Gujarat High Court
Hardik Bharatbhai Trivedi vs State Of Gujarat Through The Secretary on 24 February, 2023
Author: Sonia Gokani
Bench: Sonia Gokani
NEUTRAL CITATION
C/SCA/13218/2018 ORDER DATED: 24/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13218 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 5750 of 2018
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HARDIK BHARATBHAI TRIVEDI & 2 other(s)
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & 1 other(s)
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Appearance:
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2,3
GOVERNMENT PLEADER for the Respondent(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MR HEMANG M SHAH(5399) for the Respondent(s) No. 2
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CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE
SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 24/02/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI) As both the petitions contain similarity of facts and issue involved of law being identical, for the purpose of adjudication, the facts are drawn from Special Civil Application No. 13218 of 2018.
1. This petition is preferred under Articles 226 and 227 of the Constitution of India challenging the discriminatory act on the part of the respondents in not considering the case of the petitioners for regular appointment and in continuing the Page 1 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined services of the petitioners on ad-hoc basis. Despite the fact that even before the declaration of results and issuance of appointment letters in favour of the petitioners for the post of Civil Judge pursuant to the advertisement dated 28.11.2016 and thereafter, the regular posts not only were sanctioned, but, were made available to the knowledge of the respondent no.2. The alleged inaction on the part of the respondents in not converting the services of the petitioners who are in service as Civil Judges into regular appointment, according to the petitioners, amount to an act of discrimination.
2. It is further averred that a situation has arisen that the new advertisement dated 16.05.2017 for the recruitment of Civil Judges was published after the result of the petitioners was out and this subsequent appointment would march over the petitioners who are already in service, as the new advertisement mentions the sanctioned regular post. 2.1. It is the grievance of the petitioner that less meritorious candidates would be appointed on regular basis as compared to the petitioners and others who are already in service and serving as Civil Judges in the State of Gujarat. It is further Page 2 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined averred that despite the appointment order of the petitioners, stating that once other factors are in favour of persons like the petitioners, and the regular vacancies are available as per Rules, the case of the petitioners would be considered. 2.2. It is also their say that occasion had arisen prior to declaration of results about the regular vacancies, the strength being increased and the effect of those regular vacancies were to be given effect to in cases where petitioners would be eligible after date 04.05.2017 and 16.05.2017 when the sanctioned strength for the regular appointment was, in fact, increased. The petitioners seek direction against the respondent to consider the case of the petitioners against the regular vacancies from the date of their initial appointments with consequential benefits and seniority. 2.3. The petitioners participated in the recruitment process for the post of Civil Judges pursuant to the advertisement No. RC/079/2016. They were declared successful candidates, however, they were given ad-hoc appointment though the regular posts were available on the date of their appointment and posting. It is also their say that many regular posts were Page 3 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined sanctioned by the State Government, however, the petitioners were ignored and no regular appointments were given. 2.4. The candidates, who are appointed subsequent to the petitioners, on the basis of regular posts are given seniority though they have undergone the very recruitment process provided under the law. Thus, the inaction on the part of the respondents, is alleged to be in violation of Articles 14 and 16 of the Constitution of India.
3. The prayers sought for are as follows:-
"32...
(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, directions by directing the respondents herein to consider case of the petitioners herein against the regular vacancies from the date of their initial appointments with consequential benefits and seniority;
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, directions by directing the respondents to consider the case of the petitioners for Page 4 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined conversion from ad-hoc to regular posting in view of increased sanctioned regular posts vide Resolution No.CCA/102016/2359/D dated 13.07.2018 at Annexure-D and Anenxure-G to this petition and subsequent advertisement issued by the respondent No.2 herein dated 16.05.2017 and 05.05.2018;
(C) During pendency and final disposal of the present petition, Your Lordships may be pleased to call for the record and proceedings from the respondents herein as regards advertisement dated 28.11.2016, 16.05.2017 and 05.05.2018 issued for the post of Civil Judges and also record of the Resolution dated 04.05.2017 and 13.07.2018 issued by the respondent No.1 herein pertaining to the sanctioning of post for Civil Judges on regular basis.
(D) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct respondents herein not to decide seniority of the candidates selected subsequent to the advertisement No.RC/0719/2016;
(E) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct respondents herein to consider case of the petitioners herein against the regular vacancies from the date of Page 5 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined their appointments with consequential benefits;
(F) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case. "
4. Thus, the emphasis on the part of the petitioner is to consider them against the regular vacancies from the date of their initial appointments with consequential benefits.
5. In response to the notice issued by this Court, affidavit- in-reply on behalf of the respondent no.1 has come on record. Mr. Harish Hasmukhbhai Verma, Deputy Secretary, Legal Department has opposed the petition and denied all the allegations.
5.1. It is contended that on 30.11.2016, a communication was sent seeking creation of 50 regular posts in the cadre of District Judges, 100 regular posts in the cadre of Senior Civil Judges and 100 regular posts in the cadre of Civil Judges with attendant staff in various districts.
5.2. The High Court on administrative side vide its letter Page 6 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined dated 30.11.2016 recommended creation of 50 posts for Civil Judge in the year 2017, 25 posts in the year 2018 and 25 posts in the year 2019. In pursuance to which, the legal department sanctioned 50 posts for Civil Judges vide Government Resolution dated 04.05.2017 and sanctioned 25 posts for Civil Judges vide Government Resolution dated 13.07.2018 and 25 posts for Civil Judges vide Government Resolution dated 28.09.2019. It is further submitted that no proposal is received on the administrative side pending with the State Government in Legal Department for sanction on creation of regular posts of Civil Judges.
6. Affidavit-in-reply of respondent no.2 - the High Court of Gujarat on administrative side is filed by the then Registrar General Mr. P.R.Patel who has denied all the allegations. 6.1. It is the say of the respondent that the petitioner no.1 was appointed as a Civil Judge vide order dated 14.09.2017. The present petition was presented on 23.08.2018 and it was registered on 28.08.2018. on 01.08.2018, the petitioner no.1 had tendered an application to respondent no.1 for seeking repatriation to his parent department i.e. Deputy Section Page 7 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined Officer. The said application was placed for consideration before the Standing Committee Meeting which approved the same. Thus, on 31.08.2018, the Government of Gujarat was conveyed about the recommendation of petitioner no.1 to his original post and necessary orders are awaited from the Government. It is contended that the petitioner no.1 has not made any averment in reference to his own application of 01.08.2018.
6.2. With regard to others, it is contended that the entire matter is required to be dismissed as petitioners have erred in appreciating the true and correct facts. They are the candidates of 2016 advertisement and they had been appointed on ad-hoc basis. They are since seeking regularization of their services on regular posts pursuant to the regular vacancies' advertised vide advertisement issued on 25.05.2017 and 06.05.2018, such action on the part of the petitioners is impermissible.
6.3. It is admitted that in advertisement for filling up 12 regular vacancies and 100 vacancies of ad-hoc posts of Civil Judge was issued. While issuing the advertisement, in Page 8 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined reference to ad-hoc category, it was specifically stated that "presently, these posts/vacancies are temporary posts. However, the High Court (administrative side) has written to the State Government to convert the 100 temporary posts into regular posts." While issuing the advertisement, it was specifically stated with conditions and the relevant clause is Clause No. 7(6) which reads "the appointing on basis of such ad-hoc and temporary service shall have no right to be regularized in permanent establishment. He/she however, would be considered for appointment on regular basis, in his/ her turn, subject to suitability and satisfactory service record which shall be judged by the High Court, if during the period of his/her ad-hoc service, regular vacancies are available as per Rules."
6.4. It is further admitted that vide final result declared on 05.05.2017, the petitioners came to be appointed as Civil Judges on ad-hoc category of Civil Judges. Vide Notification dated 14.09.2017, they were appointed as Civil Judges against the ad-hoc vacancies. Such appointment would be for fixed period upto 29.02.2020.
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NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined 6.5. It is further contended that when the petitioner's turn comes for being regularized on regular post, he or she is subject to fulfillment of eligibility criteria and assessment of disposal recommendations made by concerned Principal Judicial Officer in C.R. and details of pending departmental inquiry, vigilance complaint as well as administrative complaint would be taken into consideration so as to assess the suitability of the candidature of the petitioner for appointment on regular post. At present, as reasonable time had not been passed, sufficient service record of the petitioner is not available to assess the suitability. Therefore, till then, he or she would have to discharge their duties as Civil Judges on ad-hoc basis.
6.6. It is further contended that the creation of 50 regular posts does not mean that the petitioners have an indefeasible right for being considered on regular posts of Civil Judges as these 50 posts are in addition to the already sanctioned posts whereas the 100 temporary ad-hoc posts as advertised vide advertisement issued on 30.11.2016 have not yet been converted into regular posts of Civil Judges. The petitioners shall have to wait for their turn as per the seriatim and they Page 10 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined cannot be given the priority nor can they march over the other Civil Judges, who are also waiting for their turn for regular appointment.
6.7. Much has been emphasized on the advertisement issued on 22.05.2017 which emphasized that the appointee is on the ad-hoc and temporary basis and the person will not have any right to be regularized in permanent establishment.
7. This Court heard the learned counsels on both the sides, who have extensively made submissions along the line of their pleadings.
7.1. Chronological events which have resulted into preferring of this petition clearly go to indicate that on 25.08.2010 the respondent No.1 issued the Government Resolution for establishment of 375 additional Court of Civil Judges and JMFC. On 26.07.2016, respondent No.2 surrendered 275 ad- hoc posts and resolved to convert the remaining 100 posts in regular posts. On 30.11.2016, the respondent No.2 addressed a letter to respondent 1 that instead of 700 ad-hoc courts, the regular 250 courts are required to be established, where it Page 11 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined was resolved to sanction the posts in phased manner like 50 posts in 2017, 25 posts in 2018 and 25 posts in 2019. 7.2. Advertisement was issued by the respondent No.1 for Civil Judges on 28.11.2016 for 100 ad-hoc and 12 regular vacancies. These posts or vacancies in the advertisement were declared to be temporary posts with a rider that the High Court on administrative side has written to the State Government to convert 100 temporary posts into the regular posts. On 30.12.2016 at the relevant point of time, 80 ad-hoc judges were working in the establishment and out of which 72 were considered against the regular vacancies. 7.3. On 04.05.2017, respondent No.1 sanctioned 50 regular posts pursuant to the aforesaid request dated 30.11.2016 addressed by the respondent No.2. On 05.05.2017, the final results were declared by the respondent No.2 pursuant to the advertisement dated 28.11.2016. It needs to be noted that the petitioners were considered against ad-hoc vacancies though 50 regular posts were sanctioned by respondent No.1 by then and there were only 5 ad-hoc judges working in the establishment when the final results were declared. The Page 12 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined appointment orders of the petitioners were issued on 14.09.2017 where the appointment was given for the fixed period upto 29.02.2020 vis-a-vis the sanction that had been granted or till the posts are abolished, whichever is earlier. 7.4. On 16.05.2017, the fresh advertisement was issued by the respondent No.2 for 97 regular and 32 ad-hoc vacancies and this is indicative that the regular vacancies were available with the respondent No.2 at the time when the appointment orders were issued to the petitioners on 14.09.2017. 7.5. On 06.04.2018, the final results were declared pursuant to the advertisement dated 16.05.2017 where 42 regular appointments were made. Again, on 13.07.2018, 25 posts were sanctioned by the respondent No.1 pursuant to the Government Resolution dated 30.11.2016. Again, on 05.05.2018, fresh advertisement for 39 regular posts were issued by the respondent.
7.6. It emerges that on 06.08.2020 the petitioners were regularized though all throughout the regular vacancies were available and there had been no proposal pending with the Page 13 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined respondent No.1 with regard to ad-hoc posts. 7.7. It appears that in the advertisement, there is a specific clause made that the said advertisement was for ad-hoc posts since no regular sanctioned posts were available with the respondent No.2. It is also not in dispute that the petitioners have undergone the same recruitment process. The training period as undergone by the candidates, who have been given the regular appointment had been identical. It is also to be noted and is not disputed that on 05.05.2017 when the petitioners' result had been declared, the respondent No.2 was having sanctioned posts as per the clause of advertisement, however, the petitioners were not considered against the regular vacancies.
7.8. In the appointment orders issued to the petitioners, the clause had been that candidate shall be appointed for fixed period upto 29.02.2020 which period vis-a-vis the sanction has been granted or till the posts are abolished whichever is earlier.
7.9. The stand of the respondent No.2 in the affidavit-in-reply Page 14 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined has not been consistent. On one hand, it is being stated that due to non-availability of the sanctioned posts, the petitioners were not accommodated against the regular vacancies. The fact remains that at the time of the declaration of the result of the petitioners, 50 posts were sanctioned by the respondent No.1 and only 5 ad-hoc Judicial Officers were working. 7.10. With regard to assessing the suitability of the petitioners, they have undergone the same recruitment process and also the training period. It is claimed by the petitioners that they are more meritorious than those candidates who have been appointed on regular posts in the years 2017, 2018, 2019 and 2021. There are no Rules or Regulations placed before this Court, where the standard for assessing the suitability is prescribed. It appears that there were no ad-hoc courts as per the say of the respondent No.1 as on 20.09.2019 and yet the petitioners have been considered on 06.08.2020.
7.11. It is quite clear and admitted fact that the advertisement by which the present petitioners have been taken was for filling up 12 regular vacancies and 100 Page 15 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined vacancies of ad-hoc category of Civil Judges. The advertisements also had specified that these vacancies were temporary posts however, the High Court on administrative side had written to the State Government to convert 100 temporary posts into regular posts. The appointees were not to have any right to be regularized in permanent establishment, however, he or she would be considered for appointment on regular basis in his or her term subject to suitability and satisfactory service record and shall be judged by the High Court if during the period of his or her ad-hoc service, regular vacancies are available as per the Rules. The final results were declared on 05.05.2017, the petitioners were appointed as Civil Judges on ad-hoc category vide Notification dated 14.09.2017. It is not in dispute that the final results when were out on 05.05.2017, the regular sanctioned posts were already available.
8. The Apex Court in case of Rudra Kumar Sain vs. Union of India [Writ Petition (Civil) No. 490/1987 & 1252/1990; decided on 22.08.2000, reported in (2000) 8 SCC 25] was considering whether in determining inter-se seniority between the promotees and the direct recruits, the Page 16 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined guidelines and directions given by the Court in case of O.P.Singla and others vs. Union of India and others, reported in (1984) 4 SCC 450, have been duly followed. It was a case where promotees to the Higher Judicial Services filed a writ petition claiming that since they have been working as Additional District and Sessions Judges against temporary posts created by the administration in the cadre of Additional District and Sessions Judges, they should be treated as Members of Higher Judicial Service and the seniority should be decided on the basis of continuous length of service. The Court held that the appointments to promotees are made to the service under Rules 16 and 17. Such appointment, ad-hoc or fortuitous or stop-gap, is contrary to the conclusion of the Apex Court. The appointments made under Rules 16 and 17 after due consideration and the approval of the High Court and the appointees did qualify to hold the promotional posts, the Court therefore held that the inter-se seniority must be re-determined on the basis of continuous length of service in the cadre. The relevant findings and observations are required to be profitably reproduced:-
"18. Having examined the rival submissions at the Page 17 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined Bar and having scrutinized the two seniority lists drawn up by the Delhi High Court, the provisional as well as the final, the provisional made on 26th of March, 1985 and the final list which was approved by the Full Court on 25th of October, 1986, we find sufficient force in the contentions made by Mr. Sibal, appearing for the promotees. We are also of the considered opinion that the High Court of Delhi, in drawing up the seniority list, though proceeded to allocate seniority according to the length of continuous officiation, regardless of whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit, as directed by this Court in Singlas case, but committed error by excluding the persons, on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been made under Rules 16 and 17 after due consultation with and or approval of the High Court and the appointees satisfied the qualification required under Rule 7 of the Rules. It is on this score, the ultimate seniority list, drawn up, stands vitiated. When the report of the first Committee, on the basis of which ultimately provisional seniority list was drawn up is examined, it would appear that the Committee went on examining the question of a lien against a post and then, recorded a finding that anyone who comes to hold one of those posts, which is subject to a lien, must be held to be holding as an ad hoc arrangement or for fortuitous reasons or as a stop-gap arrangement. The Committee also recorded a further finding that if the position of the person, whose seniority is under consideration is beyond the total number of posts in the Service, then also his appointment must necessarily fall within the description of ad hoc/fortuitous/stop-gap and having said so, the Committee assigned Ms. Usha Mehra, the 30th post and then adjusted the seniority accordingly. The conclusion of the Committee that a person, promoted to the Higher Judicial Service under Rules 16 or 17 of the Rules to a post against which some other person has a lien, would ipso facto make such appointment Page 18 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined ad hoc/fortuitous/stop-gap, is contrary to the conclusion of this Court in Singlas case. Then again, this Court having categorically directed in Singlas case, that appointments made under Rule16 or 17, after due consultation and/or approval of the High Court, and the appointee did qualify to hold the promotional post, as required under Rule 7 of the Recruitment Rules, then such appointment of the appointee will not be ignored for the purpose of determining the inter-se seniority in the cadre and on the other hand, continuous length of Service should be the basis, though Rule 8(2) of the Rules provides otherwise. Yet the High Court took shelter under the expression ad hoc/fortuitous/stop- gap and ignored the continuous length of Service of such appointees, while determining the inter-se seniority. In fact, in Singlas case, the Court on being confronted with a peculiar situation, had given the direction as to in what way, it will be equitable for all concerned to determine the inter-se seniority, but notwithstanding the same, the High Court appears to have stuck to the idea of the principles engrafted in Rule 8(2) of the Rules and then decided the question of seniority on the basis of number of posts, available in the Service. While doing so, the High Court obviously missed the findings of this Court that under the scheme of the Rules, Service is a narrower body than the cadre and every temporary post, which carries the same designation as that of any of the posts in the schedule is a cadre post, whether such post is comprised in the Service or not. It is also apparent from the report that the High Court followed Joginder Naths case in drawing up the seniority, on the ground that the judgment (in Singlas case) does not indicate whether the earlier decision of the High Court in Joginder Naths case is still to be followed in preparing the seniority list or not, but obviously, the High Court has failed to appreciate, what was stated in the concurrent judgment of Mukharji J, in Singlas case, wherein in no uncertain terms, it was stated that so far as, controversy regarding the fixation of the seniority list between the promotees and direct recruits, the same will not be guided by Joginder Page 19 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined Naths case inasmuch as in Joginder Naths case, the Court construed the Delhi Judicial Service Rules, 1970 in the context of seniority and confirmation and not in the context of inter-se seniority between the promotees and direct recruits. The entire reasoning given by the High Court in the first report, on the basis of which, provisional seniority list has been drawn up, cannot, but be held to be contrary to the directions given by this Court in Singlas case, and accordingly, must be held to be erroneous. The reasoning of the High Court, in fact, nullifies the ratio in Singla's case, wherein Chandrachud CJ, had observed, after noticing a representative order of appointment under Rule 16:-
The appointments were neither ad hoc, nor fortuitous, nor in the nature of a stop-gap arrangement. Indeed, no further orders have ever been passed recalling the four promotees and, others similarly situated, to their original posts in the subordinate Delhi Judicial Service. Promotees who were under Rule 16 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not take up to the necessity of converting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years."
Yet, the High Court in drawing up the seniority list, have treated such promotees, who are appointed under Rule 16 as aliens to the Service and thus, the High Court was wholly in error in preparing the provisional seniority list, as already stated. If we examine the second Committee report, which had considered the objections filed by the promotees and ultimately, on the basis of which the final seniority list was approved by the Full Court in its Meeting on 25th of October, 1986 and the list was prepared on Page 20 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined 11th of November, 1986, we also find, the High Court committed similar error in accepting the provisional seniority list as final. In the second Report, the Committee, again was of the view that if a post meant for a direct recruit, according to the quota, remains unfilled, then the promotee occupying the last post, must be taken to be holding that post on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. This indicates that the Committee was still obsessed with the provisions of Rule 8(2) of the Recruitment Rules, even though in Singlas case, it has been categorically held by this Court that quota principle has broken down and as such, seniority cannot be determined by taking recourse to the quota and rota provided under Rule 8(2) but on the basis of continuous length of Service, provided the promotees have been promoted after due consultation with and/ or approval of the High Court under Rule 16 or 17 and they did possess the requisite qualification for promotion, as provided under Rule 7. At this stage, it would be appropriate to notice the letter of appointment of Shri M.A. Khan, Shri O.P. Dwivedi, Shri R.C.Jain and Shri J.D. Kapoor by the order of the Administrator dated 19th of December, 1980, which is identical with the representative order, this Court had taken note of, in Singlas case. It is not the case of the High Court or any of the direct recruits- respondents that these promotees, on being promoted on 19th of December, 1980, have at any point of time, reverted to their substantive post before Shri B.S. Chaudhary was appointed as a direct recruit on 10.11.1982. In this view of the matter, these promotees, who are appointed under Rule 16(2) of the Recruitment Rules on 19.12.1980, and continuously held the said post and further, such appointments have been made in consultation with the High Court of Delhi and they had the requisite qualifications under Rule 7 of the Recruitment Rules, their appointments cannot be held to be either ad hoc or fortuitous or stop-gap, and necessarily, therefore, they must be held to be senior to Shri B.S.Chaudhary, a direct recruit of the year 1982, on the basis of continuous length of Service, in accordance with the Page 21 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined directions given by this Court in Singlas case. Similarly, the two other promotees namely Shri B.N.Chaturvedi and Shri R.C.Chopra, who had been appointed since August, 1984 and also continuously held the post of Additional District and Sessions Judge for all these years, must be held to be senior to the direct recruits namely Ms. Sharda Aggarwal, who was directly recruited on 07.6.1985 and Shri H.R. Malhotra and Shri J.P.Singh, who were directly recruited on 26.11.1985.
19. It would be worthwhile to notice that the promotee officers, in their rejoinder affidavit, have indicated that in course of arguments in Singlas case, the Supreme Court had directed the Delhi High Court to submit a chart, indicating under which rule, the promotees had been appointed and pursuant to the said directions, the High Court had submitted a chart and all the petitioners(the promotees) were shown to have been appointed either under Rule 16 or Rule 17. A chart, also purported to have been filed in the earlier case, has been enclosed to the rejoinder affidavit, which clearly indicates the factual matrix, which were there before this Court in Singlas case. Even, the High Court in its counter affidavit in the present proceedings, has submitted that all the petitioners herein were appointed under Rule 16 or 17 of the Rules and the respective dates of appointments are matters of record.
22. So far as the terminology used in Singlas case, namely ad hoc, fortuitous and stop-gap, the same is quite familiar in the Service Jurisprudence. Mr. Rao, appearing for the High Court of Delhi, however contended before us that the said terminology should be given the same meaning, as was given in Parshotam Lal Dhingra vs. Union of India, 1958 S.C.R. Page 828. In Dhingras case, the Court was examining whether removal of an employee can be held to be a penal and whether Article 311(2) of the Constitution can at all be attracted and the Court also observed that certain Page 22 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined amount of confusion arises because of the indiscriminate use of the words provisional, officiating and on probation. We do not think that the concept or meaning given to those terminology in Dhingras case will have any application to the case in hand, where the Court is trying to work- out an equitable remedy in a manner which will not disentitle an appointee, the benefit of his fairly long period of Service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due consultation and/or approval of the High Court.
23. The three terms ad hoc, stop gap and fortuitous are in frequent use in service jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression fortuitous in Strouds Judicial Dictionary is accident or fortuitous casualty. This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to fortuitous. In Blacks Law dictionary, the expression fortuitous means occurring by chance, a fortuitous event may be highly unfortunate. It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression ad hoc in Blacks Law Dictionary, means something which is formed for a particular purpose. The expression stop-gap as per Oxford Dictionary, means a temporary way of dealing with a problem or satisfying a need.
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24. In Oxford Dictionary, the word ad hoc means for a particular purpose; specially. In the same Dictionary, the word fortuitous means happening by accident or chance rather than design.
25. In P. Ramanatha Aiyers Law Lexicon (2nd Edition) the word ad hoc is described as for particular purpose, Made, established, acting or concerned with a particular and or purpose. The meaning of word fortuitous event is given as an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God.
26. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc or stop-gap. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as fortuitous in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a stop-gap arrangement and appointment in Page 24 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined the post as ad hoc appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre.
27. In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be stop-gap or fortuitous or purely ad hoc. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/ad hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
28. In view of our conclusions, as aforesaid, we quash the seniority list both provisional and final, so far as, it relates to the appointees either by direct recruitment or by promotion in the Delhi Higher Judicial Service, prior to the amendment of the Recruitment Rules in the year 1987, and their inter- se seniority must be re- determined on the basis of continuous length of service in the Cadre, as indicated in Singlas case and explained by us in this judgment. Since the future of these officers to a great extent depends upon seniority and many of these officers may be on the verge of superannuation, the High Court would do well in finalising the seniority within a period of six weeks from the date of receipt of this judgment."
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NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined 8.1. In yet another decision of the Apex Court rendered in case of Sudhir Kumar Atrey vs. Union of India [reported in (2022) 1 SCC 352], the question was about combined inter-se seniority. The Apex Court held that in the matter of adjudging seniority of candidates selected in one and the same selection, placement in the order of merit can be adopted as the principle for determination of seniority, but, where the selections are held separately by different recruiting authorities, principle of initial date of appointment/ continuous officiation may be the valid principle to be considered for adjudging inter-se seniority of officers in the absence of any rule or guidelines in determining seniority to the contrary. Relevant findings and observations are as follows:-
"13. To sum up the situation, Central Administrative Tribunal, Principal Bench, in dealing with the situation as emerged afore- stated, in its order dated 26th May, 2008, observed in paras 23 and 24 as under:
"23. From Annexure 'O', we can gather that the real issue required to be examined with reference to this dispute, had not been attempted. Office Memoranda referred to in the order could not have had any application as far as the case at hand was concerned. The applicants were entitled to get seniority from the date of their initial appointment and so far as this Page 26 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined has been overlooked in Annexure 'O', the same is required to be appropriately modified. The general question, whether seniority from the date of appointment, or the date of panel, cannot have application in these circumstances since appointments had not been made by one and the same Command. Even if it was applicable by stretching, the long delay in conferment of appointment could not have been gone unnoticed.
24. However, we do not think it is necessary to unsettle the whole list at this point of time. We direct that in the matter of adjudging seniority, the principle of initial date of appointment/continuous officiation should be borne in mind and the principle of panel seniority was inapplicable and not possible to be followed as far as claims of applicants and similarly situated are concerned vis-à-vis respondents 4 to
9. Consequently, we direct that appropriate modification to the seniority list appended to Annexure 'O' is to be brought, and circulated. The applicants will be entitled to the aforesaid benefits as declared by us and their seniority should be with reference to their date of appointment. O.A. is disposed of. No costs."
14. The Tribunal finally observed that while adjudging seniority in such a complex situation where scheme of Rules or guidelines are silent in determining inter se seniority of the Commands at All India level, the only possibility and the rationale rule would be to have their seniority reckoned from the date of entering into service when he is compared to the person who belonged to yet another Command and it will be illogical if the incumbent who was appointed earlier is pushed down below the persons who were later appointed as in the instant case after almost 4 to 5 years of the select panel being published in June 1983 and has not even taken birth in the Department are allowed to claim seniority anterior to the date of joining service. Page 27 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023
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15. The Tribunal and the High Court in the judgment impugned has made strong observations and commented in regard to the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987- 1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority and we also have our serious reservation in regard to the procedure/manner which was adopted by the authority in making appointments in Western Command from the select panel of 29th June, 1983 after a lapse of 4-5 years in the year 1987-1988, when the successive selections are held in the interregnum, but it reveals from the record that no one has questioned their appointments and by this time more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired and some of them are at the verge of retirement.
16. At the same time, two incumbents who approached the Central Administrative Tribunal at Chandigarh and succeeded in claiming seniority from the date of their placement in the select panel of 29 th June, 1983 regardless of their appointment in the year 1987 or 1988 respectively and confirmed by the High Court on dismissal of the writ petition filed at the instance of the Union of India by a judgment dated 17th September, 2018, the seniority list qua them was revised and they were further promoted on the higher promotional posts and after full term of service being rendered, Jatinder Pal respondent no.1 in Civil Appeal arising out of SLP(C) No.5275 of 2021 is going to retire in March 2022 and Satish Kumar Sharma, respondent no.2 in Civil Appeal arising out of SLP(C) No.5275 of 2021 had retired from service in October, 2018.
17. It is not disputed that there is no rule or guidelines issued by the respondents which may determine the inter se seniority when a combined seniority list at the All India level is to be prepared Page 28 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined under the Scheme of 1971 Rules and the respondents were taking assistance of Office Memorandum of DoPT dated 3rd July, 1986 which deals with the determination of seniority of direct recruits who were selected and placed in one and the same select panel to be determined by the order of merit in the select list and those who are selected in the earlier selection shall remain senior to such persons who were appointed in the later selection and also with regard to relative seniority of direct recruits vis-a-vis the promotees in the cadre.
18. We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary."
8.2. The Apex Court in case of Manohar Lal Jat vs. State of Rajasthan [reported in 2020 (13) SCALE 406], was considering the seniority inter-se of the persons appointed to the service before the commencement of Rules and the persons selected and appointed as a result of selection, the Court held that the principal mandate of the rule is that seniority be determined on the basis of the date of appointment.
"27. Thus, the main provision was amended as to clearly provide that seniority in the cadre would be Page 29 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined fixed from the dates of appointment of the employees, or officers, to the cadre.
28. The question to be decided here is having regard to the fact that the DPs were concededly appointed prior to the DRs, where the latter, as is argued by them appointed on the basis of merit "in the same selection"10 The DRs argument is that their appointment, later than the DPs is the result of manipulation by the department (or, rather some officers in the department) who wished to favor the DPs; and that since their selections began before that of the DPs, the second proviso is attracted, for determination of inter se seniority. They also argue that the selection- in terms of the rules, "subsequent selection" necessarily refers to a chronologically later event; in the present case, the recruitment of the DRs began with the advertisement in January, 2011 (and Second proviso to Rule 27 (1) thus, in the earlier financial year, having regard to Rule 2 (l)) whereas the selection process for DPs began in May, 2011.
29. On a plain reading of the entire rule (Rule 27 [1] and the two provisos) what is evident is that (a) before the amendment of 2002, seniority of personnel appointed to the "lowest categories of posts" in any department was to be determined as from the date of appointment; however, for promotees, it was to be from the date of selection; (b) after the amendment of 2002, seniority has to be fixed (by reason of Rule 27 (1)) as on the date of appointment to the post or service; (c) however, in the case of pre-state integration of state (of Rajasthan) or pre-integration of services, seniority could be "modified or altered by the Appointing Authority on an ad hoc basis"- this clearly was meant to be a "sunset" clause, i.e. operative for a limited period; (d) the second proviso,- which is the one pressed into service by the DRs, states that seniority of those selected earlier will be determined over those selected latter.
30. Plainly, the principal mandate of the rule is that seniority is determined on the basis of date of appointment ("shall be fixed from the date of their Page 30 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined appointment"). Proviso (2) lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process. The High Court, in this case, was of the opinion that this rule (i.e. proviso) applied to selections from the same source, i.e. where two sets of direct recruits were appointed, those selected through a previous recruitment process, would rank senior to those recruited through a later recruitment process. This interpretation is, in this court's opinion, salutary.
There may be various reasons why the ultimate appointment of one batch of recruits may be delayed:
challenges to some part of the recruitment process (such as shortlisting, calling of candidates for interviews etc.), during which period, a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior, and if those from the earlier process are appointed later, the proviso clarifies that candidates from the earlier process would rank senior, despite the main rule speaking of a date of appointment based seniority. The same logic would apply to departmental promotees, as well, if two batches of promotees are appointed, through selection. The second limb of the second proviso clarifies that when merit based, or seniority based promotions are resorted to, the applicable norm would be seniority in the feeder cadre, to forestall any debate about the rule of merit (in the selection) being the guiding principle.
31. In Prem Kumar Verma v. Union of India11this court had to consider Rule 303 of the Railway Establishment Manual, which was phrased like Rule 27 in the present case. The extract of the relevant discussion is as follows:
"4. In view of the rival submissions at the Bar the first question that would arise for consideration is which Rule would govern the inter se seniority. It is undisputed that vacancies arose prior to July 1989 and advertisement for the said post had been issued earlier to July 1989 and finally the Page 31 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined Railway Recruitment Board concluded its selection process and selected 29 candidates on 11-7-1989. Therefore, the relevant Rules, as existed then, would govern the inter se seniority. The next question that arises for consideration is which is the relevant Rule that was in force in July 1989. From the materials produced before us it appears that para 303 of the Manual, as it stood in July 1989 is to the following effect:
"303. The seniority of candidates recruited through the Railway Service Commission or by any other recruiting authority should be determined as under:
(a) Candidates who are sent for initial training to training schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts.
(b) Candidates who do not have to undergo any training, the seniority should be determined on the basis of the merit order assigned by the Railway Service Commission or other recruiting authority." (1998) 5 SCC 457 Later on sometime in the year 1990 Rule 303(a) was amended by inserting the following expression:
"Those who joined the subsequent course for any reasons whatsoever and those who passed the examination in the subsequent chance will rank junior to those who had passed the examination in earlier courses." The aforesaid Rule stood further amended in 1993 which reads thus:
"In case however persons belonging to the same RRB panel are sent for initial training in batches due to administrative reasons and not because of reasons attributable to the candidates, the inter se seniority will be regulated batchwise provided persons higher up in the panel of RRB not sent for training in the appropriate batch (as per Page 32 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined seniority) due to administrative reasons shall be clubbed along with the candidates who took the training in the appropriate batch for the purpose of regularising the inter se seniority provided such persons pass the examination at the end of the training in the first attempt."
5. In view of our conclusion that the posts fell vacant prior to July 1989 and the process of selection was completed and the Recruitment Board selected the candidates on 11-7-1989 the amendment that was introduced on 5-5-1990 and the further amendment of 1993 will have no application and it is the unamended Rule 303(a), as it stood on 11-7-1989, that would govern the case of inter se seniority. The analysis of the provisions of para 303 indicates that where candidates are required to undergo some training after being selected through Railway Service Commission or any other recruiting authority, their seniority is determined on the basis of their respective merit in the examination held at the end of the training period and where candidates do not have to undergo any training, the seniority is determined on the basis of the merit assigned by the Railway Service Commission or other recruiting authority. In the present case the candidates had to undergo training and in fact they had undergone training in batches, as already stated. In that view of the matter their seniority had rightly been determined by the Railway authority on the basis of their respective merit obtained in the examination held at the end of the training period. The Tribunal committed error by altering the said seniority on the basis of a rule which was not in existence on the date the vacancy arose and, on the date, when the selection was completed.""
8.3. In case of Surendra Narain Singh and others vs. Page 33 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined State of Bihar and others [reported in (1998) 5 SCC 246], the question with regard to the seniority was considered by the Apex Court. In case of recruitment by two modes the Court held that candidates were recruited against the earlier vacancies, to rank seniors to those recruited against later vacancies, the dispute in the matter related to inter-se seniority of Munsifs recruited by two different modes of recruitment, one set of Munsifs recruited on the basis of 15th examination held by Public Service Commission under the Bihar Judicial Services Recruitment Rules, 1955 and another set of Munsifs appointed under the Bihar Civil Services Judicial Branch, Ad-hoc Recruitment Rules, 1974, the Court held thus:-
"11. At the outset, it needs to be stated that the controversy in the preset appeals is confined to the seniority list of the Munsifs in the Bihar Judicial Service. The appellants lay claim to the seniority over the respondent Nos.3 to 34 by reason of their appointments as Munsifs being earlier in point of time to these respondents. In order to determine the inter se seniority, the interpretation of Rule 20 and in particular the words "such candidates" that therein assume great importance. Respondent Nos.3 to 34 figured in the supplementary list, which was submitted by the BPSC under Rule 20 of 1955 Rules to the appointing authority. From the narration of facts set out hereinabove. It is clear that respondent Nos.3 to 34 were selected, nominated and appointed as Munsifs pursuant to the 15th Examination held under 1955 Rules. The appellants in Civil Appeal Nos.Page 34 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023
NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined 1381-84/91 came to be recommended by the BPSC for appointment of Munsifs under 1974 Rules and in fact some were appointed on 23rd May, 1975 and others on 17th November, 1976 as Munsifs. There is also no dispute that respondent Nos.3 to 34 were appointed as Munsifs between 17.6.1976 and 1.9.1976 on the basis of the supplementary list submitted by the BPSC in terms of Rule 20. The posts on which respondent Nos.3 to 34 were appointed were reserved for SC/ST candidates in 15th Examination held under 1955 Rules but since the candidates of the two reserved categories were not available, the BPSC prepared a supplementary list in terms of Rule 20 nominating these 33 candidates from the General Category from the merit list of 15th Examination held under 1955 Rules. The appellants in Civil Appeal Nos.1385-86 of 1991 belonging to the reserved category and they came to be appointed as per the merit list of 15th Examination held under 1955 Rules. The respondent Nos.3 to 34 were higher in the merit list of 15th Examination and, therefore though appointed between 17th June, 1976 and 1st September, 1976 were given the seniority over these appellants who were appointed between March, 1975 and 22nd may, 1975. In substance the claim led by both sets of appellants in these appeals is that the date of appointment to the post of Munsif should be the criteria in finalising the seniority list and if the said principle is followed, the placement of respondent Nos.3 to 34 must be below the appellants and other similarly situated persons. The other challenge led in these appeals to the seniority list by the appellants is that in the absence of any provision under the Rules permitting the Government to convert the post reserved for SC/ST Candidates to General Category, the Government could not have converted 33 vacancies/posts of SC/St into general Category. It was also submitted that in view of the decision of Patna High Court in Rajendra Sinha vs. Bihar, 1990 (2) B.L.J.R. 13323 the controversy stood concluded in favour of the appellants inasmuch as this decision of the Patna High Court was unsuccessfully challenged in Special Leave Petition Page 35 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined by some of contesting respondents in the Supreme Court and even Review Petition came to be dismissed. Strong reliance was placed on the orders of the Supreme Court in Special Leave Petition and Review Petition to which a reference will be made shortly."
9. From the ratio, which has been laid down and discussed hereinabove, it is quite clear that the inter-se seniority needs to be determined on the basis of continuous length of service in the cadre as indicated in case of O.P.Singla (supra) as the future of the Judicial Officers would depend to large extent upon the seniority and many of these officers have very promising future. It is expected of the High Court to finalize the seniority in accordance with law bearing in mind their length of service. The principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging the inter-se seniority of the officers in absence of any Rules or Guidelines in determining the seniority to the contrary. Here, is the case where selections have been held separately by different recruitment processes. The principle of initial date of appointment therefore, would bear importance for determining the seniority.
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10. The principal mandate is that the seniority is determined on the basis of the date of appointment.
11. In the instant case, it is quite clear that when the posts on which the present petitioners have been appointed were advertised by the respondent No.1, 100 post were ad-hoc and the regular vacancies were 12 in number on 28.11.2016. These posts or vacancies in the advertisement were declared to be temporary posts with a rider that 100 temporary posts would be converted into regular posts. On 30.12.2016, 80 ad- hoc judges were working in the establishment and out of which 72 were considered against the regular vacancies. The respondent No.1 sanctioned 50 regular posts as per the request of the respondent No.2 on 30.12.2016. Therefore, when 50 regular posts were sanctioned on 04.05.2017 by the State, only 08 posts were remaining for being considered against the regular vacancies. If those 08 posts are excluded, 42 regular posts were already available on 05.05.2017 when the final results were declared by the respondent No.2 pursuant to the said advancement of 28.11.2016. In such circumstances, the appointment order of the petitioners after four months on 14.09.2017 could not have been on ad-hoc Page 37 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined basis.
11.1. It must not be forgotten that the initial appointments may have been advertised as the posts being temporary posts. There is a specific rider that the High Court (administrative side) has written to the State Government to convert 100 temporary posts into regular posts. The appointment once, on basis of ad-hoc and temporary service as per clause (7)(6) was not to have any right to be regularized in permanent establishment unless the person is proved to have suitability and satisfactory service record as to be judged by the High Court, if during the period of ad-hoc service, the regular vacancies are made available as per Rules. This surely would not mean that there could not have been the appointment of the present petitioners on those posts which had been sanctioned even before they were appointed on ad-hoc basis.
11.2. Assuming that the initial appointment was on ad- hoc basis and it was a temporary service with no specific criteria having been established for proving the suitability or maintaining the satisfactory service record except as has been Page 38 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined done for the rest, there is no reason as to why when the regular vacancies had already been sanctioned and were available, these petitioners could not have been considered for appointment there. To interpret it as the need to essentially appoint on ad-hoc basis even when the posts had been made available, would tantamount to causing serious prejudice to the petitioners.
11.3. It is not disputed by the respondent No.2 in the affidavit-in-reply that there was non-availability of the sanctioned posts which resulted into non-accomodating all the petitioners against the regular vacancies. At the time of declaration of the result of the petitioners, 50 posts as mentioned hereinabove were already sanctioned and only 05 ad-hoc Judicial Officers were working. The petitioners were considered only on 06.08.2020 and not before that. 11.4. Rule of seniority if is looked at, it is the stand on the part of the respondent No.2 that additional 25 regular posts of Civil Judges since had been sanctioned by the respondent No.1 in various Districts of the State, this creation of posts would not entitle the petitioners to give an Page 39 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined appointment on regular posts of Civil Judges. It is also not palatable that the petitioners have been appointed on ad-hoc (temporary basis) category of Civil Judges under 2016 advertisement and these posts have not been converted into regular posts for want of any details except denial. Therefore, the petitioners will not be appointed on those posts and they shall need to wait for their turn for posting on regular posts of Civil Judges as and when made available. The issuance of regular posts vide subsequent advertisement is said to have not created any right in favour of the petitioners intriguingly as they did not make any application for being considered for appointment after such advertisement. 11.5. It would be worthwhile to note from the affidavit- in-reply that upon undertaking recruitment process in the year 2011-12, 279 candidates were appointed on ad-hoc basis as Civil Judges out of 281 selected candidates. Thereafter, in the year 2013 to 2015, no process of recruitment was undertaken.
12. The candidates, who were found suitable and eligible from ad-hoc posts were appointed to regular posts as and when regular vacancies were vacant from time to time. The Page 40 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined details of which are as follows:-
(i) Vide first regularization process, appointment orders for filling up 58 clear vacancies of regular Civil Judges had been issued out of total 267 working (ad-hoc) Civil Judges.
(ii) Vide second regularization process, appointment orders for filling up 95 clear vacancies of regular Civil Judges had been issued out of total 201 working (ad-hoc) Civil Judges.
(iii) Vide third regularization process, appointment orders for filling up 24 clear vacancies of regular Civil Judges had been issued out of total 104 working (ad-hoc) Civil Judges.
(iv) Vide fourth regularization process, appointment orders for filling up 74 vacancies out of total 92 clear vacancies of regular Civil Judges had been issued out of total 80 working (ad-hoc) Civil Judges. The remaining 06 (ad-hoc) Civil Judges were not found suitable for appointment against regular vacancies.
Thus, in four regularization processes, appointment orders to total 251 (58+95+24+74) ad-hoc Civil Judges have been issued.
12.1. On 07.01.2016, the Chamber Meeting decided to initiate the recruitment process for the year 2016 for filling up 12 regular and 100 (ad-hoc) posts wherein 24 candidates have Page 41 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined been appointed (i.e. 12 Regular and 12 ad-hoc). Two candidates namely Mr.Jugal Dave and Ms.Yogita Sharma were appointed initially in the same process against the ad-hoc vacancies.
12.2. Thus, it emerges that 50 posts of Civil Judges had been recommended by the High Court in the year 2017, 25 posts in the year 2018 and 25 posts in the year 2019. The Legal Department sanctioned 50 posts vide Government Resolution dated 04.05.2017 and sanctioned 25 posts for Civil Judges. Respondents brushed aside the claim by one line that the temporary posts have not been converted into regular posts, refusing even consideration, let alone regularization, without any justifiable and substantiating material before this Court.
13. Ordinarily, those who have been appointed by virtue of the advertisement which had been given on 28.11.2016 on temporary posts can not claim to be appointed on the regular posts, had there been no specific clause in the advertisement. Being aware that ad-hoc service as per the decision of the Apex Court in case of Direct Recruit Class II Engineering Page 42 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined Officers' Association v. State of Maharashtra [(1990) 2 SCC 715] and referred recently in Malook Singh vs. State of Punjab [Civil Appeal Nos. 6026-6028 of 2021, on 28.09.2021] would need to be considered for the purpose of seniority where appointment is made in accordance with rules. It needs to be held here additionally that a categorical mention in the advertisement raised the legitimate expectation and created obligation on the part of respondent. The request to the State Government had already gone from the High Court for converting 100 temporary posts into regular posts. Clause 7(6) of advertisement permits regularization on permanent posts subject to suitability and satisfactory service record as to be adjudged by the High Court as per the rules while performing ad-hoc service. Thus, regularization on regular sanctioned posts necessarily shall need to be subject to fulfillment of eligibility criteria by officers, however, to deny consideration to be regularized on these sanctioned posts to these officers, would warrant indulgence.
14. Considering the submissions canvassed by both the parties, we are of the opinion that the present petitions deserve consideration this wise. The respondent - authority is Page 43 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023 NEUTRAL CITATION C/SCA/13218/2018 ORDER DATED: 24/02/2023 undefined directed to consider the case of the petitioners within a period of three months from the date of receipt of the copy of this order against the regular posts created by the State from the date of their initial appointment and give all the consequential benefits including the promotion and the regular pay scale from the date on which they are entitled. Rule is made absolute accordingly. There shall be no order as to costs.
15. In view of the order passed in the main petition, the Civil Application, if any, stands disposed of accordingly.
(SONIA GOKANI,CJ) (HEMANT M. PRACHCHHAK,J) Bhoomi Page 44 of 44 Downloaded on : Sun Sep 17 22:10:11 IST 2023