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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2316 OF 2013
(Arising out of SLP(C) No. 192 of 2012)
Debabrata Dash and Anr. …… Appellants
Vs.
Jatindra Prasad Das & Ors. ……Respondents
JUDGMENT
R.M. LODHA, J.
Leave granted.
2. The inter se seniority between the appellants and respondent
no. 1 in the Senior Branch cadre of Orissa Superior Judicial Service is the
subject matter of this appeal.
3. In the writ petition filed by the respondent no.1 before the High
Court, the principal question under consideration was whether the service
rendered by him (writ petitioner) in the Fast Track Court as Additional
District Judge is to be taken into account while fixing his seniority after
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regularization of his service in the Senior Branch cadre under the Orissa
Superior Judicial Service Rules, 1963 (for short, “1963 Rules”). The High
Court in the impugned judgment dated 15.11.2011 has answered the
above question in favour of the writ petitioner, allowed the writ petition and
directed the Orissa High Court on administrative side to treat the period of
service rendered by the writ petitioner in the Fast Track Court for the
purpose of seniority from the date of his joining the post i.e., 26.04.2002
and re-fix his seniority in light of the judgment.
4. The appellants, direct recruits, who were respondent nos. 3
and 4 in the writ petition, have challenged the above judgment principally
on the ground that it is not consistent with the 1963 Rules, Orissa Judicial
Service (Special Schemes) Rules, 2001 and Orissa Superior Judicial
Service and Orissa Judicial Service Rules, 2007. The appellants contend
that the High Court has not correctly applied the decisions of this Court in
O.P Singla and Another v. Union of India and Others1
, Direct Recruit Class
II Engineering Officers’ Association v. State of Maharashtra and Others2
,
Rudra Kumar Sain and Others v. Union of India and Others3
, Brij Mohan
Lal v. Union of India and Others4
[Brij Mohan Lal 1] and Brij Mohan Lal v.
Union of India and Others5
[Brij Mohan Lal 2].
1
(1984) 4 SCC 450
2
(1990) 2 SCC 715
3
(2000) 8 SCC 25
4
(2002) 5 SCC 1
5
(2012) 6 SCC 502
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5. The brief facts leading to the controversy are these: The writ
petitioner joined the judicial service in the State of Orissa as Munsiff on
probation on 15.07.1981 under the Orissa Judicial Service Rules, 1964.
He was promoted to the Junior Branch of the Superior Judicial Service on
19.07.1999. On 05.01.2002, the writ petitioner, who was continuing as a
member of Superior Judicial Service (Junior Branch), was appointed, on
ad hoc basis, as Additional District Judge in the Fast Track Court.
Pursuant to the above order of appointment, on 11.04.2002 writ petitioner
was posted as an ad hoc Additional District Judge in the Fast Track Court
at Bargarh where he joined on 26.04.2002.
6. On 13.01.2003, the appellants were appointed in the Senior
Branch cadre of Orissa Superior Judicial Service by way of direct
recruitment under the 1963 Rules. Pursuant to the posting order dated
22.01.2003, they joined as Additional District and Sessions Judges at
Cuttack and Behrampur on 03.02.2003 and 07.02.2003 respectively.
7. By an order dated 28.05.2003, the tenure of writ petitioner as
ad hoc Additional District Judge (Fast Track Court), Bargarh was extended
for a further period of one year or 31.03.2004 (whichever was earlier).
8. By a notification dated 15.12.2003, the writ petitioner was
allowed to officiate in the Senior Branch of the Superior Judicial Service on
regular basis on account of a vacancy that arose due to retirement of an
officer of the Senior Branch on 31.07.2003. The writ petitioner was posted
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on 19.01.2004 as Additional District and Sessions Judge, Bargarh
pursuant to the notification dated 15.12.2003 to which post the writ
petitioner joined on 03.02.2004.
9. Appellant no. 1 was confirmed in the cadre of Senior Branch,
Superior Judicial Service with effect from 03.02.2004 while appellant no. 2
was confirmed with effect from 07.02.2004. The appellants were conferred
selection grade with effect from 03.02.2008 and 07.02.2008 respectively.
10. The writ petitioner was substantively appointed in the cadre of
District Judge with effect from 17.01.2007 and he was granted selection
grade with effect from 22.10.2009.
11. On 13.11.2009, the writ petitioner submitted a representation
to the High Court on administrative side seeking seniority in the cadre of
District Judge with effect from 26.04.2002, i.e., the date of his joining as
ad hoc Additional District Judge (Fast Track Court), Bargarh. The claim of
seniority by the writ petitioner over and above the appellants was based on
the ground that the period of his service as an ad hoc Additional District
Judge (Fast Track Court) should be included for the purpose of computing
his length of service in the cadre of Senior Branch, Superior Judicial
Service under the 1963 Rules.
12. A committee to consider the representation of the writ
petitioner was constituted. The committee by majority opined that the writ
petitioner’s representation was liable to be rejected. On 02.08.2011 the
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Full Court of the High Court considered the report of the committee. The
representation of the writ petitioner was rejected on 08.08.2011. It was this
administrative decision of the High Court that was challenged by the writ
petitioner before the High Court on the judicial side.
13. The writ petition was contested by the appellants as well as
the High Court on the administrative side and the State of Orissa.
14. Before we deal with the relevant rules, reference may be
made to the various notifications concerning the appointments of the writ
petitioner and the appellants. As noted above, by a notification dated
05.01.2002, the writ petitioner was allowed ad hoc promotion to the Senior
Branch of the service. To the extent it is relevant, the said notification
reads as under:
“ GOVERNMENT OF ORISSA
HOME DEPARTMENT
NOTIFICATION
Bhubaneswar the 5th January 2002.
xxx xxx xxx
xxx xxx xxx
No. 993/Sri Jatindra Prasad Das, an officer of Orissa
Superior Judicial Service (Junior Branch) at present Adviser,
Orissa Electricity Regularity Commission Orissa,
Bhubaneswar is allowed adhoc promotion to the Senior
Branch of the said service in the scale of pay of Rs. 10,650-
325-15,850/- with effect from the date he joins as such until
further order in pursuance of Rule 3,4 & 5 of Orissa Judicial
Service, (Special Scheme) Rules, 2001 for his appointment
as adhoc Additional District Judge in the Fast & Track Court
established out of 11th Finance Commission Award.”
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15. The notification dated 11.04.2002 whereby the writ petitioner
was posted as an ad hoc Additional District Judge pursuant to the
notification dated 05.01.2002 reads as under:
“ ORISSA HIGH COURT : CUTTACK
NOTIFICATION
Dated, Cuttack the 11th April, 2002.
No. 150/A: On being reverted to the general line, Shri
Jatindra Prasad Das, an officer of Orissa Superior Judicial
Service (Junior Branch) at present Adviser, Orissa Electricity
Regulatory Commission, Bhubaneswar, who has been
allowed ad hoc promotion to the Senior Branch of the said
service vide Home Department Notification No. 1933 dated
05.1.2002 is transferred and appointed to be the Ad hoc
Additional District Judge in the Additional District Judge
Court established out of the 11th Finance Commission Award
in the Judgeship and Sessions Division of Sambalpur
Bargarh Deogarh Jharsuguda with headquarters at Bargarh
Vice Shri Susanta Kumar Patnaik transferred on promotion.”
16. The appellants were appointed as direct recruits in the cadre
of Senior Branch, Superior Judicial Service by a notification dated
13.01.2003 which reads as follows:
“ GOVERNMENT OF ORISSA
HOME DEPARTMENT
NOTIFICATION
Dated, Bhubaneswar, the 13.01.2003
No. 2495/SJS/1-13/2002/HS. In pursuance of Rule 8 of the
Orissa Superior Judicial Service Rules, 1963 Sri Debabrata
Dash, Advocate, Mayurbhanj, Baripada is hereby appointed
on probation for a period of one year on the Orissa Superior
Judicial Service (Senior Branch) in the scale of pay of Rs.
10,610-335-15,850/- by direct recruitment with effect from
the date he joins the said service.
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No.2496/HS. In pursuance of Rule 8 Orissa Superior
Judicial Service Rules, 1963, Sri Satrughana Fujahari,
Advocate, Sambalpur is hereby appointed in probation for a
period one year in the Orissa Superior Judicial Service
(Senior Branch) in the scale of pay of Rs. 10,650-325-
15,850/- by direct recruitment with effect from the date he
joins the said service.”
17. We may now refer to the relevant rules. The 1963 Rules have
been made by the Governor of Orissa under the proviso to Article 309 of
the Constitution of India for the regulation of recruitment to posts in, and
the conditions of service of persons appointed to the Orissa Superior
Judicial Service.
18. Rule 3(d) provides that “Service” means the Orissa Superior
Judicial Service. An officer appointed to the service in accordance with
Rule 8 is called the “Direct Recruit” under rule 3(f), while an officer
appointed to the service in accordance with Rule 9 is called the “Promoted
Officer” under rule 3(g).
19. In Rule 4, it is provided that cadre of service shall consist of
two branches, (i) Superior Judicial Service (Senior Branch) and (ii)
Superior Judicial Service (Junior Branch). The cadre of Superior Judicial
Service (Senior Branch) comprises of diverse posts, including District and
Sessions Judges and Additional District and Sessions Judges. Rule 4(3)
provides that the cadre of the Superior Judicial Service, Junior Branch,
shall consist of 13 Chief Judicial Magistrates and 06 Additional Chief
Judicial Magistrates.
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20. Part III of the 1963 Rules which deals with recruitment, is
crucial to the controversy. Rule 5 thereof provides as follows :
“5. Recruitment to the service shall be made by the
following methods, namely :
(1) In respect of the Senior Branch—
(a) by direct recruitment in accordance with Rule 8,
and
(b) by promotion of officers from the Junior Branch of
the service.
(2) In respect of the Junior Branch by promotion of
officers of the Orissa Judicial Service (Class-I) in
accordance with the Rule 10.”
21. Rule 7 enables the government to fill up the vacancy in Senior
Branch of the service in consultation with the High Court by direct
recruitment or promotion. It reads as under:
“7. When a vacancy occurs in the Senior Branch of the
service, Government shall decide in consultation with the
High Court whether it may be filled up by direct recruitment
or promotion:
Provided that the number of direct recruits in the
Senior Branch of the service shall not exceed twenty-five per
cent of the cadre posts mentioned in Sub-rule (2) of Rule 4.”
22. Rule 9 lays down as follows:
“9. (1) Whenever a vacancy in the Senior Branch of the
service is decided to be filled up by promotion the
Government shall fill up the same after due consideration of
the recommendation of the High Court in accordance with
sub-rule (2).
(2) The High Court shall recommend for appointment to
such vacancy, an officer of the Junior Branch of the service,
who in the opinion of the High Court is the most suitable for
the purpose:
Provided that if for any reason, Government are
unable to accept the recommendation as aforesaid they may
call for further recommendations from the High Court to fill
up the vacancy.”
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23. Rule 17 makes provision for seniority of officers in the
following manner.
“17. Seniority of officers in the service shall be determined
in accordance with the dates of substantive appointment to
the service.
Provided that a promoted officer, who may have been
allowed to continuously officiate from a date prior to the date
of appointment of a direct recruit, shall, if he is subsequently
substantively appointed in the service without reversion to
his parent service, take his seniority in the cadre over such
direct recruit.”
24. In exercise of the powers conferred by the proviso to Article
309 read with Articles 233 and 234 of the Constitution of India, the
Governor of Orissa, after consultation with the High Court of Orissa,
framed the rules entitled, “Orissa Judicial Service (Special Scheme) Rules,
2001” which we shall refer to as “the 2001 Rules” hereinafter. 2001
Rules were made to regulate the recruitment of judicial officers in the State
on ad hoc and purely on temporary basis exclusively for implementation of
the recommendations of 11th Finance Commission for upgradation of
judicial administration under upgradation grant for elimination of old
pending cases. The 2001 Rules define “service” in Rule 2(f) which means
the judicial service of the State of Orissa. Rules 3 and 4 of these rules
make provision for appointment which read as under:
“3. Appointment – Notwithstanding anything contained in the
Orissa Superior Judicial Service Rules, 1963 and Orissa
Judicial Service Rules, 1994 the appointment of Additional
District Judges on ad hoc and purely temporary basis for
implementation of the Scheme will be made under these
rules.
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4. (1) The appointment made under these rules shall be
purely on ad hoc and temporary basis.
(2) The appointment shall be made initially for a
period of one year and shall be liable to be terminated at any
time without any prior notice.
(3) During the term of such appointment the
appointees will be under the administrative and disciplinary
control of the High Court.”
25. Rule 5 of the 2001 Rules prescribes eligibility. Clause (c) of
sub-rule (1) of Rule 5 is relevant which reads as follows:
“5. Eligibility. – (1) The appointment of Additional District
Judges on ad hoc and purely temporary basis shall be made
by the Governor on recommendation of the High Court from
amongst;
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) in-service Chief Judicial Magistrates/Additional
Magistrates having three years of service as
such.”
26. Rule 6 of the 2001 Rules provides that the selection of inservice Judicial Officers for ad hoc appointment under the scheme shall be
based on scrutiny of their judgments and their service record.
27. Rule 7 of 2001 Rules provides that inservice judicial officer
shall not claim regular promotion in the regular cadre on the basis of
his/her appointment made under this scheme.
28 . The Division Bench in the impugned judgment has observed
that though the promotion of the writ petitioner in Senior Branch cadre of
Superior Judicial Service was initially ad hoc but that was given to him
after the High Court adjudged his suitability for promotion by following the
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1963 Rules. The Division Bench observed that such ad hoc promotion was
regularized vide notification dated 15.12.2003 under the 1963 Rules as the
writ petitioner had rendered uninterrupted service. The Division Bench has
referred to and considered the minutes of the meeting of the Full Court
held on 14.12.2001 against agenda no. 3 which concerned promotion of
officers of Junior Branch to the cadre of Senior Branch for their posting as
ad hoc Additional District Judges against Fast Track Courts. The relevant
portion of the minutes of the meeting dated 14.12.2001 referred to and
considered by the Division Bench, reads as follows:
“Considered the Judicial and administrative capabilities
along with C.C.Rs. of the following officers in the cadre of
Orissa Superior Judicial Service (Jr. Br.) for the purpose of
their promotion to the cadre of Orissa Superior Judicial
Service for their posting as ad hoc Additional District Judges
against Fast Track Courts (Sr. Branch).
1. Shri G.R. Purohit, Secretary, Consumer Disputes
Redressal Commission, Cuttack.
2. Shri M.K. Panda, Deputy Secretary, Orissa Legal
Services Authority, Cuttack.
3. Shri J.P. Das, Adviser, O.E.R.C., Bhubaneswar.
Resolved that all the above named officers are found
suitable for promotion to the cadre of O.S.J.S. (Sr. Branch)
and accordingly their names be recommended to the State
Government for promotion to the cadre of O.S.J.S. (Sr.
Branch) for their appointment against the Fast Track Courts
on ad-hoc basis.”
29. The Division Bench, thus, found that promotion of the writ
petitioner along with two others was considered by the Full Court taking
into account their judicial and administrative capabilities and the
confidential reports and thereafter the name of the writ petitioner was
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recommended to the state government for promotion to the Senior Branch
of the service and such promotion could have been granted only under the
1963 Rules. In the opinion of the Division Bench the resolution of the Full
Court dated 14.12.2001 has left no ambiguity that writ petitioner was
promoted to the Senior Branch cadre in Superior Judicial Service under
the 1963 Rules and his promotion as ad hoc Additional District Judge
cannot be treated under the 2001 Rules. The Division Bench has held that
the promotion of the writ petitioner to the Senior Branch has to be counted
with effect from 26.04.2002 when he joined the post initially and his
subsequent regularization deserves to be considered to be effective from
that date.
30. In the impugned judgment, the Division Bench has held that
the view taken by the High Court on administrative side was in ignorance
of the law laid down by this Court in Brij Mohan Lal 14
. In paragraph 17 of
the impugned judgment, the consideration of the matter by the High Court
with reference to the Brij Mohan Lal 14
is as follows :
“17. The aforesaid direction of the apex Court clearly lays
down the mandate that the promotees’ service in such Fast
Track Courts shall be counted towards regular service.
Moreover, the appointment of the petitioner was never on
officiating basis for any particular period, but was a final
selection in accordance with the Rules, 1963 and Scheme
Rules 2001 and that is why the apex Court directed for filling
up all the consequential vacancies in the lower cadre from
which the promotions are given in Fast Track Courts
simultaneously. Moreover, it was also made clear that the
persons appointed under the Scheme shall get all service
benefits which are applicable to the members of Judicial
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Service of the State on equivalent status. The State
Government took cognizance and promoted the incumbents
like the petitioner from the cadre of Orissa Superior Judicial
Service (Junior Branch) to Orissa Superior Judicial Service
(Senior Branch) by following the prescribed procedure. The
opposite parties 3 and 4 joined in Orissa Superior Judicial
Service (Senior Branch) as direct recruits as contemplated
under Rules 5 and 8 of the Rules, 1963. They were
appointed as Addl. District Judges vide Home Department
Notification Nos. 2495 and 2496 dated 13.01.2003, copy of
which is filed as Annexure-8 to the writ petition and the High
Court notifications dated 22.1.2003, filed as Annexure-9 and
9-A respectively. The opposite parties 3 and 4 joined in their
respective posts on 3.2.2003 and 7.2.2003 respectively,
meaning thereby they were born in the cadre of Orissa
Superior Judicial Service (Senior Branch) after about 10
months of the petitioner entering into such cadre on
promotion to the post. But even then the opposite parties 3
and 4 were given selection grade with effect from 3.2.2008
and 7.2.2008 respectively vide Court’s notification no. 79
and 80 dated 22.2.2008, copy of which is annexed as
Annexure-10, thereby ignoring the claim of the petitioner
with regard to his seniority. All this clearly spells out that the
petitioner and other officers were superseded by the
opposite parties 3 and 4 and on the other hand the petitioner
was promoted to the cadre of Selection grade with effect
from 22nd October, 2009 vide notification no. 899 dated
29.10.2009 of the High Court (Annexure-11) and in this
manner the period of service as Addl. District Judge (Fast
Track) was not taken into consideration ignoring the settled
law of the apex Court.”
31. The crucial question that arises for consideration in this
appeal is, whether promotion of the writ petitioner as an ad hoc Additional
District Judge vide Notification dated 5.1.2002 to the Senior Branch of the
Superior Judicial Service for being posted in the Fast Track Court
established out of 11th Finance Commission recommendations can be said
to be an appointment in the Senior Branch cadre of Superior Judicial
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Service. The fate of the appeal depends upon answer to this question. If
the answer to this question is found in the affirmative, the appeal must fail.
On the other hand, appeal must succeed if the answer is in the negative.
32. It is not in dispute that immediately before writ petitioner’s ad
hoc promotion to the Senior Branch of Superior Judicial Service for being
posted in the Fast Track Court, he was a member of the Junior Branch of
the Superior Judicial Service. There is also no dispute before us that there
was no cadre post available on 05.01.2002 or 26.04.2002 under the 1963
Rules. The fact of the matter is that 72 posts of ad hoc Additional District
Judges (Fast Track Court) were created out of 11th Finance Commission
recommendations and these posts were to be filled up under the 2001
Rules.
33. In the backdrop of the above factual position, we shall now
consider the scheme of the 1963 Rules. Rule 4 of the 1963 Rules
provides that cadre of Superior Judicial Service shall consist of two
branches; (i) Superior Judicial Service, Senior Branch and (ii) Superior
Judicial Service, Junior Branch. There are two modes of recruitment to the
Superior Judicial Service in respect of Senior Branch. These two modes
prescribed in Rule 5, are, (a) by direct recruitment in accordance with Rule
8 and (b) by promotion of officers from the Junior Branch of the service.
Rule 9(1) lays down that whenever a vacancy in the Senior Branch of the
service is decided to be filled up by promotion, the government shall fill up
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the same after due consideration of the recommendation of the High Court
in accordance with sub-rule (2). As per sub-rule (2) of Rule 9, the High
Court shall recommend for appointment to such vacancy an officer of the
Junior Branch of the service, who, in the opinion of the High Court, is the
most suitable for the purpose. If the government is unable to accept the
recommendation of the High Court, it may call for further recommendations
from the High Court to fill up the vacancy. Rule 7 of the 1963 Rules,
enables the government to fill up the vacancy in the Senior Branch of the
service in consultation with the High Court either by direct recruitment or
promotion. As regards the strength of direct recruits in the Senior Branch
of the service, a cap is put that their number shall not exceed 25 per cent
of the cadre posts mentioned in Rule 4 (2). The direct recruitment to the
Senior Branch of the service is required to be made from the Bar. Rule 8
makes the complete provision about the eligibility of the candidates,
reservation and the procedure for filling up the vacancies available to
direct recruits to the Senior Branch of the service. Rules 7,8 and 9 of the
1963 Rules are quite significant. The position that emerges from these
provisions is this : When a vacancy occurs in the Senior Branch of the
service, first a decision is taken whether such vacancy is to be filled up by
promotion or direct recruitment. Obviously, while taking such decision, the
cap on the number of the direct recruits has to be kept in view. If the
vacancy is to be filled up by direct recruitment, Rule 8 comes into play. In
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case, such vacancy is decided to be filled by promotion, the procedure in
Rule 9 has to be followed. In other words, for a vacancy in the Senior
Branch of service to be filled by promotion, the High Court makes
recommendation for appointment to such vacancy an officer of the Junior
Branch of the service, who in the opinion of High Court is the most suitable
for the purpose. When such recommendation is made by the High Court
for filling the vacancy, either the government accepts the recommendation
or if, for any reason the government is unable to accept the
recommendation, it may call for further recommendations from the High
Court. Thus, in the absence of any vacancy in the Senior Branch cadre of
Superior Judicial Service to be filled up by promotion, no appointment to
the Senior Branch of service by way of promotion can be made. It is as
fundamental as this.
34. The cadre strength in Orissa Superior Judicial Service, Senior
Branch has been fixed in the 1963 Rules. No ad hoc or temporary posts of
Additional District Judges have been created under these Rules before
05.01.2002 or 26.04.2002. The cadre strength of Senior Branch of service
has not been increased. In this view of the matter, the question of giving
any promotion to the Senior Branch of service in the absence of a vacancy
in the cadre does not arise.
35. It is appropriate at this stage to consider the 2001 Rules and
its scheme. 2001 Rules were made to regulate the recruitment of Judicial
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Officers in the State of Orissa on ad hoc and purely temporary basis
exclusively for implementation of the recommendations of 11th Finance
Commission for upgradation of Judicial Administration under upgradation
grant for elimination of old pending cases. Rule 2 of the 2001 Rules
defines “service” to mean the Judicial Service of State of Orissa. Rule 3
thereof provides that notwithstanding anything contained in the 1963 Rules
and Orissa Judicial Service Rules, 1994 the appointment of Additional
District Judges on ad hoc and purely temporary basis shall be made for
implementation of the scheme. Rule 4 again clarifies that the appointment
made under 2001 Rules is purely on ad hoc and temporary basis. It also
provides that appointment under these Rules shall be made initially for a
period of one year and shall be liable to be terminated at any time without
any prior notice. Rule 5 of the 2001 Rules lays down the eligibility for the
appointment of Additional District Judges. The appointment of the
Additional District Judges under this scheme can be made from 4 sources,
one of such sources is in-service Chief Judicial Magistrates/Additional
Magistrates having three years of service as such. Rule 6 of these Rules
provides that the selection of in-service Judicial Officers for ad hoc
appointment shall be based on scrutiny of their judgments and service
record. The selection shall be made on the basis of seniority-cum-merit.
Rule 7 makes the provision that inservice Judicial Officer shall not claim
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regular promotion in the regular cadre on the basis of appointment made
under this scheme.
36. As noted earlier, 72 posts of ad hoc Additional District Judges
were created under the 2001 Rules to meet its objectives. These posts
were not part of cadre strength of Senior Branch Service in the 1963 Rules
nor by creation of these posts under the 2001 Rules, the cadre strength of
the Senior Branch of service got increased. The writ petitioner’s promotion
as an ad hoc Additional District Judge vide Notification dated 05.01.2002
pursuant to which he joined the post of ad hoc Additional District Judge,
Bargarh on 26.04.2002 is traceable wholly and squarely to the 2001 Rules.
Merely because the writ petitioner was adjudged suitable on the
touchstone of the 1963 Rules, we are afraid, it cannot be said that he was
given appointment to the post of ad hoc Additional District Judge under the
1963 Rules. As noted above, there was no vacancy to be filled by
promotion in cadre strength of Senior Branch of the service under the 1963
Rules on that date.
37. As a matter of fact, on the representation made by the writ
petitioner, the Committee advised to the Full Court of the Orissa High
Court to reject the representation, inter alia, for the following reason:
“Shri Das claims seniority over and above Shri D. Dash and
Shri S. Pujhari as he was appointed as Ad hoc Addl.
Sessions Judge prior to them. Shri Dash and Shri Pujhari
were appointed in regular cadre vacancy of 44 against the
available direct recruit quota of 2(11 being the total quota).
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When Shri Dash and Shri Pujhari were appointed, no quota
to the promotees was available either in the cadre or in the
ex-cadre (44+36). So no substantive vacancy was available
for being filled up from the promotion quota. When Shri Das
was not born in the cadre of substantive vacancy of District
Judge (which includes cadre + ex-cadre) and also even no
vacancy was available to absorb him in the cadre then, his
claim for seniority in the cadre by no stretch of imagination
be allowed”.
38. The essence of the reason given by the Committee is that
when appellants were appointed as Additional District Judges, no vacancy
to be filled by way of promotion to the Senior Branch of the service was
available either in the cadre or in the ex-cadre. When no vacancy was
available against which the writ petitioner could have been brought into the
cadre then his claim for seniority in the cadre over the appellants did not
arise. The above Report of the Committee was accepted by the Full
Court and the writ petitioner’s representation claiming seniority over the
appellants was rejected. There is no legal flaw at all in the decision of the
Full Court which is founded on the above view of the Committee. In view
of the admitted factual position, the proviso following the main provision in
Rule 17 of the 1963 Rules does not help the writ petitioner at all.
39. The Division Bench committed two fundamental errors, one, in
holding that the promotion of the writ petitioner on 05.01.2002 as
Additional District Judge is under the 1963 Rules and two, that the
existence of substantive vacancy in the Senior Branch cadre of Superior
Judicial Service on 05.01.2002 or for that matter 26.04.2002 is wholly
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academic. The Division Bench overlooked the true scope of Rules 7, 8 and
9 of the 1963 Rules. In the absence of vacancy in the Senior Branch
cadre of service to be filled up by promotion on the relevant date, no
promotion could have been accorded on ad hoc basis or otherwise under
the 1963 Rules.
40. The question of inter se seniority between promotees and
direct recruits has engaged the attention of this Court on more than one
occasion. In the words of Y.V. Chandrachud, C.J. in O.P. Singla1
, “there
are many decisions bearing upon the familiar controversy between
promotees and direct recruits and this will be one more. Perhaps, just
another.” We do not think that anybody will dispute this apt description in
respect of litigations between promotees and direct recruits. In O.P.
Singla1
, this Court was concerned with the question of inter se seniority
between promotees and direct recruits in the Judicial Service of Delhi.
This Court considered the above question in light of the provisions in Delhi
Higher Judicial Service Rules, 1970. Having regard to the provisions
contained in Rule 2(d), the majority decision in para 21 of the Report held
as under:
21. …….. This Rule shows that two conditions must co-exist
in order that a person can become a ‘Member of the
Service’. Firstly, his appointment has to be in a substantive
capacity and secondly, the appointment has to be to the
Service, that is, to a post in the Service. Persons who hold
posts bearing designations similar to the designations of
posts comprised in the Service cannot, for that reason
alone, become members of the Service. It is only when they
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are appointed in a substantive capacity to a post in the
Service, that they become members of the Service.”
(emphasis supplied by us)
41. Rules 3(d), 4, 5, 7, 8 and 9 of the 1963 Rules leave no
manner of doubt that a person can become a member of the Senior
Branch of the Superior Judicial Service only if his appointment has been
made to a post in the service. If there is no vacancy to be filled in by
promotion in the cadre of Senior Branch service, there is no question of
any appointment being made to the service. The membership of service is
limited to the persons who are appointed within the cadre strength by
direct recruitment and by promotion.
42. A five-Judge Bench of this Court in Direct Recruit Class II
Engineering Officers’ Association2
was concerned with a question of
seniority in service between the direct recruits and promotees amongst
Deputy Engineers in the State of Maharashtra. This Court considered
previous decisions of this Court, including S.B. Patwardhan v. State of
Maharashtra6 and Baleshwar Dass v. State of U.P.7
and in paragraph 47
of the Report summed up the legal position. Clauses (A), (B) and (C) of
paragraph 47 are relevant for the present purpose which read as follows:
(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
6
1977 (3) SCC 399
7
1980 (4) SCC 226
21Page 22
appointment and not according to the date of his
confirmation.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and
made as a stop gap arrangement, the officiation in such post
cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee
continues in the post uninterruptedly till the regularization of
his service in accordance with the rules, the period of
officiating service will be counted.
(C) When appointments are made from more than one
source, it is permissible to fix the ratio for recruitment from
the different sources, and if rules are framed in this regard
they must ordinarily be followed strictly.
43. The essence of direction in clause (A) is that the seniority of
an appointee has to be counted from the date of his appointment and not
according to the date of his confirmation once a recruitee is appointed to a
post according to rules. In other words, where initial appointment is only
ad hoc and not according to rules and made as a stop-gap arrangement,
the officiation in such post cannot be taken into account for considering the
seniority. The writ petitioner’s appointment as an ad hoc Additional District
Judge is not traceable to the 1963 Rules. The simple reason leading to this
consequence is that there was no vacancy available which was to be filled
up by promotion on that date in Superior Judicial Service (Senior Branch).
44. In Rudra Kumar Sain3
, a Five-Judge Bench of this Court was
again concerned with the inter se seniority between the promotees and
direct recruits in the Delhi Higher Judicial Service. The contention was
whether the guidelines and directions given by this Court in O.P. Singla1
22Page 23
have been followed or not. The Court considered the 3 terms “ad hoc”,
“stop-gap” and “fortuitous” in the context of the service jurisprudence and
in para 20 of the Report held as under:
“20. In service jurisprudence, a person who possesses the
requisite qualification for being appointed to a particular post
and then he is appointed with the approval and consultation
of the appropriate authority and continues in the post for a
fairly long period, then such an appointment cannot be held
to be “stopgap or fortuitous or purely ad hoc”. In this view of
the matter, the reasoning and basis on which the
appointment of the promotees in the Delhi Higher Judicial
Service in the case in hand was held by the High Court to be
“fortuitous/ad hoc/stopgap” are wholly erroneous and,
therefore, exclusion of those appointees to have their
continuous length of service for seniority is erroneous.”
45. The Division Bench in the impugned order has quoted the
above paragraph from Rudra Kumar Sain3
but applied it wrongly.
46. In Brij Mohan Lal 14
, a three-Judge Bench of this Court, inter
alia, considered the Fast Track Courts scheme. In paragraph 10 of the
judgment, this Court gave various directions. Direction no. 14 in that para
is relevant which can be paraphrased as follows:
(i) No right will be conferred on judicial officers in service
for claiming any regular promotion on the basis of
his/her appointment on ad hoc basis under the scheme.
(ii) The service rendered in Fast Track Courts will be
deemed as service rendered in the parent cadre.
23Page 24
(iii) In case any judicial officer is promoted to higher grade
in the parent cadre during his tenure in Fast Track
Courts, the service rendered in Fast Track Courts will
be deemed to be service in such higher grade.
47. Learned senior counsel for the writ petitioner heavily relied
upon the third part of direction no. 14. As a matter of fact, this part has
been relied upon in the impugned judgment as well. It is submitted on
behalf of the writ petitioner that on promotion to the Senior Branch cadre
of Superior Judicial Service during his tenure in the Fast Track Courts, the
writ petitioner is entitled to the counting of the service rendered by him in
the Fast Track Court as a service in Superior Judicial Service (Senior
Branch). The submission overlooks the first two parts of direction no. 14,
one, no right will be conferred in judicial service for claiming any regular
promotion on the basis of his/her appointment on ad hoc basis under the
scheme; and two, the service rendered in Fast Track Courts will be
deemed as service rendered in the parent cadre. In our opinion, until the
vacancy occurred in the cadre of Superior Judicial Service (Senior
Branch) which was to be filled up by promotion, the service rendered by
the writ petitioner in the Fast Track Court cannot be deemed to be service
rendered in the Superior Judicial Service, Senior Branch. Rather until
then, he continued to be a member of the parent cadre, i.e., Superior
Judicial Service (Junior Branch). The third part of direction no. 14, in our
24Page 25
view, does not deserve to be read in a manner that overrides the 1963
Rules.
48. In Brij Mohan Lal 25
, inter alia, the controversy centered
around the closure of Fast Track Courts Scheme and the appointment of
retired district and sessions judges as ad hoc judges of the Fast Track
Courts. In one of the writ petitions filed before this Court, the relief was
intended to ensure that only the members of the Bar were appointed by
direct recruitment to the post of ad hoc district and sessions judges under
the Fast Track Courts Scheme. The Court considered the directions given
by this Court in Brij Mohan Lal 14
. The Court observed in Brij Mohan Lal
2
5
, that this Court had foreseen the possibility of the closure of the Fast
Track Courts Scheme. The Court noted the directions given in Brij Mohan
Lal 14 , inter alia, in the following manner: “…. that the service in FTCs will
be deemed as service of the promoted judicial officers rendered in the
parent cadre. However, no right would accrue to such recruits
promoted/posted on ad hoc basis from the lower judiciary for regular
promotion on the basis of such appointment. For direct recruits,
continuation in service will be dependent on review by the High Court and
there could be possibility of absorption in the regular vacancy if their
performance was found to be satisfactory………..”.
25Page 26
49. In Brij Mohan Lal 25
, this Court with reference to the Superior
Judicial Service in the State of Orissa, noted in paragraph 171 of the
Report thus:
“171. Similarly, we also find no merit in the contention that
this Court should quash the advertisement issued by the
State of Orissa for making selections to the Orissa Higher
Judicial Services on the basis of the claims for regularisation
of the petitioners against such posts. There are two different
sets of Rules, applicable in different situations, to these two
different classes of officers and further they are governed by
different conditions of service. They cannot be placed on a
par. The process of their appointments is distinct and
different. These petitioners have no right to the post. Thus, it
would neither be permissible nor proper for the Court to halt
the regular process of selection on the plea that these
petitioners have a right to be absorbed against the posts in
the regular cadre.”
50. Then, in paragraph 176 of the Report, the Court observed that
the Fast Track Court Judges were appointed under a separate set of rules
than the rules governing the regular appointment to the State Higher
Judicial Service. The Court noted that while appointing Fast Track Court
Judges, it was clearly stipulated that such appointments would be ad hoc
and temporary and that the appointees shall not derive any benefit from
such appointments.
51. We have already indicated above that on 05.01.2002 or
26.04.2002, there was no vacancy in the cadre of Superior Judicial Service
(Senior Branch) for being filled up by promotion. Such vacancy in the
Senior Branch cadre of the service occurred on 15.12.2003 and from that
26Page 27
date the writ petitioner has been given benefit of his service rendered in
the Fast Track Court. The administrative decision by the Full Court is in
accord with the 1963 Rules, the 2001 Rules and the legal position already
indicated above. The view of the Division Bench in the impugned judgment
is legally unsustainable. The impugned judgment is liable to be set aside
and is set aside.
52. Appeal is allowed, as above, with no order as to costs.
……………………….J.
(R.M. Lodha)
..…..………………...J.
(J. Chelameswar)
.……………………...J.
(Madan B. Lokur)
NEW DELHI
MARCH 11, 2013.
27
