Jharkhand High Court
Ajit Prasad Verma And Ors. vs The State Of Jharkhand Through The Law ... on 21 February, 2007
Equivalent citations: 2007(2)BLJR1340, 2007 (2) AIR JHAR R 498, (2007) 2 JLJR 345 (2010) 4 JCR 418 (JHA), (2010) 4 JCR 418 (JHA)
Bench: M. Karpaga Vinayagam, Permod Kohli
JUDGMENT
Page 1341
1. All the petitioners were appointed to the post of Munsifs in the year 1980 to 1983. They were promoted to the post of Sub-Ordinate Judges in between 1998 and 1999. On the basis of the recommendation dated 20.10.2001, the petitioners were promoted and appointed as Additional District & Sessions Judges on ad hoc basis by virtue of the notification dated 14.12.2001. Next day, i.e. on 15.12.2001, respondent Nos. 4 to 20 were directly recruited to the post of Additional District & Sessions Judges. On 6.9.2002, High Court issued provisional list of seniority of the Judicial Officers showing the petitioners senior to the respondent Nos. 4 to 20. Thereafter on 29.11.2002, High Court issued a revised working list of Officers inviting objections from the Judicial Officers with regard to their inter se seniority. On 29.7.2003, the final seniority list was published showing the respondent Nos. 4 to 20 as senior to the petitioners even though they were shown as senior to the respondent Nos. 4 to 20 in the first seniority list dated 6.9.2002 and despite objections raised by the petitioners.
2. The prayer in the writ application is for quashing (i) the final seniority list issued and Circular No. 6100-40/Apptt. dated 29.7.2003, (ii) the revised working list circulated through letter No. 1826-37/Apptt. dated 29.11.2002 and (iii) for declaring the petitioners to be senior to the respondent Nos. 4 to 20 and for consequent direction to the authorities to issue a fresh seniority list showing the petitioners senior to the respondent Nos. 4 to 20 by declaring the first seniority list issued earlier on 6.9.2002 as the final seniority list.
Page 1342
3. The relevant facts, which are required to be referred to for disposal of the writ application, are as follows:
The petitioners were initially appointed as Munsifs in between 1980 and 1983. Thereafter all the petitioners were promoted to the post of Sub-Judges in the year 1998 and 1999. After creation of the State of Jharkhand, all the petitioners were allotted the cadre of the State of Jharkhand and their services were transferred under the control of Jharkhand High Court.
While they were serving as Sub-Judges, Jharkhand High Court, having decided to create 30 Fast Track Courts in the State of Jharkhand, recommended 20 names of Sub-Judges to the Government representing 2/3rd quota of promotees for appointment as Additional District & Sessions Judges against the vacancies created for the Fast Track Courts. Accordingly, the petitioners were promoted and appointed as Additional District & Sessions Judges by giving ad hoc promotion to 20 Sub-Judges, including the petitioners. This appointment order was issued by the notification No. 4604-4623 dated 14.12.2001.
The respondent Nos. 4 to 20 are the direct recruits and they were appointed as Additional District & Sessions Judges, vide notification No. 4650 dated 15.12.2001. Thus, the promotees were appointed as Additional District & Sessions Judges on 14.12.2001 whereas the direct recruits, the respondent Nos. 4 to 20, were appointed on 15.12.2001. Thereafter, a tentative seniority list of the members of the Jharkhand Superior Judicial Service was issued on 6.9.2002. In the said list, the petitioners were show at serial Nos. 107 to 126, whereas the names of the respondent Nos. 4 to 20 were shown in the same list at serial Nos. 127 to 143. Though objection was invited, no objection was received. However, a revised seniority list was circulated by the High Court on 29.11.2002, inviting objections with regard to their inter se seniority. In this revised seniority list, the names of the petitioners were placed below the names of the respondent Nos. 4 to 20. In the revised list, the respondent Nos. 4 to 20 were shown from serial Nos. 103 to 119, whereas the petitioners were placed at serial No. 120 to 139.
The petitioners thereupon filed objections to retain their seniority position as indicated in the pre-revised seniority list dated 6.9.2002 and claimed their seniority over and above the respondent Nos. 4 to 20. However, the final seniority list came to be published by the High Court through Circular dated 29.7.2003, confirming the revised seniority list dated 29.11.2002.
Aggrieved by the change of seniority, the petitioners have now filed the writ application for quashing the notification dated 29.7.2003 and the revised seniority list dated 29.11.2002 and asked for a declaration that the seniority list issued on 6.9.2002 as the final seniority list and to give a suitable direction to show the petitioners senior to the respondent Nos. 4 to 20.
4. We have heard the counsel for the parties.
5. Learned Counsel appearing for the petitioners raised two-fold contention -
(i) The petitioners were appointed as Additional District & Sessions Judges on 14.12.2001, whereas the private respondents were appointed on 15.12.2001. Under Rule 8(d), the seniority is to be determined with Page 1343 reference to the dates on which the appointments actually are made and the petitioners, having been appointed earlier than the private respondents, should rank senior to them in accordance with the Rule 8(d), which alone determines seniority.
(ii) Under Rule 6, the direct recruits were to be placed on probation of two years and the private respondents completed their period of probation of two years only on 15.12.2003. Thus, they became regular members of the service only on the said date, whereas the petitioners, being promotees, were not to be placed on probation as no probation was provided under the Rules for the promotees and as such, they become the members of the service on the date of their appointment, namely, on 14.12.2001. Even if their confirmation is considered to be the date of their substantive appointment, the confirmation was made for the petitioner Nos. 1 to 6 on 13.3.2002 and for the petitioner Nos. 7 to 9 on 17.2.2003 and as such, the private respondents, who completed their probation on 15.12.2003, have to be ranked juniors to the petitioners as Additional District & Sessions Judges.
6. On these two grounds, their seniority is sought to be challenged.
7. Refuting the above grounds for challenge, learned Counsel for the respondents would submit as follows:
The petitioners were appointed only on temporary basis in ex cadre post created under the Fast Track Scheme, whereas the respondent Nos. 4 to 20 were appointed against the vacancies belonged to the quota of direct recruits born on the cadre of service. The petitioners were appointed against the Fast Track Courts posts whereas the respondent Nos. 4 to 20 were appointed as direct recruits against regular vacancies belonged to their quota by selection. Both the Committee as well as Full Court of High Court correctly fixed the seniority in view of the fact that the respondent Nos. 4 to 20 were appointed against the vacancies born on the sanctioned strength of cadre of service and the petitioners were appointed against Fast Track Courts, temporary posts and the seniority of the respondents was determined correctly by the High Court in accordance with the Recruitment Rules. The Recruitment Rule does not provide for exclusion of the probation period. Therefore, both the contentions urged by the counsel for the petitioners would fail.
8. We have carefully considered the above submission and have given our thoughtful consideration to the same.
9. It is not in dispute that the appointment and seniority of the members of the Superior Judicial Service are ail governed and regulated by the statutory Rules, namely, Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001. The dispute in this writ application relates to the inter se seniority between the promotees (petitioners in the rank of Additional District & Sessions Judges) and the direct recruits (respondent Nos. 4 to 20) in the Jharkhand Superior Judicial Service.
10. The main question that arises for consideration in this case is whether the petitioners' appointment as Additional District & Sessions Judges is to be reckoned with effect from 14.12.2001 or from a later date, when these petitioners were confirmed and appointed against the substantive vacancies.
Page 1344
11. Let us quote the relevant clauses in the Rules:
2. Definition: In these rules unless there is anything repugnant to the subject or context,
(i) Additional District Judge includes any other post of equivalent rank.
(ii) Cadre means the cadre to the Jharkhand Superior Judicial Service 2(viii) Promoted Officer means an Officer in the cadre appointed to the service from amongst the Officers belonging to the Jharkhand Judicial Service by promotion in accordance with Clause (b) of Rule 4.
2(xi) Service means the Jharkhand Superior Judicial Service;
4. Appointment to the service:
Appointment to the service, which shall in the first instance ordinarily be to the post of Additional District Judge, shall be made by the Governor, in consultation with High Court:
(a) by direct recruitment of persons as recommended by the High Court for such appointment under Clause (2) of Article 233 of the Constitution of India and;
(b) by promotion on merit cum seniority basis from amongst the Officer belonging to the Jharkhand Judicial Service.
Provided that where the merit of the officers is equal in all respects, seniority shall prevail and be given weightage.
5. Of the total posts in the cadre of the service 67% shall be filled in by promotion and 33% by direct recruitment -
Provided that the State Government may, in consultation with the High Court, from time to time deviate from the aforesaid percentage in either direction.
6. Probation: A member of the service appointed under Clause (a) of Rule 4 shall be on probation for a period of two years;
Provided that the probation period may, in any individual case, be extended from time to time by the High Court.
8. Seniority:
(a) Seniority inter se of direct recruits shall be determined in accordance with the dates of their respective appointments to the service;
(b) Seniority inter se of promoted Officers shall be determined on the basis of their seniority as existing in the Jharkhand Judicial Service immediately prior to their appointment under these Rules.
(c) If at any time more than one direct recruit is appointed in the service, the inter se seniority of such appointees will be determined in accordance with the order of merit as obtaining in the select list at the time of their appointment.
(d) Seniority of direct recruits vis-a-vis promoted officers shall be determined with reference to the dates on which their appointments actually are made;
Provided, however, when a direct recruit and a promoted Officer are appointed on the same date, the promoted Officer shall rank senior to the direct recruit.
Page 1345
25. Notwithstanding anything to the contrary contained in these rules, an Additional District Judge appointed on temporary basis shall be eligible for permanent appointment to the service without there being any upper age limit subject to the conditions that:
(i) he has completed two years of service from the date of his first appointment,
(ii) he has passed such test as may from time to time be prescribed in the Departmental Examination Rules, if any, and
(iii) he is recommended by the High Court for such permanent appointment.
12. Rule 2(i) of the Recruitment Rules mentioned above is about the post of Additional District & Sessions Judge, which includes others post of equivalent rank. Rule 2(ii) of the said Rules defines the cadre of service, which means the cadre of the Jharkhand Superior Judicial Service. Rule 2(viii) defines the expression "Promoted Officer" to mean an Officer in the cadre appointed to the cadre of service. Rule 2(xi) defines the "service" as constituted under the Recruitment Rules.
13. Rule 4 provides two modes of appointment - one by direct recruitment from the members of the Bar and the other by promotion on merit-cum-seniority basis.
14. Rule 5 prescribes quota for recruitment, i.e. 67% by promotion and 33% by direct recruitment.
15. Rule 6 provides for probation period of two years for appointees under Rule 4(a), i.e. direct recruits. Admittedly, there is no such probation period for the promotees.
16. Rule 8 deals with the determination of seniority of the members of the service. As per this rule, inter se seniority of the direct recruits is to be determined on the basis of their respective merit and in accordance with their dates of appointment to the service. On the other hand, the seniority inter se of the promotee Officers shall be on the basis of their relevant seniority in the lower rank of Jharkhand Judicial Service preceding the promotion. Thus, various clauses in the Rules would make it clear that the inter se seniority of the direct recruits as well as the promotees is to be determined with reference to the dates on which their appointments were actually made. In other words, the appointment referred to in the Rules for the purpose of determination of seniority means appointment on substantive basis to a post born on the cadre of service as seniority can only have relation with the cadre of service.
17. An incumbent, who could not have been appointed/promoted to a higher cadre at a particular point of time in absence of substantive vacancy in the higher cadre against the quota earmarked for his category, cannot claim in law the benefit of seniority from the said date and he cannot be given from that date. On 14.12.2001, when the petitioners were appointed as Additional District & Sessions Judges on ad hoc basis on ex cadre post under the Fast Track Courts Scheme, there is no vacancy in the regular cadre in promotee quota in the substantive cadre of Additional District & Sessions Judge, i.e. Superior Judicial Service.
18. On the other hand, the respondent Nos. 4 to 20 were appointed on the basis of a competitive examination by inviting applications and on selection by the competent Selection Body against 33% of the vacancies born on the cadre of service and meant to be filled up by direct recruits. In other words, when the promotees were appointed as Additional District & Sessions Judges on ad hoc basis on ex cadre Page 1346 post, the respondent Nos. 4 to 20 were appointed as against the substantive vacancies. Therefore, the appointment of private respondents against the quota of direct recruits cannot be disputed. Thus, the petitioners never born in the regular cadre of Superior Judicial Service on 14.12.2001, when these private respondents were appointed on regular cadre as direct recruits against their existing quota vacancies on 15.12.2001.
19. The petitioners were recommended for promotion as per the letter dated 14.12.2001 against 20 vacancies created under the Fast Track Courts Scheme. These vacancies were admittedly temporary in nature and ex cadre basis. The said recommendation letter itself indicates that the promotion is against the ex cadre post and till the posts are brought under Jharkhand Superior Judicial Service. The promotion was only on ad hoc basis and till the continuance of the Fast Track Courts. Therefore, the appointments under the order dated 14.12.2001 does not make the petitioners as members of the Jharkhand Superior Judicial Service, which consists of only permanent vacancies, whereas the private respondents from the date of their initial appointments become the members of the service and on completion of probation, their appointments has to be reckoned from the date of their initial appointment. Accordingly, their seniority under Rule 8(d) is to be determined from the actual date of appointment, i.e. 15.12.2001.
20. Much emphasis was laid by the counsel for the petitioners on the judgment of the Supreme Court in the case of Brij Mohan Lal v. Union of India and Ors. , wherein the Apex Court observed as under:
14. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in the Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.
21. Of course, in the above paragraph 14 of the said judgment, it is mentioned that the service rendered in the Fast Track Courts will be deemed as service rendered in the parent cadre and in case, any Judicial Officer is promoted in the higher grade in the parent cadre during his tenure in Fast Track Courts, the services rendered in Fast Track Courts will be deemed to be service in such higher grade. The said observation will not apply to the present facts of the case. The object and purpose of this observation is only to allow the benefit of higher grade to the promotees while working against the Fast Track Courts vacancies. The Apex Court has referred to "higher grade" and "not the post". Therefore, this has nothing to do with the present case dealing with the question of seniority which can only be determined from the date of substantive appointment. Therefore, the first contention urged by the counsel for the petitioners would fail.
22. With regard to the second contention, it was argued on the basis of the judgment of the Supreme Court in the case of Maharashtra State Judicial Service Association and Ors. v. High Court of Judicature at Bombay and Ors. that probation period, which is undergone by the direct recruits, shall not be included and the date of reckoning the appointment is only from the date of appointment as District Judge after completion of the period of probation of two years.
Page 1347
23. We are not able to accept this contention as the said judgment would be of no help. This judgment has been laid down by the Supreme Court in the context of the peculiar Rules relating to the appointment of incumbents from three sources to the Higher Judicial Service in the State of Maharashtra. The dispute in the above case related to the seniority in the cadre of District Judges on the basis of interpretation of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956. As per the said Rules, the promotees from Subordinate Judicial Service could be directly promoted as District Judges, whereas in the case of direct recruitments, no appointment to District Judge could be made unless a person is first appointed to work as an Additional District Judge on probation for a period of two years. It is on the consideration of the said Rule position, the Supreme Court in the above case held that the substantive appointment to the post of District Judge by direct recruitment can only be made after a person is placed on probation for a period of two years as Additional District Judge. The said Rule would not apply to the case on hand.
24. In the instant case, the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 should hold the field in the matter of decision on the question of seniority amongst the direct recruits and the promotees to the cadre of Additional District & Sessions Judges. Rule 8(d) of the Recruitment Rules in the State of Jharkhand clearly provides that the seniority of the direct recruits as well as promotee Officers shall be determined with reference to the dates on which their appointments actually are made, which refers to the initial appointment. As indicated above, the petitioners, while they were working in the Fast Track Courts on ad hoc basis, did not become the members of the Jharkhand Superior Judicial Service. On the other hand, the private respondents from the date of their initial appointment became the members of the service and on completion of probation, their appointment has to be reckoned from the date of their initial appointment. Consequently, the second contention also does not merit acceptance.
25. In view of the above circumstances, we are of the considered view that the seniority as fixed by the High Court and circulated, vide Circular No. 6100-40/Apptt. dated 29.7.2003, is perfectly justified and sustainable. There is no merit in the writ application, which is accordingly dismissed.