Karnataka High Court
N Rudrmuni vs Department Of Law Justice & Human Rights on 27 September, 2013
Equivalent citations: 2014 (1) AKR 529
Author: Dilip B.Bhosale
Bench: Dilip B Bhosale
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
W.P.NOS.41684-41691/2012 (S-PRO) C/W
W.P.NO.28147/2013 (S-RES)
IN W.P.NOS.41684-41691/2012(S-PRO)
BETWEEN
1. N RUDRMUNI
S/O N AIYYANNA
AGED 45 YEARS
DISTRICT & SESSIONS JUDGE
RAMANAGARA DISTRICT
RAMANAGARA
2. SHIVASHANKAR B AMARANNAVAR
S/O BASAPPA AMARANNAVAR
AGED 42 YEARS
DISTRICT & SESSIONS JUDGE
BAGALKOT
3. R J SATHISH SINGH
S/O R J JAYARAM SINGH
AGED 50 YEARS
DISTRICT & SESSIONS JUDGE
GADAG
4. SMT UMA
W/O LATE VENKATESH SHIVAPOR
AGED 48 YEARS
PRL DISTRICT & SESSIONS JUDGE
BELLARY
5. V SRISHANANDA
S/O G VEDAVYASACHAR
2
AGED 46 YEARS
DISTRICT & SESSIONS JUDGE
UTTARA KANNADA DISTRICT
KARWAR
R/AT NO. 691, 6TH MAIN, III CROSS
VIJAY NAGAR, BANGALORE-560040
KARNATAKA
6. HANCHATE SANJEEV KUMAR
S/O VIJAYA KUMAR
AGED ABOUT 40 YEARS
PRL DIST JUDGE
YADGIR
7. SMT S MAHALAXMI N NERALE
W/O B SIDDARAJU
AGED 42 YEARS
PRINCIPAL DISTRICT & SESSIONS JUDGE
SHIMOGA
8. MASTER R K G M M MAHASWAMIJI
S/O R K GANGANNA
AGED 39 YEARS
DISTRICT & SESSIONS JUDGE
CHAMARAJANAGAR ... PETITIONERS
(BY SRI BASAVAPRABHU S PATIL, SR. ADV., FOR SRI BRIJESH
PATIL, ADV.,)
AND
1. DEPARTMENT OF LAW
JUSTICE & HUMAN RIGHTS
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, BANGALORE
THROUGH PRL. SECRETARY
2. DEPARTMENT OF PUBLIC & ADMINISTRATIVE
REFORMS, VIDHANA SOUDHA
BANGALORE
THROUGH SECRETARY
3
3. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BANGALORE
4. B G JATTENNAVAR
AGED 61 YEARS
R/AT NEW MUNICIPAL NO.16
WARD NO.127, 3RD MAIN
MUDALAPALYA, 9TH CROSS
BYRAVESHWARA NAGAR
(PID NO.38.75, 16)
BANGALORE-560072
5. S N KEMPAGOUDAR
AGED 61 YEARS
R/AT POST ATTIKATTI
TALUK BYADGI
DISTRICT HAVERI-581120
6. B C PATTAR
AGED 63 YEARS
R/AT HOUSE NO.38
JANAKIRAM, TEJASWINAGAR
DHARWAD
7. ASHOK S GADAG
AGED ABOUT 59 YEARS
PRL DISTRICT JUDGE
BIJAPUR
8. K SUKANYA
AGED 60 YEARS
R/AT NO 927, 9TH MAIN
BEML LAYOUT, 3RD STAGE
RAJARAJESHWARI NAGARA
BANGALORE-560098
9. B SHIVALINGEGOUDA
AGED ABOUT 62 YEARS
PRL DISTRICT JUDGE
MANDYA
4
10. SHIVANANDA KATTI
AGED 62 YEARS
R/AT C/O M S MAJEGE
HOUSE NO. 8/11/57 (O) KEB ROAD
BIDAR, HOUSE NO.1-4-155/52
JYOTHI COLONY, RAICHUR
PRESENT ADDRESS:
RETD DISTRICT JUDGE
H NO. 9-587/24/109
GANJEEGUDI LAYOUT
NEAR AKKAMAHADEVI TEMPLE
SHAHABAJA ROAD, GULBARGA
11. S R SOMASHEKHARA
AGED 56 YEARS
DISTRICT JUDGE
MADIKERI
12. A R DESHPANDE
AGED 62 YEARS
R/AT C/O SRI P Y NAIK
# 70, BHANDURGALLI
BELGAUM NO.76, I D MAIN
PIPELINE ROAD, RPC LAYOUT
VIJAYANAGAR II STAGE
BANGALORE
13. SUBHASH YALLAPPA IRANNAVAR
AGED 58 YEARS
DISTRICT JUDGE
CHIKKABALLAPUR
14. SANGAPPA HUCHCHAPPA MITTALKOD
AGED 59 YEARS
PRL DISTRICT JUDGE, RAICHUR
15. DATTA SATYAPPA SHINDE
AGED 59 YEARS
PRL DISTRICT JUDGE
KOPPAL
16. B M SINDGI
AGED ABOUT 62 YEARS
5
R/AT PLOT NO.499, S R COLONY
BEHIND DISTRICT COURT COMPLEX
BIJAPUR
17. RAJASHEKHAR MALLESHAPPA SHETTAR
AGED 58 YEARS
JUDGE FAMILY COURT
MANGALORE
18. D VISHWESHWARA BHAT
AGED ABOUT 58 YEARS
I ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
19. C CHANDRAMALLE GOWDA
AGED 58 YEARS
JUDGE FAMILY COURT
DAVANAGERE
20. RAVINDRA M VAIDYA
AGED 59 YEARS
PRESIDING OFFICER
LABOUR COURT, BANGALORE
21. K NINGE GOWDA
AGED ABOUT 58 YEARS
VIII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
22. R CHANDRASHEKAR
AGED 59 YEARS
DISTRICT JUDGE
OOD REGISTRAR ADMINISTRATION
HIGH COURT OF KARNATAKA
BANGALORE
23. SUKHADEV M NAYAK
AGED ABOUT 61 YEARS
R/AT J1-B-103, JUDICIAL BLOCK
NGV, KORAMANAGALA
BANGALORE-560047
6
24. AVIN TIPPANNA HANUMAPPA
AGED ABOUT 58 YEARS
PRESIDING OFFICER
ADDL LABOUR COURT
HUBLI
25. SHANKAR N NAYAK
AGED 62 YEARS
R/AT SANAGULI HOUSE
NEAR LAND LINKS
KONCHADI DEREBAIL
D K MANGALORE
26. SUBHASH T GOGI
AGED 62 YEARS
R/AT NO. 45 (OLD NO.369) KRISHAN
R M V 2ND STAGE
2ND BLOCK, (60 FEET ROAD)
BANGALORE-560094
27. A B WADEYAR
AGED 60 YEARS
R/AT AMOGH BUIDLING
PLOT NO.126, SECTOR NO.13
T V CENTRE, BELGAUM
28. VASANT HANMANTRAO KULKARNI
AGED 59 YEARS
I ADDL DISTRICT & SESSIONS JUDGE
RAICHUR
29. CHANDRAPPA NAGAPPA SHIVAPUJI
AGED 61 YEARS
R./AT 4TH MAIN, 2ND CROSS
GORISHANKARA NAGAR
RANIBENNUR-581115
HAVERI DISTRICT
30. MANAKERI KRISHNA MURTHY PRAHLADA
AGED 58 YEARS
ADDL DISTRICT & SESSIONS JUDGE
CHITRADURGA
7
31. VISHWANATH GURUSHIDDAPPA SAVADKAR
AGED 57 YEARS
PRESIDING OFFICER
INDUSTRIAL TRIBUNAL
MYSORE
32. S RENUKA PRASAD
AGED 57 YEARS
JUDGE, FAST TRACK COURT
MYSORE
33. J S SOMASEKHARA
AGED 59 YEARS
XXX ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
34. A MANJUNATHAPPA @ A MANJUNATH
AGED 58 YEARS
DISRICT JUDGE
OOD MEMBER
KARNATAKA APPELLATE TRIBUNAL
BANGALORE
35. G K SOMANATH
AGED 58 YEARS
XXII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
36. SOMALINGAPPA CHANNAPPA INGALAGI
AGED 61 YEARS
R/AT B-4, 419, GHATAPRABHA BLOCK
NGV, KORAMANGALA
BANGALORE-560040
37. MADAPPA S KANTI
AGED ABOUT 63 YEARS
R/AT NO. 25, RADHESH NILAYA
3RD MAIN, 2ND CROSS
VRISHABHAVATHINAGARA
KAMAKSHIPALYA
BANGALORE-560079
8
38. SHIVAPUTRAPPA YAMANAPPA KUMBAR
LAW OFFICER
REVENUE DEPARTMENT
GOVERNMENT OF KARNATAKA
KARNATAKA
39. VIDYAVATHI S AKKI
AGED ABOUT 58 YEARS
I ADDL JUDGE, FAMILY COURT
BANGALORE
40. M A LOHAR
AGED 62 YEARS
R/AT KOTIGERONI
HANGAL,
HAVERI DISTRICT-581110
KARNATAKA
41. V N RAVINDRA
AGED ABOUT 59 YEARS
PRESIDING OFFICER
LABOUR COURT, MYSORE
42. D R VENKATASUDARSHAN
AGED ABOUT 57 YEARS
XXI ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
43. B BALAKRISHNA
AGED 58 YEARS
XVIII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
44. K MANAMOHANA
AGED 62 YEARS
APPOINTED AS PRESIDENT
DISTRICT CONSUMER DISPUTES
REDRESSAL FOURM,. M G ROAD
U K, KARWAR-581301, R/O RHS CLASS
GROUP 3-25, PWD QUARTERS
U K KARWAR-581301
9
45. H S KAMALA
AGED 56 YEARS
IV ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
46. PRAHALAD RAO GOVINDRAO MUTHALIK PATIL
AGED 54 YEARS
JUDGE, FAMILY COURT, BELGAUM
47. S SAVITHRI VINAYAKA
AGED 58 YEARS
JUDGE, FAMILY COURT
SHIMOGA
48. K A LALITHA
AGED 61 YEARS
R/AT NO. 90 II MAIN
16TH CROSS, AECS LAYOUT
GEDDALAHALLI, SANJAYANAGAR
BANGALORE
49. P A SHIVAPRASAD NAIK
AGED 62 YEARS
R/AT PALYA, PALYA POST
KOLLEGAL TALUK
CHAMARAJANAGAR DISTRICT
50. M RAMESH RAO
AGED 57 YEARS
XXII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
51. APPASAHEB SHANTAPPA BELLUNKE
AGED 55 YEARS
ADDL DISTRICT & SESSIONS JUDGE
MANDYA
52. CHANDRASHEKAR PATIL
AGED 56 YEARS
III ADDL DISTRICT & SESSIONS JUDGE
BELGAUM
10
53. C R JAWEED PASHA
AGED 60 YEARS
R/AT NO. 1714/A, 41ST CROSS
EAST END B MAIN ROAD
OPP SAHAKARI VIDYA KENDRA HIGH SCHOOL
JAYANAGAR 9TH BLOCK
BANGALORE
54. ANGADI SHARASCHANDRA BASAPPA
AGED 57 YEARS
XXXI ADDL CITY CIVIL & SESSISON JUDGE
BANGALORE
55. G D NARASIMHAMURTHY
AGED 59 YEARS
I ADDL DISTRICT & SESSIONS JUDGE
DAKSHINA KANNADA, MANGALORE
56. JEEVAN RAO R KULKARNI
AGED 61 YEARS
R/AT C/O DR ANAND
ANUGRAHA H NO. 1-891
BEHIND VARGHESE FLATS
SANTHOSH COLONY
BHAGYAVANTHI NAGAR
UDNOOR ROAD
GULBARGA
57. B SREERAMA REDDY
AGED 63 YEARS
R/AT NO. 1773, 'RAMASHREE'
7TH MAIN, JUDICIAL LAYOUT
GKVK POST YELAHANKA
BANGALORE-560067
58. DEVENDRA RAMACHANDRA RENAKE
AGED ABOUT 56 YEARS
DISTRICT JUDGE, OOD MEMBER
KARNATAKA APPELLATE TRIBUNAL
BANGALORE
11
59. V G BOAPAIAH
AGED 56 YEARS
II ADDL JUDGE, FAMILY COURT
BANGALORE
60. V H RAMACHANDRA
AGED 62 YEARS
APPOINTED AS PRESIDENT
DISTRICT CONSUMER REDRESSAL FORUM,
CHITRADURGA-577501
R/O KARIBSAVESHWAR KRUPA
BANK COLONY
VENKATESHWARA BADAVANE
OPP TO VENKTESHWARA TEMPLE
CHITRADURGA-577501
61. BASAVANAHALLI VENKATAKRISHNAIAH PRAKASH
AGED 58 YEARS
ADDL REGISTRAR
LOKAYUKTHA
BANGALORE
62. J S DESHPANDE
AGED 59 YEARS
I ADDL DISTRICT & SESSIONS JUDGE
DHARWAD
63. JAVID PASHA
AGED 61 YEARS
R/AT NO. 1877, 7TH CROSS
3RD A MAIN, JUDICIAL LAYOUT
GKVK POST, BANGALORE-560065
64. SOMALINGAPPA SHIVARUDRAPPA MURAGOD
AGED 57 YEARS
JUDGE, FAMILY COURT
DHARWAD
65. DUNDAPPA SOMAPPA MUTTUR
AGED 59 YEARS
ADDL REGISTRAR
12
KARNATAKA LOKAYUKTHA
BANGALORE
66. GUNJIGAVI SIDDAPPA BHIMAPPA
AGED 56 YEARS
IV ADDL DISTRICT & SESSIONS JUDGE
GULBARGA
67. CHANDRASEKHARA BASAVARAJ HIPPARGI
AGED 58 YEARS
PRESIDING OFFICER
INDUSTRIAL TRIBUNAL
HUBLI
68. PRAKASH KUMAR
AGED 63 YEARS
CHAIRMAN
DISTRICT CONSUMER FORUM,
BELLARY
69. CHANNAMALLAPPA R BENAKANAHALLI
AGED 58 YEARS
PRESIDING OFFICER
DEBT RECOVERY TRIBUNAL, BANGALORE
70. MAHADEVE GOWDA
AGED 56 YEARS
IV ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
71. SHANKAR MANIKRAO PATIL
AGED 55 YEARS
XLVII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
72. C S NANJUNDAPPA
AGED 63 YEARS
R/AT NO. J1B-504, NATIONAL GAMES VILLAGE
KORAMANGALA, BANGALORE
73. SIDDAPPA CHANNABASAPPA MARADI
AGED 58 YEARS
13
II ADDL DISTRICT & SESSIONS JUDGE
BIJAPUR
74. NELHAL SHARANAPPA
AGED 56 YEARS
I ADDL DISRICT & SESSIONS JUDGE
GULBARGA
75. SOMNATH REVANNASIDDAPPA SINDGI
AGED 59 YERS
II ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
76. MAJAGE NIJAGUNAPPA
AGED 59 YEARS
III ADDL DISTRICT & SESSIONS JUDGE
D K MANGALORE
77. CHANNABASAPPA MARGOOR
AGED 56 YEARS
V ADDL JUDGE FAMILY COURT
BANGALORE
78. NIYAJ AHMED SYED HASMAM DAFEDAR
AGED 58 YEARS
XVII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
79. PAMPAPATHI
AGED 63 YEARS
R/AT C/O RAJESH PARAMANNACHAL
NEAR BASAVESHWARA HIGH SCHOOL
LINGASUGUR, RAICHUR DISTRICT
80. M C SACHIDANANDA PRASAD
AGED 63 YEARS
NO. 1783/412, 1ST FLOOR
SANTHOSH NILAYA
OPP TO MARKANA MARBLES
CHAMUNDESHWARI TEMPLE STREET
K R EXTENSION, TUMKUR-572101 ... RESPONDENTS
14
(CAUSE TITLE IS AMENDED AS PER COURT ORDER
DATED:3.4.2013)
(BY SRI P S RAJAGOPAL, SR. ADV., A/W SRI RAGHAVENDRA G
GAYATHRI, AGA FOR R1-3;
SRI PUTTIGE R RAMESH, ADV., FOR SRI SACHIN V.R. FOR R5, 32,
33, 42, 47 AND 50,
SRI SHARATH S GOWDA, ADV., FOR R8 & 35,
SRI K.V. NARASIMHAN, ADV., FOR R6, 9, 12, 14, 15, 19, 21, 23,
31, 48, 55, 56, 66 & 72,
SRI L K SRINIVASA MURTHY, ADV., FOR R10,
SRI S.V. NARASIMHAN, ADV., FOR R20, 22, 24, 28, 34, 36, 40,
43, 44, 53, 58, 63, 64, 67, 71, 74, 77 TO 80, 82, 83,
SRI K SHRIHARI, ADV., FOR R46,
RESPONDENT NOS. 7, 11, 13, 16 TO 18, 25 TO 27, 29, 30, 37 TO
39, 41, 51, 52, 57, 59, 61, 62, 65, 68 TO 70, 73, 75, 76, 81, 84,
85 ARE SERVED AND UNREPRESENTED,
RESPONDENT NOS. 4, 45, 49, 54 AND 60 ARE DELETED V/O
DATED 3.4.13)
THESE W.PS. FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION
DT.14.9.12, VIDE ANN-A, ISSUED BY THE R3 ETC.,
IN W.P.NO.28147/2013 (S-RES)
BETWEEN:
SRI V N RAVINDRA
S/O LATE V S NARAHARI RAO
AGED 60 YEARS
RETD DIST & SESSIONS JUDGE
#229, 4TH CROSS, BALAJI LAYOUT
VAJARTAHALLI
BANGALORE 560062 ... PETITIONER
(BY SRI PUTTIGE R RAMESH, ADV.,)
AND
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
DEPT OF LAW, GOVT OF KARNATAKA
15
VIDHANA SOUDHA
BANGALORE 560 001
2. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BANGALORE 560 001
3. N RUDRAMUNI
S/O N AIYYANNA
AGED 45 YEARS
DIST & SESSION JUDGE
RAMANAGARA DIST
RAMANAGARA - 571511
4. SHIVASHANKAR B AMARANNAVAR
S/O BASAPPA AMARANNAVAR
AGED 42 YEARS
DIST & SESSION JUDGE
BAGALKOT - 587102
5. R J SATHISH SINGH
S/O R J JAYARAM SINGH
AGED 50 YEARS
DIST & SESSION JUDGE
GADAG - 582101
6. SMT UMA
W/O LATE VENKATESH SHIVAPUR
AGED ABOUT 48 YEARS
PRL. DIST & SESSION JUDGE
BELLARY - 583101
7. V SRISHANANDA
S/O VEDAVYASACHAR
16
AGED 46 YEARS
DIST & SESSION JUDGE
UTTARA KANNADA, KARWAR
R/A #691, 6TH MAIN
III CROSS, VIJAYANAGAR
BANGALORE 560 040
8. HANCHATE SANJEEV KUMAR
S/O VIJAYA KUMAR
AGED 40 YEARS
PRL DIST JUDGE
YADGIR - 585201
9. SMT S MAHALAKSHMI N NERALE
W/O B SIDDARAJU
AGED 42 YEARS
PRL DIST & SESSION JUDGE
SHIMOGA - 577201
10. MASTER R K G M M MAHASWAMIJI
S/O R K RANGANNA
AGED 39 YEARS
DIST & SESSION JUDGE
CHAMARAJANAGAR-571313 ... RESPONDENTS
(BY SRI RAGHAVENDRA G GAYATHRI, AGA, FOR R1 & 2,
SRI BASAVA PRABHU PATIL, SR. ADV., FOR R3-10)
THIS W.P. FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT TO HOLD THAT
THE WORDS WITH IMMEDIATE EFFECT CONTAINED IN THE
NOTIFICATION DATED 1.6.09 OF THE R1 AT ANNX-B REQUIRES
TO BE READ AS W.E.F THE DATE OF POSTING ON AD-HOC BASIS
IN SO FAR AS IT RELATE TO THE PETITIONER
THESE WRIT PETITIONS HAVING COME FOR FINAL
HEARING AND RESERVED FOR JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
17
JUDGMENT :(DILIP B BHOSALE J) The question of inter-se seniority between promotees and direct recruits has always been a matter of controversy that engaged the attention of the Supreme Court and High Courts on several occasions and there are many decisions bearing upon the controversy. This is one more.
2. The petitioners-direct recruits have instituted these writ petitions under Article 226 of the Constitution of India calling in question the legality of notification dated 14th September 2012 issued by respondent No.3-Registrar General, High Court of Karnataka, Bangalore (for short "the RG"), whereby, a final seniority list of District Judges has been published. In the final seniority list, according to the petitioners, respondent Nos.4 to 85, (for short "the respondent-DJs") who were promoted/ appointed in the cadre of District Judge subsequent to their appointments as District Judges, have wrongly been placed above them. Petitioners have also prayed for a direction to the RG to 18 redraw the seniority, taking into consideration the actual date of appointment of the petitioners (direct recruits) and the dates of promotion of the respondent-DJs in the cadre of District Judge.
3. Petitioners were appointed as District Judges under 25% category of direct recruits as provided for in Rule 4 of the Karnataka Judicial Services (Recruitment) Rules, 2004 (for short "2004 Rules") vide notification dated 13.2.2008. The Notification dated 13.2.2008, to the extent it is relevant reads thus:
"NOTIFICATION In exercise of the powers conferred under Article 233 of the Constitution of India, the Governor of Karnataka hereby appoints the following Advocates as District Judges with immediate effect."
(emphasis supplied)
4. Having regard to huge pendency of cases and for disposal of long pending sessions and other cases, the Eleventh Finance Commission recommended a scheme for creation of 1734 Fast Track Courts (for short FTCs) in the 19 country. The Ministry of Finance sanctioned an amount of Rs 502.90 crores as "special problem and upgradation grant" for judicial administration. The scheme was temporary and for a period of 5 years. Government accorded its approval for the continuation of 1562 Fast Track Courts that were operational as on 31.3.2005 for a further period of 5 years i.e. up to 31st Mach, 2010.
5. In view of the recommendation of the 11th Finance Commission the Government of Karnataka created FTCs and decided to appoint Civil Judges as District Judges temporarily on ad-hoc basis and accordingly respondent-DJs were promoted by issuing four different notifications as ad- hoc District Judges. The respondent-DJs, at the relevant time, were working in the cadre of Civil Judge (Sr.Dn.). They were promoted temporarily on ad-hoc basis to officiate as District Judges vide notifications dated 15-2-2003, 19-3- 2003, 15-11-2003 and 20-3-2004. Though a specific request was made vide letter dated 27-12-2002 by the RG, addressed to the Chief Secretary, Government of Karnataka, 20 requesting him to move His Excellency the Governor of Karnataka and obtain orders promoting the Civil Judges (Sr.Dn.) named therein, under Article 233 of the Constitution of India as ad-hoc District Judges temporarily, subject to reversion at any time, the notifications did not make any reference to Article 233 of the Constitution of India. It would be convenient to reproduce the first notification dated 15.2.2003 (Annexure-R9), to the extent it is relevant, which reads thus:
"NOTIFICATION The following eighteen Civil Judges (Senior Division) are promoted, temporarily on adhoc basis to officiate as District Judges with immediate effect to man the Fast Track Courts subject to reversion at any time."
(emphasis supplied) The language of remaining three notifications dated 19.3.2003, 15.11.2003 and 20.03.2004 is similar.
5.1. Total 82 Civil Judges (Sr.Dn.) were promoted temporarily on ad hoc basis to officiate as District Judges 21 with immediate effect to man the Fast Track Courts subject to reversion at any time. The expression "to man the Fast Track Courts" in the aforesaid notifications, however, was deleted vide corrigendum dated 21.4.2003.
5.2. After their appointments, they took charge as ad-hoc District Judges and continued till they were promoted/appointed under 50% and 25% quota to be filled by promotions on the basis of seniority-cum-merit and through Departmental Competitive Examination (for short 'accelerated promotion'), respectively as provided for under Rule 4 of the 2004 Rules vide notifications dated 1st June 2009, 27th June 2009 and 29th July 2009. (Annexure-R22 to Annexure-24). All the three notifications, were issued by the Governor of Karnataka, in exercise of the powers conferred on him under Article 233 of the Constitution of India appointing them on the existing vacancies in the cadre of District Judge, under the 2004 Rules, with immediate effect. 22
5.3. The first notifications dated 1st June 2009, issued by the Governor of Karnataka, to the extent it is relevant, reads thus :
"NOTIFICATION I.Rameshwar Thakur, Governor of Karnataka in exercise of the powers conferred on me, under Article 233 of the Constitution of India, hereby appoints the following 48 Ad-hoc District Judges/Civil Judges (Sr.Dn.) filling up 50% of the existing vacancies in the cadre of District Judges by promotion on the basis of seniority-cum-merit under the Karnataka Judicial Service (Recruitment) Rules, 2004, with immediate effect."
(emphasis supplied ) 5.4. The second notification dated 29.7.2009 appointing 14 ad hoc District Judges/Civil Judges (Sr.Dn) in the cadre of DJ, filling up 50% of the existing vacancies is identical. The third notification dated 27.6.2009, whereby 45 ad-hoc DJs/Civil Judges (Sr.Dn.) filling up 25% of the existing vacancies in the cadre of District judges by accelerated promotion reads thus:
"GOVERNMENT OF KARNATAKA No.DPAR 35 SHC 2009 Karnataka Government Secretariat, "Vidhana Soudha"23
Bangalore, dated: 27th June, 2009.
NOTIFICATION I, Rameshwar Thakur, Governor of Karnataka in exercise of the powers conferred on me, under Article 233 of the Constitution of India, hereby appoint the following 45 Ad-hoc District Judges/Civil Judges (Sr.Dn.) filling up 25% of the existing vacancies in the cadre of District Judges who have put in not less than 5 years of service strictly on the basis of merit through limited departmental competitive examination in accordance with the guidelines framed by the High Court under the Karnataka Judicial Service (Recruitment) Rules, 2004, with the immediate effect."
(emphasis supplied)
6. Perusal of the above notifications, clearly demonstrate that the respondent DJs were promoted as District Judges in 2009 under the 2004 Rules against the vacancies available in the cadre. In other words, their regular promotion/appointments in the cadre of District Judge were made, for the first time under the 50% and 25% category/quota provided for in the 2004 Rules, on the basis of seniority-cum-merit and through departmental 24 competitive examination i.e. accelerated promotion, respectively.
6.1. Initial appointments, i.e. before their temporary promotions on ad hoc basis, of respondent-DJs as Munsiffs were, however, made under the Karnataka Judicial Services (Recruitment) Rules, 1983 (for short "1983 Rules") and then as ad hoc District Judges, from the cadre of Civil Judge (Sr.Dn.) on the basis of seniority-cum-merit in 2003-04, in view of the recommendation of the 11th Finance Commission for FTCs. I would deal with the question whether their appointments as ad hoc District Judges were made under 1983 Rules or as per the Scheme and policy of appointment of ad hoc District Judges for the Fast Track Courts little later.
6.2. It is not in dispute that their (Respondent DJs) promotions as ad hoc DJs temporarily in 2003-2004 were made after following the due procedure in force i.e. the procedure adopted by the High Court as contemplated by 1983 Rules.
25
7. Having regard to the dates of their (respondent- DJs) appointments under Article 233 of the Constitution as DJs, on the existing vacancies in the cadre of District Judge, and the date of appointment of the petitioners, they contend that they were born in the cadre of District Judge in 2008, while respondents-DJs in 2009 and in view thereof, they (petitioners) were initially treated as senior to the respondent DJs and were posted as District Judges with independent charge or as principal District Judge/s.
8. Respondent-DJs, therefore, made representations dated 24th August 2009 and 3rd November 2009 addressed to the RG, requesting to recognize/consider their service rendered as ad hoc District Judges as the service rendered in the District Judge cadre and accordingly, their seniority may be fixed from the date of their initial appointments as ad hoc District Judges in view of the directions issued by the Supreme Court in Brij Mohan Lal Vs. Union of India, AIR 2002 SC 2006 (for short "Brij Mohan Lal -1"). 26
8.1. In view thereof, the RG, vide notice dated 15th September 2010, requested the petitioners-direct recruits to file their response to the representations made by the respondent-DJs. The petitioners accordingly submitted their response dated 21st September 2010.
9. The representations of respondent-DJs were placed before Administrative Committee No.I, which in the meeting held on 23.8.2010 constituted a Committee of Mrs. Manjula Chellur J (as she then was) and Mr. K.L.Manjunath J and requested to consider the request/prayer to fix their seniority as District Judges from the date of their appointments on ad-hoc basis after giving an opportunity of hearing to the officers who were likely to be affected. Before the report was submitted by the Committee, Mrs. Manjula Chellur J was appointed as Chief Justice and hence it was re-constituted consisting of Mr. K.L.Manjunath J and Mr. Ajit J Gunjal J (for short "the Committee"). The Committee considered the request made by the respondent DJs in the light of judgment of the 27 Supreme Court in Brij Mohan Lal-1, in particular, direction 6 and 14 in paragraph-10 thereof, and paragraphs 6 and 7 of the judgment in Brij Mohan Lal vs. Union of India and others (2012) 6 SCC 502 (for short "Brij Mohan Lal-2") and in the concluding paragraph, stated thus:
"In view of the judgment rendered by the Hon'ble Supreme Court, there is nothing for the Committee to fix the date of seniority of the ad hoc Judges who have worked as Judges in the FTCs. Since Hon'ble Supreme Court has already ruled that services rendered in the FTCs by a judicial officer will be deemed to be in service for such higher grade on his promotion to higher grade in the permanent cadre (as District and Sessions Judge). Based on the above, we are of the view that it is for the Registry to work out and fix the inter-se seniority of all the Adhoc Judges who have been promoted latter as regular District Judges by taking into consideration the rights of the District Judges who have been directly appointed and also rights of the District Judges who have been promoted from amongst the Civil Judges who were selected on their success in limited examination."
(emphasis supplied)
10. The report of the Committee was placed before Full Court held on 14th July 2012. The Full Court passed the following resolution :
28
" Discussed. The Full Court considering the office note, materials on record, judgment passed by the Hon'ble Supreme Court in Transferred Case No.22/2001 in the case of Brij Mohan Lal Vs. Union of India & others and the report of the Committee constituted to fix the Seniority of Ad-hoc District Judges on their promotion as Regular District Judges, RESOLVED to accept the report submitted by the Committee headed by Hon'ble Shri Justice K.L.Manjunath and further resolved to direct the Registrar General to prepare a draft seniority list keeping in view the Karnataka Judicial Service (Recruitment) Rules, 1983, Karnataka Judicial Service (Recruitment) Rules, 2004 and Full Court resolutions governing the same and circulate the same to affected Officers calling for objections and thereafter finalise the seniority list with the approval of the Hon'ble Chief Justice."
(emphasis supplied )
11. In view of the resolution passed by the Full Court a provisional seniority list of District Judges based on the judgment of the Supreme Court in Brij Mohan Lal-1 was prepared by the RG dated 27-7-2012 inviting objections from the aggrieved Judges. In the provisional list, Respondents- DJs (promotee judges) were placed above the petitioners (direct recruits). As a result thereof, the petitioners filed objections to the provisional list.
29
12. The RG, as per the directions issued by the Full Court in its meeting dated 14th July 2012, after considering the objections, finalised seniority list and obtained approval of the Hon'ble Chief Justice. From perusal of the submission of the RG, which runs into about 22 pages, it appears that he rejected the objections raised by the petitioners, based on the observations made by the Committee and by the Supreme Court in Brij Mohan Lal-1. The relevant paragraph in the submission of the RG reads thus:
"The Hon'ble Committee which has gone into the question as to from which date the Adhoc District Judges who were subsequently promoted as District & Sessions Judge were entitled to count their seniority in the cadre of District & Sessions Judges. After considering the effect of the judgment of the Hon'ble Supreme Court of India in Brij Mohan Lal's case which has dealt with this very specific issue has given a report stating that all such Officers are entitled to count their seniority in the cadre of District & Sessions Judges from the date when they were initially posted as Adhoc District Judges. This observation of the Hon'ble Committee is a complete answer to all the objections by this group of Officers in as much as once they are entitled to count their seniority from the date when they initially became Adhoc District Judges which being prior to the date of coming into force of the Karnataka Judicial Service (Recruitment) Rules, 2004, with effect from 9.9.2005, they will have to be ranked 30 above the candidates promoted under the said provision from the cadre of Senior Civil Judges. Further once the Hon'ble Committee has held that the date of seniority is from the date of posting as Adhoc District Judges, the matter as to whether some of them had taken the limited departmental examination and were unsuccessful in the same does not make any material difference to the said legal position. In other words, in view of the Brij Mohan Lal's decision and the report of the Committee, they are automatically entitled to count their seniority from the date of their becoming Adhoc District Judges and therefore their taking limited departmental examination was wholly superfluous in the eye of law. Accordingly, the contention raised in this behalf cannot be sustained."
(emphasis supplied)
13. Accordingly, the impugned notification dated 14th September 2012 (Annexure-A) came to be issued in which Respondents-DJs were placed above the petitioners taking into account their service as ad hoc District Judges and treating it as service rendered in the District Judge cadre. The notification dated 14th September 2012 to the extent it is relevant reads thus:
"GOB(I)343/2009 High Court of Karnataka Bangalore, Date: 14.09.2012 31 NOTIFICATION A Provisional Seniority List from and subsequent to 01.01.2003 of Directly Recruited District Judges, District Judges promoted on seniority-cum-merit basis under 50% category, District Judges promoted from the cadre of Senior Civil Judges under 25% category by holding limited departmental competitive examination has been published by the High Court, inviting objections, if any, to the said Provisional Seniority List, vide this office letter of even number dated 28.07.2012.
The High Court of Karnataka considered the objections received and on such consideration resolved to publish the Final Seniority List of District Judges who have been promoted/appointed after 01.01.2003."
14. In this backdrop, before I make reference and advert to the diverse contentions urged by learned counsel for the parties, in support of their case, it would be relevant to make a brief reference to the relevant rules in the 1983 Rules. These Rules were made in exercise of the powers conferred by Articles 233, 234 and the proviso to Article 309 of the Constitution of India by the Governor of Karnataka after consultation with the Karnataka Public Service Commission and the High Court of Karnataka. 32
14.1. Rule-2 provides for method of recruitment, minimum qualifications, etc.. Schedule appended to Rule-2 provides category of posts and method of recruitment and minimum qualifications. The category of posts mentioned therein are District Judges (Super-time scale), District Judges, Civil Judges and Munsiffs. In the present case we are concerned with the cadre of District Judge. Rule 2 and Item Nos.1 and 2 in Schedule thereto, with which, we are concerned in the present case, read thus:
"2. Method of recruitment, minimum qualifications, etc. - In respect of each category of posts specified in column (2) of the Schedule below, the method of recruitment and the minimum qualifications shall be as specified in the corresponding entries in columns (3) and (4) thereof:-
SCHEDULE Sl. Category of Method of Minimum No posts recruitment qualifications etc.
1. District By promotion by Must have put in at Judges selection from the least 5(five) years of (Supertime cadre of District service as District scale) Judges by the High Judge.
Court of Karnataka
2. District By promotion on For Direct Judges the basis of Recruitment. -
seniority-cum- Must be holder of a
merit from the cadre degree in Law or
33
of Civil Judges: equivalent
Provided that such qualification; and
number of posts as Must be practicing on
may be determined the last date fixed for
by the High Court submission of
from time to time, applications, as an
but not exceeding in Advocate and must
the aggregate 33 have so practised for
1/3% of the posts in not less than seven
the cadre of District years as on such
Judges may be filled date.
by Direct Age: Must not have
recruitment). attained the age of
Note- The (forty-eight) years
Highcourt of on the last date fixed
Karnataka may, for submission of
subject to those application.)
rules, adopt such Probation.-
procedure as it Two years. During
deems fit for the period of
selecting the probation he must
candidates by undergo such
direct recruitment training as may be
or by promotion by specified by the High
seniority-cum- Court of Karnataka
merit. Officiation.-2 years.
(emphasis supplied)
14.2. Sub-Rule (1) of Rule 3 states that subject to Articles 233, 234 and 235 of the Constitution of India, provisions of Rules 5, 6(2), 6(3), 8, 9, 10 to 13 of the Karnataka Civil Services (General Recruitment) Rules, 1977, shall, insofar as they are not inconsistent with these rules, 34 mutatis mutandis, apply to recruitment of DJs, Civil Judges and Munsiffs under these Rules. Sub-Rule(2) of Rule 3 states that all rules regulating the conditions of service of the members of the State Civil Services made from time to time under any law or the Proviso to Article 309 of the Constitution of India shall, subject to Articles 233, 234 and 235 be applicable to the Munsiffs, Civil Judges and the District Judges recruited and appointed under these rules.
14.3. Rule 5 provides for repeal and savings. It states, the Karnataka District Judges (Recruitment) Rules 1962, the Karnataka Civil Judges (Recruitment) Rules 1966, and Karnataka Munsiffs (Recruitment) Rules 1981, and all Rules made on the subject are repealed, provided that the said repeal shall not affect (a) previous operations of the said Rules or anything duly done or suffered thereunder or any right, liability or obligation acquired, accrued or incurred under the said Rules; (b) the validity of the list of selected candidates for the posts of DJs or Munsiffs, as the case may be, prepared under the repealed rules and appointments of 35 such selected candidates; and (c) all proceedings, including action taken to make recruitment and preparation of the list of selected candidates, commenced under the repealed rules etc.
15. Another set of Rules we are concerned with, is the 2004 Rules which were published vide notification dated 9th September 2005. Those Rules were also made by the Governor of Karnataka, in exercise of powers conferred upon him by Articles 233 and 234 and the proviso to Article 309 of the Constitution of India, and in consultation with the Karnataka Public Service Commission and High Court of Karnataka.
15.1. Rule 2 (e) defines "Recruiting Authority" which means the High Court of Karnataka. Rule 2(f) defines "service" which means the Karnataka Judicial Service. Rule 3 states that the appointing authority for the posts in the cadre of District Judges and Civil Judges (Jr.Dn.) shall be the Governor and for the posts in the cadre of Civil Judges (Sr.Dn.) shall be the High Court.
36
15.2. Rule 4 provides for method of recruitment, qualification and age limit in respect of three cadre of posts i.e., District Judge, Civil Judge (Sr.Dn.) and Civil Judge (Jr.Dn.). In the present petitions, we are concerned with the cadre of District Judge. The relevant Rule 4 to the extent, it is necessary, reads thus:
"4. Method of recruitment, qualification and age limit:-
In respect of each cadre of posts specified in column (2) of the table below the method of recruitment and minimum qualification, age limit, etc., shall be as specified in the corresponding entries in columns (3) and (4) thereof Sl. Cadre Method of Recruitment Qualification, age No. limit, etc (1) (2) (3) (4)
1. District 50% of the total By direct Judges posts in the cadre recruitment:-
shall be filled by promotion from the Must be holder of a cadre of Civil Judges degree in law granted (Sr. Dn.) on the by a university basis of seniority established by law in cum merit.) (For the India.
said purpose, the Must be practicing
High Court shall as an advocate in the
devise and evolve a High Court or in a
test in order to subordinate Court on
37
ascertain and examine the last date fixed for
the legal knowledge of receipt of applications
the candidates and to and must have so
Assess their continued practiced for a period
efficiency with not less than seven
adequate knowledge of years as on such
case laws). date.
25% of the posts in
the service shall be
filed by promotion
from the cadre of Civil Must not have
Judges (Sr.Dn.) who attained the age of
have put in not less forty-eight years in
than 5 years of service the case of
strictly on the basis candidates belonging
of merit through to Schedules Castes
limited Department or Scheduled Tribes
competitive exami- and forty-five years
nation in accordance in the case of others,
with the guidelines as on the last date
to be framed by the fixed for receipt of
High Court. applications."
25% of the posts in
the cadre shall be filled
by direct recruitment
on the basis of the
aggregate marks
obtained in a
competitive exami-
nation (written & viva
voce) conducted by the
High Court.
(emphasis supplied)
38
15.3. Rule 5 provides for competitive examination.
Part-I of Rule 5 provides for examination for recruitment of District Judges which consists of written examination of two papers each for 150 marks in Civil law and in Criminal law and viva voce examination for maximum 100 marks which provides for selection of candidates in order of merits on the basis of aggregate of the marks obtained in the written examination and viva voce test subject to the government orders relating to reservation of posts for scheduled castes, schedule tribes and other backward classes. Part-II of Rule-5 provides for competitive examination for recruitment of civil judges, junior division, we are not concerned with this part of the Rule. Rule 6 provides for disqualification for appointment such as the person shall be eligible for appointment to the service only if he is a citizen of India.
15.4. Rule 7 provides for recruitment, sub-rule(1) thereof provides for filling up of vacancies by promotion for which the recruiting authority shall take all necessary steps well in advance so as to finalise the list of persons considered 39 eligible for promotion atleast 10-15 days before the occurrence of the vacancy. Sub-rule (2) (i) and (2) (ii) provides for the procedure for filling up of vacancies by direct recruitment.
15.5. Rule-8 provides for conditions, suitability, fitness and character. Rule-9 provides for fees required to be paid along with the application.
15.6. Rule-10 provides for joining time for appointment. Rule 12 which provides for repeal and savings is also similar to Rule 5 in the 1983 Rules.
15.7. Neither the 1983 rules nor the 2004 Rules provide for an appointment on ad hoc basis or on temporary basis or provide for temporary posts or promotion against vacant posts created temporarily. The 1983 and 2004 rules insofar as such appointments are concerned are silent.
15.8. It is clear from the 1983 Rules, and other documents referred to herein above, that no specific procedure was prescribed in the Rules to be followed for 40 granting promotions and it was left open to the High Court(Administrative Committee and Full Court) to adopt such method as it deemed fit to accord promotion to Civil Judges (Sr.Dn.) to the post of District Judge on seniority- cum-merit. Accordingly, the Administrative Committee as well as the Full Court seem to have promoted Civil Judges (Sr.Dn.) temporarily by notifications dated 15-2-2003, 19-3- 2003, 15-11-2003, 20-03-2004 to the posts of ad hoc District Judges (FTC) after following the procedure adopted as contemplated by Rule 2 of the 1983 Rules.
16. At this stage, I would like to make a brief reference to the stand/case of the respondents as reflected in the statements of objection filed on their behalf. Several respondents have filed statements of objections. The RG has filed two statements of objections. The first statement of objections dated 12-6-2013 filed by the RG was not clear, which is evident from the following quotations, by way of an illustration, from paragraphs-3, 5 and 7:
"3. .............Initially, all are appointed on adhoc basis which was later came to be given 41 regular promotions and all these contesting Respondents placed as Ad-hoc judges in that vacancy arise and quota available and that the promotions are appointment by limited competitive examinations.
5. ...............Therefore, neither under the earlier Rules nor under the Amended Rules, there is a provision to the fill up the Posts by way of promotion by promoting eligible Judicial Officers in the cadre of Civil Judge Senior Division and only 1/3 is recruited to be filled up by way of direct recruitment which is further reduced to 25% by way of amended Rules of 2004.
7. ...............Therefore, even though these contesting Respondents were initially promoted on adhoc basis, subsequently, there promotions have been regularized by issuing the order dated 01.07.2009 and all such promotions were taken place only to fill up the post of the District Judges available for promotions."
16.1. The RG was, therefore, allowed to file additional statement of objections dated 25.6.2013 making their stand clear in respect of the respondents-DJs and the date of their seniority.
16.2. In the subsequent statement of objections, the RG has referred to the procedure that was followed for granting promotions to the respondents-DJs on ad hoc basis 42 in view of the FTCs scheme. The norms/guidelines that were followed and taken into consideration for granting promotions on ad-hoc basis are also reproduced in the statement of objections.
16.3. It is further stated that the Administrative Committee No.II considered senior-most Civil Judges for promotion to the cadre of District Judge on ad hoc basis, out of which, few of them were recommended for promotion. The recommendations made by the Administrative Committee were placed before the Full Court. The Full court accepted the recommendations of Committee No.II for according promotion to the senior most Civil Judges to the cadre of District Judges on ad hoc basis. Then the RG had requested the Government of Karnataka, to seek approval of the Governor of Karnataka. The recommendations made by the High Court were accordingly approved and the notifications were issued in 2003-2004, in the name of the Governor of Karnataka.
43
16.4. The statement of objections make reference to 1983 Rules and 2004 Rules and so also to the direction 14 in paragraph 10 in judgment of the Supreme Court in Brij Mohan Lal-1 to justify the date of seniority fixed pursuant to the Full Court resolution.
16.5. While narrating the facts we have made reference to all the documents which are referred to by the RG in both the statement of objections as annexures-R1 to R24. From bare perusal of the statement of objections and the annexures it is clear that the RG has simply stated the procedure that was followed for appointing respondent-DJs and the manner in which their appointment orders/notifications were issued. He has made reference to the decision of the Committee and the Full Court and also the correspondence made with the Government requesting to issue notifications of promotion of respondent-DJs. In short, the RG has emphasized that the due procedure was followed while granting temporary promotions as ad hoc District Judges and hence their appointments in the cadre of District 44 Judge in 2009 will have to be counted from the dates of their appointments as ad hoc District Judges in 2003-04.
17. The other respondents also, though filed separate statement of objections, have taken similar stand. Their focus is also on the direction No.14 in paragraph-10 in Brij Mohan Lal-1 to contend that the date of their initial appointments as Adhoc DJs was rightly taken into consideration for fixing seniority and the decision deserves no interference by this Court in the present writ petitions. In one of the statements of objections it is stated that the High Court never made a distinction between ad hoc District Judges and regular District Judges, and their pay-scale was also on par with the regular District Judges, which, further, it is stated, shows that though they were not promoted under Article 233 of the Constitution, they were appointed after following the due procedure and with approval of the Governor. It has also been stated that the petitioners have no locus standi to question as to when the respondents-DJs became eligible to be appointed as District Judges. In other 45 words, it is stated that eligibility of respondents-DJs for promotion to the cadre of District Judge cannot be questioned by the petitioners as long as their number does not exceed the quota fixed for promotion as on the date of appointment of the petitioners.
18. I have, with the assistance of learned counsel for the parties, formulated the following question for consideration:
"whether promotions of respondents-DJs as ad hoc District Judges vide notifications dated 15-2-2003, 19-3-2003, 15-11-2003 and 20-3-2004 for being posted in the Fast Track Courts could be treated as regular promotions in the cadre of District Judge under the 1983 Rules and/or services rendered by them as ad hoc Fast Track Judges can be counted for the purpose of seniority in the cadre of District Judge from the date of the aforesaid notifications or it should be from the date on which they were promoted under the 2004 Rules vide notifications dated 1.6.2009, 27.6.2009 and 29.7.2009? "46
18.1. Alongwith the aforementioned question, it would be necessary to consider peripheral issues, such as whether the procedure in force in the matter of promotion to the posts of District Judge was followed while appointing respondent-DJs, as adhoc DJs for the Fast Track Courts; whether their promotions as ad hoc District Judges are traceable to 1983 Rules; whether vacancies, that occurred prior to the date on which the 2004 Rules were brought into force, can be taken into consideration for giving deemed date of promotion from the dates of their promotions on ad hoc basis in 2003-04; whether or not the seniority list affects rights of the parties; and whether the respondents-DJs, who were promoted vide notification 26th June 2009 to fill up 25% vacancies through departmental competitive examination, under the 2004 Rules would be entitled for the same benefits that could be extended to those, who were appointed under 50% quota to be filled up by promotion on the basis of seniority-cum-merit.
47
19. In view of a categoric stand taken by the RG that while making appointments/promotions all respondent-DJs in 2003-2004 the procedure in force as under the 1983 Rules was followed, Mr.Patil, learned Senior Counsel for the petitioners, did not raise any dispute in respect thereof. On the contrary, he made submissions on the assumption that the due procedure, adopted by the High Court as contemplated by 1983 Rules read with Articles 233 and 236 of the Constitution of India, was followed. He submitted that the procedure adopted by the High Court for promotion as District Judges was followed while promoting the respondent- DJs as presiding officers of FTCs temporarily on ad hoc basis and not as regular DJs in the light of the direction (1) & (2) in paragraph 10 of Brij Mohan Lal-1.
19.1. From the materials placed on record by the RG and the submissions advanced by learned Senior Counsel for the parties, it is clear that the due procedure adopted by the High Court as contemplated by the 1983 Rules for temporary promotions of the Civil Judges, from amongst eligible judicial 48 officers was scrupulously followed. The RG has placed on record the material supporting their stand to which I have made reference while narrating the facts in the earlier part of the judgment. Since no dispute in respect thereof is raised, this question need not detain me any future, and I hold that the due procedure in force was followed for appointing respondent-DJs as ad hoc DJs for FTCs. However, I would consider the question whether their appointments are traceable to the 1983 Rule little later.
20. I would now proceed to consider the principal question and the peripheral issues raised in the course of arguments. Mr.Patil, learned Senior Counsel appearing for the petitioners submitted that under any circumstances, promotions of the respondent-DJs in 2003-2004, cannot be treated as regular promotions against vacant posts. At the relevant time, Respondent DJs, who were working as Civil Judges (Sr.Dn.), were temporarily made as Presiding Officers of the FTCs and their appointment was to an ad hoc ex cadre post. In other words, the posts held by respondent-DJs were 49 not part of sanctioned strength of the cadre of District Judge or to any sanctioned posts in service, whether permanent or otherwise. Their promotions were for to FTCs which was only a temporary arrangement. He further submitted that the appointments to the ad hoc FTCs, being outside the cadre of District Judge, the functions of the ad hoc District Judges were also limited. The mere fact that the procedure prescribed for appointment to the posts of District Judges was followed for appointing respondent-DJs as ad hoc Fast Track Judges cannot be a basis to treat their appointments as regular promotions or their promotions in the cadre of District Judge. The procedure applicable to promotion of District Judge was followed in the light of paragraph 10 (1) of Brij Mohan lal-1. Thus, he submitted, merely because, the procedure contemplated was followed, the same cannot be the basis to claim seniority in the cadre of District Judge from the dates of their appointments in 2003-04. He submitted that the 1983 Rules do not provide for an appointment as District Judges either on temporary basis or creation of posts of District Judges on temporary basis or on ad hoc basis and 50 in view thereof, the promotion of respondent-DJs are not traceable to the 1983 Rules. Further, he submitted, that the record shows that as on the date of ad hoc appointment there were no vacant posts and therefore, there could not have been any regular promotion. It was submitted that the contention raised on behalf of respondent-DJs that their officiating promotions have to be counted for seniority also deserves to be rejected outright. He submitted that merely because the orders of appointment are issued in the name of Governor the same will not change the complexion of appointments which are ad hoc and to temporarily created FTCs and outside the service/cadre of District Judge. Then in reply to the submissions advanced by Sri P.S.Rajagopal, learned senior counsel on behalf of the High Court based on Karnataka Civil Services Rules and Karnataka Civil Services (General Recruitment) Rules, 1977, he submitted that the term "officiate" and appointments by promotion being on "officiating basis" has no application as the said rules contemplate officiating in relation to "post in service" and not something out of service/cadre as in the present case. In 51 support of these contentions, he placed reliance upon the following judgments of the Supreme Court: i) Brij Mohan Lal- 1; ii) Brij Mohan Lal-2; iii) Debabrata Dash v. Jatindra Prasad Dash (2013) 3 SCC 658 (for short "Debabrata Dash"); iv) Mahesh Chandra Verma and Ors. Vs. State of Jharkhand and Ors., (2012) 11 SCC 656; v) State of Orissa and Ors., v. Sri Jagabandhu Panda, 2013 (3) SCALE 93; vi) O.P.Singla and Anr. v. Union of India and ors., (1984) 4 SCC 450; vii) V.Sreenivasa Reddy and others vs. Govt. of Andhra Pradesh and others, 1995 Supp. (1) SCC 572; viii) All India Judges Association and Ors. Vs. Union of India (UOI) and Ors. (2002) 4 SCC 247.
21. On the other hand Mr. P.S.Rajagopal, learned Senior Counsel on behalf of the High Court submitted that to fill up certain permanent posts and temporary posts, the respondent-DJs were promoted, temporarily on ad hoc basis to officiate as District Judges. All those promotions, he 52 submitted, were regular promotions against vacant posts created temporarily and were made under the 1983 Rules. He then submitted that the promotions being on officiating basis, count for seniority, particularly, because they were continued uninterruptedly till the promotions were made permanent against permanent vacancies in 2009. Then it was contended that only for the reason that the promotions were against temporary vacancies and on ad hoc basis cannot be the reason not to treat them for regular promotion. In other words, he submitted that merely because words "temporarily" and "ad hoc" were used in the notifications, the substance of appointments cannot be overlooked in the light of the 1983 Rules. In support, he placed reliance upon Rule 19 of the Karnataka Services (General Recruitment) Rules 1977 and Rule 8 (31) of the Karnataka Civil Services Rules,1958, which defines the expression "officiating". He also invited my attention to the resolutions passed by the Administrative Committee No.II and the Full Court and submitted that it clearly demonstrate that the respondent-DJs were fit and suitable to be promoted 53 temporarily as ad hoc District Judges on officiating basis. Then he invited my attention to the definition of "cadre" as defined by Rule 9 (7) of the Karnataka Civil Service Rules and submitted that the promotion order should be read in the light of these rules and if so read, it is clear that was a regular officiating promotion on the temporary vacancies subject to reversion at any time. He submitted that words "temporary" and "ad hoc" and the expression "subject to reversion at any time" would not mean that the promotions in 2003-04 cannot be treated as regular promotion since those posts were continued until their regular promotions were made in 2009. Lastly, he submitted that it is true that the posts against which their promotion orders issued were temporary/officiating promotions and were to lasts until subsistence of the temporary vacancies, and when such temporary vacancies cease to be available, entailing reversion of such promotees, but then the temporary vacancies against which promotions of the respondent-DJs were made subsisted until the permanent vacancies arose and in view thereof their seniority will have to be continued 54 from the dates of their appointments in 2003-2004. In support of the contentions urged on behalf of the High Court, Mr.Rajagopal, learned Senior counsel placed heavy reliance upon the following judgments: (i) Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra,(1990) 2 SCC 714; (ii) L.Chandra Kishore Singh V. State of Manipur, (1999) 8 SCC 287; (iii) Ajit Kumar Rath v. State of Orissa (1999) 9 SCC 596; (iv) O.P.Garg V. State OF U.P. 1991 SUPP.(2) SCC 51; (v) Rudra Kumar Sain V. Union Of India, (2008) 8 SCC 25; (vi) B.S.Mathur V. Union of India 2008 AIR SCW 7042; (vii) G.K.Dudani V. S.D.Sharma 1986 (SUPP) SCC 239. He also placed reliance upon some of the judgments relied upon by Mr.Patil, learned senior counsel for the petitioners, in support of his contentions.
22. Before I advert to the diverse submissions advanced on behalf of the parties, it would be advantageous to refer to the judgments of the Supreme Court in Brij Mohan Lal-1, Brij Mohan Lal-2 and Debabrata Dash. Not only in the course of arguments by learned counsel for 55 the parties, but even in the decision making process, the Committee and the Full Court placed heavy reliance upon the first two judgments. Some other judgments were also referred to and relied upon by learned counsel for the parties in support of their submissions to which I would make reference at appropriate stage.
22.1. Mr.Patil, learned Senior Advocate for the petitioners at the outset submitted that the committee as well as the Full Court committed a grave error of law in fixing the seniority based on the direction 1 and 14 in paragraph-10 of Brij Mohan Lal-1. He submitted, this judgment was considered by the Supreme court in Debabrata Dash and direction 14 in paragraph-10 in particular to hold that until the vacancy occurred in the cadre of superior judicial service (senior branch) which was to be filled up by promotion, the service rendered by the petitioners-promotee therein in the Fast Track Court cannot be deemed to be service rendered in the superior judicial service, senior branch. In our case it is District Judge. He submitted that, until then, the promotees 56 continue to be member of the parent cadre, that is, Senior Judge (Sr.Dn.) in our case. He submitted that it clearly shows that direction-14 was not understood correctly and was wrongly interpreted to hold that respondents-DJs are entitled for deemed date of promotion from the dates on which they were appointed as ad hoc District Judges in 2003 and 2004.
22.2. On the other hand, Mr.P.S.Rajagopal, learned Senior Advocate on behalf of High Court, based on the judgment of the Supreme Court in Debabrata Dash, submitted that even if the deemed seniority is given to the respondents-DJs, from the dates on which the vacancies in the cadre of DJ occurred that would not change the seniority fixed by way of impugned notification. He submitted that even before the petitioners were appointed as DJs, under 25% quota of direct recruits, there were sufficient number of vacancies in the cadre of District Judges in 50% quota for promotions and 25% quota for accelerated promotions. He therefore submitted, under any circumstances, based on the 57 judgment of Debabrata Dash, this Court need not interfere with the impugned notification. He also submitted that in fact the judgment in Debabrata Dash, has no application to the facts of the present case.
23. In Brij Mohan Lal-1, the Supreme Court was dealing with a case related to the establishment and functioning of courts described as Fast Track Courts ("FTCs"). Challenge was made to the FTCs scheme in various High Courts, primarily on the ground that there was no constitutional sanction for employment of retired Judges and that effective guidelines were not in operation. Several deficiencies were pointed out and a plea was made that instead of retired officers, eligible members of the Bar should be considered for the appointment. The stand of the Union of India was that there was no mandatory requirement for appointment of retired Sessions/Addl. Sessions Judge or other officers and that ad hoc promotion of judicial officers would meet the objective of the scheme. It was pointed out that consequential vacancies created on account of ad hoc 58 promotions can be filled by a special drive so that there is no shortfall in the personnel of lower courts. The Supreme Court considered its several judgments including All India Judges Association and others vs. Union of India and others, 2002 AIR SCW 1706; All India Judges Association and others vs. Union of India and others, 1982(1) SCC 119; and All India Judges Association and others vs. Union of India and others, 1993 (4) SCC 288.
23.1. The Supreme Court held that there was nothing constitutionally improper in the scheme. It was further observed that High Court has to play a pivotal role in implementation of the scheme for its effective implementation and achievements of the objectives of the scheme, of course, complying with the constitutional requirements embodied in the relevant provisions of Chapter- VI of the Constitution. The Supreme Court, then, in paragraph-10 of the report, proceeded to issue directions, keeping in view the laudable objective with which the FTCs scheme had been conceived and introduced, to take care of 59 initial teething problems highlighted by the parties. The relevant directions for our purpose find place in sub-paras-1 and 14 in paragraph 10 of the report, which read thus:
"1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial officers. While giving such promotion the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.
14. No right will be conferred on Judicial Officers in service for claiming any regular promotion on the basis of his/her appointment on ad-hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any Judicial Officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade."
(emphasis supplied )
24. Then the Supreme Court again in Brij Mohan Lal-2, dealt with the writ petitions filed under Article 32 of the Constitution and some Special Leave Petitions, filed against various judgments of different High Courts, with respect to the scheme and policy of appointment of ad hoc 60 Judges of FTCs and for directions to the respondents to extend the FTC scheme for another five years or even till 31-3-2015 and to release necessary funds for that purpose. The Supreme Court considered the contention urged in those writ petitions that the constitutional scheme contained under Articles 233 and 235 read with Articles 309 and 310 of the Constitution of India does not contemplate and permit appointment of retired Judges as ad hoc District and Sessions Judges. The Supreme Court also considered the submission that there is no constitutional provision which empowers the authorities concerned to make such appointments and observed that the purpose of those objectives obviously was to ensure that only the members of bar were appointed by direct recruitment to the post of ad hoc District and Sessions Judges. Then the Supreme Court after considering the direction issued in Brij Mohan Lal-1 as reflected in paragraph-10 thereof, in paragraphs-6 and 7, to the extent it is necessary for our purpose, observed thus :
"6. As is evident from the above directions in Brij Mohan Lal-1, the 61 appointments to FTCs were to be made on adhoc basis...............
7. This Court had foreseen the possibility of the closure of the Fast Track Courts Scheme (FTC Scheme). It directed that the service in FTCs will be deemed as service of the promoted judicial officers rendered in the parent cadre. However, no right would accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for regular promotion on the basis of such appointment................"
(emphasis supplied) 24.1. Then, in paragraph 176 of the Report, the Supreme Court noted that while appointing Fast Track Court Judges, it was clearly stipulated that such appointments would be ad hoc and temporary and that the appointees shall not derive any benefit from such appointments.
25. From perusal of the judgments of the Supreme Court in Brij Mohan Lal-1 and Brij Mohan Lal-2, it is clear that though the Supreme Court exhaustively dealt with the FTC Scheme and issued useful guidelines, related questions did not have an occasion to address the question/issue of 62 seniority, as has been raised in these petitions, between the direct recruits and ad hoc promotees. The observations made by the Supreme Court, and the guidelines/directions issued therein, however, would definitely guide/help us to resolve the question raised in these petitions.
26. The Supreme Court, in Debabrata Dash had an occasion to deal with the question whether the service rendered by a promotee in the Fast Track Court as Additional District Judge is to be taken into account while fixing his seniority after regularization of his services in the Senior Branch Cadre under the Orissa Superior Judicial Service Rules, 1963 (for short "Orissa Rules"). The question that fell for consideration of the Supreme Court in that case and the question that falls for our consideration in the present case are similar.
26.1. The Supreme Court while dealing with the question, apart from other judgments, directly and indirectly covering the question, also considered the judgments in Brij 63 Mohan Lal-1 and Brij Mohan Lal-2 exhaustively. A heavy reliance was placed upon the judgment of the Supreme Court in Debabrata Dash by the petitioners to contend that the question that falls for my consideration in the present proceedings is squarely covered by the said judgment. On the other hand it was submitted that this judgment is wholly inapplicable to the fact situation in the present case.
26.2. The brief facts leading to the controversy involved in Debabrata Dash would be necessary. The promotee therein was posted as ad hoc ADJ in the FTC on 11.4.2002. On 28-5-2003, his tenure as ad hoc ADJ was extended for further period of one year or till 31-3-2004, whichever, was earlier. By a notification dated 15-12-2003, he was allowed to officiate in the Senior Branch of the Superior Judicial Service on regular basis on account of vacancies that arose due to retirement of officer of the superior Branch on 31-7-2003. He was posted on 19-1-2004 as Addl. District and Sessions Judge pursuant to the notification dated 15-12-2003 to which post he joined on 64 3-2-2004. He was then appointed in the cadre of District Judge with effect from 17-01-2007 and he was granted selection grade with effect from 22-10-2009. On 13-11-2009, he submitted a representation seeking seniority in the cadre of District Judge with effect from 26-4-2002, i.e., the date of his joining as ad hoc ADJ.
26.3. As against this, the appellants-direct recruits in that case were appointed on 13-1-2003 in senior cadre of Orissa Superior Judicial Services by way of direct recruits under the said Rules. Pursuant to the posting order dated 22-1-2003, they joined as ADJ on 3-2-2003 and 7-2-2003. They were continued with effect from 03-02-2004 and 07-02- 2004 and were conferred selection grade with effect from 3-2-2008 and 7-2-2008.
26.4. The claim of seniority by the promotee over the direct recruits was based on the ground that the period of their service as ad hoc addl. District Judge (FTC) should be 65 included for the purpose of computing length of service in the cadre of senior branch superior judicial service under the 1963 Rules.
26.5. The Division Bench of the High Court considered the challenge raised by the promotee judge and held that promotion of the promotee judge has to be counted with effect from 26-4-2002 when he joined the post initially and his subsequent regularisation deserves to be considered to be effective from that date.
26.6. The Supreme Court, in Debabrata Dash, keeping in view the aforementioned materials/judgments, considered in depth both the judgment in Brij Mohan Lal and in paragraphs-43 to 48 (paragraph numbers referred to are from the typed copy of this judgment furnished before me) held/observed thus:
"43. In Brij Mohan Lal (1) a three-Judge Bench of this Court, inter alia, considered the Fast Track Courts scheme. In paragraph 10 of the judgment, this Court gave various directions. Direction No.14 in that para is relevant which can be paraphrased as follows: (SCC p.10) 66
(i) No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the scheme.
(ii) The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre.
(iii) In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.
44. The learned Senior Counsel for the writ petitioner heavily relied upon the third part of direction No.14. As a matter of fact, this part has been relied upon in the impugned judgment as well. It is submitted on behalf of the writ Petitioner that on promotion to the Senior Branch cadre of Superior Judicial Service during his tenure in the Fast Track Courts, the writ petitioner is entitled to the counting of the service rendered by him in the Fast Track Court as a service in Superior Judicial Service (Senior Branch). The submission overlooks the first two parts of direction No. 14, one, no right will be conferred in judicial service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the scheme; and two, the service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In our opinion, until the vacancy occurred in the cadre of Superior Judicial Service (Senior Branch) which was to be 67 filled up by promotion, the service rendered by the writ Petitioner in the Fast Track Court cannot be deemed to be service rendered in the Superior Judicial Service, (Senior Branch). Rather until then, he continued to be a member of the parent cadre i.e., Superior Judicial Service (Junior Branch).
The third part of direction No.14, in our view, does not deserve to be read in a manner that overrides the 1963 Rules.
45. In Brij Mohan Lal (2), inter alia, the controversy centered around the closure of Fast Track Courts Scheme and the appointment of retired district and sessions judges as ad hoc judges of the Fast Track Courts. In one of the writ petitions filed before this Court, the relief was intended to ensure that only the members of the Bar were appointed by direct recruitment to the post of ad hoc district and sessions judges under the Fast Track Courts Scheme. The Court considered the directions given by this Court in Brij Mohan Lal (1). The Court observed in Brij Mohan Lal 2, that this Court had foreseen the possibility of the closure of the Fast Track Courts Scheme. The Court noted the directions given in Brij Mohan Lal (1), inter alia, in the following manner: (SCC p 523, para 7) "7....that the service in FTCs will be deemed as service of the promoted judicial officers rendered in the parent cadre.
However, no right would accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for regular promotion on the basis of such appointment.
For direct recruits, continuation in service will be dependent on review by the High Court and 68 there could be possibility of absorption in the regular vacancy if their performance was found to be satisfactory".
46. In Brij Mohan Lal (2), this Court with reference to the Superior Judicial Service in the State of Orissa, noted in paragraph 171 of the Report thus: (SCC p.567) "171. Similarly, we also find no merit in the contention that this Court should quash the advertisement issued by the State of Orissa for making selections to the Orissa Higher Judicial Services on the basis of the claims for regularisation of the petitioners against such posts.
There are two different sets of Rules, applicable in different situations, to these two different classes of officers and further they are governed by different conditions of service. They cannot be placed on a par. The process of their appointments is distinct and different. These petitioners have no right to the post.
Thus, it would neither be permissible nor proper for the Court to halt the regular process of selection on the plea that these petitioners have a right to be absorbed against the posts in the regular cadre."
Then, in para 176 of the Report, the Court observed that the Fast Track Court Judges were appointed under a separate set of rules than the rules governing the regular appointment to the State Higher Judicial Service. The Court noted 69 that while appointing Fast Track Court Judges, it was clearly stipulated that such appointments would be ad hoc and temporary and that the appointees shall not derive any benefit from such appointment.
47. We have already indicated above that on 05.01.2002 or 26.04.2002, there was no vacancy in the cadre of Superior Judicial Service (Senior Branch) for being filled up by promotion. Such vacancy in the Senior Branch cadre of the service occurred on 15.12.2003 and from that date the writ petitioner has been given benefit of his service rendered in the Fast Track Court. The administrative decision by the Full Court is in accord with the 1963 Rules, the 2001 Rules and the legal position already indicated above. The view of the Division Bench in the impugned judgment is legally unsustainable. The impugned judgment is liable to be set aside and is set aside."
(emphasis supplied by me) 26.7. The Supreme Court in paragraph-32 of the report, observed that "the cadre strength in Orissa Superior Judicial Service, Senior Branch has been fixed in the 1963 Rules. No ad hoc or temporary posts of Additional District Judges have been created under these Rules before 5-1- 2002 or 26-4-2002. The cadre strength of Senior Branch of service has not been increased. In this view of the matter, 70 the question of giving any promotion to the Senior Branch of service in the absence of a vacancy in the cadre does not arise".
27. I would now proceed to consider the questions raised and advert to the rival submissions advanced on behalf of the parties, in the light of the materials on record and judgments of the Supreme Court relied upon by learned counsel for the parties. It is not in dispute that immediately before the respondent-DJs were promoted as District Judges temporarily on ad hoc basis they were all working in the cadre of Civil Judge (Sr.Dn.). It is also not in dispute that as on the date of their promotions i.e., 15-2-2003, 19-3-2003, 15-11-2003 and 20-03-2004, there were no vacancies/posts in the cadre of District Judge available under the 1983 Rules.
27.1. The vacancy position show that on 15-2-2003 the sanctioned cadre strength of DJ was 155 and that 4 District Judges were in excess and no cadre post for promotion on seniority-cum-merit basis was vacant/available. 12 posts in the cadre to be recruited/appointed directly were, however, 71 vacant/available. Those were kept vacant till the 2004 Rules were brought into force and/or, till the petitioners were appointed in 2008. On 19-3-2003 also no cadre post was vacant/available to be filled by promotion. On 15-11-2003, 9 cadre posts were vacant/available to be filled by promotion and on 20-03-2004, 12 cadre posts were vacant/available to be filled by promotion. Under the 1983 Rules, cadre strength, as indicated in the RG's statement of objections on 20-03-2004, was 157.
28. At this stage, I would also like to make reference to the cadre strength and the vacancy position on other relevant dates. The 2004 Rules were brought into force on 9.9.2005. Just before that, on 1.9.2005, the sanctioned cadre strength of DJ was 172 and only 37 cadre posts were vacant/available to be filled by way of promotion on seniority-cum-merit, and 21 posts were vacant/available to be filled by way of direct recruitment.
72
28.1. After the 2004 Rules were brought into force i.e. on 1.10.2005, the cadre strength of DJ was 172 and there were only 8 posts vacant/available to be filled by promotion on seniority-cum-merit; while 43 by way of accelerated promotion and 7 by direct recruitment.
28.2. On 25-2-2008, when the petitioners were appointed as DJs, the cadre strength of DJ was 180, out of which, 34 were available to be filled by way of promotion, 45 by way of accelerated promotion and 14 by way of direct recruitment. On 1-6-2009, 27-6-2009 and 29-7-2009, when the respondent-DJs were promoted under Article 233 of the Constitution of India, the cadre strength of DJ was 179, out of which 52 were vacant/available to be filled by promotion, 45 by way of accelerated promotion, and 8 by direct recruitment. The fact of the matter is that though about 85 posts of ad hoc additional District Judges (FTC) were created out of Eleventh Finance Commission Recommendations, and those posts were filled by following the procedure adopted by the High Court as per the 1983 Rules, no vacancies to 73 accommodate them all as on the date of the notifications, in 2003-04, were available in the cadre of District Judge nor the cadre strength was increased.
29. At this stage, it would be convenient to have a look at the judgment of the Supreme Court in Direct Recruit Class-II Engineering Officers' Association (supra), the Supreme Court in paragraph - 47, while summing up held, as under:
"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
The corollary of the above rule is that were the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the 74 ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly."
(emphasis supplied) 29.1 Though, there appeared to be a contradiction in Conclusion (A) and (B), the Constitution Bench of the Supreme Court in West Bengal Vs. Aghore Nath Dey, (1993) 3 SCC 371, while reading the conclusions (A) and (B) observed thus:
"i) Conclusion (B) cannot cover cases which are expressly excluded by conclusion (A).
ii) Conclusion (B) covers cases where the initial appointment is made against an "existing vacancy", "not limited to a fixed period of time or purpose" by the appointment order itself and is made subject to deficiency in the procedural requirements prescribed for adjudging suitability of the appointee for the post being cured at the time of regularization."
(emphasis supplied) This is reiterated in the State of Haryana & others vs. Vijay Singh and others (2012) 8 SCC 633.
75
29.2. In Debabrata Dash, the Supreme Court considered the directions (A), (B) and (C) and in paragraph- 43 observed thus :
"43. The essence of direction in clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed to a post according to rules. In other words, where initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The writ petitioner's appointment as an ad hoc Additional District Judge is not traceable to the 1963 Rules. The simple reason leading to this consequence is that there was no vacancy available which was to be filled up by promotion on that date in Superior Judicial Service (Senior Branch)".
(emphasis supplied)
30. In this backdrop, I would like to consider whether it is possible to treat the appointments of respondent-DJs as ad hoc DJs in 2003-04, as regular promotions or as promotions in the cadre of District Judge on temporarily created posts.
76
30.1. In Brij Mohan Lal-1, the Supreme Court in paragraph-10 (1) had directed that the first preference for appointment of Judges of Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers and while giving such promotion, the High Court shall follow the procedure in force in the matter of promotion to such posts in Superior/Higher Judicial Services. Thus, in the backdrop of Eleventh Finance Commission Recommendations and in view of the directions issued in Brij Mohan Lal-1, the respondent-DJs were appointed temporarily as ad hoc DJs without increasing the cadre strength of DJ under the 1983 Rules.
31. At this stage I would like to refer to two more judgments of the Supreme Court, relied upon by the respondent-DJs. In Rudra Kumar Sain (supra), the Supreme Court has held thus:
"20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of 77 the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stop-gap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/ stop-gap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous."
31.1. In O.P. Singla (supra), the Supreme Court in paragraphs 26 & 27 observed thus:
"26.The pre-requisite of the right to inclusion in a common list of seniority is that all those who claim that right must, broadly, bear the same characteristics. The mere circumstance that they hold posts which carry the same designation will not justify the conclusion that they belong to the same class. Persons who are appointed or promoted on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class or posts are permanent or temporary. The rules in the instant case do not require that persons belonging to the former category have to satisfy any particular prescription like consultation with the High Court. We are informed that in practice, persons who are 78 promoted to the Delhi Higher Judicial Service on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement are appointed only after their names are cleared or approved by the High Court. That may or may not be so. The point of the matter is that there is no provision in the Rules which requires that such appointments must also be made in accordance with any set formula. The courtesy shown by the authorities to the High Court when certain appointments are made, is one thing; The obligation imposed by the Rules on the authorities that the High Court shall be consulted when certain other appointments are made, is quite another. Indeed, there is a distinction between the process of consultation with the High Court and the screening of the promotees done by the High Court, may be at the instance of the authorities, when their names are considered for appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stop-gap basis.
27. Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement, constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the Service".
(emphasis supplied) 79 31.2. Judgment of the Supreme Court in O.P.Singla and Rudra Kumar Sain (supra) concerned entitlement of seniority of the appointees to temporary posts created in accordance with the Rules. Unlike the present case, the rules therein expressly provided that such temporary posts are cadre posts and such temporary post in service were held to be distinct from ad hoc post. The decision in O.P.Singla itself distinguished such temporary posts which were created as per statute and were part of cadre posts from ad hoc or fortuitous posts. This understanding is also reflected in Rudra Kumar Sain.
31.3. In the present case, we are concerned with ad hoc and temporary posts. The 1983 Rules did not provide for or created any temporary posts or ad hoc posts. Similarly there is nothing on record to show that the respondent DJs were appointed/promoted against vacant posts created temporarily or the cadre strength was increased, permanently or temporarily under the 1983 Rules. The 1983 Rules, as a matter of fact, do not provide for creation of any 80 such posts. In this connection, let us see what the Supreme Court in V.Sreenivasa Reddy (supra) in paragraph-29 has observed, to understand the effect of ad hoc appointment outside the cadre/service, which read thus:
"29. The further contention that in Bhatnagar's case, it is one of regularization of the ad hoc employees and in the instant case regularization is of the temporary service is not helpful since the distinction is without difference. Both were not the members of the service unless they were appointed to the service in accordance with Rules. Therefore, ad hoc employee or employees appointed on emergency basis, both form the same class. There cannot be any distinction on that score."
(emphasis supplied)
32. The fact of the matter is that there is no provision in the 1983 Rules which provides for an appointment on ad hoc basis either on permanent vacancy in the cadre of DJ or on temporarily created post or that an appointment on ad hoc basis must also be made in accordance with any set formula. The courtesy shown by the High Court when respondent-DJs were promoted as ad hoc DJs is one thing; and the obligation imposed by the Rules is quite another. The 81 respondent DJs, who were appointed as ad hoc DJs, constitute a class which is separate and distinct from those who are appointed to the posts in the cadre/service in strict conformity with the rules of recruitment. It is clear and not in dispute that no ad hoc or temporary posts in the cadre of DJs on which the respondent-DJs were appointed in 2003-04, had been created. The 1983 Rules, which were then prevailing also did not provide for such appointments. Even the cadre strength was not increased. In view thereof, the question of giving any promotion to the post of DJ, at that stage or even thereafter under the 1983 Rules did not arise. Moreover, no steps were taken by the High Court before the 2004 Rules were brought into force to fill the posts in the cadre of DJ which were vacant/available. The promotions were also possible when the 2004 Rules were brought into force, but no steps were taken till 2009. Neither any explanation has been afforded by the RG, nor did the respondent-DJs at any point of time made any grievance or sought their regular promotions in the cadre of DJs on the available vacancies. In view thereof, whether such 82 appointees can be placed in the list of seniority, taking the earlier period i.e., from the date of their appointments on ad- hoc basis on the posts outside the cadre, above the direct recruitees who are appointed in conformity with the Rule in force is the question.
33. Justification for placing the respondent-DJs above the petitioners was on the sole premise of direction 14 in paragraph-10 of Brij Mohan Lal-1. If the report of the Committee is carefully seen, I find that the Committee concluded stating that there was nothing for them to decide as the issue had been decided in Brij Mohan Lal-1. Therefore to state that the Committee interpreted and decided that the services rendered by the respondent DJs as ad hoc District Judges should be considered for the purpose of seniority, is incorrect. Even otherwise, interpretation of the RG based on the report of the Committee, as regards direction No.14 in paragraph-10 of the Brij Mohan Lal-1 runs quite contrary to the decision of the Supreme Court in Debabrata Dash. Besides, a mere reading of Brij Mohan 83 Lal-1 itself, indicates that, the services rendered as ad hoc Judges will be treated as service rendered in the parent cadre, i.e., Civil Judge, Senior Division. Thus, in my opinion, the understanding based on which the impugned seniority is prepared by the RG is contrary to the decision of the Supreme Court.
34. In Brij Mohan Lal-2, the Supreme Court regarding the nature of appointments of Fast Track Judges in paragraph-79 held that where neither the post is sanctioned nor is permanent and, in fact, the entire arrangement is ad hoc or is for uncertain duration, it cannot create any rights and obligations in favour of the appointees, akin to those of permanent employees. The appointees in that case, had been appointed not only on ad hoc and temporary basis but entire FTC Scheme was ad hoc and for a duration of five years only as declared by the Central Government. The Supreme Court observed in paragraph-8 that if the entire scheme has to be disbanded now, a chaos will be created inasmuch as services of several officers who had been promoted on an ad hoc 84 basis will have to be reverted to their substantive post. Similarly, if corresponding promotion had been given to others, it will be necessary also to pass orders of reversion in such cases. This observation clearly shows that ad hoc judges were to be continued to remain in the cadre of Civil Judge, Senior Division.
35. The Supreme Court in Mahesh Chandra Verma (Supra) made it clear that FTCs were to be ad hoc courts. The judgments of the Supreme Court in Brij Mohan Lal-1, Brij Mohan Lal-2 and Mahesh Chandra Verma, show that the appointments were ad hoc and not to any sanctioned posts in service, whether permanent or otherwise, but to FTCs which was only a temporary arrangement.
36. In Sri Jagabhandu Panda, (supra) the Supreme Court clearly observed that a cadre may consist of permanent as well as temporary post and there may be permanent vacancies in permanent as well as temporary post, but it does not follow that appointment made outside the very service and outside the cadre must be considered to 85 be made to temporary post borne on the cadre merely because the post was likely to continue indefinitely. These observations further help us to understand the nature of posting of respondent-DJs.
37. In Debabrata Dash, the Supreme Court considered whether promotion of the promotee judge, who was petitioner therein, as an ad hoc Additional District Judge vide notification dated 5-1-2002 to the Senior Branch of the Superior Judicial Service for being posted in the Fast Track Court can be said to be appointed in the Senior Branch cadre of Superior Judicial Service. The Division Bench of Orissa High Court had taken the very same view as contended by the respondent-DJs in the present case. The view was though the promotion of the writ petitioner in Senior Branch Cadre of Superior Judicial Service was initially ad hoc but that was given to him after the High Court adjudged his suitability for promotion by following the 1963 Rules, and that such ad hoc promotion was regularized vide notification dated 15-12-2003 under the 1963 Rules as he had rendered 86 uninterrupted service. This view of the Division Bench was however negatived by the Supreme Court in Debabrata Dash. It would be relevant to reproduce paragraph 36 thereof, which reads thus:
"36. As noted earlier, 72 posts of ad hoc Additional District Judges were created under the 2001 Rules to meet its objectives. These posts were not part of cadre strength of Senior Branch Service in the 1963 Rules nor by creation of these posts under the 2001 Rules, the cadre strength of the Senior Branch of service got increased............
.........Merely because the writ petitioner was adjudged suitable on the touchstone of the 1963 Rules, we are afraid, it cannot be said that he was given appointment to the post of ad hoc Additional District Judge under the 1963 Rules."
38. The distinction between an appointment in accordance with the Rules and an appointment made after following the due procedure in force will have to be noticed. Merely because, appointment is made after following the procedure contemplated by Rules, temporarily on ad hoc basis, would not mean that the appointment is in accordance with or in conformity of the Rules, unless the Rules provide for such appointments. In other words, it is necessary that 87 such posts, temporary or ad hoc, are part of cadre strength or that such posts are recognized by the relevant rules. The appointee on such posts would not become member of the cadre, if his appointment is not in accordance with the Rule. Merely because such appointee was adjudged suitable on touchstone of the Rules, such as the 1983 Rules in the present case, his appointment cannot be treated as an appointment on the vacant post in the cadre. The 1983 Rules do not provide for temporary or ad hoc appointments either on permanent (vacant) posts or on temporarily created posts or otherwise. The appointments made outside the cadre or the cadre strength fixed with reference to the 1983 Rules cannot be treated as an appointment/promotion in accordance with the rules. In the present case, even if it is accepted that the procedure in force was followed the fact remains that the 1983 Rules and, even the 2004 Rules for that matter, do not provide for appointments/promotion on ad hoc basis or temporary promotion or promotion on temporarily created posts as cadre posts. Similarly, merely because orders of appointments of respondent-DJs were 88 issued in the name of Governor, the same would not change the complexion of the appointments which were ad hoc and to the temporarily created FTCs and definitely outside the service cadre.
39. The notifications appointing the respondent-DJs as ad hoc Judges, make it clear that their appointments to FTCs was made "temporarily on ad hoc basis", "subject to reversion at any time". Thus, it is clear that the appointments were made to FTCs and not to any posts in service/cadre. In other words, the question of appointing them on regular basis did not arise since there were no vacancies available to appoint/promote the respondent DJs in 2003-04. Therefore, I am afraid the case of the respondent- DJs cannot be said to have been covered by Conclusion (B) in Aghore Nath Dey (supra). The Supreme Court held that in cases covered by Conclusion (B) if there is a delay in curing the defects on account of fault of the appointee such as the respondent-DJs in the present case they would not get the full benefit of earlier period. In the present case, the 89 respondent-DJs never complained of they not being promoted when vacancies arose nor did they make any efforts to seek regular promotion on the vacancies as they kept occurring. Even the High Court did not take any steps since 2002-03 till the respondent-DJs were promoted in 2009 to fill the vacancies that kept on occurring in the cadre of DJ, despite there being Rule 7 in the 2004 Rules. This rule provides that for filling up of vacancies by promotion the recruiting authority shall take all necessary steps well in advance so as to finalise the list of persons considered eligible for promotion atleast 10-15 days before occurrence of vacancy.
40. The Karnataka High Court has not framed independent rules for appointment of ad hoc judges. The 2004 Rules were framed and brought into force after the FTC scheme was implemented in this State, still they are silent in respect of temporary posts or ad hoc posts of District Judges for Fast Track Courts and the procedure to fill those posts. In 2008, the petitioners were recruited/appointed while in 2009 90 respondent-DJs were promoted as DJs. The High Court did not take any steps nor did it feel necessary to frame independent rules relating to recruitment of judicial officers in the State temporarily on ad hoc basis for implementation of the directions issued in Brij Mohan Lal-1 or the recommendation of the Eleventh Finance Commission for upgradation of judicial administration for elimination of pending cases.
41. From the documents placed on record by the RG it appears that all decisions in respect of the appointment of Civil Judges (Sr.Dn.) as ad hoc District Judges were taken by the Committee and confirmed by the Full Court. The committee considered confidential records, quantum of work turned out, opinion of the Hon'ble Judges about the quality of judgments and other relevant materials on record in respect of the Judges who were considered for the posts of ad hoc District Judges for the Fast Track Courts. 91
42. It would not be out of place to observe that, the 1983 Rules, do not provide for the procedure to be followed either for promotion or for accelerated promotion or for direct recruitment of DJs. Rule 2 only provides minimum qualification and promotion on the basis of seniority-cum- merit from the cadre of Civil Judges. It further provides that the High Court may adopt such procedure as it deem fit for selecting candidates for direct recruitment or promotion on the basis of seniority-cum-merit.
43. The Full Court considered the subject regarding promotion of Civil Judges (Sr.Dn.) to the cadre of District Judges, and accordingly, after considering the confidential records, quantum of work turned out, opinion of the Hon'ble Judges about the quality of judgments and overall suitability of the officers for the posts of District Judges, in 2003-04 resolved to appoint/promote, who were found to be fit and suitable, temporarily as ad hoc of District Judges, subject to reversion at any time. These appointments, 92 therefore, cannot be treated as the appointments on vacant posts in the cadre of DJ either at the inception or from the dates on which the vacancies kept occurring.
44. In pursuance of the decision taken by the Full Court, the RG had recommended appointments of Civil Judges (Sr.Dn.) for promotion to the cadre of District Judges for Fast Track Courts. Accordingly, notifications were issued and Civil Judges (Sr.Dn.) were promoted temporarily on ad hoc basis to officiate as District Judges with immediate effect "to man the Fast Track Courts" subject to reversion at any time. The words "to man the Fast Track Courts" were subsequently removed that in our opinion, would not have any bearing on merits of the case.
45. In either of the Rules i.e., 1983 and 2004 there does not appear to be any rule which deal with seniority of officers in the service. There is no rule giving any benefit to the judicial officers appointed either on temporary basis or on ad hoc basis of their service when they are promoted on the 93 permanent vacancies in the cadre of District Judge. In the absence of any rule, such as, Rule 17 in 1963 Rules referred to by the Supreme court in Debabrata Dash (supra), the respondent DJs are not entitled for deemed date of promotion.
46. In this connection, I would like to have a glance at some more judgments of the Supreme Court, which made the position of law further clear. In Pavan Prathap Singh and others vs. Reevan Singh and others, (2011) 3 SCC 267 the Supreme Court considered the similar issue. The Division Bench, comprising of Aftab Alam and R.M.Lodha JJ., after making reference to the judgment in Direct Recruit Class II Engineer Officers Association (supra) and other judgments, R.M.Lodha J., summarized the legal position with regard to determination of seniority in service as follows :
"45. From the above, the legal position with regard to determination of seniority in service can be summarized as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection 94 starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources.
Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
(emphasis supplied) Aftab Alam J., concurred with the view expressed by R.M.Lodha J., but by a different way and for slightly different reasons.
95
47. In Mahesh Chandra Verma (supra), the Supreme Court made it clear that FTCs were to be ad-hoc Courts. The relevant observations in paragraphs 45, 47 & 50 read thus:
"45............The Fast Track Courts Scheme was challenged on various grounds. The said challenge was dealt with by this Court in Brij Mohan Lal-I......
47..................This court observed that the cumulative effect of the notifications appointing the petitioners therein to the said posts under the Fast Track Court Scheme and the relevant rules governing them clearly demonstrate that those were temporary and, in some cases, even time-bound appointments terminable without prior notice and, therefore, it is difficult to accept the contention that the appointees were entitled to be absorbed regularly in those posts. It was observed that where neither the post is sanctioned nor is it permanent and, in fact, the entire arrangement is ad hoc or is for an uncertain duration, it cannot create any rights and obligations in favour of the appointees, akin to those of permanent employees.
50. ............In Brij Mohan Lal-II, this court even considered the contention that the direct recruits had taken all the tests and, therefore, they should not be made to undergo them again. After considering this argument, this court directed 96 that they will have to take written examination and they must also be interviewed..........."
(emphasis supplied) 47.1. Thus, the persons appointed on ad hoc basis were not given any benefit of such appointment and for their absorption it was held that they must take written examination and interviewed.
48. In Sri Jagabandhu Panda (supra), the Supreme Court observed as under:
"23. ........It is well settled that a cadre may consist of permanent as well as temporary post and there may be permanent vacancies in permanent as well as temporary post, but it does not follow that appointment made outside the very service and outside the cadre must be considered to be made to temporary post borne on the cadre merely because, the post was likely to continue indefinitely."
(emphasis supplied)
49. In P.D.Aggarwal (supra) the following observations are relevant:
97
".......the period of service rendered by the ad hoc appointees before their service has been duly regularized in accordance with the regularization rules, cannot be taken into account in reckoning their seniority in service. Their seniority in service will be counted only from the date when such ad hoc appointees after regularization in accordance with concerned rules have become members of the Service."
(emphasis supplied)
50. In Swapan Kumar Pal and Ors. vs. Samitabhar Chakraborty & Ors. (2001) 5 SCC 581, the Supreme Court in paragraph 9 observed thus:
"...............It is also true that they had been continuing from their respective dates of ad hoc promotion till they were regularized, after being selected through due process. But that by itself cannot confer a right on them to claim the ad hoc period of service to be tagged on, for the purpose of their seniority inasmuch as there is no provision which says that an employee on being regularly promoted, such regular promotion would date back to the date of original promotion in the cadre, which might have been on ad hoc basis. When the service conditions are governed by a set of rules, in the absence of any rules, it is difficult to hold that regular promotion would date back to the date of ad hoc promotion itself".
(emphasis supplied) 98
51. In State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal MANU/SC/1345/2011 in paragraph 4 and 6 the Supreme Court observed thus:
"4. The Respondents herein were appointed on ad hoc officiating post in the year 1988 for a fixed term which was continued. They were regularized in the year 2004 under the Uttaranchal Regularization of Ad Hoc Appointments (Posts under the purview of Public Service Commission) Rules, 2002 (for short 'the Rules'). The Respondents claimed benefit of their service from 1988 to 2004 for the purpose of seniority and this has been granted by the High Court. Hence, this appeal.
6. Admittedly, the Respondents were appointed after a selection under the Regularization Rules in the year 2004. Hence, in our view, they can get seniority only from the year 2004 and not from 1988. The rule is clear and hence we cannot debar from the clear meaning of the rule."
(emphasis supplied)
52. From the 1983 Rules and the 2004 Rues and so also, the vacancy position placed on record along with the Statement of objections filed by the RG, it is clear that the cadre strength in the cadre of District Judge had been fixed by the High Court. No ad hoc or temporary posts of Addl. 99 District Judges or District Judges were/are created under these rules. No rules were made to regulate the judicial officers in the State appointed on ad hoc basis purely on temporary posts for the FTCs. The cadre strength of District Judges was not increased when the respondents were appointed in 2003 -2004. In this view of the matter, the question of giving any promotions to the posts of District Judge since the dates of their ad hoc promotions in the absence of vacancies in the cadre in 2003-04 did not arise.
53. The notifications issued in 2003-04, whereby the respondent-DJs were promoted temporarily on ad hoc basis to officiate as District Judges with immediate effect for the Fast Track Courts subject to reversion at any time, do not indicate that their appointments were made under 1983 Rules. It is in this backdrop we have no hesitation to hold that the posts created temporarily on ad hoc basis, on which the respondent-DJs were appointed, were not part of the cadre strength of District Judge in the 1983 Rules nor by creation of those posts as per the FTC Scheme, the cadre 100 strength of District Judges got increased. That is not even the case of respondents.
54. It is now well settled that when a statutory functionary make an order based on certain ground/materials, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons either in the shape of affidavit or otherwise, as has been done in the present case (See Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405 and Hindustan Petroleum Corpn. Ltd. v. Darius Shahpur Chenai & others (2005) 7 SCC 627). In the present case, the case tried to be made out in the course of arguments on behalf of the High Court, does not find place either in reply affidavit or the material on the basis of which the seniority list was prepared. Such case is not reflected even in the resolution passed by the Committee or the Full Court.
55. The promotion of respondent-DJs as ad hoc District Judges vide notifications dated 15-2-2003, 101 19-2-2003, 15-11-2003 and 20-03-2004, in pursuance of which they joined the posts on ad hoc basis are traceable wholly and squarely to the FTC scheme and in any case not to the 1983 Rules or even the 2004 Rules for that matter. Merely because, the respondent-DJs were adjudged suitable on the touchstone of the 1983 Rules, I am afraid, it cannot be said that they were promoted to the posts of ad hoc District Judges under 1983 Rules. As noted above, there were no vacancies to be filled by promotion and to accommodate the respondent-DJs in the cadre strength of DJ, on the date of their appointments as ad hoc District Judges, under the 1983 Rules. Moreover, it cannot be overlooked that the respondent-DJs, who were promoted in 2009 under the 25% quota for accelerated promotion, were not entitled for promotion, without clearing Departmental Competitive Examination. Similarly, even the respondent DJs who were promoted under 50% quota for promotion on seniority cum merits basis, also were not entitled for promotion with retrospective effect in the absence of any rule in the 1983 Rules, giving such benefit.
102
56. In this connection, reference to the following judgments of the Supreme court would be advantageous. In Uttaranchal Forest Rangers' Assn. (Direct Recruit) & Others vs. State of U.P. & others (2006) 10 SCC 346, the Supreme court in paragraphs-37 observed thus:
"37. ...............no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India (1992 Supp (1) SCC 272; 1993 SCC (L&S) 694; (1993) 24 ATC 545]............"
(emphasis supplied)
57. In Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors. ((2011) 3 SCC 267, the Supreme Court held that :
"45........(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been born in the cadre and by doing so it may adversely affect the 103 employees who have been appointed validly in the mean time."
(emphasis supplied)
58. In P. Sudhakar Rao and Ors. Vs. U.Govinda Rao and Ors. 2013(8)SCALE 504, in the following observations made in paragraphs-60 and 61 are relevant, which read thus:
"60. However, the mere existence of a vacancy is not enough to enable an employee to claim seniority. The date of actual appointment in accordance with the required procedure becomes important in such a case. This was so held in State of Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683 (followed in Nani Sha v. State of Arunachal Pradesh (2007) 15 SCC 406] where it was said:
"Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999 when his actual appointment letter was issued by the Appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this 104 Court in Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456]".
(emphasis supplied)
59. In my opinion, the RG, while fixing seniority of respondent-DJs, based on the resolution passed by the Committee and the resolution of the Full Court held on 14th July 2012 committed two fundamental errors, one, in holding that in view of the judgment of the Supreme court in Brij Mohan Lal-1 the issue of seniority of ad hoc judges has been concluded, and two, overlooking the observations in Brij Mohan Lal-2 in respect of, the date of seniority of the respondent-DJs, who had taken limited departmental examination in 2009 and granted accelerated promotion irrespective of the fact whether they were successful. They were also given seniority from the date of their promotions as adhoc DJs in 2003-04, giving the similar benefit that was given to the respondent DJs who were promoted under 50% quota on seniority-cum-merit. In short, the RG in his report stated that in view of Brij Mohan Lal-1 & 2 decisions and the report of the Committee, the ad hoc District Judges i.e. 105 the respondent-DJs are entitled to seniority from the date of their becoming ad hoc District Judges including those who took limited departmental examination, holding that their taking of the examination was wholly fortuitous in the eye of law. This report of the RG based on the resolution of the Committee and of the Full Court was ultimately approved by the then learned Chief Justice and as a result thereof, the impugned seniority list was published.
60. In this connection, the observations made by the Supreme Court in Deepak Aggarwal (supra), are relevant, which read thus:
"2. The old vacancies have to be filled under the old rules is the mantra, sought to be invoked by the appellants ....based on the principle enunciated by this Court in Y.V.Rangaiah & Ors. Vs. J.Sreenivasa Rao (1983) 3 SCC 284;
24. We are of the considered opinion that the judgment in Y.V. Rangaiah's case would not be applicable........ In the present case, there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or of the selected candidates for promotion.....
106
26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V.Rangaiah's case lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment."
(emphasis supplied)
61. In Delhi Judicial Services Assn. (supra) the Supreme Court at paragraph- 5 held thus:
"5. .................whether the temporary posts having been created prior to the amendment of the Rules, is it the law that those posts could be filled up only in accordance with the un-amended rules and not otherwise?.......In Rangaiah's case (1983) II LLJ 23 SC ....... The aforesaid decision will have no application to the case in hand inasmuch as in Delhi Higher Judicial Service there is no requirement of preparation of any panel or 107 list of candidates eligible for promotion by any particular date. Then again, merely because posts were created under Rule 16, it was not obligatory for the appointing authority to fill up those posts immediately........."
(emphasis supplied)
62. It is pertinent to note that the RG by resolution of the Full Court was directed to prepare the draft seniority list keeping in view the Karnataka Judicial Service (Recruitment) Rules, 1983, Karnataka Judicial Service (General Recruitment) Rules, 2004 and Full Court resolutions governing the same. From the report prepared by the RG, it is clear that the RG did not consider the 1983 and 2004 Rules at all nor did he consider Brij Mohan Lal-1 and 2 in proper perspective.
63. It is true that the judgment of the Supreme Court in Debabrata Dash was not in the field when the Committee and the Full Court passed the resolutions and when the objections were considered and decided by the RG. That by itself would not change the position of law. The 108 decision of the RG based on the resolution of the Committee and of the Full Court, in my opinion was wrong in view of the observations made by the Supreme Court in Debabrata Dash. The Supreme Court has clearly observed that the first two conditions of direction-14 in paragraph 10 of Brij Mohan Lal-1, one, no right will be conferred in judicial officers for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the scheme, and two, the services rendered in Fast Track Courts will be deemed as service rendered in the parent cadre cannot be overlooked. The third part of the direction 14 cannot be read in isolation. Having regard to these two conditions, the Supreme Court observed that until the vacancy occurred in the cadre of Superior Judicial Service (Senior Branch) which was to be filled by promotion, the service rendered by the writ petitioner (promotee judge) in the Fast Track Court cannot be deemed to be service rendered in the Superior Judicial Service (Senior Branch). Rather until then, he continued to be a member of the parent cadre, i.e., Superior Judicial Service (Junior Branch). The third part of direction No.14, the 109 Supreme Court observed, does not deserve to be read in a manner that overrides the 1963 Rules.
64. The Supreme Court, while making such observations, had also taken note of the 1963 Rules in detail and so also the Orissa Judicial Service (Special Scheme) Rules, 2001. It is also apparent from the judgment of the Supreme Court in Debabrata Dash, in particular, paragraph-23 thereof, that Rule-17 in 1963 Rules was given special attention to. Paragraph-23 of the report reads thus:
"23. Rule 17 makes provision for seniority of officers in the following manner:
17. Seniority of officers in the service shall be determined in accordance with the dates of substantive appointment to the service.
Provided that a promoted officer, who may have been allowed to continuously officiate from a date prior to the date of appointment of a direct recruit, shall, if he is subsequently substantively appointed in the service without reversion to his parent service, take his seniority in the cadre over such direct recruit."
11064.1. Keeping in view the 1963 rules and the 2001 Rules and judgments in various cases including Brij Mohan Lal-1 and 2 the Supreme Court observed that the administrative decision by the Full Court of Orissa High Court is in accordance with those Rules and the legal position already indicated therein. As it is apparent, Rule-17 of the 1963 Rules clearly provides that a promotee officer who may have been allowed to continuously officiate from the date prior to the appointment of direct recruit, or, if he subsequently substantively appointed in the service without reversion to his parent service, take his seniority in the cadre over such direct recruit. Such Rule does not exist either in the 1983 Rules or in the 2004 Rules nor the Supreme Court in Brij Mohan Lal-1 say so in the third part of the direction- 14 in paragraph-10 of the report.
65. At this stage, I would like to consider the specific submission advanced on behalf of the petitioners by Mr.Patil, learned Senior Counsel that the impugned seniority list prepared was based on the understanding, that the services 111 rendered as ad hoc judge can be considered for the purpose of seniority, is not consistent with the decision in Brij Mohan Lal-1. He submitted that the word "grade" in the direction- 14 cannot be read as "cadre". I would like to have a fresh look at the third part of direction 14 in paragraph-10 of Brij Mohan Lal-1. The third part of direction-14 read thus:
"14. ........ In case any Judicial Officer is promoted to "higher grade" in the "parent cadre" during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such "higher grade"."
(emphasis supplied) 65.1. This direction uses the words/expressions "grade", "parent cadre" and "higher grade". The direction, in my opinion, was issued granting protection to all judicial officers who were appointed as Additional District Judges/District Judges on ad hoc basis for FTCs because, the Supreme Court was conscious that the FTCs being temporary/ad hoc, on their being discontinued the ad hoc appointees would stand reverted to the parent cadre, but for protection granted, on their reversion to parent cadre, i.e. 112 Civil Judge (Sr.Dn.), they would be accorded the same position/grade which they held in the parent cadre at the time of appointment as ad hoc FTC Judges and their entitlement of next grade in the same cadre.
65.2. One need to notice the difference between "cadre" and "grade". In the direction-14 of paragraph-10 of Brij Mohan Lal-1, it appears to me, what is protected is the promotion to "higher grade". The word "cadre" cannot be equated with "grade", as both terms are quite different from each other. In this connection it would be relevant to make reference to the judgment of Jharkhand High Court dated 21- 2-2007 in Ajit Prasad Verma vs. State of Jharkhand, MANU/JH/0055/007. In this judgment, a difference was noticed between "grade" and "post" and observed that direction-14 is to "higher grade" "not the post". The Supreme Court in Lalith Mohan Dey and others vs. Union of India (1973) 3 SCC 862 observed that promotion post is a higher 113 post with a higher pay and a selection grade is a higher pay but in the same post.
65.3. From perusal of the 1983 Rules and the 2004 Rules, it appears that there are three cadres of civil side viz., District Judge/Additional District Judge, Civil Judge, (Sr.Dn.) and Civil Judge (Jr. Dn.). Similarly, on criminal side, Sessions Judge, Chief Judicial Magistrate and Judicial Magistrate First Class. The Commission headed by Justice E.Padmanabhan had fixed grades on the length of service rendered by judicial officers in their parent cadre based on which the Government of Karnataka issued Government Order in No.LAW 147 LAC 2009, Bangalore dated 24-6-2010, which fixed pay scales within the cadre based on different levels/grades. This Government order make it clear that the services rendered by Fast Track Judges in the parent cadre shall be considered for first stage of ACP Scale and Second Stage of ACP scale. To make it further clear even in the cadre of Civil Judge, Jr. Division, there are three grades, entry level, first Stage ACP 114 Scale and second Stage ACP Scale. Similarly in the cadre of Civil Judge, Senior Division, there are three grades/groups, entry level, first Stage ACP Scale and second Stage ACP Scale. Even in cadre of District Judge, there are three grades viz., Entry level, selection grade and super time scale. The Supreme Court in Brij Mohan Lal-1 has not, in the third part of direction No.14, used the word "cadre". The words/expressions used are "grade" and "higher grade" and not "cadre" or "higher cadre".
66. Next, I would like to consider Rule 8 (31) of the Karnataka Civil Service Rules and Rule 19 of the Karnataka Civil Service (General Recruitment) Rules, 1977 (for short "Recruitment Rules") to which specific reference was made by Mr.P.S.Rajagopal, learned Senior Counsel appearing for the respondents. He submitted that Rule 19 of the Recruitment Rules, which provides for "Probation and Appointment by Promotion", stipulates that all appointments by direct recruitment to service or post shall be on probation. 115 Rule 19 (3) (a) stipulates that save as otherwise provided in the recruitment Rules relating to any "service or post" and subject to the proviso to clause (f), all appointments by promotion shall be on officiating basis for a period of one year, which may, for reasons to be recorded in writing, be extended by the Appointing Authority by a period not exceeding one year. Clause (c) of Rule 19 (3) speaks of declaration of satisfactory completion of period of officiation. Rule 8(31) of the Karnataka Civil Services Rules (for short "KCS Rules") defines "Officiate". In the light of these provisions, he invited our attention to the resolutions passed by the Administrative Committee No.II and the Full Court and submitted that respondent-DJs were fit and suitable to be promoted temporarily to the cadre of District Judge subject to reversion at any time. Thus, he submitted promotions accorded to the respondent-DJs were on officiating basis and the promotions were to the cadre of District Judge. He also drew my attention to the definition of the word "cadre" made by Rule 8 (7) of the KCS Rules. He submitted that promotion orders should be read in the light of the KCS rules and if so 116 read every one of the promotions is a regular officiating promotion and the words " temporary", "ad hoc" and the phrase "subject to reversion at any time" only indicate that as the posts against which the promotion orders were issued, initially were temporary, the officiating promotion was to last until subsistence of these temporary vacancies/posts and if any temporary vacancies cease to be available it would entail reversion of concerned promotee. In the present case, he submitted that the temporary vacancies against which the promotions of the respondent-DJs were made subsisted until the permanent vacancies arose. As a matter of fact, as against 93 Fast Track Court established, 54 Fast Track Courts were ordered to be closed with effect from 1-4-2013 and 39 Fast Track Courts are still continuing and would continue till 31-2-2015.
66.1. Mr.Rajagopal, further submitted that no right of the petitioners is affected by the impugned seniority list. He also endeavored to demonstrate on the basis of the vacancy 117 position placed on record by the RG along with their statement of objections that the grievance made by the petitioners is imaginary and at any event all that would happen by the impugned seniority list is that the promotion of respondent-DJs to selection grade may get delayed by an year or two. In short, he submitted that no respondent-DJs will stand in the way of career progression of any of the direct recruits. In support of this contention he also pressed into service the proposition that "chance of promotion are not conditions of service".
66.2.In support of his contentions he placed reliance upon the judgment of the Supreme Court in Direct Recruit Class II Engineering Officers' Association (supra) L.Chandra Kishore Singh (supra); Ajit Kumar Rath v. State of Orissa (1999) 9 SCC 596; O.P.Garg V. State OF U.P. 1991 SUPP.(2) SCC 51; Rudra Kumar Sain V. Union Of India, (2008) 8 SCC 25; B.S.Mathur V. Union of India 2008 AIR SCW 7042; G.K.Dudani V. S.D.Sharma 1986 (SUPP) SCC 239. 118
67. In L.Chandra Kishore (surpa), the Supreme Court was concerned with the seniority of a person appointed on officiating basis as expressly provided for in the rules framed under Article 209 of the Constitution. In this case, the Supreme Court was not considering the question of persons appointed outside the service/cadre as a stop gap arrangement as in the present case and therefore, in my opinion, this judgment is of no avail to the respondent-DJs.
67.1. As a matter of fact, in K.Madalaimuthu and another vs. State of Tamil Nadu, 2006 (6) SCC 558, the Supreme Court observed that the judgment in L.Chandra Kishore (surpa) did not involve the question of persons appointed outside the service as a stop gap arrangement.
67.2. In B.S.Mathur (supra), the Supreme Court did not consider the permissibility of retrospective seniority. It only laid down that direct recruits cannot claim seniority from the date of occurrence of vacancy in the direct recruitment quota and seniority should be determined on the basis of continuous length. The cadre of Delhi High Court Higher 119 Judicial Service did not refer to ad hoc appointments/outside service/cadre. Applying the principle laid down in this case, the conditions of length of service of the petitioners have to be reckoned from 2008 and that of respondent-DJs from 2009.
67.3. In G.K.Dudani (supra) the Supreme Court observed that a person can be said to hold a post permanent or temporary, in a substantive capacity only if his appointment to that post is not fortuitous or ad hoc. In the present case, the appointment of respondent-DJs admittedly was on ad hoc basis and that too, temporary.
67.4. In Ajith Kumar Rath (supra), the promotion of the appellant therein was held to be regular, though provisional, since it was made against the permanent vacancy in accordance with the service rules and in this backdrop, it was observed that when the appellant was appointed on regular basis on the concurrence of the vacancy would be counted towards the seniority of the appellant viz- 120 a-viz the contesting respondents (direct recruits). This judgment also is of no avail to the respondent-DJs.
67.5. In O.P.Garg (supra), temporary posts were created under Rule 4 (4) of U.P. Higher Judicial Services 1975 Rules. All temporary posts created under that rule were additions to the permanent strength of cadre and as such, formed part of the cadre. The appointments under Rule 22 of 1975 Rules, in that case, could be made to a permanent post as well as a temporary post. In this backdrop, the Supreme Court observed, so long as the temporary post has an independent existence and is a part of the cadre strength, the appointment against the said post has to be treated as a substantive appointment. In view of the peculiar facts and circumstances of that case, in my opinion, this judgment is of no avail to the respondent-DJs.
68. I have considered the submissions of Mr.P.S.Rajagopal, learned senior Counsel for the High Court based on the relevant rules of Karnataka Civil Services Rules 121 and Karnataka Civil Services (General Recruitment) Rules. His submissions proceed on the assumption that the respondent-DJs were promoted on the temporarily created vacancies in the cadre of DJ, which in my opinion, as expressed in the earlier part of the judgment, deserves to be rejected outright. That apart, if the provisions referred to are seen carefully and meaning of the term/expression "officiate" and "appointments by promotion being on officiating basis", in my opinion, has no application as the said rules contemplate officiating "in relation to posts in service" and not something out of service/cadre as in the present case. In the present case, the appointments of the respondent-DJs as presiding officers of FTCs cannot be treated as appointments to posts in the cadre of District Judge. The same were ad hoc and to ad hoc posts outside service/cadre. Just to test the argument advanced by Mr.Rajagopal based on the aforementioned rules, if the contention of the RG that the appointments were made to the cadre of District Judge has to be accepted, then it would imply that FTC schemes had not been implemented in the 122 State of Karnataka. That is not the case of the High Court or even of the respondent-DJs for that matter.
69. It would be relevant to notice the following factual matrix which further supports the case of the petitioners that the appointments of respondent-DJs was outside the service/cadre. It is not in dispute that unlike any regular District Judge, the FTCs did not work as special courts under any of the special enactments. Similarly, the principal District Judge is the administrative head of the District and in his absence, it is the additional District Judge who is made incharge of the administration and that role is never assigned to an ad hoc District Judge appointed for FTCs. This further shows that the respondent-DJs, before their promotions in 2009, were appointed temporarily as ad hoc District Judges by the Governor and were not treated as regular promotions in the cadre of District Judge. This supports the case of the petitioners that the respondent-DJs were appointed on ad hoc basis temporarily on the posts of District Judges for Fast Track Courts and their appointment 123 could never to be treated as regular promotions against vacant posts.
70. It is well settled that seniority even by one day may materially affect the future prospects and career of an officer. The person appointed even a day earlier may reach the position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises. The submission that respondent-DJs will not stand in the way of career progression of any of the petitioners also, therefore, deserves to be rejected.
70.1. In B.S.Mathur (supra) in para-26, the Supreme Court observed thus:
"26. ... seniority even by one day may materially affect the future prospects and career of an officer. The person appointed even on day earlier may reach a position which the person appointed one day later may not be able to reach due to reasons such as limited number of higher posts or his becoming age barred by the time next vacancy arises. The only advancement in the career of a member of Delhi Higher Judicial Service is elevation to the High Court. Therefore, it will not be fair and equitable to 124 give march to a later appointee over a prior appointee of the same year, even if that march is for a few months or even for a few days".
(emphasis supplied) Therefore, it will not be fair and equitable to give march to the respondent DJs over the petitioners irrespective of the fact that they were holding the posts of Ad hoc DJs since 2003-04.
71. In the result, I hold that the promotions of respondent-DJs as ad hoc District Judges vide notifications issued in 2003-04 for being posted in the Fast Track Courts cannot be treated as regular promotions in the cadre of DJs under the 1983 Rules. In other words, service rendered by them as ad hoc Fast Track Judges cannot be counted for the purpose of seniority in the cadre of District Judge from the date of notifications issued in 2003-04, and in my opinion, promotion of the respondent-DJs should be counted from the date of promotions/notifications issued/made in 2009 in the cadre of DJs under the 2004 Rules.
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72. The impugned notification dated 14-9-2012 by which the final seniority list of District Judges was published by the RG is accordingly set-aside. It is open to the RG to redraw the seniority, taking into account the actual date of appointment of the petitioners (direct recruits) in 2008 and the dates of promotions of the respondent-DJs (promotees) in the cadre of District Judge in 2009. It is needless to state that the RG while redrawing the seniority shall follow the procedure and shall also keep in view the observations made in this judgment. The Rule is made absolute in terms of this judgment. No costs.
W.P.No.28147 of 2013
73. The petitioner in Writ petition No.28147/2013, who is respondent No.34 in Writ Petition No.41684-41691/2012, has filed this petition for the following relief:
"i) issue a writ of certiorari or any other appropriate writ or order or direction to hold that the words "with immediate effect" contained in the Notification No.DPAR 24 SHC 2009 dt.1st June, 2009 of the First Respondent at Annexure B requires to be read as "with effect from the date 126 of posting on ad-hoc basis" in so far as it relate to the Petitioner."
74. For the reasons recorded in the judgment, disposing of Writ Petition Nos.41684-41691/2012, the prayer in the present writ petition is rejected. The writ petition accordingly fails and dismissed as such.
Sd/-
JUDGE Ia