Himachal Pradesh High Court
Memo Of Parties 14 vs . on 11 March, 2022
Author: Chief Justice
Bench: Chief Justice
INDEX.
(1) Civil Writ Petition No. 2061/2018.
.
Sh. S.C. Kainthla
Vs.
State of HP and others
And
(2) Civil Writ Petition No. 2292/2018
Sh. Rajeev Bhardwaj r
Vs.
State of HP and others
INDEX
Sr.No. Particular(s) Page(s) No.
1. Memo of parties 14
2. Order 5 onwards
3. Preliminary facts 69
4. Scope of dispute 910
5. Background leading to litigation 1030
6. Arguments of Petitioners 3043
7. Arguments of Respondents. 4361
8. Analysis 61103
9. Conclusion 104
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REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 11th DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
CIVIL WRIT PETITION No. 2061 of 2018
ALONGWITH
CIVIL WRIT PETITION No. 2292 of 2018
1. CWP No. 2061 of 2018
Between:
SH. S.C. KAINTHLA,
S/O LATE SH. H.N. KAINTHLA,
DISTRICT AND SESSIONS JUDGE,
SIRMAUR AT NAHAN.
...PETITIONER
(BY MR. SHRAWAN DOGRA,
SENIOR ADVOCATE, WITH
MR. HARSH KALTA AND
MR. TEJASVI DOGRA,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH CHIEF SECRETARY
TO THE GOVT. OF HIMACHAL PRADESH,
SHIMLA - 2.
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2
2. HON'BLE HIGH COURT OF HIMACHAL
PRADESH (ADMINISTRATIVE SIDE)
THROUGH ITS REGISTRAR GENERAL,
SHIMLA - 1.
.
3. SH. SUSHIL KUKREJA,
PRESIDING OFFICER,
LABOUR COURTCUM
INDUSTRIAL TRIBUNAL,
SHIMLA - 5.
4. SH. VIRENDER SINGH,
DISTRICT AND SESSIONS JUDGE,
SHIMLA - 171 005.
5. SH. CHIRAG BHANU SINGH,
DIRECTOR,
H.P. JUDICIAL ACADEMY,
GHANDAL,
SHIMLA - 171 021.
6. SH. ARVIND MALHOTRA,
REGISTRAR (VIGILANCE),
HIGH COURT OF HIMACHAL
PRADESH AT SHIMLA - 171 001.
...RESPONDENTS
(MR. ASHOK SHARMA,
ADVOCATE GENERAL,
WITH MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE
GENERAL, FOR R1,
MR. K.D. SOOD, SENIOR
ADVOCATE, WITH MS. SHALINI
THAKUR, ADVOCATE, FOR R2,
MR. R.L. SOOD, SENIOR
ADVOCATE, WITH MR. ARJUN
LALL, ADVOCATE, FOR R3 & 4,
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3
MR. BIPIN C. NEGI, SENIOR
ADVOCATE, WITH MR. NITIN
THAKUR, ADVOCATE, FOR R5 & 6.)
.
2. CWP No. 2292 of 2018
Between:
SH. RAJEEV BHARDWAJ,
S/O LATE SH. A.S. BHARDWAJ,
REGISTRAR GENERAL,
HIGH COURT OF HIMACHAL
PRADESH.
...PETITIONER
(BY R.K. BAWA, SENIOR
ADVOCATE, WITH MR. AJAY
KUMAR SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH CHIEF SECRETARY
TO THE GOVT. OF HIMACHAL PRADESH,
SHIMLA - 2.
2. HON'BLE HIGH COURT OF HIMACHAL
PRADESH (ADMINISTRATIVE SIDE)
THROUGH ITS REGISTRAR GENERAL,
SHIMLA - 1.
3. SH. SUSHIL KUKREJA,
PRESIDING OFFICER,
LABOUR COURTCUM
INDUSTRIAL TRIBUNAL,
SHIMLA - 5.
4. SH. VIRENDER SINGH,
DISTRICT AND SESSIONS JUDGE,
SHIMLA - 171 005.
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4
5. SH. CHIRAG BHANU SINGH,
DIRECTOR,
H.P. JUDICIAL ACADEMY,
GHANDAL,
.
SHIMLA - 171 021.
6. SH. ARVIND MALHOTRA,
REGISTRAR (VIGILANCE),
HIGH COURT OF HIMACHAL
PRADESH AT SHIMLA - 171 001.
...RESPONDENTS
(MR. ASHOK SHARMA,
ADVOCATE GENERAL,
WITH MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE
GENERAL, FOR R1,
MR. K.D. SOOD, SENIOR
ADVOCATE, WITH MS. SHALINI
THAKUR, ADVOCATE, FOR R2,
MR. R.L. SOOD, SENIOR
ADVOCATE, WITH MR. ARJUN
LALL, ADVOCATE, FOR R3 & 4,
MR. BIPIN C. NEGI, SENIOR
ADVOCATE, WITH MR. NITIN
THAKUR, ADVOCATE, FOR R5 & 6.)
Reserved on : 05.01.2022
Pronounced on : 11.03.2022
These Civil Writ Petitions coming on for
pronouncement of judgment this day, Hon'ble Mr. Justice
Mohammad Rafiq, passed the following:
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5
ORDER
.
Both these Writ Petitions are founded on identical facts and raise common questions of law. They were, therefore, heard together and are being disposed of by this common judgment.
2. The petitioners have prayed for direction to the respondent Himachal Pradesh High Court to create cadre of Civil Judge (Senior Division) with effect from 01.07.1996 in accordance with directions of the Supreme Court in All India Judges Association vs. Union of India and Others, (2002) 4 SCC 247, and order of the Supreme Court dated 24.08.2016 passed in I.A. No. 334/2014 in W.P.(C) No. 1022/1989 and grant them all consequential benefits. Further prayer is made that the respondents be directed to follow the post based roster system with effect from 31.03.2003 in conformity with the report of its twoJudgecommittee and declare the petitioners senior to the respondents No. 3 and 4 and grant all consequential benefits to them including one for consideration for elevation as Judges of this Court. Further prayer is made ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 6 that seniority list circulated with effect from 01.01.2005, particularly seniority list dated 18.01.2018, showing .
petitioners junior to respondents No. 3 and 4, be quashed and set aside.
Preliminary Facts:
3. Petitioner S.C. Kainthla in CWP No. 2061/2018 was appointed as Sub Judge on 01.02.1984. He was promoted to the cadre of District & Sessions Judge on 26.12.2006. He has upon attaining the age of superannuation retired as District and Sessions Judge on 31.12.2019. Petitioner Rajeev Bhardwaj in CWP No. 2292/2018 was also appointed as Sub Judge on 01.02.1988. He was promoted to the cadre of District & Sessions Judge on 27.10.2009 against Limited Competitive Examination (LCE) quota of 25% after he qualified such examination. Initial appointment of both the petitioners was made under the Himachal Pradesh Higher Judicial Service Rules, 1973 (for short, 'Rules of 1973'), in which ratio of promotees and direct recruits to the Higher Judicial Service was 2:1. Respondent No. 3 Sushil Kukreja was appointed to the cadre of District & Sessions Judge as a direct recruit on ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 7 18.05.2004, respondent No.4 Virender Singh was appointed to the cadre of District & Sessions Judge by way of direct .
recruitment on 07.12.2006. Respondent No. 5 Chirag Bhanu Singh was appointed to the cadre of District & Sessions Judge by direct recruitment on 17.09.2006, whereas respondent No. 6 Arvind Malhotra was in the same way appointed to the cadre of District & Sessions Judge by way of direct recruitment on 23.10.2009. r
4. Civil Writ Petition No. 2061/2018 filed by petitioner S.C. Kainthla and Civil Writ Petition No. 2292/2018 filed by petitioner Rajeev Bhardwaj were dismissed by Single Bench of this Court on 01.05.2019 on the ground of delay and laches, acquiescence, misjoinder of different causes of action and also on various other preliminary objections. Letters Patent Appeals No. 33/2019 and 39/2019 filed against the aforesaid judgment were decided by split verdict vide order dated 11.03.2020. When however the matter was referred to third Judge, petitioner Rajeev Bhardwaj in CWP No. 2292/2018 (subject matter of LPA No. 33 of 2019) filed Writ Petition (Civil) No. 1465/2020 before the Supreme Court ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 8 seeking direction not to proceed on the recommendation made by the Collegium of the High Court till disposal of LPA No. 33 .
of 2019. The Supreme Court, vide order dated 15.02.2021 passed in the said petition, directed to transfer LPA No. 33 of 2019 to Supreme Court immediately upon the delivery of the judgment by the learned third Judge but not later than 30.03.2021. The third Judge, by order dated 24.03.2021, partly allowed the LPAs. The High Court of Himachal Pradesh filed SLP (C) No. 1384013843 of 2021 against the judgments dated 11.03.2020 and 24.03.2021 passed in LPAs No. 33 and 39 of 2019. Respondents No. 5 and 6 in the LPAs also filed SLP (C) No. 88638866 of 2021 challenging the judgments passed in both the LPAs. Writ Petition (Civil) No. 1465/2020 was dismissed as withdrawn and the SLPs alongwith TC (C) No. 53/2021 were disposed of by the Supreme Court vide order dated 16.09.2021 by setting aside the judgment and orders passed by DB in LPAs and by remanding the matter to this Court to hear the Writ Petitions on merits, leaving it open to the parties to raise all issues as permissible in law, except the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 9 issue of delay and laches. This is how the matters have been laid before this Court for disposal afresh.
.
Scope of dispute:
5. Bone of contention between the parties is about correct interpretation and implementation of the directions contained in judgment dated 21.03.2002 of the Supreme Court in All India Judges Association Vs. Union of India, supra. It was in that judgment that the Supreme Court directed that recruitment to the Higher Judicial Services in the cadre of District & Sessions Judge shall be henceforth made by three sources, i.e., (i) 50% by way of promotion from amongst Civil Judges (Senior Division) on the basis of "meritcumseniority",
(ii) 25% by promotion on merit by limited competitive examination amongst Civil Judges (Senior Division) having not less than 5 years qualifying service, and (iii) 25% by way of direct recruitment from amongst eligible advocates on the basis of written and vivavoce test to be conducted by respective High Courts. The Supreme Court in that judgment directed all the High Courts to suitably amend the relevant Rules in conformity with its directions as early as possible, by ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 10 incorporating the Rules for regulation of seniority on the basis of roster point approved by its Constitution Bench in R.K. .
Sabharwal Vs. State of Punjab, (1995) 2 SCC 745.
Recruitment and other conditions of service of judicial officers including those in the Higher Judicial Service in the State were earlier governed by two set of Rules; in respect of Higher Judicial Service, by Himachal Pradesh Higher Judicial Service Rules, 1973 and regarding services of other Judicial Officers, by Himachal Pradesh Judicial Service Rules, 1973. Both sets of the Rules were repealed and replaced by the Himachal Pradesh Judicial Service Rules, 2004 (for short, 'the Rules of 2004') in conformity with the direction of the Supreme Court.
Background leading to present litigation:
6. The Himachal Pradesh Judicial Service Officers Association with some of its members filed CWP No. 61/1999 before this Court assailing appointment of directly recruited Additional District & Sessions Judges till that time. S.C. Kainthla, the petitioner in CWP No. 2061/2018, was petitioner No. 16 and Rajeev Bhardwaj, the petitioner in CWP No. 2292/2018, was petitioner No. 28 therein. That Writ Petition ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 11 was disposed of by this court vide order dated 18.04.2005 by a consent order in the terms that; as regards the higher .
placement of directly recruited Additional District Judges in the aforesaid gradation list, it shall be open to petitioner No. 1 as well as other aggrieved officers, if any, to file objections or make representations before the High Court for redressal of their grievances and that the High Court on its administrative side shall examine and dispose of the same on merits as expeditiously as possible and in any case by 31 st July, 2005. It was observed that if anyone feels aggrieved by decision of the High Court, it shall be open to such person to approach this Court again on the judicial side. On receiving the representation from the HP Judicial Service Officers Association and various other Judicial Officers, raising the arguments similar to the ones raised herein, the High Court referred the matter to a twoJudgecommittee, which upon consideration thereof, recommended rejection of all such representations. The report of twoJudgecommittee dated 06.06.2005 was accepted by the Full Court vide its Resolution dated 22.08.2005, which accordingly rejected the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 12 representations. The communication about rejection of the representations was sent to all concerned vide letter dated .
24.08.2005. The decision of the High Court taken in its Full Court on 22.08.2005, not having been challenged by any of the parties, attained finality.
7. The matter with regard to appointment of Additional District & Sessions Judge by promotion amongst Civil Judge (Sr. Div.) on the basis of LCE was taken up by the Full Court for consideration on 30.03.2006. The issue for reckoning service of five years in the cadre of Civil Judge (Sr. Div.) came up for consideration before the Full Court, which on that day, resolved that for determining the eligibility for promotion against the aforesaid 25% quota of LCE, service of five years rendered only in cadre of Civil Judge (Sr.Div.) in the erstwhile service shall be counted and even though the officers may be concurrently functioning as Additional Chief Judicial Magistrate, but the service rendered as Sub Judge shall not be reckoned for that purpose. As per note submitted by the Registrar General of the High Court on 06.01.2006, S.C. Kainthla, who was placed at serial No. 1 and two judicial ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 13 officers placed at serial Nos.2 and 3 of the said list, were to become eligible for promotion against 25% quota in July, 2007 .
and December, 2007. Rest of the Judicial Officers from serial No. 4 onwards became eligible in the year 20082009. It was found that only 5 out of 26 officers of Civil Judge (Sr. Div.) cadre are eligible for promotion against 5 vacancies of the 25% quota of LCE. The Full Court took the view that since adequate number of eligible candidates were not available, the posts of LCE could also be filled in by promotion. It was therefore decided in the interest of administration of justice that these posts should not be kept vacant for want of sufficient number of judicial officers against 25% LCE quota.
The Full Court therefore took a conscious decision to fill up all such vacancies of LCE by way of regular promotion. Out of available five vacancies, 3 were given to the quota of promotion, 1 was given to the quota of LCE and 1 was given to the quota of direct recruitment. Rajeev Bhardwaj, petitioner in CWP No. 2292/2018, was the first candidate to have been ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 14 appointed as Additional District & Sessions Judge through the stream of LCE on 27th October, 2009.
.
8. The Association of which the petitioners are members filed I.A. No.234/2009 and 235/2009 in March, 2009 before the Supreme Court in W.P.(C) No.1022/1989, All India Judges Association and Others vs. Union of India, supra, raising the arguments similar to the ones raised in the present Writ Petitions about direct recruitment being made in excess of their quota and non implementation of roster system as per direction of the Supreme Court in 2002 judgment of All India Judges Association case. The Supreme Court vide its order dated 26.03.2009 rejected both the I.As in the following terms: "In both these applications, the Association of Judicial Officers pray that there should be a roster system in the matter of seniority. If there is any violation of the roster system, the applicants would be at liberty to take any appropriate steps. We do not wish to interfere with the applications.
I.A.s are disposed of accordingly."
9. Himachal Pradesh Judicial Service Officers Association thereafter on 01.10.2009 filed Writ Petition (Civil) No. 532/2009 before the Supreme Court itself, challenging ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 15 action of the respondent seeking to make direct recruitment and alleging that such recruitment was being made in excess .
of quota of direct recruitment in violation of roster system. The Supreme Court, vide order dated 04.12.2009, dismissed the said Writ Petition as withdrawn with liberty to the petitioner to move the High Court. Thereafter the said Association approached this Court by filing CWP No.696/2010 on 03.03.2010 with the same prayer. Eventually however that Writ Petition was also unconditionally withdrawn by the petitioner Association on 04.11.2016.
10. The issue with regard to implementation of the roster system in proportion of the ratio given in 2002 judgment of the Supreme Court in All India Judges Association case came up for consideration before the Full Court of the High Court in its meeting held on 09.09.2009, which resolved to constitute a threeJudgecommittee to examine the applicability of roster system with respect to Himachal Pradesh Judicial Service Rules, 2004 and suggest the mode and modalities about implementation of the decision of the Supreme Court regarding proper placement of ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 16 selected/promoted officers. The Committee upon consideration of all the past recruitments visavis position of the Rules of .
2004, submitted the report dated 10.9.2009 to the following effect: "The Full Court in its meeting held on 9.9.2009 resolved to constitute a Committee of the undersigned to scrutinize the roster, total strength of District/Additional District Judges appointed/ promoted, the posts occupied by each category that in 50% by promotion, 25% by limited competitive examination and 25% by direct recruitment. The Committee perused the records of the Registry. It was found that no proper roster register is being maintained and the Registry may be directed to maintain a proper roster register for this purpose.
We have gone through the entire seniority list and the appointments made to the Higher Judicial Service right from its constitution in the year 1974. Earlier the H.P. Higher Judicial Service Rules, 1973 were applicable to the cadre of District Judges and Additional District Judges. These Rules came into force on 29.3.1974. As far as the appointments made under the said Rules are concerned the Committee is of the considered view that all disputes under the said rules with regard to the operation of the roster stand settled either by the judgments of this Court or by the decisions taken on the administrative side. The last administrative decision was taken by a Committee consisting of Hon'ble late Justice V.M.Jain and Deepak Gupta, J. This Committee in its report dated 6 th June, 2005 dealt with the representations of a large number of ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 17 Judicial Officers, the junior most of whom was Sh.Ravinder Parkash. The report of this Committee was accepted by the Full Court in its meeting held on .
22.8.2005. In view of the acceptance of the report of the Committee, we are of the considered view that there is no need to reopen the seniority under the H.P. Higher Judicial Service Rules of 1973 which stands settled. The H.P. Higher Judicial Service Rules, 2004 came into force w.e.f. 20thMarch, 2004. Sh. Sushil Kukreja was appointed as a direct recruit on 18.5.2004. His appointment has been treated to have been made under the old Rules because the process of selection was started under the old Rules. Therefore, Sh. Sushil Kukreja has been considered to be appointed under the old Rules. Sh. Ravinder Parkash is the first person to be appointed under the H.P. Higher Judicial Service Rules of 2004. These Rules provide for filling up the posts in the following manner: 50% for promotees 25% for limited competitive examination 25% for direct recruits.
Till 2009 no limited competitive exam was held. However, the Officers belonging to the cadre of Civil Judges (Senior Divisions) did not in any manner suffer because the quota of limited direct recruitment was given to the promotees on the basis of seniority. Resultantly, three promotees were appointed and thereafter one direct recruit was appointed. This roster is being followed and one post of scheduled tribe is still vacant. Therefore, in the selections now made if the roster is followed, the posts should be filled up in the following manner: ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 18 The first vacancy available shall go to the candidate from the limited competitive examination;
The second post shall fall to the category of direct recruits;
.
The third and 4th posts go to promotees;
The 5th post falls to the share of limited competitive examination (since only one candidate has qualified from this category, this post has to be kept vacant) The next post that is the 6th post has to go to the direct category and falls to the quota of other backward classes.
Thereafter, the next two posts are to be filled up from promotees.
The names of two promotees have already been forwarded to the State Government for appointment against the quota of promotees. To avoid any dispute of seniority we are of the considered view that the State Government be requested not to issue the order of appointments of the promotees separately and one order on the same date be passed in respect of all the persons to be appointed so that seniority is governed strictly in accordance with Rule 13(1) of the 2004 Rules.
The Committee recommends accordingly."
Aforequoted report of the Committee was considered by the Full Court of the High Court in its meeting held on 14.09.2009, which resolved to accept the recommendations made therein in toto.
11. Considering that not sufficient number of candidates were qualifying the Limited Competitive ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 19 Examination, the Supreme Court on 30.04.2010 passed an order in All India Judges Association vs. Union of India, (2010) .
15 SCC 170; by which the quota for recruitment through LCE was reduced from 25% to 10% and quota for promotion was increased from 50% to 65% with effect from 01.01.2011. In this context, the question with regard to filling up of vacancies in the cadre of District Judge/Additional District Judges during 20102011 as per directions of the Supreme Court in Malik Mazhar Sultan versus U.P. Public Service Commission, 2007 (3) SLR 697, required to be notified by 31 st March, 2010 and regarding operation of roster on the principle of posts based roster instead of running account/vacancy based roster, was referred to the three Judge Committee. The said committee in its report dated 30.03.2010 noted that when the Rules of 2004 came into force on 20.03.2004, the cadre of District Judges/Additional District Judges consisted of 30 officers. 19 posts were manned by promotees from judicial service and 10 by direct recruits and 1 post was vacant. The strength of cadre was later increased to 34 and therefore 34 point roster was required to be maintained. It noted that at that time there ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 20 were 12 direct recruits as against their quota of 8 and therefore excess number of posts to be vacated by direct recruits till it is .
reduced to 8, have to be filled up either through promotion or on the basis of LCE. The committee recommended that out of six existing/anticipated vacancies, first three may be filled by LCE from amongst Civil Judges (Sr.Div.) and remaining three by promotion. The report shows that the High Court continued to make recruitment on the basis of vacancy based roster upto 30.3.2010. It then decided to switch over to post based roster w.e.f. 31.3.2010 which is evident from recommendation of the three Judge Committee in its report dated 30.3.2010, accepted by the Full Court of the High Court by its resolution dated 30.03.2010.
12. The Full Court of the High Court vide its resolution dated 27.8.2009 constituted a two Judge Committee to look into the letter dated 19.3.2009, received from the Principal Secretary (Home) Government of Himachal Pradesh, and the issues raised therein. By the aforesaid letter, the Government required the High Court to consider the proposal for making suitable amendments in the Rules of 2004, in the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 21 light of various orders passed by the Supreme Court in Malik Mazhar Sultan's case. The Committee collated all the orders .
passed by the Supreme Court in that case from time to time and found that the Rules were required to be suitably amended. The Committee considered the proposal received from the Government and recommended that all the amendments should be carried out at one go and proposed various amendments in the table enclosed with the report. The Full Court of the High Court, vide its resolution dated 27.7.2010, accepted the report of the two Judge Committee to incorporate the amendments in the Rules in conformity with the directions of the supreme Court in Malik Mazhar Sultan's case and passed by the following resolution:
"Report of the Committee is accepted with a clarification to be incorporated by way of an additional Note No.3 that appointments already made shall not be affected on account of introduction of new roster in Column No.III of the table annexed with the Report."
13. The Full Court in its meeting held on 7.11.2012 considered several agendas, one of which was with regard to operation of 34 point posts based roster in the cadre of District ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 22 Judges/Additional District Judges as per order dated 24.4.2010 of the Hon'ble Apex Court passed in I.A. No. 77, .
i.e., application for modification of order dated 21.3.2002 in W.P. (C ) No. 1022 of 1989 titled All India Judges' Association Vs. Union of India and others. The Full Court therefore, resolved to authorize the Chief Justice to form a Committee in that behalf. A three Judge Committee was accordingly constituted, which in its report dated 5.12.2012, proposed for adoption of 34 point roster, which was approved by the Full Court in its meeting held on 11.12.2012 with direction to Registry to ensure that 5th vacancy should be filled from Scheduled Tribe category.
14. Thereafter, Rajeev Bhardwaj made another representation on the premise that he was appointed as Additional District and Sessions Judge on the basis of LCE against the quota of that category and that he should be given higher seniority over some of the promotees. This representation was again entrusted to two Judge Committee for examination, which in its report dated 25.6.2014, proposed to reject the same on the premise that earlier representation ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 23 to this effect made by Rajeev Bhardwaj was already rejected by the Full Court in its meeting dated 30.8.2010 on the .
recommendation of the three Judge Committee in its report dated 3.8.2010. The Full Court in its meeting held on 15.7.2014 accepted the report of the said Committee dated 25.6.2014 and accordingly rejected the said representation.
15. It was thereafter that the existing table under Rule 5 of the Rules of 2004 was substituted by the Government vide Notification dated 14.6.2016 by adding ExplanationII with Note3 which reads as under: "Explanation II Appointment to the cadre of District Judges/Additional District Judges from categories (a),
(b) & (c) shall be in accordance with post based 34 points roster to be maintained by the High Court in this behalf.
Note 3: The appointment already made shall not be affected on account of introduction of new roster."
16. It may be pertinent to note that petitioner Rajeev Bhardwaj alongwith one J.K. Sharma, filed I.A. No.334/2014 in Writ Petition (C) No. 1022/1989 in All India Judges Association case before the Supreme Court for creation of separate cadre of Civil Judges as per the Rules of 2004 with ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 24 effect from 01.07.1996 and for implementation of the post based roster in the cadre of District Judges. When however the .
Supreme Court was informed about the stand of the High Court that 34 point roster shall be followed after 31.03.2010, it vide order dated 28.04.2016 directed the High Court to apply Rule 13 for preparation of seniority after ascertaining roster points from all the three categorizes, viz., promotees, LCE and direct recruits; from 31.03.2003 and place report after carrying out such exercise before the Supreme Court to enable it to pass further orders. However, the Supreme Court in concluding part of the said order put the following rider: "We make it clear and reiterate that we only want the outcome of such exercise to be placed before this court before passing further orders as to its implementation."
17. When, however, IA No. 334/2014 came up for consideration again on 14.07.2016, the Supreme Court was apprised of the fact that CWP No.696/2010, titled Himachal Pradesh Judicial Service Officers Association Vs. State of Himachal Pradesh, claiming similar reliefs was already ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 25 pending before the High Court. The Supreme Court thereupon passed the following order: .
"Since, it is reported that identical prayer is subject matter of consideration in Civil Writ Petition No.696 of 2010, titled H.P. Judicial Service Officers Association v. State of Himachal Pradesh, before the High Court of Himachal Pradesh, we are of the view that the parties should be relegated to work out their remedy in the said writ petition and await the outcome of the said writ petition."
18. Against the backdrop of these facts, when CWP No.696/2010 came up for hearing before the Full Bench of the High Court on 15.9.2015, the petitioners were required to implead directly recruited candidates as parties to the Writ Petition but they sought recusal of the particular Bench which was declined. When the matter was again taken up for hearing on 04.11.2016 on an application for such impleadment filed in compliance of the earlier order, the petitioners prayed for modification of that order and for withdrawal of the CMP No. 10908/2015 filed for impleadment of direct recruits which prayer was declined. Finally when the Writ Petition was taken up on 04.11.2016, the petitioners instead of pursuing the same, prayed for its withdrawal. The Writ Petition was therefore ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 26 permitted to be unconditionally withdrawn. Following was the order passed by this Court in that Writ Petition on .
04.11.2016: "On instructions, Sh. Naresh K. Gupta, learned counsel for the petitioners states that he may be unconditionally permitted to withdraw the instant petition.
2. The respondents have opposed this request on the ground that certain rights have accrued in their favour, in view of the orders passed by this Court from time to time.
3. However, without going into these contentions, the petitioners are permitted to withdraw the present petition.
4. Accordingly, the petition is dismissed as withdrawn, along with pending application(s) if any."
19. Subsequently, when IA No. 334/2014 in W.P.(C) No. 1022/1989 in All India Judges Association case again came up for consideration before the Supreme Court on 25.04.2017, it was informed that the High Court has in compliance of the order dated 28.04.2016, supra constituted a Committee, which was deliberating on the issue. The Supreme Court requested the High Court to submit the report through its counsel by second week of July, 2017 and observed that the report of the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 27 Committee should be in accordance with the principles of law laid down in 2002 judgment of All India Judges Association .
case. Accordingly, the Committee prepared its report strictly in conformity with the directions issued by the Supreme Court in its order dated 28.04.2016 in I.A. No.334/2014. Report of the committee was placed before the Full Court of the High Court in its meeting held on 21.09.2017, which passed the following Resolution: r "The Report is in compliance with the directions issued vide order dated 28.4.2016, by the Hon'ble Apex Court in I.A. No. 334 of 2014, in pending Civil Writ Petition 1022 of 1989, titled All India Judges Association and others v. Union of India and others, also the Committee has considered the objections filed by the Direct Recruits, who were given an opportunity of being personally hard.
The Direct Recruits had relied upon a FiveJudge Bench judgment, rendered by the Apex Court, in Direct Recruit ClassII Engineering Officers Association v. State of Maharashtra, reported in (1990) 2 SCC 715. In the said verdict, it has been propounded by the Apex Court that where the Quota Rule has been breached and appointments have been made to the vacancies, in excess of quotas only from one source, but where appointments have been made after following the prescribed procedure enshrined in the Rules framed for appointment, the appointees be not pushed down ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 28 below the appointees from the other source inducted in the service at a later date and where the Rules permit the authorities to relax the provisions relating to .
quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
The Committee has in its Report not gone into the merits of the aforesaid submissions made on the basis of the said judgment. It was solitary dealing within the domain and purview of the directions dated 12.08.2016/4.10.2016 issued by the Apex Court in IA No.334 of 2014, during pendency of Civil Writ Petition 1022 of 1989, titled All India Judges Association and others vs. Union of India and other, besides within the limited reference made therein by the Hon'ble Supreme Court of India, vide order (supra).
The counsel representing the High Court before the Hon'ble Supreme Court to ensure that the aforesaid facts and judgment be brought to the notice of the Hon'ble Apex Court.
Also it be brought to the notice of the Bench that seniority(s) of Shri Dharam Chand Chudhary, Shri P.S. Rana, Sh. Sureshwar Thakur and Shri C.B. Barowalia, whose names are referred in various places of the Report, stands protected, in terms of verdict in All India Judges' Association and others v. Union of India and others, (2002) 4 SCC 247, besides of extantly, of all the aforesaid being elevated as Judges of this Court."
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 2920. Thereafter, when the IA No. 334/2014 in W.P.(C) No. 1022/1989 came up for consideration before the Supreme .
Court on 13.03.2018, it was disposed of taking note of the fact that the issues raised in the said IA relates to the dispute inter se between the individual/groups, which would not be appropriate for determination in the scope of IA. The Supreme Court, therefore, declined to entertain the IA any further leaving the parties to resort to such remedy as may be available to them in law. The IA was thus decided in the following terms: "The issue raised in I.A. No.334 of 2014 in Writ Petition (Civil) No.1022/1989, as it appears to us from the materials on record, relates to the disputes inter se between the individual/groups, which, in our considered vie, would not be appropriate for determination by this Court in I.A. (No.334 of 2014) filed in W.P. (C) No.1022/1989 (All India Judges Association v. Union of India).We, therefore, decline to entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law."
It was thereafter that the petitioners filed the present two Writ Petitions.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 3021. We have heard Shri Shrawan Dogra, learned Senior Counsel, appearing for petitioner in CWP No. .
2061/2018 and Shri R.K. Bawa, learned Senior Counsel appearing for petitioner in CWP No. 2292/2018, Shri K.D. Sood, learned Senior Counsel appearing for Himachal Pradesh High Court, Shri R.L. Sood, learned Senior Counsel appearing for respondents No. 3 & 4, Shri B. C. Negi, learned Senior Counsel for respondents No. 5 & 6 in both the petitions.
Arguments of the petitioners:
22. Shri Shrawan Dogra and Shri R.K. Bawa, learned Senior Counsels appearing on behalf of petitioners have argued that genesis of the dispute in present matters lies in the High Court not implementing the post based roster with effect from 31.03.2003 despite specific direction of the Supreme Court in 2002 judgment of All India Judges Association case, supra. Although the High Court framed the Rules in 2004 which were notified in the official gazette of the State of Himachal Pradesh on 20.03.2004 but it implemented the post based roster with effect from 31.03.2010 instead of 31.03.2003.
The High Court in the meanwhile continued to make ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 31 appointment on vacancy based roster upto 31.03.2010. The High Court also framed regulations for limited competitive .
examination in 2005 but despite availability of eligible officers to appear in the said examination, the High Court for the first time held such examination in 2009 when petitioner Rajeev Bhardwaj in CWP No. 2292/2018 was appointed to the cadre of District Judge on 27.10.2009 in that quota. Private respondents No. 3 to 5 have, therefore, wrongly been shown senior to the petitioners.
23. It is argued that the High Court set up a Committee of Hon'ble Judges firstly in the year 2010 and thereafter in the year 2017. Both Committees submitted reports with regard to implementation of the post based roster with effect from 01.04.2003 and both these reports were approved by the Full Court of the High Court. In fact, the report of twoJudgecommittee set up in 2017 was placed before the Hon'ble Supreme Court by way of affidavit affirming that the said report was prepared in consonance with directions of the Supreme Court. There was therefore no reason for the High Court not to fully implement the said ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 32 report in view of the order passed by the Supreme Court on 24.08.2016 passed in I.A. No. 334/2014 in W.P.(C) No. .
1022/1989. If this report is implemented, the petitioners would be liable to be shown senior to respondents No. 3 to 5 because this has been acknowledged as a question of fact by the said Committee that appointments of respondents No. 3 to 5 by way of direct recruitment were made in excess of their quota.
24. It is argued that various orders passed by the Supreme Court in I.A. No. 234/2009 and I.A. No. 235/2009, Writ Petition (Civil) No. 532/2009 and I.A. No. 334/2014 are required to be appreciated in the right perspective. These orders were passed taking note of the directions contained in 2002 judgment of All India Judges Association case, supra, whereby the respondent No. 2 - High Court was directed to create cadre of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 01.07.1996 alongwith all consequential benefits from that date. This direction of the Supreme Court has not been complied with yet by the Himachal Pradesh High Court. Specific direction of the Supreme Court to the High Court to follow the post based ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 33 roster for appointment in the cadre of District Judge with effect from 31.03.2003 is based on enunciation of law .
propounded in para 29 of its 2002 judgment in All India Judges Association case, supra. Appointment of respondents No. 3 to 6, being in violation of the Rules of 2004 and also contrary to the directions contained in aforesaid judgment of the Supreme Court, are liable to be treated adhoc till such time vacancies in the quota of direct recruitment become available and their seniority is liable to be pushed down accordingly, argued the learned Senior Counsels.
25. Learned Senior Counsels appearing for petitioners further argued that the Supreme Court in para 30 of the aforementioned judgment specifically observed that "........ the roster system will ensure fair play to all while improving efficiency in the service..........." The argument that post based roster cannot be applied on the ground that by its implementation the promotee officers would be getting the seniority from the date when they were not even born in the cadre, would not be available in the present cases because the petitioners herein are not claiming seniority from any back ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 34 date. They are rather claiming seniority only from the date of their actual appointment in the cadre. It would be, thus, a case .
of pushing down seniority of direct recruits till the time posts become available for them in the quota of direct recruitment.
Respondents No. 3 to 6 would therefore be entitled to get seniority only from the date their appointment stands regularized upon availability of a post in the quota of direct recruitment as per their entitlement.
26. It is argued that the High Court did not conduct the limited competitive examination to fill up the quota of 25% from 2004 till 2009 despite availability of eligible officers in the year 2005 itself when regulations were framed for holding such examination. There were, in 2004 six officers eligible to appear in LCE, in 2005 there were 8 officers, in 2006 there were 5 officers, in 2007 there were 4 officers, in 2008 there were 7 officers available. It is, therefore, not correct to contend that since sufficient number of eligible officers were not available, the examination could not be conducted. In fact, decision not to hold the examination was never notified by the High Court. The High Court on its administrative side could ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 35 not dilute the directives contained in 2002 judgment of All India Judges Association case, supra.
.
27. As regards Note3 to Rule 5 under ExplanationII vide Notification dated 14.06.2016 in the Rules of 2004 to provide that appointment already made shall not be affected on account of introduction of new roster, it was argued that this note only implies that legally made appointment against the quota of particular category shall remain protected and will not be disturbed on account of change of quota/roster.
Change of roster from 40 points to 34 also came into effect with effect from 01.01.2011 following creation of four posts in DJ cadre after enforcement of Rules of 2004. Change in the roster and applicability of new roster would not affect the present dispute because it pertains to the period prior to 31.03.2010, therefore, there was no need to challenge the roster prepared after 2010. The Supreme Court in 2002 judgment of All India Judges case, supra, merely protected the appointments already made prior to 31.03.2003, as has also been clarified by the Supreme Court in Maharashtra State Judges Association v.
Registrar General, High Court of Judicature at Bombay, AIR ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 36 2009 SC 1571. The aforesaid Note, therefore, does not have effect of extending such protection till 14.06.2016 when the .
said Note was inserted in the Rules of 2004.
28. As regards CWP No. 61/1999 before this Court jointly filed by many officers including present writ petitioners, it was submitted that dispute involved therein was about the appointment against permanent/temporary/ officiating posts under the Rules of 1973 when vacancy based roster was applicable. However, under the Rules of 2004 distinction between cadre and excadre/temporary post has been done away with and now appointment can be made only by applying post based roster. The petitioners were not aggrieved by report of twoJudgecommittee dated 18.04.2005 recommending rejection of representations submitted pursuant to judgment of this Court in the aforesaid Writ Petition, because their placement in the cadre of the then Sub Judge would not have changed and the appointment on the post of ADJ would not have been declared illegal because of the protection granted by the Supreme Court in 2002 ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 37 judgment of All India Judges Association case, supra, whereby appointments prior to 31.03.2003 were in any case protected.
.
29. As regards filing of WP (C) No. 532/2009 before the Supreme Court and Writ Petition No. 696/2010 before the High Court, it is argued that petitioners were not party therein either in their individual capacity or as member of Himachal Pradesh Judicial Service Officers Association. This would be clear from the letters (Annexures P36 and P37) filed in Writ Petition No. 2292/2018 that HP Judicial Officers Association and HP Judicial Service Officers Association are different Associations and the latter was an Association of Civil Judges. The High Court has also mentioned that CWP No. 61/1999, I.A No. 234/2009 and I.A. No. 235/2009 were filed by the HP Judicial Service Officers Association, wherein advertisement issued by the High Court to fill the posts in excess of the quota of direct recruitment was under challenge.
Even I.As. No. 234 and 235 of 2009 filed in WP (C) No. 1022/1989 before the Supreme Court were filed by the H.P. Judicial Service Officers Association of Civil Judges ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 38 questioning excess direct recruitment. This fact was very much disclosed in para 12 of WP(C) No. 532/2009.
.
30. It is argued that there was no provision of holding written examination under the Rules of 1973, which was for the first time introduced in the Rules of 2004. The process for recruitment in which respondent No. 3 Sushil Kukreja was selected, was thus started under the draft Rules of 2004 and therefore, he was the first officer who qualified the said written examination as per Rule 22 of the Rules of 2004. It is trite that appointment under the draft rules could validly be made. Reliance in support of this argument is made on the judgment of the Supreme Court in High Court of Gujarat vs. Gujarat Kishan Mazdoor Panchayat, AIR 2003 SC 1201, and Delhi Judicial Services Association vs. Delhi High Court, (2001) 5 SCC 145.
31. Relying on the judgments of the Supreme Court in Anil Kumar Neotia vs. Union of India, (1988) 2 SCC 587 and T.R. Kapoor vs. State of Haryana, (1989) 3 SCC 71, learned Senior Counsels appearing for petitioners, argued that when there is mandatory direction of the Supreme Court, it cannot ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 39 be disobeyed or diluted by the respondents. The Supreme Court in Rakhi Ray vs. High Court of Delhi, AIR 2010 SC 932, .
has clarified that where statutory rules do not deal with a particular subject/issue, so far as the appointment of the Judicial Officers is concerned, directions issued by the Supreme Court would have binding effect. This view is in conformity with the law laid down by the Supreme Court in Nand Kishore vs. State of Punjab, (1995) 6 SCC 614. The High Court has to play the role of impartial employer in the inter se dispute between its employees. Reliance in this connection is placed on the judgment of the Supreme Court in S.I. Roop Lal vs. Lt. Governor through Chief Secretary, Delhi, (2000) 1 SCC 644, and Bhupendra Nath Hazarika vs. State of Assam, (2013) 2 SCC 516.
32. Relying on the judgment of the Supreme Court in M. Subba Reddy vs. A.P. State Road Transport Corporation, (2004) 6 SCC 729, it was argued that quota rule cannot be taken to have broken down only by inaction on the part of the employer to fill up the post. The Constitution Bench judgment of the Supreme Court in S.C. Jaisinghani vs. Union of India, ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 40 AIR 1967 SC 1427, is cited to argue that when the quota was fixed for two sources of recruitment, the quota could not be .
altered and that promotions made in excess of quota would be illegal. The same analogy should be applied in the case of direct recruitment. Relying on the judgments of the Supreme Court in V.B. Badami vs. State of Mysore, AIR 1980 SC 1561 and in Keshav Chandra Joshi Vs. Union of India, 1992 Suppl.1 SCC 272, it is argued that it was not open to the authorities to alter the quota on the ground of administrative exigencies which can be done only by fresh determination of vacancies. Further reliance was placed on the judgment of the Supreme Court in Maharashtra Vikrikar Karamchari Sangathan vs. State of Maharashtra, (2000) 2 SCC 552, and in Sanjay K. SinhaII vs. State of Bihar, AIR 2004 SC 3460, wherein it was held that if there is patent violation of the quota rule, the result must follow and the appellants promotees, who remained in the office for all these years, cannot take the advantage of this situation. The promotees, therefore, could not be given seniority with effect from purported date of their promotion.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 4133. Reliance was also placed on the judgment of the Supreme Court in M. Subba Reddy vs. A.P. State Road .
Transport Corporation, AIR 2004 SC 3517, wherein it was held that even if the direct recruits were recruited later, their fitment in the order of seniority had to be determined with reference to rota and quota prescribed under the rules. In such a case there was no illegality when promotees were pushed downwards in the order of seniority. Reliance is also placed on the Constitution Bench judgment of the Supreme Court in Ajit Singh vs. The State of Punjab, AIR 1999 SC 3471, wherein it was held that any promotions made wrongly in excess of any quota, are to be treated as ad hoc till availability of vacancies in their quota. A Division Bench judgment of this Court in Pankaj Sharma vs. H.P. State Electricity Board, LPA No. 430/2012, decided on 29.06.2016, as also a Single Bench judgment of this Court in Yashwant Singh v. H.P. State Electricity Board, CWPT No. 2736/2008, decided on 20.07.2012, were also cited to buttress the same argument. It was argued that by applying the ratio of aforementioned judgments it can be held that while appointment in excess of ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 42 the quota of promotion or direct recruitment can be saved but such promotees/appointees cannot claim seniority when no .
post in their quota was available at the time of their promotion/appointment. Applying that analogy, placement of respondents No. 3 to 5 in the seniority has to be pushed down to a future date, till the posts in the quota of direct recruitment would become available to regularize their appointment. r
34. Learned Senior Counsels for the petitioners argued that reliance by the respondents on the judgment of the Supreme Court in Direct Recruit ClassII Engineering Officers Association vs. State of Maharashtra, (1990) 2 SCC 715, is wholly misconceived. Inviting attention of the court towards para 44 of the aforesaid judgment, it is argued that conclusions (A) and (B) thereof are not attracted to the present case in favour of the respondents No. 3 to 5 as explained by the Supreme Court in later judgment in Vinod Giri Goswami vs. State of Uttarakhand, AIR 2020 SC 5099. In that case, the Supreme Court held that these two paras have to be read harmoniously and that conclusion (B) cannot cover the cases ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 43 which are expressly excluded by conclusion (A). Further argument of learned Senior Counsels for petitioners is that .
Rule 20 of the Rules of 2004, which empowers the State Government to grant relaxation in consultation with the High Court and the Himachal Pradesh Public Service Commission, cannot be pressed into service in their favour because such relaxation is available only with respect to condition of service and not to the condition of recruitment. Reliance, in this connection is also placed on the judgments of the Supreme Court in State of M.P. vs. Lalit Kumar Verma, (2007) 1 SCC 575; Bhupendra Nath Hazarika vs. State of Assam, (2013) 2 SCC 516; and Suraj Prakash Gupta vs. State of Jammu and Kashmir, (2000) 7 SCC 561.
Arguments of the respondents:
35. Per contra, Shri K.D. Sood, learned Senior Counsel appearing for respondent High Court, Shri R.L. Sood, learned Senior Counsel appearing for respondents No. 3 & 4 and Shri B.C. Negi, learned Senior Counsels appearing for respondents No. 5 & 6, have, at the very outset, raised preliminary objections with regard to maintainability of the Writ Petitions.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 44It is submitted that the earlier Writ Petition filed by petitioners, being CWP No. 61/1999, was disposed of by this .
Court vide order dated 18.04.2005 requiring them to submit their representation before the High Court. Petitioner Rajeev Bhardwaj was petitioner No. 28 and petitioner S.C. Kainthla was petitioner No. 16 therein. Representations submitted by the petitioners/their Association were considered by a two Judgecommittee, r which vide report dated 06.06.2005 recommended rejection of the same. The Full Court of the High Court, vide resolution dated 22.08.2005 accepted the report and accordingly rejection of the representation was conveyed to all concerned. The argument with regard to excessive appointment of the direct recruits, which has been raised in the present case, was also raised in those representations. Representations of the petitioners having been rejected by the High Court on its administrative side, and the decision having not been challenged any further, has attained finality. The petitioners are, therefore, estopped from agitating the same issue all over again.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 4536. Second preliminary objection raised by learned Senior Counsels for respondents is that after opportunity was .
granted by the Supreme Court to the petitioners to approach this Court while allowing them to withdraw WP(C) No. 532/2009, CWP No. 696/2010 was filed by HP Judicial Service Officers Association before this Court, claiming same reliefs with the same arguments which are claimed/raised in present set of Writ Petitions. In fact the Supreme Court vide order dated 14.7.2016 while considering I.A No. 334/2014 again required the HP Judicial Service Officers Association to work out their remedy in the said Writ Petition. Although, the Writ Petition was filed but it was withdrawn unconditionally and was dismissed as such by order of this Court dated 04.11.2016.
In view of law laid down by the Supreme Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and Others, (1987) 1 SCC 5, and the mandate of Rule 1 of Order XXIII of the Code of Civil Procedure, present Writ Petitions for the same relief would be barred and thus not maintainable.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 4637. Third objection raised by learned Senior Counsels appearing for the respondents is that the petitioners did not .
challenge filling of vacancies by direct recruitment at the appropriate time. Neither the appointment of the respondents nor rejection of representations or reports of various committees of the High Court or unanimous decisions of the Full Court of the High Court was ever challenged by them. The petitioners also did not challenge the seniority lists issued year after year, from the year 2005 onwards, which fact was all throughout within their knowledge. Even promotions carried out during the interregnum on the basis of such seniority lists, were never subjected to challenge by petitioners or any other judicial officer. The petitioners have therefore by their conduct acquiesced in the correctness of the action of the respondents.
They cannot be now permitted to unsettle the position which has remained settled for so long. The submission therefore is that Writ Petitions in the present form are not maintainable and are liable to be dismissed.
38. Learned Senior Counsels for respondents argued that as far as direct recruitment of respondent No. 3 Sushil ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 47 Kukreja, is concerned, the process for recruitment pursuant to which he was selected, was initiated by resolution of the Full .
Court of the High Court dated 01.08.2003. Consequential advertisement, pursuant to which respondent No. 3 was recruited, was issued under the old Rules of 1973 on 07.09.2003. The Full Court vide specific resolution dated 29.08.2003 decided that written examination shall be held for appointment of direct recruitment in the service even under the Rules of 1973. The process for his recruitment commenced in August/September, 2003 when the Rules of 1973 were in force. The process was completed on 16.03.2004 before promulgation of the Rules of 2004 when a letter was addressed to the Government to appoint respondent No. 3 Sushil Kukreja as an Additional District Judge. The H.P. Judicial Service Rules, 2004 were notified on 20.03.2004. He was however appointed on 18.05.2004. The seniority of respondent No. 3 Sushil Kukreja, therefore, in any case would remain protected in view of mandate of the Supreme Court in 2002 judgment of All India Judges Association case, supra. The twoJudge committee of the High Court in its report dated 10.09.2009, ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 48 which has been approved by the Full Court of the High Court, has categorically protected appointment of respondent No. 3 .
Sushil Kukreja having been made under the Rules of 1973.
Unlike proviso to Rule 7 B of the Delhi Higher Judicial Service Rules, which clearly stipulated that not more than 1/3 rd posts could be held by the direct recruits, there is no such prohibition in the Rules of 1973. Thus the twoJudge committee of the High Court came to a definite conclusion that judgment of the Supreme Court in Delhi Judicial Services Association and Others vs. Delhi High Court and Others, (2001) 5 SCC 145, would not be applicable in case of any direct recruitment under the Rules of 1973. Even otherwise, appointment of respondent No. 3 has been specifically saved and protected by law laid down by 2002 judgment of the Supreme Court in All India Judges Asociation case. Even the three Judge Bench of the Supreme Court in K. Meghachandra Singh & others versus Nigam Siro and others (2020) 5 SCC 689, while overruling the two Judge Bench decision in Union of India and others vs. N.R. Parmar & others, (2012) 13 SCC 340, held that this judgment will apply only prospectively.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 49Citing the judgment of the Supreme Court in Union of India versus V.Ramakrishan and others (2005) 8 SCC 394, learned Senior .
Counsel for the respondents argued that until the Rules of 1973 were validly repealed, the draft rules could not have been acted upon. The Writ Petitions qua respondent No.3 Sushil Kukreja, thus, deserves to be dismissed on this ground alone.
39. Learned Senior Counsels for the respondents submitted that respondent No. 3 Sushil Kukreja, respondent No. 4 Virender Singh, respondent No. 5 Chirag Bhanu Singh and respondent No. 6 Arvind Malhotra were respectively appointed on 18.05.2004, 07.12.2006, 17.09.2006 and 23.10.2009 in accordance with the procedure prescribed under the Rules of 2004. Petitioner Rajeev Bhardwaj in CWP No. 2292/2018 was appointed on 27.10.2009 against the quota of LCE and therefore, he was born in the cadre of District Judges as late as 27.10.2009. Petitioner S.C. Kainthla in CWP No. 2061/2018 was appointed on 26.12.2006, therefore, even he was not born in the cadre prior to appointment of at least respondents No. 3 to 5. Relying on the judgment of the Supreme Court in K. Meharchandra Singh's case, (supra), and in particular, to the discussions made in paras 28, 29, 39 and ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 50 40 therein, it is argued that law is well settled that an employee cannot claim seniority from a date he was not even .
born in service.
40. It is submitted that the petitioners are primarily relying on 2017 report of the twoJudgescommittee, which in fact was prepared strictly in conformity with directions issued by the Supreme Court vide order dated 28.04.2016 in IA No. 334/2014. The report of the Committee as well as resolution of the Full Court dated 01.11.2017 clearly notes that contentions of the affected parties, i.e., the direct recruits, in respect of seniority were not considered either by the Committee or the Full Court as it was beyond their power, in view of specific mandate of the Supreme Court in its order dated 28.04.2016 in IA No. 334/2014.
41. Relying on the Constitution Bench judgment in Direct Recruit ClassII Engineering Officers' Association, supra, it was argued that the Supreme Court therein held that if it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. Every effort has to be ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 51 made to respect a rule but if it is not feasible to enforce it, the rule has to be given a practical interpretation. The Supreme .
Court, therefore, held that interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained. It was argued that every effort was made by the respondent High Court, which took a conscious decision as per the circumstances prevalent at the relevant time, to apply the post based roster with effect from 31.03.2010. Relying on the judgment of the Supreme Court in Anand Kumar Tiwari and others versus High Court of Madhya Pradesh and others 2021 SCC OnLine SC 578, learned Senior Counsels argued that 31.3.2003 cannot be taken as sacrosanct date in every situation and can be allowed to be deviated from for valid reasons. The Supreme Court refused to interfere in that case even though the rules in conformity with All India Judges Association's case were amended and enforced w.e.f. 13.3.2018.
Reliance is also placed on the judgments of the Supreme Court in Hon'ble Punjab and Haryana High Court at Chandigarh vs. State of Punjab and Others, AIR 2018 SC 5284, and later ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 52 judgment of the Supreme Court in Hon'ble High Court of Judicature at Allahabad vs. State of U.P. & Others, (2018) 5 .
SCC 439, to argue that a pragmatic view has to be taken despite the judgment in All India Judges Association case, supra.
42. Referring to the resolution of the Full Court of the High Court dated 30.03.2006, learned Senior Counsels appearing for the respondents argued that the Full Court came to definite conclusion that in cadre strength of 34, 8 posts were to fall to the quota of LCE. Only 5 officers were fulfilling eligibility criteria of five years of service as Civil Judge (Sr. Div.) for promotion, namely, R.K. Mittal, Pritam Singh, R.L. Azad, S.L. Sharma and K.S. Chandel, but all of them were in fact promoted, albeit against the quota of promotion. No prejudice whatsoever was therefore occasioned to the petitioners or to any other promoted candidate. In fact, the unfilled LCE quota, which should have also been proportionately apportioned between the promotees and direct recruits, was enbloc given to promotees. As soon as other judicial officers became eligible against the said quota in the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 53 year 20082009, the High Court notified 1 existing and 2 future vacancies on 30.03.2009 to be filled up by way of LCE.
.
Thereafter, by way of corrigendum, one future vacancy against 10% future vacancies was withdrawn as per direction of the Supreme Court. Out of 15 Judicial Officers, only one Judicial Officer, namely, petitioner Rajeev Bhardwaj could qualify the said test and accordingly he was appointed by promotion on 27.10.2009. r
43. Learned Senior Counsels appearing for the respondent further submitted that a threeJudgecommittee constituted by the High Court in the year 2009 to scrutinize the roster, the total strength of DJ/ADJ and the post occupied by each category, i.e., 50% by promotion, 25% by LCE and 25% by direct recruitment, after examination of entire record/seniority, recommended that there is no need to reopen already finalized seniority under the HP Higher Judicial Service Rules, 1973, thereby disturbing the settled position.
The Committee in the report dated 10.09.2009 observed that even if no LCE was held till 2009, the officers belonging to the cadre of Civil Judges (Sr.Div.) did not in any manner suffer ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 54 because the quota of LCE was given to the promotees on the basis of seniority. It was therefore argued that promotions in .
25% quota of LCE till 2009 could not be given on account of nonavailability of sufficient number of judicial officers. The petitioners are therefore not justified in contending that the High Court deliberately did not implement the said direction of the Supreme Court in its judgment in 2002 judgment of All India Judges Association case, supra.
44. Learned Senior Counsels for the respondents contended that the Full Court of the High Court upon a reference from the State Government, vide its resolution dated 27.7.2010 had taken a conscious decision that a Note should be inserted as Note No. 3 below Rule 5 of the Rules of 2004 in the terms that the appointments already made shall not be affected on account of the introduction of the new roster. The State Government, pursuant to the resolution of the Full Court of the High Court, vide notification dated 14.6.2016 added ExplanationII below Rule 5 to provide that the appointment of the cadre of District Judges/Additional District Judges from all the three categories shall be made in accordance with the post ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 55 based 34 point roster to be maintained by the High Court in this behalf. However, Note3 which was simultaneously added .
thereunder clearly states that the appointments already made shall not be affected on account of introduction of the new roster. The amended Rule and Note 3 have not been challenged by the petitioners or by any other officer as per procedure known to law. The writ petitions are, therefore, liable to be dismissed.
45. Learned Senior Counsels further submitted that H.P. Judicial Service Officers Association and its members belatedly preferred I.A. Nos. 234 and 235 of 2009 before the Supreme Court in W.P.(C) No. 1022/1989. Initially although order dated 26.03.2009 was passed by the Supreme Court requiring the High Court to work out and place before it the report showing the manner of implementation of the Rules of 2004 with effect from 31.03.2003, however, with a rider that the Supreme Court would itself consider the same before it is ordered to be implemented. Eventually, the Supreme Court disposed of the I.A. Nos. 234 and 235 of 2009 by order dated 26.03.2009 by specifically observing that it did not wish to ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 56 interfere in the matter of seniority and on the question of introduction and violation of roster system, however, liberty .
was given to the petitioners to take appropriate steps for redressal of their grievance. It was thereafter that the H.P. Judicial Service Officers Association and its several other members by way of WP (C) No. 532/2009 filed before the Supreme Court sometime in October, 2009 through its President J.K. Sharma prayed for the reliefs similar to these ones claimed in the present set of Writ Petitions. When the matter came up before the Supreme Court on 04.12.2009, it permitted H.P. Judicial Service Officers Association and its members to withdraw the said Writ Petition with liberty reserved to move this Court. It is argued that in all the aforementioned writ petitions/proceedings, the directly recruited candidates were not made parties or arrayed as respondents despite the fact that they were likely to be directly affected by any decision.
46. Learned Senior Counsels for the respondents further submitted that I.A. No. 334/2014, jointly filed by S.C. Kainthla, petitioner in CWP No. 2061/2018, Rajeev Bhardwaj, ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 57 petitioner in CWP No. 2292/2018, and J.K. Sharma moved before the Supreme Court in 2002 judgment of All India .
Judges Association case, supra, virtually claimed the same reliefs. This was done at a time when CWP No. 696/2010 was still pending before this Court claiming similar reliefs. The petitioners therein failed to disclose in I.A. No. 334/2014 that their earlier I.A. No. 234/2009 and earlier WP (C) No. 532/2009 had already been disposed of by the Supreme Court. The petitioners also did not disclose before the Supreme Court that as per liberty reserved to the Association and its members in terms of order dated 04.12.2009, allowing them to withdraw WP (C) No. 532/2009, filed before the Supreme Court, they in fact filed CWP No. 696/2010 before this Court. The petitioners also failed to disclose that reliefs claimed in CWP No. 696/2010 were identical to those prayed in I.A. No. 234/2009 and I.A. No. 235/2009. Nondisclosure of order dated 14.07.2016 in I.A. No. 334/2014 virtually set at naught the earlier order dated 28.04.2016 passed by the Supreme Court. This, according to the respondents, amounted to suppression of the material facts.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 5847. Learned Senior Counsels further argued that after withdrawal of Writ Petition (Civil) No. 532/2009 before the .
Supreme Court, the Association alongwith its members again filed CWP No. 696/2010 before this Court and did not array the direct recruits as party respondents thereto. In that Writ Petition also, the reliefs, which are similar to present Writ Petitions, were prayed for. This Court required the petitioners to implead the directly recruited officers as parties thereto.
Instead of , however, agreeing to comply with the directions of the High Court the petitioners sought recusal of that Bench and prayed for listing of the case before another Bench. The said prayer was rejected by this Court by describing the same as highly improper. This clearly shows that the petitioners were indulging in forum shopping and bench hunting.
Pursuant to observations passed by the Full Bench of this Court on 15.09.2015 in CWP No. 696/2010, the H.P. Judicial Service Officers Association filed CMP No. 10908/2015 seeking to implead direct recruits as respondents to the said Writ Petition. However when the matter was taken up by the Full Bench on 21.10.2016, the H.P. Judicial Service Officers ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 59 Association sought permission to withdraw the CMP No. 10908/2015. Such a prayer was declined. It was thereafter that .
when the CWP No. 696/2010 was listed before the Full Bench on 28.10.2016, the petitioners sought time to move an application for withdrawal of the Writ Petition itself.
However, no application was filed seeking withdrawal of the Writ Petition but finally when the matter was listed before this Court on 04.11.2016, the aforesaid CWP No. 696/2010 was got dismissed as being unconditionally withdrawn and without any liberty being reserved in favour of the petitioners to file fresh Writ Petition. Such conduct of the Association of Judicial Officers and its members, despite the fact that the Supreme Court by specific order dated 14.07.2016 relegated them to work out their remedy in CWP No. 696/2010, disentitles them to any relief in the present matter. It was in view of these facts that the Supreme Court vide order dated 13.03.2018 disposed of the I.A. No. 334/2009 declining to entertain the I.A. any further leaving the parties to have resort to such remedies as may be available to them in law. Even at the time of passing of this order, the present petitioners did not disclose to ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 60 the Hon'ble Supreme Court that CWP No. 696/2010 for the same reliefs had been dismissed as unconditionally withdrawn .
on 04.11.2016. Even if the Supreme Court while declining to interfere in the matter in the scope of I.A. No. 334/2014, in its order dated 13.3.2018, left the parties to work out their remedy as may be available to them in law, this will not preclude the respondents from objecting to maintainability of the Writ Petitions on valid grounds. In order to buttress this argument, reliance is placed on the judgment of the Supreme court in Asgar and others versus Mohan Verma and others reported in (2020) 16 SCC 230.
48. Learned Senior Counsels appearing on behalf of the private respondents argued that the stand of the petitioners that they were not members of the H.P. Judicial Service Officers Association and therefore had nothing to do with CWP No. 696/2010 filed by the said Association, and further that unconditional withdrawal of the said Writ Petition cannot directly affect them, is liable to be rejected.
The petitioners never ceased to be members of the said Association which had filed aforementioned Writ Petition for ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 61 benefit of its members which also included the petitioners.
Learned Senior Counsels in this behalf referred to the .
pleadings and other records, which shall be discussed at the appropriate place hereinbelow.
49. We have given our thoughtful consideration to the rival submissions, carefully examined the records and respectfully studied the cited precedents.
ANALYSIS: r
50. We shall first of all examine the question whether orders passed by the Supreme Court in different I.As and this Court in various Writ Petitions would have a bearing on the present Writ Petitions. Argument of the petitioners that they not being the members of the H.P. Judicial Service Officers Association, the orders passed in the Writ Petitions and Interlocutory Applications filed by such Association and some of its members, would not bind them, is noted to be rejected for the stated reasons. Respondents No. 3 to 6 in their reply to the Writ Petition No. 2292/2018 filed by petitioner Rajeev Bhardwaj categorically asserted that the petitioner was a member of H.P. Judicial Service Officers Association. The ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 62 petitioners failed to satisfactorily substantiate the plea in the rejoinder that the District Judges/Additional District Judges .
and Presiding Officers of the Fast Track Courts had formed a separate Association named H.P. Judicial Officers Association.
He has merely contended that the member of the said new Association disassociated themselves from the earlier Association and that the petitioner was about to apply for his impleadment in that Writ Petition but before that could be done, it was withdrawn. He disassociated himself from the activities of the Union after he became Presiding Officer of the Fast Track Court in 2008. The petitioners failed to substantiate the plea in the rejoinder that the District Judges, Additional District Judges and Presiding Officers of Fast Track Courts had formed a separate Association named "The H.P. Judicial Officers Association", and have merely contended that members of the said new Association had disassociated themselves from the earlier Association. The petitioners could have ceased to be members of the HP Judicial Service Officers Association only if they had resigned from the membership of the said Association and not otherwise. None of the Judicial ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 63 Officers, including the petitioners, have been able to show that they withdrew from membership of the said Association. D.K. .
Sharma, General Secretary of the Association, in his letter dated 15.08.2006 to the Registrar General of the High Court, merely stated that they had disassociated from the aforesaid Association. The petitioners withheld from this Court that on 02.12.2006, D.K. Sharma himself addressed a letter to the Registrar General that "Therefore, the matter regarding recognition of the Association may kindly be kept pending for the time being". After 02.12.2006, however, the matter regarding grant of recognition to the newly formed HP Judicial Officers Association was never revived or pressed till date. It is a matter of record that no other Association has been formed nor granted any recognition. The record would also reveal that even before the Supreme Court the petitioners accepted that CWP No. 696/2010 was filed by HP Judicial Service Officers Association in a representative capacity and for the benefit of the petitioners as well, which would be evident from I.A. No. 334/2014 filed by both the petitioners, namely, S.C. Kainthla and Rajeev Bhardwaj alongwith J.K. Sharma, wherein the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 64 Supreme Court passed a conscious order on 14.07.2016 taking note of the fact that identical prayer is subject matter of .
consideration in CWP No. 696/2010, supra and observed that the parties should be relegated to work out their remedy in the said Writ Petition and await outcome of the same. The petitioners therefore, cannot be allowed to contend that they would not be bound by the previous order passed by the Supreme Court and this Court in Writ Petitions and I.As filed by their Association.
51. The Supreme Court in para 40 of the 2002 judgment of All India Judges Association case, supra, while holding that any clarification in respect of any matter arising out of this judgment will be sought only from it, observed that "no other court shall entertain them". Therefore, as per para 40 of the said judgment, the Supreme Court itself specifically allowed the HP Judicial Officers Service Association and its members, which includes the petitioners as well, to approach this Court under Article 226 of the Constitution of India for adjudication of their claims. After the Supreme Court refused to entertain Writ Petition {WP (C) No. 532/2009} directly filed ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 65 before it, permitting the petitioners to withdraw the Writ Petition with liberty to approach the High Court, the .
Association along with some of its members filed CWP No. 696/2010 in March, 2010, for the benefit of the petitioners and other officers claiming the same relief and on the basis of same grounds, which have been claimed/raised in the present Writ Petitions. When during the pendency of the said Writ Petition, I.A. No. 334/2014 came up before the Supreme Court on 14.07.2016, the Supreme Court again specifically directed so by relegating the petitioners including S.C. Kainthla, Rajeev Bhardwaj and J.K. Sharma, to workout their remedy in the said CWP No. 696/2010. However, the petitioners did not avail of that remedy. The Full Bench of the High Court directed the petitioners to implead the directly recruited candidates as parties. Initially the petitioners filed application for their impleadment but later sought recusal of the Bench. When such prayer was declined, the petitioners rather unconditionally withdrew CWP No. 696/2010, which was dismissed as withdrawn vide order dated 04.11.2016 by this Court.
Unconditional withdrawal of the Writ Petition by the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 66 petitioners would therefore preclude them from again invoking writ jurisdiction of this Court as permission granted to them to .
workout their remedy in the aforementioned Writ Petition by order of the Supreme Court dated 04.12.2009, followed by order dated 14.07.2016, was not availed of by them. It is settled proposition of law that once Writ Petition is withdrawn unconditionally, without any liberty being reserved to the petitioners to again file a fresh Writ Petition under Article 226 of the Constitution of India, for invoking writ jurisdiction of the High Court, new Writ Petition would not be maintainable and would be liable to be dismissed.
52. The Supreme Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior, and others (1987) 1 SCC 5 held that where a petitioner withdraws a petition filed by him in the High Court under Article 226/227 without permission to institute a fresh petition, remedy under Article 226/227 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the Writ Petition and it would not be open to him to file a fresh petition in the High Court under the same article, though ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 67 other remedies like suit or Writ Petition before Supreme Court under Article 32 would remain open to him. It was held that .
the principle underlying Rule 1 of Order XXIII of the CPC should be extended in the interest of administration of justice to cases of withdrawal of Writ Petition also. The principle underlying that provision is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subjectmatter again after abandoning the earlier suit or by withdrawing it, without the permission of the Court to file fresh suit. This principle is founded on the public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code. The Supreme Court further held that it would discourage the litigant from indulging in benchhunting tactics and there are no justifiable reasons in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 once again.
53. The Supreme Court in Sarguja Transport Service case, supra, while examining the principles of public policy ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 68 envisaged under Order XXIII Rule (1) of the Code of Civil Procedure, held as under :
.
"8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao and others vs. The State of U.P. and others,1962 2 SCR 575 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:
"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 69 Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are .
confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in benchhunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 70 a fresh writ petition was not maintainable before it in respect of the same subjectmatter since the earlier writ petition had been withdrawn without permission to file a .
fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."
54. The question about applicability of Order XXIII Rule (1) to the writ jurisdiction again cropped up before the Supreme Court in Upadhyay & Company vs. State of U.P. and others, (1999) 1 SCC 81. Therein also it was held that the withdrawal of a Writ Petition filed in the High Court without the permission to file a fresh Writ Petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India, but the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied in the Writ Petition when he withdraws it without such ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 71 permission. The relevant discussion to be found in para 13 of the said judgment is reproduced as under :
.
"13. The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of public polity applicable to jurisdiction under Article 226 of the Constitution (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, 1987 1 SCR 200). The reasoning for adopting it in writ jurisdictionis that very often, it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again. The following observations of E.S.Venkataramiah, J. (as the learned Chief Justice then was) are to be quoted here:
"We are of the view that the principle underlying Rule 1 of Order 23 of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 72 from indulging in benchhunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction .
of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been r abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission."
55. Yet another case in which the controversy at hand was examined by the Supreme Court is that of Sarva Shramik Sanghatana (KV) vs. State of Maharashtra and others, (2008) 1 SCC 494, wherein also the Supreme Court placed reliance on the principle enunciated in Sarguja Tranport's case (supra) but held that the facts of that case were distinguishable as the court in that case was dealing with an application of the petitioner company filed under Section 25O (1) of the Industrial Disputes Act which was withdrawn reserving its right to move fresh application as and when necessary and ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 73 hence in the background of such facts, the Court found that the withdrawal by the petitioner for trying to arrive at an .
amicable settlement with the workers was a bona fide exercise on the part of the petitioner and it was not a case of bench hunting. The principle of law enunciated in Sarguja Transport's case was thus distinguishable. However, the Supreme Court, after quoting paras 8 and 9 of the judgment of the Sarguja Transport's case, supra reiterated the same principle of law in para 12 of the said judgment:
"12.xxxxxx xxxxxx We are of the opinion that the decision in Sarguja Transport case (supra) has to be understood in the light of the observations in paragraphs 8 & 9 therein, which have been quoted above. The said decision was given on the basis of public policy that, if while hearing the first writ petition the Bench is inclined to dismiss it, and the learned Counsel withdraws the petition so that he could file a second writ petition before what he regards as a more suitable or convenient bench, then if he withdraws it he should not be allowed to file a second writ petition unless liberty is given to do so. In other words, benchhunting should not be permitted.
13. It often happens that during the hearing of a petition the Court makes oral observations indicating that it is inclined to dismiss the petition. At this stage the counsel may seek withdrawal of his petition without getting a verdict on the merits, with the intention of filing a fresh petition before a ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 74 more convenient bench. It was this malpractice which was sought to be discouraged by the decision in Sarguja Transport case (supra)."
.
56. The Supreme Court again in Ramesh Chandra Sankla and others vs. Vikram Cement, (2008) 14 SCC 58 after referring to the principles of law laid down in the previous judgment in Sarguja Transport, supra and Sarva Shramik, supra, held as under :
"61.From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a Court of Law would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start fresh round of litigation and the Court will not allow him to reagitate the claim which he himself had given up earlier."
57. The Supreme Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and others (1997) 2 SCC 534, while dealing with the similar question held as under : "13. The High Court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 75 petition in first instance but withdrew the same without permission of the Court with liberty to file the second writ petition which was dismissed. Therefore, the second writ .
petition is not maintainable as held by the High Court in applying the correct principle of law."
58. The Delhi High Court in Delhi Judicial Service Association Thr. Its President Vinod Kumar DHJS & Anr.
versus High Court of Delhi through its Registrar General and others, 2013 (137 DRJ 523 (DB) while dealing with the similar case noted that the petitioner association had unconditionally and without any demur withdrawn their Writ Petition. The subsequent Writ Petition was for identical reliefs and based on the same cause of action. Some of the judicial officers, including petitioner No. 2 belonging to Delhi Judicial Service had independently filed a Writ Petition before the Supreme Court, which was dismissed as withdrawn with liberty to move the High Court. The petitioner No. 2 in that case was also the petitioner before the Supreme Court. It was held that the petitioner association could not be permitted to file fresh petition.
::: Downloaded on - 14/03/2022 20:11:28 :::CIS 7659. Even if the Supreme Court while declining to entertain the I.A No. 334/2014, vide order dated 13.3.2018, .
observed that the parties may resort to such remedies as may be available to them in law, the respondents would not be precluded from raising all such arguments, which may be available to them in law, including objections as to the maintainability of the Writ Petitions. The reliance placed by the respondents in support of this argument on the judgment of Asgar and others case (supra) appears to be well placed. In that case, the appellants being stranger to the decree passed in the respondent decreeholders' partition suit, filed an application in execution proceedings seeking declaration of entitlement to possession as lessees. Such application travelled up to the Supreme Court where it was observed that the appellants were free to pursue remedy of compensation for improvements "in accordance with law". The appellants therefore, filed subsequent application for compensation for improvements under Section 151 CPC. Respondentdecree holders contended that the application is barred by the principle of res judicata. The Executing Court upheld that ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 77 argument. The High Court also upheld the order of the Executing Court by holding that the application was barred by .
the principle of res judicata as the claim of compensation for improvements had not been raised in the proceedings against dispossession by the respondent decreeholders. Before the Supreme Court, it was submitted that under Section 4 (1) of the Kerala Compensation for Tenants Improvements Act, 1958 they are entitled to r possession until adjudication of compensation. The issue before the Supreme Court was whether the claim of compensation could and should have been asserted in earlier proceedings. Dismissing the appeal, the Supreme Court held that the claim sought for by the appellants in present case is intrinsically related to the claim asserted in earlier round of proceedings. The appellants could and ought to have asserted this issue earlier. Hence, it was held that the appellants were barred by the principles of constructive res judicata from raising the claim for compensation in the subsequent execution proceedings. An argument was made by the appellant that since the claim of compensation was raised by them pursuant to liberty granted ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 78 by the Supreme Court to pursue remedy in accordance with law, such objection would not be available. Rejecting the .
argument, the Supreme Court held that the grant of such liberty does not deprive the other party to raise necessary defences for invocation of remedy.
60. Discussion made in earlier part of this judgment would clearly show that the Supreme Court, vide its order dated 28.04.2016 passed in I.A. No.334/2014, directed the High Court to work out and place before it the report showing the manner in which 34 point roster would be acted upon by applying Rule 13 of the Rules of 2004 with effect from 31.03.2003. However, at the end of the order, the Supreme Court also observed that "We make it clear and reiterate that we only want the outcome of such exercise to be placed before this Court before passing further orders as to its implementation." The twoJudgecommittee therefore strictly in conformity with the mandate of the Supreme Court in its order dated 28.04.2016 worked out the implementation of the Rules of 2004 with effect from 31.03.2003 and submitted its report in September, 2017, which was approved by the Full ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 79 Court of the High Court vide resolution dated 21.09.2017. The report of the twoJudge Committee has to be therefore .
appreciated in the context of the orders of the Supreme Court.
In fact, in Chapter 2B of the report, the twoJudgecommittee clearly observed in paras 57 that there may be many officers who would be adversely affected in view of this exercise and that direct recruits will have opportunity to advance their case before the Supreme Court if an order as to implementation of the report is passed by it. Thus, not only in the report of the Committee but resolution of the Full Court also, it was clearly observed that arguments of the direct recruits have not been considered in preparation of the report in view of specific direction of the Supreme Court in its order dated 28.04.2016.
The Supreme Court in that very order had clarified that the High Court was to merely place before it the outcome of such exercise, which shall be considered by them for passing further order for its implementation. Therefore, the said report remained tentative and was not implemented. This explains why the Supreme Court, while disposing of I.A. No.334/2014 vide order dated 13.03.2018 did not give any direction with ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 80 regard to its implementation. No benefit, therefore, can be derived by the petitioners from such report. In view of these .
facts, when I.A. No.334/2014 came up before the Supreme Court, their Lordships vide order dated 13.3.2018 ultimately declined to interfere in the matter by observing that "....we are of the view that the parties should be relegated to work out their remedy in the said writ petition and await the outcome of the said writ petition."
61. Relied order of the Supreme Court dated 28.04.2016 was virtually overwritten by its subsequent order dated 14.07.2016, whereby the Supreme Court relegated the petitioners to workout their remedy in CWP No. 696/2010 pending before this Court and directed them to await the outcome of said Writ Petition. Argument of the petitioners for implementation of order dated 28.04.2016 cannot be countenanced also because that order finally stood merged in the final order dated 13.03.2018 disposing of the I.A. No. 334/2014. Without giving effect to the said report/exercise undertaken by the Committee, as their Lordships were of the view that the seniority dispute inter se between two groups ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 81 cannot be entertained in the scope of Interlocutory Application.
The Supreme Court therefore declined to entertain I.A. No. .
334/2014 leaving the parties to resort to such remedy as may be available to them in law.
62. The Supreme Court in Kalabharati Advertising versus Hemant Vimalnath Narichania and others (2010) 9 SCC 437, succinctly summarized the legal position of the interim order passed in a proceedings under Article 226 of the Constitution, after dismissal/withdrawal of the main proceedings. Their Lordships held that no litigant can derive any benefit from mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. It was held that once the basis of a proceeding is gone, all consequential acts, action, orders would fall to the ground automatically. Similar question came up for consideration before the Supreme Court in Shipping Corporation and India Ltd vs. Machado Brothers and others (2004) 11 SCC 168. In that case, it was held that interlocutory orders are made in aid of final orders and not ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 82 vice versa. No interlocutory order will survive after the original proceeding comes to an end.
.
63. It would be pertinent to recapitulate that the report of twoJudgecommittee constituted pursuant to consent order passed by this Court 18.04.2005 in CWP No.61/1999, observed that "If the plea of the representationists is accepted then till 7 persons from this quota meant for accelerated promotion are appointed, no person from either direct recruits or promotion on normal basis can be appointed as Additional Judge. This will create havoc in the judicial system...." It was further observed that the rules have to be harmonized and read in such a manner as to do justice to all. Aforementioned report of the Committee was approved by the Full Court and was never challenged by any of the parties on judicial side, despite specific liberty reserved to them by judicial order dated 18.04.2005. In addition to above, it was clearly observed that at the time when the Rules of 2004 came into force, there were not many eligible officers for appointment by way of LCE and it was resolved to fill five posts available for LCE through promotion from amongst the eligible judicial officers. However, ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 83 the seniority and appointment of direct recruits already appointed till then, was protected since admittedly they had .
been appointed in accordance with the Rules in force at earlier point of time. Thereafter, another threeJudgecommittee constituted to scrutinize the roster, total strength of District/Additional District Judges in each category, in its report dated 10.09.2009, which was accepted by the Full Court of the High Court on 14.09.2009, observed that no LCE was held till 2009 but the officers belonging to the cadre of Civil Judge (Sr.Div.) did not in any manner suffer because the quota of LCE was given to the promotees on the basis of seniority. It was thereafter that a third Committee was constituted with regard to filling up of vacant/anticipated vacancies during the year 201011 and from which source the same were to be filled.
The said Committee submitted its report dated 30.03.2010 which was accepted by the Full Court of the High Court.
Neither the said reports nor the resolutions of the Full Court were ever challenged by any of the parties.
64. The argument of appointments of direct recruits having been made in excess of the cadre strength, has been ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 84 repeatedly raised through the H.P. Judicial Service Officers Association, of which the petitioners are also members. In this .
respect, the Association made representation on 28.07.2007 and 02.09.2007, both of which were rejected by the High Court on 18.01.2008. Thereafter the Association again made representation on 27.07.2009, which was also rejected by the High Court on 07.09.2009. None of the orders of rejecting the representations has been challenged by the petitioners or their Association on judicial side. In fact, Rajeev Bhardwaj, petitioner in CWP No.2292/2018, also submitted several representations, first of which was rejected by the High Court on 18.1.2008. He then submitted another detailed representation dated 27.04.2010 against gradation list as it stood on 01.01.2010. As per his own admission, the aforesaid representation based on the same ground was rejected by the High Court vide communication dated 09.09.2010. But this rejection was never subjected to challenge by the petitioner till date. Similarly, J.K. Sharma also made several representations dated 09.02.2011, 11.02.2011, 17.09.2011, 03.12.2011, 21.02.2012 and 01.03.2012 on the same grounds, ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 85 which were duly considered and rejected by the High Court on administrative side. No challenge was ever made to rejection of .
the representations by anyone of them. Most importantly threeJudgecommittee framed a "Draft Post Based Roster" on 05.12.2012 in line with the mandate of the Supreme Court in 2002 judgment of All India Judges Association case, supra, which was later approved by the Full Court of the High Court in its meeting held on 11.12.2012. The said report and resolution have never been challenged by any of them on judicial side. Even though S.C. Kainthla, petitioner in CWP No. 2061/2018, and Rajeev Bhardwaj, petitioner in CWP No. 2292/2018, were appointed long time ago as ADJs respectively on 26.12.2006 and 27.10.2009, in the cadre of District Judge, but, they failed to challenge the seniority lists notified from time to time, from 2005 till date. They cannot be now permitted to question correctness of the gradation list prepared by the High Court without challenging all the aforementioned seniority lists, reports of different Committees and resolutions passed by the Full Court of the High Court. In view of above, the petitioners cannot be permitted to unsettle ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 86 the settled seniority since 2005 at this distance of time, particularly when they had opportunity to challenge them and .
also the appointments of the respondents at the earliest available opportunity and claim the reliefs. In fact they filed similar Writ Petition and unconditionally withdrew the same.
The Writ Petitions are therefore liable to be dismissed on the ground of conduct of the petitioners as well as by their waiver and acquiescence.
65. It is significant to note here that the Full Court of the High Court vide resolution dated 27.7.2010 while accepting the report of the two Judge Committee dated 23.7.2010 to incorporate the amendments in the Rules of 2004 also proposed for addition of Note No. 3 below the rules relating to seniority that the appointment already made shall not be affected on account of introduction of the new roster in Column No. III of the table annexed with the report. The Full Court again considered this aspect on 7.11.2012 and then a decision was taken to constitute a three Judge Committee which in its report dated 5.12.2012 proposed 34 point roster for direct recruits. The Full Court in its meeting held on ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 87 11.12.2014 accepted the draft of the 34 point roster with direction to the Registry to ensure that in future 5 th vacancy .
shall be given to Scheduled Tribe category. It was thereafter that the State Government substituted the existing table under Rule 5 of Rules 2004, vide notification dated 14.6.2016 thereby adding ExplanationII alongwith Note No. 3 by providing that the appointment to the cadre of District Judges/Additional District Judges shall be in accordance with post based 34 points roster to be maintained by the High Court in this behalf. Note 3 below Explanation clearly provides that the appointment already made shall not be affected on account of introduction of new roster. Apparently, the aforesaid amendment has been made taking into consideration the peculiar situation arising after the already made recruitments in the cadre of District Judges/Additional District judges of the State by all the three streams prior to actual introduction of 34 point posts based roster. The High Court, therefore, took a conscious decision that the appointments already made in respect of their seniority shall not be affected on account of introduction of new roster. The ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 88 State Government accordingly amended the Rules in terms of the above. The aforesaid rule position has continued in the .
Rules of 2004 since then and has not been challenged by any of the petitioners or by any other officer as per procedure known to law. This was obviously one time deviation aimed at protecting seniority of those officers recruited directly up to 2009, in excess of quota of direct recruitment as well as those promoted against the quota of LCE when sufficient number of eligible Senior Civil Judges with experience of five years were not available.
66. The contention that the recruitment and consequential appointment of respondents having been made to subsequent to rules of 2004, should be treated to have been made on the basis of the draft rules, cannot be countenanced.
Relied judgments of Gujarat Kishan Mazdoor Panchayat and Delhi Judicial Services Associations cases (supra) are distinguishable on facts. Moreover, this aspect of the matter has been fully explained by the Supreme Court in later judgment reported in V. Ramakrishan (supra) wherein it was held that a rule does not become inoperative till the new rules ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 89 were given effect to and that no promotion to the post of Chief Engineer could be effected in derogation to the criteria .
prescribed under the existing Rules. Valid rules made under proviso appended to Article 309 of the Constitution operate so long the old rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary are holding the field. In view of this, the argument that since draft rules of 2004 were already in process of being notified, the appointment of respondent No. 3 Sh. S.C. Kainthla should be deemed to have been made on the basis of draft rules, cannot be countenanced.
So far as holding of examination for recruitment is concerned, such decision was taken by the Full Court of the High Court which even otherwise was competent to do so regardless of prescription made in the Rules of 1973.
67. All the four private respondents having been appointed in accordance with the Rules of 2004 and the petitioners having not challenged their appointment at the relevant time, the spacious plea that their appointment should be treated as adhoc till vacancies become available in ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 90 the quota of direct recruitment, is liable to be rejected. The indigenous argument coined as extension of that plea that .
their seniority should be pushed down till availability of vacancy in the quota of direct recruitment is therefore liable to be rejected. Respondents cannot be blamed for their appointment as the exercise of the direct recruitment was consciously undertaken by the High Court on administrative side. Undisputedly, respondents No. 3 to 6 applied in response to the vacancies duly advertised by the High Court. They competed along with several other candidates who had applied for such direct recruitments. Their appointment, therefore, cannot be held to have been made dehors the rules.
Respondents No. 3 to 6 after such appointment have been continuously rendering their services, therefore, their appointment, in any way cannot be treated as ad hoc or stop gap arrangement on the post which they were holding. This position is reinforced from the proviso to Rule 13 (1) of the Rules of 2004 which provides that "no person appointed to a cadre by direct recruitment shall for the purpose of fixation of his seniority claim any particular place in seniority ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 91 unconnected with the date of his actual appointment."
Therefore, the incumbents appointed by direct recruitment by .
recourse to procedure envisaged in the relevant rules, cannot be assigned seniority unconnected with the date of their actual appointment as application of the analogy of pushing them down in seniority would in fact actually result in pushing them out of seniority. Such analogy cannot be applied to directly recruited incumbents in the way it can apply to promotees.
68. All the judgments relied upon by the learned Senior Counsel on behalf of the petitioners to argue that the appointment made in excess of quota are liable to be treated ad hoc till availability of the vacancies in such quota arose out of dispute of promotions made in excess of quota and therefore, in those judgments promotees were ordered to be treated ad hoc till availability of vacancies in their quota. Being distinguishable on facts, ratio of all those judgments would not apply to the present matters. In fact, the ratio of the Constitution Bench of the Supreme Court in Direct Recruit Class II Engineering Officers' Association (supra) would squarely apply to the facts of the present case. The supreme ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 92 Court in subpara (A) of para 47 of the judgment clearly held that once an incumbent is appointed to a post according to .
rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
Also it was held in sub para (E) of the said para that where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. Furthermore, in para (F) it was held that where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
69. Undoubtedly, petitioner Rajeev Bhardwaj, was promoted through the mode of LCE on 27.10.2009 and petitioner S.C. Kainthla was promoted to the post on 26.1.2006. As far as respondents No. 3 to 5 are concerned, they were appointed much prior to both of them. The question ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 93 therefore is whether the petitioners can claim seniority earlier than the date of appointment of respondents No. 3 to 5. Doing .
so would tantamount to providing them seniority retrospectively earlier than the date of their actual promotion.
The Supreme Court in Ganga Vishan Gujrati and others vs. State of Rajasthan and others (2019) 16 SCC 28 after relying on several previous judgments, including the Constitution Bench judgment in Direct Recruit ClassII Engineering Officers Association's case (supra) held that a consistent line of precedent of the Supreme Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not born in the cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. It is trite that any claim of seniority with reference to the date of accrual of vacancy is unfounded in service jurisprudence.
70. A three Judge Bench of the Supreme Court in K. Meghachandra Singh's case, supra overruled the judgment of the two Judge Bench in N.R. Parmar's case (supra) by holding that in that case the OM dated 7.2.1986 of the Central ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 94 Government was not correctly interpreted as the Court did not properly consider the purport of the subsequent .
clarificatory OM dated 3.3.2008. General principle of law is that a direct recruit cannot get backdated notional seniority earlier than he joined service. N.R. Parmar's case, insofar as it confers backdated seniority with reference to initiation of recruitment process, is not sustainable in law. However, the Supreme Court in this case protected the inter se seniority which was already fixed by applying the ratio of N.R. Parmar's case and the Central Government OM dated 04.03.2014 thereon. By overruling the judgment of N.R. Parmar's case supra, this judgment protected the seniority already assigned.
In any case, seniority cannot be claimed as fundamental right but it is merely a civil right. The petitioners therefore cannot be permitted to unsettle the settled seniority of Higher Judicial Service, which is prevailing in the judiciary of the State of H.P., since 2005.
71. The High Court of Andhra Pradesh in B.S. Jag Jeevan Kumar versus High Court of Judicature at Hyderabad for State of Telangana and State of Andhra Pradesh, ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 95 Hyderabad, rep. by its Registrar (Vigilance) 2017 SCC OnLine Hyd. 709 was dealing with the similar question with regard to .
assignment of seniority in the cadre of district Judges. The petitioner in that case claimed seniority in the service rendered on temporary basis. He filed objections to the provisional seniority list contending that the seniority list has been prepared in contravention of the principles laid down in para 29 of the 2002 judgment of the Supreme Court in All India Judges Associations' case. Name of the petitioner was not included in the seniority list for 2010 but his name was included in the list for the year 2012 because he was appointed on regular basis under the 65% quota reserved for promotion to the post of District Judges on 5.12.2012. Thus, earlier service rendered by the petitioner was not counted for the purpose of seniority. This would have amounted to giving him seniority earlier than he was born in the cadre. The High Court in paras 17 and 20 held as under:
"17. At the outset, it should be pointed out that there is a fallacy in the contention of the petitioner. If persons recruited by 3 different methods of recruitment are to be accommodated in the 40point roster irrespective of the year of recruitment, then a person may gain seniority over and above another ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 96 person who was appointed 2 years earlier and on which date the former was not even born in the service. It is now well settled that no person can claim seniority with effect from a .
date on which he was not even born in the service. If the contention of the petitioner is accepted and he is placed at serial No.3 against roster point No.3 in the 1st cycle of the roster, then the petitioner will be gaining seniority over persons appointed in the year 2010, despite the fact that the petitioner was appointed in the year 2012. This is not the purport of the decision of the Supreme Court in All India Judges Association case. This is not also the purport of Rule 13(a).
18 & 19. xxxxxx xxxxxxxxx
20. Accommodating the petitioner against the first available roster point in the first cycle, irrespective of the year of his appointment, would result in two absurd consequences, namely, (a) giving seniority with effect from a date before the date on which he was born in the service and
(b) giving seniority to a person even before the vacancy under that particular stream arose."
72. The Supreme Court in Dinesh Kumar Gupta and others versus High Court of Judicature of Rajasthan and others 2020 SCC OnLine SC 420 was dealing with a case of inter se dispute of seniority amongst direct recruits, and promotees, i.e., regular and those promoted through LCE. In that case, new rules after All India Judges Association's case judgment came into force in 2010 and thereafter the process of ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 97 direct recruitment commenced by notification dated 15.4.2010 which was cancelled and after fresh determination of the .
vacancies was undertaken, a new Notification dated 31.3.2011 for direct recruitments was issued. Argument was made by direct recruits that 47 Judicial Officers promoted to the cadre of District Judges could not be en block assigned higher seniority without applying the cyclic order/roster system.
Rejecting that argument, the Supreme Court held that it is not the contention of anyone that appointment of the 47 Judicial officers on the relevant date was either beyond the quota meant for regular promotion or that there was any serious infirmity in the process or that any of the candidates was completely ineligible. Since there was a difference of more than 3 years between the promotions of these 47 officers and direct recruitment, the High Court rightly concluded that the Cyclic Order ought not to get attracted. Further argument was made that subsequent recruitment process which commenced by notification dated 26.4.2015 with regard to vacancies of the four years, i.e., 2012201320132014, 20142015 and 2015 2016 should also be subjected to the Cyclic order with respect ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 98 to vacancies in respect of each year for the purpose of assigning of the seniority as per roster. The stand of the High .
Court was that 207 vacancies of all these four years for the purpose of operating the roster system should be taken as the vacancies of the year 20152016 and earlier three years for that purpose should be treated as zero recruitment years to make Rule 42 of the relevant Rules workable. Repelling the argument of the petitioners, the Supreme Court while observing that a pragmatic view has to be taken in the matter, upheld the stand of the High Court with the following observations:
"41..... It is true that the Cyclic Order and the quota for different streams ensure equitable treatment for three sources.
However, the application of the Cyclic Order must depend upon the fact situations. It was precisely for this reason that the expression "as far as possible" has been used in the Rule.
Other things being equal, certainly the quotas for different streams and the Cyclic Order must be adhered to. However, if such adherence itself is going to cause incongruous situation and inflict incalculable harm, insistence upon applicability of the Cyclic Order in such cases may not be appropriate. The expression "as far as possible" was, therefore, relied upon by this Court in Para 34 of its decision in Veena Verma. It would also be instructive to refer to a decision of this Court in State ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 99 of M.P. v.Narmada Bachao Andolan and Another26, where the expression "as far as possible" was explained: ""As far as possible"
.
38. The aforesaid phrase provides for flexibility, clothing the authority concerned with powers to meet special situations where the normal process of resolu tion cannot flow smoothly. The aforesaid phrase can be interpreted as not being prohibitory in nature."
73. The Supreme Court in High Court of Judicature at Allahabad through Registrar General versus State of Uttar Pradesh and others (2018) 15 SCC 439 while dealing with the dispute of seniority of the promotes and direct recruits held that quotarota rule is undoubtedly mandatory requirement but its applicability is to be adjudged in peculiar fact situation of each case. If it becomes impracticable to act upon a rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. It should be given practical interpretation. In that case, no suitability test for promotion as mandated was conducted till 2008. Besides, in absence of determination of vacancies, seniority of promotees also could not be fixed. Thus, application of rota rule would prejudice promotes. Interference by High Court with seniority ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 100 given to promotees above direct recruits without following rota rule was held to be unsustainable. The relevant observations .
of the Supreme Court found in para 30 are reproduced as under:
"30. With regard to the QuotaRota rule, there is no doubt that this is a mandatory requirement of the Rules. The said requirement has however to be seen in the peculiar fact situation. The issue of determination of vacancies was embroiled in continuous litigation. The QuotaRota rule could not be applied in the absence of determination of vacancies. The suitability test though validly laid down could not be held till 2008 for reasons already noted. No promotion could be given in absence of suitability test. The rule provided for seniority of the promotees to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees.
Thus, the Rules will have to be given pragmatic interpretation. As laid down by this Court in Direct Recruit ClassII Engineering Officers' Association versus State of Maharashtra, if it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to be given a practical interpretation. Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained."::: Downloaded on - 14/03/2022 20:11:28 :::CIS 101
74. In Anand Kumar Tiwari and others versus High Court of Madhya Pradesh and others 2021 SCC OnLIne SC .
578, one the writ petitions, being WP (C) No. 997 of 2020, was filed by the petitioner who was appointed as District Judge by direct recruitment on 27.5.2008, He submitted representation on 02.08.2010 and thereafter on 31.5.2014 for determination of his seniority as per 40 points roster as per 2002 judgment of the Supreme Court in All India Judges Association's case (supra). His representation was rejected by the High Court on 11.09.2019 on the ground that the rules in compliance with the direction of the supreme Court in that judgment, namely the M.P. Higher Judicial Services (Recruitment and conditions of Service) Rules, 2017, were notified on 13.3.2018 and such Rules are prospective in operation. The petitioner was therefore informed that 40 point roster for determination of inter se seniority of the District Judges shall be implemented after 13.3.2018. As for delay in amending the rules in conformity with the judgment of All India Judges Association's case (supra), the stand of the High Court before the Supreme Court was that its Administrative Committee had to defer the matter ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 102 pertaining to amendment/framing of the new Rules in view of the pendency of the Special Leave Petition against the .
judgment of the Madhya Pradesh High Court wherein proviso to Rule 5 (1) (b) of earlier Rules of 1994 was declared ultra vires. The meetings of the Administrative Committee were held on 4.11.2016, 3.12.2016 and 28.2.2017 but no decision could be taken due to pendency of the Special Leave Petition and finally 2017 Rules were framed and notified on 13.03.2018. Even though the Supreme Court did not approve of the reasons of delay given by the High Court in framing of the new rules but at the same time, also rejected the prayer of the petitioner for giving retrospective effect to the rules of 2017. Argument of the petitioner was that the High Court was required to introduce the 40 points roster system for determining inter se seniority of the District Judges w.e.f. 31.03.2003 and the delay that occurred cannot be detrimental to the interest of directly recruited District Judges and therefore, the seniority of District Judges has to be redetermined on the basis of roster by retrospective effect being given to 2017 rules. Repelling the ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 103 aforementioned argument, the Supreme Court in para 9 of the judgment held as under:
.
"9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges' Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shukla's case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on
14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect.
According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges' Association (supra) case.
75. It would be therefore, evident from the aforediscussed judgments of the Supreme Court that even though the direction in 2002 judgment in All India Judges Association's case (supra) to frame/amend the rules so as to incorporate the roster system for giving seniority was belatedly ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 104 implemented w.e.f. 13.3.2008, yet the Supreme Court declined to interfere and rejected the prayer of the petitioner for giving .
retrospective effect to Rule 11 (1) of the said Rules which provided for giving seniority in cyclic order as per the roster system. To use the words of the Supreme Court in Dinesh Kumar Gupta's case (supra), if adherence to cyclic order itself is going to cause incongruous situation and inflict incalculable harm, insistence upon applicability of the cyclic order in such cases may not be appropriate.
As would be evident from above referred to judgments, deviation from the schedule for enforcing the amended rules and applying the cyclic order of seniority as per roster point according to direction in the All India Judges Association's case has not been interfered with by the Supreme Court in matters coming from different High Courts.
Conclusion:
76. In view of above analysis of rival submissions, we are not persuaded to interfere in the matter. Both the writ petitions are therefore dismissed with no order as to costs.
( Mohammad Rafiq ) Chief Justice ( Sabina ) Judge March 11, 2022 ( cm Thakur/rajni) ::: Downloaded on - 14/03/2022 20:11:28 :::CIS 105 .
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