Himachal Pradesh High Court
Sessions Judge vs Union Of India And Others (2002) 4 ... on 19 October, 2022
Bench: Amjad Ahtesham Sayed, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 19th DAY OF OCTOBER, 2022.
BEFORE
HON'BLE MR. JUSTICE A. A. SAYED, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
SHRI PURENDER VAIDYA
CIVIL WRIT PETITION NO. 4212 OF 2014.
Between:-
DISTRICT &
SESSIONS JUDGE, KULLU, DISTT. KULLU,
H.P. PERMANENT RESIDENT OF
"INDRAPRASTHA" BHEULI, MANDI (H.P.).
......PETITIONER.
(BY SH. BIMAL GUPTA, SENIOR ADVOCATE
WITH SH. AJAY KOCHHAR AND SH. SATISH
SHARMA, ADVOCATES)
AND
1. HIGH COURT OF HIMACHAL PRADESH
THROUGH REGISTRAR GENERAL,
RAVENSWOOD, SHIMLA-171001.
2. SHRI RAKESH KAINTHLA, DIRECTOR,
HIMACHAL PRADESH JUDICIAL ACADEMY,
BOILEAUGANJ, SHIMLA, H.P.
3. SHRI JITENDER KUMAR SHARMA, PRESIDING
OFFICER, LABOUR COURT-CUM-INDUSTRIAL
TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
......RESPONDENTS.
::: Downloaded on - 19/10/2022 20:04:39 :::CIS
2
(SH. RAJIV JIWAN, SENIOR ADVOCATE WITH
MS. SHALINI THAKUR, ADVOCATE, FOR
.
RESPONDENT-1)
(SH. SUNIL MOHAN GOEL, ADVOCATE, FOR
RESPONDENT-2)
(SH. R.K. BAWA, SENIOR ADVOCATE WITH
SH. AJAY KUMAR SHARMA, ADVOCATE,
FOR RESPONDENT-3)
__________________________________________________________
Reserved on : 21.09.2022.
This
r petition to
coming on for hearing
Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the following:
this day,
ORDER
The instant petition has been filed for grant of the
following substantive reliefs:-
"a) The gradation list (Annexure P-3) may kindly be
quashed and set aside to the extent it reflects the
placement of petitioner below Respondents 2 and 3.
The respondent No.1 may kindly be directed to
assign the seniority/place to the petitioner in the
gradation list/seniority list in accordance with Rule
13(2) of the Rules above respondents 2 and 3.
b) Annexure P-7 as well as order of rejection of
representation of the petitioner may also be set
aside."
2. The petitioner is an Officer of the Himachal Pradesh
Judicial Services and was initially appointed as Sub Judge in the
year 1988 and thereafter promoted as Senior Sub Judge-cum-Chief
Judicial Magistrate.
.
3. It is not in dispute that respondent Nos. 2 and 3 were
juniors to the petitioner in the rank of Sub Judge as also Senior Sub
Judge and this is so reflected in the gradation lists that have been
appended with the petition as Annexures P-4 and P-5, respectively.
4. The Government of Himachal Pradesh in the year 2004
framed rules qua the Himachal Pradesh Judicial Service Rules,
2004 (for short "Rules") for regulating the recruitment and conditions
of service of Officers of different cadres of the H.P. Judicial Service.
5. The necessity for framing these rules arose on
account of and because of the directions passed by the Hon'ble
Supreme Court in All India Judges' Association and others vs.
Union of India and others (2002) 4 SCC 247.
6. As per the rules of 2004, the method of recruitment to
the cadre of District Judges and Additional District Judges was
prescribed in the following manner:-
"(a) 50% by promotion from amongst the Civil
Judges(Senior Division) on the basis of principle of merit-
cum-seniority and passing a suitability test as may be
prescribed & conducted by the High Court in accordance
with the regulations>
(b) 25% by promotion from amongst Civil Judges(Senior
Division) on the basis of merit through Limited Competitive
Examination as may be prescribed and conducted by the
High Court in accordance with the regulations. For this
.
mode the minimum service of five years in the cadre of
Civil Judge (Senior Division) is required.
(c) 25% by direct recruitment from amongst eligible
Advocates on the basis of examination, written as well as
oral (viva voce) test as may be prescribed and conducted
by the High Court in accordance with the regulations."
7. The High Court (respondent No.1) considered the
matter with regard to the vacancies/anticipated vacancies of District
Judges/Additional District Judges, which were to be filled up during
the year 2010-11. Such vacancies/anticipated vacancies were to be
filled up partly by promotion and partly by Limited Competitive
Examination ( for short "LCE")as per rule 5(a) because the direct
recruits were already in excess of their quota at the relevant time.
8. After considering the matter and applying the 34-point
post based roster, it was found that there were 12 direct recruits
from amongst the Advocates as against their quota of 8 only and,
therefore, the strength from the quota was decided to be reduced
gradually by filling up these posts through promotion or on the
basis of LCE. It was further decided not to advertise the posts to
be filled up by direct recruitment till their numbers fall below from
their quota i.e. 8 as per the cadre strength.
9. In this way, there were only two actual vacancies which
were required to be filled up on the basis of the LCE from amongst
.
the Civil Judges (Senior Division) because at the relevant time
there were only two Officers appointed against the said quota
though their share in the total cadre strength was 8 (eight).
10. Further, there were four future vacancies which were to
fall vacant on account of retirement of the Officers in the said cadre
out of which three were to be filled up from the quota of promotee
and one from the quota of direct recruits and since the quota of
direct recruits was already in excess, therefore, all these four
anticipated vacancies were decided to be filled up partly by
promotion and partly by LCE.
11. The respondent No.1 decided that out of the aforesaid
six existing/anticipated vacancies, first three be advertised/filled up
by LCE from amongst Civil Judges(Senior Division) and remaining
three by promotion from amongst the eligible Civil Judges(Senior
Division). Accordingly, an advertisement was issued on 31.03.2010
for filling up two existing and one anticipated vacancies in the cadre
of District Judges/Additional District Judges by way of LCE i.e. by
mode (b) of Rule 5.
12. At this stage, it needs to be noticed that the petitioner
duly participated in this process i.e. LCE, but remained
.
unsuccessful.
13. At the same time, a separate advertisement dated
31.03.2010 was issued to fill up the future vacancies in the cadre of
District Judge by way of promotion i.e. mode (a) of Rule 5 by
respondent No.1 in which the petitioner remained successful.
14. In the final result of LCE and Suitability Test, respondent
Nos. 2 and 3 were declared qualified and, therefore, selected. As
regards the petitioner, he along with one Shri R.K. Verma qualified
the Suitability Test for promotion and accordingly the selection list
was sent to the Government. In the said communication, it was
mentioned that the seniority of the aforesaid four Officers would be
as under:-
(1) Shri Rakesh Kainthla (Respondent No.2)
(2) Shri Jitender Kumar Sharma (Respondent No.3)
(3) Shri Purender Vaidya ( Petitioner herein)
(4) Shri R.K. Vemra
15. Accordingly, the State Government was requested by
respondent No.1 to issue necessary Notification appointing the
above Judicial Officers as Additional District and Sessions Judges
on officiating basis against aforesaid vacancies for a period of two
years.
.
16. Now, the grouse of the petitioner is that he being a
senior in the cadre of Sub Judge as also Senior Sub Judge ought to
have been placed above respondent Nos. 2 and 3 in the gradation
list circulated in the year 2011 and having failed to do so, the same
is contrary to Rule 13 of the Rules.
17. The claim of the petitioner has been
r opposed by
respondent No.1 not only on the ground of estoppel, but also on the
basis of Rules relating to determination of seniority as laid down
in Rule 13 whereby it has been provided that where Officers are
recruited to a cadre by promotion and direct recruitment, seniority
shall be regulated by the roster maintained for such recruitment.
18. In addition thereto, it has been submitted that since the
petitioner was appointed by way of promotion i.e. mode(a)
prescribed under Rule-5 of Rules 2004 against the future/anticipated
vacancies in the cadre of District Judges/Additional District Judges,
whereas, respondent Nos. 2 and 3 were appointed by way of LCE
held in the year 2010, then as per post based roster, they were
recruited/appointed against the higher point of roster and were
rightly ranked senior to the petitioner in view of Rule 13(1).
19. The private respondent No.2 has contested the
petition by filing a separate reply wherein it has been averred that at
.
the time of commencement of the 2004 Rules i.e. on 17.03.2004,
the cadre strength of the District Judges/Additional District Judges
was thirty one. Out of these thirty one posts, 10 were manned by
direct recruits and twenty one by promotees. However, none of
these were manned by an incumbent inducted by way of process
envisaged under Rule 5(b) i.e. by way of LCE.
20. The first Officer appointed through LCE was Shri Rajiv
Bhardwaj in the year 2009. Thereafter, respondent Nos. 2 and 3
were inducted under this mode in the year 2010.
21. It is further averred that the cadre strength of District
Judges/Additional District Judges as on 20.09.2008 was increased
to 34. Thus, as per 2004 Rules, 17 posts fell to the share of source
mentioned at Rule-5(a) and 8-9 at sources mentioned at Rule 5(b)
and 5(c) since in the year 2009, the incumbents holding the posts of
District Judges/Additional District Judges pertaining to source (a)
mentioned in Rule 5(a) were twenty.
22. In other words, when the petitioner was considered
and promoted against the post of District Judge/Additional District
Judge, there were no vacancies available for this category and,
therefore, his appointment was in excess of the quota. Whereas,
the private respondents have been appointed after following the due
process of law in which process even the petitioner also participated,
.
but remained unsuccessful and is, therefore, estopped from filing
the instant petition.
23. Respondent No.3 has also contested the petition by
filing a separate reply wherein apart from reiterating what other
co-respondents have stated, it has been averred that as per Rule
13(1), respondent Nos. 2 and 3 have been appointed against higher
point of roster and are ranked senior to the officer. It has been
further stated that since respondent Nos. 2 and 3 have been
appointed against the existing vacancies and on higher point of
roster as against the petitioner, who has been appointed to the lower
point in the cadre against the anticipated vacancies, therefore, in
terms of Rule 13(1) of the Rules, they have rightly been ranked
senior to the petitioner.
24. We have heard the learned counsel for the parties and
have gone through the material placed on record.
25. At the outset, it needs to be noticed that even though
the petitioner had admittedly participated in the LCE but was
unsuccessful. What would be the effect of having participated in the
selection process and having remained unsuccessful would be
discussed in the later part of the judgment. However, we notice that
this fact of having participated in the LCE has not at all been
disclosed by the petitioner in the writ petition and would, therefore,
.
be a ground in itself sufficient enough to dismiss the petition at the
threshold without considering the merits of the claim in light of the
settled law, more particularly, the judgment rendered by the Hon'ble
Supreme Court in K.D. Sharma vs. Steel Authority of India
Limited and others (2008) 12 SCC 481. Therein, it has been held
that the jurisdiction of the Hon'ble Supreme Court under Article 32
and that of the High Court under Article 226 is extraordinary,
equitable and discretionary. Prerogative writs mentioned therein
are issued for doing substantial justice. It is, therefore, of utmost
necessity that the petitioner approaching the writ Court must come
with clean hands, put forward all the facts before the Court without
concealing and suppressing anything and seek an appropriate
relief. If there is no candid disclosure of relevant and material
facts or the petitioner is guilty of misleading the Court, his petition
may be dismissed at the threshold without considering the merits of
the claim.
26. Similar reiteration of law can be found in a fairly recent
judgment of the Hon'ble Supreme Court in Shri K. Jayaram &
Ors. vs. Bangalore Development Authority & Ors. 2021 (14)
Scale 663 wherein it was held as follows:-
"12. It is well-settled that the jurisdiction exercised by the
High Court under Article 226 of the Constitution of India is
.
extraordinary, equitable and discretionary and it is
imperative that the petitioner approaching the writ court
must come with clean hands and put forward all facts before
the Court without concealing or suppressing anything. A
litigant is bound to state all facts which are relevant to the
litigation. If he withholds some vital or relevant material in
order to gain advantage over the other side then he would
be guilty of playing fraud with the court as well as with the
opposite parties which cannot be countenanced.
13. This Court in Prestige Lights Ltd. V. State Bank of India
(2007) 8 SCC 449, has held that a prerogative remedy is
not available as a matter of course. In exercising
extraordinary power, a writ court would indeed bear in mind
the conduct of the party which is invoking such jurisdiction. If
the applicant does not disclose full facts or suppresses
relevant materials or is otherwise guilty of misleading the
court, the court may dismiss the action without adjudicating
the matter. It was held thus:
"33. It is thus clear that though the appellant
Company had approached the High Court
under Article 226 of the Constitution, it had
not candidly stated all the facts to the Court.
The High Court is exercising discretionary
and extraordinary jurisdiction under Article
226 of the Constitution. Over and above, a
court of law is also a court of equity. It is,
therefore, of utmost necessity that when a
party approaches a High Court, he must
place all the facts before the Court without
any reservation. If there is suppression of
material facts on the part of the applicant or
twisted facts have been placed before the
Court, the writ court may refuse to entertain
the petition and dismiss it without entering
into merits of the matter."
.
14. In Udyami Evam Khadi Gramodyog Welfare Sanstha
and Another v. State of Uttar Pradesh and Others (2008) 1
SCC 560, this Court has reiterated that the writ remedy is an
equitable one and a person approaching a superior court
must come with a pair of clean hands. Such person should
not suppress any material fact but also should not take
recourse to legal proceedings over and over again which
amounts to abuse of the process of law.
15. In K.D. Sharma v. Steel Authority of India Limited and
Others (2008) 12 SCC 481, it was held thus:
"34. The jurisdiction of the Supreme Court
under Article 32 and of the High Court under
Article 226 of the Constitution is
extraordinary, equitable and discretionary.
Prerogative writs mentioned therein are
issued for doing substantial justice. It is,
therefore, of utmost necessity that the
petitioner approaching the writ court must
come with clean hands, put forward all the
facts before the court without concealing or
suppressing anything and seek an
appropriate relief. If there is no candid
disclosure of relevant and material facts or
the petitioner is guilty of misleading the court,
his petition may be dismissed at the
threshold without considering the merits of
the claim.
35. The underlying object has been
succinctly stated by Scrutton, L.J., in the
leading case of R. v. Kensington Income Tax
Commrs.- (1917) 1 KB 486 : 86 LJKB 257 :
116 LT 136 (CA) in the following words: (KB
p. 514)
"... it has been for many years the rule of
the court, and one which it is of the
greatest importance to maintain, that
when an applicant comes to the court to
obtain relief on an ex parte statement he
should make a full and fair disclosure of
.
all the material facts--it says facts, not
law. He must not misstate the law if he
can help it--the court is supposed to
know the law. But it knows nothing about
the facts, and the applicant must state
fully and fairly the facts; and the penalty
by which the court enforces that
obligation is that if it finds out that the
facts have not been fully and fairly stated
to it, the court will set aside any action
which it has taken on the faith of the
imperfect statement."
(emphasis supplied)
36. A prerogative remedy is not a matter of
course. While exercising extraordinary power
a writ court would certainly bear in mind the
conduct of the party who invokes the
jurisdiction of the court. If the applicant makes
a false statement or suppresses material fact
or attempts to mislead the court, the court
may dismiss the action on that ground alone
and may refuse to enter into the merits of the
case by stating, "We will not listen to your
application because of what you have done."
The rule has been evolved in the larger public
interest to deter unscrupulous litigants from
abusing the process of court by deceiving it.
37. In Kensington Income Tax Commrs.
(supra), Viscount Reading, C.J. observed: (KB
pp. 495-96)
"... Where an ex parte application has
been made to this Court for a rule nisi or
other process, if the Court comes to the
conclusion that the affidavit in support of
the application was not candid and did not
fairly state the facts, but stated them in
such a way as to mislead the Court as to
the true facts, the Court ought, for its own
protection and to prevent an abuse of its
process, to refuse to proceed any further
.
with the examination of the merits. This is
a power inherent in the Court, but one
which should only be used in cases which
bring conviction to the mind of the Court
that it has been deceived. Before coming
to this conclusion a careful examination
will be made of the facts as they are and
as they have been stated in the applicant's
affidavit, and everything will be heard that
can be urged to influence the view of the
Court when it reads the affidavit and
knows the true facts. But if the result of
this examination and hearing is to leave
no doubt that the Court has been
deceived, then it will refuse to hear
anything further from the applicant in a
proceeding which has only been set in
motion by means of a misleading affidavit."
(emphasis supplied)
38. The above principles have been accepted
in our legal system also. As per settled law,
the party who invokes the extraordinary
jurisdiction of this Court under Article 32 or of
a High Court under Article 226 of the
Constitution is supposed to be truthful, frank
and open. He must disclose all material facts
without any reservation even if they are
against him. He cannot be allowed to play
"hide and seek" or to "pick and choose" the
facts he likes to disclose and to suppress
(keep back) or not to disclose (conceal) other
facts. The very basis of the writ jurisdiction
rests in disclosure of true and complete
(correct) facts. If material facts are suppressed
or distorted, the very functioning of writ courts
and exercise would become impossible. The
petitioner must disclose all the facts having a
bearing on the relief sought without any
.
qualification. This is because "the court knows
law but not facts".
39. If the primary object as highlighted in
Kensington Income Tax Commrs.(supra) is
kept in mind, an applicant who does not come
with candid facts and "clean breast" cannot
hold a writ of the court with "soiled hands".
Suppression or concealment of material facts
is not an advocacy. It is a jugglery,
manipulation, manoeuvring or
misrepresentation, which has no place in
r equitable and prerogative jurisdiction. If the
applicant does not disclose all the material
facts fairly and truly but states them in a
distorted manner and misleads the court, the
court has inherent power in order to protect
itself and to prevent an abuse of its process to
discharge the rule nisi and refuse to proceed
further with the examination of the case on
merits. If the court does not reject the petition
on that ground, the court would be failing in its
duty. In fact, such an applicant requires to be
dealt with for contempt of court for abusing the
process of the court."
27. As regards the petitioner having participated in the
LCE and having remained unsuccessful, the consequences are not
only that he is estopped to challenge the selection process, but he
would not even have locus to raise the grounds as sought to be
raised in the instant petition.
28. As observed above, the petitioner was already shown
to be the senior in the gradation lists of Sub Judges and thereafter
.
Senior Sub Judges issued vide Annexures P-4 and P-5,
respectively. If the LCE would not entitle a successful candidate to
the seniority other than the one assigned in the gradation list, as is
now sought to be agitated, then we wonder why the petitioner would
have, in the first place, participated in such examination. It is with
his eyes wide open and understanding the entire ramifications and
outcome of such LCE that the petitioner participated in the said
process and is thus estopped from laying challenge to the
assignment of seniority in favour of respondent Nos.2 and 3. The
instant petition is nothing, but an afterthought and is, therefore, not
maintainable.
29. Shri Bimal Gupta, learned Senior Counsel, assisted by
Shri Ajay Kochhar and Shri Satish Sharma, Advocates, for the
petitioner, would then vehemently argue that the judgment of the
Hon'ble Supreme Court in All India Judges' Association case
(supra) would have no bearing in the instant case as the same is
prospective and, therefore, the ratio of the Officers as existing
before amended Rules cannot be adversely affected. Strong
reliance in support of this contention has been placed on the
judgment rendered by the Hon'ble Supreme Court in Hon'ble
Punjab and Haryana High Court at Chandigarh vs. State of
Punjab and others (2019) 12 SCC 496 wherein it was held as
.
under:-
"49. The judgment of this Court in All India Judges
Association(3) v. Union of India (2002) 4 SCC 247 being
prospective, the ratio of officers as existing before
unamended rules can not be adversely affected. A promotee
before the amendment of Rules, 2004, who was well within
their quota, suddenly cannot go out of their quota and
become an excess merely on the strength of amendment of
Rules, which are prospective in nature. For determining the
quota, the cadre strength, which existed prior to amended
rules and subsequent to the amended rules have to be
treated differently. Promotees quota, which was 75 per cent
prior to 2004 Rules makes 66 posts in their quota as before
amendment dated 15.01.2004, when the cadre strength has
been increased from 89 to 107, 18 posts have to be further
added to the cadre. This increase having been made after
the amendment of the Rules dated 15.01.2004, on this cadre
strength, the Rules as amended will be applied for
bifurcation of quota. On 18 newly created posts, 50 percent
comes to 9, for out of turn promotees 4.5 and for direct
recruits 4.5. Thus promotee officers on or after the increase
of the cadre could have been 66+9 i.e. 75. In the appeal filed
by the High Court, it is also indicated that 10 promotees were
affected in October, 2004 under 50 per cent quota of merit-
cum-seniority. The rules providing 25 per cent quota for out
of turn promotion being in place, at-least few vacancies
ought to have been given to the out of turn promotees. There
is no details of any further promotion or appointment made
after 2004 to 2008.
.
50. The out-of- turn promotion quota having been culled out
only as per the judgment of this Court in All India Judges
case, which was to be required in the Rules by the State, the
said quota will come into existence only prospectively. An
out-of-turn promotee cannot claim that they should be given
25 per cent posts of the cadre strength right from day one. It
is true that quota has to be determined on the basis of cadre
strength but determination of the cadre strength has to be
made taking into consideration that rules amended w.e.f.
15.01.2004 were prospective in nature and cannot impair or
affect any right, which accrued to the member of judicial
service prior to the amendment of the Rules."
30. However, we find no merit in the said contention as it is
not in dispute that the petitioner prior to the promulgation of the
Rules had only been officiating as Additional District and Sessions
Judge in the Fast Track Court and was not holding a substantive
post in question.
31. That apart, the aforesaid judgment in State of Punjab's
case (supra) would not apply as the consideration therein was
confined to the quotas as were fixed prior to the promulgation of the
Rules which is not the fact situation obtaining in the instant case.
32. The petitioner, as observed above, was working only
on officiating basis and, therefore, cannot claim any right much less
.
a substantive right of seniority on the basis of such officiating post.
33. In order to better appreciate the controversy in the
instant case, it would be necessary to refer to the advertisements
that were issued for filling up the posts as held by the petitioner on
promotion at one hand and on the other hand as held by respondent
Nos.2 and 3 through LCE. Both the notices were dated 31.03.2010.
As regards the notice in terms whereof the petitioner came to be
appointed, the same reads as under:-
"HIGH COURT OF HIMACHAL PRADESH
"REVENSWOOD", SHIMLA-171001
No.HHC/GAZ./14-158/84-III- Dated : 31st March, 2010
Website: http:/himachal.nic.in/high court
NOTICE
The vacancies in the different cadres of H.P. Judicial
Service to be filled in by promotion from amongst the
eligible Judicial Officers during the year 2010 are notified
as under:-
1. Additional District and Sessions Judges in the
cadre of District Judges/Additional District
Judges:
(a) Existing vacancies = nil
(b) Future vacancies that may = 3.
arise within one year due to
retirement
2. Presiding Officers, Fast Track Courts in the rank
of Additional District and Sessions Judges, on
ad hoc basis:
.
(a) Existing vacancies = Nil
within one year due to retirement
3. Civil Judges (Senior Division) on ad hoc basis:
(a) Existing vacancies = Nil
(b) Future vacancies that may arise = 7
within one year due to retirement
The intending eligible Judicial Officers may visit the
High Court Website for collecting relevant information with
regard to eligibility criteria time schedule, all matters
connected therewith including Rules and Regulations, and
all the relevant terms and conditions connected with the
Selection Process.
By Order of the Hon'ble High Court
sd/-
(S.K. Chaudhary)
Registrar General."
34. Now, as regards notice under which respondent Nos. 2
and 3 came to be appointed, the same reads as under:-
"HIGH COURT OF HIMACHAL PRADESH
"REVENSWOOD", SHIMLA-171001
No.HHC/GAZ/14-158/84-III- Dated : 31st March, 2010
Website: http:/himachal.nic.in/high court
NOTICE
Applications on the prescribed format are invited
from eligible Civil Judges (Senior Division) having minimum
service of five years in the said cadre including the
Presiding Officers, Fast Track Courts for promotion and
appointment as Additional District and Sessions Judge in
.
H.P. Judicial Service in the cadre of District
Judges/Additional District Judges on the basis of merit by
Limited Competitive Examination against the following
vacancies:
(a) Existing vacancies = 2.
(b) Future vacancies that may = 1.
arise within one year due to
retirement
Last date for receipt of applications : 30.04.2010
Date of written Examination : 30.06.2010
The intending eligible Judicial Officers may visit the
High Court Website for collecting relevant information with
regard to eligibility criteria, Format of application, Time
Schedule, all matters connected therewith including
Syllabus, Rules and Regulations, and all the relevant terms
and conditions connected with the Selection Process.
By Order of the Hon'ble High Court
sd/-
(S.K. Chaudhary)
Registrar General."
35. It is clearly evident from the above that there were three
future vacancies in the rank of Additional and Sessions Judge in the
cadre of District Judges/Additional District Judges and there were
seven future vacancies in the rank of Additional and Sessions
Judge for being posted as Presiding Officers, Fast Track Courts.
Whereas, on the other hand, there were two clear-cut vacancies in
the cadre of District Judges/Additional District Judges including
.
Presiding Officers, Fast Track Courts, to be filled up on the basis of
merit by LCE. In addition to that, there was another vacancy
which was likely to arise in future.
36. Thus, in these circumstances, the petitioner otherwise
cannot claim any parity with respondent Nos. 2 and 3 as they have
been appointed against the regular clear-cut vacancies through
LCE as against the petitioner, who has been appointed against
future vacancies that too on ad hoc basis.
37. Even otherwise, the claim of the petitioner regarding
his seniority is absolutely fallacious as it fails to draw a distinction
between a post and vacancy. It is more than settled that cadre
strength is always measured by the number of posts comprising
the cadre and the right to be considered for appointment can only
be claimed in respect of a post in the given cadre and percentage to
which as specified in Rules concerned has to be worked out in
relation to number of posts which form the cadre and has no
relevance to the vacancies that would occur.
38. It shall be apt to reproduce the observations made by
three Judge Bench of the Hon'ble Supreme Court in Srikant Roy
and others vs. State of Jharkhand and others (2017) 1 SCC 457
wherein the Hon'ble Supreme Court has clearly drawn a distinction
between "post" and "vacancy" in the following manner:-
.
"20. Indeed, the High Court in the impugned judgment has
adverted to the decision of this Court in All India Judges'
Association & Ors.(3) Vs. Union of India & Ors. (2002) 4
SCC 247 which has enunciated the principle of roster and
the ratio to be followed for the post of Additional District
Judge. Indisputably, pursuant to the decision of this Court
the Rules were amended, which came into effect from 20th
August 2004. In paragraph 27 to 29 of the said decision, this
Court has considered the question regarding the method of
recruitment to the post in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. The same
reads thus: (SCC pp.269-71)
"27. Another question which falls for
consideration is the method of recruitment to the
posts in the cadre of Higher Judicial Service i.e.
District Judges and Additional District Judges. At
the present moment, there are two sources for
recruitment to the Higher Judicial Service,
namely, by promotion from amongst the
members of the Subordinate Judicial Service
and by direct recruitment. The subordinate
judiciary is the foundation of the edifice of the
judicial system. It is, therefore, imperative, like
any other foundation, that it should become as
strong as possible. The weight on the judicial
system essentially rests on the subordinate
judiciary. While we have accepted the
recommendation of the Shetty Commission
which will result in the increase in the pay scales
of the subordinate judiciary, it is at the same time
necessary that the judicial officers, hard-working
as they are, become more efficient. It is
imperative that they keep abreast of knowledge
of law and the latest pronouncements, and it is
for this reason that the Shetty Commission has
.
recommended the establishment of a Judicial
Academy, which is very necessary. At the same
time, we are of the opinion that there has to be
certain minimum standard, objectively adjudged,
for officers who are to enter the Higher Judicial
Service as Additional District Judges and District
Judges. While we agree with the Shetty
Commission that the recruitment to the Higher
Judicial Service i.e. the District Judge cadre
from amongst the advocates should be 25 per
cent and the process of recruitment is to be by a
competitive examination, both written and viva
voce, we are of the opinion that there should be
an objective method of testing the suitability of
the subordinate judicial officers for promotion to
the Higher Judicial Service. Furthermore, there
should also be an incentive amongst the
relatively junior and other officers to improve and
to compete with each other so as to excel and
get quicker promotion. In this way, we expect
that the calibre of the members of the Higher
Judicial Service will further improve. In order to
achieve this, while the ratio of 75 per cent
appointment by promotion and 25 per cent by
direct recruitment to the Higher Judicial Service
is maintained, we are, however, of the opinion
that there should be two methods as far as
appointment by promotion is concerned: 50 per
cent of the total posts in the Higher Judicial
Service must be filled by promotion on the basis
of principle of merit-cum- seniority. For this
purpose, the High Courts should devise and
evolve a test in order to ascertain and examine
the legal knowledge of those candidates and to
assess their continued efficiency with adequate
knowledge of case-law. The remaining 25 per
cent of the posts in the service shall be filled by
promotion strictly on the basis of merit through
the limited departmental competitive
.
examination for which the qualifying service as a
Civil Judge (Senior Division) should be not less
than five years. The High Courts will have to
frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate,
we direct that recruitment to the Higher Judicial
Service i.e. the cadre of District Judges will be:
(1)(a) 50% by promotion from amongst the
Civil Judges (Senior Division) on the basis of
principle of merit-cum-seniority and passing
a suitability test;
(b) 25% by promotion strictly on the basis of
merit through limited competitive examination
of Civil Judges (Senior Division) having not
less than five years' qualifying service; and
(c) 25% of the posts shall be filled by direct
recruitment from amongst the eligible
advocates on the basis of the written and
viva voce test conducted by respective High
Courts.
(2) Appropriate rules shall be framed as
above by the High Courts as early as
possible.
29. Experience has shown that there has been a
constant discontentment amongst the members
of the Higher Judicial Service in regard to their
seniority in service. For over three decades a
large number of cases have been instituted in
order to decide the relative seniority from the
officers recruited from the two different sources,
namely, promotees and direct recruits. As a
result of the decision today, there will, in a way,
be three ways of recruitment to the Higher
Judicial Service. The quota for promotion which
we have prescribed is 50 per cent by following
the principle "merit- cum-seniority", 25 per cent
strictly on merit by limited departmental
.
competitive examination and 25 per cent by
direct recruitment. Experience has also shown
that the least amount of litigation in the country,
where quota system in recruitment exists, insofar
as seniority is concerned, is where a roster
system is followed. For example, there is, as per
the rules of the Central Government, a 40-point
roster which has been prescribed which deals
with the quotas for Scheduled Castes and
Scheduled Tribes. Hardly, if ever, there has been
a litigation amongst the members of the service
after their recruitment as per the quotas, the
seniority is fixed by the roster points and
irrespective of the fact as to when a person is
recruited. When roster system is followed, there
is no question of any dispute arising. The 40-
point roster has been considered and approved
by this Court in R.K. Sabharwal v. State of
Punjab (1995) 2 SCC 745. One of the methods
of avoiding any litigation and bringing about
certainty in this regard is by specifying quotas in
relation to posts and not in relation to the
vacancies. This is the basic principle on the
basis of which the 40-point roster works. We
direct the High Courts to suitably amend and
promulgate seniority rules on the basis of the
roster principle as approved by this Court in R.K.
Sabharwal case as early as possible. We hope
that as a result thereof there would be no further
dispute in the fixation of seniority. It is obvious
that this system can only apply prospectively
except where under the relevant rules seniority is
to be determined on the basis of quota and
rotational system. The existing relative seniority
of the members of the Higher Judicial Service
has to be protected but the roster has to be
evolved for the future. Appropriate rules and
methods will be adopted by the High Courts and
approved by the States, wherever necessary by
.
31-3-2003."
(emphasis supplied)
"24. The High Court has overlooked the distinction between
"post" and "vacancy". If the requisite posts were already
exhausted by the direct recruits against the earmarked quota
for direct recruitment, merely because some vacancies
occur, it would not be open to the aspiring candidates
against the direct recruit quota to challenge the selection
process commenced for the in service judicial officers by
promotion through Limited Competitive Examination. The
cadre strength is always measured by the number of posts
comprising the cadre. The right to be considered for
appointment can only be claimed in respect of a post in the
given cadre. The percentage of quota has to be worked out
in relation to number of posts which form the cadre and has
no relevance to the vacancy that would occur. This aspect
has been glossed over by the High Court in the impugned
judgment. Suffice it to observe that as no post for direct
recruits existed as on 30th April, 2008, the challenge to the
selection process to fill up the vacancy by promotion through
Limited Competitive Examination, at the instance of aspiring
candidates by direct recruitment cannot be countenanced.
The Writ Petition filed by such aspiring candidates (WP(S)
No. 4159/2008), therefore, ought to have been dismissed by
the High Court."
39. As already observed above, as per the 34 point post
based roster, it was found that there were 12 direct recruits from
amongst the Advocates as against their quota of 8 only. Therefore,
the strength from this quota was decided to be reduced gradually
by filling up these posts through promotion or on the basis of the
.
LCE as on the date of decision there were admittedly two actual
vacancies which were required to be filled up on the basis of the
LCE from amongst the Civil Judges (Senior Division) because at the
relevant time there were two Officers appointed against the said
quota, though their share in the total cadre was eight.
40. Here, it shall be apposite to reproduce the relevant
provisions as contained in Rules 5 and 13 which read as under:-
""RULE-5.
Method of recruitment, qualification and age limit.-In
respect of each category of posts specified in column(2) of
the Table below, the method of recruitment and minimum
qualification, age limit etc. shall be as specified in the
corresponding entries in columns(3) and (4) thereof.
TABLE UNDER RULE-5
Sr.No. Cadre Method of recruitment Qualifications,
age limit and
experience etc.
1. District (a) 50% by promotion Must have been
Judges/Additional from amongst the Civil in the cadre of
District Judges Judges (Sr.Divn.) on the Civil Judges (Sr.
basis of principle of Divin) for a period
merit-cum-seniority and of not less than
passing a suitability two years.
test as may be prescribed
& conducted by the
High Court in accordance
with the
regulations.
.
Minimum service
(b) 25% by promotion of five years
from amongst Civil including the
Judges (Sr.Divn.) on the service rendered
basis of merit in the cadre of
through limited Civil Judges
Competitive examination (Junior Division).
as
may be prescribed and
conducted by the
High court in accordance
with the
regulations.
The following
(c) 25% by direct shall be the
recruitment, from amongst eligibility criteria,
eligible Advocates, on the including
basis of qualifications,
examination, written as age limit and
well as oral (viva experience etc.-
voce) test as may be
prescribed and (i) citizen of
conducted by the High India.
Court in accordance
with the regulations. (ii) Holder of a
degree in Law as
recognized by
the bar Council of
India
(iii) Practising
Advocate at the
Bar for a
minimum period
of seven years as
on the last date
fixed for receipt
of the
applications.
Note.-For the
purpose of this
clause, in
computing the
period during
which a person
.
has been an
Advocate there
shall be included
any period during
which he has
held a judicial
office.
Explanation I.-
Judicial Officer
includes any
other Office as
may be
prescribed being
r equivalent to a
Judicial Office, by
the High Court in
the regulations
made for this
purpose.
(iv) Must have
attained the age
of thirty-five years
and must not
have attained
the age of forty-
five years as on
the last date
prescribed for
receipt of
applications.
Explanation-II.-
Appointments to
the cadre of the
Distt. Judges
from categories
(a), (b) & (c) shall
be in accordance
with 40 points
roster to be
maintained by
the High Court in
this behalf."
.
"RULE-13
Seniority:- (1) Where Officers are recruited to a cadre by
promotion and direct recruitment, seniority shall be
regulated by the roster maintained for such recruitment.
Officer appointed against higher point of roster shall rank
senior to the Officer appointed against a lower point:
Provided that no person appointed to a cadre by direct
recruitment shall, for the purpose of fixation of his seniority
claim any particular place in seniority unconnected with the
date of his actual appointment.
(2) Where more than one Officers are promoted to cadre at
the same time inter-se-seniority of persons so promoted
shall be determined by the inter-se-seniority in the lower
cadre.
(3) Where direct recruitment is made to a cadre, the
inter-se-seniority of persons so recruited shall be in the
order in which their names are arranged in the select list.
(4) Every year in the month of January seniority list of
Officers in all cadres shall be prepared and published by the
High Court and the lists so published shall be issued for the
purpose of making promotions to the next higher cadres."
41. As per Rule 13(1) in case the Officers are recruited to a
cadre by promotion and direct recruitment, the seniority shall be
regulated by the roster maintained for such recruitment and the
officer appointed against the higher point of roster shall rank senior
to the officer appointed against lower point of roster and this is what
precisely respondent No.1 has done in the instant case.
.
42. The petitioner was appointed by way of promotion i.e.
mode (a) prescribed against future/anticipated vacancies in the
cadre of the District Judges/Additional District Judges, whereas,
respondent Nos. 2 and 3 were appointed by way of LCE held in the
year 2010 and as per the post based roster, they were
recruited/appointed against higher point of roster. Therefore, in
view of Rule 13(1), respondent Nos. 2 and 3 have rightly been
ranked seniors to the petitioner and accordingly placed above the
petitioner in the seniority list circulated/issued in the year 2011.
43. As regards the reliance placed by the learned Senior
Counsel for the petitioner upon Rule 13(2) for claiming seniority over
and above the private respondents, the same is clearly misplaced
as the said rule is not at all applicable in the instant case and rather
the seniority is to be fixed under Rule 13(1) because the same
would be applicable only in case two incumbents are recruited
from the same source/category.
44. Apart from the above, there is otherwise no merit in the
claim of the petitioner regarding the assignment of seniority over
and above respondent Nos. 2 and 3 in view of the Explanation No.2
appended with Rule 5 (infra) which clearly provides that
appointments to the cadre of District Judges from categories (a), (b)
.
and (c) shall be in accordance with the 34 points roster to be
maintained by the High Court in this behalf.
45. Acceding to the contention of the petitioner would
defeat the very objective for introduction of the LCE as laid down
in All India Judges' Association's case (supra) wherein it was
held that there should be an incentive amongst the relatively junior
and other officers to improve and to compete with each other so as
to excel and get quicker promotion.
46. At this stage, it shall also be fruitful to refer to a recent
decision of the Hon'ble Supreme Court in Dinesh Kumar Gupta
and others vs. High Court of Judicature of Rajasthan and
others (2020) 19 SCC 604 wherein the Court was dealing with a
case where Judicial Officers like the petitioner had been promoted
on ad hoc basis as Additional District and Sessions Judges to man
the Fast Track Courts in the State and had been substantially
appointed to the cadre of District Judge. A question arose as to
whether such Officers would be entitled to seniority from the date
of their initial ad hoc promotion? Answering the question, it was held
that if the list of successful candidates which is to be drawn up
strictly on the basis of the merit, it is possible that the last person in
the list of selectees may be the senior most and going by the report
.
of the Committee, if all the selectees are promoted in the same year,
then such last person may as well be at the top of the list of
promotees through LCE. In that event, the seniority shall become
the governing criteria and the excellence on part of a comparatively
junior candidate may recede in the background. The consequences
would be that instead of giving incentive to comparatively junior and
other officers, the entire examination process will stand reduced to a
mere qualifying examination rather than a competitive examination
affording opportunity to meritorious candidates. The criteria then
shall become seniority subject to passing the LCE which would be
contrary to the directions issued in All India Judges' Association
Case to afford an incentive to the meritorious candidates regardless
of the seniority. It shall be apt to reproduce the relevant observations
made in paragraphs 48 to 50 which read as under:-
"48. While considering Question 40.4. (D), it is relevant to
notice the emphasis placed by this Court in All India Judges
Association(3) v. Union of India (2002) 4 SCC 247, while
directing that 25 per cent of the posts in the cadre of the
District Judge be filled through LCE. It was stated in
paragraph 27 that there should be an incentive amongst
relatively junior and other officers to improve and to compete
with each other so as to excel and get accelerated
promotion. In paragraph 28 the relevant direction again
stressed that 25 per cent quota for promotion through LCE
.
be "strictly on the basis of merit."
49. Rule 31(2) of 2010 Rules also uses the expression
"strictly on the basis of merit" while dealing with posts to be
filled in through LCE. The merit is to be assessed in terms of
the scheme laid down in the relevant Schedule. After
considering various parameters stated in said Schedule, the
successful candidates are selected on the basis of merit.
The list of successful candidates becomes the basis for
final selection subject to qualifying parameters such as
suitability, medical fitness etc. However, placing reliance on
Rule 47(4), the Committee in its Report dated 15.03.2019
held that the inter se seniority of persons promoted to the
District Judge Cadre in the same year ought to be the same
as it was in the posts held by them at the time of promotion.
If the list is to be drawn up according to merit, it is possible
that the last person in the list of selectees may be the senior
most and going by the Report of the Committee, if all the
selectees are promoted in the same year such last person
may as well be at the top of the list of promotees through
LCE. In that event, the seniority shall become the governing
criteria and the excellence on part of a comparatively junior
candidate may recede in the background. Instead of giving
incentive to comparatively junior and other officers, the
entire examination process will stand reduced to a mere
qualifying examination rather than a competitive
examination affording opportunity to meritorious candidates.
The criteria shall then become seniority subject to passing
the LCE. The direction issued in All India Judges
Association(3)1 to afford an incentive to meritorious
candidates regardless of their seniority would not thus be
carried out. The general principle appearing in Rule 47(4)
.
must, therefore, give way to the special dispensation in Rule
31(2) of 2010 Rules.
50. In our view, the High Court in its Report dated
15.03.2019 completely failed to appreciate the true
character of LCE and reservation of certain quota for that
category. We, therefore, accept the submissions made by
the learned Advocate for the petitioners in Writ Petition
(Civil) No.498 of 2018 and Diary No.13252 of 2019 and
while answering Question 40.4. (D) declare that the inter se
placement of the candidates selected through LCE must be
based on merit and not on the basis of the seniority in the
erstwhile cadre. The said Writ Petitions are allowed to that
extent."
47. We may also refer to another recent judgment in Prem
Narayan Singh and others vs. High Court of Madhya Pradesh
(2021) 7 SCC 649, wherein the Hon'ble Supreme Court after
placing reliance on the judgments rendered in Dinesh Kumar
Gupta's case (supra) and All India Judges' Association's case
(supra) held that reason for introduction of promotion through LCE is
to improve the calibre of the members of Higher Judicial Services.
Such of those meritorious candidates who have been promoted on
the basis of LCE cannot be deprived of their seniority on the basis of
merit in the examination. In any event, 50% of the posts of District
Judges shall be filled up by promotion on the principle of merit-cum-
seniority. In that case therein, the Administrative Committee of the
High Court had taken a decision that inter se seniority of the District
.
Judges selected through LCE should be made basis of merit in the
examination and in the order in which they are recommended for
promotion. On 14.12.2017, the Administrative Committee held that
the inter se seniority in the feeder cadre shall not be affected. It was
resolved that the LCE shall only be for considering the suitability and
it was not intended to alter the inter se seniority of the candidates
selected in the LCE. The recommendation made by the
Administrative Committee was approved by the Full Court on
18.12.2017 constraining the petitioners therein to approach the
Hon'ble Supreme Court. Disapproving the recommendation of the
Administrative Committee as approved by the Full Court, it was
observed by the Hon'ble Supreme Court in paragraphs 16 to 18
which read as under:-
"16. We are not in agreement with the learned Senior
Counsel appearing for the impleaded respondents that the
judgment of this Court in Dinesh Kumar Gupta v. High Court
of Rajasthan (2020) 19 SCC 604 is contrary to the law laid
down by this Court in All India Judges' Association (3) v.
Union of India (2002) 4 SCC 247. Much stress was laid by
Mr. Dave on the fact that introducing a channel of
appointment to District Judges would only be providing a
method of recruitment and no more. The incentive that was
directed to be given to junior officers working as Civil Judges
for promotion as District Judges solely on the basis of merit
.
would be defeated if their seniority in the cadre of District
Judges is not determined on the basis of their merit in LCE.
17. The reason for introduction of promotion through LCE is
to improve the calibre of the members of Higher Judicial
Services. Such of those meritorious candidates who have
been promoted on the basis of LCE cannot be deprived of
their seniority on the basis of merit in the examination. In any
event, 50 per cent of the posts of District Judges shall be
filled by promotion on the principle of merit-cum-seniority.
The dispute in this case concerns seniority inter se amongst
those who have been promoted through LCE.
18. Rule 11 (1) of the 2017 Rules makes it clear that the
relative seniority of members of the service who are holding
substantive posts at the time of commencement of the Rules
shall be as it existed before the commencement of the
Rules. The seniority of the Petitioners which has been
determined prior to the 2017 Rules cannot be disturbed. The
Petitioners will not be adversely affected by Rule 11 (4) (b) of
the 2017 Rules which alters the criteria for determination of
seniority from merit to inter se seniority in the lower cadre.
The resolution of the Administrative Committee approved by
the Full Court being contrary to the law laid down by this
Court in Dinesh Kumar Gupta's case is set aside.
Consequently, the gradation list of the District Judges dated
01.02.2019 shall be revised in accordance with the law laid
down by this Court in Dinesh Kumar Gupta case."
48. In view of the aforesaid discussion and for the reasons
stated above, we find no merit in this writ petition and the same is
accordingly dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
.
( A.A. Sayed )
Chief Justice
( Tarlok Singh Chauhan )
Judge
19th October, 2022.
(krt)
