Himachal Pradesh High Court
Sessions Judge vs Union Of India And Others (2002) 4 Scc 247 on 19 October, 2022
Bench: A. A. Sayed, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 19th DAY OF OCTOBER, 2022.
BEFORE
HON'BLE MR. JUSTICE A. A. SAYED, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
SHRI PURENDER VAIDYA
CIVIL WRIT PETITION NO. 4212 OF 2014.
Between:-
DISTRICT &
SESSIONS JUDGE, KULLU, DISTT. KULLU,
H.P. PERMANENT RESIDENT OF
"INDRAPRASTHA" BHEULI, MANDI (H.P.).
......PETITIONER.
(BY SH. BIMAL GUPTA, SENIOR ADVOCATE
WITH SH. AJAY KOCHHAR AND SH. SATISH
SHARMA, ADVOCATES)
AND
1. HIGH COURT OF HIMACHAL PRADESH
THROUGH REGISTRAR GENERAL,
RAVENSWOOD, SHIMLA-171001.
2. SHRI RAKESH KAINTHLA, DIRECTOR,
HIMACHAL PRADESH JUDICIAL ACADEMY,
BOILEAUGANJ, SHIMLA, H.P.
3. SHRI JITENDER KUMAR SHARMA, PRESIDING
OFFICER, LABOUR COURT-CUM-INDUSTRIAL
TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
......RESPONDENTS.
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2
(SH. RAJIV JIWAN, SENIOR ADVOCATE WITH
MS. SHALINI THAKUR, ADVOCATE, FOR
.
RESPONDENT-1)
(SH. SUNIL MOHAN GOEL, ADVOCATE, FOR
RESPONDENT-2)
(SH. R.K. BAWA, SENIOR ADVOCATE WITH
SH. AJAY KUMAR SHARMA, ADVOCATE,
FOR RESPONDENT-3)
__________________________________________________________
Reserved on : 21.09.2022.
This
r petition to
coming on for hearing
Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the following:
this day,
ORDER
The instant petition has been filed for grant of the following substantive reliefs:-
"a) The gradation list (Annexure P-3) may kindly be quashed and set aside to the extent it reflects the placement of petitioner below Respondents 2 and 3.
The respondent No.1 may kindly be directed to assign the seniority/place to the petitioner in the gradation list/seniority list in accordance with Rule 13(2) of the Rules above respondents 2 and 3.
b) Annexure P-7 as well as order of rejection of representation of the petitioner may also be set aside."
2. The petitioner is an Officer of the Himachal Pradesh Judicial Services and was initially appointed as Sub Judge in the ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 3 year 1988 and thereafter promoted as Senior Sub Judge-cum-Chief Judicial Magistrate.
.
3. It is not in dispute that respondent Nos. 2 and 3 were juniors to the petitioner in the rank of Sub Judge as also Senior Sub Judge and this is so reflected in the gradation lists that have been appended with the petition as Annexures P-4 and P-5, respectively.
4. The Government of Himachal Pradesh in the year 2004 framed rules qua the Himachal Pradesh Judicial Service Rules, 2004 (for short "Rules") for regulating the recruitment and conditions of service of Officers of different cadres of the H.P. Judicial Service.
5. The necessity for framing these rules arose on account of and because of the directions passed by the Hon'ble Supreme Court in All India Judges' Association and others vs. Union of India and others (2002) 4 SCC 247.
6. As per the rules of 2004, the method of recruitment to the cadre of District Judges and Additional District Judges was prescribed in the following manner:-
"(a) 50% by promotion from amongst the Civil Judges(Senior Division) on the basis of principle of merit-
cum-seniority and passing a suitability test as may be prescribed & conducted by the High Court in accordance with the regulations>
(b) 25% by promotion from amongst Civil Judges(Senior Division) on the basis of merit through Limited Competitive ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 4 Examination as may be prescribed and conducted by the High Court in accordance with the regulations. For this .
mode the minimum service of five years in the cadre of Civil Judge (Senior Division) is required.
(c) 25% by direct recruitment from amongst eligible Advocates on the basis of examination, written as well as oral (viva voce) test as may be prescribed and conducted by the High Court in accordance with the regulations."
7. The High Court (respondent No.1) considered the matter with regard to the vacancies/anticipated vacancies of District Judges/Additional District Judges, which were to be filled up during the year 2010-11. Such vacancies/anticipated vacancies were to be filled up partly by promotion and partly by Limited Competitive Examination ( for short "LCE")as per rule 5(a) because the direct recruits were already in excess of their quota at the relevant time.
8. After considering the matter and applying the 34-point post based roster, it was found that there were 12 direct recruits from amongst the Advocates as against their quota of 8 only and, therefore, the strength from the quota was decided to be reduced gradually by filling up these posts through promotion or on the basis of LCE. It was further decided not to advertise the posts to be filled up by direct recruitment till their numbers fall below from their quota i.e. 8 as per the cadre strength.
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 59. In this way, there were only two actual vacancies which were required to be filled up on the basis of the LCE from amongst .
the Civil Judges (Senior Division) because at the relevant time there were only two Officers appointed against the said quota though their share in the total cadre strength was 8 (eight).
10. Further, there were four future vacancies which were to fall vacant on account of retirement of the Officers in the said cadre out of which three were to be filled up from the quota of promotee and one from the quota of direct recruits and since the quota of direct recruits was already in excess, therefore, all these four anticipated vacancies were decided to be filled up partly by promotion and partly by LCE.
11. The respondent No.1 decided that out of the aforesaid six existing/anticipated vacancies, first three be advertised/filled up by LCE from amongst Civil Judges(Senior Division) and remaining three by promotion from amongst the eligible Civil Judges(Senior Division). Accordingly, an advertisement was issued on 31.03.2010 for filling up two existing and one anticipated vacancies in the cadre of District Judges/Additional District Judges by way of LCE i.e. by mode (b) of Rule 5.
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 612. At this stage, it needs to be noticed that the petitioner duly participated in this process i.e. LCE, but remained .
unsuccessful.
13. At the same time, a separate advertisement dated 31.03.2010 was issued to fill up the future vacancies in the cadre of District Judge by way of promotion i.e. mode (a) of Rule 5 by respondent No.1 in which the petitioner remained successful.
14. In the final result of LCE and Suitability Test, respondent Nos. 2 and 3 were declared qualified and, therefore, selected. As regards the petitioner, he along with one Shri R.K. Verma qualified the Suitability Test for promotion and accordingly the selection list was sent to the Government. In the said communication, it was mentioned that the seniority of the aforesaid four Officers would be as under:-
(1) Shri Rakesh Kainthla (Respondent No.2) (2) Shri Jitender Kumar Sharma (Respondent No.3) (3) Shri Purender Vaidya ( Petitioner herein) (4) Shri R.K. Vemra
15. Accordingly, the State Government was requested by respondent No.1 to issue necessary Notification appointing the above Judicial Officers as Additional District and Sessions Judges ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 7 on officiating basis against aforesaid vacancies for a period of two years.
.
16. Now, the grouse of the petitioner is that he being a senior in the cadre of Sub Judge as also Senior Sub Judge ought to have been placed above respondent Nos. 2 and 3 in the gradation list circulated in the year 2011 and having failed to do so, the same is contrary to Rule 13 of the Rules.
17. The claim of the petitioner has been r opposed by respondent No.1 not only on the ground of estoppel, but also on the basis of Rules relating to determination of seniority as laid down in Rule 13 whereby it has been provided that where Officers are recruited to a cadre by promotion and direct recruitment, seniority shall be regulated by the roster maintained for such recruitment.
18. In addition thereto, it has been submitted that since the petitioner was appointed by way of promotion i.e. mode(a) prescribed under Rule-5 of Rules 2004 against the future/anticipated vacancies in the cadre of District Judges/Additional District Judges, whereas, respondent Nos. 2 and 3 were appointed by way of LCE held in the year 2010, then as per post based roster, they were recruited/appointed against the higher point of roster and were rightly ranked senior to the petitioner in view of Rule 13(1).
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 819. The private respondent No.2 has contested the petition by filing a separate reply wherein it has been averred that at .
the time of commencement of the 2004 Rules i.e. on 17.03.2004, the cadre strength of the District Judges/Additional District Judges was thirty one. Out of these thirty one posts, 10 were manned by direct recruits and twenty one by promotees. However, none of these were manned by an incumbent inducted by way of process envisaged under Rule 5(b) i.e. by way of LCE.
20. The first Officer appointed through LCE was Shri Rajiv Bhardwaj in the year 2009. Thereafter, respondent Nos. 2 and 3 were inducted under this mode in the year 2010.
21. It is further averred that the cadre strength of District Judges/Additional District Judges as on 20.09.2008 was increased to 34. Thus, as per 2004 Rules, 17 posts fell to the share of source mentioned at Rule-5(a) and 8-9 at sources mentioned at Rule 5(b) and 5(c) since in the year 2009, the incumbents holding the posts of District Judges/Additional District Judges pertaining to source (a) mentioned in Rule 5(a) were twenty.
22. In other words, when the petitioner was considered and promoted against the post of District Judge/Additional District Judge, there were no vacancies available for this category and, therefore, his appointment was in excess of the quota. Whereas, ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 9 the private respondents have been appointed after following the due process of law in which process even the petitioner also participated, .
but remained unsuccessful and is, therefore, estopped from filing the instant petition.
23. Respondent No.3 has also contested the petition by filing a separate reply wherein apart from reiterating what other co-respondents have stated, it has been averred that as per Rule 13(1), respondent Nos. 2 and 3 have been appointed against higher point of roster and are ranked senior to the officer. It has been further stated that since respondent Nos. 2 and 3 have been appointed against the existing vacancies and on higher point of roster as against the petitioner, who has been appointed to the lower point in the cadre against the anticipated vacancies, therefore, in terms of Rule 13(1) of the Rules, they have rightly been ranked senior to the petitioner.
24. We have heard the learned counsel for the parties and have gone through the material placed on record.
25. At the outset, it needs to be noticed that even though the petitioner had admittedly participated in the LCE but was unsuccessful. What would be the effect of having participated in the selection process and having remained unsuccessful would be discussed in the later part of the judgment. However, we notice that ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 10 this fact of having participated in the LCE has not at all been disclosed by the petitioner in the writ petition and would, therefore, .
be a ground in itself sufficient enough to dismiss the petition at the threshold without considering the merits of the claim in light of the settled law, more particularly, the judgment rendered by the Hon'ble Supreme Court in K.D. Sharma vs. Steel Authority of India Limited and others (2008) 12 SCC 481. Therein, it has been held that the jurisdiction of the Hon'ble Supreme Court under Article 32 and that of the High Court under Article 226 is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ Court must come with clean hands, put forward all the facts before the Court without concealing and suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.
26. Similar reiteration of law can be found in a fairly recent judgment of the Hon'ble Supreme Court in Shri K. Jayaram & Ors. vs. Bangalore Development Authority & Ors. 2021 (14) Scale 663 wherein it was held as follows:-
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 11"12. It is well-settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is .
extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
13. This Court in Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. It was held thus:
"33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 12 the petition and dismiss it without entering into merits of the matter."
.
14. In Udyami Evam Khadi Gramodyog Welfare Sanstha and Another v. State of Uttar Pradesh and Others (2008) 1 SCC 560, this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
15. In K.D. Sharma v. Steel Authority of India Limited and Others (2008) 12 SCC 481, it was held thus:
"34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.
35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs.- (1917) 1 KB 486 : 86 LJKB 257 :
116 LT 136 (CA) in the following words: (KB p. 514) "... it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 13 when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of .
all the material facts--it says facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement."
(emphasis supplied)
36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done."
The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.
37. In Kensington Income Tax Commrs.
(supra), Viscount Reading, C.J. observed: (KB pp. 495-96) "... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 14 the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further .
with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."
(emphasis supplied)
38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 15 and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any .
qualification. This is because "the court knows law but not facts".
39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands".
Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in r equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court."
27. As regards the petitioner having participated in the LCE and having remained unsuccessful, the consequences are not only that he is estopped to challenge the selection process, but he would not even have locus to raise the grounds as sought to be raised in the instant petition.
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 1628. As observed above, the petitioner was already shown to be the senior in the gradation lists of Sub Judges and thereafter .
Senior Sub Judges issued vide Annexures P-4 and P-5, respectively. If the LCE would not entitle a successful candidate to the seniority other than the one assigned in the gradation list, as is now sought to be agitated, then we wonder why the petitioner would have, in the first place, participated in such examination. It is with his eyes wide open and understanding the entire ramifications and outcome of such LCE that the petitioner participated in the said process and is thus estopped from laying challenge to the assignment of seniority in favour of respondent Nos.2 and 3. The instant petition is nothing, but an afterthought and is, therefore, not maintainable.
29. Shri Bimal Gupta, learned Senior Counsel, assisted by Shri Ajay Kochhar and Shri Satish Sharma, Advocates, for the petitioner, would then vehemently argue that the judgment of the Hon'ble Supreme Court in All India Judges' Association case (supra) would have no bearing in the instant case as the same is prospective and, therefore, the ratio of the Officers as existing before amended Rules cannot be adversely affected. Strong reliance in support of this contention has been placed on the judgment rendered by the Hon'ble Supreme Court in Hon'ble ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 17 Punjab and Haryana High Court at Chandigarh vs. State of Punjab and others (2019) 12 SCC 496 wherein it was held as .
under:-
"49. The judgment of this Court in All India Judges Association(3) v. Union of India (2002) 4 SCC 247 being prospective, the ratio of officers as existing before unamended rules can not be adversely affected. A promotee before the amendment of Rules, 2004, who was well within their quota, suddenly cannot go out of their quota and become an excess merely on the strength of amendment of Rules, which are prospective in nature. For determining the quota, the cadre strength, which existed prior to amended rules and subsequent to the amended rules have to be treated differently. Promotees quota, which was 75 per cent prior to 2004 Rules makes 66 posts in their quota as before amendment dated 15.01.2004, when the cadre strength has been increased from 89 to 107, 18 posts have to be further added to the cadre. This increase having been made after the amendment of the Rules dated 15.01.2004, on this cadre strength, the Rules as amended will be applied for bifurcation of quota. On 18 newly created posts, 50 percent comes to 9, for out of turn promotees 4.5 and for direct recruits 4.5. Thus promotee officers on or after the increase of the cadre could have been 66+9 i.e. 75. In the appeal filed by the High Court, it is also indicated that 10 promotees were affected in October, 2004 under 50 per cent quota of merit- cum-seniority. The rules providing 25 per cent quota for out of turn promotion being in place, at-least few vacancies ought to have been given to the out of turn promotees. There ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 18 is no details of any further promotion or appointment made after 2004 to 2008.
.
50. The out-of- turn promotion quota having been culled out only as per the judgment of this Court in All India Judges case, which was to be required in the Rules by the State, the said quota will come into existence only prospectively. An out-of-turn promotee cannot claim that they should be given 25 per cent posts of the cadre strength right from day one. It is true that quota has to be determined on the basis of cadre strength but determination of the cadre strength has to be made taking into consideration that rules amended w.e.f.
15.01.2004 were prospective in nature and cannot impair or affect any right, which accrued to the member of judicial service prior to the amendment of the Rules."
30. However, we find no merit in the said contention as it is not in dispute that the petitioner prior to the promulgation of the Rules had only been officiating as Additional District and Sessions Judge in the Fast Track Court and was not holding a substantive post in question.
31. That apart, the aforesaid judgment in State of Punjab's case (supra) would not apply as the consideration therein was confined to the quotas as were fixed prior to the promulgation of the Rules which is not the fact situation obtaining in the instant case.
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 1932. The petitioner, as observed above, was working only on officiating basis and, therefore, cannot claim any right much less .
a substantive right of seniority on the basis of such officiating post.
33. In order to better appreciate the controversy in the instant case, it would be necessary to refer to the advertisements that were issued for filling up the posts as held by the petitioner on promotion at one hand and on the other hand as held by respondent Nos.2 and 3 through LCE. Both the notices were dated 31.03.2010.
As regards the notice in terms whereof the petitioner came to be appointed, the same reads as under:-
"HIGH COURT OF HIMACHAL PRADESH "REVENSWOOD", SHIMLA-171001 No.HHC/GAZ./14-158/84-III- Dated : 31st March, 2010 Website: http:/himachal.nic.in/high court NOTICE The vacancies in the different cadres of H.P. Judicial Service to be filled in by promotion from amongst the eligible Judicial Officers during the year 2010 are notified as under:-
1. Additional District and Sessions Judges in the cadre of District Judges/Additional District Judges:
(a) Existing vacancies = nil
(b) Future vacancies that may = 3.
arise within one year due to
retirement
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20
2. Presiding Officers, Fast Track Courts in the rank of Additional District and Sessions Judges, on ad hoc basis:
.
(a) Existing vacancies = Nil (b) Future vacancies that may arise = 7 within one year due to retirement
3. Civil Judges (Senior Division) on ad hoc basis:
(a) Existing vacancies = Nil
(b) Future vacancies that may arise = 7
within one year due to retirement
The intending eligible Judicial Officers may visit the High Court Website for collecting relevant information with regard to eligibility criteria time schedule, all matters connected therewith including Rules and Regulations, and all the relevant terms and conditions connected with the Selection Process.
By Order of the Hon'ble High Court sd/-
(S.K. Chaudhary) Registrar General."
34. Now, as regards notice under which respondent Nos. 2 and 3 came to be appointed, the same reads as under:-
"HIGH COURT OF HIMACHAL PRADESH "REVENSWOOD", SHIMLA-171001 No.HHC/GAZ/14-158/84-III- Dated : 31st March, 2010 Website: http:/himachal.nic.in/high court NOTICE Applications on the prescribed format are invited from eligible Civil Judges (Senior Division) having minimum service of five years in the said cadre including the ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 21 Presiding Officers, Fast Track Courts for promotion and appointment as Additional District and Sessions Judge in .
H.P. Judicial Service in the cadre of District Judges/Additional District Judges on the basis of merit by Limited Competitive Examination against the following vacancies:
(a) Existing vacancies = 2.
(b) Future vacancies that may = 1.
arise within one year due to
retirement
Last date for receipt of applications : 30.04.2010 Date of written Examination : 30.06.2010 The intending eligible Judicial Officers may visit the High Court Website for collecting relevant information with regard to eligibility criteria, Format of application, Time Schedule, all matters connected therewith including Syllabus, Rules and Regulations, and all the relevant terms and conditions connected with the Selection Process.
By Order of the Hon'ble High Court sd/-
(S.K. Chaudhary) Registrar General."
35. It is clearly evident from the above that there were three future vacancies in the rank of Additional and Sessions Judge in the cadre of District Judges/Additional District Judges and there were seven future vacancies in the rank of Additional and Sessions Judge for being posted as Presiding Officers, Fast Track Courts.
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 22Whereas, on the other hand, there were two clear-cut vacancies in the cadre of District Judges/Additional District Judges including .
Presiding Officers, Fast Track Courts, to be filled up on the basis of merit by LCE. In addition to that, there was another vacancy which was likely to arise in future.
36. Thus, in these circumstances, the petitioner otherwise cannot claim any parity with respondent Nos. 2 and 3 as they have been appointed against the regular clear-cut vacancies through LCE as against the petitioner, who has been appointed against future vacancies that too on ad hoc basis.
37. Even otherwise, the claim of the petitioner regarding his seniority is absolutely fallacious as it fails to draw a distinction between a post and vacancy. It is more than settled that cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in the given cadre and percentage to which as specified in Rules concerned has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancies that would occur.
38. It shall be apt to reproduce the observations made by three Judge Bench of the Hon'ble Supreme Court in Srikant Roy and others vs. State of Jharkhand and others (2017) 1 SCC 457 ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 23 wherein the Hon'ble Supreme Court has clearly drawn a distinction between "post" and "vacancy" in the following manner:-
.
"20. Indeed, the High Court in the impugned judgment has adverted to the decision of this Court in All India Judges' Association & Ors.(3) Vs. Union of India & Ors. (2002) 4 SCC 247 which has enunciated the principle of roster and the ratio to be followed for the post of Additional District Judge. Indisputably, pursuant to the decision of this Court the Rules were amended, which came into effect from 20th August 2004. In paragraph 27 to 29 of the said decision, this Court has considered the question regarding the method of recruitment to the post in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. The same reads thus: (SCC pp.269-71) "27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 24 imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has .
recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum- seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 25 cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive .
examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.
28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be:
(1)(a) 50% by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;
(b) 25% by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and
(c) 25% of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High Courts as early as possible.
29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 26 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 (1995) 2 SCC 745. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case as early as possible. We hope that as a 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 ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 27 evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by .
31-3-2003."
(emphasis supplied) "24. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court."
39. As already observed above, as per the 34 point post based roster, it was found that there were 12 direct recruits from amongst the Advocates as against their quota of 8 only. Therefore, ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 28 the strength from this quota was decided to be reduced gradually by filling up these posts through promotion or on the basis of the .
LCE as on the date of decision there were admittedly two actual vacancies which were required to be filled up on the basis of the LCE from amongst the Civil Judges (Senior Division) because at the relevant time there were two Officers appointed against the said quota, though their share in the total cadre was eight.
40. Here, it shall be apposite to reproduce the relevant provisions as contained in Rules 5 and 13 which read as under:-
""RULE-5.
Method of recruitment, qualification and age limit.-In respect of each category of posts specified in column(2) of the Table below, the method of recruitment and minimum qualification, age limit etc. shall be as specified in the corresponding entries in columns(3) and (4) thereof.
TABLE UNDER RULE-5 Sr.No. Cadre Method of recruitment Qualifications, age limit and experience etc. 1 2 3 4
1. District (a) 50% by promotion Must have been Judges/Additional from amongst the Civil in the cadre of District Judges Judges (Sr.Divn.) on the Civil Judges (Sr. basis of principle of Divin) for a period merit-cum-seniority and of not less than passing a suitability two years.
test as may be prescribed & conducted by the ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 29 High Court in accordance with the regulations.
.
Minimum service
(b) 25% by promotion of five years
from amongst Civil including the
Judges (Sr.Divn.) on the service rendered
basis of merit in the cadre of
through limited Civil Judges
Competitive examination (Junior Division).
as
may be prescribed and
conducted by the
High court in accordance
with the
regulations.
The following
(c) 25% by direct shall be the
recruitment, from amongst eligibility criteria,
eligible Advocates, on the including
basis of qualifications,
examination, written as age limit and
well as oral (viva experience etc.-
voce) test as may be
prescribed and (i) citizen of
conducted by the High India.
Court in accordance
with the regulations. (ii) Holder of a
degree in Law as
recognized by
the bar Council of
India
(iii) Practising
Advocate at the
Bar for a
minimum period
of seven years as
on the last date
fixed for receipt
of the
applications.
Note.-For the
purpose of this
clause, in
::: Downloaded on - 19/10/2022 20:04:39 :::CIS
30
computing the
period during
which a person
.
has been an
Advocate there
shall be included
any period during
which he has
held a judicial
office.
Explanation I.-
Judicial Officer
includes any
other Office as
may be
prescribed being
r equivalent to a
Judicial Office, by
the High Court in
the regulations
made for this
purpose.
(iv) Must have
attained the age
of thirty-five years
and must not
have attained
the age of forty-
five years as on
the last date
prescribed for
receipt of
applications.
Explanation-II.-
Appointments to
the cadre of the
Distt. Judges
from categories
(a), (b) & (c) shall
be in accordance
with 40 points
roster to be
maintained by
the High Court in
::: Downloaded on - 19/10/2022 20:04:39 :::CIS
31
this behalf."
.
"RULE-13
Seniority:- (1) Where Officers are recruited to a cadre by promotion and direct recruitment, seniority shall be regulated by the roster maintained for such recruitment. Officer appointed against higher point of roster shall rank senior to the Officer appointed against a lower point:
Provided that no person appointed to a cadre by direct recruitment shall, for the purpose of fixation of his seniority claim any particular place in seniority unconnected with the date of his actual appointment.
(2) Where more than one Officers are promoted to cadre at the same time inter-se-seniority of persons so promoted shall be determined by the inter-se-seniority in the lower cadre.
(3) Where direct recruitment is made to a cadre, the inter-se-seniority of persons so recruited shall be in the order in which their names are arranged in the select list. (4) Every year in the month of January seniority list of Officers in all cadres shall be prepared and published by the High Court and the lists so published shall be issued for the purpose of making promotions to the next higher cadres."
41. As per Rule 13(1) in case the Officers are recruited to a cadre by promotion and direct recruitment, the seniority shall be regulated by the roster maintained for such recruitment and the officer appointed against the higher point of roster shall rank senior ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 32 to the officer appointed against lower point of roster and this is what precisely respondent No.1 has done in the instant case.
.
42. The petitioner was appointed by way of promotion i.e. mode (a) prescribed against future/anticipated vacancies in the cadre of the District Judges/Additional District Judges, whereas, respondent Nos. 2 and 3 were appointed by way of LCE held in the year 2010 and as per the post based roster, they were recruited/appointed against higher point of roster. Therefore, in view of Rule 13(1), respondent Nos. 2 and 3 have rightly been ranked seniors to the petitioner and accordingly placed above the petitioner in the seniority list circulated/issued in the year 2011.
43. As regards the reliance placed by the learned Senior Counsel for the petitioner upon Rule 13(2) for claiming seniority over and above the private respondents, the same is clearly misplaced as the said rule is not at all applicable in the instant case and rather the seniority is to be fixed under Rule 13(1) because the same would be applicable only in case two incumbents are recruited from the same source/category.
44. Apart from the above, there is otherwise no merit in the claim of the petitioner regarding the assignment of seniority over and above respondent Nos. 2 and 3 in view of the Explanation No.2 ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 33 appended with Rule 5 (infra) which clearly provides that appointments to the cadre of District Judges from categories (a), (b) .
and (c) shall be in accordance with the 34 points roster to be maintained by the High Court in this behalf.
45. Acceding to the contention of the petitioner would defeat the very objective for introduction of the LCE as laid down in All India Judges' Association's case (supra) wherein it was held that there should be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion.
46. At this stage, it shall also be fruitful to refer to a recent decision of the Hon'ble Supreme Court in Dinesh Kumar Gupta and others vs. High Court of Judicature of Rajasthan and others (2020) 19 SCC 604 wherein the Court was dealing with a case where Judicial Officers like the petitioner had been promoted on ad hoc basis as Additional District and Sessions Judges to man the Fast Track Courts in the State and had been substantially appointed to the cadre of District Judge. A question arose as to whether such Officers would be entitled to seniority from the date of their initial ad hoc promotion? Answering the question, it was held that if the list of successful candidates which is to be drawn up ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 34 strictly on the basis of the merit, it is possible that the last person in the list of selectees may be the senior most and going by the report .
of the Committee, if all the selectees are promoted in the same year, then such last person may as well be at the top of the list of promotees through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background. The consequences would be that instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria then shall become seniority subject to passing the LCE which would be contrary to the directions issued in All India Judges' Association Case to afford an incentive to the meritorious candidates regardless of the seniority. It shall be apt to reproduce the relevant observations made in paragraphs 48 to 50 which read as under:-
"48. While considering Question 40.4. (D), it is relevant to notice the emphasis placed by this Court in All India Judges Association(3) v. Union of India (2002) 4 SCC 247, while directing that 25 per cent of the posts in the cadre of the District Judge be filled through LCE. It was stated in paragraph 27 that there should be an incentive amongst relatively junior and other officers to improve and to compete with each other so as to excel and get accelerated ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 35 promotion. In paragraph 28 the relevant direction again stressed that 25 per cent quota for promotion through LCE .
be "strictly on the basis of merit."
49. Rule 31(2) of 2010 Rules also uses the expression "strictly on the basis of merit" while dealing with posts to be filled in through LCE. The merit is to be assessed in terms of the scheme laid down in the relevant Schedule. After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, medical fitness etc. However, placing reliance on Rule 47(4), the Committee in its Report dated 15.03.2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotion.
If the list is to be drawn up according to merit, it is possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotees through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background. Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to passing the LCE. The direction issued in All India Judges Association(3)1 to afford an incentive to meritorious ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 36 candidates regardless of their seniority would not thus be carried out. The general principle appearing in Rule 47(4) .
must, therefore, give way to the special dispensation in Rule 31(2) of 2010 Rules.
50. In our view, the High Court in its Report dated 15.03.2019 completely failed to appreciate the true character of LCE and reservation of certain quota for that category. We, therefore, accept the submissions made by the learned Advocate for the petitioners in Writ Petition (Civil) No.498 of 2018 and Diary No.13252 of 2019 and while answering Question 40.4. (D) declare that the inter se placement of the candidates selected through LCE must be based on merit and not on the basis of the seniority in the erstwhile cadre. The said Writ Petitions are allowed to that extent."
47. We may also refer to another recent judgment in Prem Narayan Singh and others vs. High Court of Madhya Pradesh (2021) 7 SCC 649, wherein the Hon'ble Supreme Court after placing reliance on the judgments rendered in Dinesh Kumar Gupta's case (supra) and All India Judges' Association's case (supra) held that reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services.
Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50% of the posts of District Judges shall be filled up by promotion on the principle of merit-cum-
::: Downloaded on - 19/10/2022 20:04:39 :::CIS 37seniority. In that case therein, the Administrative Committee of the High Court had taken a decision that inter se seniority of the District .
Judges selected through LCE should be made basis of merit in the examination and in the order in which they are recommended for promotion. On 14.12.2017, the Administrative Committee held that the inter se seniority in the feeder cadre shall not be affected. It was resolved that the LCE shall only be for considering the suitability and it was not intended to alter the inter se seniority of the candidates selected in the LCE. The recommendation made by the Administrative Committee was approved by the Full Court on 18.12.2017 constraining the petitioners therein to approach the Hon'ble Supreme Court. Disapproving the recommendation of the Administrative Committee as approved by the Full Court, it was observed by the Hon'ble Supreme Court in paragraphs 16 to 18 which read as under:-
"16. We are not in agreement with the learned Senior Counsel appearing for the impleaded respondents that the judgment of this Court in Dinesh Kumar Gupta v. High Court of Rajasthan (2020) 19 SCC 604 is contrary to the law laid down by this Court in All India Judges' Association (3) v. Union of India (2002) 4 SCC 247. Much stress was laid by Mr. Dave on the fact that introducing a channel of appointment to District Judges would only be providing a method of recruitment and no more. The incentive that was ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 38 directed to be given to junior officers working as Civil Judges for promotion as District Judges solely on the basis of merit .
would be defeated if their seniority in the cadre of District Judges is not determined on the basis of their merit in LCE.
17. The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50 per cent of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter se amongst those who have been promoted through LCE.
18. Rule 11 (1) of the 2017 Rules makes it clear that the relative seniority of members of the service who are holding substantive posts at the time of commencement of the Rules shall be as it existed before the commencement of the Rules. The seniority of the Petitioners which has been determined prior to the 2017 Rules cannot be disturbed. The Petitioners will not be adversely affected by Rule 11 (4) (b) of the 2017 Rules which alters the criteria for determination of seniority from merit to inter se seniority in the lower cadre.
The resolution of the Administrative Committee approved by the Full Court being contrary to the law laid down by this Court in Dinesh Kumar Gupta's case is set aside. Consequently, the gradation list of the District Judges dated 01.02.2019 shall be revised in accordance with the law laid down by this Court in Dinesh Kumar Gupta case."
48. In view of the aforesaid discussion and for the reasons stated above, we find no merit in this writ petition and the same is ::: Downloaded on - 19/10/2022 20:04:39 :::CIS 39 accordingly dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
.
( A.A. Sayed ) Chief Justice ( Tarlok Singh Chauhan ) Judge 19th October, 2022.
(krt) ::: Downloaded on - 19/10/2022 20:04:39 :::CIS