Himachal Pradesh High Court
Dr. Arun Singh Thakur vs State Of H.P. & Ors on 12 June, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 112/2021 Reserved on: 30.5.2024 Decided on: 12.6.2024 .
Dr. Arun Singh Thakur .....Appellant
Versus
State of H.P. & ors. ....Respondents
[
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Sohail Khan, Advocate.
For the respondents: Mr. Ramakant Sharma, Ms. Sharmila Patial, Additional Advocates General with Mr. Raj Negi, Deputy Advocate General, for respondents-State.
Mr. Dilip Sharma, Sr. Advocate with Mr. Manish Sharma, Advocate, for respondent No.3.
__________________________________________________________________ Justice Tarlok Singh Chauhan Aggrieved by the dismissal of his writ petition, the petitioner/appellant has filed the instant appeal.
The parties shall be referred to as they were before the learned writ court.
2 The respondents-State took a decision, whereby it approved the proposal to fill up one post of Assistant Professor 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/06/2024 20:30:31 :::CIS 2(Dentistry) by way of direct recruitment and aggrieved thereby, the petitioner, who was the promotee, filed the writ petition for grant of following substantive reliefs:-
.
" (i) That impugned decision taken by the respondents as contained in Annexure A-12, whereby the approval has been granted to fill up the post by way of direct recruitment on 20.12.2028 may kindly be quashed and set aside.
ii. That directions may very kindly be given to the respondents to fill up the post of Assistant Professor (Public Health Dentistry) by way of promotion from amongst the eligible candidates, by further granting the seniority and consequential benefits from the date when post became available i.e. 26.09.2018 in the interest of law and justice, by following the Rules 2006."
3 The respondent-State has framed Himachal Pradesh Medical Education(Dental) Services Rules, 2006 (hereinafter, referred to as the 'Rules 2006'), wherein post of Assistant Professor was required to be filled in the following manner:
(i) 50% by promotion failing which by direct recruitment or on contract basis in the manner specified in Column No. 11-A.
(ii) 50% by direct recruitment or on contract basis in the manner specified in Column No. 11-A.
4 In terms of Rules, 2006 "department" means the department of Medical Education and Research, Himachal ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 3 Pradesh, whereas "direct recruitment" is defined as a recruitment made otherwise than by promotion from amongst the members of the service or by transfer of an officer already in service of the .
government, "government" as government of Himachal Pradesh and "members" as a member of the Himachal Pradesh Medical Education Service.
5 At the time of framing of Rules 2006, there were 9 posts of Assistant Professors, out of which one post fell to the Department of Dentistry.
6 Subsequently, vide Notification dated 2.3.2009 (Annexure A-2), 20 more posts were created, out of which, 6 fell to the share of Assistant Professors in the service and consequently one more post of Assistant Professor came to the share of Public Health Dentistry, meaning thereby, there were two posts of Assistant Professors in the discipline of Public Health Dentistry.
7 It is urged by the petitioner that this post was required to be filled up from the promotees by following roster provided in Chapter XIII of Handbook on Personnel Matters, whereas first post was to be filled up by way of promotion from amongst the feeder category of Lecturers and second post by way of direct recruitment.
::: Downloaded on - 13/06/2024 20:30:31 :::CIS 48 The petitioner would contend that since the first post falling to the share of promotional quota could not be filled up on account of interim stay granted by the Hon'ble Supreme Court, .
therefore, this post which was meant for promotees, was filled up by way of direct recruitment and one Mr. Vinay Kumar Bhardwaj was selected, however second post, which was to be filled by direct recruitment, came to be filled by promotee Mr. Shelly Fotedar on his promotion and now the first post which was meant for the promotee and got vacated by promotion of Vinay Kumar Bhardwaj, was now required to be filled up by considering the case of the petitioner and not by direct recruitment.
9 At this stage, we however need to notice that the specific case of the petitioner as sought in the pleadings is that when the first post was filled up in 2013, at the relevant time none of the persons from promotee quota was eligible and as such, the respondents had filled up the post by way of direct recruitment. Once that being the case, the petitioner cannot have any exception to the post being filled up by way of direct recruitment.
::: Downloaded on - 13/06/2024 20:30:31 :::CIS 510 After all, ratio of 50% by promotion and 50% by direct recruitment is required to be maintained all throughout or else, it would amount to 100% reservation in favour of the promotees.
.
11 That apart, in terms of instructions of Department of Personnel No. Per (AP-II) A(3)-2/80, dated 7.11.2001, the "method of recruitment" has been provided, whether by direct recruitment or by promotion, deputation, transfer and the percentage of "posts" to be filled in the various method, that means roster is to be concluded on the "posts" means the incumbent (Assistant Professor) who has vacated the post, if was appointed by direct recruitment then vacancy will be filled up by direct recruitment and if was filled up by promotion, then the vacancy will be filled up by promotion.
12 It would be noticed that Dr. Vinay Kumar Bhardwaj, who vacated the post of Assistant Professor, was appointed as direct recruitee, as such the said vacancy is also required to be filled up by way of direct recruitment to maintain the ratio of 50:50.
13 The contention of the petitioner regarding first slot and the further slots being required to be filled up by way of promotion on the basis of roster is a deliberate effort to create unnecessary confusion. The fact of the matter is that the roster ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 6 has to be maintained strictly in accordance with the recruitment rules wherein the reservation for each category is 50% as explained above.
.
14 Respondents No. 1 and 2 have specifically submitted that in order to maintain prescribed ratio of 50:50 between promotee incumbents and direct recruits, roster provided in explanation to Clause 6 of Chapter 13 of Handbook on Personal Matters, Volume-I, will be applicable, which reads as under:
"6. Relative seniority of direct recruits and promotees: -
(a) Provision in general:
The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
Explanation: -
A roster should be maintained based on the reservation for direct recruitment and promotion in the Recruitment Rules.
Where the reservation for each method is 50% the roster will run as follows: (1) Promotion, (2) Direct Recruitment, (3) Promotion, (4) Direct Recruitment and so on. Appointment should be made in accordance with this roster and seniority determined accordingly.
Illustration: -
When 75% of the vacancies are reserved for promotion and 25% for direct recruitment, each direct recruit shall be ranked in seniority below 3 promotees. Where the quotas ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 7 are 50% each, every direct recruit shall be ranked below a promote. If for any reason, a direct recruit or a promotee ceases to hold the appointment in the grade, the seniority list shall not be re-arranged merely for the purpose of .
ensuring the proportion referred to above."
15 Respondents No. 1 and 2 have rightly contended that column No. 10 of the proforma for R & P Rules was amended and term 'posts' was incorporated in place of term 'vacancies', which as per respondents, necessarily meant that the roster is to conclude on the post and once the roster is concluded then the ensuing vacancies shall be filled from the quota (direct or promotion) in which vacancy had occurred.
16 There can be no dispute that cadre strength is always measured by the number of posts comprising the cadre and there must be a post in existence to enable the vacancy to occur.
This, however, will not imply that the application of roster will come to an end on filling of the entire cadre strength. Application of roster is not the end but only a mean to achieve the object.
Right to be considered for appointment can only be claimed in respect of a post in the given cadre.
17 In taking this view, we are duly supported by three-
Judge Bench decision of the Hon'ble Supreme Court in Srikant ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 8 Roy vs. State of Jharkhand (2019) 1 SCC 457, wherein it was observed as under:-
23. Considering the fact that no vacancy existed in the .
quota of direct recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11 in the leading appeal), who could participate in the selection process for direct recruit alone and not by way of promotion through Limited Competitive Examination, had no locus to challenge the selection process of 2008.
24. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 9 aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court.
18 The object of the R & P Rules, wherein specific quota .
of 50%, each for direct and promotee candidates, has been provided for, is to ensure that this ratio is maintained at all times and there is no over representation to one category.
19 Undeniably, there are two posts in the instant case, then if one post is filled up by promotee, obviously, the second post cannot go to the promotee and has to come to recruit in accordance with R & P Rules. This was so held by the Hon'ble Supreme Court in State of Punjab and others vs. Dr. direct R.N. Bhatnagar and another, (1999) 2 SCC 330,, wherein it was observed as under:
"11.On the other hand, the situation which has fallen for our consideration in the present case in the light of Article 16(1) is squarely covered by a decision of this Court in Paramjit Singh's case (supra) as clarified by a latter decision in the very same case reported in [1982] 3 SCC
191. In the aforesaid main case, D.A. Desai, J, speaking for the bench of two learned Judges of this Court, had to consider in paragraph 11 of the Report a recruitment rule which permitted fixed percentage of posts to be filled up in the given cadre from two different sources, namely, promotees and direct recruits. Rule 6 of the Punjab Police Service Rules, 1959, which came for consideration in that case provided for a method of recruitment from two ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 10 different sources i.e. 80% by promotion from the rank of Inspectors and 20% by direct recruitment. Examining the working of the aforesaid quota rule for recruitment in the light of the relevant rotational scheme of vacancies in the .
cadre to which such recruitment was to be made, the following pertinent observations were made in paragraph 11 of the Report: (SCC p. 485) "11. Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of Confirmation, Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage. The quota would then be co-related to vacancies to be filled in by recruitment but after recruitment is made from two different sources they will have to be integrated into a common cadre and while so doing, the question of their inter se seniority would surface.,...:.."
As there was some doubt about the observations found in the aforesaid paragraph 11 and as to how the recruitment rule in question was to be operated in the light of the quota prescribed therein and the rotational method of achieving the said quota of recruitment from two sources, a later Bench clarified the position in the subsequent judgment in the case of Paramjit Singh (supra). Another bench of two learned Judges, wherein D.A.Desai, J., was common, clarified the observation in paragraph 11 of the earlier Report as under: (SCC pp. 195-96, paras 6 and 7) "6. In our opinion there is no ambiguity in the judgment. Ordinarily speaking, where recruitment is from two sources with a view to integrating recruits from both sources after ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 11 the recruitment seniority is determined from the date of entry into the cadre except where there has been a substantial violation of the quota giving undeserved advantage to one or the other source. Seniority ordinarily .
speaking is determined with reference to the date of entry into the cadre which in service jurisprudence is styled the date of continues officiation. These notions of service jurisprudence may have to yield place to the specific rules and the fact situation with reference to Rule 10 did compel this Court to depart from the normal concept in service jurisprudence. However, introduction of a roster system is very well-known in-service jurisprudence. What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre it meant that quota should be co- related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. Promotees who came to the service at an advanced age may retire, early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to. That was what was meant by this Court when it said : (SCC p. 486, para 14: SCC (L&S) p. 318) 'The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota.' The quota in the present case is 4:1 that is, four promotees to one direct recruit. Therefore, whenever vacancies occur in the service the appointing authority has to go on recruiting ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 12 according to quota. In other words, whenever vacancies occur, first recruit four promotees irrespective of the factors or circumstances causing the vacancies and as soon as four promotees are recruited bring in a direct recruit. That was .
what was meant by this Court when it said that a roster has to be introduced and this roster must continue while giving confirmation. The sentence which seems to have created a difference of opinion reads as under : (SCC p.486, para 14 : SCC (L&S) p.318) "A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and recruit from that source has to be confirmed in the post available to the source."
7. The sentence cannot be read in isolation. It has to be read with the earlier sentence that the quota rule would apply to the vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota. The Court then proceeded to say that if the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation."
The aforesaid decision which squarely applies to the facts of the present case, therefore, leaves no room for doubt that when under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs or BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 13 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of .
the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct recruit Consequently, learned counsel for the appellant and learned senior counsel for the intervenor were right when they contended that the High Court in its impugned judgment had patently erred in invoking the ratio of decision of this Court in R.K. Sabharwal's case (supra) which was rendered in an entirely different context for resolving an entirely different controversy which did not arise on the facts of the present case. They were also right in contending that the ratio of the decision of this Court in Paramjit Singh's case (supra) read with the decision of this Court in the same case reported in [1982] 3 SCC 191 would get squarely attracted in the facts of the present case. Once that conclusion is reached, the result becomes obvious. Whenever in the cadre of Professors of Ophthalmology vacancies arise for being filled in at any given point of time, those vacancies in the posts have to be filled in by operating the roster in such a way that available vacancies get filled up by allotting 75% of them to departmental promotees and 25% to direct recruits........."
20 It would be noticed that the Hon'ble Supreme Court has categorically observed that wherever in the cadre, vacancy arises at any given point of time, the same has to be filled up by operating the roster in such a way that available vacancy can be filled up by allotting respective shares to the promotees and ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 14 direct recruitees, which in the instant case is in ratio of 50:50 each.
21 In view of above noted exposition of law, there can be .
no doubt as to how the roster is to be applied in respect of appointment to the posts in a particular cadre which admits of entry from different sources.
22 In the given case, we are dealing with the fact situation where the source of recruitment to the post of Assistant Professor in Himachal Pradesh Medical Education Service is from two sources i.e. direct recruitment and by way of promotion in the ratio of 50:50. Thus, we have no hesitation to hold that in such a situation each ensuing vacancy in the cadre shall be filled by applying roster and not otherwise.
23 This is precisely what has been held by a Division Bench of this Court, in which one of us (Justice Tarlok Singh Chauhan) was member, in CWP No. 907/2021, titled as Dr. Nikita Verma vs. State of H.P., decided on 13.8.2021.
24 Learned counsel for the petitioner would then argue that the learned Single Judge has erred in not deciding the case on the basis of R.K. Sabharwal vs. State of H.P., 1995(2) SCC 745, which provides for reservation as understood in article 16(4) of the Constitution of India.
::: Downloaded on - 13/06/2024 20:30:31 :::CIS 1525 However, we find no merit in this arguments more particularly, when an identical issue has already been considered by learned Division Bench of this Court in Ram .
Sarup Kalia vs. State of H.P., Latest HLJ 2005 (HP) (DB) 520, wherein it was observed as under:-
"29. From a perusal of the various judgments of the Apex Court the position which clearly emerges, is that the State can lay down a policy with regard to promotion. The State also has the power to amend the policy with regard to promotion. The State also has the power to amend the policy even if it to the detriment of certain class of employees. The only valid ground to challenge such a policy is that the same violates the mandate of Articles 14 and 16 of the Constitution of India.
30. The judgments relied upon by the petitioners turned on the words of the rules, which were to be interpreted in each of those cases. From a perusal of the judgments of the Apex Court cited above, it cannot be said that the Supreme Court has held that in every case, where quota is prescribed for recruitment from two or more sources, it should always be related to vacancies and in no case can it be applied to post. This would depend on the rules in each case and the circumstances under which the rule has been framed. In fact, the Supreme Court itself in R.K. Sabharwal's case has deprecated the practice of operating a roster ever after the quota has been reached. It has also stated that concept of vacancies has no reliance in operating the percentage of reservation. The argument of the petitioners is that this judgment only relates to cases of reservations and not to cases of recruitment from two ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 16 different sources. The answer to this argument lies in the observation of the Apex Court case in All India Judges' Association case wherein the Supreme Court has again, in no uncertain terms stated that wherever, there is a roster .
once the quota is filled then the roster should not be applied any further."
26 It is not in dispute that Civil Appeal No. 3606 of 2008 that was filed against the aforesaid judgment has been dismissed by the Hon'ble Supreme Court on 27.4.2017.
27 It would be noticed that this Court while distinguishing the judgment rendered by the Hon'ble Supreme Court in R. N. Bhatnagar's case (supra), held that it cannot be said that in every case, where quota is prescribed for recruitment from two or more sources, it should always be related to 'vacancies' and in no case can it be applied to 'post', rather, this would depend on the rules in each case and the circumstances under which the rule has been framed.
28 Even otherwise, this issue too has been considered by the Hon'ble Supreme Court in Srikant Roy's case (supra), wherein in paras 19 to 21, it was observed as under:-
19. Resultantly, appointments made prior to 2004 were governed by the Rules as applicable at the relevant time. As per that dispensation, the direct recruits quota was 33% of the total posts. That was obviously in excess of 25% now specified in the amended Rules (as amended on ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 17 20.08.2004 pursuant to the decision of this Court). Notably, the State of Jharkhand had filed an affidavit in C.A.No.1867/2006 before this Court in which it has been stated that no vacancy against 25% quota for direct .
recruitment existed in the State of Jharkhand at that time.
This affidavit was filed on 26th August 2008 after the amended Rules were notified and came into force w.e.f.
20th August 2004. Thus, notification for filling up of 34 posts of Additional District Judge through Limited Competitive Examination from amongst the members of Jharkhand Subordinate Judges having more than 5 years of experience and 18 posts from merit-cum-seniority basis amongst the Civil Judge (Senior Division), was issued in 2008 on the basis that no vacancy against the posts of direct recruit quota was available. That stand is reiterated even now in the affidavit filed by the High Court. The High Court in the impugned judgment has committed manifest error in not considering these relevant facts about the vacant posts for direct recruits as on 20.08.2004 - before recording a finding against the High Court and the State Government and to reject their stand that no vacancy against the quota of direct recruit was available as on 30.04.2008.
20. Indeed, the High Court in the impugned judgment has adverted to the decision of this Court in All India Judges' Association & Ors. Vs Union of India & Ors.[1] which has enunciated the principle of roster and the ratio to be followed for the post of Additional District Judge. Indisputably, pursuant to the decision of this Court the Rules were amended, which came into effect from 20th August 2004. In paragraph 27 to 29 of the said decision, this Court has considered the question regarding the ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 18 method of recruitment to the post in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. The same reads thus:
"27. Another question which falls for consideration is the .
method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 19 improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent .
appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be:
(1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-
seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited 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.::: Downloaded on - 13/06/2024 20:30:31 :::CIS 20
(2) Appropriate rules shall be framed as above by the High Courts as early as possible.
29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial .
Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-
cum-seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal v.
State of Punjab. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case as early as possible. We hope that as a ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 21 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." (emphasis supplied)
21. Once it is found that no post against the quota of direct recruitment was available as on 30th April, 2008, no fault can be found with the selection process commenced by the High Court for appointment in the cadre of Jharkhand Superior Judicial Service by promotion on the basis of merit through Limited Competitive Examination. The High Court in the impugned judgment has glossed over the effect of filling up the vacancies in the ratio of 25:25, which inevitably will exceed the quota of posts for direct recruits as on 30.04.2008. That would disturb the roster point and is impermissible in terms of Rule 8 as amended.
29 Before parting we need to observe that we are really at complete loss as to on what basis the petitioner has been agitating firstly before the learned writ court and now before this court when the Rules are absolutely clear, which provide for ratio of 50:50 between promotee incumbents and direct recruits.
30 Once there are two posts, obviously, one post would come to each category and any other interpretation would only lead to absurdity and discrimination, which has to be avoided ::: Downloaded on - 13/06/2024 20:30:31 :::CIS 22 and above all, would only lead to unjust results, which could never have been intended by the rule-makers.
31 In view of aforesaid discussions and for the reasons .
stated hereinabove, we find no merit in the instant appeal and the same is accordingly dismissed, with costs of Rs. 25,000/- to be paid to the H.P. High Court Advocates Welfare Fund. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan)
r Judge
(Sushil Kukreja)
12.6.2024 Judge
(pankaj)
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