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1 - 10 of 13 (0.22 seconds)Madan Mohan Singh And Anr. And Jitendra ... vs The State Of Bihar And Ors. on 16 December, 1991
16. Before the notification dated 30.4.1991 promoting the
contesting respondents to the posts of Additional District and Sessions
Judges had been issued, the total number of permanent and temporary
posts in the said cadre was 251 in which the quota of direct recruits
was 83 and that of promotee officers was 168. However, the complete
quota meant for the promotee officers had already been filled up much
before 30.4.1991 and there was absolutely no scope for any further
promotion. When steps were being taken to make appointments by
promotion of the contesting respondents and some others, C.W.J.C.
No. 945 of 1991 (Madan Mohan Singh vs. State of Bihar) was filed in
the High Court wherein an interim order was passed on 25.4.1991 to
the effect that such promotion and the question of seniority of the
persons so promoted shall abide by the final results of the writ
petition. It was further directed that in the appointment/promotion
order the said condition shall be incorporated and the promotees will
have to give a written consent for accepting such a condition. It is not
in dispute that the appointment/promotion order of the contesting
respondents contained such a condition and respondent Nos. 4 and 6
to 11 joined at their respective places of posting after they had
submitted their consent letters/undertakings. The contesting
respondents having been promoted in the vacancies which in fact were
in the quota of direct recruits, in normal circumstances, their
promotion was liable to be rescinded after the decision of the writ
petition. However, as mentioned in the counter affidavit filed by the
Registrar General on behalf of the High Court in C.W.J.C. No. 11620
of 1996 filed in the Patna High Court, this step was not taken on
sympathetic consideration. Instead the promotees were allowed to
continue treating them as having been promoted against subsequent
quota of promotees.
K.P. Verma vs State Of Bihar And Ors. on 10 April, 1989
2. The Bihar Superior Judicial Service Rules, 1946 (hereinafter
referred to as the "Rules") provide for appointment to the post of
Additional District and Sessions Judge by two sources, namely, by
direct recruitment from amongst members of the Bar and by
promotion from amongst members of the Bihar Civil Service (Judicial
Branch), and they further provide that one-third posts in the cadre of
service shall be filled in by direct recruitment and two-third shall be
filled in by promotion. It appears that direct recruitment to Bihar
Superior Judicial Service was not regularly made and often the posts
of Additional District and Sessions Judges were filled in by
promotion. After the year 1979 an advertisement was issued in the
year 1985 inviting applications for making appointment to the posts of
Additional District and Sessions Judges by direct recruitment. Even
after the said advertisement had been issued, no action was taken for
making the selection for a considerable period of time. One K.P.
Verma then filed a writ petition in Patna High Court praying that a
writ of mandamus be issued to the State Government and to the High
Court on the administrative side to observe the constitutional mandate
of Article 233 of the Constitution and to make appointments by
making direct recruitment from amongst members of the Bar in order
to comply with the requirement of the Rules whereunder one-third
appointments to the posts of Additional District and Sessions Judges
had to be made by direct recruitment. The writ petition was heard by
a Full Bench of three learned Judges and the judgment is reported in
K.P. Verma vs. State of Bihar AIR 1989 Patna 276. In the said
judgment a direction was issued to the State Government and to the
High Court on the administrative side to make appointments to the
posts of Additional District and Sessions Judges by direct recruitment
of members of the Bar within a period of six months from the date of
the judgment and a further direction was issued that in no case the
vacancies meant for direct recruits shall be filled in by promotion or
vice versa and the continuity and the parity shall be maintained until
altered by due process of law. In compliance with the aforesaid
direction a fresh advertisement was issued in the year 1989 inviting
applications from eligible members of the Bar for the purpose of
making direct recruitment to the posts of Additional District and
Sessions Judges. A written examination was thereafter held, which
was followed by interview and a merit list containing names of 129
candidates was declared on 24.11.1990, which was to remain valid till
November, 1991. Out of this merit list the High Court recommended
names of 32 candidates, in order of merit, for appointment as
Additional District and Sessions Judges in the quota of direct recruits.
The appellants, who are nine in number, were amongst those 32
candidates, whose names had been recommended to the State
Government for appointment.
Rudra Kumar Sain & Ors vs Union Of India & Ors on 22 August, 2000
19. The learned counsel for the appellants has also submitted that
the appointment of the contesting respondents was not only contrary
to Rules but was fortuitous in nature and they can get no advantage of
such fortuitous appointment until a substantive vacancy was available
in their quota, which in fact became available much later some time in
the year 1993-94, which is long after the appointment of the
appellants. What is a fortuitous appointment has been explained in a
Constitution Bench decision of this Court in Rudra Kumar Sain vs.
Union of India (2000) 8 SCC 25. After observing that the Rules in
question did not define the terms "ad hoc", "stopgap" and
"fortuitous", which are in frequent use in service jurisprudence, the
Court referred to several dictionaries. The meaning given to the
expression "fortuitous" in Stroud's Judicial Dictionary is "accident or
fortuitous casualty". This should obviously connote that if an
appointment is made accidentally, because of a particular emergent
situation, such appointment obviously would not continue for a
reasonably long period. In Black's Law Dictionary the expression
"fortuitous" means "occurring by chance", "a fortuitous event may be
highly unfortunate". It thus indicates that it occurs only by chance or
accident, which could not have been reasonably foreseen. In Oxford
dictionary the meaning given to the word "fortuitous" is happening
by accident or chance rather than design. In our opinion it will not be
proper to hold that the promotion of the contesting respondents was
fortuitous as contended by learned counsel for the appellants. It
cannot be said that the contesting respondents were promoted by
accident or by chance. Their promotion order was passed as there
were vacancies to the posts of Additional District and Sessions
Judges, though in the quota or direct recruits, but as no recruitment
from the said channel had been made for a long time and sufficient
number of candidates were not available, the vacancies were filled in
by giving promotion to members of Bihar Civil Service (Judicial
Branch). If promotion orders had not been passed and the posts had
not been filled in, the judicial work in the districts would have
suffered. However, it is clear that having regard to the various orders
passed on the judicial side by the Patna High Court and the legal
position being well settled that the temporary posts have also to be
counted for determining the one-third quota of direct recruits, the
promotion given to the contesting respondents was not in accordance
with law. Instead of taking the harsh step of rescinding their order of
promotion the Patna High Court, on the administrative side, took the
decision to treat them promoted against subsequent quota of
promotees. Therefore, the contesting respondents can under no
circumstances claim seniority over the appellants and the view to the
contrary taken by the Jharkhand High Court on 29.8.2002 on
administrative side and also in the judgment and order dated 1.4.2003,
which is the subject-matter of challenge in the present appeal, is
wholly erroneous in law.
P.S.Mahal & Ors vs Union Of India & Ors on 23 May, 1984
In P.S. Mahal vs. Union of India (1984) 3 SCR 847, it was held as
under: -
Keshav Chandra Joshi And Ors. Etc vs Union Of India And Ors on 6 November, 1990
13. The same question was considered in Keshav Chandra Joshi
and others vs. Union of India and others 1992 Supp. (1) SCC 272,
with reference to U.P. Forest Service Rules, 1952, which provide for
recruitment to the posts of Assistant Conservator of Forest by direct
recruitment and by promotion. In paragraph 24 of the report it was
held that the rule of quota being a statutory one it must be strictly
implemented and it is impermissible for the authorities concerned to
deviate from the rule due to administrative exigencies or expediency.
It was further held that the result of pushing down the promotees
appointed in excess of the quota may work out hardship but it is
unavoidable and any construction otherwise would be illegal,
nullifying the force of statutory rules and would offend Article 14 of
the Constitution.
Bihar Reorganisation Act, 2000
Direct Recruit Class Ii Engineering ... vs State Of Maharashtra And Ors on 2 May, 1990
Learned counsel has
also referred to a decision of this Court in Direct Recruit Class II
Engineering Officers' Association vs. State of Maharashtra (1990) 2
SCC 715 and in particular drawn our attention to the opening part of
paragraph 23 of the report where it is said, "Mr. Tarkunde is right that
the rules fixing the quota or the appointees from two sources are
meant to be followed. But if it becomes impractical to act upon it, it
is no use insisting that the authorities must continue to give effect to
it. There is no sense in asking the performance of something which
has become impossible..................." Reference has also been made to
sub-paragraphs (D), (E) and (F) of paragraph 47 of the reports, where
it is said that when appointments are made from more than one
source, it is permissible to fix the ratio for recruitment from different
sources and if rules are framed in this regard, they must ordinarily be
followed strictly. It is also said that if it becomes impossible to adhere
to the existing quota rule, it should be substituted by an appropriate
rule to meet the needs of the situation. In case, however, the quota
rule is not followed continuously for a number of years because it was
impossible to do so the interference is irresistible that the quota rule
has broken down. We do not think that the authority cited by the
learned counsel can render any assistance to him. That the quota rule
had broken down is neither pleaded nor demonstrated. Similarly, no
material has been placed on record to show that it had become
impossible to adhere to the quota rule contained in Rule 6 of the
Rules.
Article 14 in Constitution of India [Constitution]
State Of Bihar And Another vs Madan Mohan Singh And Others on 13 October, 1993
4. The writ petition filed by Madan Mohan Singh (C.W.J.C. No.
945 of 1991) was decided by a Division Bench of the Patna High
Court on 16.12.1991 and it was held that the cadre of Superior
Judicial Service included both permanent and temporary posts and
consequently the one-third quota of direct recruitment from the Bar
had to be calculated by taking into account permanent as well as
temporary posts. The Division Bench issued a further direction that
apart from those 32 persons, who had already been appointed, further
appointments should be made from the same merit list, which was
declared on 24.11.1990 so as to fill in the complete quota of direct
recruits and the validity of the merit list prepared, which was for a
period of one year, i.e., up to November, 1991, was extended for a
further period of six months with effect from 24.11.1991. The State
Government preferred an appeal against the aforesaid decision of the
Patna High Court before this Court and the judgment of this Court is
reported in State of Bihar vs. Madan Mohan Singh 1994 Supp. (3)
SCC 308. This Court decided only one question in the appeal,
namely, having regard to the fact that the advertisement had been
issued to fill in only 32 vacancies and 129 candidates having been
called for interview in the ratio of 1:4, whether the said selection
process could be availed of for making further appointments. After
examining the original record this Court held that the Full Court of the
Patna High Court had approved the selection of 32 candidates only
and had sent a list of the said candidates in order of merit to the State
Government for making appointments, and, therefore, the merit list
prepared could not be utilized for making any further appointment as
the same got exhausted and came to an end. It was observed that if
the same merit list had to be kept subsisting for the purpose of filling
up other vacancies also, it would naturally amount to deprivation of
rights of other candidates, who had become eligible subsequent to the
advertisement and selection process. The appeals were accordingly
allowed, the direction of the Division Bench of the High Court to fill
in other vacancies from the same merit list was set aside and the State
Government was directed to issue a fresh advertisement calling for
applications and completing the selection process as early as possible.
In the judgment no opinion was expressed on the question whether for
the purpose of calculating the quota of direct recruits the temporary
posts of Additional District & Sessions Judges had to be taken into
consideration or not.