Calcutta High Court (Appellete Side)
Samar Roy & Ors vs Partha Sarathi Sen & Ors on 11 May, 2018
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
BEFORE:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
AND
THE HON'BLE JUSTICE ARINDAM SINHA
M.A.T. 946 of 2017
C.A.N. 6119 of 2017
Samar Roy & Ors.
Vs.
Partha Sarathi Sen & Ors.
Advocates for the appellants
in MAT. 946 of 2017: Mr. Pratik Dhar (Senior Advocate)
Mr. Ritwik Pattayanak
Mr. Pappu Adhikari
Mr. Samir Halder
Advocates for the High
Court Administration: Mr. Joydip Kar (Senior Advocate)
Mr. Siddhartha Banerjee
Mr. Abhisek Baran Das
Advocates for the State respondents
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in MAT. 946 of 2017: Mr. Kishore Datta (Ld. A.G) Ms. Chama Mookherji (Sr. Govt.
Advocate) Ms. Manika Pandit.
Advocates for the respondent/ Writ Petitioner : Mr. Saktinath Mukhopadhyay (Sr. Advocate) Mr. Mukul Lahiri (Sr. Advocate) Mr. Anirban Pramanick.
Advocates for the respondent Nos. 26 and 27 : Mr. Bikash Ranjan Bhattacharya (Sr. Advocate) Mr. Anindya Lahiri Mr. Samrat Dey Paul Advocates for the respondent No. 24 : Mr. Anindya Lahiri Mr. Mainak Ganguly Heard On: 08.08.17, 29.08.17, 05.09.17, 12.09.17, 15.09.17, 16.11.17, 04.12.17, 13.12.17, 18.12.17, 19.12.17, 17.01.18, 24.01.18, 29.01.18, 12.02.18, 10.05.18 Judgment on: 11th May, 2018.
ANIRUDDHA BOSE, J.:-
1. The subject of controversy in this appeal is a draft gradation prepared by the High Court Administration in respect of judicial officers for the post of District Judge 2 (Entry Level). This gradation list forms part of a circular bearing no. 4139-R (JS) dated 29th November, 2016. The draft gradation list was successfully challenged before the learned First Court by 18 (Eighteen) judicial officers all being in the cadre of District Judge (Entry Level). Out of these eighteen officers, fifteen (being petitioner nos. 1 to 15 in the writ petition) were directly recruited as District Judges (entry level) from amongst the members of the bar in a selection process undertaken in the year 2009. Two of them (writ petitioner nos. 16 and 17) were recruited through the same process in the year 2010. The other writ petitioner (no. 18) entered the service through a process known as "jump promotion". We shall better explain these sources of recruitment along with the third method - being promotion on the basis of merit-cum-
seniority and on passing a suitability test, later in this judgment. None of the writ petitioners had figured in the said gradation list. In the judgment under appeal, the said draft gradation list has been invalidated. 3
2. Recruitment to the post of District Judge (Entry Level) is effected in West Bengal in terms of the West Bengal Judicial (Condition of Service) Rules, 2004 (the 2004 Rules). These Rules were framed in terms of directions issued by the Hon'ble Supreme Court in the case of All India Judges' Association and Ors. Vs. Union of India [(2002)4 SCC 247]. This judgment was delivered on 21st March, 2002. The 2004 Rules became operational on 1st October, 2004. In this judgment, it has been observed and directed:-
"27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by 4 direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very 5 necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to 6 compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cut-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate 7 knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be:
(1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-
seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited 8 competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High Courts as early as possible.
29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two 9 different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum- seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled 10 Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal v. State of Punjab. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in 11 R.K. Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003."
3. So far as the present appeal is concerned, the following provisions of the 2004 Rules are relevant:-
"24. Cadre_ (1) The Higher Judicial Officers in the rank of District 12 Judges of the service as mentioned in Part II shall include the following posts forming the cadre, namely:-
(a)District Judge;
(b) District Judge in selection grade;
(c) District Judge in super time scale. (2) The strength of the cadre of the service shall be such as specified in Schedule IV and the Government in consultation with the High Court may vary such strength of the cadre from time to time.
Provided that the number of posts as referred to in clause (b) and clause
(c) of sub-rule (1), shall be determined by the Government from time to time depending upon the total strength of the officers in the service.
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25. Member of service.- (1) On or after coming into force of these rules, the Higher Judicial Officers in the rank of District Judges recruited to any of the posts as mentioned in sub-rule (1) of rule 24 in accordance with these rules, shall be the member of the service.
(2) Notwithstanding anything contained in the foregoing provisions of this rule, the Higher Judicial Officers in the rank of District Judges holding substantively or in the officiating capacity of the posts referred to under sub-rule (1) of rule 24, shall, prior to the commencement of these rules, be deemed to be member of the service.
26. Method of recruitment:- (1) On or after the commencement of these 14 rules, the appointment of the Higher Judicial Officers in the rank of District Judged in the post of District Judge as mentioned in clause (a) of sub-rule (1) of rule 24, shall be made-
(a) by direct recruitment from the Bar;
(b) by selection through promotion, on the basis of merit-cum-seniority and on passing of a suitability test, from amongst such Judicial Officers other than District Judges as mentioned in clause (b) of sub-rule (1) of rule 6 of these rules;
(c) by promotion strictly on the basis of merit through limited competitive examination of such Officers other than District judges as mentioned in clause (b) of sub-rule (1) of rule 6 of 15 these rules having not less than five years of qualifying service:
Provided that the number of vacancies to be filled up by direct recruitment as stated in clause (a) shall not be more than 25% of the total permanent strength and such recruitment shall as far as possible be made annually:
Provided further that the number of vacancies to be filled up by promotion as stated in clause (c) shall, subject to the provision of the third proviso, not be more than 25% of the total permanent strength and such recruitment shall as far as possible be made annually;
Provided also that where suitable persons are not available for 16 appointment to the posts of the Judicial Officers in the rank of District Judges under this Part, the number of vacancies required to be filled up by direct recruitment as stated in clause (a) and by promotion as stated in clause (c), shall not be carried forward and such vacancies may be filled up-
(a)in respect of vacancies as required to be filled up by direct recruitment as stated in clause (a)
(i) firstly, from amongst the eligible Judicial Officers in the rank of District Judges as selected by the method as stated in clause (c):
(ii) secondly, from amongst the eligible Judicial Officers in the rank of District Judges 17 selected by the method as stated in clause (b);
(b) in respect of vacancies required to be filled up by promotion on the basis of merit as stated in clause
(c), from amongst the eligible Judicial Officers in the rank of District Judges selected by the method as stated in clause (b). (2) The appointment of the Higher Judicial Officers in the rank of District Judges in the post of District Judge in selection grade and District Judge in super time scale, as referred to in clauses (b) and (c) of sub-rule (1) of rule 24, shall be made by the High Court by selection of the Higher Judicial Officers in the rank of District Judges of service from posts as 18 referred to in clause (a) and clause
(b), respective, of that rule and such appointment shall be made by selection on the basis of merit-
cum-seniority.
27. Qualification for direct recruitment.- (1) No person shall be eligible for appointment by direct recruitment unless-
(a) he is a citizen of India;
(b) he has attained the age of 35 years and has not attained the age of 45 years (relaxation of 3 years on upper age for the candidates belonging to the Scheduled Castes and Scheduled Tribes) on the first day of January of the year in which the applications for recruitment are invited;
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(c) he has been practicing for not less than seven years as an advocate; and
(d) he has good character and is of sound health and free from any bodily defect which render him unfit for such appointment.
(2) The selection by way of direct recruitment to posts as referred to in clause (a) in sub-rule 24, shall be made by the High Court by way of conducting a written examination and viva voce in accordance with such manner and subject to such guidelines as may be specified by the High Court from time to time.
28. Appointing authority.- (1) All appointments to the post as referred to in clause (a) of sub-rule (1) shall be made by the Governor in accordance 20 with recommendations of the High Court.
(2) All selections to posts referred to in clause (a), clause (b) and clause (c) of sub-rule (1) of rule 24 shall be made by the High Court.
29. Probation.- (1) A Judicial Officer in the rank of District Judges appointed to the posts as mentioned in clause (a) of sub-rule (1) of rule 24 shall be on probation for a period of two years from the date on which he joins duty.
(2) The High Court may, at any time, extend the period of probation but the total period of probation shall not exceed three years.
(3) The High Court may, at any time, during or at the end of the period of 21 probation, revert a promote Judicial Officer in the rank of District Judges to his substantive post from which he was promoted and in the case of direct recruitment, the High Court may recommend termination of his service.
(4) On successful completion of probation, the probationer shall, if there is permanent post available, be confirmed in the service and if no permanent post is available, a certificate shall be issued by the High Court to the effect and as soon as a permanent post becomes available, he shall be confirmed.
(5) A probationer shall be deemed to be on probation until confirmed, reverted or terminated, as the case may be.
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30. Posting and transfer.- All postings and transfers in the rank of Higher Judicial Officers in the rank of District Judges shall be made by the High Court.
31. Seniority.- (1) The seniority of the Higher Judicial Officers in the rank of District Judges appointed to the post as referred to in clause (a), (b) and (c) of sub-rule (1) of rule 24, shall, unless reduced in rank on account of punishment, be determined in accordance with-
(a) the date of continuous
officiation in case of officers
promoted to the posts as referred to in clause (a) of sub-rule (1) of rule 24;
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(b) the date of order of appointment in the case of direct recruit to the posts as referred to in clause (a) of sub-rule (1) of rule 24;
(c) the date of order of selection to posts as referred to in clause
(b) and (c) respectively of sub-rule (1) of rule 24 or such date, as may be specified by the High Court:
Provided that in the case of direct recruit or promotee under clauses (a),
(b) or (c), as the case may be, of sub-
rule (1) of rule 26 to the post referred to in clause (a) of sub-rule (1) of rule 24, if the date of continuous officiation of the Higher Judicial Officer in the rank of district judges promoted to such post and the date 24 of joining/appointment of the direct recruit in the service be the same, the seniority inter se shall be fixed according to the 40 point roster as determined by the High court from time to time.
Provided further that seniority inter se amongst the Higher Judicial Officers in the rank of District Judges promoted by an order of the same date or amongst direct recruits appointed by an order of the same date, shall follow the order in which their names have been recommended by the High Court.
Provided also that the relative seniority of the Judicial Officers of the West Bengal Higher Judicial Service appointed prior to coming into force of these rules and governed 25 by the West Bengal Higher Judicial Service (Determination of Seniority) Rules, 1979, shall not be affected."
4. In M.A.T. No. 946 of 2017, the appellants are nine judicial officers who were promoted as District Judge (Entry Level) from the 50% pool of in-service candidates. Mr. Pratik Dhar, learned Senior Counsel has appeared in this appeal on behalf of the appellants. The writ petitioners/respondents have been represented by Mr. Saktinath Mukhopadhyay, learned Senior Counsel. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel has appeared on behalf of respondent nos. 26 and 27 in this appeal. These two respondents are jump promotees. Mr. Joydip Kar, learned Senior Counsel has represented the High Court Administration. Learned Advocate General has appeared for the State.
5. The draft gradation list, which has been invalidated by the learned First Court came into existence after a vacancy notification was published and selection or recruitment process was concluded in the year 2009, 26 from the aforesaid three different streams. The initial vacancy notification bearing no. 5632-R (JS) dated 31st March, 2009 stipulated that keeping in view future vacancies that might arise in that year due to retirement, elevation to the High Court, death, deputation to the other departments etc., 131 vacancies in the said cadre was to be filled up by direct recruitment from the Bar and from amongst the eligible member of the West Bengal Judicial Service. On 15th April, 2009, another notification was issued by the High Court Administration inviting application for filling up the posts of the Higher Judicial Service by promotion strictly on merit through limited competitive examination. This notification stipulated panel would be prepared for 55 vacant posts which could vary. Members of the West Bengal Judicial Service having not less than 5 years qualifying service were eligible to apply. There was a subsequent notification issued on 15th May, 2009, bearing no. 6745-RG which specified:-
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"It is notified for general information that 55 posts of District Judges Entry Level will be filled up by Limited Departmental Examination as per time schedule mentioned in the decision of Malik Mazhar Sultan's Case. In terms of the judgment in Brij Mohan Lal's Case, the Additional District Judges appointed on ad hoc promotion from the rank of Civil Judge (Sr. Div) will belong to the cadre of Civil Judge (Sr. Div) till their appointment is regularized in the permanent cadre and in that case their seniority will counted from the date of ad hoc promotion. Accordingly, in connection with filling up of 26 vacant posts from the 50% cadre, all the Judicial Officers now posted on 28 ad hoc promotion as Additional District Judge in the Fast Track Court will come under the zone of consideration in due course.
Moreover, since all the 150 Fast Track Court Judges belong to the permanent cadre of Civil Judge (Sr. Div), they may apply for appearing in the Limited Departmental Examination for 2009 along with those who have already applied for.
Accordingly, the willing Judicial Officers having eligibility criteria may apply along with 10 copies of their judgment five Civil and five Criminal delivered in May and June, 2008 by 30.05.2009.
This notification shall abide by the judgments/orders passed in Malik Mazhar Sultan's case (Civil Appeal 29 No. 1867 of 2006) and W.P. (C) 46 of 2007 now pending before the Hon'ble Supreme Court."
6. On 15th April, 2009, two other notifications were issued. Notification no. 5953-RG was for inviting applications from the members of the Bar for participating in the recruitment process in accordance with Rule 26(1)(a) of the 2004 Rules for filling up 16 vacant posts in the cadre of District Judge. The number of vacancies, however, could be varied. The next notification bore no. 5954-RG and substantive part of this notification recorded:-
"It is notified for general information that out of total 131 vacancies in the cadre of District Judge Entry Level in the West Bengal Judicial Service, as declared on 31-03-2009 by this Office Notification No. 5632-R (JS), 26 posts will be filled in 2009 against 50% of the cadre strength meant for promotion of the Judicial Officers in the cadre as mentioned in Rule 30 6(b) read with Rule 26(b) of the West Bengal Judicial (Conditions of Service) Rules, 2004. This exercise of undertaking of promotion is subject to the result of Malik Mazhar Sultan's case (Civil Appeal No. 1867 of 2006) and W.P. (C) 46 of 2007 filed by the West Bengal Judicial Service Association now pending before Hon'ble Supreme Court of India and without any prejudice to the rights of any other person. The panel for such selection by promotion will be made on the basis of merit cum seniority and on passing a suitability test in terms of said Rule 26(b) from amongst such Judicial Officers other than District Judges as mentioned in clause (b) of sub-rule (1) of rule 6 of the said rules and in accordance with the solemn order dated 4.1.07 passed by Hon'ble Supreme Court in Civil 31 Appeal No. 1867 of 2006 as subsequently modified. The number of such vacancy may vary consequent upon directions to be given by the Hon'ble Supreme Court in both the aforesaid cases."
7. Prior to promulgation of the 2004 Rules, 67 vacancies in the regular cadre of the West Bengal Higher Judicial Service occurred during the period between 1st August, 1991 and 30th September, 2004. These vacancies were filled up by a resolution of the Administrative Committee of the Court passed on 10/11 July 2006. This resolution was approved by the Full Court on 19th July, 2006. In the month of December 2006, the High Court Administration had issued a notification inviting applications for filling up 51 posts of District Judge (Entry Level). Legality of this exercise was challenged in a writ petition instituted in the Hon'ble Supreme Court of India under Article 32 of the Constitution of India brought by the West Bengal Judicial Service Association 32 (Writ Petition No. (C) 46 of 2007). In that writ petition the Hon'ble Supreme Court was pleased to pass an order directing that out of the 51 posts, only 16 posts could be filled up through the process of direct recruitment. In the recruitment process undertaken thereafter none of the candidates however had succeeded.
8. As we have already recorded, three notifications were issued on 15th April, 2009 for filling up the vacant posts of District Judge (Entry Level). The Notification no. 5952- RG was for filling up 55 vacant posts in the said cadre by promotion strictly on the basis of merits through limited competitive examination. The next one, being Advertisement No. 5953-RG was for recruiting directly from amongst the members of the Bar through an open examination process. Vacancies advertised were 16 but the advertisement stipulated that the numbers were likely to vary subject to the result of the Writ Petition No. (C) 46 of 2007. For promotion of the in-service Judicial Officers in accordance with Rule 26(1)(b) of the 2004 Rules there were 26 stipulated vacancies in notification no. 5954-RG. 33
9. So far as in-service Judicial Officers are concerned, a merit wise panel was published on 1st September, 2009 on conclusion of the promotion process on the basis of merit-cum-seniority suitability test. Thereafter on 17th September, 2009, names of 26 promotee officers were notified. The substantive content of this notification read:-
"The Governor is pleased to appoint the following 26 (Twenty-six) Officers in the cadre of District Judge (Entry Level) in the West Bengal Judicial Service by way of normal promotion from amongst the eligible Officers of the West Bengal Judicial Service in the scale of pay of RS. 16750-400-
19150-450-20500/- (unrevised)"
10. On 17th September itself another appointment notification was issued bearing no. 6539-J/JD/1J-04/09 in respect of 5 Officers who had participated in the limited competitive examination in terms of Rule 26(1)(c) 34 of the 2004 Rules. The substantive part of this notification stipulated:-
"The Governor is pleased to appoint on promotion the following 5 (Five) Officers from amongst the eligible Judicial Officers of the West Bengal Judicial Service who have been found suitable by way of limited competitive examination to the cadre of District Judge (Entry Level) in the West Bengal Judicial Service in the scale of pay of Rs. 16750-400-19150- 450-20500/-(unrevised) in view of the decision of the Hon'ble Supreme Court passed in the Writ Petition (C) No. 490 of 2007."
11. In the case of the 16 (sixteen) writ petitioners, who are direct recruits to the subject post, their appointment notification came on 23rd September, 2009, bearing no. 6617-J/JD/1J-04/2009. This notification specified:- 35
"The Governor is pleased to appoint the following 16 (sixteen) persons, who have been recommended by the Hon'ble High Court, Calcutta from amongst the members of the Bar, as District Judge (Entry Level) in the West Bengal Judicial Service on temporary and provisional basis for a period of three months pending Police Verification Report and the Medical Examination Report in terms of Rule 26 of the West Bengal Judicial (Condition of Services) Rules, 2004 and in compliance with the order of the Hon'ble Supreme Court in the Writ Petition (C) No. 490 of 2007."
12. The posting orders were made in respect of the judicial officers from the three streams on 28th October, 2009, but through two notifications. By notification no. 8846-A, 36 thirty-one officers, who at that point of time were working in the capacity of Additional District and Sessions Judge, Fast Track Courts and Civil Judge (Senior Division), were posted in the places mentioned against each of them in that notification. Two incumbents whose names appeared against Serial no. 27 and 30 in that notification, were working as Civil Judge (Senior Division) at that point of time. The names of these officers were given in a tabular format in the notification.
13. The posting orders of the direct recruits were made by notification no. 8847-A issued on the same day i.e. 28th October, 2009 and the substantive part of this notification recorded:-
"It is hereby notified that the following sixteen (16) Candidates recruited by way of direct recruitment from amongst the Members of the Bar are posted on probation as Additional District & Sessions Judge in the cadre of District Judge (Entry Level) in the 37 West Bengal Judicial Service on temporary and provisional basis pending Police Verification Report and the Medical Examination Report in the respective District Head Quarters under which they reside (except the candidate under Serial No. 7) as mentioned against each of them."
14. The decision of the Hon'ble Supreme Court in the All India Judges' Association case (supra) mandated adoption of roster system as a measure for avoiding litigation in implementing the quota vis-a-vis the three streams from which recruitment is to be made in the subject posts. First proviso to aforesaid Rule 31 also contemplates application of 40 point roster as determined by the High Court from time to time. The roster system in Andhra Pradesh model, however, was adopted by the Administrative Committee in its meeting held on 6th 38 December, 2010. As per this model, the first position in the roster goes to a direct recruit, second position to a jump promotee and the third and fourth positions go to normal promotees. The fifth position is to be filled up by a direct recruit, sixth to a jump promotee and the next two positions again go to normal promotees. This cycle goes on till the 40th vacancy. It was decided by the Administrative Committee in the said meeting :-
"Taking into consideration the decision of the Supreme Court rendered in the case of All India Judges' Association & Ors. vs. Union of India [Writ Petition (Civil) No. 1022 of 1989], it is decided to apply 40- point Roster as adopted by the High Court of Andhra Pradesh for the purpose of fixation of seniority inter se amongst the Higher Judicial Service Officers in the rank of District Judge (Entry Level) in all the three categories, viz., by way of direct recruitment from Bar, by way of limited 39 competitive examination and through normal promotion, prospectively with effect from the year 2009."
15. The next recruitment process started on 30th March, 2010 in a respect of 90 vacancies out of which 45 posts were to be filled up through normal promotion and 23 posts were to be filled up by way of direct recruitment. The vacancy notification was made on that date under notification no. 3192-R (JS) issued by the High Court Administration. This was followed by notification no. 3489-R(JS), which laid down the process for filling up the 45 posts on the basis of merit-cum-seniority. By another notification [no. 4490-R(JS)], a list of officers who came within the zone of consideration was published on 14th March, 2010 and this was followed by publication of panel of officers who had been called for viva voce test. Such process was followed in respect of candidates from the other streams as well. A common gradation list prepared by the High Court in respect of officers 40 appointed/posted in the cadre of District Judge (Entry Level) by way of 3 channel recruitment process for the year 2009, 2010 so on was prepared in the year 2010. A copy of this gradation list has been annexed to the affidavit-in-opposition on behalf of the respondent nos. 34 and 35. The writ petition, registered as W.P. 22564(W) of 2011, was instituted by 22 promotee-officers challenging the said draft gradation list.
16. Grievance of the writ petitioners made out in that case was that in that gradation list, the judicial officers who were promoted to the cadre of District Judge and posted in the Fast Track Courts since March 2003-2004 were shown junior to the officers recruited directly as also to those promoted through limited competitive examination. The petitioners in that proceeding wanted their tenure as Judges of the Fast Track Court to be treated to be regular posting in the cadre of District Judge for computing their seniority. In an earlier proceeding before this Court, a batch of judicial officers belonging to the cadre of Civil Judge (Senior Division) who were functioning as 41 Additional District Judges posted in Fast Track Courts on the basis of ad-hoc promotion had assailed legality of an examination process for promotion to the rank of District Judge through limited competitive examination. In that writ petition, registered as W.P. No. 13020(W) of 2009, direction was sought to the effect that the petitioners therein who were given ad-hoc promotion as Additional District and Sessions Judge to man the Fast Track Courts should not be required to face the suitability test again and their service should be regularised in the rank of District Judge.
17. That writ petition was dismissed by one of us (Aniruddha Bose, J.) relying on several authorities including the decision of the Hon'ble Supreme Court in the case of Brij Mohan Lal Vs. Union of India & Ors. [(2002) 5 SCC 1]. The said judgment was upheld by a Bench decision delivered on 22nd December, 2011 (M.A.T No. 846 of 2009 - Sri Tapan Kumar Das Vs. The High Court at Calcutta & Ors.) 42 Subsequently, another draft gradation list for the officers in different cadres of the West Bengal Judicial Services, as on 31st December, 2011 was circulated by the Registrar (Judicial Service) of this Court. The letter dated 4 th April, 2013, which was circulated, recorded:-
"I am directed to circulate the draft Gradation List as on 31.12.2011, for the officers in the different Cadres of the WBJS, amongst all the officers of the Sub- ordinate Judiciary inviting views/ objection, if any, in respect of the relevant list, within a period of 15 (fifteen) days' time from this date and accordingly furnish herewith 3 (three) separate lists for the 3 (three) cadres of WBJS. The lists are also being published in the Courts website:
www.calcuttahighcourt.nic.in. 43
You are accordingly, requested to circulate the same amongst all the officers in your Judgeship at the earliest for the aforesaid purpose and send such views/objections, if any, received within the specified period to this Court."
17. By a judgment delivered on 12th August, 2016, a learned Single Judge of this Court dismissed WP No. 22564 (W) of 2011. The said letter of 4th April, 2013 was brought to the notice of the learned Single Judge in course of hearing of the matter. This factor, according to the opposing respondents, in effect sustained the 2013 draft gradation list to which we have referred to earlier. The writ petitioners in that proceeding were promoted on ad hoc basis to the West Bengal Higher Judicial Service in the years 2003-04 and they wanted their tenure in that capacity to be computed for determining their seniority vis-a-vis the officers who were directly recruited and those who were successful in the limited competitive 44 examination. Earlier, on 28th June, 2016 the Administrative Committee considered the questions of confirmation in the cadre of District Judge (Entry Level) as well as grant of Selection Grade Scale of Pay as per the eligibility and entitlement norms in respect of the first 20 Judicial Officers out of the batch of 73 judicial officers. There was divergence of views among the Hon'ble Judges constituting the Administrative Committee on this issue and the matter was disposed of in the following manner:-
"Per The Hon'ble Justice Girish Chandra Gupta, it is a fact that during the period between 2004 and 2008, no promotion was granted to the Higher Judicial Service. As a result the deserving candidates belonging to the cadre of Civil Judge (Senior Division) were deprived of promotion. It is naturally apprehended that they may or are likely to become Juniors to the Direct Recruits and Jump 45 promotees of the year 2009. The omission on the part of the High Court to make the annual promotion was a mistake. For the mistake of the Court, the officers should not be made to suffer, nor should the mistake of the court be allowed to become a cause of heart burning amongst the officers, who were not promoted during the aforesaid period. I as such, propose that keeping in view the well settled maxim that equity regards as done, which should have been done, a Gradation List should first be prepared giving promotions to the eligible candidates for the year 2004, 2005, 2006, 2007 and 2008. Once this is done, the Direct Recruits and Jump Promotees, who came in the year 2009 would automatically come below them, which is their rightful position and the officers, 46 who did not get promotion during the aforesaid period would also have no further cause for any heart burning. It is an undeniable fact that an aggrieved person cannot give his best to the service. Once the Gradation List is prepared the eligible candidates should be given Selection Grade.
Per The Hon'ble Justice Indrajit Chatterjee, adopt the views of Justice Gupta and add that the judgements in the case of Rudra Kumar Sain Vs. Union of India, reported in (2000) 8 SCC 25, which is a five Judge Bench decision, of the Apex Court; the judgment in the case of Debabrata Dash Vs. Jatindra Prasad Das, a three Judge Bench decision, reported in (2013) 3 SCC 658, and the decision of the Apex Court in the case of Madhumita Das and Ors. Vs. State of 47 Orissa reported in (2008) 6 SCC 731, a two Judge Bench decision lend support to the views, expressed by Hon'ble Justice Girish Chandra Gupta and adopted by me.
Per the Hon'ble the Chief Justice, The Hon'ble Justice Nishita Mhatre and the Hon'ble Justice Indira Banerjee, the majority of the committee have opined that the Selection Grade to the officers, who qualify to the norms as proposed by the Registry, has to be given effect subject to final outcome of litigation pending in Writ Petition No. 22564(W) of 2011, challenging the Gradation List for the following reasons:
25% of the strength of cadre of District Judge (Entry Level) would come to 70 vacancies in the cadre of Selection Grade.48
The list of candidates, proposed by Registry have completed 5(five) years continuous service from the respective date of joining in the cadre (District Judge, Entry Level).
In the State of West Bengal, Fast Track Court Judges belonged to the permanent cadre of Civil Judge (Senior Division) and not Ad-hoc Judges under Fast Track Court Scheme. In other words, their parent cadre is Civil Judge (Senior Division).
The service rendered by such Fast Track Court Judges could be taken as service rendered in the cadre of District Judge (Entry Level) of Higher Judicial Service in West Bengal, is a matter pending before the High Court in the 49 above Writ Petition, wherein Draft Gradation List is challenged. The objection raised by two committee members that officers, who are eligible for promotion from 2004 onwards to the cadre of Higher Judicial Service, were not promoted till 2008. Therefore, their promotion must be given with retrospective effect, so as to consider their seniority, is not accepted, since the issue is sub-judice.
We are accepting the proposal of Registry for Granting Selection Grade to the recommended candidates, except (i) Shri Madhusudan Dutta and (ii) Shri Kundan Kumar Kumai, who have not achieved the requisite standard, since more than 50 (fifty) vacancies in Selection Grade will 50 remain vacant, even if pending litigation results in favour of the petitioners. Hence, it is resolved by majority view that following 18 (Eighteen) Officers be confirmed in the cadre of District Judge (Entry Level) and recommended for the benefit of Selection Grade Scale of Pay with effect from 01.11.2014, subject to the decision of the Writ Petition being No. 22564(W) of 2011.
It is also resolved that Shri Narendra Rai, a confirmed Officer in the cadre of District Judge (Entry Level), be recommended for the benefit of Selection Grade Scale of Pay w.e.f.
01.11.2014 without prejudice to the decision of the Writ Petition being No. 22564(W) of 2011."
51
18. The minority view taken in the Administrative Committee meeting held on 28th June, 2016, was accepted by the Full Court in a meeting held on 23rd November, 2016. The Full Court resolution, on the discussion on draft gradation list of the judicial officers in the cadre of District Judge reads:
Matter How disposed of
Discussion on the The Administrative
draft gradation Committee in its
list of the Judicial meeting dated 3rd
Officers in the and 4th November,
Cadre of District 2016had resolved
Judge. that " in
supersession of the
earlier gradation list
published on 4th
April, 2013" the fresh
gradation prepared
shall be published
52
inviting objections if
any. The aforesaid
resolution was the
subject matter of
deliberation. The
draft gradation list of
the cadre of District
Judge (Entry Level)
was prepared in
accordance with the
mandate of the Full
Court with respect to
the vacancies which
arose from 1st
October, 2004 to 31st
December, 2008 by
the Administrative
Committee in a
meeting held on 3rd
November, 2016.
53
The minutes of the
meeting of the
Administrative
Committee were
circulated amongst
all the Hon'ble
Judges for obtaining
their views, if any,
with regard to the
draft gradation list.
Hon'ble Justice
Sanjib Banerjee,
Hon'ble Justice
Joymalya Bagchi,
Hon'ble Justice
Subrata Talukdar
and Hon'ble Justice
Siddhartha
Chattopadhyay
submitted their
54
objections to the draft
gradation list.
Hon'ble Justice
Dipankar Datta also
submitted an
objection today. The
draft gradation list
prepared by the
Administrative
Committee was
placed before the Full
Court with objections
received.
Hon'ble Justice
Sanjib Banerjee was
of the view that the
date from which the
officers are entitled to
be confirmed in the
55
permanent post of
District Judge (Entry
Level) could not be
prior to the date that
they actually
worked.
Hon'ble Justice
Joymalya Bagchi
objected to the draft
gradation list stating
that it had been
drawn up contrary to
the provisions of the
of the west Bengal
Judicial (Conditions
of Service) Rules,
2004 (more
particularly "Rule
31").
56
Justice Dipankar
Datta submitted his
objections by pointing
out that several
important documents
relating to the issue
had not been brought
to the notice of the
Administrative
Committee when it
drafted the gradation
list nor had they
been placed before
the Full Court in the
meeting held on 27th
September, 2006.
These documents
included the earlier
decisions of the Full
Court with respect to
57
the non-grant of the
promotions to the
District Judge (Entry
Level) between 2004
and 2008 to the
Judicial Officers, the
decisions of sub-
committees relating
to the issue and the
affidavits filed by the
Registrar General on
behalf of the Calcutta
High Court in
proceedings before
the Supreme Court of
India in Writ Petition
(C) No. 46 of 2007.
He therefore
suggested that the
earlier gradation list
58
should not be
altered.
Considering that
each member placed
in the subject
gradation list has
been officiating
continuously in
service long before
appointment of the
direct recruits and
considering further
that such a member
has the first claim to
seniority as per Rule
31(1)(a) of the West
Bengal Judicial
(Conditions of
Service) Rules, 2004
59
it was decided by a
majority of the Full
Court that the column
in the draft gradation
list with the heading
"Date from which the
officer is entitled to
be confirmed in the
permanent post of
District Judge (Entry
Level)" should be
deleted.
The Full Court by a
majority therefore
resolved to accept the
gradation list
excluding the
aforesaid column
and further that
60
necessary changes
therein arising out of
clerical error may be
effected. Hon'ble
Justice Nishita
Mhatre, Hon'ble
Justice Dipankar
Datta, Hon'ble
Justice Sanjib
Banerjee, Hon'ble
Justice Joymalya
Bagchi, Hon'ble
Justice Subrata
Talukdar and
Hon'ble Justice Arijit
Banerjee voted
against the
resolution. The draft
gradation list shall
be published on the
61
website of the
Calcutta High Court
and objections, if
any, may be invited
within 15 days of its
publication.
19.The fresh gradation list, which is the subject of dispute in this proceeding was published as a draft on 29th November, 2016 and was circulated as enclosure to a memorandum bearing no. 4139-R(JS). The said memorandum stipulated :-
"I am directed to inform that the Hon'ble Court has been pleased to prepare a fresh Draft Gradation List for the officers covered in the list belonging to the cadre of District Judge (Entry Level) of the WBJS, against the vacancies occurred during the period from 62 01.10.2004 to 31.12.2008, in suppression of the previous Draft Gradation List duly published on 04.04.2013, and to direct for publishing the same inviting views/objections, if any, from the officers covered in the list within a period of 15 days' time from the date of its publication.
I am, accordingly, to request you to cause circulation of the same amongst all the officers appearing in the enclosed list, posted in your judgeship/ on deputation, at the earliest enabling them to submit views/objections, if any, so that the same is reached at this end positively by the stipulated 15 days' time.
The Draft Gradation List so prepared is also being published in the 63 Court's website -
www.calcuttahighcourt.nic.in.
The Gradation List for the officers from 2009 onwards will be published in due course of time.
This may kindly be treated as important and urgent."
20. The draft gradation list forming part of this memorandum showed the names of 85 officers and was based on 85 vacancies that occurred between 1st October, 2004 and 31st August, 2008. The writ petitioners as also the jump promotees, who had participated in the 2009 recruitment process were excluded from this gradation list. It is this memorandum, which the writ petitioners have described as circular letter, with the draft gradation list was challenged by the writ petitioners in the proceeding out of which this appeal arises. The writ petitioners who are respondent nos. 1 to 18 in this appeal wanted the 2016 gradation list to be quashed and they 64 also sought for direction from the learned First Court upon the High Court Administration for finalisation of the draft gradation list circulated on 4th April, 2013. Other prayers made in the writ petition were in aid of these two substantive prayers. The main argument of the writ petitioners before the learned First Court was that the draft gradation list prepared in 2016 was not in adherence of the 2004 Rules and the Andhra Pradesh model roster system had been breached.
21. The learned First Court formulated five points for determination in the writ petition in the form of issues. These were :-
i) Is the writ petition not maintainable as being premature?
ii) Does the 40 Point roster read with Andhra Pradesh model apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level)? 65
iii) Is the seniority to be reckoned from the date of appointment/promotion or from the date of posting as a District Judge (Entry Level) under the Rules of 2004?
iv) Is the draft gradation list circulated by the impugned letter circular in accordance with the Rules of 2004?
v) To what reliefs, if any, are the parties entitled to?
22. The learned First Court found the writ petition maintainable. On the promotee officers' claim that their seniority ought to be computed from the date they started officiating as Fast Track Court judges, the learned First Court held that they could not claim seniority on the basis of such officiation in ad-hoc posts. Dealing with the question of applicability of the roster system, the learned First Court held that the seniority of the officers ought to be reckoned from their dates of appointment being 28th October, 2009 to the post of District Judge (Entry Level) and the roster system would have to be followed. The 66 Learned First Court invalidated the draft gradation list of 2016 which was assailed in that writ petition. Liberty was given to the High Court Administration for preparing a gradation list for all the appointees of 2009 to the post of District Judge (Entry level) by taking their date of appointment to such post as 28th October, 2009. It was also directed in the decision under appeal that the appointees of 2010 would come after the appointees of 2009 in such gradation list. The segregation of vacancies between pre and post 31st August 2008 was not accepted by the Learned First Court.
23. Mr. Pratik Dhar, learned Senior Counsel appearing for the nine appellants, who are all promotee officers, has anchored his argument primarily on two points. The first one is that the officiating period of his clients as Fast Track Court judges on ad hoc basis ought to be taken into account for determination of their seniority. Relying on several authorities to which we shall revert to later in this judgment, he wants us to reverse the finding of the learned First Court on this count. Secondly, argument of 67 the appellants has been that the roster system would not apply in respect of the three channels of appointment undertaken in the year 2009 as these officers were not appointed on the same date. He drew our attention to first proviso of Rule 31 to sustain his argument on this point. The other argument which has been advanced before us in support of the appellants' case is that the Full Court decision could not be overturned to create a new methodology for preparing the gradation list, referring to the judgment of the Hon'ble Supreme Court in the case of High Court of M.P. Vs. Mahesh Prakash (AIR 1994 SC 2595). Mr. Joydip Kar, learned Senior Counsel has appeared on behalf of the High Court Administration and contested the first plea of the appellants that their period of officiation as ad-hoc judges in the Fast Track Courts ought to be computed for determining their seniority in the cadre of District Judge. On the second plea as regards applicability of the roster, Mr. Kar's submission has been that as per the first proviso to Rule 31, the roster system could not be made 68 applicable and in this case the seniority of the respective judicial officers has to be determined on the basis of their dates of appointment as they were appointed on different dates. Mr. Saktinath Mukhopadhyay, learned Senior Counsel, has appeared on behalf of the directly recruited officers, who were the writ petitioners before the learned First Court. His submission is that the roster had become applicable upon the 2004 Rules having become operational. He has sought to distinguish between the dates of appointment and dates of posting of the respective judicial officers and the argument advanced by him has been that birth in a cadre takes place only on posting and not on selection. He has defended the judgment under appeal. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel has appeared on behalf of respondent Nos. 26 and 27, both of whom are jump promotee officers. He has argued that the vacancies are to be filled up annually and 40 Point roster and such roster has to be maintained for annual appointment or recruitment process. He has adopted Mr. 69 Mukhopadhyay's stand that individual dates for promotion would not constitute a relevant factor and promotion from all the three streams ought to be filled in compositely as an annual exercise. Mr. Anindya Lahiri, learned Counsel appearing for respondent No. 24 has submitted that the decision of the learned Single Judge in W.P. No. 22564(W) of 2011 confirmed the legality of the gradation list circulated in 2013 and as a consequence thereof the Full Court decision to prepare the draft gradation list and the list prepared in pursuance thereof ought to stand automatically negated. His client, respondent No. 32 in this appeal (Smt. K.D. Bhutia) is also a jump promotee.
24. Not much argument has been advanced before us on the part of the judgment by which the learned First Court opined that the writ petition was maintainable. We also concur with the view of the Learned First Court on this point. The argument that the Full Court decision could not be overturned subsequently by another Full Court does not appeal to us. The decision in the case of Mahesh 70 Prakash (supra) does not lay down the law in absolute terms on that point. This judgment, dealt with the decision of the Full Court of the Madhya Pradesh High Court on the question confirmation of a judicial officer in the year 1974 which was sought to be reopened in 1985. Such proposal which was rejected by the Full Court. It was in this perspective it was observed in this judgment :
"It is undesirable and unsafe for one Full Court to revise the decision taken by an earlier Full Court, particularly in cases of promotions, confirmation, suppression and the like."
In any event, no prior Full Court decision mandating preparation of the gradation lists which surfaced in 2011 or circulated in 2013 has been brought to our notice. Thus, on facts also, ratio of the said decision does not apply to the case before us.
25. In this case sufficient discussion took place before the decision of the Full Court was taken and the Full 71 Court decision also has not been questioned in the writ petition on the ground of being in breach of the "precedent" principle, which in any event does not apply in administrative matters. It has also been argued on behalf of the judicial officers, whose names have been excluded from the 2016 gradation list that the judgment of the learned Single Judge in W.P. No. 22564(W) of 2011 has confirmed the gradation list circulated in 2013. But in our opinion dismissal of the writ petition by which the said gradation list was challenged does not foreclose the power or authority of the Full Court to alter or even replace such list upon fresh consideration of relevant factors. Such dismissal alone does not operate as bar upon the Full Court to revisit the matter in exercise of its administrative power. In that decision, considering the plea of the writ petitioners therein, the challenge to the gradation list was repelled. But the finding of the Court could not have had taken away the power or authority of the High Court on the administrative side 72 to replace or alter the same on certain other ground. The legality of those fresh grounds can always be tested and in the writ petition as also before us, argument has been advanced on legality of the decision of the Full Court. We, thus, are unable to accept this plea of res judicata in the administrative decision making process.
26.Now we shall examine the question as to whether supersession of the earlier gradation list was legal and valid, as was found by the learned First Court. Mr. Dhar wants the seniority of his clients to be computed from the date they were promoted on ad-hoc basis as Additional District and Session Judge. If that date is treated to be the relevant date, then all the appellants would come above the writ petitioners in the seniority list if such a list includes all the 2009 appointees. He has referred to the decisions of the Supreme Court in the cases of Baleswar Dass Vs. State of U.P. [(1980)4 SCC 226], G.P. Doval and Ors. Vs. Chief Secretary, Government of U.P and Ors. [(1984) 4 73 SCC 329], O.P. Singla and Anr. Vs. Union of India and Ors [(1984) 4 SCC 450], Union of India and Ors. Vs. Pratap Narain and Ors. [(1992) 3 SCC 268], Rudra Kumar Sain and Ors. Vs. Union of India and Ors. [(2000) 8 SCC 25], Debabrata Dash and Anr. Vs. Jatindra Prasad Das and Ors. [(2013) 3 SCC 658] and V. Venkata Prasad and Ors. Vs. High Court of Andhra Pradesh and Ors. [(2016) 11 SCC 656] in support of his submissions on this point. Submissions of the opposing respondents on this issue has been that ad hoc appointment in ex-cadre posts do not confer any such right. It is not in dispute that the posts in which the writ petitioners discharged their duties as Fast Track Court Judges were all ex-cadre posts.
27. On this issue the learned First Court has held :-
"A large section of the respondents have traced their rights to a preferential treatment in the gradation list as officers of FTC. Reliance has been 74 placed on O.P. Singla & Anr. (supra), Rudra Kumar Sain & Ors. (supra), Debabrata Dash & Anr. (supra) and Brij Mohan Lal (supra). This issue of rights emanating from an officiation as officers of FTC was raised in W.P. No. 22564(W) of 2011 and negated by the judgment and order dated August 16, 2016, passed therein. An appeal is pending against such judgment and order. The Rules of 2004 governs the seniority amongst the members of the cadre of District Judge (Entry Level). Officers of FTC are not considered as a post within the cadre of District Judge (Entry Level). The Rules of 2004 do not permit services rendered in ex-cadre post to be taken into consideration for the purpose of fixation of seniority. Consequently, such persons cannot 75 claim seniority on the basis of officiation at the FTC. The decisions relied upon by such respondents have no manner of application in the facts of the present case.
Direct Recruit Class II
Engineering Officers' Association
[(1990) 2 SCC 715] has held that, where appointment has been made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. It has also held that, 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."
28. In Baleswar Dass (supra), officiating service in temporary posts was recognized for computing 76 seniority in U.P. Service of Engineers (Irrigation Branch). But the applicable Rules provided that a cadre post could be permanent or temporary. In the case of G.P. Doval (supra) dispute arose on the question of inter se seniority amongst khandsari inspectors in the State of Uttar Pradesh. The question arose as regards seniority applying the rule of continuous officiation but this decision does not lay down any clear cut principle of law. It has been observed in this decision that each case would depend upon its facts and circumstances after holding that once a person appointed in a stopgap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made. It was also held in this decision :-
"..........It may be permissible, within limits for Government to ignore officiating service and count only regular service when claims of seniority 77 come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts".
29. The case of O.P. Singla (supra) arose out of a dispute of similar nature in Delhi Higher Judicial Service. In this case also the question of continuous officiation being the starting point for counting seniority arose. This decision was delivered in the light of the provisions of Delhi Higher Judicial Service Rules, 1970 and the definition of cadre post therein included a temporary post. In this decision also it was inter alia held:-
"27. Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges 78 on an ad hoc basis or for fortuitous reasons or by way of a stopgap 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."
30.In the case of Pratap Narain (supra), a dispute which stood finally settled by the Hon'ble Supreme Court in an earlier judgment. The dispute had been reignited and in this decision the Hon'ble Supreme Court found that in the earlier judgment in the case of Narender Chadha Vs. Union of India [(1986) 2 SCC 157] the Hon'ble Supreme Court found that no distinction was made between cadre and ex-cadre post and the judgment was delivered in special facts of that case. The Constitution Bench judgment of the Hon'ble Supreme Court in the case of 79 Rudra Kumar Sain dealt with the seniority claims of judicial officers on the basis of continuous officiation. But in this case also appointments had been made under relevant rules of the Delhi Judicial Service which permitted filling up of substantive vacancies in the service by making temporary appointments thereto from amongst the members of the Delhi Judicial Service. In Debabrata Dash (supra), the plea of the concerned judicial officer for seniority on the basis of service rendered by him in the Fast Track Court was not accepted. Mr. Dhar however brought to our notice the following passage from Paragraph 44 of the report :-
"In our opinion, until the vacancy occurred in the cadre of Superior Judicial Service (Senior Branch) which was to be filled up by promotion, the service rendered by the writ petitioner in the Fast Track Court cannot be deemed to be service rendered in the Superior Judicial Service (Senior 80 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 14, in our view, does not deserve to be read in a manner that overrides the 1963 Rules."
31.In the case of V. Venkata Prasad and Ors. (supra) reference was made to the judgment in the case of O.P. Singla (supra) that no distinction ought to be made between temporary posts and substantive vacancies in a temporary capacity. We have already dealt with the ratio of O.P. Singla (supra). Neither of these two authorities come to the aid of the appellants. The above referred passage in the case of Debabrata Dash (supra) in our view does not apply in the facts of this case as the 2004 Rules do not contemplate according seniority to an officer from the date of accrual of vacancy. The decision in the case of Debabrata Dash (supra) was delivered in the light of the provisions of Orissa Superior Judicial Service 81 Rules, 1963. In the case of Ajit Kumar Rath Vs. State of Orissa (AIR 2000 SC 85), ad-hoc service of the incumbent involved in the case was directed to be counted for computing seniority. But the ad-hoc promotion of the incumbent therein was made in accordance with Rules in permanent vacancy. But beyond these authorities, where the case of the appellants fails on this point is a specific directive contained in the decision of the Hon'ble Supreme Court in the case of Brij Mohan Lal (supra). This judgment dealt with the issue of continuance of Fast Track Court scheme beyond the originally specified period and laid down 18 point guideline in relation to operation of the said Courts, which also covered appointments to the Fast Track Courts. There were 18 sets of directions issued by the Hon'ble Supreme Court and the 14th direction was :-
"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 82 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."
32. This direction has also been reaffirmed in the case of V. Venkata Prasad (supra). Because of the said 14th Directive, the distinction made in Baleswar Dass (supra) between short temporary posts and temporary posts of long duration to which incumbents are appointed substantively cannot apply in respect of ad hoc appointees as Fast Track Court judges. They cannot be entitled to the benefits similar to that mandated in the decision of Baleswar Dass (supra). In Brij Mohan Lal Vs. Union of India and Ors. [(2012) 6 SCC 502], the Hon'ble Supreme Court re-examined the questions of the 83 policy of appointment of ad hoc judges of the Fast Track Courts and also continuance of the Fast Track Court schemes. In this judgment certain directions have been issued in exercise of jurisdiction of the Hon'ble Supreme Court in terms of Article 142 of the Constitution. Our attention has been drawn to Paragraph 207.13 of the said report, in which it has been directed by the Hon'ble Supreme Court:-
"207.13. The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, shall be entitled to be absorbed and remain promoted to the Higher Judicial Services of that State subject to:
(a) Such promotion, when effected against the 25% quota for out-
of-turn promotion on merit, in accordance with the judgment of this Court in All India 84 Judges' Assn. (3), by taking and being selected through the requisite examination, as contemplated for out-of-turn promotion.
(b) If the appointee has the requisite seniority and is entitled to promotion against 25% quota for promotion by seniority-cum-merit, he shall be promoted on his own turn to the Higher Judicial Services without any written examination.
(c) While considering candidates either under Category (a) or (b) above, due weightage shall be given to the fact that they have already put in a number of years in service in the Higher Judicial Services and, of course, 85 with reference to their performance.
(d) All other appointees in this category, in the event of discontinuation of the FTC Scheme, would revert to their respective posts in the appropriate cadre."
33. This decision also does not lay down that seniority of Fast Track Court Judges in ad-hoc employment would have to be counted from the dates on which they were appointed as Additional District Judge on ad-hoc basis for manning the Fast Track Courts. The decisions of O.P. Singla (supra), G.P. Doval (supra) or Pratap Narain (supra) were not delivered in a situation where there was a mandate similar to that contained in Directive No. 14 in the case of Brij Mohan Lal reported in [(2002)5 SCC1]. In our view, taking into account the aforesaid Directive, the expression "continuous officiation", as employed in first proviso to Rule 31 would have to be officiation in a 86 substantive or cadre post. We are conscious of the fact that the appeal against the judgment of the learned Single Judge in W.P. 22564(W) of 2011 is pending. This appeal, in fact, is pending before us. But foundation of that writ petition is different from the point argued before us. In that writ petition, the petitioners wanted the Court to hold that their original appointment as Fast Track Court Judges were regular appointments and their promotion was not ad hoc promotion. In this appeal, the appellants have argued before us that they, in any event, ought to be given the benefit of officiation period for computing their seniority. We have addressed this issue independently after detailed arguments from all the appearing parties were advanced before us. Thus we do not find any reason to interfere with the learned First Court's finding and views on this point.
34. Next comes the question of applicability of the roster and if the roster is applicable, the manner in which the same shall be applied in the facts of this case. The requirement of following the roster system has been 87 mandated by the Hon'ble Supreme Court in the case of All India Judges' Association (supra). In the judgment of R.K. Sabharwal & Ors. Vs. State of Punjab and Ors. [(1995) 2 SCC 745], which was referred to in the case of All India Judges' Association (supra) the manner in which roster should operate has been explained. This was, however, a case on reservation for members of the Scheduled Castes and Backward Classes and the roster was to operate in that context. It was held in this judgment:-
"......The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts....." are reserved for 88 members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 89 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but 90 represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst 91 the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation."
35. In Union of India Vs. S.D. Gupta [AIR 1996 SC 3325] it has been held that when inter se seniority is to be determined between two groups of candidates their fitment in the order of seniority ought to be determined with reference to rota and quota prescribed under the administrative instructions.
36. In the case of P.S. Ghalaut Vs. State of Haryana & Ors. [(1995) 5 SCC 625] primacy of roster position and fitment according to roster has been emphasized. In H.V. Pardasni Vs. Union of India [(1985) 2 SCC 468] also, adherence to quota system has been mandated. In Paragraph 21 of its own affidavit-in-opposition in W.P. 92 No. 22564(W) of 2011, the High Court administration has acknowledged its subsistence. The argument for excluding the vacancies which occurred prior to commencement of 2004 Rules on the ground that these Rules should have prospective operation cannot be accepted as after these Rules became operational, in our opinion all vacancies ought to be filled up in the manner provided therein. We do not think these Rules can have such truncated application.
37. On the question of applicability of the roster rule, learned First Court opined:-
"The Administrative Committee had adopted the Andhra Pradesh model in preference over the Orissa model for the purpose of fixation of seniority. The Andhra Pradesh model grants the first position to a direct recruit, the second to a jump promotee, the third and the fourth to normal promotees, the fifth to a direct recruit, the sixth to a jump promotee and 93 the seventh and eighth positions to the normal promotees. This system is followed till the 40th vacancy. The High Court administration in an affidavit filed before the Supreme Court in W.P. (C) No. 46 of 2007 (West Bengal Judicial Service Association v. Registrar General, High Court of Calcutta & Anr.) has stated that:-
"10. It is stated that presently the seniority has been determined as per 40 points roster as adopted in Andhra Pradesh and it has been decided to follow the said roster as per direction issued in the case of All India Judges' Association Vs. Union of India (Reported in (2002) 4 SCC
247)."94
The stand of the High Court administration is that, the 40 Point Roster system read with Andhra Pradesh model applies for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level). This stand has not been substantiated by any of the parties to be incorrect. Rule 31 of the Rules of 2004 in its first proviso provides that the 40 point roster system would be followed for the purpose of determination of the inter se seniority. Therefore, the second issue is answered by holding that, the 40 Point Roster system read with the Andhra Pradesh 95 model would apply for the purpose of fixation of seniority inter se amongst the appointees to the post of District Judge (Entry Level)."
38.The competing claims in this appeal is for treating officiation period of the promotee officers for determining their seniority on one hand and that of jump promotees and direct recruits on the other for implementation of the roster system straightaway. In the event the roster system is applied covering appointments made in the year 2009 from all the three streams, then the latter category would find their fitment as per the roster position. That is what, in substance, the learned First Court has directed. The reasoning of the learned First Court on application of roster is based on two planks. The learned First Court has held that the date of posting (i.e. 28th October 2009) should be the common date to be the starting point for computing seniority of 96 the officers of all the three streams and in such a situation, the roster system would have to be invoked. Citing the decision of the Hon'ble Supreme Court in the case of All India Judges' Association (supra) the learned First Court has opined:-
".....Even if the appointment, promotion or selection does not culminate on a single day, then also, in view of the direction quoted from All India Judges' Association & Ors. (supra), the recruitment being annual and happening on the basis of a quota, the roster system is to be followed, in determining inter se seniority, irrespective of the actual date of appointment, promotion or selection."
39.The selection process of the judicial officers in the cadre of District Judge is guided by the 2004 Rules. Validity of these Rules was not under challenge in the writ petition. Thus, for adjudicating the competing claims of the three sets of judicial officers, steps taken 97 by the High Court Administration would have to be tested by referring to these Rules. The learned First Court has construed the said Rules, inter alia, in the following manner:-
"Rule 31 of the Rules of 2004 dealing with seniority requires determination of seniority for all the three avenues of appointment to be made from the date of promotion to the post, date of selection to the post as District Judge (Entry Level) or the date of appointment to the post of District Judge (Entry Level) as the case may be. In the present case, the promotion, appointment and selection to the post of District Judge (Entry Level) had happened on October 28, 2009. In terms of the first proviso to Rule 31 of the Rules of 2004, the inter se seniority must be fixed in accordance with the 40 Point Roster system as determined by the High 98 Court. The High Court had determined the 40 Point Roster system read with the Andhra Pradesh model as discussed above. The impugned letter circular containing the draft gradation list is not in accordance with the 40 Point Roster system read with the Andhra Pradesh model.
S.S. Uppal & Ors. (supra), Uttaranchal Forest Rangers' Assn. (Direct Recruits) & Ors. (supra) and C. Lalitha (supra) have held that, the seniority has to be determined by the Rules in force on the date of appointment. The fixation of seniority follows the appointment to the service. The date of occurrence of a vacancy has no relevance for the purpose of fixation the seniority. Ajit Kumar Rath (supra) has held that seniority cannot be claimed from the date 99 of the vacancy. An appointment to the post does not relate back to the date of occurrence of the vacancy.
The appointing authority under the Rules of 2004 is the Governor acting on the recommendation of the High Court. The selections to the post are, however, to be made by the High Court. In the facts of the present case, the selections to the post were made by the High Court on October 28, 2009 for all the three streams of appointment."
40.We are, however, unable to agree with this reasoning of the learned First Court. First part of Rule 31 lays down different criteria for setting the starting point for seniority computation of the two sets of judicial officers who could be appointed to the post of District Judge (Entry Level). For promotee officers, it would be the dates of their continuous officiation and for direct recruits, dates of their orders of appointment. The 100 2004 Rules do not lay down that all appointments made in the subject posts in a particular year irrespective of the dates of appointment would have to be guided by the roster. This would be apparent from the first proviso to Rule 31. This Rule lays down a specific situation in which the 40 point roster would cover different sets of judicial officers, as reference has been made to clauses (a), (b) and (c) of sub-rule (1) of Rule 26. Sub-clause (a) of Rule 31(1) stipulates that for promotee officers, the date of continuous officiation would be the relevant date. For direct recruits, it would be the date of order of appointment. The Rule does not directly specify in what manner the respective seniority would be fixed in a common gradation list for a particular year for officers entering the cadre from all the three streams. Application of roster is stipulated in the first proviso to Rule 31 only in a situation where the date of continuous officiation of higher judicial officer in the rank of district judges promoted to such post and the date of 101 joining/appointment of the direct recruit in the service be the same. There is no other provision in the Rules on applicability of the roster even after 2010, when the Andhra Pradesh model was adopted. In the case before us, we have rejected the plea of the appellants that their tenure starting from the dates of their ad hoc promotion as Fast Track Court judges till their appointment as officers in the cadre of District Judge ought to be treated as continuous officiation. Thus, the dates of their entry into the cadre ought to be treated as the first date for computing their seniority. In this case, 17th September, 2009 is the date on which their appointment by the Governor was notified. This is for the promotee officers who reached the cadre in 2009. The notification recorded their appointment in the said cadre by way of normal promotion. So far as jump promotees are concerned, their appointment by the Governor was also made on the same day, i.e. 17th September, 2009. The notification for appointment of sixteen Judicial 102 Officers who were directly recruited was issued on 23rd September, 2009.
41.In our opinion, the learned First Court erred in treating the common dates of their posting as the dates of their birth in the cadre, ignoring their dates of appointment. If that was the case, then the roster system would have had applied and respective officers could have been fitted in their respective positions in the roster. The dates of their posting cannot be treated as their birth dates in the cadre. Mr. Mukhopadhyay wants us to equate the order of appointment without posting with vacancy, treating the same as recommendation, relying on the following passage from the case of R.K. Sabharwal (supra):-
"6.The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office, or employment. A position to which a 103 person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions made it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."
42.In the facts of this case ratio of that decision on this particular point would not be applicable. In respect of the opposing sets of judicial officers who are contesting in this appeal, appointing authority is the 104 Governor. The Governor is to make appointments in accordance with the recommendation of the High Court. This is as per Rule 28 of the 2004 Rules. Under Rule 30, posting is to be made by the High Court. Posting under the 2004 Rules is in consequence of the appointment order and after the appointment order is issued, the posts do not retain the character of vacancy in terms of the 2004 Rules. The appointment notifications to which we have referred to do not qualify such appointments to become operational from the dates the incumbents assume charge or are posted. These are cases of appointment simpliciter, and the vacancies to the subject posts closed immediately on appointment. In the passage from R.K. Sabharwal (supra) cited by Mr. Mukhopadhyay, an extended meaning of 'post' has been given, which includes appointment, job, office or employment. After appointments were effected from the three streams, it cannot be contended that there remained vacancies in the posts 105 covered by the recruitment process, and the appointment orders remained mere empanelment of those appointed. We also do not accept the finding of the learned First Court that in the present case, the promotion, appointment and selection to the District Judge had happened on October 28, 2009. Records speak otherwise, as separate notifications were issued for each of these steps.
43.The dates of birth in the cadre of District Judge of the direct recruits and promotee officers being different, as per the first proviso to Rule 31 the roster system could not be made applicable. In such a situation, the normal rule of computing seniority has to apply. The promotee officers and the jump promotees were appointed on the same day, i.e. 17th September, 2009 whereas the direct recruits were appointed on 23rd September, 2009. The difference of days in their respective entries to the cadre is marginal, but the entry dates are different nonetheless. We are of the view that the seniority of the respective officers would 106 have to be determined applying the regular seniority principle.
44.We accordingly dispose of the appeal and the application in the following terms:-
i) We concur with the finding of the learned First Court that the promotee officers cannot derive the benefit of the period they served as Fast Track Court Judges in ex-cadre post for the purpose of computing their seniority in the gradation list.
ii) We also do not disturb the finding of the learned First Court that the 2016 gradation list ought to be set aside. We do not find any rationale for segregating the vacancies which arose from 1st October, 2004 to 31st December, 2008 from the vacancies which occurred subsequent thereto.
The recruitment process commenced after coming into operation of the 2004 Rules should be guided by the provisions of the said Rules. 107
iii) We, however, do not accept the finding of the learned First Court that the roster system ought to be applicable in the facts of this case. We have given the reason for that in the preceding part of this judgment. We direct preparation of fresh gradation list covering all appointees of 2009 by taking the dates of their appointment on the basis of issue of the appointment notifications as the material date and not the dates of posting for the purpose of computing their seniority. Their seniority shall be determined on the basis of what we have held in this judgment. Inter-se seniority of the officers within a particular stream shall be determined as per Rule 31. We also retain the direction issued by the learned First Court that the appointees of 2010 would come after the appointees of 2009 in the gradation list. 108
45.The order of the learned First Court shall stand modified accordingly.
46.There shall be no order as to costs.
47.Urgent Photostat certified copy be given to the parties expeditiously, if applied for.
(Aniruddha Bose, J.) (Arindam sinha, J.) 109