Atul Kumar Sharma And Ors. vs The Hon???Ble High Court Of Delhi ...
2012 Latest Caselaw 3708 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                   Date of reserve : 23.03.2012
                                                  Date of decision: 01.06.2012

+      CM Nos.22133/2010, 7841/2011, 10856/2011, 10857/2011, 18813/2011
                                 in
                      WP (C) No. 4077-84/2004

      ATUL KUMAR SHARMA AND ORS.                                    ..... Petitioners

                           Through: Mr. Sanjay Jain, Sr. Advocate with
                           Mr. Jayant Tripathi and Ms. Ruchi Jain, Advocates.
                           Mr. Arjun Mitra, Advocate for Petitioner-5.

                                         versus

      THE HON'BLE HIGH COURT OF DELHI &ORS.                       .....Respondents

Through: Mr. Viraj R. Datar, Advocate for DHC.

Mr. Arvind Sharma, Advocate for Applicants in CM Appl.22133/2010.

Mr. R.K. Saini, Advocate for Resp-7/Mr. Anil Jain.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SANJIV KHANNA

MR. JUSTICE S. RAVINDRA BHAT %

1. This order proposes to deal with applications filed in the wake of an earlier ruling of this Bench in WP(C) No.4077-84/2004. The judgment had disposed of a long standing grievance of employees of the Junior Translators cadre which had led to their approaching the Court earlier in 1989 challenging the amendments to the Rules so far as it blocked their promotions to the cadre of Senior Judicial

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 1 Assistant. Two writ petitioners in WP(C) No.1218/1989 (M/s Atul Kumar and M.M. Beg) claimed that the amendments were arbitrary because Junior Translators were excluded from the feeder category for competing to the post of Senior Junior Assistant (SJA) and confined their promotional avenues to the cadre of Senior Judicial Translators, which contained only nine posts. The Division Bench in its earlier judgment dated 16.10.1998 (hereafter referred as `Atul Kumar- I') held that the amendments impugned were void as offensive to Articles 14 and 16 of the Constitution. The Division Bench further directed that High Court ought to follow rules which prevailed (vis-à-vis promotional avenues to Junior Translators to the category of Senior Judicial Assistants along with other cadres such as Assistants/Judicial Reader/Caretakers) that existed prior to the date of amendments, namely 16.03.1988.

2. The second round of disputes arose out of a controversy vis-à-vis proper implementation of Atul Kumar-I. In these proceedings i.e. WP(C) No.4077- 84/1992 (hereinafter variously called `Atul Kumar-II' or 'the main judgment'). The issue was the proper method to be adopted by the Court Administration for determining promotion to the post of SJA. The main judgment noticed that 81 vacancies had been filled to the cadre of SJA during the period 1988-2000, of which 40 ought to have been filled through departmental examinations, 115 had vacancies had been filled through application of seniority-cum-suitability criteria, and 94 through departmental exams. It was held that at least 20 vacancies should have fallen to the share of 50% departmental quota, to the post of SJA. The Court also noted that the petitioners in Atul Kumar II had qualified in the departmental test for promotion to the higher cadre of Senior Translators, and had put long years of services and yet stagnated in the Junior Translators quota. The conclusions and

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 2 directions made in Atul Kumar II are to be found in paras 40 to 44 of the judgment:-

"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 irregularity 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 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.

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 3

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 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."

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

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 4 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."

Contentions of Applicants in CM 22133/2010

3. The grievance in CM No.22133/2010 is that seniority in the cadre of Administrative Officer (Judicial)/Court Master would be affected because the applicants were not only from the cadre of Judicial Assistants but were also drawn from other categories such as Senior Personal Assistants (SPA) and Court Officer of Column 3 mentioned in Schedule I, and SAS Accountants. They contend that the judgment in Atul Kumar II implicates and affects their seniority to the higher promotional post of Assistant Registrar and higher positions. It is submitted that while issuing directions in Atul Kumar II, the Court was concerned only with the grievance of Junior Translators, in the light of judgment in Atul Kumar I which enabled their promotion to the post of SJA. However, the Court could not possibly have intended that other categories of employees such Senior Personal Assistants etc. who were entitled to compete for the post of AOJ/CM in their own rights under the rules, (who were never in controversy and had entered the cadre of AOJ, on the basis of their performance) should be affected as far as their seniority and promotion was concerned. It was emphasized in the hearing that neither were such categories, who were selected to the post of AOJ's made aware about the pendency of the proceedings, nor were they ever given notices about the likelihood that the judgment would affect their seniority and seriously prejudice their onward career prospects.

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 5

4. It was argued that the review (of promotions and seniority) which the Court intended through its judgment in Atul Kumar II has to be necessarily conducted in such a manner so as to not affect the seniority and rights of the other categories who were at no fault and for whom the promotional avenues were clear. Having earned their promotion on the basis of their merit through departmental examinations in which their ranking was made known, and which indeed formed the basis of their inter se seniority, the writ petitioners in Atul Kumar II could not steal a march over them. Counsel emphasized that since none of the writ petitioners in the Junior Translator cadre was even qualified to sit in the departmental examinations held in 2000-2001 for the post of AOJ/CM, they could not steal a march in seniority over others who were entitled to sit in that examination, and were in fact qualified. It was argued on their behalf that in addition if the applicants had been made aware, they could have contested the proceedings and would have been heard by the Court. Having regard to these circumstances, the Court should direct the implementation of Atul Kumar II in such a manner that the settled seniority, on the basis of the applicants' performance in the selection test held on 09.09.2000 and every other regular departmental examinations, should not be adversely affected.

5. It was urged on behalf of the applicants in CM No.22133/2010 further that Rule 5 of the Delhi High Court Staff (Seniority) Rules 1971 (hereafter called `Seniority Rules') prescribes that

"(5) joint inter se seniority of confirmed employees in categories of equal status posts shall be determined according to their dates of confirmation in any of those categories".

It was submitted that a circular was issued on 05.04.2004, indicating the seniority of applicants. Their entitlements were consequently considered and they were

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 6 promoted to higher posts. Their rights to those posts, and seniority, crystallized on the basis of their inter se rankings in the selection list consequent to their performance in the examination. If any direction is to be given which would interlace the petitioners (i.e. Junior Translators, and petitioners in Atul Kumar II) the same would result in grave injustice as it would be contrary to Rule 5.

6. The applicants in CM No.22133/2010 further relied upon an order of the Supreme Court dated 13.01.2003 in S.L.P.No.17642-17643/2002, whereby it was clearly directed that all those likely to be affected, ought to be notified and impleaded as parties. This Court too in Atul Kuma-II by the order dated 07.02.2006 directed the Registry to notify all those who were likely to be affected by the pending proceedings in Atul Kumar II. None of the applicants were intimated about the likelihood of their being affected. Resultantly they had no occasion to appear before the Court and address arguments in that respect.

7. Learned counsel relied upon the decisions reported as State of Uttaranchal Vs. Madan Mohan Joshi 2008 (6) SCC 797, J.S. Yadav Vs. State of U.P. & Anr., 2011 6 SCC 570 and Prabodh Verma & Ors.Vs. State of U.P. & Ors, AIR 1985 SC 167.

Contentions of Applicants in CM Nos.10856/2011 & 10857/2011

8. These applications are primarily concerned with implementation of Atul Kumar II vis-à-vis some of the Junior Translators i.e. the category which had approached the Court in the previous writ proceedings i.e. Atul Kumar I and Atul Kumar II. Both these applications seek modification of the Court's orders dated 23.10.2009 and 06.05.2011. These have been preferred by the Administration of the High Court. By the order dated 06.05.2011 the Court had allowed CM No.1533/2011, i.e. application by one Mr. Anil Jain and Ms. Uma Sharma

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 7 claiming that they ought to be treated on par with the writ petitioners in Atul Kumar II even though they had been impleaded as respondents during the pendency of the proceedings. The Administration of the High Court argues that this direction requires to be recalled for several reasons. The other applications i.e.10856/2011 and 10857/2011 seek clarification of the final judgment in Atul Kumar II.

9. It is contended that the fifth petitioner i.e. Mr. Umesh Chandra Sharma had not been promoted as AOJ/Court Master on the date of the judgment and was promoted only on 21.03.2011 under the seniority quota. It has been brought to the Court's notice that Shri Umesh Chandra Sharma in fact had appeared in the supplementary examination under the Court's direction, but no interviews were held and the process remained incomplete and inchoate. It is also submitted that he appeared in four written examinations subsequently and failed to qualify in any of them. Since he did not qualify in any of the tests held after 25.08.2001, the benefit of the judgment ought not to be extended to him.

10. Likewise the applicant in CM No.18813/2011 Shri Naresh Kumar Sharma claims that the benefit of the judgment in Atul Kumar II has been denied to him so far. Mr. Sharma argues that he became eligible to the post of Senior Judicial Assistant/Translator with effect from 20.03.1991 but was stuck up due to inaction of the High Court Administration. He submits that by order dated 04.12.2010 he was given the post of Senior Judicial Assistant on notional promotion with effect from 27.03.2002. It is also averred that a penalty of stoppage of increment with cumulative effect had been imposed upon him by an order dated 22.03.1992 which is an irrelevant factor and ought to have been ignored. Consequently Mr. Naresh Kumar Sharma submits that he became eligible to the promotion to the next cadre of AOJ/CM on 22.03.2007.

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 8 High Court's submissions in all Applications

11. In response to CM No.22133/2010, the High Court administration argues that even though the other cadres eligible to the post of AOJ/Court Master were not parties to the proceedings in Atul Kumar I, they cannot have a grievance. It was submitted that after Atul Kumar I, there would have been a complete review of all promotions to the post of SJA for the intervening period between 1988-1998. This, in-turn would have necessitated review of promotions to higher cadres which included AOJ/CM. Counsel relied upon the circumstance that all the applicants in CM No.22133/2010 who have approached the Court had become eligible to appear for the examination of AOJ/CM only after 1999. Further Junior Translators who had filed the writ petition in Atul Kumar I and subsequently Atul Kumar II had entered the establishment of the Court much earlier between 1986-1987 and 1992. The Court in Atul Kumar II balanced the overall equities and sought to minimize the impact of the adverse consequences that would be inevitably resulted due to the review which would have in turn necessitated large scale reversions. All that was directed by Atul Kumar II in order to balance the competing rights of several categories i.e. Junior Translators and Senior Judicial Assistants, was a notional review of the dates of appointment. It was submitted that this review would result in some of the Junior Translators cadre employees (who were permitted to appear in the departmental examinations for AOJ/CM cadre in 2000 and subsequent supplementary examination on 25.08.2001), being placed above employees from other categories. But that cannot be characterized as illegal since in the first instance if their promotions to the post of SJAs had been done in accordance with the rules, they would have in all probability been eligible to appear in such examinations even before the other categories represented as applicants in CM No.22133/2010.

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 9

12. It was submitted that the argument of the applicants regarding violations of principle of natural justice is unfounded since the Court in Atul Kumar II had visualized a possibility of figures being experienced on account of implementation of the judgment and enabled the concerned parties to approach the Court.

13. It was submitted that as a measure of proper implementation of the judgment the High Court proposes to include those who appeared in the examinations or departmental tests for the post of AOJ/CM from 2000/August 2001 onwards after notionally deeming their appointment to the post of Senior Judicial Assistants in implementation of the court's judgment, their fitment in the selection list would be directly in accordance with the merit. Learned counsel argued that since the Junior Translators who were permitted to compete in the examination of 2000-2001, (even though the interview marks of those who participated or appeared in the examination of AOJ/CM in September 2000 and August 2001 were withheld), yet their performance in subsequent examinations which included the interview marks could be taken into consideration. After completing this exercise they could be placed at the relevant slots in the select list for the concerned years (when the examinations took place i.e. 2000, 2002, 2003, 2004, 2006 and 2008). That, in the submission of the High Court would be the most equitable solution to the question of inter se ranking and seniority between the employees and officers of different feeder grades and entitled to compete for 75% departmental quota to the post of AOJ/CM.

14. The High Court's submission with regard to its applications i.e. CM Nos.10856 & 10857/2011 for modification and clarification of the previous orders was that M/s Anil Jain, Uma Sharma, Naresh Kumar Sharma and Arun Kumar Sharma was that extending the benefit of judgment to these would not be justified. In the case of Shri Anil Jain, it was argued that he was appointed as Junior

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 10 Translator in August 1991. Even though he became eligible on 28.08.1996 to be promoted to the post of Senior Translator, he was actually promoted on 13.08.1999. He became consequently eligible for promotion to the post of AOJ/CM only on 12.08.2004. It was pointed out that Shri Anil Jain appeared on two different dates i.e. 22.01.2006 and 29.10.2006 in the departmental examination for promotion as AOJ/CM but did not qualify and eventually did so, on 25.07.2008. Learned counsel for the High Court urged that Shri Anil Jain's grievance is that he seeks parity with Shri Shekhar Chandra. His claim cannot be accepted for two reasons. One, Shri Shekhar Chandra was borne in the establishment of the High Court with effect from 14.03.1988 when he was initially appointed as LDC. He was eligible and did apply for the appointment to the post of Senior Judicial Translator and had qualified in July 1994. However, he could not be given the promotion on account of stagnation in the cadre. Two, he joined the petitioners in Atul Kumar II. He had even approached the Court after the decision in Atul Kumar I and was expressly permitted to compete in the departmental exam. His claim was on that footing and Shri Anil Jain could not claim any parity.

15. It was submitted that similarly Ms. Uma Sharma was appointed as Junior Translator on 12.12.1991 and could have been considered as eligible for the post of SJT only on 11.12.1996. She could not therefore have been eligible in August 2001 to appear in the departmental examination nor did she apply to the post. It was submitted that Ms. Uma Sharma first competed for the departmental exams for AOJ in 2006 and failed; she eventually cleared the examination and was selected as AOJ on 19.10.2008.

16. As far as Shri Arun Kumar Sharma is concerned, it was argued that although he was appointed as Junior Translator in 1986 and became eligible to the higher

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 11 cadre of Senior Judicial Translator in 1991, he was permitted to appear in the departmental test under orders of Court in the year 2000 for the post of AOJ/CM; he however did not qualify. He eventually qualified in 2006 and was appointed later with effect from that date. Therefore the question of giving him the benefit of deemed allocation of select list of AOJ does not arise. It was lastly urged that so far as Shri Naresh Kumar Sharma is concerned there is no question of granting any benefit, since, at the relevant time, he had been imposed with penalty and could have been considered only after the penalty had ceased to be effective.

Analysis and conclusions

17. At the outset, this court recollects that the need for the main judgment which is led to the present dispute, was the faulty implementation of the first judgment by which the 1988 amendments had been set aside. The effect of the Atul Kumar-I judgment was that the High Court had to take action and review the entire lot of promotions to the post of SJA that had taken place till the date of the judgment. This in turn would have resulted in large-scale reversions of those who had been promoted to the post and subsequent higher posts, such as AOJ. Instead of that course, (was logical and even appropriate having regard to the larger interests of administration of justice), the main judgment sought to balance the interests of the competing claimants and directed an extremely narrow and limited review of promotions. This restricted review has resulted in fresh unrest by way of applications on behalf of holders of posts who were independently promoted to the post of AOJ. Therefore, some of these officers - who were promoted as AOJ, and who claimed that their seniority was settled in accordance with the existing rules, with effect from the date they were appointed to the post, claim to be aggrieved by the High Court administrations' proposal to review the dates of appointment of the petitioners and others falling in that category (i.e. the cadre of Judicial Translators).

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 12 Twofold submissions are made in this regard. The first one is that the right to reckon seniority of such applicants (in CM 22133/2020) vested in them, from the day they were promoted to the higher posts. Any court direction or subsequent administrative action which results in higher seniority to any other official, who was not borne in that cadre, as on the date of their promotion, would be unjust and deprive them of settled rights. The second submission is that their vested right to seniority could not have been affected without giving them a hearing.

18. There is no gain saying that a party or an individual likely to be adversely affected by executive action should be treated fairly and given hearing. In that sense, the argument of applicants in CM 22133/2020 is well taken in that they were not heard by the court at the time if this post of Atul Kumar-II. However, that single aspect alone would not entitle them to complain against the judgment itself. The history of this litigation reveals widespread unrest in the cadre of Translators, whose promotional avenue to the post of SJA was blocked. This Court took 10 long years to recognize that fact and give them relief. It took more than a decade for a judgment to be implemented. During the interregnum, on various dates promotions were made to the post of SJA and higher promotional posts such as AOJ. The rightful claim of the original writ petitioners in Atul Kumar-II could not be given to them. While delivering the judgment in Atul Kumar-II the court consciously and deliberately limited the nature of the review. Had indeed the court taken the logical ports and directed wholesale review, possibly the applicants in CM 22133/2020 would have been affected in the sense that they are some of them might have faced reversions. Yet the court not only limited the review of promotions to few posts but also kept the door open for clarification. This is because the court could not envision how Atul Kumar II would have operated. Instead of relegating the applicants in CM 22133/2020 to seeking substantive

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 13 remedies by way of fresh writ petitions which would have taken more time to decide, this Court adopted the other course of hearing all the concerned parties i.e. the applicants, the original writ petitioners and the High Court administration. The court also heard the grievance of other parties who claimed that the benefit of the judgment was deprived as far as they were concerned. Having regard to these facts, and the history of the litigation, the court is un-persuaded by the submissions of applicants in CM 22133/2020, i.e. that their seniority in the post of AOJ cannot be altered under any circumstances. In this context this Court recollects the decisions of the Supreme Court which have held that in employment and service matters, it is not always possible to arrive at perfect solutions, which can satisfy all, and that adjustments are often made, to which incumbent officials have to submit. It was thus, held in Reserve Bank Of India & Ors vs C.N. Sahasranaman & Ors AIR 1986 SC 1830 that:

"Whether there has been denial of equality of the view of promotion or any constitutional right infringed or not cannot be judged, where interest of large number of people are concerned, in the abstract. Vast majority, indeed the overwhelming majority of the workmen are in favour of the scheme as evolved by the Bank as modified as it would be apparent from the submissions urged on behalf of All-India Reserve Bank Employees' Association impleaded as party- respondent in this appeal as well as All India Reserve Bank Employees' Federation, Hyderabad. It has to be borne in mind that in service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touch- stone. See in this connection the observations of this Court in Kamal Kanti Dutt & Ors. v. Union of India and Ors., (supra)."

19. The Court rejects the argument of the applicants that none of the Junior Translators were eligible to appear in the departmental test since they had not held the post of Senior Translators or SJA for five years. We are afraid this argument is simplistic, and completely glosses over the raison d etre for the previous two CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 14 judgments of the court. The precise grievance of the Junior Translators in Atul Kumar I was that the amendments impugned blocked their hitherto available channel for promotion to SJA; their grievances were held to be legitimate and well founded and the amendments, struck down. The grievance in Atul Kumar II was implementation of Atul Kumar I. Therefore, in the second judgment, the Court - as emphasized repeatedly earlier, undertook a balancing task, and directed a limited review. That the Court was also mindful of the fact that others had stealen a march over the Translators is evident from the direction that review in the subsequent promotional post could be undertaken, after assigning deemed dates of appointments in the post of Senior Translators. One cannot, therefore, be unmindful of the fact that the acceptance of submissions of the applicants would result in a complete negation of the rights of those entitled to the benefits of Atul Kumar II. This Court, nevertheless, proposes to issue directions in this regard, which will somewhat mitigate the grievances of such applicants.

20. This Court notices that the High Court administration during the course of hearing had submitted that such of the Translators who had appeared were allowed to appear in the departmental tests held in 2000 and 2001, were not promoted. Some of them had to secure special permission by applying to the court in the pending litigation at the time. However the results of their tests were withheld. As a result of the final judgement in Atul Kumar II, the Court Administration proposed to treat such Translator cadre employees (i.e some of the writ petitioners) with effect from the dates when appointments were made to the AOJ cadre from amongst other feeder categories, based on the marks secured in the departmental tests. The court had during the hearing noticed that unlike in the case of the other categories, Translator cadre employees were not interviewed or that interview marks had not been published. The merit list to be drawn on the basis of the review

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 15 directed by the court would therefore reflect a distortion i.e. in that other feeder category employees, would be ranked on the basis of the composite results (written test results and interview results) whereas Translator cadre employees would be ranked and included in the merit list on the basis only of their written test results. This approach, in the opinion of the Court would not be justified or correct. Although during the hearing the court had indicated that the Translator cadre employees might be given or awarded marks in proportion to their performance in their written test results, even that course might not be the most advisable or fair one. Instead, this Court directs that while determining the merit list for the promotion to the post of AOJ, so far as the Translator cadre employees are concerned, the actual performance in the written test and notional interview marks, shall be taken into consideration. If some principle is not indicated, there is every likelihood of injustice to those promoted from other feeder cadres, since the Translators' interview either did not take place, or was never published. Therefore, for calculating interview marks of those who appeared in the departmental exams, but were not interviewed (in the tests held on 9.9.2000 and in 2001) the average marks secured by all other candidates in the interview (i.e the total marks given in interview to all candidates, divided by the number of candidates) shall be the notional interview marks which Translator cadre employees amongst the writ petitioners, shall be awarded. This results in following an objective standard which is closest to the actual interview marking exercise, resorted to during the selection process. The results achieved from this exercise should be the marks to be taken reckoned for the purpose of the composite merit list of Translator cadre employees and those from other cadres, who were promoted at the relevant time. It is expressly clarified however, that these marks and the select list ranking shall be used only for the purpose of inter se seniority of AOJs. Those who would be to some extent displaced from the existing ranking, on the basis of this exercise, shall CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 16 not be reverted; they shall only yield the relevant seniority slot, and occupy the next available vacancy for the purpose of seniority. The Court is conscious that this direction will adversely impact some of the AOJ cadre employees, drawn from feeder categories other than SJA/Translators; however, the larger interests of the institution require this direction. Moreover, if one sees the problem from the perspective that had the court in fact held departmental tests in a timely manner, and remedied the situation which arose in 1998 with the Atul Kumar I judgment, possibly all the Translators who are likely to benefit from the second judgment, would have been in a position to compete departmentally for the post of AOJ at a time when such applicants (in CM 22133/2020) were not even eligible to appear in those tests, because of lack of essential qualifying experience under the Rules.

21. That brings the Court to a discussion on the merits of 10856/2011 and 10857/2011 and other applications, i.e. CM 7841/2011 and CM 18813/2011. The first two set of applications are by the High Court administration, seeking clarification and review of a previous order, whereby two employees (who were permitted to be impleaded as party respondents) had been directed to be granted promotion on the basis of the judgment; the High Court here contends that the said employees could not be given parity with the writ petitioners (i.e. M/s Atul Kumar and others) for diverse reasons. Shri Anil Jain, who opposes the High Court's applications, and says he is entitled to the benefits of Atul Kumar II; CM 7841/2011 is by the writ petitioners, seeking implementation of that judgment. CM 18813/2011 is by Shri Naresh Sharma who seeks directions for implementing the judgment.

22. The grievance of the High Court in CM Application Nos.10856 and 10857 of 2011 is that the previous directions given on 6.5.2011 in CM Application No.1533/2011 to accommodate and consider Shri Anil Jain and Ms. Uma Sharma

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 17 for further promotions as in the case of the writ petitioners i.e. Atul Kumar Sharma and others was not justified. In this regard, it is argued that Shri Anil Jain had joined the High Court as a Junior Translator in August, 1991 and was promoted as Sr. Judicial Assistant on 13.4.1999. He, therefore, became eligible to be considered for the post of AO (J) only on 12.4.2004. Having regard to these circumstances and the fact that he appeared in a subsequent departmental examination but did not qualify and was eventually promoted only in 2008, the previous direction to treat him at par and gave him the notional benefit as in the case of the writ petitioners is not correct. It is similarly submitted that the direction to accommodate Ms. Uma Sharma too is not justified because she joined the establishment on 12.12.1991 and thus became eligible for consideration to the post of Sr. Judicial Translator only on 11.12.1996. Neither in 2000 nor in 2001 when the departmental examination for the post of AO (J) were held in which some of the petitioners participated and qualified, was she entitled to appear. She actually appeared in the test held in that regard in the year 2006 but did not qualify. She finally qualified in the departmental test held on 19.10.2008 and was, therefore, appointed subsequently.

23. Resisting these submissions, it was argued on behalf of Shri Anil Jain by his counsel Shri R.K. Saini that the High Court establishment has given notional benefits to Shri Shekhar Chandra who was never in the cadre of Translators. He merely applied for the departmental test that was held in the year 2000 and was permitted to appear under orders of the Court. Having never worked as Sr. Translator, he could not have benefitted from the directions. If he could be granted promotion, neither Shri Anil Jain nor Ms. Uma Sharma could be denied similar benefits particularly since they worked in the cadre of Translators continuously since 1991. The High Court and the counsel for the writ petitioner Shri Shekhar

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 18 Chandra, in response to the submissions on behalf of Shri Anil Jain and Ms. Uma Sharma, has argued that in fact Shri Shekhar Chandra was appointed as LDC on 14.3.1988 and was born in the establishment. He was made to officiate in the post of Judicial Translator on 8.9.1992 and subsequently in a test held for recruitment to the post of Sr. Judicial Translator he qualified as of July, 1994. Learned counsel argued that this position was never disputed at any stage in Atul Kumar-II by any of the parties including Shri Anil Jain who was impleaded as a party respondent. The eligibility of Shri Shekhar Chandra to hold the post at least from the date he qualified in the departmental test i.e. in July, 1994 having never been disputed, it cannot now become the subject matter of debate. It was further submitted that in any event even for the post of Sr. Judicial Translator, 50% selection quota on the basis of open merit amongst general candidates was always available in the Rules and Shri Chandra Shekhar's selection was justified in the circumstances. It was submitted that the injustice meted out to the Translator's cadre by denial of further avenues of promotions to the post of Sr. Judicial Assistant and the blockage to the Senior Translator's cadre was precisely the reason why all Translators had approached the Court in 1988. It was submitted that Shri Shekhar Chandra's plight actually highlighted the grievance because even though he qualified to hold the post of Sr. Judicial Translator, he could not be given posting due to non- availability of vacancies.

24. The last claim is by Shri Naresh Sharma in CM Application No.18813/2011; he submits that he was one of the original writ petitioner in Atul Kumar-I and had cleared the written test for promotion to the grade of AO (J) on 25.8.2001 but his interview was cancelled. His grievance is that even though other writ petitioners were given notional promotion and consequent benefits w.e.f. 13.5.1994, he was given the same belatedly on 24.3.2002.

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 19

25. This Court has carefully considered the submissions. So far as the grievances of Shri Anil Jain and Ms. Uma Sharma are concerned, at first blush it would appear that their submissions are well founded. However, a careful scrutiny would reveal that although Shri Anil Jain and Ms. Uma Sharma were appointed as Junior Translators in 1991, Shri Shekhar Chandra was appointed as LDC (concededly a lower post) on 14.3.1988. He was made to officiate as Junior Translator on 27.2.1992 on ad hoc but later reverted. During the course of hearing, it was pointed out that he again officiated as Junior Translator on 7.7.1993. Apparently, the High Court establishment had called for applications from existing employees for the post of Senior Judicial Translator. Shri Shekhar Chandra qualified in July, 1994. The Court notices that then he had served for over 5 years in the High Court and was in any way eligible to be appointed against the 50% open merit selection quota for the post of Senior Judicial Translator. However, he could never get the actual posting or appointment letter because the vacancy did not materialize. As on that day, neither Shri Anil Jain nor Ms. Uma Sharma were not eligible for promotion in the 50% promotional quota to the post of Sr. Judicial Translator. Shri Anil Jain was promoted as Senior Judicial Translator on 13.8.1999 and thus became eligible to be considered to the post of AO (J) on 12.8.2004. His first attempt made after that day was unsuccessful; he was later promoted as AO (J) on 25.7.2008. The factual matrix with regard to Ms. Uma Sharma was similar; she too became eligible for consideration to the post of Sr. Judicial Translator only on 11.12.1996 i.e. much after Shri Shekhar Chandra had qualified in the test for that post. She was thus not eligible to appear in the examination either in September, 2000 or in the supplementary examination in 2001, for the post of AO (J). She too cleared the departmental test and was promoted later after one unsuccessful attempt in October, 2008.

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 20

26. Having regard to these facts, this Court is of the opinion that the previous order directing the High Court Administration to extend parity of relief to these two officials i.e. Shri Anil Jain and Ms. Uma Sharma was not justified. In these circumstances, the directions contained in the order 06.05.2011 are hereby recalled.

27. So far as the case of Shri Naresh Kumar Sharma, applicant in CM No.18813/2011 is concerned, whilst this official had appeared in the supplementary test held on 25.8.2001, the penalty order of stoppage of increments was effective by virtue of an order dated 22.3.1997. The effect of that penalty apparently was for a period of five years. He has been treated as notionally promoted to the post of Sr. Judicial Assistant w.e.f. 27.3.2002. In his case, the Court notices that he was appointed as Judicial Translator w.e.f. 6.3.1982; he was one amongst the petitioners in Atul Kumar-I. Clearly unlike Shri Anil Jain and Ms.Uma Sharma, he was eligible for promotion to the post of Senior Judicial Translator as of 1994 when Shri Chandra Shekhar cleared the departmental test; he had served as Translator for 12 years. At that time, there was no bar or disability operating on him. This became operative only in 1997. In these circumstances, with the amended rule of 1998 being held arbitrary and void in 1998, there was no question of his being ineligible. It is another thing that as on the date when the departmental test took place i.e. 25.8.2001, a penalty order operated. In these circumstances, this Court is of the opinion that treating his appointment to the post of Sr. Judicial Assistant w.e.f. 27.3.2002, would have to be reviewed. The penalty ceased to be in operation on the said date. As of 1994, when Shri Shekhar Chandra became eligible, Shri Naresh Kumar Sharma too was eligible. Therefore, he would have to be treated at par and given parity. This will not so in view of the

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 21 fact that he had been permitted to apply and compete in the test held on 27.8.2001, to the post of AOJ.

28. In the light of the above discussion, the following directions are issued: -

(i) The High Court shall assign notional dates of promotion to the writ petitioners and other Sr. Judicial Translators on the basis of the main judgment i.e. Atul Kumar-II. This is subject to any of the Translators having appeared in departmental tests before 1998 to the post of Sr. Judicial Translator and having qualified in the departmental test. In such case, the notional date assigned shall be with effect from the date when the candidate qualified in that test (even though he might not have been promoted, for reason of want of vacancy, etc.);

(ii) For the purpose of promotion to the post of AO (J), such of the candidates amongst the Translators who were permitted to apply and participate shall be given ranking in the select list purely for the purpose of seniority on the basis of performance in the departmental test;

(iii) As a corollary to the above, if any of the Translator candidate in fact did not qualify in the test held on 9.9.2000 or 26.8.2001, his or her promotion shall be postponed till the time he or she qualified in the test on actual basis;

(iv) Direction nos.(ii) and (iii) are subject to the further orders that in the case of Translators who appeared in the departmental test in 2000-2001 since interview marks were not awarded, the average of all the interview marks actually given to other selected candidates divided by the total number of selected candidates who were interviewed shall form the basis of the interview marks to be awarded to the Translator cadre employee and the writ petitioners who actually appeared in those departmental test; and

CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004 Page 22

(v) The above directions are only for the purpose of fixing the inter se seniority of appointees to the post of AO (J) from the Translators and other feeder cadres to that post. This will regulate their inter se seniority. If as a result of this exercise, any official or employee from the other cadres needs to be pushed down in the seniority list, the High Court Administration shall ensure that minimum disturbance or displacement takes place. It is further directed that actual date of appointment for all other purposes shall remain the same.

29. All pending applications are disposed of in terms of the above directions.

                                                                    (S. RAVINDRA BHAT)
                                                                                JUDGE




                                                                       (SANJIV KHANNA)
June 01, 2012                                                                    JUDGE




CM Nos.22133/10, 7841/11, 10856-10857/11 & 18813/2011 in WP(C) 4077-84/2004      Page 23