Andhra HC (Pre-Telangana)
B.S. Jag Jeevan Kumar, S/O.B.K. Sham ... vs High Court Of Judicature At Hyderabad ... on 18 April, 2017
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE Ms. JUSTICE J.UMA DEVI
Writ Petition No.45199 of 2016
18-4-2017
B.S. Jag Jeevan Kumar, S/o.B.K. Sham Rao, Aged 53 years, Chairman, Industrial Tribunal cum Presiding Officer, Labour Court,
High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Hyderabad, Rep. by its Reg
Counsel for the Petitioner: Mr. G.Vidya Sagar,
Senior Counsel
Counsel for Respondent:Mr.Abhinand Kumar Shavili,
Standing Counsel for High Court
<Gist:
>Head Note:
? Cases referred:
1. (2002) 4 SCC 247
2. (2002) 5 SCC 1
3. (2013) 3 SCC 658
4. (2008) 17 SCC 703
5. AIR 1990 SC 1607
6. AIR 2003 SC 2000
7. (1995) 5 SCC 625
8. (1995) 2 SCC 745
9. (1999) 2 SCC 330
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE Ms. JUSTICE J.UMA DEVI
Writ Petition No.45199 of 2016
Order: (per V. Ramasubramanian, J.)
Contending that seniority in the cadre of District Judges
has not been fixed in accordance with Rule 13(a) read with
Schedule-A of the Andhra Pradesh State Judicial Service
Rules, 2007, a promotee District Judge has come up with the
present writ petition.
2. Heard Mr. G.Vidya Sagar, learned Senior Counsel for
the petitioner and Mr. Abhinand Kumar Shavili, learned
Standing Counsel for the respondent/High Court.
3. The petitioner was appointed as a Civil Judge (Junior
Division) on 01-7-1988. He was promoted as Senior Civil
Judge on 06-5-2002. He was later promoted on temporary
basis as District Judge with effect from 23-9-2009.
Subsequently, by an order in G.O.Ms.No.133, Law
Department, dated 05-12-2012, the petitioner was promoted
on regular basis under the 65% quota reserved for promotion
to the post of District Judges.
4. In All India Judges Association v. Union of India , the
Supreme Court issued various directives, one of which related
to the issue of seniority. Paragraph-29 of the said decision
reads as follows:
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 different
sources, namely, promotes 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 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 (1995) 2 SCC 745. One of the methods of
avoiding any litigation and bringing about certainty in
this regard is by specifying quotas in relation to posts
and not in relation to the vacancies. This is the basic
principle on the basis of which the 40-point roster works.
We direct the High Courts to suitably amend and
promulgate seniority rules on the basis of the roster
principle as approved by this Court in R.K. Sabharwal
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.
5. Pursuant to the directives issued by the Supreme
Court in All India Judges Association case, the Government of
Andhra Pradesh issued under G.O.Ms.No.119, Law
Department, dated 02-8-2008, a new set of Special Rules
known as Andhra Pradesh State Judicial Service Rules, 2007.
These Rules were deemed to have come into effect from
01-01-2007.
6. Rule 13 of these Rules provides the stipulations
relating to fixation of inter se seniority. This Rule 13 reads as
follows:
13. Seniority:
(a) District Judges: Seniority of the persons appointed to
the category of District Judges by direct recruitment
as well as recruitment by transfer shall be fixed as
per the forty point roster prescribed in Schedule-A.
(b) Civil Judges: Seniority of the persons appointed to
the category of Civil Judges by direct recruitment as
well as recruitment by transfer shall be fixed as per
the twenty point roster prescribed in Schedule-B.
(c) Inter se seniority: Whenever two or more persons are
appointed simultaneously to the service, the
appointing authority may at the time of passing, an
order of appointment fix the inter se seniority as per
the order of merit.
7. Since Rule 13(a) which deals with the issue of seniority
of persons appointed to the category of District Judges by 3
different methods, makes a reference to
a 40-point roster prescribed in Schedule-A, it is necessary to
have a look at Schedule-A. Schedule-A contains a 40-point
roster. In the 40-point roster, the roster points 1, 5, 9, 13, 17,
21, 25, 29, 33 and 37 are intended for direct recruitment.
Roster point Nos.2, 6, 10, 14, 18, 22, 26, 30, 34 and 38 are the
slots intended for accelerated promotion. The remaining roster
points are intended for vacancies to be filled up by regular
promotion.
8. It must be pointed out at this stage that when the 2007
Rules were issued, the ratio for direct recruitment, accelerated
promotion and regular promotion were fixed respectively at
25%, 25% and 50%. However, the Rules were subsequently
amended to modify the ratio into 25% for direct recruitment,
10% for accelerated promotion through limited departmental
competitive examination and 65% for promotion on the basis of
seniority cum merit depending upon suitability. At this stage,
we should also point out that under the new Rules, the method
of recruitment under the 10% quota as well as 65% quota are
wrongly termed as recruitment by transfer instead of as
promotion and hence steps are being taken to rectify the
same. Though this issue has no connection to the dispute on
hand we are recording the same for the purpose of clarity.
9. On 29-3-2016, the Registry of the High Court issued a
provisional seniority list. This provisional seniority list gave
separate seniority lists for the years 2010, 2012, 2013, 2014
and 2015. Only those appointed as District Judges pursuant
to notifications issued on or after 01-01-2007 alone were
included in the said seniority list.
10. The petitioner who was appointed on temporary basis
with effect from 23-9-2009 was not included in the seniority
list for the year 2010. But his name was included at the first
place in the seniority list for the year 2012, in view of the fact
that the petitioner was appointed as a District Judge on
regular basis under the 65% quota earmarked for regular
promotion, only under G.O.Ms.No.133, dated 05-12-2012.
In other words, the services rendered by the petitioner on
temporary basis from 23-9-2009 were not counted for the
purpose of reckoning his seniority.
11. But the petitioner appears to have reconciled himself
to this position, in view of the two decisions of the Supreme
Court, one in Brij Mohan Lal v. Union of India and another in
Debabrata Dash v. Jatindra Prasad Das .
12. However, the petitioner filed objections on
11-4-2016 and 13-4-2016 to the provisional seniority list
dated 29-3-2016 contending that the seniority list has been
prepared in contravention of the principles laid down in
para-29 of the decision of the Supreme Court in All India
Judges Association case. But since there was no response to
the objections filed by the petitioner, the petitioner came up
with the above writ petition seeking a mandamus to direct the
respondents to fix the seniority of District Judges in
accordance with Rule 13(a) read with Schedule-A of the Rules
and also to post Principal District and Sessions Judges, strictly
in accordance with the said seniority.
13. The contention of Mr. G.Vidya Sagar, learned Senior
Counsel appearing for the petitioner, is that when Rule 13(a) of
the Rules requires seniority to be maintained in accordance
with 40-point roster and when such a rule had its origin to
a judgment of the Supreme Court, it was not open to the
Registry of this Court to tamper with the 40-point roster by
introducing the concept of year of recruitment. In the
impugned seniority list, the Registry has included the names of
all persons appointed in the year 2010, as against the roster
points to which they could be fitted. It is seen from the
impugned seniority list that in the year 2010, direct
recruitment to 21 vacancies of District Judges took place.
17 posts were filled up under the 10% quota for accelerated
promotion. Therefore, in the impugned seniority list, the names
of 38 persons alone were shown as persons recruited in the
year 2010. Their names were shown as against the roster
points in 4 different cycles. The last of the persons in the said
seniority list was shown as serial No.162, which was virtually
roster point No.2 in the 5th cycle.
14. After indicating the seniority of 38 persons recruited
in the year 2010 as aforesaid, the Registry went to the next
portion of the seniority list where all persons recruited in the
year 2012 were accommodated from serial No.161 onwards up
to serial No.225. This is how the petitioner herein who was
promoted under the 65% quota in the year 2012 was
accommodated at serial No.163, which was virtually roster
point No.3 in the 5th cycle.
15. The objections of the petitioner and the stand taken
by the Registry can be well understood only if we reproduce the
impugned seniority list from serial Nos.1 to 225. Hence,
it is reproduced as follows:
PROVISIONAL SENIORITY LIST OF DISTRICT
JUDGES APPOINTED PURSUANT TO NOTIFICATIONS
ISSUED UNDER THE 2007 RULES:
For the year 2010
Method of
Recruitment
Date of
Notification
Number of
Vacancies
notified
Number of
posts filled
Direct Recruitment
(25% quota)
19.08.2010
18
21
Accelerated recruitment
by transfer (10% quota)
10.08.2010
17
17
Recruitment by transfer
(65% quota)
Notification was not issued
134 District Judges were already promoted on
Regular basis whereas 50% cadre strength (165) of
District Judges arises at 83. From 20.04.2010 as
per G.O.Ms.No.31 dated 15.11.2011 the cadre
strength of 65% shall be filled by promotion.
Roster is also changed
Roster
Point No.
Method of Recruitment
Name of the Officer
1.
Direct Recruitment
Sri Y.Lakshmana Rao
2.
Accelerated recruitment by
transfer
Sri G.Venkata Krishnaiah
3.
Recruitment by transfer
4.
Recruitment by transfer
5.
Direct Recruitment
Sri Moulana Junaid Ahmed
6.
Recruitment by transfer
7.
Recruitment by transfer
8.
Recruitment by transfer
9.
Direct Recruitment
Smt. G.Sunitha
10.
Recruitment by transfer
11.
Recruitment by transfer
12.
Accelerated recruitment by
transfer
Sri P.V. Ramana Rayalu
13.
Direct Recruitment
Sri G.Srinivas
14.
Recruitment by transfer
15.
Recruitment by transfer
16.
Recruitment by transfer
17.
Direct Recruitment
Sri S.Sasidhar Reddy
18.
Recruitment by transfer
19.
Recruitment by transfer
20.
Recruitment by transfer
21.
Direct Recruitment
Smt. K.Sujana
22.
Accelerated recruitment by
transfer
Sri A.Venkateswara Reddy
23.
Recruitment by transfer
24.
Recruitment by transfer
25.
Direct Recruitment
Sri A.Giridhar
26.
Recruitment by transfer
27.
Recruitment by transfer
28.
Recruitment by transfer
29.
Direct Recruitment
Smt. Y.Renuka
30.
Recruitment by transfer
31.
Recruitment by transfer
32.
Accelerated recruitment by
transfer
Sri A.Ravindra Babu
33.
Direct Recruitment
Smt. Rama Devi Sai
34.
Recruitment by transfer
35.
Recruitment by transfer
36.
Recruitment by transfer
37.
Direct Recruitment
Sri Ch.Purushothama Kumar
38.
Recruitment by transfer
39.
Recruitment by transfer
40.
Recruitment by transfer
41.
Direct Recruitment
Sri N.Narasinga Rao
42.
Accelerated recruitment by
transfer
Sri V.D. Gouda
43.
Recruitment by transfer
44.
Recruitment by transfer
45.
Direct Recruitment
Smt. E.Thirumala Devi
46.
Recruitment by transfer
47.
Recruitment by transfer
48.
Recruitment by transfer
49.
Direct Recruitment
Sri B.R. Madhusudhana Rao
50.
Recruitment by transfer
51.
Recruitment by transfer
52.
Accelerated recruitment by
transfer
Sri G.V. Subrahmanyam
53.
Direct Recruitment
Sri D.Ramulu
54.
Recruitment by transfer
55.
Recruitment by transfer
56.
Recruitment by transfer
57.
Direct Recruitment
Sri D.Tirumala Rao
58.
Recruitment by transfer
59.
Recruitment by transfer
60.
Recruitment by transfer
61.
Direct Recruitment
Sri B.Sai Kalyan Chakravarthi
62.
Accelerated recruitment by
transfer
Sri M.V. Ramesh
63.
Recruitment by transfer
64.
Recruitment by transfer
65.
Direct Recruitment
Smt. M.Babitha
66.
Recruitment by transfer
67.
Recruitment by transfer
68.
Recruitment by transfer
69.
Direct Recruitment
Smt. S.Premavathi
70.
Recruitment by transfer
71.
Recruitment by transfer
72.
Accelerated recruitment by
transfer
Sri R.Pundareekakshudu
73.
Direct Recruitment
Sri B.Papi Reddy
74.
Recruitment by transfer
75.
Recruitment by transfer
76.
Recruitment by transfer
77.
Direct Recruitment
Sri G.Gopi
78.
Recruitment by transfer
79.
Recruitment by transfer
80.
Recruitment by transfer
81.
Direct Recruitment
Smt. Aruna Sarika
82.
Accelerated recruitment by
transfer
Sri A.Jagadeeshchandra Rao
83.
Recruitment by transfer
84.
Recruitment by transfer
85.
Direct Recruitment
86.
Recruitment by transfer
87.
Recruitment by transfer
88.
Recruitment by transfer
89.
Direct Recruitment
90.
Recruitment by transfer
91.
Recruitment by transfer
92.
Accelerated recruitment by
transfer
Sri M.Srinivasulu Reddy
93.
Direct Recruitment
94.
Recruitment by transfer
95.
Recruitment by transfer
96.
Recruitment by transfer
97.
Direct Recruitment
98.
Recruitment by transfer
99.
Recruitment by transfer
100.
Recruitment by transfer
101.
Direct Recruitment
102.
Accelerated recruitment by
transfer
Sri A.V. Pardha Saradhi
103.
Recruitment by transfer
104.
Recruitment by transfer
105.
Direct Recruitment
106.
Recruitment by transfer
107.
Recruitment by transfer
108.
Recruitment by transfer
109.
Direct Recruitment
110.
Recruitment by transfer
111.
Recruitment by transfer
112.
Accelerated recruitment by
transfer
Sri H.Chandra Sekhar
113.
Direct Recruitment
114.
Recruitment by transfer
115.
Recruitment by transfer
116.
Recruitment by transfer
117.
Direct Recruitment
118.
Recruitment by transfer
119.
Recruitment by transfer
120.
Recruitment by transfer
121.
Direct Recruitment
122.
Accelerated recruitment by
transfer
Sri G.Rama Krishna
123.
Recruitment by transfer
124.
Recruitment by transfer
125.
Direct Recruitment
126.
Recruitment by transfer
127.
Recruitment by transfer
128.
Recruitment by transfer
129.
Direct Recruitment
130.
Recruitment by transfer
131.
Recruitment by transfer
132.
Accelerated recruitment by
transfer
Sri Ch.K. Bhupathi
133.
Direct Recruitment
134.
Recruitment by transfer
135.
Recruitment by transfer
136.
Recruitment by transfer
137.
Direct Recruitment
138.
Recruitment by transfer
139.
Recruitment by transfer
140.
Recruitment by transfer
141.
Direct Recruitment
142.
Accelerated recruitment by
transfer
Sri G.Gopi Chand
143.
Recruitment by transfer
144.
Recruitment by transfer
145.
Direct Recruitment
146.
Recruitment by transfer
147.
Recruitment by transfer
148.
Recruitment by transfer
149.
Direct Recruitment
150.
Recruitment by transfer
151.
Recruitment by transfer
152.
Accelerated recruitment by
transfer
Smt. K.Syamala Devi
153.
Direct Recruitment
154.
Recruitment by transfer
155.
Recruitment by transfer
156.
Recruitment by transfer
157.
Direct Recruitment
158.
Recruitment by transfer
159.
Recruitment by transfer
160.
Recruitment by transfer
161.
Direct Recruitment
162.
Accelerated recruitment by
transfer
Sri V.R.K. Krupa Sagar
For the year 2012
Method of
Recruitment
Date of
Notification
Number of
Vacancies
notified
Number of
posts filled
Direct Recruitment
(25% quota)
FTC officers-Advocates
15.04.2012
13.08.2012
05
--
04
12
Accelerated recruitment
by transfer (10% quota)
13.04.2012
01
01
Recruitment by transfer
(65% quota)
03.04.2012
33
29
163.
Recruitment by transfer
Sri B.S. Jagjeevan Kumar
164.
Recruitment by transfer
Smt. Y.Vijaya Lakshmi (Rtd)
165.
Direct Recruitment
Sri Shaik Inthiaz Ahamed
166.
Recruitment by transfer
Sri G.Pratap Kumar (Rtd)
167.
Recruitment by transfer
Sri R.Niranjan
168.
Recruitment by transfer
Sri V.Nageswar Rao
169.
Direct Recruitment
Smt. Sunitha Kunchala
170.
Recruitment by transfer
Sri K.V. Ramanaji Rao
171.
Recruitment by transfer
Sri M.Venkata Rama Rao (Rtd)
172.
Accelerated recruitment by
transfer
Sri M.Gandhi
173.
Direct Recruitment
Smt. Mantri Rama Krishna Sunitha
174.
Recruitment by transfer
Sri B.David Raju (Expired)
175.
Recruitment by transfer
Sri V.Venkateswar Rao
176.
Recruitment by transfer
Sri K.Sai Mohan (Rtd)
177.
Direct Recruitment
Sri Erugula Bhima Rao
178.
Recruitment by transfer
Sri M.Seetharama Raju (Rtd)
179.
Recruitment by transfer
Sri V.Prabhakar Rao (Rtd)
180.
Recruitment by transfer
Sri N.Ananda Rao
181.
Direct Recruitment
Kum. C.Yamini
182.
Accelerated recruitment by
transfer
183.
Recruitment by transfer
Shaik Mohd. Ismail
184.
Recruitment by transfer
Sri Syed Lateef Ur Rahman
185.
Direct Recruitment
Sri Y.V.S.B.G. Pardha Saradhi
186.
Recruitment by transfer
Sri D.Vishnu Prasada Reddy
187.
Recruitment by transfer
Dr. K.B. Narasimhulu
188.
Recruitment by transfer
Sri K.Nageswar Rao
189.
Direct Recruitment
Sri N.Solomon Raju
190.
Recruitment by transfer
Sri I.Krishnaiah (Rtd)
191.
Recruitment by transfer
Sri R.Sudhakar Naidu (Rtd)
192.
Accelerated recruitment by
transfer
193.
Direct Recruitment
Dr. T.Srinivasa Rao
194.
Recruitment by transfer
Sri P.Lakshmi Narayana (Rtd)
195.
Recruitment by transfer
Sri M.Rajender (Rtd)
196.
Recruitment by transfer
Sri N.Rama Linga Reddy (Rtd)
197.
Direct Recruitment
Sri S.Goverdhan Reddy
198.
Recruitment by transfer
Sri A.Vara Prasada Rao
199.
Recruitment by transfer
Sri S.V. Chalapathi (Rtd)
200.
Recruitment by transfer
Sri K.Ramesh
201.
Direct Recruitment
Sri G.V.N.R. Bharatha Lakshmi
202.
Accelerated recruitment by
transfer
203.
Recruitment by transfer
Sri T.Suryanarayana (Rtd)
204.
Recruitment by transfer
Sri D.Dharma Rao (Rtd)
205.
Direct Recruitment
Smt. A.Bharathi
206.
Recruitment by transfer
Smt. Y.Sujana Kumari (Rtd)
207.
Recruitment by transfer
Sri D.Sardar Mohan Rao
208.
Recruitment by transfer
Sri S.Nagarjuna
209.
Direct Recruitment
Sri Ch.Ramesh Babu
210.
Recruitment by transfer
211.
Recruitment by transfer
212.
Accelerated recruitment by
transfer
213.
Direct Recruitment
Sri K.Ranga Rao
214.
Recruitment by transfer
215.
Recruitment by transfer
216.
Recruitment by transfer
217.
Direct Recruitment
Dr. S.S.S. Jaya Raj
218.
Recruitment by transfer
219.
Recruitment by transfer
220.
Recruitment by transfer
221.
Direct Recruitment
Sri B.Srinivas Rao
222.
Accelerated recruitment by
transfer
223.
Recruitment by transfer
224.
Recruitment by transfer
225.
Direct Recruitment
Smt. B.Swapna
16. The contention of the learned Senior counsel for the
petitioner is that instead of accommodating the petitioner at
serial No.163 relating to the year 2012, his name ought to have
been included at serial No.3 itself (serial No.3 in the
1st cycle). The contention of the petitioner is that neither the
judgment of the Supreme Court in All India Judges Association
case nor Rule 13(a) contemplated splitting up of the seniority,
year-wise. In other words, his contention is that irrespective of
the year in which a person is recruited to the post of District
Judge, he should be accommodated against
a roster point reserved for the method of recruitment through
which he got appointed.
17. We have carefully considered the above submissions.
18. At the outset, it should be pointed out that there is a
fallacy in the contention of the petitioner. If persons recruited
by 3 different methods of recruitment are to be accommodated
in the 40-point roster irrespective of the year of recruitment,
then a person may gain seniority over and above another
person who was appointed 2 years earlier and on which date
the former was not even born in the service.
It is now well settled that no person can claim seniority with
effect from a date on which he was not even born in the service.
If the contention of the petitioner is accepted and he is placed
at serial No.3 against roster point No.3 in the
1st cycle of the roster, then the petitioner will be gaining
seniority over persons appointed in the year 2010, despite the
fact that the petitioner was appointed in the year 2012. This is
not the purport of the decision of the Supreme Court in
All India Judges Association case. This is not also the purport
of Rule 13(a).
19. After the issue of a water-tight schedule for
appointments by the Supreme Court in Malik Mazhar Sultan v.
Uttar Pradesh Public Service Commission , there is rarely any
chance for the quota-rota to fail. Therefore, the long line of
decisions starting from Direct Recruit Class-II Engineering
Officers Association v. State of Maharashtra , need not
influence our thinking in determining the issue on hand.
20. Today, the recruitment to the category of District
Judges by all the 3 methods of recruitment, take place in
accordance with the schedule fixed in Malik Mazhar Sultan.
But if in a particular year, there are no vacancies available for
a particular stream (either direct recruitment or accelerated
promotion or regular promotion), no recruitment under that
stream can take place in that year. But in the next year
vacancies may arise in that particular stream and if those
officers appointed in the next calendar year under the said
stream are packed in the 40-point roster, as prayed for by the
petitioner, people appointed later will score a march over
people appointed earlier. This is not the purport of ratio laid
down in para-29 of the decision in All India Judges Association
case.
21. Accommodating the petitioner against the first
available roster point in the first cycle, irrespective of the year
of his appointment, would result in two absurd consequences,
namely, (a) giving seniority with effect from
a date before the date on which he was born in the service and
(b) giving seniority to a person even before the vacancy under
that particular stream arose.
22. The only manner in which the ratio laid down in para-
29 of All India Judges Association case and Rule 13(a) of the
Special Rules is to be understood is this. As and when
a recruitment takes place, persons selected under
a particular stream in that selection will be accommodated
against the roster points earmarked for that particular stream
in the 40-point roster. If all the 3 methods of recruitment take
place almost simultaneously and if there are just
40 vacancies, all roster points from point No.1 to 40 will get
filled up. If the total number of persons appointed at
a particular point of time from all the 3 different streams,
is greater than 40, then the Registry will have to fill up the first
40 roster points and complete the 1st cycle. Thereafter, the 2nd
cycle of the 40-point roster has to be commenced and the
person at roster point No.1 in the 2nd cycle will be at serial
No.41 insofar as seniority is concerned.
23. As a matter of fact, one must read paragraph-29 of
the decision in All India Judges Association case and Rule
13(a), in tune with the principles laid down by a 3-member
bench of the Supreme Court in Bimlesh Tanwar v. State of
Haryana . Before the advent of the decision in Bimlesh Tanwar,
the decision of a 2-member bench in P.S. Ghalaut v. State of
Haryana , was holding the field. It was decided in
P.S. Ghalaut that roster points would also determine seniority.
But the 3-member bench of the Supreme Court in Bimlesh
Tanwar overruled the decision in P.S. Ghalaut. While doing so,
the 3-member bench of the Supreme Court in Bimlesh Tanwar
also took note of the directions issued in
All India Judges Association case. The relevant portion of the
decision of the 3-member bench of the Supreme Court in
Bimlesh Tanwar, which explained the ratio in All India Judges
Association case, is as follows:
In All India Judges' Association's case [2002 (4) SCC 247], this
Court was considering the matter relating to implementation of
recommendations of Shetty's Commission as regard the fixation of pay
scales of the Judicial officers. This Court noticed that sometimes merit
suffers because of seniority. It was directed:
"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 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
Court as early as possible."
Only in relation to such promotion, the Court noticed that there exists a
quota system in two different sources of recruitment in service in so far
as seniority is concerned, and whence roster system is followed, the
litigation in the country had been lesser. In a case where there are
different sources of recruitment to a service and quota of appointment
for each source of recruitment is fixed under the rules, the seniority vis-
-vis of different sources of recruits could be legally fixed on the basis of
roster points. It was in that situation a desire was expressed that quotas
be specified in relation to posts as contradistinguished from quota in
relation to vacancies. This Court, therefore, directed the High Courts
to amend and promulgate seniority rules in the light of the decisions in
R.K. Sabharwal (supra). It was clearly laid down:
"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."
The said decision cannot be said to have any application whatsoever in
determining inter se seniority as regards vacancies required to be filled
up in the years 1989-1991.
24. It will be of interest to note that the directions
contained in All India Judges Association case to amend the
Rules relating to seniority was in the light of the decision of the
Supreme Court in R.K. Sabharwal v. State of Punjab . But the
decision of the Supreme Court in R.K. Sabharwal with respect
to roster points vis--vis seniority, came to be explained by a
subsequent bench of the Supreme Court in State of Punjab v.
Dr. R.N. Bhatnagar . In R.N. Bhatnagar, the Supreme Court
drew a distinction between the roster relatable to the policy of
reservation under Article 16(4) of the Constitution of India and
a roster created for accommodating quota-rota between
different sources of recruitment. After drawing such a
distinction, it was held in R.N. Bhatnagar as follows:
So far as the first point is concerned, the High Court, in the
impugned judgment, has heavily relied upon the Constitution Bench
decision of this Court in the case of R.K. Sabharwal & Ors. (supra).
Now it has to be kept in view that the Constitution Bench of this Court
in the aforesaid decision Was concerned with entirely a different
question, namely, as to how the roster indicating reserved points in
connection with reservation of posts in a cadre to be filled in by
Scheduled Caste (for short 'SC'), Scheduled Tribe (for short 'ST) and
Backward Class (for short 'BC) candidates could be operated.
Paragraph 4 of the Report lays down that "when a percentage of
reservation is fixed in respect of a particular cadre and the roster
indicates the reserve points, it has to be taken that the posts shown at
the reserve points are to be filled from amongst the members of reserve
categories and the candidates belonging to the general category are
not entitled to be considered for the reserved posts."
In this connection, reliance was placed by the Constitution Bench on
Article 16(4) of the Constitution of India which permits the State Govt.
to make any provision for reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of the
State, was not adequately represented in the services under the State, In
the light of the aforesaid scheme of the Constitution, the Bench had to
consider whether reservation of posts for SCs, STs and BCs when
sought to be secured by way of operation of roster could permit the
operation of the roster qua the posts or vacancies in the cadre. It was
noted in this connection that if the roster operated on vacancies then it
may happen that at a given point of time the percentage of reservation
of posts for SCs, Sts and BCs may exceed the permissible percentage of
reservation. In paragraph 5 of the Report it was observed that
reservations provided under the impugned Government instructions
permitted 16% of the posts to be reserved for members of SCs and BCs
and it could be achieved by the roster to be maintained in each
department. The roster had to be implemented in the form of running
account from year to year. In connection with "16% of the posts,.." to
be reserved for members of SCs and BCs in promotional posts, it was
held as under-
".......when recruitment to a cadre starts then 14 posts earmarked
in the 100 points roster are to be filled from amongst the
members of Scheduled Castes...........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 100 posts when me posts
earmarked in the roster for 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. 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 aforesaid observations, which were heavily relied on by the High
Court, and are also relied upon by the respondent's (writ petitioner's)
counsel before us, cannot be of any assistance to the appellant-State on
the facts of the present case. The result is obvious. As per Article 16(4)
which carves out a separate field for itself from the general sweep of
Article 16(1) which guarantees equality of opportunity in matters of
appointments in Govt services to all citizens of India, the reservation
for these categories in employment has to be achieved by earmarking
requisite percentage of posts for the reserved category of candidates
and by pitchforking these posts on roster points on requisite points
roster and when such a roster takes a full cycle, posts earmarked on
reserved points will enable the requisite reserved category of
candidates to fill up these posts. After that is done, the roster would be
treated to have achieved its purpose. Whenever a reserved candidate
vacated a reserved post, the said post was liable to be filled only by a
candidate belonging to the reserved category If after the roster is first
operated and thereafter it is again operated on future vacancies also, a
situation may arise wherein a cadre may get reserved category
exceeding permitted quota of reservation. It is to avoid this contingency
that the Constitution Bench laid down in the aforesaid decision as
indicated therein. So far as Rule 9 of the Rules in the present case is
concerned, it has nothing to do with reservation of posts in the cadre of
Professors. It is not a rule of reservation envisaged for a specified
category of persons as permitted by Article 16(4) of the Constitution.
On the contrary, it is a rule of recruitment from two different Sources,
namely, in case of Professor's cadre 75% of posts had to be filled in by
promotion while '25'% by direct recruitment. These two sources of
recruitment permit departmental promotees and direct recruits from
the open market to get absorbed in the cadre. They merely serve as two
entry points for the cadre. Rule 9 deals with reservation of appointment
to the posts of Professor and does not deal with reservation of posts of
Professor for any special class or category of candidates. It is well
settled that once recruitment is made from two sources i.e.
departmental promotees and direct recruitment from open market and
once the concerned candidates enter into any cadre through entry point
reserved for them, they get fused and blended into one single cadre and
their birth marks get obliterated.
25. Therefore, the 40-point roster created under
Schedule-A to the Special Rules for A.P. State Judicial Service,
2007 and referred to in Rule 13(a) cannot be seen, explained
or understood in isolation. The roster has to be understood
and applied, in a manner that would not go contrary to the
most fundamental principles governing seniority. The most
fundamental rule relating to seniority is that a person cannot
get seniority from a date anterior to the date of his appointment
to the service and he cannot gain seniority over a person
appointed 2 years earlier to him, merely on the basis of the
roster point.
26. Therefore, the claim of the petitioner is not legally
tenable. Hence, the writ petition is liable to be dismissed and
accordingly, it is dismissed. The miscellaneous petitions,
if any, pending in this writ petition shall stand closed.
No costs.
___________________________
V.RAMASUBRAMANIAN, J.
________________ J.UMA DEVI, J. 18th April, 2017