Supreme Court of India
PUNJAB AND HARYANA HIGH COURT AT CHANDIGARHversusSTATE OF PUNJAB AND ORS.
- Citation
- 2018 INSC 921
- Decided
- 3 October 2018
- Disposal
- Leave Granted & Allowed
- Bench
- A K SIKRI
Holding
The roster prescribed in Appendix‑B of the 2007 Punjab Superior Judicial Service Rules governs inter‑se seniority, and promotions under Rule 7(3)(a) were within the applicable quota and cannot be treated as ad‑hoc or placed at the bottom of the seniority list.
Summary
The Punjab Superior Judicial Service recruited officers in 2008 through three streams – promotees (50% quota), out‑of‑turn promotees (25% quota) and direct recruits (25% quota). A seniority list dated 24‑12‑2015 placed promotees at the top, direct recruits next, out‑of‑turn promotees thereafter, and was challenged by direct recruits and out‑of‑turn promotees. The High Court held the promotees were in excess of quota, treated them as ad‑hoc and ordered the list to be re‑cast. On appeal, the Court held that the 2004 amendment fixing the 50‑25‑25 quota was prospective and could not impair rights accrued under the pre‑amendment 75‑25 quota; the promotions under Rule 7(3)(a) were within quota and not ad‑hoc. The roster in Appendix‑B of the 2007 Rules, introduced to give effect to the Supreme Court’s *All India Judges’ Association* judgment, applies to both recruitment and inter‑se seniority. Consequently, the seniority list was set aside and a new list was ordered according to the roster, without moving the promotees to the bottom. The appeals were allowed and the corrected seniority list was declared final.
Issues considered
- The applicability of the roster (Appendix‑B) of the 2007 Punjab Superior Judicial Service Rules to the determination of inter‑se seniority.
- Whether the promotions under Rule 7(3)(a) in 2008 exceeded the promotion quota and should be treated as ad‑hoc.
- Whether the 2004 amendment fixing a 50‑25‑25 quota is prospective and can affect rights accrued under the earlier 75‑25 quota.
- Whether the seniority list dated 24‑12‑2015 should be set aside and re‑cast in accordance with the roster.
Legislation cited
- Punjab Civil Services (General and Common Conditions of Service) Rules, 1994
- Punjab Superior Judicial Service Rules, 1963s. Rule 12, s. Rule 8
- Punjab Superior Judicial Service Rules, 2007s. Appendix‑B, s. Rule 12(1), s. Rule 12(2), s. Rule 12(3), s. Rule 23, s. Rule 7(3)(a), s. Rule 7(3)(b), s. Rule 7(3)(c), s. Rule 7(4)
Subjects
seniorityinter‑se senioritypromotion quotaroster systemPunjab Superior Judicial Serviceservice lawout‑of‑turn promotiondirect recruitmentRule 7Rule 12All India Judges’ Association
Judgment
[2018] 13 S.C.R. 91 91
HON’BLE PUNJAB AND HARYANA HIGH COURT A
AT CHANDIGARH
v.
STATE OF PUNJAB AND ORS.
(Civil Appeal Nos. 5518-5523 of 2017) B
OCTOBER 03, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service Law:
Inter-se seniority – Between three streams of Superior Judicial C
Service i.e. promotees, direct recruits and out of turn promotees –
In the seniority list promotee officers were placed at serial Nos. 1 to
14; at serial Nos. 15 and 16 were direct recruits; out of turn promotees
at serial Nos. 17 to 24 and at serial Nos. 25 to 35 were direct recruits
– Writ petition by direct recruits and out of turn promotees
D
challenging the seniority list – High Court allowing the petitions
held that the promotees were in excess of quota and hence should
be treated as ad hoc and placed at the bottom of seniority list and
directed to re-cast the seniority list – On appeal, held: Prior to
amendment of Service Rules of 1963 in 2004, 75% of the cadre was
required to be filled up by promotees and 25% by direct recruits – E
After the amendment in 2004, promotion quota was fixed as 50%,
25% for out of turn promotees (by departmental examination) and
25% for direct recruits – The amendment of Service Rules in 2004
was as a result of direction in *All India Judges’ Association case –
The judgment in the case being prospective, the ratio of officers as
F
existing before unamended Rules cannot be adversely affected –
Determination of quota which existed prior to and subsequent to
amended Rules have to be treated differently – Determination of
seniority as brought in place by 2007 Rules, cannot be implemented
so as to defeat any existing right – Promotition of officers u/r. 7(3)(a)
of Service Rules was in accordance with the service Rules and their G
promotion canot be treated ad hoc nor they can be pushed to the
bottom of seniority list – Out of turn promotion quota having been
culled out only as per judgment in *All India Judges’ Association
case, the said quota will come into existence propectively – Therefore,
out of turn promotees cannot claim 25% quota from day one – Thus
H
91
92 SUPREME COURT REPORTS [2018] 13 S.C.R.
A there is no patent error in calculation of the vacancies – Recruitment
made from three different streams cannot be faulted – Supreme Court
in *All India Judges’ Association case had directed for adopting
roster system – Quota was throughout present in 1963 Rules, which
has been amplified in 2007 Rules – The purpose and object of r. 7
of 2007 Rules r/w Appendix-B is clear that roster is to be followed
B
for determination of seniority – Therefore, roster is applicable in
determining the seniority – All the Fast Track Court Judges who
were taken into regular cadre in different streams have been rightly
placed in seniority list – The seniority positition of the officers of
the three streams is determined as per the roster as indicated in
C Appendix-B – Punjab Superior Judicial Service Rules, 1963 – r. 8
– Punjab Superior Judicial Service Rules, 2007 – rr. 7(3)(a),(b)
and (c); 7(4),8,12(3) and Appendix B.
Allowing the appeals, the Court
HELD: 1.1 From 28.01.1991, Rule 8 of Punjab Superior
D Judicial Service Rules, 1963 was amended providing for three-
fourth of the cadre to be filled up by promotee officers and one-
fourth by direct recruits. The above position continues till Rules
were amended in 2004 under the direction of this court in *All
India Judges’ Association case. For the first time by amending
E Punjab Superior Judicial Service Rules on 15.01.2004, the
promotion quota under Rule 8 was fixed as 50 per cent, 25 per
cent for limited departmental competitive examination and as
far as for direct recruits, earlier 25 per cent was maintained.
[Paras 39 and 40][116-H; 117-A-B]
F 1.2 The cadre strength as on 13.09.2007 was 89, which was
increased on 10.11.2007 to 107. After the amendment of Rules
on 15.01.2004, promotion of 10 officers were made. The cadre
strength before 2004 was 88. Thus, in the year 2004, when the
cadre strength was 88, 75 per cent posts were to be manned by
promotees under merit-cum-seniority, i.e. 66 were to be manned
G by promotee officers. The judgment in *All India Judges’
Association case being prospective, the ratio of officers as existing
before unamended Rules can not be adversely affected. A
promotee before the amendment of Rules, 2004, who was well
within their quota, suddenly cannot go out of their quota and
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 93
CHANDIGARH v. STATE OF PUNJAB
become an excess merely on the strength of amendment of Rules, A
which are prospective in nature. For determining the quota, the
cadre strength, which existed prior to amended rules and
subsequent to the amended rules have to be treated differently.
[Para 40][117-D-F]
1.3 The out of turn promotion quota having been culled out B
only as per the judgment in *All India Judges’ Association case,
which was required in the Rules by the State, the said quota will
come into existence only prospectively. An out of turn promotee
cannot claim that they should be given 25 per cent posts of the
cadre strength right from day one. It is true that quota has to be
determined on the basis of cadre strength but determination of C
the cadre strength has to be made taking into consideration that
rules amended w.e.f. 15.01.2004 were prospective in nature
and cannot impair or affect any right, which accrued to the
member of judicial service prior to the amendment of the Rules.
[Para 40][118-B-D] D
1.4 Rule 2007 having been brought in place to give effect
to the judgment in *All India Judges’ Association case, while
interpreting the Rules 2007 the direction issued by this court
have to be kept in mind and the rules cannot be interpreted in a
manner so as to violate the directions issued by this Court in the E
above judgment. [Para 70 (4)][135-C]
1.5 Thus, there is no patent error in the calculation of the
vacancy by the High court in the administrative side and
consequently the recruitment made from three different streams
was well within such determination and cannot be faulted. The F
promotion of officers under Rule 7(3)(a) was in accordance with
the rules and there is no question of treating the promotion to be
ad hoc promotion nor they can be pushed to the bottom of
seniority. The new set of rules, the new scheme of recruitment,
new rules of determination of seniority as brought in place by
2007 Rules, its implementation has to be done with care so as G
not to defeat any existing right. Mechanical application of the
Rules, which may result to unjust result has to be avoided to
advance the scheme of the new Rules and the object which were
delineated in *All India Judges’ Association case. While allocating
posts to be filled by different streams, cadre strength, officers of H
94 SUPREME COURT REPORTS [2018] 13 S.C.R.
A particular stream in position, quota of each stream has to be kept
in mind. The vacancies existing for recruitment in particular year
has not to be mechanically divided at the ratio of 50, 25 and 25
per cent. [Para 41][118-D-G]
*All India Judges’ Association and others v. Union of
B India and others, (2002) 4 SCC 247 : [2002] 2 SCR 712
Srikant Roy and Others v. State of Jharkhand and
Others (2017) 1 SCC 457 : [2016] 11 SCR 58 – relied
on.
2.1 Rota and quota in service jurisprudence is a well known
C concept, which finds reflected in large number of service rules of
different services. Quota between promotees and directs were
throughout present in 1963 Rules, which has been further
amplified in 2007 Rules. [Para 43][119-C-D]
2.2 The object as incapsulated by this Court in *All India
D Judges’ Association case in carrying recruitment by roster was
with the object of eliminating disputes pertaining to determination
of seniority. The purpose and object of Rule 7 of Rules, 2007
read with Appendix-B is clear that the roster is to be followed for
determination of the seniority. The Rule 7(4) and Appendix-B
has to be read in a manner so as to advance the object of the
E Rules. When this court directed for adopting roster system for
determining seniority, Rules, 2007 cannot be interpreted in
a manner which may violate the direction of this Court.
Article 141 of the Constitution provides that law declared by the
Supreme Court shall be binding on all courts and authorities.
F [Para 45][121-A-C]
2.3 There is nothing in the 2007 Rules which may indicate
that there is any provision contrary to determination of seniority
by roster. Mere fact that said rules are not explicit or make it
expressly clear that seniority is to be determined on the basis of
G roster is not conclusive. [Para 48][123-G]
2.4 The purpose of statutory rules and laying down a
procedure for recruitment was to achieve the certainty. Officers
belonging to different streams have to be confidant that they shall
be recruited under their quota and get seniority as per their quota
and roster. In the event, the seniority is to be fixed with date of
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 95
CHANDIGARH v. STATE OF PUNJAB
joining of particular stream, it will lead to uncertainty and making A
seniority depending on administrative authorities, which is
neither in the interest of service nor serve the cause of justice.
[Para 53][126-F-G]
2.5 Roster is fully applicable for determination of seniority.
Officers of different streams selected in a particular year even B
though they were allowed to join the post on different dates shall
not affect their inter se seniority, which is to be decided on the
basis of roster. [Para 53][126-G-H]
2.6 The High Court even though accepted the principle
that roster is applicable in the seniority but in the operative portion C
of the judgment did not issue any direction to re-cast the seniority
as per the roster given in the Appendix-B which is an apparent
error committed by the High Court. [Para 70 (3)][135-B]
2.7 Rule 7(4) read with Appendix-B has to be read in the
light of direction in *All India Judges Association case and D
harmonious construction of the rule clearly indicates that roster
which has been expressly made applicable for filling the post of
all the three streams shall be applicable while determining the
seniority. The seniority list dated 24.12.2015 is to be set aside.
[Para 70 (5) and 71][135-D-E]
E
O.P. Singla and Another v. Union of India and Others
(1984) 4 SCC 450 : [1985] 1 SCR 351; Union of India
and Others v. N.R. Parmar and Others (2012) 13 SCC
340 : [2012] 13 SCR 555 – relied on.
3.1 The promotion order issued by the Government of F
Punjab on the recommendations of the High Court promoting
fifteen officers under 50% quota under Rule 7(3)(a) also contained
six officers who were working on ad-hoc basis in Fast Track
Courts. Similarly, appointment order promoting eight judicial
officers under quota for out of turn promotion, included one officer
who was working on ad-hoc basis in Fast Track Court. The G
tentative seniority list indicates that two officers who were at
Sl.No.15 and at Sl.No.16, were shown as direct recruits having
been absorbed from Fast Track Courts against the quota of direct
recruits under Rule 7(3)(c). These officers were recruited as Fast
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96 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Track Court Judges directly from the Bar. In the tentative
seniority list, the name of promotee officers who had earlier been
working as Fast Track Court Judges have been shown as per
their seniority in lower cadre. [Para 54][127-B-D]
3.2 The two officers (who were appointed as direct recruits)
B were appointed to Punjab Superior Judicial Service by Order
dated 24.06.2008. In the tentative seniority list, they were placed
at serial Nos. 15 and 16 i.e. above the direct recruits. The
tentative seniority list was prepared by the committee on the
basis of continuous length of service. It was probably due to that
reason that serial Nos. 15 and 16, direct recruits were shown
C above the out of turn promotees and direct recruits. The above
two officers who were taken on the regular Cadre of Additional
District Judge, after written test and viva-voce test which is almost
the same procedure which has been subsequently laid down by
this Court in **Brij Mohan Lal case. The above two officers having
D been included in direct recruitment quota, they have to be clubbed
along with the direct recruits. The objection of direct recruits
that they cannot be included in the quota meant for direct recruits
since they have not undergone the same written test and viva-
voce, which has been undertaken by the direct recruits, thus,
cannot be accepted. [Para 61][131-B-E]
E
3.3 Rule 12(3) provides that “the inter-se-seniority of the
direct appointee shall be on the basis of merit as is determined
by the High Court.” The inter-se-seniority as contemplated by
Rule 12(3) obviously means inter-se-seniority reflected in the
same examination. The two officers from the Fast Track Court
F having not taken the same examination, Rule 12(3) is not
technically applicable while judging inter-se-seniority of these two
officers and other direct recruits. [Para 63][132-A-B]
3.4 The two officers having been working as Additional
District Judges in the Fast Track Court and they having been
G appointed in the regular cadre although in the same recruitment
year, their placement above other direct recruits is justified.
However, these two officers will be grouped along with direct
recruits and shall occupy position number 1 and 2 in the direct
recruits. [Para 63][132-C]
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 97
CHANDIGARH v. STATE OF PUNJAB
3.5 The Fast Track Court Judge who was selected by out A
of turn promotion, was appointed as Fast Track Court Judge
consequent to promotion of fifteen officers under Rule 7(3)(a).
The appointment and selection committee along with proposing
fifteen promotions under Rule 7(3)(a) has also proposed seven
officers to man the Fast Track Courts in which the officer was
included. He thus occupied the Fast Track Court judge post in B
the year 2008 itself and participated in the limited departmental
competitive examination and secured sixth position on merit.
Among the out of turn promotees he has been placed at sixth
place. [Para 64][132-D-F]
3.6 There is no denial that the fast track court Judge who C
was out of turn promotee has been regularly promoted under
Rule 7(3)(b) and continues his substantive promotion. When the
roster is applicable, the seniority has to be fixed by the roster
point. As per Rule 12(2) the inter-se-seniority of the out of turn
promoted officers shall be “in the order of merit as is determined
D
by the High Court”. Thus, seniority position of the officer among
the out of turn promotees has to be in accordance with the merit.
His position among the out of turn promotees has thus rightly
been shown at serial No.6 with which no infirmity can be found.
[Para 67][133-G-H; 134-A]
3.7 All the Fast Track Court judges who were taken into E
the regular cadre in different streams have been rightly placed in
the seniority list amongst their stream to which no exception can
be taken. [Para 67][134-A]
**Brij Mohan Lal v. Union of India and others (2012)
6 SCC 502 : [2012] 5 SCR 305– relied on. F
4. Already period of three years has elapsed when the
tentative seniority list was published. Finalisation of seniority as
early as possible is essential and necessary for administration of
justice. There is no dispute regarding inter-se-seniority of the
promotees under Rule 7(3)(a) and issue pertaining to inter-se- G
seniority of out of turn promotees and direct recruits have already
been finalized. Only exercise which is to be undertaken is to place
officers of three streams in accordance with the roster as indicated
in Appendix-B. The seniority position of the officers of three
steams is determined as per the roster. [Para 71 (a) and (b)]
[135-F-H] H
98 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 5. *** In All India Judges Association quota of 25 percent
for out of turn promotees has been reduced as 10 percent w.e.f.
01.01.2011. The present seniority dispute being related to
recruitment held in 2008, the reduction in quota may not be
relevant in the present case. [Para 72][138-C-D]
B ***All India Judges Association and Ors. v. Union of
India and Ors. (2010) 15 SCC 170 – referred to.
Case Law Reference
[2002] 2 SCR 712 relied on Para 10
C (2010) 15 SCC 170 referred to Para 11
[2016] 11 SCR 58 relied on Para 38
[1985] 1 SCR 351 relied on Para 45
D [2012] 13 SCR 555 relied on Para 50
[2012] 5 SCR 305 relied on Para 58
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5518-
5523 of 2017.
E From the Judgment and Order dated 03.03.2017 of the High Court
of Punjab and Haryana at Chandigarh in Civil Writ Petition Nos.1056,
1057, 1209, 1983, 2335, 21544 of 2016
WITH
Civil Appeal Nos. 5513/2017, 5525/2017, 5509/2017, 5510/2017,
F 5515-5517/2017, 5528-5529/2017, 10176/2018, 10185-10187/2018.
Raju Ramachandran, Ajit Sinha, K. V. Viswanathan, Dushyant
Dave, P. S. Patwalia, Nidhesh Gupta, Sr. Advs., Ashok Mathur, Abhishek
Kaushik, Raghav Pandey, Vaibhav Niti, Prateek Gupta, E. C. Agrawala,
Tarjit Singh, Suhaas Ratna Joshi, Ashok K. Mahajan, S. L. Aneja,
G Subhasish Bhowmick, T. V. S. Raghavendra Sreyas, Ms. Gayatir Gulati,
Ms. Sneh Dhillon, Ms. Harshika Verma, Mrs. Natasha Dalmia, Puneet
Varshney, Ms. Pallavi Singh, Ms.Vriti Gujral, Jagjit Singh Chhabra,
S. K. Pabbi, Ms. Priyanka Garg, Ajay Kumar Singh, Karan Bharihoke,
Ms. Anusha Nagarajan, Ms. Navkiran Bolay, Karan Dewan, Ms. Aditi
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 99
CHANDIGARH v. STATE OF PUNJAB
Gupta, Ms. Uttara Babbar, Ashok Mathur, Shankar Divate, Advs. for A
the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Delay condoned. Leave granted.
2. These appeals have been filed challenging the judgment dated B
03.03.2017 of Division Bench of the High Court of Punjab and Haryana
at Chandigarh allowing the Writ Petition No.1056 of 2016 and other
connected writ petitions.
3. The questions which have arisen for determination in this batch
of appeals relate to inter se seniority dispute between three streams of C
Punjab Superior Judicial Service, i.e.,
(i) the officers promoted on the basis of merit-cum-seniority under
50% quota (hereinafter referred to as “promotees”);
(ii) the direct recruits under 25% quota (hereinafter referred to as
“direct recruits”); and D
(iii) officers promoted on the basis of limited departmental
competitive examination under 25% quota (as it then existed) (hereinafter
referred to as “out of turn promotees”).
4. The members of Punjab Superior Judicial Service had filed
writ petition in the High court challenging the seniority list dated E
24.12.2007 issued by the High Court determining the inter se seniority of
the members of the Punjab Superior Judicial Service.
5. The judgment of the Division Bench of the High Court has
been questioned by Punjab and Haryana High Court at Chandigarh,
members of Punjab Superior Judicial Service who were direct recruits F
and Superior Judicial Officers who are promotees under 50% quota.
Civil Appeals on behalf of Kanwaljit Singh Bajwa and others and Jitender
Kaur are the appeals filed by direct recruits and other appeals are the
appeals filed by the promotee officers under 50% quota.
6. C.A.Nos.5518-5523 of 2017 filed by the High Court are being G
treated as leading appeals, reference of pleadings of which appeals shall
be sufficient to decide this batch of appeals.
H
100 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Background Facts
7. The Higher Judicial Service of the State of Punjab was governed
by a set of Rules, namely, Punjab Superior Judicial Service Rules, 1963.
Rule 8, as it existed initially, provided that of the total number of cadre-
posts, two-third shall be manned by promotee officers and one-third by
B direct recruits.
8. Rule 12 dealt with seniority which provided that the seniority,
inter se, of the substantive members of the Service, whether direct recruits
or promotee officers, shall be determined with reference to the respective
dates of their confirmation. On 31.12.1976 Rule 12 was amended
C providing that seniority, inter se, of the members of the Service, shall be
determined by the length of continuous service on a post in the Service
irrespective of the date of confirmation.
9. On 28.01.1991, Rule 8(2) was amended providing that of the
total number of cadre posts, three-fourth shall be manned by promotee
D Officers and one-fourth by direct recruits.
10. This Court in All India Judges’ Association and others vs.
Union of India and others, 2002 (4) SCC 247, on 21.03.2002, after
considering Justice Shetty Commission’s report had issued various
directions regarding recruitment to the Higher Judicial Service in the
E cadre of District Judges. The directions were issued by this Court
directing that recruitment to the Higher Judicial Service i.e. the cadre of
District Judges shall be from three streams i.e.:
“(1)(a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cum-seniority
F and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division)
having not less than five years qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment
G from amongst the eligible advocates on the basis of the written
and viva voce test conducted by respective High Courts. “
11. This Court further directed that appropriate rules shall be framed
by the High Courts as early as possible in compliance of the aforesaid
directions. The Punjab Superior Judicial Service (First Amendment) Rules,
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 101
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
2004 were notified on 15.01.2004 in compliance of judgment of this Court A
in All India Judges’ Association case (supra). It appears that
amendment made in Rules on 15.01.2004 did not fully serve the purpose
nor fully complied with this Court’s directions made in All India Judges’
Association(supra), hence, a new set of rules was framed, namely, the
Punjab Superior Judicial Service Rules, 2007 which were published in
B
the Gazette on 03.09.2007. The cadre strength of Punjab Superior Judicial
Service before 2007 comprised of 88 posts. The High Court on
14.10.2004 had made 10 promotions as per unamended Rules on 10
vacancies which were existing since prior to amendment of Rules on
15.01.2004. On 31.08.2007, total cadre strength was 89, which was
increased to 107 as on 11.10.2007. The process for recruitment of direct C
recruits under Rule 7(3)(c) of Rules, 2007 was initiated on 02.02.2008
with the publication of advertisement. The promotions under 50% quota
on the basis of merit-cum-seniority was affected on 18.02.2008. The
competitive test for limited departmental competitive examination was
held on 18.05.2008 for which process was initiated on 23.04.2008 by
D
issuance of letter via e-mail. Full Court on 25.07.2008 approved the
recommendations both for direct recruitment and out of turn promotion,
by two separate letters i.e. letter No.628 dated 29.07.2008 the
recommendation of direct recruitment and by letter No.629 dated
29.07.2008 recommendation for out of turn promotion were sent to the
Government. The appointment letters in reference to limited competitive E
examination were received earlier than those of direct recruits. On
14.08.2008, Governor of Punjab issued Office Order whereby eight
Officers were promoted under out of turn quota, posting with regard to
whom was issued on 22.10.2008. The Governor of Punjab had issued
letter for direct recruits on 28.11.2008 with regard to whom posting order
F
dated 08.12.2008 was issued. Fifteen Officers were promoted under
50% quota, eight Officers were promoted under out of turn promotion
quota 25%. Twelve direct recruits were appointed vide order dated
08.12.2008. The process of recruitment of all the three streams was
thus completed in the same year and Officers of the three streams joined
their respective posts in the year 2008 itself although on different dates. G
The promotees got joining first followed by out of turn promotees and
lastly by direct recruits. This Court in All India Judges Association
and Ors. vs. Union of India and Ors., 2010 (15) SCC 170, reduced
the out of turn promotion quota from 25% to 10% which was to take
effect from 01.01.2011. The High Court initiated the process of fixation
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102 SUPREME COURT REPORTS [2018] 13 S.C.R.
A of inter se seniority of the officers of two streams in the year 2014. A
tentative seniority list was prepared and circulated by the Registrar of
the High Court on 25.09.2014 to the members of Superior Judicial Service.
Various objections to the list were filed including the objections by direct
recruits as well as officers promoted under the out of turn quota. The
Judges’ Committee submitted a report after considering the objections
B
recommending that tentative seniority list determined does not require
any modification or alteration and the same may be finalised. The report
of the Committee was accepted by Full Court on 22.12.2015. A
notification dated 24.12.2015 was issued publishing the inter se seniority
of the members of Punjab Superior Judicial Service, promoted, appointed,
C absorbed in the year 2008. From serial Nos.1 to 14 in the list were the
promotee Officers, from serial Nos.15 and 16 were direct recruits, from
serial Nos.17 to 24 were promotee officers through limited departmental
examination and from serial Nos.25 to 35 were direct recruits.
12. Writ Petition No.1056 of 2016, was filed by Kanwaljit Singh
D Bajwa and two others praying for following reliefs:
i) To issue an appropriate writ, order or direction especially a writ
in the nature of certiorari for quashing the impugned Seniority
List dated 24.12.2015 (Annexure P-1) issued by respondent No.2;
ii) To issue a writ of Mandamus or any other suitable writ, order
E or direction, directing the respondent No.1 and 2 to redraw and
reframe seniority list by showing the petitioners over and above
the respondent Nos.3 to 5;
iii) To say the operation of the impugned seniority list 24.12.2015(P-
1) and stay the further promotion of the respondents in furtherance
F of the impugned seniority list;
iv) To any other writ, order or direction which this Hon’ble Court
deem fit and proper keeping in view the peculiar facts and
circumstances of the present case, in the interest of justice;
v) To dispense with the issuance of advance notices to the
G
respondents;
vi) Exempt the petitioner from filing the certified & typed copies
for the Annexures;
vii) Award costs of the writ petition in favour of the petitioner and
H against the respondents.”
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 103
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
13. Writ Petition No.1209 of 2016 was filed by Jatinder Kaur, A
direct recruit, challenging the seniority list dated 24.12.2015. Similarly
Writ Petition No.1057 of 2016 was filed by Jatinder Pal Singh Khurmi
and others challenging the seniority list. Writ Petition No.2335 of 2016
was filed by Virinder Aggarwal & another, who were out of turn
promotees. They also challenged the seniority list dated 24.12.2015. Their
B
prayers in the writ petition were to the following effect:
“i) Issue an appropriate writ, order or direction in the nature
of certiorari quashing the Tentative Seniority List dated 25.09.2014
(AnnexureP-1), the Report dated 11.08.2015 (Annexure P-4) and
the decision of the Full Court dated 22.12.2015 (Annexure P-5)
and consequently directing the official respondents to frame a C
fresh seniority list of the Officers belonging to the Punjab Superior
Judicial Service having been appointed in the year 2008 in
accordance with law and specially by implementing the roster
and for the grant of all consequential benefits flowing therefrom
viz. continuity of service, antedated promotions, arrears of pay, D
interest thereon etc.;
ii) issue any other appropriate writ, order or direction, which this
Hon’ble Court may deem fit and proper in the peculiar facts and
circumstances of the case;
iii) exempt the petitioners from service of the advance notices E
upon the respondents;
iv) exempting the petitioners from filing the certified copies of the
annexures;
v) costs of the petition be awarded to the petitioner.” F
14. Another Writ Petition No.1983 of 2016 was filed by Munish
Singal and two others who were direct recruits challenging seniority list
dated 24.12.2015. In the writ petitions affected parties were impleaded.
The High Court through Registrar filed written statement in Writ Petition
No.1056 of 2016. Promotees also filed their written statement in Writ
G
Petition No.1056 of 2016. The Division Bench heard the parties. All the
writ petitions were decided by a common judgment. The Division Bench
of the High Court in its judgment had noticed the submission of the
parties, the report of the Committee. In paragraph 102 of the judgment
the High Court has observed that the Committee had framed eight issues.
H
104 SUPREME COURT REPORTS [2018] 13 S.C.R.
A The eight issues framed by the Committee as noticed in paragraph 102
are as follows:
“(1) Whether the promotions dated 19.02.2008 made under Rule
7(3)(a) are liable to be termed as irregular or ‘ad-hoc’, and if so,
to what effect ?
B (2) Whether the posts meant for the ‘out-of-turn promotion’ under
Rule 7(3)(b) which remained unfilled as no competitive
examination took place from the year 2004 to 2008, can be included
in ‘promotion quota’ under Rule 7(3)(a), and if not, to which quota
such posts shall stand diverted ?
C (3) Whether promotions made on 19.2.2008 under Rule 7(3)(a)
were in excess to the ‘promotion quota’, and if so, what is the
effect on seniority of such excess promotions?
(4) Whether promoted officers irrespective of Rule 7(3)(a) or (b)
are entitled to the ‘weightage’ of their service rendered in PCS
D (Judicial Branch) towards seniority in Superior Judicial Service in
view of second proviso to Rule 23 of 2007 Rules ?
(5) Whether the direct recruits under Rule 7(3)(c) could be assigned
seniority from the date their names were recommended by the
High Court fro appointment ?
E
(6) Whether officers absorbed from Fast Track Courts are liable
to be treated as ‘ex gratia appointees’, and if so, what is the effect
in law and what would be their ‘deemed date of appointment’?
(7) Whether Roster (Appendix ‘B’) can be read into and applied
to the Rule of seniority ?
F
(8) Whether Mr. Arunvir Vashista is entitled to be absorbed as
ADJ w.e.f. 24.6.2008 or he be placed at Sr.No.1 amongst the
out-of-turn promotees in view of para 146(13) of the judgment in
Brij Mohan Lal-II ?”
G 15. The Division Bench further noticed that in the writ petition
arguments were addressed relating to Issue Nos.1,2,3,5 and 7. The High
Court held that promotees were in excess, hence, promotions made shall
be treated in excess of quota and they shall take seniority on the date
post is available in their quota. The High Court further held that the date
of recommendation of direct recruits cannot be treated the date for the
H purpose of seniority. On applicability of roster in determination of seniority,
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 105
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
the High Court categorically held that roster shall be applicable in A
determining the seniority as per Rules, 2007. The vacancies under Rule
7(1)(b) shall shift to Rule 7(1)(a) only with effect from 01.01.2011. The
writ petitions were allowed and operative portion of judgment is contained
in paragraph 208 which is to the following effect:
“208. For the reasons mentioned above, the writ petitions are B
allowed. The impugned seniority list dated 24.12.2015 is set aside.
It is held that:
(i) promotion of officers under Rule 7(3)(a) [Regular promotion]
of the 2007 Punjab Rules is held to be beyond quota, hence, ad
hoc. They will not be entitled to get benefit of that service for C
the purpose of seniority;
(ii) direct recruits shall not be entitled to be considered as
members of the cadre from the date of their recommendation
by the High Court to the State, for appointment;
(iii) as a consequence, the officers promoted under Rule 7(3)(a) D
of the 2007 Punjab Rules shall be placed at the bottom of the
seniority after the direct recruits.
The seniority list be re-cast accordingly.”
16. Aggrieved by the judgment of the Division Bench of the High
E
Court, the High Court has filed Civil Appeal Nos.5518-23 of 2017.
17. Civil Appeals of Kanwaljit Singh Bajwa and others and Civil
Appeal of Jatinder Kaur, two Civil Appeals by direct recruits, other Civil
Appeals have been filed by promotee Officers whose promotions were
treated to be ad hoc and are directed to be placed at the bottom of the
F
seniority. Out of turn promotees had not challenged the judgment, since,
the judgment of the High court was substantially in their favour.
SUBMISSIONS
18. Shri Raju Ramachandran and Shri Ajit Sinha, learned senior
counsel have appeared for the High Court. Shri Dushyant Dave and G
Shri K.V. Viswanathan, learned senior counsel have appeared for
promotees. Shri P.S. Patwalia, learned senior counsel, has appeared for
out of turn promotees. Shri Nidhesh Gupta, learned senior counsel has
appeared for direct recruits. In addition, we have also heard several
counsel in this batch of appeals appearing for different parties.
H
106 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 19. Shri Raju Ramachandran, learned senior counsel appearing
for the High Court submits that seniority list prepared by the High Court
pursuant to the acceptance of Judges’ Committee Report by Full Court
was in accordance with Rules, 2007 and promotees had first joined the
post and when the promotees joined post of District Judge cadre, neither
direct recruits nor out of turn promotees were born in the cadre.
B
20. Shri Dushyant Dave, learned senior counsel appearing for
regular promotees submits that they have completed five years of service
in the year 2000 but neither any Rules were framed nor any examination
was held. When the quota is to be followed due to the judgment of this
Court, the promotees cannot be pushed down. No examination was held
C for effecting promotion under Rule 7(3)(b) hence promotees under Rule
7(3)(a) were entitled to have the quota meant for Rule 7(3)(b), continuous
officiation in service is the Rule to be followed for determination of
seniority, Full Court and Administrative Committee has taken correct
view of the matter. The officers desirous to compete, ought to have
D approached the High court praying that examination to be held. The
High Court did not hold any suitability test for promotion of the officers
under Rule 7(3)(a) for which promotees cannot be made to suffer. The
challenge to promotion cannot be allowed to be raised at the time of
determination of seniority. The roster provided in Appendix B to the
Rules, 2007 is only for the purpose of recruitment and has no application
E for determination of seniority. Had the competitive examination for out
of turn promotees held in February, 2008, promotees would have also
appeared and would have succeeded in the examination. The appointment
having not made in time, quota rule is broken down. The promotees
having been promoted on regular basis even if they are in excess of
F quota, their services have to be considered, the appointment of promotees
is not an ad hoc appointment, hence, entire service rendered by promotees
is to be reckoned for seniority.
21. Shri K.V. Viswanathan submits that assumption that promotees
are in excess of their quota is not correct. Rules, 2004 and roster
G introduced by Rules, 2007 has to be prospective. Computation has to be
on 43 vacancies which were existing vacancies and not cadre strength
of 107. In accordance with 43 vacancies the quota for promotees will be
22, out of turn promotees will be 10 and direct recruits will be 11. The
roster has no application for determination for seniority. Assuming that
Appendix B applies, it is for quota and since examination has not been
H held in time the quota has broken down.
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 107
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
22. Shri P.S. Patwalia appearing for out of turn promotees submits A
that whole argument made by the promotees is misconceived. The
diversion of quota under Rule 7(3)(b) to 7(3)(a) shall take place only
when test is held and no suitable candidate is available for appointment
under Rule 7(3)(b). The quota applied to the post in service. The High
Court has wrongly applied the quota to the vacancies. 25% quota was
B
introduced as incentive to improve meritorious officers. On date of
selection, 53 were promotees who were in excess to their quota, 14
were filled by direct recruits and there were no vacancies for the regular
promotees. There being no conscious decision of diversion of quota under
Rule 7(3)(b) to 7(3)(a), no benefit can be claimed by the promotees.
The clubbing of vacancies under Rule 7(3)(a) and 7(3)(b) is not C
permissible. The out of turn promotees have never challenged the merit
promotion.
23. Shri Patwalia submits that roster is not applicable to the
seniority. When the quota is worked out in the cadre strength there is no
vacancy under Rule 7(3)(a) but 15 promotions have been affected. Their D
promotion is not in accordance with law. Whether they would have taken
test or not is realm of conjecture, if we construe Rule 23 of Rules, 2007
and Punjab Civil Services (Conditions of Service) Rules, 1994
harmoniously the seniority has to be on the strength of length of service.
Referring to Haryana Service Rules, Shri Patwalia contends that in
Haryana Service Rules roster has been made as part of seniority whereas E
in Punjab Service Rules it is not so. He submits that the High Court has
made very equitable decision which needs no interference.
24. Shri Nidhesh Gupta appearing for direct recruits submits that
this Court in All India Judges’ Association case (supra) has introduced
roster in seniority for the purposes to minimise inter se dispute of seniority F
in the Higher Judicial Service. The judgment of this Court in All India
Judges’ Association case has to be given effect by the High Court.
Rules, 2007 has to be interpreted in the light of the judgment of this
Court in All India Judges’ Association case, which directions resulted
in Amendment Rules, 2004 and Rules, 2007. Out of turn promotees in G
their writ petitions have prayed for applying the roster for determination
of seniority. The High Court although in the body of judgment held that
roster is applicable in seniority but in operative portion the said conclusion
is not reflected which had rendered the judgment of the High Court
erroneous. The roster having been accepted as applicable for purposes
of seniority, seniority list has to be drawn as per roster. It is submitted H
108 SUPREME COURT REPORTS [2018] 13 S.C.R.
A that process of recruitment initiated on 2nd February, 2008 whereas
promotions and out of turn promotions were held thereafter. It is
submitted that recommendations sent to the Government on the same
day but appointment letter for direct recruits were received later which
will have no effect on the seniority that is the direct recruits which have
to be made as per the roster. Rule 7(4) read with Appendix B of Rules,
B
2007 makes it clear that appointment has to be made as per roster which
clearly means that seniority will follow the appointment. In the writ petition
filed before the High Court, out of turn promotees have categorically
taken stand that roster is relevant for the purpose of seniority. The out of
turn promotees cannot be allowed to take contrary stand before this
C Hon’ble Court. The fortuitous circumstances i.e. when letter of
appointments were issued cannot be basis for seniority. Accepting the
contention that length of service should determine the seniority and not
the roster, shall be defeating the All India Judges Association’s judgment
of this Court as well as Rules, 2007. Rules, 2007 specially Rule 7, Rule
12, Rule 23 read with Appendix B have to be construed in a manner so
D
to advance the object of Rules and should be interpreted in a manner so
that no prejudice is caused to any member of Service.
25. Learned counsel for the parties have also referred to various
judgments of this Court which shall be referred to while considering the
submissions in detail.
E DISCUSSION
26. The subordinate judiciary of this Country is back bone of our
judicial system. It is the subordinate judiciary which comes in contact
with the common man in administration of justice. This Court in All
India Judges’ Association (supra) has noticed that the weight on the
F judicial system essentially rests on the subordinate judiciary. In paragraph
27 following was observed:
“27....The subordinate judiciary is the foundation of the edifice
of the judicial system. It is, therefore, imperative, like any other
foundation, that it should become as strong as possible. The weight
G on the judicial system essentially rests on the subordinate
judiciary.....”
27. The enormous responsibility which is shouldered by subordinate
judiciary demands respectable conditions of service and fulfillment of
the due aspirations and expectations of the officers manning the judicial
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 109
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
system. The seniority in service plays a very important and vital role in A
service career of an incumbent. Promotions, different perquisites and
benefits follow seniority. It is, thus, very important that due claims of
seniority of members of Superior Judicial Service are recognised and
implemented by all those on whose shoulder the responsibility of
determination and implementation lies. This Court by its direction in All
B
India Judges’ Association case (supra) has required uniform procedure
for recruitment and rules for determination of seniority with the object
of achieving a uniformity and a certainty to minimise the inter se seniority
dispute as far as possible. Thus, before we proceed to consider the
respective submissions of the parties it is pertinent to refer to the judgment
of this Court in All India Judges’ Association case which is foundation C
of Service Rules, 2007 and throws light on different aspects of higher
judicial service.
28. As noticed above, 1963 Rules contained provisions for filling
the post of Superior Judicial Service only by two methods, by promotion
from Punjab Service and by direct recruitment. Initially the total number D
of cadre posts two-third were manned by promotion and one-third direct
recruits which was changed on 28.1.1991 as three-fourth by promotions
and one-fourth by direct recruits.
29. In different States there were different Rules for recruitment
in Judicial Service. Justice Shetty Commission took up the whole breadth E
and length of Judicial Service, its service conditions, perks and all aspects
of the matter. On 21.03.1996 pursuant to direction of this Court,
Government of India by a Resolution constituted a First Judicial
Commission under the Justice Shetty. Justice Shetty Commission has
submitted its report on 11.11.1999 touching various aspects of Judicial
Service. State and Union Territories were sent report asking their F
response. One of the questions which fell for consideration before the
Justice Shetty Commission was method of recruitment to the Higher
Judicial Service. In All India Judges’ Association case (supra) this
Court held that it is imperative for the Judicial Officer to keep abreast of
knowledge of law. This Court also held that there has to be certain G
minimum standard, objectively adjudged, for officers who are to enter
the Higher Judicial Service as Additional District Judges and District
Judges. In paragraph 27 of the judgment following was laid down:
“27....It is imperative that they keep abreast of knowledge of law
and the latest pronouncements, and it is for this reason that the H
110 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Shetty Commission has recommended the establishment of a
judicial academy which is very necessary. At the same time, we
are of the opinion that there has to be certain minimum standards,
objectively adjudged, for officers who are to enter the higher
judicial service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
B
to the higher judicial service i.e., the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
C officers for promotion to the higher judicial service. Furthermore,
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
caliber of the members of the higher judicial service will further
improve. In order to achieve this, while the ratio of 75 per cent
D
appointment by promotion and 25 per cent by direct recruitment
to the higher judicial service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned : 50 per cent of the total post in the
higher judicial services must be filled by promotion on the basis of
E principle of merit-cum-seniority. For this purpose, the High Courts
should devise and evolve a test in order to ascertain and examine
the legal knowledge of those candidates and to assess their
continued efficiency with adequate knowledge of case law. The
remaining 25 per cent of the posts in the service shall be filled by
promotion strictly on the basis of merit through the limited
F
departmental competitive examination for which the qualifying
service as a Civil Judge (senior division) should be not less than
five years. The High Courts will have to frame a rule in this
regard. ”
30. In paragraph 28 directions were issued by this Court to the
G following effect:
“28. As a result of the aforesaid, to recapitulate, we direct that
recruitment to the High Judicial Service i.e. the cadre of District
Judges will be:
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 111
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
(1)(a) 50 per cent by promotion from amongst the Civil Judges A
(Senior Division) on the basis of principle of merit-cum-seniority
and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (Senior Division)
having not less than five years qualifying service; and B
(c) 25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the written
and viva voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High Courts
as early as possible.” C
31. This Court has noticed the serious discontentment regarding
inter se seniority of members of Higher Judicial Service. This Court
observed that the least amount of litigation in the country is there where
quota system in recruitment exists and where a roster system is followed.
Following was laid down in paragraph 29: D
“29. Experience has shown that there has been a constant
discontentment amongst the members of the higher judicial service
in regard to their seniority in service. For over three decades,
large number of cases have been instituted in order to decide the
relative seniority from the officers recruited from the two different E
sources, namely, promotees and direct recruits. As a result of the
decision today, there will, in a way, be three ways of recruitment
to higher judicial service. The quota for promotion which we have
prescribed is 50 percent by following the principle “merit-cum-
seniority” 25 percent strictly on merit by limited departmental F
competitive examination and 25 per cent by direct recruitment.
Experience has also shown that the least amount of litigation in
the country, where quota system in recruitment exists, in so far as
seniority is concerned, is where a roster system is followed. For
example, there is, as per the rules of the Central Government, a
40-point roster which has been prescribed which deals with the G
quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever,
there has been a litigation amongst the members of the service
after their recruitment as per the quotas, the seniority is fixed by
the roster points and irrespective of the fact as to when a person
H
112 SUPREME COURT REPORTS [2018] 13 S.C.R.
A is recruited. When roster system is followed, there is no question
of any dispute arising. The 40-point roster has been considered
and approved by this Court in R.K. Sabharwal and Ors. v. State
of Punjab[1995]2 SCC 745. One of the methods of avoiding any
litigation and bringing about certainty in this regard is by specifying
quotas in relation to posts and not in relation to the vacancies.
B
This is the basic principle on the basis of which the 40-point roster
works. We direct the High Courts to suitably amend and
promulgate seniority rules on the basis of the roster principle as
approved by this Court in R.K. Sabharwal’s case (supra) as early
as possible. We hope that as a result thereof, there would be no
C further dispute in the fixation of seniority. It is obvious that this
system can only apply prospectively except where under the
relevant rules seniority is to be determined on the basis of quota
and rotational system. The existing relative seniority of the
members of the higher judicial service has to be protected but the
roster has to be evolved for the future. Appropriate rules and
D
methods will be adopted by the High Courts and approved by the
States, wherever necessary by 31-3-2003. “
32. In pursuance of judgment of this Court dated 21.03.2002 Rules,
1963 were amended in 2004 by Punjab Superior Judicial Service (First
Amendment) Rules, 2004 where for existing Rules following Rules have
E been substituted:
“8. Recruitment to Service.- Recruitments to the Service shall be
made in the following manner:-
(a) fifty per cent by promotion from amongst the Civil Judges
F (Senior Division) on the basis of merit-cum-seniority and
passing a suitability test;
(b) twenty five per cent by promotion strictly on the basis of
merit through limited departmental competitive examination of
Civil Judges (Senior Division) having not less than five years
G qualifying service;
(c) twenty five per cent by direct recruitment from amongst
the eligible Advocates by holding a test consisting of written
examination of 200 marks and viva voce test of 50 marks to
be conducted by the High Court”.
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 113
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
33. Punjab Superior Judicial Service Rules, 2007 were framed A
and notified in Gazette on 3rd September, 2007. Rule 7 dealt with method
of appointment which is to the following effect:
“7. Method of appointment. — (1) The appointment to the
Service by promotion shall be made from amongst the members
of the Punjab Civil Service(Judicial Branch), by the Governor on B
the recommendations of the High Court.
(2) The direct appointment to the Service shall be made by the
Governor on the recommendations of the High Court from amongst
the eligible advocates on the basis of the written test and viva-
voce conducted by the High Court. C
(3) Appointment to the Service shall be made in the following
manner :-
(a) fifty per cent by promotion from amongst the Civil Judges
(Senior Division), on the basis of merit-cum-seniority and
passing of a suitability test ; D
(b) twenty-five per cent by promotion on the basis of merit
through departmental competitive examination of Civil Judges
(Senior Division) having not less than five years qualifying
Service as Civil Judge (Senior Division); and
E
(c) twenty-five per cent of the posts shall be filled by direct
appointment from amongst the eligible advocates on the basis
of the written test and viva-voce, as conducted by the High
Court.
Explanation. — For the purposes of clauses (a) and (b), it is
F
clarified that the qualifying service for promotion should be either
on the post of Civil Judge(Senior Division) or Chief Judicial
Magistrate or Additional Civil Judge(Senior Division) separately
or by clubbing the service on any of the said posts.
(4) These posts shall be filled in accordance with the Roster
attached as Appendix-B.” G
34. Rule 12 dealt with seniority in the following manner:
“12.Seniority.—(1)The original seniority of the promotee
officers promoted from amongst the members of the Punjab Civil
Services (Judicial Branch), shall not be disturbed. H
114 SUPREME COURT REPORTS [2018] 13 S.C.R.
A (2) The inter se seniority of the out-of-turn promoted officers
shall be in the order of merit as is determined by the High Court.
(3) The inter se seniority of the direct appointees shall be on the
basis of merit as is determined by the High Court :
Provided further that an officer, who is promoted on ad hoc basis
B on a vacant post, belonging to the out-of-turn promotee officers
or direct appointees, as the case may be, shall not have any right
on the said post and such officer shall not be allowed to claim
addition of the period of such ad hoc service towards the Service
for the purpose of seniority.”
C 35. Rule 23 dealt with application of the Punjab Civil Services
(General and Common Conditions of Service) Rules, 1994 in respect of
the matters, which are not specifically provided in these rules. Rule 23 is
as follows:
“23. Application of the Punjab Civil Services (General and Common
D Conditions of Service Rules, 1994. — (1) In respect of the matters,
which are not specifically provided in these rules, the members of
the Service shall be governed by the Punjab Civil Services (General
and Common Conditions of Service) Rules, 1994, as amended
from time to time:
E Provided that the said rules of 1994 shall not affect the provisions
as contained in rules 5, 7, 12, 13, 19, 20 and 21 of these rules :
Provided further that the conditions of service as determined by
the National Judicial Pay Commission shall have an over riding
effect.
F
(2) The Punjab Civil Services (General and Commons Conditions
of Service) Rules, 1994, at present, in force are contained in
Appendix ‘E’.”
36. Appendix ‘B’ provided for roster as referred to in Rules, 2007.
G 37. As noticed above in the present matter recruitments for all the
three streams as enumerated in Rule 7(3)(a), (b) and (c) were completed
in 2008 and all incumbent also joined their post in 2008. The dispute is
regarding inter se seniority of above three streams. From the submissions
of learned counsel for the parties and pleadings on record following are
main issues which have arisen for consideration in this batch of appeals:
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 115
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
(1) Whether promotees promoted under Rule 7(3)(a), 15 in A
numbers who were promoted and joined their post in February,
2008 were: (a) in excess to their quota, (b) their appointment has
to be treated as ad hoc appointment, (c) they have to be placed at
the bottom of seniority.
(2) Whether appointment to members of Superior Judicial B
Service belonging to all three streams have to be made on the
basis of roster as per Rule 7(4) read with Appendix B of the
Rules, 2007.
(3) Whether for determination of inter se seniority belonging
to all the three streams has to be based on the basis of roster in C
pursuance of Rule 7 read with Appendix B.
(4) How the inter se seniority of Fast Track Judges is to be
determined who were earlier working as Fast Track Judges and
have been absorbed and taken in regular cadre in different stream
under Rule 7(3)(a), (b) and (c). D
(5) Reliefs, if any.
Issue No.1:
Whether promotees are in excess of their quota?
38. The High Court in its impugned judgment has noticed the cadre E
strength of Punjab Superior Judicial Service as 107 on 10.11.2007. The
Promotion quota under Rule 7(3)(a) was determined as 53 and actual
working having been found as 58. High Court noticed that 05 officers
were working in excess. 25 per cent quota under Rule 7(3)(b) was
determined as 27, which was found to be vacant. Direct recruits were
F
also determined as 21 excluding the officers in position. 14 posts were
advertised for direct recruitment. One of the issues raised is as to whether
for determination of the quota cadre strength has to be looked into or
quota has to be determined on the basis of vacancies by bifurcating
vacancies as per respective quota. The issue is no more res integra. In
All India Judges Case (supra), this Court in Para 29 has held “One of G
the methods of avoiding any litigation and bringing about certainty in this
regard is by specifying quotas in relation to posts and not in relation to
the vacancies”. A Three Judge Bench of this Court in Srikant Roy and
Others Vs. State of Jharkhand and Others, (2017) 1 SCC 457
while determining question of number of vacancies in respect of limited
H
116 SUPREME COURT REPORTS [2018] 13 S.C.R.
A competitive examination of Jharkhand as in Jharkhand Superior Judicial
Service has held that “cadre strength is always measured by the number
of posts comprising the cadre and the percentage of quota has to be
worked out in relation to number of posts which form the cadre and has
no relevance to the vacancy that would occur. Following was laid down
in Paragraph 24:-
B
“24. The High Court has overlooked the distinction between “post”
and “vacancy”. If the requisite posts were already exhausted by
the direct recruits against the earmarked quota for direct
recruitment, merely because some vacancies occur, it would not
be open to the aspiring candidates against the direct recruit quota
C to challenge the selection process commenced for the in-service
judicial officers by promotion through limited competitive
examination. The cadre strength is always measured by the
number of posts comprising the cadre. The right to be considered
for appointment can only be claimed in respect of a post in the
D given cadre. The percentage of quota has to be worked out in
relation to number of posts which form the cadre and has no
relevance to the vacancy that would occur
…………………………….”
39. The High Court Committee determined the vacancies for all
E the three streams for 2008 recruitment on the basis of cadre strength of
107. Working strength before 2008 selection was 58 promotees, 0 out
of turn promotion and 6 direct recruits. Thus, 64 officers were in position
and there were 43 vacancies for 2008 recruitment. High Court determined
vacancies for Rule 7(3)(a) as 15, for Rule 7(3)(b) as 8 and 14 for direct
recruitment. In the impugned judgment, the High Court has taken a
F view that since 50 per cent of 107 cadre strength comes as 53, 5 promotee
officers were in excess, since working strength before 2008 selection
was 58. The above calculation has been arrived by determining 50 per
cent of 107. Whether any fallacy is committed by the High Court in
above determination is to be examined. On face of it, the determination
G on mathematical calculation, i.e. taking 50 per cent of cadre strength for
promotees come to 53. Thus, whether 5 officers, who were found in
excess were in excess of their quota is one part of question and the
other part of question would be that what number of vacancies have to
be earmarked for out of turn promotees under Rule 7(3)(b). We have
already noticed that from 28.01.1991, Rule 8 was amended providing
H for three-fourth of the cadre to be filled up by promotee officers and
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 117
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
one-fourth by direct recruits. The above position continues till Rules A
were amended in 2004 under the direction of this court in All India
Judges case (supra).
40. For the first time by amending Punjab Superior Judicial Service
Rules on 15.01.2004, the promotion quota under Rule 8 was fixed as 50
per cent, 25 per cent for limited departmental competitive examination B
and as far as for direct recruits, earlier 25 per cent was maintained.
Thus, the issue was only with regard to quota for promotion on the basis
of merit-cum-seniority and of out of turn promotees. This Court in All
India Judges case (supra) in Para 29 has clearly directed that the
system which was directed to be put in place by this Court vide Paras
27, 28 and 29 was to apply prospectively. This Court had directed that C
appropriate rules and methods will be adopted by the High Courts and
approved by the States, wherever necessary by 31st March, 2003. Upto
2004, the quota for promotion on the basis of merit-cum-seniority was
75 per cent, the cadre strength as on 13.09.2007 was 89, which was
increased on 10.11.2007 as 107. After the amendment of Rules on D
15.01.2004, promotion of 10 officers were made. It is mentioned in the
Civil Appeal of the High Court that cadre strength of Punjab Superior
Judicial Service before 2004 was 88. Thus, in the year 2004, when the
cadre strength was 88, 75 per cent posts were to be manned by promotees
under merit-cum-seniority, i.e. 66 were to be manned by promotee
officers. The judgment of this Court in All India Judges case (supra) E
being prospective, the ratio of officers as existing before unamended
rules can not be adversely affected. A promotee before the amendment
of Rules, 2004, who was well within their quota, suddenly cannot go out
of their quota and become an excess merely on the strength of amendment
of Rules, which are prospective in nature. For determining the quota, F
the cadre strength, which existed prior to amended rules and subsequent
to the amended rules have to be treated differently. Promotees quota,
which was 75 per cent prior to 2004 Rules makes 66 posts in their quota
as before amendment dated 15.01.2004, when the cadre strength has
been increased from 89 to 107, 18 posts have to be further added to the
cadre. This increase having been made after the amendment of the G
Rules dated 15.01.2004, on this cadre strength, the Rules as amended
will be applied for bifurcation of quota. On 18 newly created posts, 50
percent comes to 9, for out of turn promotees 4.5 and for direct recruits
4.5. Thus promotee officers on or after the increase of the cadre could
have been 66+9 i.e. 75. In the appeal filed by the High Court, it is also H
118 SUPREME COURT REPORTS [2018] 13 S.C.R.
A indicated that 10 promotees were affected in October, 2004 under 50
per cent quota of merit-cum-seniority. The rules providing 25 per cent
quota for out of turn promotion being in place, at-least few vacancies
ought to have been given to the out of turn promotees. There is no
details of any further promotion or appointment made after 2004 to 2008.
The out of turn promotion quota having been culled out only as per the
B
judgment of this Court in All India Judges case (supra), which was to
be required in the Rules by the State, the said quota will come into
existence only prospectively. An out of turn promotee cannot claim that
they should be given 25 per cent posts of the cadre strength right from
day one. It is true that quota has to be determined on the basis of cadre
C strength but determination of the cadre strength has to be made taking
into consideration that rules amended w.e.f. 15.01.2004 were prospective
in nature and cannot impair or affect any right, which accrued to the
member of judicial service prior to the amendment of the Rules.
41. We, thus, do not find any patent error in the calculation of the
D vacancy by the High court in the administrative side and consequently
the recruitment made from three different streams was well within such
determination and cannot be faulted. The promotion of officers under
Rule 7(3)(a) was in accordance with the rules and there is no question
of treating the promotion to be adhoc promotion nor they can be pushed
to the bottom of seniority. The new set of rules, the new scheme of
E recruitment, new rules of determination of seniority as brought in place
by 2007 Rules, its implementation has to be done with care so as not to
defeat any existing right. Mechanical application of the rules, which
may result to unjust result has to be avoided to advance the scheme of
the new rules and the object which were delineated by this Court in All
F India Judges case (supra). While allocating posts to be filled by
different streams, cadre strength, officers of particular stream in position,
quota of each stream has to be kept in mind. The vacancies existing for
recruitment in particular year has not to be mechanically divided at the
ratio of 50, 25 and 25 per cent.
G Issue Nos. 2 and 3:
Whether appointment to members of Superior Judicial
Service belonging to all three streams have to be made on
the basis of roster as per Rule 7(4) read with Appendix B
of the Rules, 2007? and
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 119
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
Whether for determination of inter se seniority belonging A
to all the three streams has to be based on the basis of
roster in pursuance of Rule 7 read with Appendix B?
42. One of the major area of difference in submissions advanced
by learned counsel appearing for the promotees, direct recruits and out
of turn promotees is regarding applicability of roster for determination of B
seniority. In so far the stand of out of turn promotees is concerned,
although before the High Court in its pleadings and submissions, out of
turn promotees prayed for implementation of roster in seniority but in
this Court they have taken a somersault and are now contending that the
roster is not applicable in seniority.
C
43. Rota and quota in service jurisprudence is well known concept,
which finds reflected in large number of service rules of different
services. Quota between promotees and directs were throughout present
in 1963 Rules, which has been further amplified in 2007 Rules. This
Court in All India Judges case (supra) has highlighted the importance
and the usefulness of roster system. In Para 29, it was held: D
“Experience has also shown that the least amount of litigation in
the country, where quota system in recruitment exists, insofar as
seniority is concerned, is where a roster system is followed”. For
example, there is, as per the rules of the Central Government, a
40-point roster which has been prescribed which deals with the E
quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever,
there has been a litigation amongst the members of the service
after their recruitment as per the quotas, the seniority is fixed by
the roster points and irrespective of the fact as to when a person
is recruited. When roster system is followed, there is no question F
of any dispute arising. The 40-point roster has been considered
and approved by this Court in R.K. Sabharwal v. State of Punjab,
(1995) 2 SCC 745.”
44. The Rules, 2007 has been amended by direction of this Court
in in All India Judges case (supra). Now, coming back to the Rules, G
2007, there are two rules, which need to be interpreted to find out real
purpose and intent of 2007 Rules. Rule 7 as noted above provides for
method of recruitment, sub-rule(3) provides for appointment to the service
shall be made 50 per cent by promotion on the basis of merit-cum-seniority,
25 per cent by promotion on the basis of merit through departmental
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120 SUPREME COURT REPORTS [2018] 13 S.C.R.
A competitive examination of Civil Judges (Senior Division) and 25 percent
of posts shall be filled by direct recruitment. Sub-clause (4), which is
relevant provides “these posts shall be filled in accordance with the Roster
attached as Appendix-B”. Part of Appendix-B, which is relevant for
the present case is as follows (only part is quoted):-
B “APPENDIX ‘B’
[See sub-rule(4) of rule 7]
ROSTER
ROSTER INDICATING THE MODE OF RECRUITMENT
C
Serial Source Rule
No.
1. Officer Promoted on the basis of 7(3)(a)
seniority-cum-suitability
2. Officer promoted on the basis of 7(3)(a)
D seniority-cum-suitability
3. Direct Recruit from the Bar 7(3)(c)
4. Officer promoted through limited 7(3)(b)
competitive examination
5. Officer promoted on the basis of 7(3)(a)
E seniority-cum-suitability
Xxxxxxxxxxxxxxx
89. Officer promoted on the basis of 7(3)(a)
seniority-cum-suitability.
45. Sub-rule (4) uses the phrase “the posts shall be filled”. The
F word “filled” means appointment on the post. The submission of the
learned counsel for the promotees is that sub-rule(4) read with Appendix-
B at best can be read that roster is to be followed in recruitment only
and not for determination of seniority. When an order for filling up of a
post is provided in Appendix-B, the purpose and object is that officers of
G different streams should hold the posts in the sequence, which is provided
in Appendix-B. The recruitment to the different streams consists of
different and separate processes, few processes may take lesser time
like effecting promotion under Rule 7(3)(a) whereas few processes like
direct recruitment under 7(3)(c) takes greater time. For direct recruits,
which is an All India Competitive Written Test, large number of candidates
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 121
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
participate and evaluation of answer sheets and holding viva-voce takes A
sufficient time. The object as incapsulated by this Court in All India
Judges case (supra) in carrying recruitment by roster was with the
object of eliminating disputes pertaining to determination of seniority.
The Rule 7(4) and Appendix-B has to be read in a manner so as to
advance the object of the Rules. When this court directed for adopting
B
roster system for determining seniority, Rules, 2007 cannot be interpreted
in a manner which may violate the direction of this Court. Article 141 of
the Constitution provides that law declared by the Supreme Court shall
be binding on all courts and authorities. In this reference, it is useful to
refer to a Three Judge Bench judgment of this Court in O.P. Singla and
Another Vs. Union of India and Others, (1984) 4 SCC 450, this C
Court had occasion to consider the issue of seniority and promotion in
context of temporary promotee, direct recruits quota rules in respect of
Delhi Higher Judicial Service Rules, 1970. This Court in Para 17 held
that when a Rule or Section is part of integral scheme, it should not be
considered or construed in isolation. In paragraph 17, following has
D
been held:-
“17……………However, it is well recognised that, when a rule
or a section is a part of an integral scheme, it should not be
considered or construed in isolation. One must have regard to the
scheme of the fasciculus of the relevant rules or sections in order
to determine the true meaning of any one or more of them. An E
isolated consideration of a provision leads to the risk of some
other inter-related provision becoming otiose or devoid of meaning.
That makes it necessary to call attention to the very next rule,
namely, Rule 8. It provides by clause 2 that:
“The seniority of direct recruits vis-a-vis promotees shall be F
determined in the order of rotation of vacancies between the
direct recruits and promotees based on the quotas of
vacancies reserved for both categories by Rule 7 provided
that the first available vacancy will be filled by a direct recruit
and the next two vacancies by promotees and so on.” G
(emphasis supplied)
This provision leaves no doubt that the overall scheme of the rules
and the true intendment of the proviso to Rule 7 is that one-third
of the substantive posts in the Service must be reserved for direct
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122 SUPREME COURT REPORTS [2018] 13 S.C.R.
A recruits. Otherwise, there would neither be any occasion nor any
justification for rotating vacancies between direct recruits and
promotees. Rule 8(2), which deals with fixation of seniority
amongst the members of the Service, provides, as it were, a key
to the interpretation of the proviso to Rule 7 by saying that the
proviso prescribes “quotas” and reserves vacancies for both
B
categories. The language of the proviso to Rule 7 is certainly not
felicitous and is unconventional if its intention was to prescribe a
quota for direct recruits. But the proviso, as I have stated earlier,
must be read along with Rule 8(2) since the two provisions are
interrelated. Their combined reading yields but one result, that the
C proviso prescribes a quota of one-third for direct recruits.”
46. One submission, which was pressed by learned counsel for
the promotees as well as by learned counsel appearing for the out of
turn promotees was that in 2007 itself, Judicial Service Rules have been
framed for Haryana namely, Haryana Superior Judicial Service Rules,
D 2007, in which Rules, it was expressly provided by Rule 10 of the Rules
that inter se seniority of the persons recruited to the service under clause
(a), (b) and (c) of Rule 6 shall take his position in the seniority list as
shown in roster annexed. Rule 10 of the Haryana Rules is as follows:-
“10. Seniority.
E (i)(a) The inter se seniority of the members of the Haryana Civil
Service (Judicial Branch) promoted in the same batch under
rule 6(a) shall be the same as in the Haryana Civil Service
(Judicial Branch).
(b) Inter se seniority of the member of the Haryana Superior
F Judicial Service promoted under rule 6(b) shall be in the
order of merit determined in the selection process.
(c) Inter se seniority of the direct recruits to the Service under
rule 6(c) shall be on the basis of merit determined by the
Selection Committee of the High Court at the time of the
G recruitment.
(d) Inter se seniority position of the officers appointed in the
Service under rule 6 shall be as given in roster annexed.
(ii) A person recruited to the Service under clauses (a), (b) and
(c) of rule 6 shall take his position in the seniority list as shown in
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 123
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
the roster annexed irrespective of the date on which he actually A
joins the Service.
(iii) A promoted officer, who is promoted on an ad hoc basis in the
vacancy/post against a roster point earmarked for an officer
belonging to categories specified in clauses (b) and (c) of rule 6,
shall not have any right to the post. He shall not be entitled to add B
period of his ad hoc service to regular service for the purpose of
seniority:
Provided that the existing rules shall continue to govern the
matters of seniority of the existing members of the Service.”
47. It has been pointed out that both Judicial Service Rules, 2007 C
of Haryana and Punjab Superior Judicial Rules, 2007 were sent by the
High Court in the similar fashion, where Punjab Rules have been published
by the Government by changing the proposed rules pertaining to seniority
without consultation of the High Court. The High Court in its impugned
judgment in Para 181 after noticing the Haryana Rules, 6, 7, 8 and 9 has D
made following observations:-
“Similar rules were recommended by the High Court to the State
of Punjab for notification but changed at its own level without
consultation with High Court.”
48. In the present case, we need not enter into the issue as to E
what was proposed and what changes were made by Government while
notifying the rules. The above observation in the impugned judgment
clearly indicate that Punjab & Haryana High Court has contemplated to
implement the direction of this Court in All India Judges case (supra)
and it was clear to the High Court that the appointment of all the three F
streams as per roster is to also determine the seniority as per the roster.
In any view of the matter, there is nothing in the Rules – Punjab Superior
Judicial Service Rules, 2007, which may indicate that there is any provision
contrary to determination of seniority by roster. Mere fact that said
rules are not explicit or makes it expressly clear that seniority is to be
determined on the basis of roster is not conclusive. The purpose and G
object of the Rule 7 of Rules, 2007 read with Appendix-B is clear that
the roster is to be followed for determination of the seniority. The High
Court in the impugned judgment has considered the issue as to whether
roster is applicable in determination of seniority or not. Issue No. 7 as
was noticed above, which was framed by the Committee and was also
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124 SUPREME COURT REPORTS [2018] 13 S.C.R.
A adjudicated by the High Court was “Whether roster (Appendix-B) can
be read into and applied to the rule of seniority”. After elaborate
discussions, High Court in Para 180 concluded:-
“Hence, this Court is of the opinion that for determination of inter
se seniority of officers recruited from three different sources,
B roster as directed by Hon’ble the Supreme Court shall be applicable.
The same forms part of the Rules as Appendix ‘B’ but mentioning
roster for recruitment, however, shall be applicable even for
determination of seniority.”
49. We endorse the above view of the High Court that roster shall
C be applicable for determination of seniority.
50. At this juncture, one of the submissions, which has been
emphatically pressed by the learned counsel for the promotees is that
for determination of seniority, continuous length of service is
determinative. The direct recruits and out of turn promotees, who were
D not even born in the cadre when promotees were promoted, they have
to take seniority after the promotees. In this reference, it is useful to
refer to a judgment of this Court in Union of India and Others Vs.
N.R. Parmar and Others, (2012) 13 SCC 340, the issue in the said
case was also an issue of determination of seniority between direct
recruits vis-à-vis promotees and quota and rota principles. This Court
E had occasion to consider the office memorandum issued by the
Government dated 22.12.1959. Noticing Para 6 of above office
memorandum following was stated in Para 23 of the judgment:-
“23. The General Principles for determining seniority in the Central
Services are shown to have been laid down in an annexure to an
F Office Memorandum dated 22-12-1959 issued by the Government
of India, Ministry of Home Affairs (hereinafter referred to as
“the OM dated 22-12-1959”). Para 6 of the annexure, referred to
above, laid down the manner of determining inter se seniority
between direct recruits and promotees. Para 6 is being extracted
G hereunder:
“6. Relative seniority of direct recruits and promotees.—
The relative seniority of direct recruits and of promotees shall
be determined according to the rotation of vacancies between
direct recruits and promotees which shall be based on the quotas
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 125
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
of vacancies reserved for direct recruitment and promotion A
respectively in the Department Rules.”
It is apparent from the above extract of the OM dated 22-12-
1959, that the “quota” between promotees and direct recruits was
to be read into the seniority rule. The OM also provided for a
definite rotation of seniority points (“rota”) between promotees B
and direct recruits. The rotation provided for was founded on the
concept of rotation of quotas between promotees and direct
recruits. It is therefore apparent, that under the OM dated 22-12-
1959 inter se seniority between the promotees and direct recruits
was based on the “quota” and “rota” principle. The same has
been meaningfully described as “rotation of quotas” in some of C
these instruments.”
51. There was further office memorandum on 07.02.1986 to take
care of situation where it was decided that in future, while the principle
of rotation of quotas will still be followed for determining the inter-se
seniority of direct recruits and promotees, the present practice of keeping D
vacant slots for being filled up by direct recruits of later years, thereby
giving them unintended seniority over promotees who were already in
position, would be dispensed with. This Court noticed office memorandum
dated 07.02.1986 and observed that “when direct recruits or promotees
become available through later examinations or selections”, it clearly E
mean that the situation contemplated is one where, there has been an
earlier examination or selection, and is then followed by a “later”
examination or selection.
52. In the above context, this court laid down following in Paragraph
31.2 that “it is not necessary, that the direct recruits of a particular F
recruitment year, should join within the recruitment year itself”. It was
held that date of joining would not be a relevant factor for determining
seniority of direct recruits. In paragraph 31.2 and 34.1 following has
been laid down:-
“31.2. It is not necessary, that the direct recruits for vacancies of G
a particular recruitment year, should join within the recruitment
year (during which the vacancies had arisen) itself. As such, the
date of joining would not be a relevant factor for determining
seniority of direct recruits. It would suffice if action has been
initiated for direct recruit vacancies, within the recruitment year
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126 SUPREME COURT REPORTS [2018] 13 S.C.R.
A in which the vacancies had become available. This is so, because
delay in administrative action, it was felt, could not deprive an
individual of his due seniority. As such, initiation of action for
recruitment within the recruitment year would be sufficient to
assign seniority to the appointees concerned in terms of the
“rotation of quotas” principle, so as to arrange them with other
B
appointees (from the alternative source), for vacancies of the same
recruitment year.
34.1. If the process of recruitment has been initiated during the
recruitment year (in which the vacancies have arisen) itself, even
if the examination for the said recruitment is held in a subsequent
C year, and the result is declared in a year later (than the one in
which the examination was held), and the selected candidates
joined in a further later year (than the one in which the result was
declared), the selected candidates will be entitled to be assigned
seniority, with reference to the recruitment year (in which the
D requisition of vacancies was made). The logic and reasoning for
the aforesaid conclusion (expressed in the ON dated 2-2-2000)
is, if the process of direct recruitment is initiated in the recruitment
year itself, the selected candidate(s) cannot be blamed for the
administrative delay, in completing the process of selection.”
E 53. In the present case, process for all the three streams was
completed in the year 2008 and all the officers of three streams had
joined in the same year. The submission that quota rota rule was broken
or seniority will be affected because of joining of one category of officers
earlier cannot be accepted. It is also relevant to notice that purpose of
statutory rules and laying down a procedure for recruitment was to achieve
F the certainty. Officers belonging to different streams have to be confidant
that they shall be recruited under their quota and get seniority as per
their quota and roster. In event, the seniority is to be fixed with date of
joining of particular stream, it will lead to uncertainty and making seniority
depending on administrative authorities, which is neither in the interest
G of service nor serve the cause of justice. We, thus, conclude that roster
is fully applicable for determination of seniority. Officers of different
streams selected in a particular year even though they were allowed to
join the post on different dates shall not affect their inter se seniority,
which is to be decided on the basis of roster.
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 127
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
The position of Fast Track Court Judges including in the A
Select list of all three streams in 2008 recruitment.
54. The promotion order issued by the Government of Punjab on
the recommendations of the High Court promoting fifteen officers under
50% quota under Rule 7(3)(a) also contained six officers who were
working on ad-hoc basis in Fast Track Courts. Similarly, appointment B
order promoting eight judicial officers under quota for out of turn
promotion included one officer Shri Arunvir Vashista, who was working
on ad-hoc basis in Fast Track Court. The tentative seniority list indicates
that two officers namely Parminder Pal Singh (at Sl.No.15) and Sukhdev
Singh (Sl.No.16) were shown as direct recruits having been absorbed
from Fast Track Courts against the quota of direct recruits under Rule C
7(3)(c). Parminder Pal Singh and Sukhdev Singh were recruited as Fast
Track Court Judges directly from the Bar. In the tentative seniority list,
the name of promotee officers who had earlier been working as Fast
Track Court Judge have been shown as per their seniority in lower cadre.
55. The officers, under out of turn promotions quota, whose names D
were mentioned at Serial No.17 to 24 under Rule 7(3)(b) were arranged
according to their merit as disclosed in limited Departmental Competitive
Examination. Two Fast Track Court Judges who were included against
available posts in direct recruit quota were shown above the direct
recruits. In so far inter-se-seniority amongst the promotee officers E
promoted under Rule 7(3)(a) is concerned, there is no issue. All have
been arranged according to their seniority as required by Rule 12(1).
After the circulation of tentative seniority list dated 25.09.2014, objections
were filed by direct recruits questioning the placement of Parminder Pal
Singh and Sukhdev Singh at Serial No.15 and 16 under the direct quota
above other direct recruits. F
56. With regard to Parminder Pal Singh and Sukhdev Singh, it
was stated by direct recruits that their appointment under Rule 7(3)(c)
was not permissible since they were not advocates at the time of selection
of Direct recruits and they were not selected on the basis of the written
test and viva-voice under which all direct recruit candidates were G
subjected. It was submitted that absorption of these officers is an ex
gratia absorption in service and as such they cannot be treated senior to
the direct recruits.
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128 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 57. One of the out of turn promotee namely, Arunvir Vashista had
staked his claim before the committee. It was submitted that he being
seniormost officer among the out of turn selected candidates and although
he was placed at serial No.6 as per his merit but he being the only
officer who already stood promoted as presiding officer of the Fast Track
Court on ad-hoc basis, he was entitled to be absorbed and remained
B
promoted to the Superior Judicial Service. Thus, his appointment on regular
basis will relate back to his appointment in Fast Track Court in the service.
58. With regard to absorption of Fast Track Court Judges, this
Court had elaborately considered the issue in Brij Mohan Lal versus
Union of India and others, (2012) 6 SCC 502. Fast Track Courts
C Judges who were working as direct recruits from the Bar as well as
those who were ad-hoc promotees as Fast Track Court Judges had
staked their claim for being absorbed on regular cadre. After considering
the respective submission, this court in paragraph 207 has issued various
directions. Paragraph 207.9 relates to Fast Track Court Judges who
D were appointed by way of direct appointment, which is to the following
effect: -
“207.9. All the persons who have been appointed by way
of direct recruitment from the Bar as Judges to preside over
FTCs under the FTC Scheme shall be entitled to be appointed
E to the regular cadre of the Higher Judicial Services of the
respective States only in the following manner:
(a) The direct recruits to FTCs who opt for regularization
shall take a written examination to be conducted by the High
Courts of the respective States for determining their suitability
F for absorption in the regular cadre of Additional District
Judges.
(b) Thereafter, they shall be subjected to an interview by a
Selection Committee consisting of the Chief Justice and four
senior most Judges of that High Court.
G (c) There shall be 150 marks for the written examination
and 100 marks for the interview. The qualifying marks shall
be 40% aggregate for general candidates and 35% for SC/
ST/OBC candidates. The examination and interview shall be
held in accordance with the relevant Rules enacted by the
States for direct appointment to Higher Judicial Services.
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 129
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
(d) Each of the appointees shall be entitled to one mark A
per year of service in the FTCs, which shall form part of the
interview marks.
(e) Needless to point out that this examination and interview
should be conducted by the respective High Courts keeping
in mind that all these applicants have put in a number of B
years as FTC Judges and have served the country by
administering justice in accordance with law. The written
examination and interview module, should, thus, be framed
keeping in mind the peculiar facts and circumstances of these
cases.
C
(f) The candidates who qualify the written examination
and obtain consolidated percentage as aforeindicated shall
be appointed to the post of Additional District Judge in the
regular cadre of the State.
(g) If, for any reason, vacancies are not available in the D
regular cadre, we hereby direct the State Governments to
create such additional vacancies as may be necessary
keeping in view the number of candidates selected.
(h) All sitting and/or former FTC Judges who were directly
appointed from the Bar and are desirous of taking the E
examination and interview for regular appointment shall be
given age relaxation. No application shall be rejected on the
ground of age of the applicant being in excess of the
prescribed age.”
59. With regard to candidates from any state who were promoted F
as Fast Track Court Judges from the post of Civil Judge, Senior division,
following direction were issued in paragraph 207.13:
“207.13. The candidates from any State, who were promoted
as FTC Judges from the post of Civil Judge, Senior Division
having requisite experience in service, shall be entitled to be
G
absorbed and remain promoted to the Higher Judicial Services
of that State subject to:
(a) Such promotion, when effected against the 25% quota
for out-of-turn promotion on merit, in accordance with the
judgment of this Court in All India Judges’ Assn. (3)12 , by
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130 SUPREME COURT REPORTS [2018] 13 S.C.R.
A taking and being selected through the requisite examination,
as contemplated for out-of-turn promotion.
(b) If the appointee has the requisite seniority and is
entitled to promotion against 25% quota for promotion by
seniority-cum-merit, he shall be promoted on his own turn to
B the Higher Judicial Services without any written examination.
(c) While considering candidates either under Category
(a) or (b) above, due weightage shall be given to the fact that
they have already put in a number of years in service in the
Higher Judicial Services and, of course, with reference to
C their performance.
(d) All other appointees in this category, in the event of
discontinuation of the FTC Scheme, would revert to their
respective posts in the appropriate cadre.”
60. With regard to the candidates Parminder Pal Singh and Sukhdev
D Singh, Recruitment and Appointment committee has noticed that they
were subjected to a written test and viva-voice for finding their suitability
to be absorbed in the regular Cadre. In paragraph 9 of the report dated
11.08.2015 of Recruitment/Promotion Committee (Superior Judicial
Service) it has noticed that presiding officers of Fast Track Courts for
E being considered in the regular Cadre, they were subjected to undergo
written test examination and viva-voice. Paragraph 9 of the report of
the committee is as follows: -
“9. Hon’ble Selection Committee comprising the Chief Justice
and four senior-most judges in its meeting held on 18.03.2008
F considered the absorption of Presiding Officers of Fast Track
Courts in the regular cadre of Additional District & Sessions
Judges from the quota of Bar in the State in the States of
Punjab and Haryana, respectively. The Officers were
considered on the basis of their performance in (i) written
examination; (ii) viva voice and (iii) ACRs. As per the merit
G list, the names of Parminder Pal Singh and Sukhdev Singh
were recommended for absorption in the regular cadre of
Additional District & Sessions Judge in the State of Punjab.
These recommendations were approved by the Full Court in
its meeting held on 10.04.2008. The Government of Punjab
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 131
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
appointed both the Officers to Punjab Superior Judicial A
Service Order dated 24.06.2008.””
61. The above report was subsequently approved by full court on
the basis of which tentative seniority list was issued. The two officers
Parminder Pal Singh and Sukhdev Singh were appointed to Punjab
Superior Judicial Service by Order dated 24.06.2008. In the tentative B
seniority list, they were placed at serial no.15 and 16 i.e. above the
direct recruits. It is relevant to note that the tentative seniority list was
prepared by the committee on the basis of continuous length of service.
It was probably due to that reason that serial no. 15 and 16, direct recruits
were shown above the out of turn promotees and direct recruits. The
above two officers who were taken on the regular Cadre of Additional C
District Judge, after written test and viva-voice test which is almost the
same procedure which has been subsequently laid down by this Court in
Brij Mohan Lal case dated 19.04.2012(Supra). The above two
officers having been included in direct recruitment quota, they have to
be clubbed along with the direct recruits. We have already held that for D
determining the seniority, the roster is applicable. The objection of direct
recruits that they cannot be included in the quota meant for direct recruits
since they have not undergone the same written test and viva-voice,
which has been undertaken by the direct recruits, thus, cannot be
accepted.
E
62. As per the judgment of this court in Brij Mohan Lal case
(Supra), officers from Bar, advocates working as Fast Track Court
Judges can be taken under the regular Cadre after they have cleared
the written test and viva-voice. The direction of this Court in paragraph
207.9(g) which says that “if for any reason, vacancies are not available
in the regular Cadre, we hereby direct the State Government to create F
such additional vacancies as may be necessary, keeping in view the
number of selected candidates”, indicates that Fast Track Court Judges
had to be taken into regular cadre if vacancies are there. In the present
case, there have been adjustments against two vacancies which were
available, hence, they having been taken in the regular Cadre as a direct G
recruit, has to be accepted. Further, present is not a case where their
selection in the regular cadre as Additional District Judge is under
challenge. Only issue which is raised is regarding their placement in the
seniority list.
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132 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 63. One more aspect in this context needs to be noted. Rule 12(3)
provides that “the inter-se-seniority of the direct appointee shall be on
the basis of merit as is determined by the High Court.” The inter-se-
seniority as contemplated by Rule 12(3) obviously means inter-se-seniority
reflected in the same examination. The two officers from the Fast Track
Court having not taken the same examination, Rule 12(3) is not technically
B
applicable while judging inter-se-seniority of these two officers and other
direct recruits. However, in view of the directions of this Court in Brij
Mohan Lal’s case (Supra) taking these two Fast Track Court officers
from Bar in the regular cadre cannot be held faulty. They having been
working as Additional District Judges in the Fast Track Court and they
C having been appointed in the regular cadre although in the same
recruitment year, their placement above other direct recruits is justified.
However, these two officers will be grouped along with direct recruits
and shall occupy position number 1 and 2 in the direct recruits and others
will follow thereafter.
D 64. Now we come to the claim of Shri Arunvir Vashista Fast
Track Court Judge who was selected by out of turn promotion. Shri
Arunvir Vashista was appointed as Fast Track Court Judge consequent
to promotion of fifteen officers under Rule 7(3)(a). The appointment
and selection committee along with proposing fifteen promotions under
Rule 7(3)(a) has also proposed seven officers to man the Fast Track
E Courts in which Shri Arunvir Vashista was included. Shri Arunvir Vashista
thus occupied the Fast Track Court judge post in the year 2008 itself and
participated in the limited departmental competitive examination and
secured sixth position on merit. Among the out of turn promotees Shri
Arunvir Vashista has been placed at sixth place.
F 65. Shri Arunvir Vashista in his brief written synopsis does not
dispute that seniority is to be fixed by the roster points and irrespective
of the fact, as to when a person is recruited. He rightly submits that
rules are subsidiary and subservient to the law. He has also placed reliance
on order of this Court dated 28.04.2016 passed in W.P.(C) No.1022/
G 1989, All India Judges Association and others versus Union of India and
others. The Order of this court dated 28.04.2016, is to the following
effect: -
“The second prayer of the petitioner is for direction to the
respondents to follow “post based roster” in appointments to
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 133
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
the cadre of District Judges with effect from 31.03.2003. The A
said prayer is again based on the statement of law as
propounded in paragraph 49 of the above referred to decision
rendered in All Indian Judges’ Association and Others
(Supra). While stating as to in what manner the 40-point roster
is to be determined, this Court directed that appropriate Rules
B
and methods should be adopted by the High Courts and
approved by the States wherever necessary by 31.03.2003.
When this application was moved, initially on behalf of the
High Court, learned Standing Counsel took notice and
submitted that in the High Court a Committee has been
constituted which is deliberating on this issue and, therefore, C
he will be able to report to this Court in a week’s time. It is
now pointed out by Mr.Patil, learned senior counsel for the
applicant(s) that the 34 point roster has been drawn by the
High Court based on the cadre strength providing for different
points applicable to the promotes by way of limited competitive
D
examination as well as for direct recruits in the entry level
District/Additional District and Sessions Judge. It is also
brought to our notice that appropriate Rules have also been
drawn by the High Court which has been notified by the State
Government on 16th March, 2004.””
66. The Order of this Court dated 28.04.2006 re-enforces the E
directions given by this Court in All India Judges’ Case dated 21.03.2002.
67. It was contended on behalf of Shri Arunvir Vashista before
the Recruitment and Promotion Committee that although in the merit list
of out of turn promotion, he is at serial No. 6 but he being the only officer
who was working officer as presiding officer of the Fast Track Court on F
ad-hoc basis, he is “entitled to be absorbed and remained promoted to
the post.” There is no denial that Shri Arunvir Vashista has been regularly
promoted under Rule 7(3)(b) and continues his substantive promotion.
When the roster is applicable, the seniority has to be fixed by the roster
point. As per Rule 12(2) the inter-se-seniority of the out of turn promoted G
officers shall be “in the order of merit as is determined by the High
Court”. Thus, seniority position of Shri Arunvir Vashista among the out
of turn promotees has to be in accordance with the merit. His position
among the out of turn promotees has thus rightly been shown as serial
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134 SUPREME COURT REPORTS [2018] 13 S.C.R.
A no.6 with which no infirmity can be found. We thus conclude that all
Fast Track Court judges who were taken into the regular cadre in different
streams have been rightly placed in the seniority list amongst their stream
to which no exception can be taken.
OUR CONCLUSIONS:
B 68. The tentative seniority list was prepared on the basis of
continuous length of service, hence, all promotee officers who had joined
on 27th/28th February, 2008 have been shown at serial no.1 to 14.
Parminder Pal Singh and Sukhdev Singh, Fast Track Court Judges from
Bar who were appointed in regular cadre w.e.f. 01.08.2008 have been
C shown at serial no.15 and 16. From Serial No.17 to 24 were out of turn
promotees in block and thereafter Serial No.25 to 35, direct recruits
were placed in block. The final tentative seniority list has been approved
by the committee after considering the objections. It is reflected in its
report dated 11.08.2015. Full Court approved the report dated 11.08.2015,
hence, final seniority list was issued on 24.12.2015. Final seniority list
D was same as tentative seniority list. The Division Bench of the High
Court deciding the writ petitions challenging the seniority list has held:
i) roster shall be applicable in determination of seniority.
ii) fifteen promotees promoted under Rule 7(3)(a) were in excess
E of their quota.
iii) Promotion of fifteen promotees under Rule 7(3) has to be treated
as ad-hoc promotion and they shall be placed at the bottom of
seniority.
69. The Writ Petitions were allowed by Division Bench. In
F accordance with the judgment of the Division Bench only change in the
seniority list was to displace the promotees from serial no.1 to 14 and to
place it in the seniority list below direct recruits. The division bench
judgment of the High Court is under challenge before us.
70. In view of the foregoing discussion, we come to the following
G conclusions: -
1) Promotion of fifteen officers under Rule 7(3)(a) cannot be
held to be beyond their quota.
2) The promotion of fifteen officers cannot be said to be ad-hoc
H
HON’BLE PUNJAB AND HARYANA HIGH COURT AT 135
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
nor they can be directed to be put at the bottom of the seniority A
list.
3) The High Court even though accepted the principle that roster
is applicable in the seniority but in the operative portion of the
judgment in paragraph 208 did not issue any direction to re-cast
the seniority as per the roster given in the Appendix-B which is an B
apparent error committed by the High Court.
4) Rule 2007 having been brought in place to give effect to the
judgment of this Court in All India Judges association case,
(2002) 4 SCC 247, while interpreting the Rules 2007 the direction
issued by this court have to be kept in mind and rules cannot be C
interpreted in a manner so as to violate the directions issued by
this Court in the above judgment.
5) Rule 7(4) read with Appendix-B has to be read in the light of
direction of this Court in All India’s case and harmonious
construction of the rule clearly indicates that roster which has D
been expressly made applicable for filling the post of all the three
streams shall be applicable while determining the seniority.
Reliefs: -
71. In view of foregoing discussion, the seniority list dated
24.12.2015 is to be set aside. After setting aside the seniority list, two E
courses are open. Firstly, to remit this matter to the High Court again to
re-cast the seniority list as per our direction and secondly, to finalize
seniority list in this judgment itself. We choose to adopt the second course
for two reasons:
a) Already period of three years has elapsed when the tentative F
seniority list was published. Finalisation of seniority as early as
possible is essential and necessary for administration of justice.
b) There is no dispute regarding inter-se-seniority of the promotees
under Rule 7(3)(a) and issue pertaining to inter-se-seniority of out
of turn promotees and direct recruits have already been finalized G
by us. Only exercise which is to be undertaken is to place officers
of three streams in accordance with the roster as indicated in
Appendix-B. After placing the officers of three streams, the
seniority position as per roster comes as follows:
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136 SUPREME COURT REPORTS [2018] 13 S.C.R.
A
S.NO. NAME RULE
1. Shri Keshav Chander Gupta, Addl.D&SJ 7(3)(a)
(Since retired prematurely)
2. Shri Narinder Kumar Gaur, 7(3)(a)
B Addl.D&SJ
(since retired prematurely w.e.f 07.06.2011)
3. Shri Parminder Pal Singh, 7(3)(c)
Addl.D&SJ
4. Shri Virinder Aggarwal, 7(3)(b)
C Addl.D&SJ
5. Shri Kishore Kumar, 7(3)(a)
Addl.D&SJ
6. Shri Paramj it Singh, 7(3)(a)
Addl.D&SJ
D
7. Shri Sukhdev Singh, 7(3)(c)
Addl.D&SJ
8. Ms. Mandeep Pannu, 7(3)(b)
Addl.D&SJ
E 9. Shri Pritam Singh Dhanona, 7(3)(a)
Addl.D&SJ, (Ex.S.M.)
10. Shri Harpal Singh, 7(3)(a)
Addl.D&SJ
11. Shri Munish Singhal, 7(3)(c)
F Addl.D&SJ
12. Shri Ashok Paul Batra, 7(3)(b)
Addl.D&SJ
13. Shri Amrinder Singh Grewal, 7(3)(a)
Addl.D&SJ
G
14. Ms. Harpreet Kaur Randhawa, 7(3)(a)
Addl.D&SJ
15. Ms. Rupinderjit Chahal, 7(3)(c)
Addl.D&SJ
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HON’BLE PUNJAB AND HARYANA HIGH COURT AT 137
CHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]
A
16. Shri Rajinder Agarwal, 7(3)(b)
Addl.D&SJ
17. Ms. Ramesh Kumari, 7(3)(a)
Addl.D&SJ B
18. Shri Jagjit Singh Chohan, 7(3)(a)
Addl.D&SJ (since expired)
19. Shri Kamaljit lamba, 7(3)(c)
Addl.D&SJ
20. Shri Tarsem Mangla, 7(3)(b) C
Addl.D&SJ
21. Shri Nirmal Singh, 7(3)(a)
Addl.D&SJ
(Since retired prematurely)
D
22. Ms. Sunita Kumari, 7(3)(a)
Addl.D&SJ
23. Shri Nirbhow Singh Gill, 7(3)(c)
Addl.D&SJ
24. Shri Arunvir Vashista, 7(3)(b) E
Addl.D&SJ
25. Ms. Asha Condal, 7(3)(a)
Addl.D&SJ
26. Shri Kuldeep Kumar Kareer, 7(3)(a)
Addl.D&SJ F
27. Shri Jatinder Pal Singh Khumi, 7(3)(c)
Addl.D&SJ
28. Shri Jasjit Singh Bhinder, 7(3)(b)
Addl.D&SJ
G
29. Dr. Hemant Gopal, 7(3)(c)
Addl.D&SJ
30. Shri Surinder Singh Sahni, 7(3)(b)
Addl.D&SJ
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138 SUPREME COURT REPORTS [2018] 13 S.C.R.
A
31. Shri Kanwaljit Singh Bajwa, 7(3)(c)
Addl.D&SJ
32. Shri Sumeet Malhotra, 7(3)(c)
Addl.D&SJ
B 33. Shri Arun Gupta, 7(3)(c)
Addl.D&SJ
34. Ms. Jatinder Kaur-II, 7(3)(c)
Addl.D&SJ
35. Shri Mohd. Gulzar, 7(3)(c)
C Addl.D&SJ
72. It is further relevant to note that in view of judgment of this
Court in (2010) 15 SCC 170, All India Judges Association, quota of
25 percent for out of turn promotees has been reduced as 10 percent
w.e.f. 01.01.2011. The present seniority dispute being related to
D recruitment held in 2008, the reduction in quota may not be relevant in
the present case.
73. In view of foregoing conclusions all appeals are allowed in
following manner: -
E 1) The Division Bench judgment of the High Court so far as it
holds that roster is applicable in the determination of seniority of
members of superior judicial service is upheld.
2) The judgment of the Division bench of the High Court holding
that fifteen promotees under Rule 7(3)(a) were beyond the quota
F and shall take position at the bottom of the seniority list is set
aside.
3) The seniority list dated 24.12.2014 is set aside. The list of 35
officers arranged as per Roster as indicated above shall be treated
as final Seniority list of the officers recruited in the year 2008.
G 74. The parties shall bear their own cost.
Kalpana K. Tripathy Appeals allowed.
H
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