Patna High Court
Ram Prabhu Pandey vs The State Of Bihar & Ors on 26 February, 2014
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20141 of 2011
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Ram Prabhu Pandey, son of Sri Ram Bali Pandey, retired Principal Judge, Family
Court, Chapra resident of Flat No. 108, Minakshi Apartment, Naya Tola, at present
President District Consumer Forum, Sheohar.
.... .... Petitioner
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The High Court of Judicature at Patna, through its Registrar General, Patna High
Court, Patna.
3. The Principal Secretary, Department of Personnel and Administrative Reforms,
Government of Bihar, Patna.
.... .... Respondents
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Appearance :
For the Petitioner : Mr. Ashish Giri, Advocate
For the Respondents : Mr. Satyabit Bharti, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date: 26-02-2014
This Petition under Article 226 of the Constitution
has been filed by one Ram Prabhu Pandey, an Additional District
& Sessions Judge-cum-Fast Track Court (since retired), for grant
of benefit of "Selection Grade" in the cadre of District Judge
(Entry Level).
The petitioner joined the judicial service in the State
of Bihar on 13th June 1975. Over a course of time, he was
promoted to the cadre of Civil Judge (Senior Division) on 5th
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December 1996. While he was serving in the cadre of Civil Judge
(Senior Division), under Government Notification dated 22nd
January 2002 he, then the Subordinate Judge I-cum-Additional
Chief Judicial Magistrate, Aurangabad, was promoted as
Additional District & Sessions Judge, Aurangabad on Ad-hoc basis
to preside over the Fast Track Court. Pursuant to the said
Notification, the petitioner joined as Ad-hoc Additional District &
Sessions Judge-cum-Fast Track Court on 11th February 2002.
While he was functioning as Ad-hoc Additional District & Sessions
Judge, he was promoted as Additional District & Sessions Judge in
Superior Judicial Service on regular basis, and he joined as such on
21st December 2002. He was promoted to the rank of District Judge
and was appointed as Principal Judge, Family Court on 18th
September 2006. While functioning as Principal Judge, Family
Court, on reaching the age of superannuation, he retired from
service on 31st October 2007. Since his retirement, in 2009 he
raised the claim for promotion to "Selection Grade". The said
claim came to be rejected on 22nd February 2010. Feeling
aggrieved, the petitioner has approached this Court under Article
226 of the Constitution in the present writ Petition.
Learned Advocate Mr. Ashish Giri has appeared for
the petitioner. Mr. Ashish Giri has submitted that the service of the
petitioner as Ad-hoc Additional District & Sessions Judge,
followed by regular promotion to the post of Additional District &
Sessions Judge in October 2002, shall be treated as service
rendered in the cadre of Additional District & Sessions Judge for
the purpose of grant of "Selection Grade". In other words, the
petitioner has claimed seniority in the cadre of Additional District
& Sessions Judge from the date he joined the cadre of Additional
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District & Sessions Judge on Ad-hoc basis as the Presiding Officer,
Fast Track Court. In support of the submission, Mr. Ashish Giri
has relied upon the judgements of the Hon'ble Supreme Court in
the matters of Brij Mohanlal Vs. Union of India & Ors. {AIR
2002 Supreme Court 2096} and of Debabrata Dash & Anr. Vs.
Jatindra Prasad Das & Ors. {(2013) 3 Supreme Court Cases 658}
The Petition is contested by the respondents, the
Patna High Court and the State Government. Learned Advocate
Mr. Satyabir Bharti has appeared for the High Court. He has relied
upon the counter affidavits and the judgement of the Hon'ble
Supreme Court in the matters of Brij Mohanlal (supra). Mr. Bharti
has also relied upon the Rules for Ad-hoc appointment of
Judicial Officers in the State of Bihar under the special scheme
for elimination of arrears sponsored by the Central
Government, 2001 (hereinafter referred to as "the 2001 Rules").
In the submission of Mr. Bharti, the Ad-hoc service was fortuitous
and cannot be treated as regular service as Additional District &
Sessions Judge. The said period cannot be counted for the purpose
of seniority in the cadre of Additional District & Sessions Judge.
He has also relied upon the Government Resolution dated 9th
February 2005 (hereinafter referred to as "the 2005 G.R.") issued
in respect of extension of the benefit of "Selection Grade" and of
"Super Time Scale" to the officers in Superior Judicial Service. He
has submitted that under the 2005 G.R. the "Selection Grade" is
admissible on completion of five years' satisfactory service as a
District Judge. He has submitted that the petitioner entered the rank
of District Judge in 2006, he did not complete five years' service in
the rank of District Judge. Irrespective of his seniority, he was not
entitled to the benefit of "Selection Grade" claimed by him. In
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support of his submission Mr. Bharti has relied upon the judgment
in the matter of Brij Mohanlal (1) (supra).
We will first examine the Rules governing
appointment to the Judicial Services in the State of Bihar.
The appointment to the posts of Munsifs [Civil Judge
(Junior Division)] at grass root level and the posts of Sub-Judge
[Civil Judge (Senior Division)] is governed by the Bihar Civil
Service (Judicial Branch) (Recruitment) Rules, 1955 (hereinafter
referred to as "the 1955 Rules").
The appointment of Munsifs [Civil Judge (Junior
Division)] is made by direct recruitment on the result of
competitive examination to be conducted by the Bihar Public
Service Commission. Appointment to the post of Sub-Judge [Civil
Judge (Senior Division)] is made by the High Court by promotion
of Munsifs [Civil Judge (Junior Divison)]. Recruitment in the cadre
of District Judge is governed by the Bihar Superior Judicial Service
Rules, 1951 (hereinafter referred to as "the Recruitment Rules of
1951") framed under proviso to Article 309 read with Article 233
of the Constitution. Appointment to the Bihar Superior Judicial
Service is made in the first instance to the post of Additional
District & Sessions Judge either by direct recruitment from
amongst the persons qualified for such appointment under clause
(2) of Article 233 of the Constitution or by promotion from
amongst the members of the Bihar Civil Service (Judicial Branch).
Thus, in the hierarchy, the first appointment is made to the post of
Munsif [Civil Judge (Junior Division)] by direct recruitment. The
next higher post of Sub-Judge [Civil Judge (Senior Division)] is
filled in by promotion of a Munsif. A Sub-Judge [Civil Judge
(Senior Division)] on being qualified and being found suitable will
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be promoted as Additional District & Sessions Judge (Entry Level)
as per quota for promotion.
However, in the wake of recommendation made by
the 11th Finance Commission, the Central Government had
allocated certain funds for creation of posts in the cadre of
Additional District & Sessions Judge (Entry Level) on ad-hoc basis
especially to attend to the long time pending criminal trials. The
intention was to avail the services of retired judges who were still
capable of rendering service as a Judge. With a view to manning
the ad-hoc posts of Additional District & Sessions Judges (Fast
Track Courts), the Government of Bihar, under proviso to Article
309 read with Article 233 of the Constitution, framed the 2001
Rules. The 2001 Rules provides for recruitment for the posts of
Ad-hoc Additional District & Sessions Judges.
Rule 3 thereof provides that, "notwithstanding
anything contained in the Bihar Superior Judicial Service
Rules, 1951, the appointment of Judicial Officers for
implementation of the Scheme will be governed by these
Rules."
Rule 4 provides that, "the appointment shall be
purely on adhoc and temporary basis, initially for a period of
two years."
Rule 5 provides for appointment of retired District
and Sessions Judges/Additional District & Sessions Judges of the
Bihar Superior Judicial Service. It was only in case that suitable
retired Judges in adequate numbers were not available, Judges
serving in Bihar Sub-ordinate Judicial Service may be appointed
on ad-hoc promotion to Superior Judicial Service.
Rule 6 (ii) provides for appointment by promotion of
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Sub-ordinate Judges eligible for promotion to the cadre of
Additional District & Sessions Judges in Bihar Superior Judicial
Service. The said Rule reads, "Subordinate Judges eligible for
promotion to the Cadre of Additional District and Sessions
Judges in Bihar Superior Judicial Service as per the Bihar
Superior Judicial Service Rules 1951 shall be eligible for adhoc
appointment" ; Provided that the selection of serving judicial
officers shall be made on seniority-cum-merit basis on scrutiny
of their service records."
Rule 8 provides for selection by the Committee
constituted by the Chief Justice.
Rule 12 provides for payment in the scale admissible
to Additional District & Sessions Judges in Bihar Superior Judicial
Service.
Rule 13 reserves the right to the State Government to
withhold or withdraw the pension or any part of it of a Fast Track
Judge and also the right to recover the pecuniary loss from the
pension of the Ad-hoc Additional District & Sessions Judge.
Thus, entirely a new cadre of Ad-hoc Additional
District & Sessions Judge governed by the 2001 Rules was created
temporarily for the specific purpose of clearing the back-log.
The scheme for appointment of retired judges as Ad-
hoc Additional District & Sessions Judges came to be questioned
before the Hon'ble Supreme Court in the matter of Brij Mohanlal
(supra). The Hon'ble Court up-held the scheme with certain
directions compiled in paragraph 10 of the judgment. Direction
relevant for the present matter is contained in clause 14. It reads as
under,
"No right will be conferred on Judicial Officers in
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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."
Once again the question came up before the Hon'ble
Supreme Court in the matter of Brij Mohanlal (2), [(2012) 6
Supreme Court Cases 502]. The Hon'ble Court answered the
challenge to the recruitment process in the following lines :-
"Similarly, we also find no merit in the contention
that this Court should quash the advertisement
issued by the State of Orissa for making selection to
the Orissa Higher Judicial Services on the basis of
the claims for regularization of the petitioners
against such posts. There are two different set 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."
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In the matter of Debabrata Dash (supra), a similar
claim for seniority was raised by the Officers in the Orissa
Superior Judicial Service (Junior Branch). The Hon'ble Court
relying upon the directions issued in the matter of Brij Mohanlal
(1) rejected the claim. The Hon'ble Court took note of the
directions "No right will be conferred on Judicial Officers in
Service for claiming any regular promotion on basis of his or
her appointment on ad-hoc basis under the Scheme" and "The
service rendered in the Fast Track Courts will be deemed as
service rendered in the parent cadre". The Court further held
that until the vacancies occurred in the Superior Judicial Service
(Senior Branch) to be filled up by promotion, the service rendered
as Fast Track Court cannot be deemed to be the 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 Division).
The law that emerges from the above referred Rules
and the judgements is clear and unambiguous. The cadre of Ad-hoc
Additional District & Sessions Judge-cum-Fast Track Court is not
considered one in the main stream of the Judicial Service. It is
entirely a separate cadre created temporarily for a specific purpose
and is governed by a separate set of Rules. The service rendered by
a Judicial Officer in service as the Presiding Officer, Fast Track
Court is always treated as the service in the parent cadre i.e. in the
cadre of Sub-Judge [Civil Judge (Senior Division)]. The question
of considering the said service as the service rendered in the higher
cadre of Additional District & Sessions Judge (Entry Level) does
not arise.
Pursuant to the directions of the Hon'ble Supreme
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Court in the matter of All India Judges' Association and Others,
the State of Bihar has, under the 2005 G.R., extended the benefit of
"Selection Grade" and "Super Time Scale" to the officers in
Superior Judicial Service. Under the said Resolution, the
Government of Bihar has sanctioned "Selection Grade" for 20 %
(30+22) of the posts in the cadre of District Judge and the "Super
Time Scale" to 10% (12+9) of the posts in the cadre of District
Judge. Paragraph 4(i) of the said Resolution provides for a
minimum service of five years and three years in the cadre of
District Judge for promotion to the "Selection Grade Pay-scale"
and to the "Super Time Pay-scale" respectively.
Paragraph 4(i) of the aforesaid Resolution reads as
under :-
"It shall be essential to complete a minimum five
years satisfactory service continuously, in the
category of District Judge, for promotion in
Selection Grade Pay Scale and minimum three years
of continuous satisfactory service in the category of
selection Grade District Judge for promotion in
super-time Pay Scale."
We are of the opinion that the appointment of the
petitioner as Additional District & Sessions Judge on Ad-hoc basis
under the 2001 Rules cannot be equated with regular promotion
under the recruitment Rules of 1951. The said period, therefore,
cannot be counted for seniority in the cadre of Additional District
& Sessions Judge. In any view of the matter, the petitioner having
not completed five years' continuous service in the category of
District Judge, he was not entitled to be considered for the benefit
of "Selection Grade". The claim for "Selection Grade" made by the
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petitioner is totally misconceived and requires to be rejected.
For the aforesaid reasons, Petition is dismissed.
(R.M. Doshit, CJ)
(Ashwani Kumar Singh, J)
Patna High Court
Dated 26th February 2014
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