Karnataka High Court
Sri. Pavanesh D vs The State Of Karnataka on 19 July, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.4046 OF 2020 (S-RES)
BETWEEN:
1 . SRI. PAVANESH D.
S/O LATE SURESH D.,
AGED ABOUT 39 YEARS,
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
KOLAR (TO SIT AT KGF)
KOLAR GOLD FIELDS-563 115.
2 . SRI. H. J. MARULASIDDARADHYA
S/O JAYAMANGALARADHYA,
AGED ABOUT 39 YEARS,
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
RAMANAGARAM-562159.
3 . SRI. SUDINDRANATH S.
S/O SAINATH,
AGED ABOUT 41 YEARS,
WORKING AS VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
TUMKUR-572101.
4 . SRI. SYED BALEEGUR RAHAMAN
S/O SYED KALEEMULLA,
AGED ABOUT 43 YEARS,
WORKING AS III ADDITIONAL
2
DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT
(TO SIT AT ANEKAL)-562106.
...PETITIONERS
(BY SRI. M.S. BHAGWAT, SENIOR COUNSEL FOR
SMT. SNEHA M. BHAGWAT AND SRI. SATISH K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF LAW,
JUSTICE AND HUMAN RIGHTS,
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF PERSONNEL
AND ADMINISTRATIVE AFFAIRS,
VIDHANA SOUDHA,
BENGALURU-560001.
3. THE REGISTRAR GENERAL
HON'BLE HIGH COURT OF KARNATAKA
DR. AMBEDKAR VEEDHI
BENGALURU - 560001.
4. SRI. MANJAPPA HANAMANTAPPA
ANNAYYANAVAR
AGED ABOUT 53 YEARS
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE
BELAGAVI DISTRICT COURT COMPLEX
BELAGAVI - 590001.
3
5. SMT. VINEETHA PREMNATH SHETTY
AGED ABOUT 52 YEARS
WORKING AS PRESIDING OFFICER
LABOUR COURT
CHIKKAMAGALURU - 577101.
6. SRI. M. DEVARAJA BHAT
AGED ABOUT 56 YEARS
WORKING AS MEMBER
KARNATAKA APPELLATE TRIBUNAL
M. S. BUILDINGS
DR. AMBEDKAR VEEDHI
BENGALURU - 560001.
7. SRI. JERALD RUDOLPH MENDONCA
AGE ABOUT 45 YEARS
WORKING AS II ADDITIONAL
DISTRICT AND SESSIONS JUDGE
MYSURU DISTRICT COURT COMPLEX
MYSURU - 570005.
8. SRI. K.M. RAJASHEKHAR
AGED ABOUT 52 YEARS
WORKING AS III ADDIONAL
DISTRICT AND SESSIONS JUDGE
BALLARI TO SIT AT HOSAPETE
COURT COMPLEX
HOSAPETE - 583201.
9. SRI. K.L. ASHOK
AGED ABOUT 49 YEARS
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
COURT COMPLEX,
CHIKKAMAGALURU-577101.
10 . SRI. BASAPPA BALAPPA JAKATI
AGED ABOUT 49 YEARS
4
WORKING AS LIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COMPLEX,
BENGALURU-560009.
11 . SRI. SIDDALINGA PRABHU
AGED ABOUT 53 YEARS
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
RAMANAGARA COURT COMPLEX,
RAMANAGARA-562159.
12 . SRI.N.KRISHNAIAH
AGED ABOUT 55 YEARS
WORKING AS VI ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
TUMKURU COURT COMPLEX,
TUMKURU-572101.
13 . SMT. A.K.NAVEEN KUMARI
AGED ABOUT 59 YEARS
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE
BAGALKOR (TO SIT AT JAMKHANDI)
COURT COMPLEX,
JAMKHANDI-587301.
14 . SRI. C. RAJASEKHARA
AGED ABOUT 56 YEARS
WORKING AS REGISTRAR (JUDICIAL)
HIGH COURT OF KARNATKA
DR.AMBEDKAR VEEDHI,
BENGALURU-560001.
15 . SRI. K. SUBRAMANYA
AGED ABOUT 57 YEARS
WORKING AS LXVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE,
5
CITY CIVIL COMPLEX,
BENGALURU-560009.
16 . SRI. K.R.NAGARAJA
AGED ABOUT 56 YEARS
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE
DISTRICT COURT COMPLEX,
RAICHUR-574101.
17 . SMT. RAJESHWARI N. HEGDE
AGED ABOUT 53 YEARS
WKRING AS IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE
MANDYA COURT COMPLEX,
MANDYA-570 005.
18 . SRI. MOHAMED MUJAHID ULLA
AGED ABOUT 59 YEARS
WORKIN AS V ADDITIONAL
PRINCIPAL JUDGE,
FAMILY COURT, NYAYA DEGULA,
H. SIDDAIAH ROAD,
BENGALURU-560027.
19 . SMT. MAHESHWARI S. HIREMATH
AGED ABOUT 55 YEARS
WORKING AS XXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE
CITY CIVIL COURT COMPLEX,
BENGALURU-560009.
20 . SMT. B.V. RENUKA
AGED ABOUT 54 YEARS
WORKING AS PRINCIPAL JUDGE,
FAMILY COURT,
SHIVAMOGGA DISTRICT COURT COMPLEX,
SHIVAMOGGA-577201.
6
21 . SMT. B.S. REKHA
AGED ABOUT 50 YEARS
WORKING AS II ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU-560 009.
22 . SRI. SHUBHAVEER B.
AGED ABOUT 57 YEARS
WORKING AS XLIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU-560009.
23 . SMT. MEENAXI M. BANI
AGED ABOUT 57 YEARS,
WORKING AS XXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE
CITY CIVIL COURT COMPLEX,
BENGALURU - 560 009.
24 . SRI. S. DESHPANDE GOVINDARAJ
AGED ABOUT 56 YEARS,
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
TUMKUR COURT COMPLEX
TUMKUR - 572 101
25 . SRI. H. CHANNEGOWDA
AGED ABOUT 58 YEARS,
WORKING AS XXXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU - 560 009.
26 . SRI. NINGAPPA PARASHURAM KOPARDE
AGED ABOUT 56 YEARS,
WORKING AS IV ADDITIONAL
7
DISTRICT AND SESSIONS JUDGE,
KALABURAGI (TO SIT SEDAM)
COURT COMPLEX
SEDAM - 585 222.
27 . SRI. MADHUSUDHAN B.
AGED ABOUT 57 YEARS,.
WORKING AS VIII ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
MYSURU (TO SIT AT HUNSUR)
HUNSUR COURT COMPLEX
HUNSUR - 571 105.
28 . SRI. SHANTAVEER SHIVAPPA
AGED ABOUT 53 YEARS,
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
UTTARA KANNADA KARWAR
(TO SIT AT SIRSI)
COURT COMPLEX
SIRSI - 581 401.
29 . SRI. RAVINDRA M. JOSHI
AGED ABOUT 53 YEARS
WORKING AS XL ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGLAURU - 560009.
30. SMT. K.G. SHANTHI
AGED ABOUT 51 YEARS
WORKING AS I ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT,
MYSURU DISTRICT COURT COMPLEX,
MYSURU - 570002.
31 . SMT. SAVITRI VENKATARAMANA BHAT
AGED ABOUT 58 YEARS
8
WORKING AS I ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT,
DAKSHINA KANNADA,
MANGALURU,
DISTRICT COURT COMPLEX,
MANGALURU - 575003.
32 . SRI. VIJAYAKUMAR MALKAJAPPA PAWALE
AGED ABOUT 58 YEARS
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU - 560009.
33 . SRI. KRISHNAJI BABURAO PATIL
AGED ABOUT 56 YEARS
WORKING AS VI ADDITIONAL
PRINCIPAL JUDGE,
FAMILY COURT,
NYAYA DEGULA,
H. SIDDAIAH ROAD,
BENGALURU - 560027.
34 . SRI. SUNILDATT ANNAPPA CHIKKORDE
AGED ABOUT 58 YEARS
WORKING AS PRESIDING OFFICER,
LABOUR COURT,
BENGALURU - 560022.
35 . SRI. JOSHI VENKATESH
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
VIJAYAPURA DISTRICT COURT COMPLEX,
VIJAYAPURA - 586109.
36 . SRI PATIL MOHAMMADGHOUSE
MOHIDDIN
AGED ABOUT 59 YEARS
9
WORKING AS IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
TUMAKURU (TO SIT AT MADHUGIRI)
COURT COMPLEX
MADHUGIRI-572 175.
37 . SRI N.R. CHENNAKESHAVA
AGED ABOUT 59 YEARS
WORKING AS ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
HASSAN DISTRICT COURT COMPLEX
HASSAN-573 201.
38 . SMT. USHARANI
AGED ABOUT 51 YEARS
WORKING AS PRINCIPAL JUDGE
FAMILY COURT
TUMKUR COURT COMPLEX
TUMKUR-572 101.
39 . SRI G. NANJUNDAIAH
AGED ABOUT 56 YEARS
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE
BELAGAVI DISTRICT COURT COMPLEX
BELAGAVI-590 001.
40 . SRI MARUTI BAGADE
AGED ABOUT 52 YEARS
WORKING AS X ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE
CITY CIVIL COURT COMPLEX
BENGALURU -560 009.
41 . SRI SHIVAJI ANANT NALAWADE
AGED ABOUT 54 YEARS
WORKING AS PRESIDING OFFICER
INDUSTRIAL TRIBUNAL
10
HUBBALI
HUBBALLI-580 001.
42 . SRI SADANANDA MALLESHAPPA KALAL
AGED ABOUT 59 YEARS
WORKING AS PRESIDING OFFICER
LABOUR COURT
HUBBALLI
HUBBLLI-580 001.
43 . SRI A.D. MAHANTHAPPA
AGED ABOUT 57 YEARS
WORKING AS VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE
BELAGAVI DISTRICT COURT COMPLEX
BELAGAVI-590 001.
44 . SRI SHUKLAKSHA PALAN
AGED ABOUT 56 YEARS
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE
KALABURGI DISTRICT COURT COMPLEX
KALABURGI -585 103.
45 . SRI H.C. SHAMPRASAD
AGED ABOUT 55 YEARS
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE
DHARWAD DISTRICT COURT COMPLEX
NEAR KALABHAVAN JUBLI CIRCLE
DHARWAD-580 008.
46 . SRI G.M. SHEENAPPA
AGED ABOUT 58 YEARS,
WORKING AS XXXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE
CITY CIVIL COURT COMPLEX
BENGALURU-560 009.
11
47 . SRI D.T. PUTTARANGASWAMY
AGED ABOUT 55 YEARS,
WORKING AS I ADDITIONAL PIRNICPAL JUDGE
FAMILY COURT TUMAKURU
COURT COMPLEX
TUMKUR-572 101.
48 . SRI D. S. VIJAYA KUMAR
AGED ABOUT 54 YEARS,
WORKING AS XXVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU - 560009.
49 . SRI M. BRUNGESHA
AGED ABOUT 52 YEARS,
WORKING AS SENIOR FACULTY MEMBER,
KARNATAKA JUDICIAL ACADEMY,
CRESENT ROAD,
BENGALURU - 560001.
50 . SRI R. BANNIKATTI HANUMANTHAPPA
AGED ABOUT 54 YEARS,
WORKING AS II ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
CHITRADURGA DISTRICT COURT COMPLEX,
CHITRADURGA - 577501.
51 . SRI. MANJUNATHA NAYAK
AGED ABOUT 51 YEARS,
WORKING AS REGISTRAR
(RECRUITMENT)
HIGH COURT OF KARNATAKA,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560001.
52 . SRI. RAVINDRA HEDGE
AGED ABOUT 51 YEARS,
12
WORKING AS V ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
HASSAN DISTRICT COURT COMPLEX,
HASSAN - 573201.
53 . SMT. SARASWATHI VISHNU KOSANDAR
AGED ABOUT 49 YEARS,
WORKING AS VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
MYSURU DISTRICT COURT COMPLEX,
MYSURU - 570005.
54 . SRI. MOHAMMED KHAN M. PATHAN
AGED ABOUT 49 YEARS,
WORKING AS VII ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
MYSURU DISTRICT COURT COMPLEX,
MYSURU - 570005.
55 . SMT. R. SHARADA
AGED ABOUT 58 YEARS,
WORKING AS LXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU-560 009.
56 . SRI. NARAHARI PRABHAKAR MARATHE
AGED ABOUT 54 YEARS,
WORKING AS ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
UDUPI (SITTING AT KUNDAPUR),
DISTRICT COURT COMPLEX,
KUNDAPUR-576 101.
57 . SRI. B. JAYANTHA KUMAR
AGED ABOUT 52 YEARS,
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
13
SHIVAMOGGA DISTRICT COURT COMPLEX,
SHIVAMOGGA-577 201.
58 . SRI. M. CHANDRASEKHAR REDDY
AGED ABOUT 50 YEARS,
WORKING AS REGISTRAR
(INFRASTRUCTURE AND MAINTENANCE)
HIGH COURT OF KARNATAKA
DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
59 . SMT. S. NAGASHREE
AGED ABOUT 53 YEARS,
WORKING AS III ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
DAVANAGERE DISTRICT COURT COMPLEX,
DAVANAGERE-577 006.
60 . SRI. C. CHANDRASHEKHAR
AGED ABOUT 52 YEARS,
WORKING AS IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
DODDABALLAPURA DISTRICT COURT COMPLEX,
DODDABALLAPURA-561 203.
61 . SRI. CHANDRASHEKHAR MARGOOR
AGED ABOUT 55 YEARS,
WORKING AS III ADDITONAL
DISTRICT AND SESSIONS MUDGE,
HASSAN DISTRICT COURT COMPLEX,
HASSAN-573 201.
62 . SRI. G.A. MANJUNATHA
AGED ABOUT 50 YEARS
WORKING AS XXXV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU - 560 009.
14
63 . SMT. H.R. RADHA
AGED ABOUT 51 YEARS
WORKING AS PRESIDING OFFICER
LABOUR COURT
KALABURGI DISTRICT COURT COMPLEX,
KALABURGI - 585103.
64 . SRI. K.C. SADANANDSWAMY @
SADANANDASWAMY KABBINAKANTHIMATH
AGED ABOUT 55 YEARS
WORKING AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE
HAVERI DISTRICT COURT COMPLEX
HAVERI - 581110.
65 . SRI. RON VASUDEV
AGED ABOUT 50 YEARS
WORKING AS LXXVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE
CITY CIVIL COURT COMPLEX,
BENGALURU - 560 009.
66 . SRI M. JAGADEESWARA
AGED ABOUT 51 YEARS
WORKING AS LXXXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU - 560 009.
67 . SRI. B. VENKATESHA
AGED ABOUT 56 YEARS
WORKING AS LXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE
CITY CIVIL COURT COMPLEX,
BENGALURU - 560 009.
68 . SRI. KUDAVAKKALIGAR MAHADEVAPPA
GANGAPPA
15
AGED ABOUT 55 YEARS
WORKING AS II ADDITIONAL
DISTRICT AND SESSIONS JUDGE
SHIVAMOGGA DISTRICT COURT COMPLEX,
SHIVAMOGGA - 577201.
69 . SRI. KIRAN SIDDAPPA GANGANNAVAR
AGED ABOUT 49 YEARS
WORKING AS ADDIYIONAL REGISTRAR (ENQUIRES)
KARNATKAA LOKAYUKTHA,
M.S. BUILDIGS,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
70 . SRI. HOSAMANI PUNDALIK
AGED ABOUT 53 YEARS,
WORKING AS IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
MYSURU DISTRICT COURT COMPLEX,
MYSURU - 570002.
71 . SRI. SADANANDA M. DODDAMANI
AGED ABOUT 54 YEARS,
WORKING AS XXV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU-560009.
72 . SMT. HEMAVATHI
AGED ABOUT 51 YEARS,
WORKING AS IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
BHADRAVATHI DISTRICT COURT COMPLEX,
BHADRVATHI-577302.
73 . SRI. MAHAVARKAR D. GULZARLAL
AGED ABOUT 51 YEARS,
WORKING AS II ADDITIONAL
16
DISTRICT AND SESSIONS JUDGE,
VIJAYAPURA DISTRICT COURT COMPLEX,
VIJAYAPURA - 586109.
74 . SRI. N. BIRADAR DEVENDRAPPA
AGED ABOUT 51 YEARS,
WORKIG AS I ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
DHARWAD (SITTING AT HUBBALLI),
HUBBALLI DISTRICT COURT COMPLEX,
HUBBALLI - 580008.
75 . SRI. A. VIJAYAN
AGED ABOUT 58 YEARS,
WORKIG AS IV ADDITIONAL PRINCIPAL JUDGE,
MYSURU DISTRICT COURT COMPLEX,
MYSURU - 570002.
76 . SRI. KASANAPPA NAIK
AGED ABOUT 54 YEARS,
WORKING AS XLI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE,
CITY CIVIL COURT COMPLEX,
BENGALURU-560009.
77 . SRI. PATIL KNAGALINGANAGOUDA
AGED ABOUT 57 YEARS,
WORKING AS II ADDITIONAL
PRINCIPAL JUDGE FAMILY COURT,
MYSURU DISTRICT COURT COMPLEX,
MYSURU-570002.
78 . SRI. S. GOPALAPPA
AGED ABOUT 52 YEARS,
WORKIGN AS II ADDITIONAL
DISTRICT AND SESSIONS JUDGE,
KALABURGI DISTRICT COURT COMPLEX,
KALABURGI - 585103.
17
79 . SRI. VELA DAMODAR KHODAY
AGED ABOUT 59 YEARS,
WORKIG AS PRINCIPAL JUDGE,
FAMILY COURT,
BELAGAVI DISTRICT COURT COMPLEX,
BELAGAVI - 590 001.
80 . SRI G.L. LAKSHMINARAYANA
AGED ABOUT 51 YEARS
WORKING AS ADDITIONAL
SECRETARY TO THE GOVERNMENT,
LAW DEPARTMENT,
VIDHANA SOUDHA,
DR.AMBEDKAR VEEDHI,
BENGALURU-560001.
81 . SMT. G. PRABHAVATHI
AGED ABOUT 51 YEARS,
WORKIG AS II ADDITIONAL PRINCIPAL JUDGE,
FAMILY COURT, NYAYA DEGULA,
H.SIDDAIAH ROAD,
BENGALURU-560027.
82 . SMT. NAGAVENI
AGED ABOUT 51 YEARS,
WORKING AS PRINCIPAL JUDGE,
FAMILY COURT,
HASSAN DISTRICT COURT COMPLEX,
HASSAN-573201.
....RESPONDENTS
(BY SRI. N. KUMAR, AGA FOR R1 TO R3;
SRI. A.N. RADHAKRISHNA, ADVOCATE FOR R4;
SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SMT. SUMANA NAGANANDA, SRI. ARIHANT R. SUNGAY
SMT. ASHWINI RAVINDRA, ADVOCATES FOR R3;
SRI. NARAYANAMURTHY, ADVOCATE FOR R12;
SRI. SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE FOR R14
18
SRI. ANIL KUMAR H.S., ADVOCATE FOR R16;
SMT. SWETHA G. DESHPANDE, ADVOCATE FOR
SRI. VARUN PAPIREDDY, ADVOCATE FOR R24;
SRI. K. SHASHIKANTH PRASAD, ADVOCATE FOR R21, R30 & R38;
SRI V. SHIVAKUMAR, ADVOCATE FOR R43;
SRI. MANJUNATH V., ADVOCATE R46;
SRI. K.P. THRIMURTHY, ADVOCATE FOR R62;
SRI. SIDHARTH BABURAO, ADVOCATE FOR R70;
SRI. SAMPATH BAPAT, ADVOCATE FOR R17, 20 AND 21;
SRI. D.N.DHRUVA KUMAR, ADVOCATE FOR R47;
SRI. M.R.SHIVASHANKARAIAH, ADVOCATE FOR R50;
SRI. GIRIDHAR H., ADVOCATE FOR R81.
SRI. APPAIAH M.A., ADVOCATE FOR R63;
R5, R6, R7, R8 TO R11, R13, R15, R18, R22, R23, R25 TO R29, R32
TO R37, R39, R41, R44, R45, R48, R49, R51, R52, R53 TO R61,
R64 TO R69, R71, R72 TO R80, R82 ARE SERVED BUT
UNREPRESENTED
VIDE ORDER DATED 22.12.2020 R19 AND R42 ARE DELETED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED FINAL SENIORITY LIST OF DISTRICT JUDGES
(UNDATED AND UN-NUMBERED) ISSUED BY THE 3RD RESPONDENT
(ANNEXURE-A TO THE WRIT PETITION); DIRECT THE 3RD
RESPONDENT TO PREPARE AND PUBLISH SENIORITY LIST IN
ACCORDANCE WITH LAW, AFTER PROVIDING AN OPPORTUNITY TO
THE PETITIONERS AND ALL OTHER AFFECTED PERSONS AND
ASSIGNING PROPER RANKINGS TO THE PETITIONERS, BY PLACING
THEM ABOVE RESPONDENTS 4 TO 82 AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioners claim to be working as District and Sessions Judges, having appointed on 19 01.02.2016 by Direct Recruitment, in terms of Article 233 of the Constitution of India, have challenged the Final Seniority list of District Judges (Annexure-A), issued by the respondent No.3; inter-alia sought for direction to the respondent No.3 to prepare and publish the seniority list in accordance with law.
2. The factual matrix of the case are that, the petitioners are the District and Sessions Judges appointed on 01.02.2016 as per Article 233 of the Constitution of India. It is the case of the petitioners that, the Governor of Karnataka in consultation with Karnataka Public Service Commission and High Court of Karnataka promulgated Rules called as Karnataka Judicial Services (Recruitment) Rules, 1983 as per Article 233 and 234 read with Proviso to Article 309 of the Constitution of India. The said rules was notified as "Karnataka Judicial Services (Recruitment) Rules, 1983" (for short, hereinafter referred to as Rules, 1983). Rule-2 of the said Rules read with Schedule 20 provides for appointment of District Judges. The method of recruitment to the post of District Judges in the quota of two-third by way of promotion and one-third by way of Direct Recruitment. The Hon'ble Supreme Court in the case of ALL INDIA JUDGES ASSOCIATION AND OTHERS VS. UNION OF INDIA AND OTHERS reported in (2002) 4 SCC 247 (for short, hereinafter referred to as 'ALL INDIA JUDGES ASSOCIATION AND OTHERS-2002) revised the method of recruitment of District Judges, 50% by promotion from the cadre of Senior Civil Judges on the basis of principle of merit-cum-seniority, 25% by way promotion on the basis of merit through limited competitive examination of Civil Judges (Senior Division), provided candidates have completed five years qualifying service and remaining 25% to be filled up thorough Direct Recruitment. Pursuant to the aforementioned judgment of the Hon'ble Supreme Court, "Karnataka Judicial Services (Recruitment) Rules, 2004 was promulgated prescribing 50% by way of 21 promotion, 25% by way of promotion through limited competitive examination and remaining 25% by way of Direct Recruitment. In the meanwhile, the Hon'ble Supreme Court in the case of ALL INDIA JUDGES ASSOCIATION AND OTHERS vs. UNION OF INDIA AND OTHERS reported in (2010) 15 SCC 170 (for short, hereinafter referred to as 'ALL INDIA JUDGES ASSOCIATION AND OTHERS- 2010') revised the method of recruitment by 25% by way of Direct Recruitment, 65% by way of promotion from the cadre of Senior Civil Judges and 10% by way of promotion through competitive examination. Following the judgment of the Hon'ble Apex Court, the Karnataka Judicial Services (Recruitment) (Amendment) Rules, 2011 was brought into force, insofar as recruitment to the post of District Judges is concerned.
3. It is the case of the petitioners that, on 14.09.2012, the respondent No.3 published the Final Seniority List in the cadre of District Judges, promoting the 22 Ad-hoc District Judges/Fast Track Court Judges, who were appointed during 2003 and regularized in 2009 and they were placed above the District Judges who were appointed during the year-2008. The said Seniority List dated 14.09.2012 was challenged before this Court in Writ Petition No.41684-91 of 2012 and the said writ petition was allowed on 27.09.2013 (See. ILR 2013 KAR 5650), whereby, direction was issued to re-fix the interse seniority of Direct Recruitees and Promotees in accordance with law. Being aggrieved by the same, the respondent No.3 herein has filed Writ Appeal No.6514 of 2013 and connected matters and the Division Bench of this Court, by order dated 03.04.2014 (Annexure-B) (See. ILR 2014 Kar 3571) allowed the writ appeal and set-aside the judgment of the learned Single Judge. Pursuant to the direction issued by the Division Bench, by order dated 03.04.2004 in Writ Appeal No.6514 of 2013 and connected matters, the respondent No.3 published a fresh Provisional Seniority List 23 in the cadre of District Judges on 24.07.2014 (Annexure-C). Thereafter, the Government, by Notification dated 26.03.2015, passed the Final Seniority List, promoting the respondents 13 to 47 as District Judges from the cadre of Senior Civil Judges with effect from 01.04.2015. It is the grievance of petitioners that, there was no vacancy available to promote the contesting private respondents under the promotional quota and the said promotion granted to them is in excess of 65% quota meant for promotees as per the judgment of the Hon'ble Supreme Court in ALL INDIA JUDGES ASSOCIATION AND OTHERS-2010 (supra). In the meanwhile, the recruitment process was initiated for selection of District Judges by way of Direct Recruitment and Final Selection List was published on 07.12.2015 and the petitioners were appointed as District Judges in terms of the selection process as per Notification dated 21.01.2016 (Annexure-D). It is further stated that, the probationary period of the petitioners have 24 been declared on 01.10.2019 (Annexure-E). It is the grievance of the petitioners that, the impugned Final Seniority list (Annexure-A) was published without publishing the provisional list, for the period insofar as the District Judges appointed/promoted from 03.01.2014 to 26.04.2016. Feeling aggrieved by the same, the petitioners have presented representation to the respondent No.3 on 11.08.2016, seeking assigning appropriate ranking in the Final Seniority list (Annexure-F). In furtherance of the same, the Hon'ble the Chief Justice was pleased to constitute a Committee on the administrative side to consider the grievance of petitioners and personal hearing was extended to the petitioners and respondents. It is contended by the petitioners that, no decision is taken on the representations of the petitioners till date and being aggrieved by the same, the petitioners have presented this writ petition.
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4. On service of notice, respondents entered appearance and filed detailed statement of objections, denying the contentions raised by the petitioners and accordingly, sought for dismissal of the writ petition.
5. I have heard Sri. M.S. Bhagwat, learned Senior Counsel appearing on behalf of Smt. Sneha M. Bhagwat, for petitioners; Sri. N. Kumar, learned AGA appearing for respondents 1 to 2; Sri. S.S. Naganand, learned Senior Counsel appearing on behalf of Smt. Sumana Naganand, Sri. Arihant R. Sungay and Smt. Ashwini Ravindra, for respondent No.3.
6. Sri M.S. Bhagwat, learned Senior Counsel appearing for the petitioners argued that, there is no separate rule for determining the seniority of the District Judges, as they are governed by Karnataka Government Servants (Seniority) Rules, 1957 and in this regard, he invited the attention to Rule 2 of said Rules, which mandates that, the officers appointed substantially in the 26 clear vacancies, shall be senior to all persons appointed on officiating basis. Challenging the impugned Seniority List, produced at Annexure-A, Sri M.S.Bhagwat learned Senior Counsel argued that, there is no classification of vacancies as per the quota prescribed under the recruitment rules, to determine the interse seniority between the direct recruits and promotees. Referring to the declaration of law made by the Hon'ble Supreme Court in the case of ALL INDIA JUDGES ASSOCIATION AND OTHERS-2010, he submitted that, no classification of vacancies allocating the respective quota, for promotees (65%), direct recruits (25%) and promotees through competitive examination has been followed. It is the specific argument of the learned senior counsel for petitioners that, the respondent No.3 herein, before issuing impugned Seniority List, have not indicated the total cadre strength of District Judges nor even issued the Provisional Seniority List. It is further submitted that, the block periods are required to be 27 classified from one recruitment to another recruitment or modification thereof, pursuant to the amendment made to the rules. To buttress his arguments on these aspects, he refers to the judgment of the Hon'ble Supreme Court in the case of V.B. BADAMI AND OTHERS VS. STATE OF MYSORE AND OTHERS reported in (1976) 2 SCC 901 and GONAL BHEEMAPPA VS. STATE OF KARNATAKA reported in 1987 SC supp. 207. Placing reliance on the aforementioned judgments Sri M.S.Bhagwat, learned Senior Counsel refers to paragraph 34 of the Statement of Objections filed by respondent No.3 and argued that, the impugned seniority list, was prepared according to date of entry into service, date of promotion as District Judges and apparently, the impugned list cannot be considered as a Seniority List and therefore he sought for interference of this court.
7. Secondly, Sri M.S.Bhagwat, learned Senior Counsel refers to the judgment of the Division Bench of this 28 Court in the case of REGISTRAR GENERAL VS. DEPARTMENT OF LAW AND JUSTICE AND HUMAN RIGHTS, GOVERNMENT OF KARNATAKA AND OTHERS reported in ILR 2014 KAR 3571 and argued that, the Division Bench has concluded that, the Seniority of Promotee District Judges shall be reckoned from the date they were appointed to substantive vacancies and he emphasized on direction No.3 issued in Writ Appeal No. 6514/2013 in the operative portion of the judgment, and argued that, the direct recruitees would be placed above to the Civil Judges (Senior Division) and therefore, the availability of substantive vacancy is the criterion for determining the seniority between the Direct recruitees and promotee Judges.
8. Thirdly, Sri M.S.Bhagwat, learned Senior Counsel took up a contention that, from 26.05.2003 to 01.02.2016, 139 posts of District Judges, are created and the cadre strength is increased. As per 65% quota laid down by the 29 Hon'ble Supreme Court, 90 posts could be allocated to the promotees, however, 116 judges were given promotion violating the norms laid down by the Hon'ble Supreme Court and therefore, the said block period must be classified from one recruitment to another recruitment and therefore, he sought for interference of this Court.
9. Lastly, Sri M.S.Bhagwat, learned senior counsel argued that, the impugned Seniority List is be considered as a Civil list and a not Final Seniority List issued by the respondent No.3, consisting of both the direct recruitees and promotees. Accordingly, he sought for interference of this Court.
10. Per contra, Sri S.S.Naganand, learned Senior Counsel appearing for the respondent No.3 argued that, the Seniority List of direct recruitees and the promotees was prepared in furtherance of the direction issued by the Division Bench of this Court in W.A. No.6514/2013 and connected appeals (Annexure-B) dated 03.04.2014 and 30 therefore, he contended that, as on the date of consideration and issuance of the Seniority List at Annexure-A, the private respondents were Fast Track Court Judges, who were promoted against clear vacancies and therefore, Sri.S.S. Naganand, learned Senior Counsel contended that, as the contesting respondents have been promoted against the vacancy available for the District Judges in terms of the Judgment of the Hon'ble Supreme Court in ALL INDIA JUDGES ASSOCIATION AND OTHERS-2010 and therefore, he contended that, the argument advanced by learned Senior Counsel for the petitioners cannot be accepted.
11. Secondly, it is contended by Sri. Naganand, learned Senior Counsel that, the petitioners herein were appointed on 01.02.2016, pursuant to the direct selection process, as District Judges and as on the said date, the sanctioned strength of District Judge in the State of Karnataka was 314 out of which, 204 posts were promoted 31 under the 65% quota category in terms of the judgment of the Hon'ble Supreme Court referred to above. He further contended that, as on the date of appointment of the petitioners herein, there were only 193 Officers working under the 65% quota category out of sanctioned 204 posts and as such, there were 11 vacancies available as on the date of appointment of the petitioners under 65% quota. Sri. S.S. Naganand, learned senior counsel further contended that, a Special Committee constituted to re-do the seniority list in terms of the judgment of the Division Bench, and fresh Provisional List was prepared and published on the official website of the High Court on 30.09.2021 and objections were called from the aggrieved parties, if any and thereafter, decision was taken to issue the impugned Final Seniority List. It is the categorical submission of Sri. S. S. Naganand, learned Senior Counsel that, no excess Officers were promoted under the quota of 65% and said quota was filled up, against vacant posts 32 available and therefore, he sought for dismissal of the writ petition.
12. Nextly, Sri. S.S. Naganand, learned Senior counsel appearing for respondent No.3 argued that, the Final Seniority List dated 18.07.2016 was withdrawn as per the report of Special Committee and as such, fresh Provisional Seniority List was published on 30.09.2021, which provided for filing objections by the aggrieved parties and therefore, he argued that, the contention raised by the petitioners with regard to violation of principles of natural justice cannot be accepted. It is the categorical argument of Sri. S.S. Naganand, that the Seniority List impugned in the writ petition has been issued taking into consideration of the date of entry of the District Judges into service as against the vacancies arose under the quota mentioned in Rules, 1983 and not from the date of appointment of the Fast Track Court Judges. It is further submitted that, as the Final Seniority List is prepared according to the date of 33 entry into service of the District Judges, the Judgments referred to by the petitioners cannot be made applicable to the facts on hand and accordingly, he denied the submission of the petitioners that, in the absence of classifying the vacancies based upon block periods, it cannot be said that, impugned Seniority List is not in accordance with law. He further contended that, when the promotion made is outside quota, then the seniority would be reckoned only from the date on which vacancy arose within the quota for promotion and therefore, he sought for dismissal of the writ petition.
13. Learned counsel appearing for the private respondents argued in similar the lines of Sri. S.S. Naganand Learned Senior Counsel and submitted that, the impugned Seniority List is prepared taking into consideration the date of appointment of the contesting respondents and further argued that, the availability of vacancy is not a criterion to prepare the Final Seniority List 34 and accordingly, they sought for dismissal of the writ petition.
14. Sri. N. Kumar, learned Additional Government Advocate appearing for the respondent- state argued in support of the impugned Seniority List and sought for dismissal of the writ petition.
15. In the light of the submissions made by the learned counsel appearing for the parties, it is not in dispute that, the petitioners herein are appointed as District Judge on 01.02.2016 by way of direct recruitment in terms of Article 233 of the Constitution of India. The Hon'ble Supreme Court, in the case of ALL INDIA JUDGES ASSOCIATION-2002, (supra) at paragraph 29 held as follows:
"29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative 35 seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum-seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal v. State of Punjab. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as 36 approved by this Court in R.K. Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003."
16. Thereafter, the aforementioned judgment was re-considered in ALL INDIA JUDGES ASSOCIATION- 2010 (supra) and paragraphs 4 to 8 of the said judgment reads as under:
"4. After this judgment in All India Judges' Assn. the High Courts have amended the Service Rules and 25% posts of District Judges are being filled up by the limited departmental competitive examination. But many High Courts found it difficult to fill up 25% through such process. In some of the States as many as 50 posts of District Judges, to be filled up by the said exercise, remained vacant and there is no alternative method provided by which these vacant posts could be filled up. In some of the States, for example, in the States of Bihar, 37 U.P. and Kerala, there are adequate rules to the effect so that unfilled posts could be filled up by regular promotion. But in many States, there are no such rules to fill up these vacancies. Most of the States are in favour of reducing the percentage from 25% of limited departmental competitive examination, but many of the States, for example, States of Gujarat, Delhi, M.P., J&K and H.P. maintained that this 25% should be continued but they are also of the view, in case there are vacant posts then they be filled up by regular promotion. For the time being, in many of the States, these unfilled vacancies are filled up by ad hoc promotions or temporary promotions. This certainly creates difficulty in service as later on when regular candidates will be available for promotion, the ad hoc/temporary District Judges are likely to be reverted as Civil Judges (Senior Division), which is not desirable for a judicial service.
5. In some of the States sufficient number of candidates are not available for being promoted under this particular category as a Civil Judge (Senior Division) in the normal course gets promotion before the completion of period of 5 years. As 25% quota is prescribed, a large number of vacancies remained unfilled and that is not good for the judicial administration in that State.
6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental 38 competitive examination. We are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which was sought to be achieved by this process could not be achieved, thus it calls for modification.
7. Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order.
8. Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available 39 for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable."
17. Perusal of the aforementioned judgments make it clear that, promotional ratio insofar as appointment to the post of District Judges, under Article 233 of the Constitution of India, is, 25% by Direct recruitment, 65% by promotion from the cadre of Senior Civil Judge and 10% by way of promotion through competitive examination. In furtherance of the judgment of the Hon'ble Apex Court, the Karnataka Judicial Services (Recruitment) (Amendment) Rules, 2011 was brought into force, by incorporating such quota among the three sources of recruitment to the post of District Judges. Pursuant to the aforementioned Rules, 2011, respondent No.3, published the Final Seniority List in the cadre of District Judges, wherein, the Adhoc District Judges/Fast Track Court Judges, promoted during 2003 and regularised in the year 2009, were placed above the Direct 40 recruitees of 2008. Feeling aggrieved by the same, the said Final Seniority List dated 14.09.2012, was challenged before this Court in W.P.Nos.41684-91 of 2012. The said writ petitions came to be allowed, on 27.09.2013, with a direction to the respondent No.3 to re-do the exercise. Feeling aggrieved by the same, the respondent No.3 filed W.A.No.6514 of 2013 and connected appeals. This Court, by order dated 03.04.2014, allowed the writ appeals and thereby, the impugned judgment of learned Single Judge was set aside. At paragraph 84, the Division Bench has directed the respondent No.3 to prepare a fresh Seniority List of the Direct Recruitees and promotees and same is reproduced as under:
"84. In the result, the writ appeals are allowed and the impugned judgment is set aside. The RG is directed to prepare a fresh seniority list of the direct recruit and promotees in conformity with the following directions:
(i) As far as the direct recruits are concerned their seniority would be reckoned from the date they were appointed.41
(ii)As far as promotees are concerned, their seniority would be reckoned from the date they were appointed to the substantive vacancies i.e., from the date vacancies arose under the quota mentioned in 1983 Rules and not from the date of the Notifications appointing them as FTC Judges, where the vacancies arose subsequent to their appointment. In case, where the vacancies occurred prior to their appointment as FTC Judges, seniority should be reckoned from the date they were appointed as FTC Judges.
(iii) As far as those Judges who took examination by way of accelerated promotion is concerned, they are from two categories (a) ad hoc FTC Judges and
(b) Civil Judges (Senior Division). The ad hoc FTC Judges have to be promoted as per their seniority, in those vacancies, which arose even prior to the examination for accelerated promotion held in the year 2009. Where there were no available vacancies prior to the examination held in the year 2009, the ad hoc FTC Judges would be considered for seniority from the date of Notification promoting them in 25% quota meant for accelerated promotion. As far as the Civil Judges (Senior Division) Judges, who took the examination for accelerated promotion is concerned, as the examination was conducted in 2009, their seniority would obviously be after the entry of the direct 42 recruits on 25/02/2008, is reckoned. In other words, the direct recruits would be senior to the Civil Judges (Senior Division), who were promoted by way of accelerated promotion in the year 2009.
(iv) The said exercise to be carried out in an expeditious manner, preferably within a period of one month from today. All consequential benefits which accrue to the promotees shall be given to them in an expeditious manner.
(v) The Notification issued in the year 2009 shall be construed as regularization of their officiation in the vacancies arose prior thereto.
(vi) The appeals being allowed and the impugned judgment being set aside, is without any order as to costs."
18. Pursuant to the direction issued by the Division Bench, in the aforementioned writ appeals, the respondent No.3, issued provisional Seniority List of District Judges dated 24.07.2014 (Annexure-C). In the meanwhile, notification dated 21.01.2016 (Annexure-D) was issued by the State Government, notifying the appointment of petitioners through direct recruitment under the Karnataka 43 Judicial Service (Recruitment) Rules, 2004 and amended Rules, 2011. In the meanwhile, based on the provisional Seniority of District Judges, (Annexure-C), the Government has issued notification dated 26.03.2015, whereby the contesting private respondents herein were promoted as District Judges from the cadre of Senior Civil Judge with effect from 01.04.2015. It is at this stage, the grievance of the petitioners is that, the private respondents have been promoted as District Judges, wherein, absence of vacancy available to promote these private respondents under promotional quota which is in excess of 65% quota meant for promotees, in terms of the judgment of the Hon'ble Supreme Court. Hence, the petitioners have made a representation dated 11.08.2016 (Annexure-F). Opportunity was extended to the petitioners for hearing and some of the petitioners have appeared before the Committee constituted by the Hon'ble Chief Justice to look into the grievance of the petitioners. The petitioners have filed a 44 note/ objections before the Special Committee on 03.03.2018 (Annexure-G) urging that, the impugned Seniority List has not prepared from the date of commencement of recruitment rules and Seniority List is contrary to the judgment of the Division Bench (supra) (Annexure-B). Thereafter, a draft Seniority List of District Judges as per Annexure-K was notified. In the aforesaid Seniority List, names of the petitioners are shown at Sl Nos.373, 374, 377 and 380 and respondents 4 to 12, who were appointed to the cadre of District Judges on 26.04.2016 i.e. subsequent to the appointment of the petitioners, were placed below the petitioners. It is the grievance of the petitioners that, the promotion granted to the respondents 13 to 82 as District Judges on 01.04.2015 and 21.08.2015 was in excess of 65% quota earmarked for promotees as per the aforementioned rules and the judgment of the Hon'ble Supreme Court and accordingly, the petitioners filed written submissions as per Annexure-M 45 and Committee constituted therein, upon considering the objections filed by the petitioners, rejected the contentions raised by the petitioners and as such, recommended for publishing the Final Seniority List in terms of the provisional Seniority List dated 30.09.2021. It is the said Seniority List which was subsequently accepted by the Full Court of the High Court of Karnataka and thereby, respondent No. 3 published the Final Seniority List (Annexure-N). It is the grievance of the petitioners that no alteration has been made insofar as ranking of the officers. In the backdrop of arguments advanced by the learned counsel representing the parties, the legal position relating to consideration of the promotion of direct recruitees and promotes is discussed as under:
19. The Hon'ble Supreme Court in the case of V.B. BADAMI AND OTHERS VS. STATE OF MYSORE AND OTHERS reported in (1976) 2 SCC 901, held that, the promotion of the candidates has to be made in respect of 46 clear vacancy as per quota in the permanent strength of the cadre. In this regard, it is relevant to extract paragraphs 29 to 37 and same reads as under:
"29. In working out the quota rule, these principles are generally followed. First, where Rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum-merit. A promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which 47 are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case.
30. The quota between promotees and direct recruits is to be fixed with reference to the permanent strength of 135 junior duty posts. Persons who were allotted the junior duty posts under the States Reorganisation Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the subsequent period commencing from December 2, 1957 to September 10, 1959.
31. Persons 1 to 164 in the gradation list consist of persons who were allotted under the States Reorganisation Act on November 1, 1956. The ranks of those 164 persons were determined in accordance with the final inter-State seniority list. Person 165 to 184 are promotees who were allotted to substantive vacancies arising from November 1, 1956 to December 1, 1957 on the basis of their continuous service in the cadre. There was no quota rule for the period November 1, 1956 to December 1, 1957. Therefore, neither the promotions of 48 those persons nor their relative seniority can be disturbed.
32. Persons 185 to 213 are promotees. Persons 214 to 236 are direct recruits. Persons 237 to 280 are also promotees. From December 2, 1957 when the 1957 Recruitment Rules came into existence till September 10, 1959 when the 1959 Probationers Rules came into force the State promoted many persons from Class II. Two- thirds of the total vacancies for the period December 2, 1957 to September 10, 1959 were promotional vacancies. Therefore, all persons promoted to those two-thirds vacancies cannot be disturbed. Those promotees who are in excess of the two-thirds vacancies will be pushed down to the vacancies in the subsequent period. The remaining one-third vacancies were for direct recruitment. Direct recruits equal in number to those one-third vacancies should be placed next after the promotees placed in the first two-thirds vacancies between December 2, 1957 and September 10, 1959. If direct recruits are in excess of the quota they will similarly be shifted to the subsequent period.
33. The next period is from September 11, 1959 to October 26, 1964. From September 11, 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thirds. The excess promotees during the previous period will be first absorbed in the promotional vacancies and thereafter 49 promotees during the period will be absorbed. Again, if there would be excess promotions they will be shifted to the following period.
34. The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between September 11, 1959 and October 26, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on October 26, 1964 will not rob the direct recruits of their quota which remained unfilled from December 2, 1957.
35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantive vacancy.
36. In S.G. Jaisinghani v. Union of India it was said that when the quota was fixed for the two sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarup case it was held that when it 50 was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year.
37. Two principles are established in the decisions referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota."
(Emphasis supplied)
20. Having taken note of the dictum of Hon'ble Supreme Court in the above case, what emerges is that, as long as the quota rule remains, promotees have no legal right to claim for promotion unless there is clear vacancy under the said quota. In other words, the promotees can be 51 allotted to any of the substantive vacancies of the quota, provided for the said cadre under the relevant Rules.
21. In the case of GONAL BIHIMAPPA VS. STATE OF KARNATAKA, reported in 1987 supp. SC 207, the Hon'ble Supreme Court has held that, the interse seniority between direct recruitees and the promotees should be strictly adherence to the quota provided under the relevant rules. In this regard, reiterating the principle laid down in V.B. Badami (supra), the Hon'ble Supreme Court at paragraphS 10 to 23 held as follows:
"10. In September 1959 the Government initiated steps for the first time for appointment of officers by direct recruitment to fill up the vacancies within the quota prescribed for direct recruits. The advertisement referred to 20 vacancies for the posts of Assistant Commissioners, Class I and two vacancies for Assistant Controllers in the State Accounts Service. These vacancies for direct recruits had arisen during the period immediately prior to the issue of the notification. These vacancies arose between December 2, 1957 when the 1957 Recruitment Rules came into existence and September 11, 1959 when the 1959 Probationers Rules came into force. The 52 notification made it clear that the appointment of probationers by direct recruitment was subject to the 1957 Recruitment Rules, the Mysore Government Servants Probation Rules, 1957, and the 1959 Probationers Rules. The Public Service Commission conducted the competitive examination and selected 17 among Respondents 2 to 24 for appointment as Assistant Commissioners Class I (Junior Scale) on probation. It may be stated here that the other six respondents were allotted to the service as a result of judgment of this Court. There is no dispute that all the 23 persons being Respondents 2 to 24 are treated as direct recruits.
11. Respondents 2 to 24 were appointed on probation by order dated October 26, 1962. They were required to undergo training and probation for a period of two years. During the said period their appointments were provisional and liable to termination on one month's notice, as was the case of recruitment of probationers. In order to cause minimum prejudice to the officiating promotees and in order to meet the audit objections by reason of lack of provision in the 1957 Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their training.
12. On completion of the period of probation the Government issued a declaration under Rule 5 of the Mysore Government Servants Probation Rules, 1957 that 53 the respondents had satisfactorily completed the period of probation on October 26, 1964. Consequent upon such declaration each of the respondents became entitled under Rule 9 of the Government Servants Probation Rules, 1957 to be confirmed as a full member of the service in the class or category for which he was selected at the earliest opportunity to any substantive vacancy which may exist or arise in the permanent cadre of such class or category. Respondents became entitled to be full members of the service and to confirmation in the permanent cadre against vacancies existing within their quota since the promulgation of the 1957 Recruitment Rules.
13. The Government action declaring respondents to have satisfactorily completed the probation under Rule 5 of the Probation Rules resulted in the confirmation of the respondents in substantive vacancies with effect from October 26, 1964. The creation of temporary posts for the duration of the training of Respondents 2 to 24 as probationers was not renewed in 1964. The actual confirmation was delayed because of the finalisation of inter-State seniority lists of the allottees.
14. The appellants contended first that the word "vacancies" occurring in the 1957 Recruitment Rules means not only vacancies in the permanent posts but also in temporary posts, and, therefore, the quota rule applies to vacancies in all posts whether permanent or 54 temporary. On that construction it is said that up to September 10, 1959 there were 59 vacancies and though the quota was for 39 promotions and 20 for direct recruitment there were in fact 59 promotions and no direct recruitment with the result that 59 promotees filled up all the vacancies, permanent or temporary.
15. The second contention of the appellants was that the respondents were directly recruited as Assistant Commissioners on October 26, 1962 against temporary vacancies created with effect from October 26, 1962 are not entitled to claim seniority over the appellants who had been promoted earlier than them and whose promotion was within the quota of 59 vacancies.
16. The third contention was that the direct recruits were not entitled to count their seniority from a date anterior to the date of their recruitment by taking advantage of the fact that the vacancies required to be filled up by direct recruitment had not been actually filled up by direct recruitment, but had been filled up actually by promotion.
17. The fourth contention was that all the Assistant Commissioners who were directly recruited or promoted to the posts of Assistant Commissioners formed one class and their inter se seniority in the cadre of Assistant Commissioners has to be determined on the basis of length of service rendered by them in the category in order to have equality.55
18. The fifth contention was that the respondents who were appointed on temporary basis and the appellants who were promoted on officiating basis were entitled to have their seniority determined in accordance with the provisions of Rule 2(c) of the Mysore Government Servants (Seniority) Rules, 1957. Rule 2(c) is as follows:
"Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same the seniority inter se in the lower grade shall prevail."
19. The sixth contention was that the respondents were appointed on temporary basis with effect from October 26, 1962 against temporary posts created for them and they could not claim seniority to appellants for these reasons. Under Rule 5 of the Mysore Government Servants Probation Rules, 1957 the probationers are deemed to have satisfactorily completed their probation on the issue of an order to that effect. The respondents who were confirmed in substantive vacancies could be confirmed only in vacancies which might exist or arise after October 26, 1964 and not earlier. The respondents were confirmed against substantive vacancies which arose from September 12, 1960 onwards. Both the 1957 Recruitment Rules and the 1959 Probationers Rules contemplate observance of quota rule at the time of appointment and promotion. The question of enforcement 56 of quota rules does not apply at the time of confirmation. The quota rule will only apply when the vacancies are filled up either by direct recruitment or promotion. The appellants are promoted prior to the direct recruitment of the respondents, and therefore, they are entitled to claim seniority.
20. One of the most important matters to be kept in the forefront is that the permanent cadre strength of the Mysore Administrative Service is 147 of which senior duty posts are 12 and the junior duty posts 135.
21. The substantive vacancies which arose between December 2, 1957 and September 10, 1959 were classified into vacancies which were required to be filled up by direct recruitment and by promotion, in the ratio of 1/3 and 2/3 respectively in accordance with the 1957 Recruitment Rules which came into force on December 2, 1957. The substantive vacancies which arose from September 11, 1959 to October 26, 1964, the date when the direct recruits were confirmed were classified as direct recruitment and promotional vacancies on two- thirds and one-third basis respectively in accordance with the 1959 Probationers Rules which came into existence on September 11, 1959. The substantive vacancies which arose between October 26, 1964 up to September 10, 1965 have been classified as direct recruitment and promotional vacancies on two-thirds and one-third basis respectively in accordance with the 1959 Probationers 57 Rules which continued to be operative up to September 11, 1965. From September 11, 1965 to October 8, 1971 the quota for direct recruitment became one-third and for promotional vacancies it was two-third.
22. The contention of the appellants that the respondents were recruited to temporary vacancies is wrong for these principal reasons.
23. First, the cadre here consists only of permanent posts. The cadre does not consist of any temporary post. The total number of vacancies between December 2, 1957 and September 10, 1959 were 59. Under the quota 39 were promotional vacancies and 20 were direct recruitment vacancies. There were in fact 59 promotees. They were 20 in excess of their quota. There was however no direct recruitment during that period. Again between September 11, 1959 and September 10, 1965 the total number of vacancies were 208. Under the quota system 71 were promotional vacancies and 137 were direct recruitment vacancies. There were in fact 168 promotees during the period. Therefore 97 promotees were in excess of their quota. Out of the 137 direct recruitment quota only 20 were filled up during the period. In this background it appears that when in 1962 direct recruitment was made there were 20 direct recruitment vacancies in the quota which were not filled up. The promotees, however, being 20 in excess were not entitled to confirmation against the vacancies within the 58 quota of the direct recruits. The promotees were promoted on officiating basis. Therefore, when the respondents were appointed by direct recruitment on probation under order dated October 26, 1962 they were required to undergo training and probation, for a period of two years. In order to meet the audit objections by reason of lack of provisions in the Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their probation. On the completion of the period of training there was no renewal of the temporary posts. Therefore, the temporary posts which were created for the direct recruits during their period of probation cannot be taken into account in working out the quota rule and for adjustment of seniority."
22. The Division Bench of this Court in REGISTRAR GENERAL, HIGH COURT OF KARNATAKA (supra) at paragraphs 81 to 84 held as under:
"81. The questions raised by the Learned Single Judge could be answered in the following manner:
That the extant procedure in the matter of promotion to the post of District Judge was followed while appointing the promotees as ad hoc District Judges for the FTCs. Their promotions are in substance traceable to 1983 Rules. The vacancies that occurred prior to the 59 enforcement of 2004 Rules have to be reckoned for giving deemed date of promotions from the date the vacancies arose, but not from the date of their promotions on ad hoc basis in 2003-04 nor from 2009 when the Notifications were issued. That the District Judges, who were promoted by Notification dated 26/06/2009 to fill up 25% vacancies through Departmental Competitive Examination under the 2004 Rules would be entitled for the same benefits that could be extended to those who were appointed under 50% quota to be filled up by promotion on the basis of seniority-cum-merit provided there were vacancies existing prior to the 2004 Rules and they possessed the requisite seniority to fill up those posts. The Departmental Competitive Examination taken by those officers is relevant only for adjusting 25% vacancies subsequent to the 2004 Rules i.e., to fill up the quota of 25% vacancies meant for accelerated promotion under the 2004 Rules without disturbing their seniority, in case there were vacancies to which they could have been appointed prior to 2004 Rules. Therefore, the promotions of the ad hoc District Judges as FTC Judges could be treated as regular promotions in the cadre of District Judges under the 1983 Rules and subsequently under the 2004 Rules from the date the vacancy arose, but not from the date of the issuance of the Notifications in the year 2003-04. Their promotions should be adjusted in the quota mentioned in 2004 Rules on the enforcement of those Rules without disturbing their seniority. The 2009 Notifications are in substance regularization of those 60 promotions. Therefore, the seniority of the promotees would have to be reckoned from the date they filled up the vacancy in the cadre of District Judge and not from the date of their appointments as ad hoc Judges in the year 2003-04, nor from the date of the Notifications issued in the year 2009. Even if promotions as ad hoc Judges were in the absence of vacancies under the 1983 Rules, the appointment must be deemed to be made from the date the vacancies arose. But if there were already existing vacancies prior to the date of issuance of the Notifications appointing the ad hoc Judges, it would be from the date of the Notifications.
82. Thus, Learned Single Judge was not right in holding that the 1983 Rules were not applied to the promotions of the officers to the FTCs and that the ad hoc promotees constituted a class which was separate and distinct from those who were appointed to the posts in the cadre in conformity with the Rules of recruitment. As and when the vacancies arose under the 1983 Rules, promotions ought to have been made. At the time when the ad hoc promotions were made, even if there were no vacancies under the 1983 Rules, as and when the vacancies arose, FTC Judges must be deemed to be promoted from the date of the vacancy. The facts in the instant case are peculiar. On the one hand, steps at the right time were not taken to fill up the vacancies till 2009 and on the other hand, due to increase in the work load of the District Courts, the FTC Scheme was evolved and the 61 promotees functioned as District Judges. If the vacancies had been filled up in time over the years, then it is these very promotees who would have been screened and promoted to the vacancies on the basis of seniority-cum-
merit. Therefore, having regard to the dicta of the Hon'ble Supreme Court in BRIJ MOHANLAL-I as well as BRIJMOHAN LAL-II, the ad hoc promotions must enure to the benefit of the promotees at least from the date the vacancies arose in the cadre of District Judges and not from the date of the Notifications appointing them as ad hoc Judges.
83. When the aforesaid dicta are applied to the case at hand, it is noted that when the ad hoc promotions were made on various dates upto 01/05/2003, there were no vacancies in the cadre of District Judges. The vacancy arose only from 01/05/2003 in the quota meant for promotions. Therefore, the ad hoc appointments of the promotees prior to vacancies would not enure to their benefit. The ad hoc appointment of the FTC Judges would enure to their benefit only from the date they filled up the vacancy, which have arisen subsequent to their appointment. The screening of the Judges for appointment under the FTC Scheme and their service as ad hoc Judges are relevant for the purpose of reckoning their length of service from the date they filled the vacancy subsequent to their appointment. In this way ad hoc appointments to the FTCs would become relevant and enure to the benefit of the promotees in the matter of 62 seniority, which is to be reckoned from the date their vacancies arose. Such an interpretation would be in line with the directions issued in BRIJ MOHAN LAL-I and II, particularly, direction No. 14 and paragraph 207.13 respectively. It would also be in line with other judgments of the Hon'ble Supreme Court dealing with seniority cited above.
84. In the result, the writ appeals are allowed and the impugned judgment is set-aside. The RG is directed to prepare a fresh seniority list of the direct recruits and promotees in conformity with the following directions:
(i) As far as the direct recruits are concerned their seniority would be reckoned from the date they were appointed.
(ii) As far as promotees are concerned, their seniority would be reckoned from the date they were appointed to the substantive vacancies i.e., from the date vacancies arose under the quota mentioned in 1983 Rules and not from the date of the Notifications appointing them as FTC Judges, where the vacancies arose subsequent to their appointment. In case, where the vacancies occurred prior to their appointment as FTC Judges, seniority should be reckoned from the date they were appointed as FTC Judges.
(iii) As far as those Judges who took examination by way of accelerated promotion is 63 concerned, they are from two categories (a) ad hoc FTC Judges and (b) Civil Judge (Senior Division).
The ad hoc FTC Judges have to be promoted as per their seniority, in those vacancies, which arose even prior to the examination for accelerated promotion held in the year 2009. Where there were no available vacancies prior to the examination held in the year 2009, the ad hoc FTC Judges would be considered for seniority from the date of Notification promoting them in 25% quota meant for accelerated promotion. As far as the Civil Judges (Senior Division) Judges, who took the examination for accelerated promotion is concerned, as the examination was conducted in 2009, their seniority would obviously be after the entry of the direct recruits on 25/02/2008, is reckoned. In other words, the direct recruits would be senior to the Civil Judges (Senior Division), who were promoted by way of accelerated promotion in the year 2009.
(iv) The said exercise to he carried out in an expeditious manner, preferably within a period of one month from today. All consequential benefitswhich accrue to the promotees shall be given to them in an expeditious manner.
(v) The Notifications issued in the year 2009 shall be construed as regularization of their 64 officiation in the vacancies in the cadre of District Judges where the vacancies arose prior thereto.
(vi) The appeals being allowed and the impugned judgment being set-aside, is without any order as to costs."
23. The Hon'ble Supreme Court in the case of SHYAM SUNDER OBEROI AND OTHER VS. DISTRICT AND SESSION JUDGE TIS HAZARI COURT, DELHI AND OTHERS reported in AIR 2022 SC 462, at paragraph 17 held as under:
"17. We consider it appropriate to observe that the employees who were appointed on ad hoc basis and qualified typing test at the later stage, in absence of the scheme of rules in determining seniority, at least could not have a right to march over such of the employees who were appointed on substantive basis after going through the process of selection for holding regular selection and their right of seniority in no manner be relegated qua such of the ad hoc employees who qualified typing test at a later stage and regularised subsequently from the date of initial appointment like in the instant case by an Order dated 17-11-2000."65
24. The Hon'ble Supreme Court in the case of STATE OF UTTARANCHAL AND ANOTHER VS. DINESH KUMAR SHARMA reported in (2007) 1 SCC 683 at paragraph 31 held as under:
"31. This Court in Vinodanand Yadav v. State of Bihar held on an issue regarding the inter se seniority among the direct recruits and promotees the Court applying the ratio of State of Bihar v. Akhouri Sachindra Nath held that the appellants who were direct recruits shall be considered senior over the promotees not borne on the cadre when the direct recruits were appointed in service. Hence the gradation list drawn under which promotees were given seniority over direct recruits could not be sustained and was thereby set aside."
25. The High Court of Kerala, in the case P.K. HANEEFA, ADDITIONAL DISTRICT AND SESSION JUDGE (AD HOC) FAST TRACK KOTTAYAM-LI, KOTTAYAM reported in (2012) 4 KLJ 673, at paragraphs 69 and 70 held as under:
"69. Since appointment is to be made from the two different sources and when the rule prescribed quotas for 66 each of these sources and also the ratio to be maintained, seniority of appointees to each of these quotas, can be only from the respective dates of their appointment within the quota. It is to facilitate fixation of seniority on the basis and to avoid future disputes that the appointing authority and the High Court made the approval of the pane without prejudice to the claims of the direct recruits. Since the purport of the Special Rules is as understood by us, we do not find anything illegal in the provision in the orders issued by the Government of Kerala or the High Court, that the approval, appointment and the posting of the petitioner shall be without prejudice to the claims of the candidates to be recruited from the Bar.
70. Coming to the issue of reversion of the three persons, who according to High Court were rendered excess when the direct recruits joined service is concerned, in view of our aforesaid conclusions, we are of the view that it was an inevitable consequence. Otherwise, it would not have been possible to maintain the quota prescribed in the Special Rules. Therefore, reversion is absolutely unassailable."
26. In the case of C. JAYACHANDRA VS. STATE OF KERALA AND OTHERS reported in (2020) 5 SCC 230, the Hon'ble Supreme Court approved the law declared by the Full Bench of High Court of Kerala in P.K.HANEEFA 67 (supra). At paragraph 42, the Hon'ble Supreme Court held as under:
"42. As per Mr P.N. Ravindran, the learned Senior Counsel appearing for the High Court, the appellant was assigned seniority at Sl. No. 18 pursuant to the order of the Administrative Committee but consequent to the order of the Division Bench, seniority list was revised and the appellant has been placed in seniority below the officers appointed by transfer in excess of quota and even below Badharudeen who never disputed grant of seniority to him at Sl. No. 42. We also find merit in the argument raised by the learned counsel that in the year 2007, the cadre strength was 96 and out of which 24 posts fall to the quota of direct recruitment. Though, there is no clause that the remainder falls to the quota of in-service candidates, but 1/3rd has to be of a specific number. Since specific cadre strength is 96, therefore, 24 falls to the quota of direct recruits and 72 falls to the quota of appellant by in-service candidates. We are unable to agree with the findings recorded by the Division Bench of the High Court that there is no quota for the promotee candidates. The findings of the Administrative Committee or the assertion of the High Court in the counter-affidavit has not been controverted by any officer. Merely because the Rule does not specifically say that 2/3rd is the quota for in-service candidates, it will not mean that the promotions can be made irrespective of the cadre 68 strength. The promotions may not be annulled, modified or reversed but a candidate will get seniority only if there is a quota meant for appointment of in-service candidates. As per the High Court, as against cadre strength of 96, 126 officers were working i.e. much more than the cadre strength, therefore in the absence of any assertion or finding Respondents 9 and 10 or Respondents 11 and 12 were within their quota. The finding of the Division Bench of the High Court that there is no quota for in-service candidates is clearly erroneous. The Full Bench in Haneefa case has rightly held that the quota for direct recruitment is 1/3rd of the total cadre strength and as a consequence 2/3rd is the quota for in- service candidates. It may be a case of reversion of candidates appointed in excess of quota of in-service candidates but the fact remains that the quota is 1/3rd for direct recruits and consequently, the 2/3rd has to be for in-service candidates which quota has undergone change with amendment of Rules on 9-6-2008. As per the amended Rules, 25% is the quota for direct recruits and 50% is for by-transfer from Category I of Sub-Judges, Chief Judicial Magistrates in the Kerala State Judicial Services on the basis of merit and ability and 25% of the posts are contemplated to be filled up by transfer based upon limited competitive examination and viva voce. Therefore, the finding of the Division Bench of the High Court is clearly erroneous and contrary to the Full Bench judgment and, thus, not sustainable in law."69
27. Having taken note of the declaration of law made by the Division Bench of this Court and the Hon'ble Supreme Court referred to above, I am of the view that, the seniority between the promotees and direct recruitees shall be fixed according to the quota rules as ordered by the Hon'ble Supreme Court in the case of ALL INDIA JUDGES, ASSOCIATION-2010, that is to say, any promotion of the promotees / private respondents in the present case exceeds 65% rota-quota rule and such promotion is contrary to the judgment of the Hon'ble Supreme Court. Accordingly, such excess promotion made to the private respondents is required to be reverted to original post and therefore, the seniority of the petitioners would be fixed from the date of their appointment in their quota. The excess promotees, as against 65% made under the impugned Final Seniority List, are liable to be set aside and in this regard, I am of the opinion that, the respondent No.3 has not considered the declaration of law referred to 70 above made by the Division Bench of this court and the Hon'ble Supreme Court. This aspect of the proposition of law was considered by the Hon'ble Supreme Court in the case of PUNJAB AND HARYANA HIGH COURT AT CHADIGARH VS. STATE OF PUNJAB AND OTHERS reported in (2019) 12 SCC 496 and paragraph 30, 31, 43, 82 to 84 of the said judgment reads as under:
"Discussion
30. The subordinate judiciary of this Country is the backb one of our judicialsystem. It is the subordinate judiciary w hich comes in contact with the common man in administration of justice. This Court in All India Judges Assn. (3) has noticed that the weight on the judicial system essentially rests on the subordinate judiciary. In para 27 the following was observed: (SCC p. 269) "27. ... The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. ..."71
31. The enormous responsibility which is shouldered by the subordinate judiciary demands respectable conditions of service and fulfilment of the due aspirations and expectations of the officers manning the judicial system. The seniority in service plays a very important and vital role in service career of an incumbent. Promotions, different perquisites and benefits follow seniority. It is, thus, very important that due claims of seniority of members of Superior Judicial Service are recognised and implemented by all those on whose shoulder the responsibility of determination and implementation lies. This Court by its direction in All India Judges Assn. (3) case has required uniform procedure for recruitment and rules for determination of seniority with the object of achieving a uniformity and a certainty to minimise the inter se seniority dispute as far as possible. Thus, before we proceed to consider the respective submissions of the parties it is pertinent to refer to the judgment of this Court in All India Judges Assn. (3) case which is the foundation of the 2007 Service Rules and throws light on different aspects of Higher Judicial Service. Issue 1 Whether promotees are in excess of their quota?
43. The High Court in its impugned judgment has noticed the cadre strength of Punjab Superior Judicial Service as 107 on 10-11-2007. The promotion quota under Rule 72 7(3)(a) was determined as 53 and actual working having been found as 58. The High Court noticed that 05 officers were working in excess. Twenty-five per cent quota under Rule 7(3)(b) was determined as 27, which was found to be vacant. Direct recruits were also determined as 21 excluding the officers in position. Fourteen posts were advertised for direct recruitment. One of the issues raised is as to whether for determination of the quota cadre strength has to be looked into or quota has to be determined on the basis of vacancies by bifurcating vacancies as per respective quota. The issue is no more res integra. In All India Judges case (3), this Court in para 29 has held [all India Judges case (3) SCC p. 271] "29. ... One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies."
82. The tentative seniority list was prepared on the basis of continuous length of service, hence, all promotee officers who had joined on 27-2-2018/28-2-2008 have been shown at Sl. Nos. 1 to 14. Parminder Pal Singh and Sukhdev Singh, Fast Track Court Judges from the Bar who were appointed in regular cadre w.e.f. 1-8-2008 have been shown at Sl. Nos. 15 and 16. From Sl. Nos. 17 to 24 were out-of-turn promotees in block and thereafter Sl. Nos. 25 to 35, direct recruits were placed in block. The final tentative seniority list has been approved by the 73 committee after considering the objections. It is reflected in its report dated 11-8-2015. The Full Court approved the report dated 11-8-2015, hence, final seniority list was issued on 24-12-2015. Final seniority list was same as tentative seniority list. The Division Bench of the High Court deciding the writ petitions challenging the seniority list has held:
(i) roster shall be applicable in determination of seniority.
(ii) fifteen promotees promoted under Rule 7(3)(a) were in excess of their quota.
(iii) Promotion of fifteen promotees under Rule 7(3) has to be treated as ad hoc promotion and they shall be placed at the bottom of seniority.
83. The writ petitions were allowed by the Division Bench. In accordance with the judgment of the Division Bench only change in the seniority list was to displace the promotees from Sl. Nos. 1 to 14 and to place it in the seniority list below direct recruits. The Division Bench judgment of the High Court is under challenge before us.
84. In view of the foregoing discussion, we come to the following conclusions:
84.1. Promotion of fifteen officers under Rule 7(3)(a) cannot be held beyond their quota.74
84.2. The promotion of fifteen officers cannot be said to be ad hoc nor can they be directed to be put at the bottom of the seniority list.
84.3. The High Court even though accepted the principle that roster is applicable in the seniority but in the operative portion of the judgment in para 208 did not issue any direction to re-cast the seniority as per the roster given in Appendix B which is an apparent error committed by the High Court.
84.4. The 2007 Rules having been brought in place to give effect to the judgment of this Court in All India Judges Assn. (3) case, while interpreting the 2007 Rules the directions issued by this Court have to be kept in mind and rules cannot be interpreted in a manner so as to violate the directions issued by this Court in the above judgment.
84.5. Rule 7(4) read with Appendix B has to be read in the light of direction of this Court in All India Judges Assn. (3) and harmonious construction of the rule clearly indicates that roster which has been expressly made applicable for filling the post of all the three streams shall be applicable while determining the seniority."
28. It well established principle in law that to enable the seniority to be counted, the incumbent of 75 the post has to be appointed / promoted in terms of the relevant rules (See. 1993 3 SCC 371). It is to be noted that, whether the initial appointment has been made for officiating for some purpose, such officiation, in such post, cannot be taken into account for consideration of the seniority ( see. AIR 1990 SC 1606) and( 2009 AIR SCW 220 ). For the reasons stated above, as there was no vacancy available for the promotees to in excess of 65% in their respective quota, and therefore, the promotion made by the respondent No.3 is contrary to law and as such, the petitioners have made out a case for interference of this Court.
29. Nextly, having taken note of the factual aspects on record, the appointment made to Fast Track Court, on adhoc basis, cannot be counted for the purpose of seniority and their service cannot be considered from their entry into the service. In this regard, the Hon'ble Supreme Court in the case DINESH KUMAR GUPTA AND OTHERS VS. 76 HIGH COURT OF JUDICATURE OF RAJASTHAN AND OTHERS reported in (2020) 19 SCC 604, at paragraphs 40 to 43 held as follows:
"40. In the backdrop of the facts and circumstances on record and the submissions of all the learned counsel, the following questions arise for our consideration:
40.1. (A) Whether the judicial officers promoted on ad hoc basis as Additional District and Sessions Judges to man the Fast Track Courts in the State and who were substantively appointed to the cadre of the District Judge, are entitled to seniority from the date of their initial ad hoc promotion?
40.2. (B) Whether the selection process initiated in terms of the Notification dated 31-3-2011 can be said to be in continuation of the process initiated under the Notification dated 15-4-2010?
40.3. (C) Whether the substantive promotion granted to the 47 judicial officers must be taken to be part of the same selection process pursuant to the Notification dated 31-3-2011 and whether the 47 judicial officers could be placed en bloc senior to the candidates selected in the said selection process initiated pursuant to the Notification dated 31-3-2011, without applying the Cyclic Order in terms of the 2010 Rules?77
40.4. (D) Whether the inter se placement of candidates selected to the cadre of District Judge in the State through Limited Competitive Examination, in the seniority list must be based on their merit in the said examination or should it be based on their initial seniority in the erstwhile cadre?
40.5. (E) Whether the Report dated 15-3-2019 and the consequential final seniority list, otherwise calls for any modification or correction?
41. As regards Question 40.1.(A), the law on the point is well settled and though the learned counsel advanced submissions based on various decisions of this Court and the principles emanating therefrom, the following decisions in the context of ad hoc appointments as Additional District and Sessions Judges to man Fast Track Courts in the country, are sufficient to address the issue:
41.1. In Debabrata Dash v. Jatindra Prasad Das, a Bench of three Judges of this Court considered the case wherein Respondent 1 was initially appointed as Additional District Judge (Fast Track Court) on ad hoc basis and later his service was regularised in the Senior Branch Cadre in Orissa Superior Judicial Service. His claim that service rendered as Judge of the Fast Track Court ought to be reckoned for seniority was accepted by the Orissa High. This Court, however, set aside the decision of the High Court. The question that came up for consideration was 78 posed in para 28 as under : (Debabrata Dash case, SCC p. 667) "28. The crucial question that arises for consideration in this appeal is:
whether promotion of the writ petitioner as an ad hoc Additional District Judge vide Notification dated 5-1- 2002 to the Senior Branch of the Superior Judicial Service for being posted in the Fast Track Court established out of the Eleventh Finance Commission recommendations can be said to be an appointment in the Senior Branch Cadre of Superior Judicial Service?
The fate of the appeal depends upon the answer to this question. If the answer to this question is found in the affirmative, the appeal must fail. On the other hand, the appeal must succeed if the answer is in the negative."
This Court thereafter considered the effect of 2001 Rules which were made to regulate the recruitment of judicial officers in the State to man Fast Track Courts on ad hoc basis. Para 35 considered the effect of the Rules as under : (SCC p. 669) "35. As noted earlier, 72 posts of ad hoc Additional District Judges were created under the 2001 Rules to meet its objectives. These posts were not part of cadre strength of Senior Branch Service in the 79 1963 Rules nor by creation of these posts under the 2001 Rules, the cadre strength of the Senior Branch of service got increased. The writ petitioner's promotion as an ad hoc Additional District Judge vide Notification dated 5-1-2002 pursuant to which he joined the post of ad hoc Additional District Judge, Bargarh on 26-4-2002 is traceable wholly and squarely to the 2001 Rules.
Merely because the writ petitioner was adjudged suitable on the touchstone of the 1963 Rules, we are afraid, it cannot be said that he was given appointment to the post of ad hoc Additional District Judge under the 1963 Rules. As noted above, there was no vacancy to be filled by promotion in the cadre strength of Senior Branch of the service under the 1963 Rules on that date." The decisions of this Court in Direct Recruit Class II Engg. Officers' Assn. [Direct Recruit Class II Engg. Officers' and Rudra Kumar Sain as well as in Brij Mohan Lal were also considered as under : (SCC pp. 671-73, paras 41-44)
41. A five-Judge Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. was concerned with a question of seniority in service between the direct recruits and promotees amongst Deputy Engineers in the State of Maharashtra. This Court considered previous decisions of this Court, including S.B. Patwardhan v. State of 80 Maharashtra and Baleshwar Dass v. State of U.P. and in para 47 of the Report summed up the legal position. Clauses (A), (B) and (C) of para 47 are relevant for the present purpose which read as follows : (Direct Recruit Class II Engg. Officers' Assn., SCC p. 745, para 47) '(A) 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.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.' 81 The essence of direction in Clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed to a post according to the rules. In other words, where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The writ petitioner's appointment as an ad hoc Additional District Judge is not traceable to the 1963 Rules. The simple reason leading to this consequence is that there was no vacancy available which was to be filled up by promotion on that date in the Superior Judicial Service (Senior Branch).
42. In Rudra Kumar Sain a five-Judge Bench of this Court was again concerned with the inter se seniority between the promotees and direct recruits in the Delhi Higher Judicial Service. The contention was whether the guidelines and directions given by this Court in O.P. Singla have been followed or not. The Court considered the 3 terms "ad hoc", "stopgap" and "fortuitous" in the context of the service jurisprudence and in para 20 of the Report held as under : (Rudra Kumar Sain case, SCC p.
45) '20. In service jurisprudence, a person who possesses the requisite qualification for being 82 appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.' The Division Bench in the impugned order has quoted the above paragraph from Rudra Kumar Sain but applied it wrongly.
43. In Brij Mohan Lal [Brij Mohan Lal v. Union of India, a three-Judge Bench of this Court, inter alia, considered the Fast Track Courts Scheme. In para 10 of the judgment, this Court gave various directions. Direction 14 in that paragraph is relevant which can be paraphrased as follows : (SCC p. 10)
(i) No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme.
83
(ii) The service rendered in the Fast Track Courts will be deemed as service rendered in the parent cadre.
(iii) In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.
44. The learned Senior Counsel for the writ petitioner heavily relied upon the third part of Direction 14. As a matter of fact, this part has been relied upon in the impugned judgment as well. It is submitted on behalf of the writ petitioner that on promotion to the Senior Branch Cadre of Superior Judicial Service during his tenure in the Fast Track Courts, the writ petitioner is entitled to the counting of the service rendered by him in the Fast Track Court as a service in Superior Judicial Service (Senior Branch). The submission overlooks the first two parts of Direction 14, one, no right will be conferred in judicial service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the scheme; and two, the service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In our opinion, until the vacancy occurred in the cadre of Superior Judicial Service (Senior Branch) which was to be filled up by promotion, the service rendered by the writ petitioner in the Fast Track Court cannot be deemed to be 84 service rendered in the Superior Judicial Service (Senior Branch). Rather until then, he continued to be a member of the parent cadre i.e. Superior Judicial Service (Junior Branch). The third part of Direction 14, in our view, does not deserve to be read in a manner that overrides the 1963 Rules."
41.2. In V. Venkata Prasad v. High Court of A.P, a Bench of two Judges of this Court considered the case which arose in almost identical fact situation. The claim of the judicial officer concerned for reckoning the service rendered as Additional District Judge (Fast Track Courts) on ad hoc basis was rejected. Reliance was placed on the decision of this Court in Debabrata Dash and the ratio in that decision was followed.
41.3. In C. Yamini v. State of A.P. a Bench of three Judges of this Court considered the issue where the candidates from the Bar were appointed on ad hoc basis and after their consideration, claim was raised to reckon their seniority from the date of initial ad hoc appointment. The relevant observations are : (SCC pp. 234-36, paras 12-15) "12. While rejecting the claim for their absorption and challenge to the notification issued for the recruitment in the regular cadre posts, certain directions were issued in Brij Mohan Lal [Brij Mohan Lal v. Union of India for considering the 85 claims of ad hoc Judges appointed to Fast Track Courts into regular cadre posts. Following the directions only, the second respondent has issued notification inviting applications for appointments to the regular cadre of District Judges and the appellants and others responded to such notification and totally 12 of them were selected for regular vacancies. In the appointment order dated 2-7-2013 in GOMs No. 68 issued by Law (LA & J- SC.F) Department, they were put on probation for a period of two years and after the declaration of successful probation and nearly after four years of appointment, the present claim is made claiming seniority from the date of their initial appointment, as ad hoc District Judges.
13. The claim of the appellants that they were appointed as ad hoc District Judges by following the procedure which is similar to the procedure for appointments to the sanctioned posts in the regular cadre, is no ground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11th Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District 86 Judges covered under A.P. Higher Judicial Service. If a person is not appointed to any post in the cadre, such person cannot claim any seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11th Finance Commission, were continued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation/absorption and challenge to notification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and confirmed by this Court, we are of the view that the appellants have no basis to claim seniority from the date of initial appointment. In any event, having applied in response to the notification issued by the High Court in the year 2013 after availing the benefit of appointment, it is not open to the appellants to question the conditions imposed in the order which is in conformity with rules. Undisputedly, the appellant was appointed as ad hoc District Judges to preside over the Fast Track Courts only. Initially when she was not 87 appointed to a post or category of posts, forming part of cadre strength in such category, the appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the appellant. Though the appellant claims seniority over the persons who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties. On this ground also, the claim of the appellants deserves rejection.
14. We have perused the judgment relied on by the appellant party in person, in Rudra Kumar Sain v. Union of India. In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. The learned Senior Counsel Sri Venkataramani, has also relied on the judgments of this Court in Brij Mohan Lal v. Union of in Debabrata Dash v. Jatindra Prasad in V. Venkata Prasad v. High Court of A.P. and in Brij Mohan Lal v. Union of India . We have looked into the judgments referred above by the learned Senior Counsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would not render any assistance in support of their claim in these cases. The claim of seniority will depend upon 88 several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or not, etc. When the appellants were not appointed to any regular posts in the A.P. Judicial Service, the appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would not render any assistance in support of their case.
15. On the other hand, the judgment in V. Venkata Prasad v. High Court of A.P , this Court has, in clear terms, while considering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are ad hoc in nature and no right accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Para 25 of the said case which is relevant for the purpose of these cases reads as under : (SCC p. 667) '25. From the aforesaid two authorities, it is quite clear that the appointments in respect of Fast Track Courts are ad hoc in nature and no right is to accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular 89 promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services.'"
42. The decisions in Debabrata Dash [Debabrata Dash v. Jatindra Prasad Das, and V. Venkata Prasad [V. Venkata Prasad v. High Court of A.P were in the context where serving judicial officers were granted ad hoc promotions as Fast Track Court Judges, while in C. Yamini the members of the Bar were appointed as Fast Track Court Judges and these decisions thus completely conclude the issue. As has been held in the said decisions, the reckonable date has to be the date when substantive appointment is made and not from the date of the initial ad hoc appointment or promotion. Question 40.1.(A) is, therefore, answered in the negative.
43. As regards Question 40.2.(B), it is relevant to note that the Notification dated 15-4-2010 had invited application for filling up 36 vacancies by direct recruitments and 22 vacancies by promotion through LCE. This was preceded by determination of vacancies through Notification dated 31-3-2010. After the process initiated in terms of the said Notification dated 15-4-2010 was cancelled, a fresh determination of the vacancies was undertaken and the Notification dated 31-3-2011 now found vacancies for direct recruitments, for promotion 90 through LCE and for regular promotion at 37, 32 and 24 respectively. Thus, the vacancies which became available post the Notification dated 15-4-2010 were also taken into account. The Report dated 15-3-2019 shows that some of the selected candidates in the process pursuant to the Notification dated 31-3-2011 had not even participated in the earlier process of 2010. In the premises, if the submission that the process initiated under the Notification dated 31-3-2011 must be held to be in continuation of the earlier selection of 2010 is accepted, it would amount to conferring undue advantages upon persons who either had not participated in the process of 2010 or who were not even eligible in 2010. The Report dated 15-3-2019, therefore, correctly appreciated the fact situation on record and concluded that it would not be in continuation of the earlier process."
30. In the aforesaid judgment, the question before the Hon'ble Supreme Court was related to judicial officers, who were promoted on Adhoc basis as District Judges, in the Fast Track courts, are entitled for seniority from the date of their initial Ad hoc promotion or not? In this regard, the Hon'ble Supreme Court has negatived their contentions and held that, the initial appointment is only Adhoc in 91 nature and not according to the rules and therefore, the Hon'ble Supreme Court held that, such Adhoc Judges have no legal right to claim seniority as against the regular appointees appointed under the Rules. It is to be taken into consideration that, the services rendered by the adhoc Promotee Judges and their seniority is only for the purpose of pensionary and other retiral benefits and not for fixing their seniority from the date of their promotion to the Adhoc assignment. In this regard, Hon'ble Supreme Court in the case of C.YAMINI AND OTHERS VS. HIGH COURT FOR THE STATE OF ANDRA PRADESH AT AMARAVATHI AND ANOTHER in W.P.No.(Civil) 49 of 2022 disposed of on 23.02.2023 at Paragraph 8 held as follows:
"8. Since the services rendered by the petitioners as Fast Track Court Judges have not been recognized by this Court for the purpose of seniority except for pensionary and other retiral benefits, the plea raised by the petitioners to consider their service rendered as Fast Track Court Judges as a judicial service for the purpose of Article 217(2)(a) of the Constitution, in light of the 92 judgment of this Court what being prayed for, is not legally sustainable."
31. It is also relevant to cite the recent judgment of the Hon'ble Supreme Court in the case of RAJENDRA KUMAR SHRIVAS VS. STATE OF MANDHYA PRADESH AND OTHERS, reported in (2023) 5 SCC 364, wherein, paragraph 9 it is held as follows:
"9. Therefore, as per the directions issued by this Court in the aforesaid decision, on and from 1-1-2011, only 10% seats are to be filled up by limited departmental competitive examination. Any appointment beyond 10% seats filled up by limited departmental competitive examination therefore shall have to be considered appointment excess in quota."
32. In the case of ARVINDER SINGH BAINS VS. STATE OF PUNJAB AND OTHERS reported in (2006) 6 SCC 673, the Hon'ble Supreme Court at paragraphs 39 and 59 held as under:
"39. Actual appointment is by virtue of Rule 18 only which says that first and thereafter every alternative vacancy shall be filled up by Register B candidates. In other 93 words, the first officer to be appointed has to be from Register B. This position is also fortified by Rule 24(5) (unamended), the plain reading of which reveals that reference point is once again the candidate from Register B. In para 5(1) of the counter-affidavit, the Government has also admitted that direct recruits have precedence over others. Such precedence has to be reflected in the matter of seniority also. Even otherwise the direct recruits can never be senior to promotees if date of appointment is made the sole criterion in determining the seniority as their process of selection is always lengthier than the promotees. It is in view of this, and to rule out any discrimination/arbitrariness that the roster under Rule 18 has been prescribed which has to be read with Rule 21 in determining the seniority. Making the date of joining as the basis of determining seniority would have led to discretion in the hands of the Government and there would have been a possibility of misuse. It is to avoid this that a roster has been prescribed in the Rules for fixing seniority. This Court held that it is mandatory to apply rota and quota in determining seniority where the same is provided for under the Rules as held by this Court in Mervyn Coutindo v. Collector of Customs, SCR at pp. 604- G to 605-B (5 Judges):
"This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words 'seniority determined accordingly', in the explanation to 94 Principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where therefore recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in government service."
59. We have also referred to the decisions rendered by this Court. This Court said rota and quota must necessarily be reflected in the seniority list and any seniority list prepared in violation of rota and quota is bound to be negated. The action of the respondents in determining the seniority is clearly in total disregard of rota-quota rule prescribed in Rule 18 of the 1976 Rules. 95
The action is, therefore, clearly contrary to the law laid down by this Court. Thus, we hold:
1. that the action of the State is contrary to the 1976 Rules;
2. the seniority under the 1976 Rules must be based on a collective interpretation of Rule 18 and Rule 21 of the 1976 Rules;
3. the action of the authorities is negation of Rule 18 of the 1976 Rules in determining the seniority by the impugned order. Since the action is contrary to law laid down by this Court, we have no hesitation in allowing the appeal and grant the relief as prayed for by the appellant."
33. Applying the aforementioned ratio to the facts on record, the Judicial Officers promoted on Adhoc basis as Additional District and Sessions Judges and their seniority has to be considered only on which date they are appointed substantively as against the vacant post and not from their initial date of appointment as Adhoc District Judges. On careful examination of the impugned Final Seniority List, nothing is stated by the respondent No.3, regarding their 96 ranking as against the substantive post / vacant post and therefore, I am of the view that, the impugned Final Seniority List is required to be set aside in terms of the observations made above.
34. Nextly, having heard the learned counsel appearing for the parties, there are 139 posts, of District Judges are created during years 2003 and 2016 and their cadre strength is increased, however, in terms of the judgment of the Hon'ble Supreme Court, promotion could be given to an extent of 65%, however, the impugned Final Seniority List consisting of more than 65% and further, promotion is made in excess of 65% as against the substantive /vacant post and therefore, the respondent No.3, has failed to classify the block period in the seniority list, hence, I am not convinced with the arguments advanced by the learned Senior counsel appearing for the respondent No.3 that the petitioners have not challenged the appointment of respondent Nos.13 to 82. Having taken 97 note of the observations made above, I have arrived at a conclusion that, reckoning the seniority of the promotees from an anterior date (date of entry) would amounts to violation of Article 14 and 16 of the constitution of India and contrary to rota-quota rule and same is in excess of their quota. Hence, I pass the following:
ORDER
i) Writ petition is allowed;
ii) Final Seniority List of District Judges produced at Annexure-A, issued by the respondent No.3 is set aside and direction is issued to the respondent No.3 to publish the Seniority List in accordance with law, in the light of the observations made above.
SD/-
JUDGE SB