM on 10.02.2003.
13. On 13.01.2003, the Supreme Court remanded back the matter to this Court with the
observation that it would be appropriate that either a writ petition is filed or the miscellaneous
application itself could be treated as an independent Writ Petition as may be decided by the
Division Bench of the High Court. Again, another application, C.M. Nos. 5340-41/2003 was filed
in disposed of C.W. No. 1218/1989 seeking inter alia for revival of C.M. Nos. 4740 and
8280/2002 and for grant of all the prayers made there and stay further promotion to the posts
of SJA and AOJ/CM till final decision of that petition/applications. During its pendency, on
04.07.2003, a test was held for the post of SJA pursuant to the Court's notice dated 29.04.2003.
On the basis of this test Mr. Sanjeev Dobhal, Mr. M.P. Singh Bisht, Sh. Deep Chand, all Judicial
Translators were appointed to the post of Temporary SJA w.e.f. 28.05.2004. Later, on
12.07.2003 a test for the promotional post of AOJ/CM was held pursuant to the notice dated
31.05.2003. S/Sh. Mohd. Naqi and Umesh Chandra Sharma, Senior Judicial Translators
appeared in the test but could not qualify. In the meanwhile, on 14.10.2003, C.M. Nos. 5340-
41/2003 (in C.W. No. 1218/1989) was disposed of by the Court with the direction to the
petitioner to file a fresh petition impleading all those persons who were likely to be affected as
a party, which in those miscellaneous applications had not been done. It was under these
circumstances, that on March 2004, the present writ petition was filed, seeking, inter alia for
implementation of the decision dated 08.09.2000 of the Court and for promotion of petitioners
No.1 to 5 and 7 & 8 as AOJs/CMs, who have qualified the exam for the said cadre. During the
pendency of the present writ petition, a committee, constituted for promotion to SJA,
considering the various intervening developments, stated on 17-5-2004, that:
"In view of the fact that as against 64 posts going to 50% seniority quota, only 63
officials who have been promoted on the basis of seniority from time to time
since 1988 are in position, question of reversion of any official promoted on the
basis of 1988 amendment, as recommended by the Committee on 08.04.2002
does not arise........"
WP (C) No.4077-84/2004 Page 8
It is submitted that these recommendations were approved by the Chief Justice. During
the pendency of proceedings, the writ petitioners sought and were granted leave to
amend the petition; they have also impleaded officers and other employees of the High
Court registry, likely to be affected by the judgment in this case.
14. The petitioners contend that they have been unfairly treated as regards
promotion to the cadre of SJA, as well as in respect of subsequent promotional posts. It
is submitted that no examinations or departmental tests were held for 16 years,
between 1984 and 2000, for promotion to the SJA cadre; for the first time, a test was
held in August, 2000. The eighth petitioner participated in the process, without
prejudice to his rights. The petitioners also make out a common grievance for the denial
of their claim to be appointed to the higher promotional post of AOJ/CM, despite
Petitioner Nos. 1 to 5 and 7 been successful in the written test, but were not called for
interview.
15. It is contended that the petitioners had qualified in the written examination for
the post of Senior Judicial Translator, three times but were not granted promotion. The
petitioners argue that the post of Junior Translator was declared as equivalent to
Technical Assistant (now SJA) long ago, in a judgment delivered on 12.04.1983. It is
further argued that this position continued till 1986 when, on a demand by Judicial
Assistants, the court granted parity of equivalence with the cadre of Junior Translators.
The petitioners also argue that a common seniority list continued to be maintained as
between these categories, in which they were shown as senior to the contesting
respondents, in the category UDCs and Treasurers, who despite the judgment of the
Division Bench, continued to reap the benefits of the previous rules, and deprive the
petitioners their rightful promotion as SJAs.
16. According to the petitioners, once the Chief Justice accepted the
recommendations of the committee, constituted specifically to suggest modalities for
implementation of the decision, in view of the conscious decision not to appeal against
the Division Bench judgment, there was no question of a further administrative review
of recommendations of that committee, of 08.09.2000, as is sought to be put forward
WP (C) No.4077-84/2004 Page 9
now, on the basis of the later recommendations of 2002. It is argued, therefore, that the
establishment of the court is bound to give effect to the recommendations, which had
been accepted in September 2000.
16. It is contended that the petitioners cannot be faulted for the court's inability in
holding examinations to fill the post of SJA, since 2000. They also argue that all
promotions made during the 10 year period, when the writ petition was pending, was
on the basis of seniority-cum-suitability, which each of them had, in respect of the cadre
which they occupied at the relevant time, i.e. Junior Translators. It is argued that in the
joint seniority list, issued in 1994 and later, in 2005, they are ranked senior to the others
in the equivalent grade, i.e. UDC/Treasurer. As far as suitability is concerned, they argue
that whenever tests were held for the post of Senior Translators, each of them were
declared duly qualified. It is another matter, altogether that they could not be
appointed, to that promotional post, since the number of vacancies were too few.
Therefore, they submit that appropriate justice would be done if the recommendations
accepted on 08.09.2000 are given effect to, and those among them, who participated in
the written examination (to the post of AOJ/CM) but were inexplicably not called for
interview, are treated as having been promoted, in that cadre, from the dates their
juniors, in the joint seniority list of equivalent cadres, were promoted.
17. The petitioners contend that the recommendation of 08.04.2002, which is in the
nature of a review, cannot supplant the earlier decision of the committee, that had been
accepted by the Chief Justice, in September, 2000. Their senior counsel urges that the
later review is without any rationale; having determined to accept the previous
recommendations, which the competing demands of two feeder cadres, that were to be
accommodated, for promotion to the SJA, there was no necessity for reviewing that
decision, if the review were to lead to injustice, and more importantly, defeat the final
and binding writ issued by the court, in a judicial verdict. It is emphasized that having
accepted the judgment, and decided not to appeal against it, the court should strive to
reach a solution, rather than probe ways of "getting around" the order. It is argued that
adopting the later, reviewed decision of 2002 would exacerbate and highlight the
WP (C) No.4077-84/2004 Page 10
injustice to those borne in the translator cadre, whereas there is no ground to
discriminate against them. In this regard, it is again emphasized that where recruiting -
through more than one channel or source, the employer or establishment should not
discriminate against one source, or conversely, favour another source. Reliance is placed
upon the decision of the Supreme Court reported as Nirmal Chandra Bhattacharjee v.
Union of India & others 1991 Supp (2) SCC 363, in this regard. It is also urged that the
court should not feel constrained in granting consequential promotion to the higher
promotional post of AOJ/CM, since the petitioners were not at fault, at any point of
time. Learned senior counsel relies on the judgments of the Supreme Court, reported as
Union of India v. K.P. Rajoria 2000 (3) SCC 562, and K. Madhavan v. Union of India 1987
(4) SCC 566, in support of the submission that if it is found that juniors in a cadre have
been promoted, ignoring the senior's claim, the appropriate method of redressing the
latter's grievance would be to direct his promotion to be effective from the date the
junior was promoted.
18. The establishment of the High Court, in its return to the amended writ petition,
argues that the relief of implementation of the directions of 16th October, 1998 does not
survive determination, as they were duly given effect to; they rely on the report dated
08.04.2002, and the subsequent reports dated 25.07.2002 and 17.05.2004, which were
accepted by the Chief Justice. It is denied that the petitioners have any right to claim
implementation of the decision dated 08.09.2000 and argued that their claim to that
effect, is misconceived. It is averred that the previous decision - of 2000, was based on
an incorrect appreciation of the rules, and based on the assumption that promotion to
the post of SJA, pre 1988 amendments, were made on seniority cum suitability basis;
whereas, that was the correct position vis-à-vis 50% of the posts, and the balance
requiring to be filled by a departmental promotion from amongst those in the High
Court establishment, with 5 years' service. The earlier decision was therefore,
fundamentally flawed, and was reviewed by the later recommendation of 2002, which
was accepted.
WP (C) No.4077-84/2004 Page 11
19. It is urged, on behalf of the High Court establishment, that the writ petitioners
had, in the earlier proceedings, sought quashing even of the amendments made in
1978- in respect of the period when they had not been appointed. It is argued that the
denial of this relief is a significant pointer to the Division Bench's disinclination to grant
any relief, consequential to the declaration that the 1988 amendments were
unsustainable. In these circumstances, the petitioners cannot make any grievance, since
the High Court establishment had to deal with an unprecedented situation, whereby
promotions to the cadre of SJA had been validly made exclusively from two feeder
cadres (UDCs and Treasurers) in compliance with rules, which were in force, and had not
been suspended. No examinations - to fill any promotional vacancy- were required to
be held, nor were held. In this background, the clock could not have been put back in
respect of those who were promoted validly during the ten year period. While so, the
administration also had a responsibility of exploring all feasible options to ensure that
the claims of those in the translators' cadre - and who had ultimately succeeded before
the Division Bench, were equitably redressed.
20. It is argued that the junior translators had their independent promotional
avenue, and could be promoted to vacancies in the cadre of Senior Translators. The
cadre- strength in the case of Jr. Translators was, at the relevant time, 11; the
promotional cadre of Sr. Translators had strength of 11. Junior Translators could, in
addition, compete for the 50% quota (which had been extinguished by the 1988
amendment, for a 10 year period) with others having 5 years' experience in the High
Court establishment. This did not, by any stretch of the imagination, confer an
indefeasible or "vested" right to claim promotion, as is being asserted on their behalf, in
the present writ petition. They had to compete, along with other categories of
employees, whenever vacancies in the departmental examination (50%) quota were
notified. This additional advantage of competing for a promotional post in another
channel, was not, however, available to other feeder cadres, in respect of the Senior
Translators' posts. It is therefore, argued that the petitioners only could at best bank on
WP (C) No.4077-84/2004 Page 12
an expectation, which is fundamentally weak to premise a claim for promotion, based
on the fulfillment of several contingencies.
21. It is argued by the High Court administration that many cadres that are feeder to the SJA
are premised on interchangeability. These assure the concerned employees, both lateral and
vertical mobility, in their onward career progression. All these aspects were taken into
consideration by the later Committee, which reviewed the earlier decision of 08.09.2000. It was
submitted by learned counsel that this Court should not ignore the subsequent events whereby
three sets of examinations were conducted for promotion (to SJA) after the Division Bench
ruling of 16.10.1998. These took place on 13.08.2000- when, out of the 45 persons who
qualified, 25 were promoted/appointed (on 05.12.2000); the second examination took place,
on 03.07.2003, when 26 candidates qualified in respect of an equal number of posts; all of them
were accommodated. Likewise, 19 persons were promoted with effect from 25.05.2004 in the
said 50% test quota. If these facts are taken note of, it would be apparent that 64 vacancies
were filled, on the basis of departmental exam. On the other hand, 50 vacancies were filled
between the periods 1988 and 30.09.1995 (29 on 13.05.1994; 5 on 14.07.1995 and 16 on
30.09.1995) on the basis of seniority-cum-suitability, premised upon the existing 1988
amendments. Later, 24 seniority quota promotions were made (17 on 17.05.1999 and 7 on
21.07.2000). Keeping in mind these figures, the petitioners' complaint of injustice is unmerited
and they are not entitled to any relief.
22. It is argued by the private respondents that no petitioner can claim any preferential
right for promotion to the higher cadres of AOJ/CM, on the basis of the right to "notional
promotion" to the SJA cadre. Such argument ignores the reality that eligibility for higher
promotional post prescribed by the rules is a qualifying service of 5-years' service in the post of
SJA - in the case of graduates, and 8 years' service in any of the posts in category-8. Having not
actually served in the SJA category, none of the petitioners can claim the right to "leapfrog"
either the prescribed norms or those who fulfill the eligibility criteria.
23. Some of the contesting respondents had filed their returns. Mr. Sanjeev Sachdeva,
learned counsel appeared on behalf of the Judicial Assistants; he argued that Personal
WP (C) No.4077-84/2004 Page 13
Assistants did not constitute part of the cadre though they were equal in status, to emphasize
that in fact, there was no interchangeability as argued by the petitioners. Learned counsel
stressed that the power to make inter-se transfers was at the discretion of the appointing
authority under Rule 8 and could not be premised upon any right of one or the other employee.
It was argued that the Division Bench was conscious of the intervening events and did not,
therefore, significantly, indicate any consequential order even while striking down the 1988
amendment partially. This aspect, coupled with the failure of the writ petition as far as it
challenged the 1978 amendment, point to the Division Bench's judgment being declaratory,
which could be interpreted and given effect to the extent the practicalities of the situation
warranted. It was argued that the Court cannot make an order in vacuum, particularly, since
there other cadres that are likely to be affected. Amplifying this aspect, learned counsel urged
that the 50% departmental test quota, which was restored by virtue of the Court declaration of
16.10.1998, enabled not merely Junior Translators but also other categories who fell within the
description and those working in the High Court establishment with 5-years' service. Although
they were not aggrieved by the shrinkage of their promotional avenue, by the 1988
amendment - any consequential decision to implement the earlier Court's direction, that would
impinge upon their further rights, which were at par with those of the Junior Translators,
cannot be taken in their absence. In support of this, learned counsel relied upon the decision of
the Supreme Court reported as M. Bheemaiya v. Deputy Commissioner of Excise 2001 (10) SCC
567.
24. Before a discussion on the merits of the dispute, and for a better appreciation, it would
be necessary to extract the relevant portion of the 1972 rules, pertaining to recruitment to the
post of SJA (previously known as Assistant) in its various forms, between 1972 to 1978;
between 1978 to 1988; the amendment in 1995 (prescribing graduation), after the judgment
dated 16.10.1998 and the amendment with effect from 18.03.1999 and lastly, the amendment
notified with effect from 20.06.2000. The same are extracted below conveniently in a tabular
form:
RECRUITMENT RULES FOR THE POST OF ASSISTANT FROM 1972 AS AMENDED FROM TIME TO
TIME TILL DATE
WP (C) No.4077-84/2004 Page 14
1972 (W.E.F. 01.09.1972)
S.No. Category of post Minimum qualification Mode of appointment
prescribed for
appointment to the post
8. Assistant, including (a) For members of the (a) By selection from
Caretaker (Selection Post) Establishment of High members of the
Court - 5 years service establishment of the High
on the establishment of Court on the basis of
the High Court. written test and interview,
or
(b) For direct recruits - (b) by direct recruitment on
Graduate. the basis of written test and
interview.
1978 (W.E.F. 20.09.1978)
S.No. Category of post Minimum qualification Mode of appointment
prescribed for
appointment to the post
Assistant, including (a) For members of the (a) 50% of the vacant posts
Caretaker and Junior Establishment of this by promotion on the basis
Reader Corut - 5 years service in of seniority-cum-suitability
(Promotion/Selection Post) any of the posts of the from categories specified in
categories 15 (including Column 3.
service rendered as UDC)
and 17 mentioned, in
Schedule-I.
(b) (i) For members of (b) (i) 50% of the vacant
the Establishment of this posts by selection on merit
Court - 5 years service from the categories
on the Establishment of specified in Column No.3 on
this Court and for the basis of written test;
members of the and interview.
Establishment of Courts
subordinate to this Court
- 5 years service in a
post carrying pay scale of
not less than Rs.330-
WP (C) No.4077-84/2004 Page 15
560/- (Rs.130-300/- pre-
revised).
(ii) For direct recruits; (iii) By direct recruitment on
Graduate. the basis of written test and
interview.
1988 (W.E.F. 16.03.1988)
S.No. Category of post Minimum qualification Mode of appointment
prescribed for
appointment to the post
Assistant, including (a) For members of the By promotion from
Caretaker and Junior Establishment of this categories 15 (including
Reader (Promotion Post) Court; 5 years service in service rendered as UDC)
any of the posts of the and 17 mentioned in
categories 15 (including Schedule-I on the basis of
service rendered as UDC) seniority-cum-suitability.
and 17, mentioned in
Schedule-I.
1995 (W.E.F. 02.05.1995)
S.No. Category of post Minimum qualification Mode of appointment
prescribed for
appointment to the post
Assistant, including (a) For members of the By promotion from
Caretaker and Junior Establishment of this categories 15 (including
Reader (Promotion post) Court; Graduate with 5 service rendered as UDC)
years service in any of and 17 mentioned in
the posts of the Schedule I on the basis of
categories 15 (including seniority-cum-suitability.
service rendered as UDC)
and 17, mentioned in
Schedule-I.
1999 (W.E.F. 18.03.1999)
S.No. Category of post Minimum qualification Mode of appointment
prescribed for
WP (C) No.4077-84/2004 Page 16
appointment to the post
8. Assistant, including (a) For members of the (a) 50% of the vacant posts
Caretaker and Junior Establishment of this by promotion on the basis
Reader Court; 5 years service in of seniority-cum-suitability
(Promotion/Selection Post) any of the posts of the from categories specified in
categories 15 (including Column. 3.
service rendered as UDC)
and 17 mentioned, in
Schedule-I.
(b) (i) For members of (b) (i) 50% of the vacant
the Establishment of this posts by selection on merit
Court - 5 years service from the categories
on the Establishment of specified in Column No.3 on
this Court and for the basis of written test and
members of the interview.
Establishment of Courts
subordinate to this Court
- 5 years service in a
post carrying pay scale of
not less than Rs.4000-
6000/-.
(b) (ii) For direct recruits; (b) (ii) By direct recruitment
Graduate. on the basis of written test
and interview.
2000 (W.E.F. 20.06.2000)
S.No. Category of post Minimum qualification Mode of appointment
prescribed for
appointment to the post
8. Sr. Judicial Assistant (a) For members of the (i) 50% of the vacant posts
including Court Officer and Establishment of this by promotion on the basis
Reader Court; Graduate with 5 of seniority-cum-suitability
(Promotion/Selection Post). years service in any of from categories specified in
the posts of the Column 3.
categories 15 (including
service rendered as
Judicial Assistant) and 17
mentioned, in Schedule-
I.
WP (C) No.4077-84/2004 Page 17
(b) (i) For members of (b) (i) 50% of the vacant
the Establishment of this posts by selection on merit
Court; Graduate with 5 from the categories
years or Matric/Higher specified in Column No.3 on
Secondary with 8 years the basis of written test and
service on the interview, failing which;
Establishment of this
Court; and for members
of the Establishment of
Courts subordinate to
this Court; Graduate with
5 years service in a post
carrying pay scale of not
less than Rs.4000-6000/-
(Revised).
(b) (ii) For direct recruits: (b) (ii) By direct recruitment
Graduate. on the basis of written test
and interview.
25. To understand the contours of the rules and their interplay, it would be briefly
necessary to describe the various cadres, their promotional avenues and the levels at which
they inteface with each other. The cadre of SJAs comprised of 116 posts, as of 1998. Till the
1978 amendment, all these posts were to be filled by promotion/selection from members of
the Establishment of High Court on the basis of written test and interview and also by direct
recruitment. By virtue of 1978 amendment, 50% of such posts of the SJA cadre were reserved
for promotion (on seniority-cum-suitability basis) from amongst the cadre of UDCs and
Treasurers. The balance 50% were to be filled by selection on merit from amongst members of
the Establishment of the Court or the subordinate Court, who had 5-years' service in a post
carrying pay-scale 330-560/- (then existing), based on a written test and interview. The 1988
amendment did away with this arrangement and confined promotion from amongst category of
UDCs and Treasurers. The feeder cadres comprised of 53 posts. The 1999 amendment restored
the pre-1988 position and restituted the 50% promotional quota - by selection through written
competitive examination from amongst employees in the High Court and subordinate Court
Establishment with 5-years' service in the grade not less than Rs.4000-6000/. The amendment
WP (C) No.4077-84/2004 Page 18
of 2000 only effected a cosmetic change by labeling the erstwhile post of Assistant as SJA, Court
Officer and Reader.
26. The cadre of Judicial Translators, at the relevant time in 1998 had 11 posts. Their vertical
career progression was - and continues to be through promotion to the post of Senior Judicial
Translator - a cadre comprising of 9 posts, to the extent of 50% on seniority, 50% of the
balance vacancies to be filled-up by selection on merit from members of the Establishment of
the High Court with 5-years' service. Another detail which needs to be noticed here is that
whilst the essential qualification for Judicial Translators was graduation with good knowledge of
English, Hindi or Urdu and the post was to be filled up by direct-recruitment on the basis of a
written test and interview, the UDCs' cadre did not contain such essential qualification; it was
graduation with 5-years' service or High-school or Matric with 10 years' service in specified
categories under the rules.
27. The Division Bench in the previous ruling in Atul Kumar Sharma case (C.W.P. 1218/1989
hereafter referred to as Atul Kumar-I) was persuaded that no explanation or rationale was
forthcoming why Junior Translators were deprived by the 1988 amendment, of their
promotional opportunities. The Court was influenced by the fact that the cadre-strength of
Senior Translators was extremely small, which tended to block the promotional chances of
Judicial Translators whereas the feeder cadre of SJA had far greater cadre-strength and the
situation existing before the 1989 amendment afforded greater possibility for their career
progression. In these circumstances, the Court held that the amendment was arbitrary and
violative of Articles 14 and 16 of the Constitution.
28. The previous narrative would show that after the judgment in Atul Kumar-I was
delivered, the question of its implementation was referred to a Committee, which
recommended that the 1978 rules should be "henceforth followed". The resultant ambiguity
led to reference to another Committee, which suggested four steps towards implementation of
the judgment. They were:
WP (C) No.4077-84/2004 Page 19
(1) Junior Translators being given notional promotion with effect from the dates the
UDCs/Treasurers in the combined seniority list junior to them (i.e. Junior Translators)
being given promotion.
(2) Whilst giving notional promotion, if any vacancy in the cadre of Senior
Translators were to become available, in view of promotion of such Senior Translators
(to the grade of SJA) from a prior date, the next senior-most Junior Translator, who had
appeared in the test and qualified - for the post of Senior Translators was to be
accommodated;
(3) The promotions were to be notional and pay was to be fixed from such notional
date with seniority benefits but without arrears of pay.
(4) If any such persons become eligible for further promotion to the higher grade,
i.e. CM/AOJ, they were to be considered for that as well.
29. It is a matter of the record that one day after the decision of the Committee was
accepted, i.e. 08.09.2000, a departmental test for further promotion - on selection basis - to
the cadre of AOJ/CM was scheduled. Some of the petitioners moved applications contending
that the time for preparation, i.e. less than 24 hours was too short. On that basis, the Division
Bench directed the holding of supplementary test; the matter was carried in appeal to the
Supreme Court by special leave. The Supreme Court upheld the direction by its order dated
20.07.2001 in SLP 2105/2001. A supplementary examination was held on 25.08.2001 in which
the Petitioner Nos. 1 to 5 and 7 participated. Petitioner Nos. 6 and 8 had appeared in the main
test, which was earlier conducted on 09.09.2000. The results of the written examination
disclosed that Petitioner Nos. 1 to 5, 7 and 8 had qualified; they were asked to appear in the
Interview Board. They state having returned for interview on 19.09.2001, but being informed
that the process was postponed and that the time for interview would be informed later. It is
also matter of record that on 26.08.2002, 8 others who had appeared in the test on 9.09.2000,
were appointed.
WP (C) No.4077-84/2004 Page 20
30. Apparently, the occasion for review (of the earlier September 2000 decision) of the High
Court was a representation by the UDCs/Treasurers who were promoted during 1988-98,
apprehending their imminent reversion. Their representation dated 21.07.1999 voiced that if
Junior Translators were also promoted, they would not have any objection. One of the
suggestions was that Junior Translators too should be considered on seniority-cum-suitability
basis (i.e. the criterion spelt-out by 1988 amendment) in respect of the vacancies arising during
1988-98. The representation was rejected. After taking note of these aspects and the previous
recommendations, the Committee, in 2002, recommended as follows:
"In view of aforesaid background, the following course of action may be
adopted:
Those who are promoted on the basis of 1988 amendment and the
promotions were made subject to the outcome of the writ petition no.
1218/1989, may be reverted at least to the extent of 50%, by applying the pre-
1988 rules. Consequently, on availability of 50% posts, the same be filled on the
basis of written test and interview, for which Junior Translators would also be
eligible."
31. During the course of hearing, the first respondent, i.e. Registry was directed to
disclose the particulars and number of appointments made to the cadre of SJA. The
statement disclosed that 34 UDCs were promoted on 13.05.1994; 5 on 14.07.1995 and
16 on 30.09.1995. All these were made exclusively on the basis of seniority-cum-
suitability from amongst the cadre of UDCs/Treasurers. After the judgment in Atul
Kumar-I, 19 UDCs/Treasurers were promoted on 17.05.1999 and 7 were promoted on
21.07.2000, again on the basis of seniority-cum-suitability. The very same tabular
statement also shows that on two further dates, i.e. on 24.11.2006 and 09.10.2007, 36
and 21 vacancies were filled to the cadre of SJA. Of these 16 and 7 (total 23), and 20 and
14 (i.e. totaling 34) vacancies were filled on the basis of seniority. The report dated
17.05.2004, after taking into account the previous sequence of events concluded that 64
posts ought to have been fallen to the 50% seniority quota from 1988 out of which, 63
officials were in position and since departmental exams were held on 13.08.2000 and
subsequently, on 03.07.2003, pursuant to which, promotions were made under the
exam quota, no further orders were called for on the basis of 2002 recommendations.
WP (C) No.4077-84/2004 Page 21
32. One fact which is to remain central on the mind of this Court is that by virtue of
the judgment in Atul Kumar-I, the 1988 amendment stood negated at the instance of
Junior Translators. No doubt, as is contended, by some of the contesting respondents,
the 50% departmental quota for promotion to SJA, could be used by some junior cadres
for their promotional avenues. It is however, also a fact that such other junior cadres,
who stood excluded by introduction of 1988 amendment, were not dissatisfied by it;
they accepted the situation and did not challenge the rules. This aspect assumes some
importance because the role of the Court in this dispute is to aid and implement the
previous judgment and arrive at a just solution rather than construe the Division Bench's
declaration as incapable of implementation. The second important aspect is that all
promotions made under the 1988 amendment (made solely on the basis of seniority-
cum-suitability) of UDCs/Treasurers were made explicitly subject to the final outcome of
Atul Kumar-I. The third aspect is that none of the 55 promotions made during the 10-
year period - (or even the instance of promotions made later, after the judgment, (19
on 17.05.1999 and 7 on 21.07.2000) were the result of departmental examination. Thus
as many as 81 vacancies in the cadre of SJA were filled between the period 13.05.1994
and 21.07.2000 only on the basis of seniority-cum-suitability basis of two feeder cadres.
The departmental exams were held on four separate occasions (i.e. on 13.08.2000,
03.07.2003, in 2006 and 08.07.2007), resulting in 94 vacancies being filled-up on the
basis of such departmental tests. In addition to these, 34 vacancies were filled on the
basis of seniority-cum-suitability of UDCs etc. Thus, out of over 200 vacancies, which
arose from time-to-time between the period 1990 and 2007, 125 were filled-up on the
basis of seniority-cum-suitability and 94 on the basis of departmental tests. Obviously,
there was no review of the kind recommended by the 2002 report and duly accepted by
the High Court.
33. This Court is unimpressed with the argument of the respondents that Junior
Translators cannot claim anything more than the mere exception for promotion to the
post of SJA; perhaps that argument was available in Atul Kumar-I; in any event, it has
not found favour. The Division Bench was considerably influenced by the disparity in
WP (C) No.4077-84/2004 Page 22
cadre-strength at the promotional levels as between the Translators' cadre and the
Judicial Assistant/UDC cadre. The disparity was because there are only nine posts in the
cadre of Senior Judicial Translators whereas the cadre-strength of SJA was at the
relevant time 116. It has now been increased. The Court is also mindful that Atul
Kumar-I was consciously not appealed against. That judgment has attained finality and
this Court has, therefore no choice in the manner of implementing it. The Court also
cannot accept the respondents' submission that Atul Kumar -I was merely declaratory,
with no obligation to take any steps to implement it. The other adjunct argument, that
since no examinations for the 50% departmental examination quota were held for about
12 years, as there was no requirement, is equally unpersuasive. The interim order of the
Division Bench explicitly stated that any promotions (to the SJA cadre) were subject to
the final outcome of the petition. This aspect was known to all those promoted from the
two feeder cadres (UDC/Treasurer) on seniority cum suitability basis - the promotion
notifications would bear testimony to this aspect. That no departmental tests were held,
therefore cannot be hardly a tenable- much less convincing argument, to deny the
obligation to meaningfully review the previous appointments and promotions, for the
period 1988-1998, or till 2000. Even the 2002 report recognized this, and required that
at least 50% of the promotions made, in respect of vacancies, during the period, had to
be reviewed.
34. The effect of a judgment, which has become final is that it is no longer open to a
party, including the executive government, to refuse its implementation, contending
that it is not practicable to do so, or some other reason. The only exception can be
where the basis of the decision is taken away in a curative legislation. Even the reversal
of the reasoning in another decision by larger bench, or by a higher court, only denudes
it of its precedential value, but does not take away its finality, inter parties. As far as
they are concerned, they are bound by it (See Madan Mohan Pathak v. Union of India
1978 [2] SCC 50, where it was held that where the Court issues a mandamus, which
becomes final, its effect (of the mandamus) cannot be taken away even by legislative
interdict in any manner). Therefore, this Court is duty bound, being a party to Atul
WP (C) No.4077-84/2004 Page 23
Kumar - I, to give effect to it, as far as possible, and not work its way around the
mandamus.
35. The previous discussion has shown that the review undertaken by this Court was
in respect of the vacancies filled after the decision in Atul Kumar-I. While there can be
no denying the fact that this does afford some consolation to Junior Translators, the fact
remains that the duty to effectuate the mandamus necessarily means that promotions
made during the 10 or 12 year period till 2000, exclusively on the basis of
seniority-cum-suitability, from amongst UDC and Treasurers, to the extent of 50%
promotions, were to be reviewed, or reconsidered. These were 71 in number, which
meant that at least 35 vacancies fell to the share of the Junior Translators, and other
junior cadres, entitled to compete on the basis of written test. An important aspect
which has not been denied, and has been repeatedly emphasized by the petitioners, is
that all of them qualified for promotion, in the written test held for the cadre of Senior
Translators, which is concededly equivalent to SJA. However, most of them could not be
promoted to that post, because of lack of vacancies (to recollect, the total promotional
cadre is only 9 posts).
36. The 08.09.2000 administrative decision envisioned a four stage implementation
of the judgment in Atul Kumar-I. The first was the Junior Translators being given
notional promotion with effect from the dates the UDCs/Treasurers in the combined
seniority list junior to them (i.e. Junior Translators) being given promotion. Whilst giving
notional promotion, if any vacancy in the cadre of Senior Translators were to become
available, in view of promotion of such Senior Translators (to the grade of SJA) from a
prior date, the next senior-most Junior Translator, who had appeared in the test and
qualified - for the post of Senior Translators was to be accommodated. The promotions
were to be notional and pay was to be fixed from such notional date with seniority
benefits but without arrears of pay. The last point was that if any such persons became
eligible for further promotion to the higher grade, i.e. CM/AOJ, they were to be
considered for that as well. This decision was reviewed, the later decision requiring that
WP (C) No.4077-84/2004 Page 24
promotions to SJA, for the relevant 10 (or 12) year period, being reviewed by reversion,
"at least to the extent of 50%, by applying the pre-1988 rules. Consequently, on
availability of 50% posts, the same be filled on the basis of written test and interview, for
which Junior Translators would also be eligible." That review has not occurred. The later
selection committee recommendations rationalized that promotions were made, on
seniority, only to 63 vacancies, which were within the 50 % quota. Whilst no one can
deny this fact, equally, there is no denial that those promotions on seniority basis were
made, after the judgment. The compulsion of having to reconsider or review at least a
limited number of promotions (which clearly became in excess of the quota meant to be
filled only by seniority, exclusively from two class of employees, after the Atul Kumar-I
decision) was not adverted to. A straightforward calculation would show that during the
ten year period, about 40 promotions clearly had to be made on the basis of written
test, from among other eligible categories.
37. The High Court establishment's concern at reaching a solution that would not
lead to widespread disquiet is understandable. The process of review - if taken literally,
is bound to result in unsettling matters and appointments that had achieved finality for
a 10 year period -or more, if one considers that some of the promotions to the SJA
cadres were made in 1994 and 1995. Equally, the justified concern in not unsettling such
appointments, or promotions which took place so long ago, and which formed the basis
for further promotions of at least some officials, cannot be the reason to deny the
petitioners' claim, especially since they had succeeded in Atul Kumar-I. The
understanding of the respondents too was that Atul Kumar-I would be given effect; this
is clear from an affidavit filed in the special leave petition, dated 10.07.2001, before the
Supreme Court. A copy of that affidavit, is part of the record, in this case. It speaks of
the decision dated 08.09.2000 and the High Court's commitment to adhere to it. This
court's endeavor therefore, would be to explore all options with a view to implement
the judgment, meaningfully, and at the same time arrive at an equitable solution that
would cause least dislocation or disruption to any one section of officials.
WP (C) No.4077-84/2004 Page 25
38. A strict adherence to the rules - as would inevitably be the consequence of Atul
Kumar-I - will result in large scale reversion of those promoted long ago. The courts'
endeavor therefore, is to minimize the harm. One very important aspect in this effort is
the fact that the other cadres who were equally affected by the 1988 amendment (such
as Stenographers, etc.) did not challenge it. It was only the Junior Translators who did
so; their arguments were considered in Atul Kumar -I. Therefore, the most appropriate
course would be to deal with the claim of such category of employees alone. The second
fact, namely that no exams or tests were held during the period, is a reality. The option
of doing so, was recommended for the first time, in the 2002 report; there is no demand
for that by any category of employees; the Junior Translators' representation, against
their reversion did not suggest it; the other eligible cadres (who could possibly benefit if
the vacancies were reviewed) also do not seek it. On the other hand, a joint gradation
list reflecting the combined seniority of employees in various equivalent grades exists.
The Junior Translators, UDCs and others are borne in it. The petitioners' uncontested
assertion is that most of them are senior to those in equivalent grades. Equally, all the
petitioners did qualify in the tests or examinations held - for the purpose of promotion
to the post of Senior Translators. They at least faced such departmental exams, and
were able to successfully clear it.
39. The first two petitioners, according to the facts made available by the parties, in
this proceeding, qualified in the test held for promotion to Senior Translator's cadre, in
1987; Petitioner Nos. 3-7 qualified in 1992, and the eighth petitioner qualified in 1996.
The material on record (list filed by the High Court on 04.02.2008, page 702) also reveals
that on 5 occasions, a total of 81 vacancies in the SJA cadre were filled, on seniority-
cum-suitability basis. As observed earlier, 50% of these, or 40 had to be filled through
examination. Out of the 81 vacancies, 26 were filled without regard to the rules, after
the judgment in Atul Kumar-I, in the sense that no departmental exam was held even
for any of those vacancies. This lapse, in this court's view, cannot be mitigated by
merely holding wholesale examination in respect of future vacancies, because the next
promotional post required at least five years experience, as an eligibility criterion. This,
WP (C) No.4077-84/2004 Page 26
in turn, meant that promotional opportunities of those not afforded a chance to
compete for the departmental exam quota (for the SJA cadre) were jeopardized. The
victory, for junior translators, (in Atul Kumar -I) was rendered pyrrhic, and illusory.
40. The following relevant facts are to be, therefore kept in mind, in view of the
above discussion:
(1) 81 vacancies having been filled to the SJA cadre, during 1988-2000, of which 40
posts ought to have been filled through departmental exams;
(2) A total of 115 vacancies being filled through application of seniority cum
suitability criteria, and 94 through departmental exams (ignoring the correctness of
promotions given in 2004, to 20 candidates, who had competed in the year 2000, and in
the absence of any provision for a waiting list- an irregurality serious in itself, but not
meriting an adverse order, as that is not the subject matter of this petition), thus
implying that at least 20 vacancies should have fallen to the share of the 50%
departmental exam quota;
(3) All the petitioners, concededly qualified in the departmental test for promotion
to the higher cadre of Senior Translator, long back, between 1987 and 1996;
(4) The petitioners have put in long years of service, and most of them being
concededly senior to those in equivalent grades, in the combined seniority list.
41. Today, only Junior Translators (most of them having been subsequently
promoted, on later dates, as Senior Translators, and some, to higher posts of AOJ/CM)
are before the Court. In view of the above facts, the Court is of opinion that there
should be a review in respect of at least 20% of the posts that were filled up during
1988-2000 (i.e. of 81 vacancies filled up during that time). Although a strict
implementation of the judgment would mean review in respect of 50% of the posts, or
40 such promotions (as recommended by the later committee of 2002), yet since only
the Junior Translator's cadre is seeking this review, the court is of the opinion that ends
of justice would be satisfied if 20% of those vacancies are filled (or treated as filled, as
WP (C) No.4077-84/2004 Page 27
the case may be) in the manner indicated by this judgment. Therefore, the Court is of
opinion that every fifth slot should be adjusted against the 50% departmental exam
quota. These vacancies may be filled, or treated as filled, in the following manner:
(1) Firstly, from the cadre of Junior Translators, according to their inter-se seniority,
subject to the individual concerned possessing the required 5 year experience,
stipulated in the rules (in the relevant prescribed grade)- without their having to qualify
in any further test.
(2) After accommodating the junior translator's cadre, the balance vacancies -
which would be about eight, shall be filled through a special review departmental test,
where those entitled to be considered, and eligible, for the purpose, during the relevant
period, i.e 1988-2000 alone shall be permitted to compete. Those successful shall be
accommodated against the last 8 slots.
(3) The promotions by following the above procedure, shall be notional; the
incumbents shall not be entitled to arrears of pay, but shall be entitled only to
consequential fixation/fitment in the grade.
42. While giving effect to the above directions, the respondents shall endeavor that
there are no reversions. The incumbent SJAs' appointment shall be notionally pushed
down, to later dates, if there is any need to revert those promoted the basis of
seniority-cum-suitability, in the cadre of Junior Assistants/UDCs or other cadres
promoted as SJA, in excess of the 50% quota. Also, there shall be no recovery of pay or
allowances made to them. In case any such SJAs have been promoted on selection basis,
every endeavour shall be made that they do not face reversion and instead, their date(s)
of promotion are postponed. In case of undue hardship, the Registry shall make
appropriate orders, by seeking recourse to the establishment's residuary powers under
the Rules.
43. The second limb of the problem -which is also a claim made by the petitioners is
their promotion to the post of AOJ/CM. Although almost all of them have now been
WP (C) No.4077-84/2004 Page 28
promoted to that cadre, it cannot be doubted that the decade long hiatus or deadlock
regarding promotions to SJA and implementation of Atul Kumar-I resulted in the
postponement of consideration of their claims. Crucially, it is a matter of record that the
petitioners were permitted to participate in the selection process for promotion to
AOJ/CM on 09.09.2000 ( in the case of two of them) and, on 21.08.2001, in the case of
the others. It is a matter of record also, that all, save petitioner were declared
successful, in the written test, and were called for interview, on 19.09.2001. However,
they were not interviewed, and the others - including those from the SJA cadre, were
appointed against the eight vacancies. The first respondent does not explain this aspect.
That the petitioners were later promoted, as AOJ/CM is no explanation; they were given
what was due to them.
44. The respondents' argument that the petitioners are claiming an untenable relief,
as without their promotion to SJA, and essential five years' service, they cannot be
considered for further promotion seems facially to accord with the rule position.
However, this Court is now called upon to rule in respect of a situation where the
authority, at five different points in time, did not follow the rules; at least in two of
those instances, there really was no excuse for not holding a departmental test for
promotion to the SJA cadre. Pertinently, in relation to the cadre of AOJ/CM, the
petitioners were successful in seeking orders - right up to the Supreme Court,
permitting their appearance in the written test; the respondents even held a
supplementary test to enable their participation. Yet, inexplicably, they were not
interviewed. The Court is duty bound to restitute their "lost opportunity" as their
subsequent promotion cannot but act to their disadvantage vis-à-vis those who were
promoted, in time, and who had participated in the said promotional process. In this
context, it would be apt to quote the observations in Rajoria (supra):
"The notional promotion was given to Krishnamoorti to right the wrong that had been
done to him by his supersession on 22-2-1995. If Krishnamoorti is denied the right to be
considered for promotion to the post of Director General on the basis of such notional
promotion, particularly when the relevant provisions so provide, it would result in
perpetuating the wrong done to him. That is exactly what the High Court has done."
WP (C) No.4077-84/2004 Page 29
45. In view of the above, the respondents are hereby directed to review the petitioners'
promotions to the cadre of AOJs/CMs and reconsider the issue, on each of the previous dates,
when the DPCs were held prior to their actual promotions. It is clarified that this direction is
confined to reviewing the petitioners' promotional dates, since they have already been
promoted, and the exercise will be limited to considering their cases, along with those who
were promoted on those concerned dates. An endeavour shall be made to see that no
reversions follow, and that if anyone in position is deemed not up to the mark, his or her
promotion shall be postponed to a later date, and such promotion shall be accommodated
against a later vacancy.
46. The writ petitions therefore, are entitled to succeed; they are allowed in terms of the
directions contained in Paras 40- 44 of this judgment. There shall however, be no order on
costs.
(S.RAVINDRA BHAT)
JUDGE
October 23, 2009 (SANJIV KHANNA)
JUDGE
WP (C) No.4077-84/2004 Page 30
