Supreme Court of India
DEBABRATA DASH AND ANR.versusJATINDRA PRASAD DAS & ORS.
- Citation
- 2013 INSC 143
- Decided
- 11 March 2013
- Disposal
- Appeal(s) allowed
- Bench
- RAJENDRA MAL LODHA
Holding
An ad hoc appointment as Additional District Judge under the 2001 Rules does not constitute an appointment in the Senior Branch of the Superior Judicial Service, and therefore its service cannot be counted for seniority in that cadre.
Summary
The appeal concerned two direct‑recruits to the Senior Branch of the Orissa Superior Judicial Service who challenged a High Court order that gave seniority to a writ petitioner for his service as an ad hoc Additional District Judge in a Fast Track Court. The petitioner had been promoted on an ad hoc basis under the Orissa Judicial Service (Special Schemes) Rules, 2001, while there was no vacancy in the Senior Branch cadre under the Orissa Superior Judicial Service Rules, 1963. The Supreme Court held that, in the absence of a vacancy, promotion could not be effected under the 1963 Rules and that the 2001 Rules expressly make such appointments temporary and preclude any claim to regular promotion or seniority in the regular cadre. Consequently, the period of service in the Fast Track Court could not be counted for seniority until a vacancy arose on 15 December 2003. The Court set aside the Division Bench’s decision and allowed the appeal.
Issues considered
- Whether an ad hoc promotion to Additional District Judge under the 2001 Rules can be treated as an appointment in the Senior Branch cadre of the Superior Judicial Service under the 1963 Rules for seniority purposes.
- Whether service rendered in a Fast Track Court on an ad hoc basis can be counted towards seniority in the regular Senior Branch cadre.
Subjects
seniorityad hoc appointmentpromotionjudicial serviceFast Track CourtOrissa Superior Judicial Service1963 Rules2001 Rulesinter se senioritydirect recruitment vs promotee
Judgment
[2013] 2 S.C.R. 331
DEBABRATA DASH AND ANR. A
v.
JATINDRA PRASAD DAS & ORS.
(Civil Appeal No. 2316 of 2013)
MARCH 11, 2013
B
[R.M. LODHA, J. CHELAMESWAR AND
MADAN B. LOKUR, JJ.]
Orissa Judicial Service (Special Schemes) Rules 2001:
c
rr. 3, 4, 5 and 7 - Member of Orissa Superior Judicial
Service (Junior Branch) - Ad hoc promotion as Additional
District Judge in Fast Track Court created in terms of 11th
Finance Commission recommendations - Claim that such
ad hoc service be treated for the purpose of seniority in Orissa D
Superior Judicial Service (Sr. Branch) - Held: Not tenable -
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 - On the date of appointment of the E
officer to ad hoc post of Addi. District Judge in Fast Track
Court or on the date he joined the said post, there was no
cadre post available - Promotion of the officer as an ad hoc
Addi. District Judge pursuant to which he joined the post is
traceable wholly and squarely to 2001 Rules and not to 1963
Rules - Officer has been rightly given benefit from the date F
the vacancy occurred in the Senior Branch cadre - Orissa
Superior Judicial Service Rules 1963.
The instant appeal was filed by two officers of the
Orissa Superior Judicial Service (Senior Branch) directly G
appointed from the bar, challenging the judgment of the
High Court whereby it allowed the writ petition of
respondent no. 1 (writ petitioner), and directed the High
Court on administrative side to treat the period of service
331 H
332 SUPREME COURT REPORTS (2013] 2 S.C.R.
A rendered by the writ petitioner as ad hoc Additional
District Judge (Fast ·rack Court) for the purpose of
seniority from the date of his joining the said post. The
question for consideration before the Court was:
"whether promotion of the writ petitioner as an ad hoc
B 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
c Superior Judicial Service."
Allowing the appeal, the Court
HELD: 1.1. It is not in dispute that immediately before
writ petitioner's ad hoc promotion to the Senior Branch
D 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
that there was no cadre post available on 05.01.2002 (on
the date of ad hoc promotion for the writ petitioner) or
E 26.04.2002 (the date of joining the post) under the Orissa
Superior Judicial Service Rules 1963. 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
F promotion can be made. [para 32-33] [346-G-H; 348-D]
1.2. It is to be noted 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
G under the Orissa Judicial Service (Special Schemes)
Rules 2001. These Rules were made to regulate the .
recruitment of Judicial Officers in the State of Orissa on
ad hoc and purely temporary basis exclusively for
implementation of the recommendations of 11th Finance
H Commission for upgradation of Judicial Administration
DEBABRATA DASH AND ANR. v. JATINDRA 333
PRASAD DAS
under upgradation for elimination of old pending cases. A
Rules 3 and 4 make it clear that the appointment made
under 2001 Rules is purely on ad hoc and temporary
basis for implementation of the Scheme. Rule 7 makes
the provision that inservice Judicial Officer shall not claim
regular promotion in the regular cadre on the basis of B
appointment made under this scheme. [para 32 and 35]
[346-H; 347-A; 348-G-H; 349-A, B, E]
1.3. The writ petitioner's promotion as an ad hoc
Additional District Judge by Notification dated 05.01.2002 C
pursuant to which he joined the post of ad hoc Additional
· District Judge on 26.04.2002 is traceable wholly and
squarely to the 2001 Rules and not to be 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 D
(Senior Branch). Merely because the writ petitioner was
adjudged suitable on the touchstone of the 1963 Rules,
it cannot be said that he was given appointment to the
post of ad hoc Additional District Judge under the 1963
Rules. [para 36 and 43] [349-F-H; 353-D-E] E
Direct Recruit Class II Engineering Officers' Association
v. State of Maharashtra and Others 1990 (2)
SCR 900 = (1990) 2 sec 715 - relied on.
O.P Sing/a and Another v. Union of India and Others F
1985 (1) SCR 351= (1984) 4 SCC 450, Rudra Kumar Sain
and Others v. Union of India and Others 2000 (2) Suppl.
SCR 573 = (2000) 8 SC 25, Brij Mohan Lal v. Union of India
=
and Others 2002 (3) SCR 810 (2002) 5 sec 1 [Brij Mohan
Lal 1] and Brij Mohan Lal v. Union of India and Others 2012 G
(5) SCR 305 = 2012 (6) sec 502 [Brij Mohan Lal 2]; S.B.
=
Patwardhan v. State of Maharashtra 1977 (3) SCR 775 1977
(3) SCC 399; and Ba/eshwar Dass v. State of U.P. 1981 (1)
SCR.449 = 1980 (4) SCC 226 - referred to.
H
/
'.... I
334 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 1.4. 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 date the writ petitioner has been
B given benefit of his service rendered in the Fast Track
Court. [para 51] [356-F-G]
Case Law Reference:
1985 (1) SCR 351 referred to para 4
c 1990 (2) SCR 900 relied on para 4
2000 (2) Suppl. SCR 573 referred to para 4
2002 (3) SCR 810 referred to para 4
D 2012 (5) SCR 305 referred to para 4
1977 (3) SCR 775 referred to para 4
1981 (1) SCR 449 referred to para 4
E CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2316 of 2013.
From the Judgment & Order dated 15.11.2011 of the High
Court of Orissa at Cuttack in Writ Petition (Civil) No. 21449 of
2011.
F
Gopal Subramaniam, Ashok Kr. Parija, R.M. Patnaik,
Anand Verma, Dhananjay Mishra, Gaurav Kejriwal for the
Appellants.
G P.S. Patwalia, Ajay Singh, Ashok K. Mahanjan, Kirti Renu
Mishra, Apurva Upmanyu, Sibo Sankar Mishra, Adbhut Pathak
for the Respondents.
The Judgment of the Court was delivered by
H R.M. LODHA, J. 1. Leave granted.
DEBABRATA DASH AND ANR. v. JATINDRA 335
PRASAD DAS [R.M. LODHA, J.]
2. The inter se seniority between the appellants and A
. 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 B
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 regularization of his
service in the Senior Branch cadre under the Orissa Superior
. Judicial Service Rules, 1963 {for short, "1963 Rules"). The High C
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 D
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 E
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 Sing/a and Another v. Union of India and Others1, · F
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].
G
1. (1984) 4 sec 450.
2. (1990) 2 sec 715.
3. (2000) s sec 25.
4. {211112) s sec 1.
5. c2012i s sec 502. H
336 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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 on 19.01.2004 as
Additional District and Sessions Judge, Bargarh pursuant to
the notification dated 15.12.2003 to which post the writ
G 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
H 07.02.2004. The appellants were conferred selection grade
DEBABRATA DASH AND ANR. v. JATINDRA 337
PRASAD DAS [R.M. LODHA, J.]
with effect from 03.02.2008 and 07.02.2008 respectively. A
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 B
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 C
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. D
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 Full Court of the High Court conside.red the E
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 appel!ants as F
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 G
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
l!t under:
H
335· SUPREME COURT REPORTS [2013] 2 S.C.R.
A "GOVERNMENT OF ORISSA
HOME DEPARTMENT
NOTIFICATION
Bhubaneswar the 5th January 2002.
JOO( JOO( JOO(
B
JOO( JOO( )()()(
No. 993/Sri Jatindra Prasad Das, an officer of Orissa
Superior Judicial Service (Junior Branch) at present
Adviser, Orissa Electricity Regularity Commission Orissa,
c 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
D appointment as adhoc Additional District Judge in the Fast
& Track Court established out of 11th Finance
Commission Award."
15. The notification dated 11.04.2002 whereby the writ
E 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
F
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
G
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
DEBABRATA DASH AND ANR. v. JATINDRA 339
PRASAD DAS [R.M. LODHA, J.]
District Judge Court established out of the 11th Finance A
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."
B
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 c
NOTIFICATION
Dated, Bhubaneswar, the 13.Q1 .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 D
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. E
No.12496/H,S. 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 F
(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 G
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.
H
340 SUPREME COURT REPORTS [2013] 2 S.C.R.
.A 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).
B
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
C 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.
D 20. Part Ill 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 :
E (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
F
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 1O."
G
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
H
DEBABRATA DASH AND ANR. v. JATINDRA 341
PRASAD DAS [R.M. LODHA, J.)
service, Government shall decide in consultation with the A
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
8
per cent of the cadre posts mentioned in Sub-rule (2) of
Rule4."
22. Rule 9 lays down as follows:
"9. (1) Whenever a vacancy in the Senior Branch c
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 D
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 E
unable to accept the recommendation as aforesaid they
may call for further recommendations from the High Court
to fill up the vacancy."
23. Rule 17 makes provision for seniority of officers in the F
following manner.
"17. Seniority of officers in the service shall be determined
in accordance with the dates of substantive appointment
to the service.
G
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
H
342 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 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
B
Court of Orissa, framed the rules entitled, "Orissa Judicial
Sen/ice (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
c 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 •
D 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
E Additional District Judges on ad hoc and purely temporary
basis for implementation of the Scheme will be made
under these rules.
4. (1) The appointment made under these rules shall be
purely on ad hoc and temporary basis.
F
(2) The appointment shall be ~ade initially for a
period of one year and shall be liable to be terminated at
any time without any prior notice.
G (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:
H
DEBABRATA DASH AND ANR. v. JATINDRA 343
PRASAD DAS [R.M. LODHA, J.]
"5. Eligibility. - (1) The appointment of Additional District A ·
Judges on ad hoc and purely temporary basis shall be
made by the Governor on recommendation of the High
Court from amongst;
(a) xxx JOO( JOO(
B
(b) JOO( JOO( JOO(
(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
c
of in-service 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 D
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 E
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 1963 Rules. The
Division Bench observed that such ad hoc promotion was
regularized vide notification dated 15.12.2003 under the 1963 F
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 G
relevant portion of the minutes of the meeting dated 14.12.2001
referred to and considered by the Division Bench, reads as
· follows:
H
344 SUPREME COURT REPORTS [2013] 2 S.C.R.
A "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
B 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
C 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)
D 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."
E 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 recommended to the state government
F 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
G 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
H subsequent regularization deserves to be considered to be
DEBABRATA DASH AND ANR. v. JATINDRA 345
PRASAD DAS [R.M. LODHA, J.]
effective from that date. A
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 B
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 C
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 D
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 Service of the State on equivalent E
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 F
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 Addi.
District Judges vide Home Department Notification Nos.
2495 and 2496 dated 13.01.2003, copy of which is filed G
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 H
346 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 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
B 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
c 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
Addi. District Judge (Fast Track) was not taken into
D 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
· E 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
Service. The fate of the appeal depends upon answer to this
question. If the answer to this question is found in the
F affirmative, the appeal must fail. On the other hand, appeal must
succeed if the answer is in the negative.
32. It is n<>-t--in dispute that immediately before writ
petitioner's ad hoc promotion to the Senior Branch of Superior
G 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
H Additional District Judges (Fast Track Court) were created out
DEBABRATA DASH AND ANR. v. JATINDRA 347
PRASAD DAS [R.M. LODHA, J.]
of 11th Finance Commission recommendations and these A
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 B
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 C
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 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 D
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 E
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 F
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 G
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 H
348 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 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 case, such
vacancy is decided to be filled by promotion, the procedure in
B 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
c 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
0
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,
E 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
F 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
G recruitment of Judicial 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 JudicialAdministration 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
H
DEBABRATA DASH AND ANR. v. JATINDRA 349
PRASAD DAS [R.M. LODHA, J.]
Orissa. Rule 3 thereof provides that notwithstanding anything A
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 B
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 c
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 D
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 regular promotion in the regular cadre
on the basis of appointment made under this scheme.
E
- 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 F
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. G
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 lioc
Additional District Judge under the 1963 Rules. As noted
above, there was no vacancy to be filled by promotion in cadre H
350 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 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
B 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 Addi.
Sessions Judge prior to them. Shri Dash and Shri Pujhari
C were appointed in regular cadre vacancy of 44 against the
available direct recruit quota of 2(11 being the total quota).
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
D 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
E 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
F 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
G 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.
H
DEBABRATA DASH AND ANR. v. JATINDRA 351
PRASAD DAS [R.M. LODHA, J.]
39. The Division Bench committed two fundamental errors, A
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 academic. B
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. c
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. Singfa 1, "there are many decisions bearing upon the
familiar controversy between promotees and direct recruits and D
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 E
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- F
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 G
posts comprised in the Service cannot, for that reason
alone, become members of the Service. It is only when they
are appointed in a substantive capacity to a post in the
Service, that they become members of the Service."
(emphasis supplied by us) H
352 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 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
B 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.
C 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 Maharashtra• and
D 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:
E (A) Once an incumbent is appointed to a post according
to rule, his seniority has to be counted from the date of his
appointment and not according to the date of his
confirmation. (
F 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.
G (B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee ··
a. 1977 (3) sec 399.
1. 19ao (4) sec 22s.
H
DEBABRATA DASH AND ANR. v. JATINDRA 353
PRASAD DAS [R.M. LODHA, J.J
continues in the post uninterruptedly till the regularization A
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 B
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 aci:ording to the date of his confirmation c
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 D
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).
E
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. Sing/a 1 have been followed F
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 G
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 H
354 SUPREME COURT REPORTS [2013] 2 S.C.R.
A which the appointment of the promotees in the Delhi Higher
Judicial Service in the case irl 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
B 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,
C 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
D
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
E deemed as service rendered in the parent cadre.
(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
F 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.
G 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, ',
H one, no right will be conferred in judicial service for claiming
DEBABRATA DASH AND ANR. v. JATINDRA 355
PRASAD DAS [R.M. LODHA, J.]
· any regular promotion on the basis of his/her appointment on A
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
eaqre of Superior Judicial Service (Senior Branch) which was
to be filled up by promotion, the service rendered by the writ B
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 view, does not deserve to c
be read in a manner that overrides the 1963 Rules.
48. In Brij Mohan Lal 2", 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 D
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 E
Mohan Lal 25, 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. F
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 G
vacancy if their performance was found to be
satisfactory .......... .".
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: H
.356 SUPREME COURT REPORTS [2013] 2 S.C.R.
A "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
B 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
c 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."
o 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
E 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
F 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 date the writ
petitioner has been given benefit of his service rendered in the
Fast Track Court. The administrative decision by the Full Court
G 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.
H R.P. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "seniority"Sign in to search