TaxTMI 
TaxTMI 
2018 (10) TMI 1956
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....e direct recruits under 25% quota (hereinafter referred to as "direct recruits"); and (iii) officers promoted on the basis of limited departmental competitive examination under 25% quota (as it then existed) (hereinafter referred to as "out of turn promotees"). 4. The members of Punjab Superior Judicial Service had filed writ petition in the High court challenging the seniority list dated 24.12.2007 issued by the High Court determining the inter se seniority of the members of the Punjab Superior Judicial Service. 5. The judgment of the Division Bench of the High Court has been questioned by Punjab and Haryana High Court at Chandigarh, members of Punjab Superior Judicial Service who were direct recruits and Superior Judicial Officers who are promotees under 50% quota. Civil Appeals on behalf of Kanwaljit Singh Bajwa and Ors. and Jitender Kaur are the appeals filed by direct recruits and other appeals are the appeals filed by the promotee officers under 50% quota. 6. C.A. Nos. 5518-5523 of 2017 filed by the High Court are being treated as leading appeals, reference of pleadings of which appeals shall be sufficient to decide this batch of appeals. Background Fa....
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....on 15.01.2004 did not fully serve the purpose nor fully complied with this Court's directions made in All India Judges' Association (supra), hence, a new set of Rules was framed, namely, the Punjab Superior Judicial Service Rules, 2007 which were published in the Gazette on 03.09.2007. The cadre strength of Punjab Superior Judicial Service before 2007 comprised of 88 posts. The High Court on 14.10.2004 had made 10 promotions as per unamended Rules on 10 vacancies which were existing since prior to amendment of Rules on 15.01.2004. On 31.08.2007, total cadre strength was 89, which was increased to 107 as on 11.10.2007. The process for recruitment of direct recruits Under Rule 7(3)(c) of Rules, 2007 was initiated on 02.02.2008 with the publication of advertisement. The promotions under 50% quota on the basis of merit-cum-seniority was affected on 18.02.2008. The competitive test for limited departmental competitive examination was held on 18.05.2008 for which process was initiated on 23.04.2008 by issuance of letter via e-mail. Full Court on 25.07.2008 approved the recommendations both for direct recruitment and out of turn promotion, by two separate letters i.e. letter No. 6....
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....t recruits. 12. Writ Petition No. 1056 of 2016, was filed by Kanwaljit Singh Bajwa and two others praying for following reliefs: i) To issue an appropriate writ, order or direction especially a writ in the nature of certiorari for quashing the impugned Seniority List dated 24.12.2015 (Annexure P-1) issued by Respondent No. 2; ii) To issue a writ of Mandamus or any other suitable writ, order or direction, directing the Respondent No. 1 and 2 to redraw and reframe seniority list by showing the Petitioners over and above the Respondent Nos. 3 to 5; iii) To say the operation of the impugned seniority list 24.12.2015(P-1) and stay the further promotion of the Respondents in furtherance of the impugned seniority list; iv) To any other writ, order or direction which this Hon'ble Court deem fit and proper keeping in view the peculiar facts and circumstances of the present case, in the interest of justice; v) To dispense with the issuance of advance notices to the Respondents; vi) Exempt the Petitioner from filing the certified & typed copies for the Annexures;  ....
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....ed that the Committee had framed eight issues. The eight issues framed by the Committee as noticed in paragraph 102 are as follows: (1) Whether the promotions dated 19.02.2008 made Under Rule 7(3)(a) are liable to be termed as irregular or 'ad-hoc', and if so, to what effect ? (2) Whether the posts meant for the 'out-of-turn promotion' Under Rule 7(3)(b) which remained unfilled as no competitive examination took place from the year 2004 to 2008, can be included in 'promotion quota' Under Rule 7(3)(a), and if not, to which quota such posts shall stand diverted ? (3) Whether promotions made on 19.2.2008 Under Rule 7(3)(a) were in excess to the 'promotion quota', and if so, what is the effect on seniority of such excess promotions? (4) Whether promoted officers irrespective of Rule 7(3)(a) or (b) are entitled to the 'weightage' of their service rendered in PCS (Judicial Branch) towards seniority in Superior Judicial Service in view of second proviso to Rule 23 of 2007 Rules ? (5) Whether the direct recruits Under Rule 7(3)(c) could be assigned sen....
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....p; The seniority list be re-cast accordingly. 16. Aggrieved by the judgment of the Division Bench of the High Court, the High Court has filed Civil Appeal Nos. 5518-23 of 2017. 17. Civil Appeals of Kanwaljit Singh Bajwa and Ors. and Civil Appeal of Jatinder Kaur, two Civil Appeals by direct recruits, other Civil Appeals have been filed by promotee Officers whose promotions were treated to be ad hoc and are directed to be placed at the bottom of the seniority. Out of turn promotees had not challenged the judgment, since, the judgment of the High court was substantially in their favour. SUBMISSIONS 18. Shri Raju Ramachandran and Shri Ajit Sinha, learned senior Counsel have appeared for the High Court. Shri Dushyant Dave and Shri K.V. Viswanathan, learned senior Counsel have appeared for promotees. Shri P.S. Patwalia, learned senior Counsel, has appeared for out of turn promotees. Shri Nidhesh Gupta, learned senior Counsel has appeared for direct recruits. In addition, we have also heard several counsel in this batch of appeals appearing for different parties. 19. Shri Raju Ramachandran, learned senior Counsel appearing for the High Court submits that seniority list p....
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....or determination for seniority. Assuming that Appendix B applies, it is for quota and since examination has not been held in time the quota has broken down. 22. Shri P.S. Patwalia appearing for out of turn promotees submits that whole argument made by the promotees is misconceived. The diversion of quota Under Rule 7(3)(b) to 7(3)(a) shall take place only when test is held and no suitable candidate is available for appointment Under Rule 7(3)(b). The quota applied to the post in service. The High Court has wrongly applied the quota to the vacancies. 25% quota was introduced as incentive to improve meritorious officers. On date of selection, 53 were promotees who were excess to their quota, 14 were filled by direct recruits and there were no vacancies for the regular promotees. There being no conscious decision of diversion of quota Under Rule 7(3)(b) to 7(3)(a), no benefit can be claimed by the promotees. The clubbing of vacancies Under Rule 7(3)(a) and 7(3)(b) is not permissible. The out of turn promotees have never challenged the merit promotion. 23. Shri Patwalia submits that roster is not applicable to the seniority. When the quota is worked out in the cadre strength there is....
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....e contrary stand before this Hon'ble Court. The fortuitous circumstances i.e. when letter of appointments were issued cannot be basis for seniority. Accepting the contention that length of service should determine the seniority and not the roster, shall be defeating the All India Judges Association's judgment of this Court as well as Rules, 2007. Rules, 2007 specially Rule 7, Rule 12, Rule 23 read with Appendix B have to be construed in a manner so to advance the object of Rules and should be interpreted in a manner so that no prejudice is caused to any member of Service. 25. Learned Counsel for the parties have also referred to various judgments of this Court which shall be referred to while considering the submissions in detail. DISCUSSION 26. The subordinate judiciary of this Country is back bone of our judicial system. It is the subordinate judiciary which comes in contact with the common man in administration of justice. This Court in All India Judges' Association (supra) has noticed that the weight on the judicial system essentially rests on the subordinate judiciary. In paragraph 27 following was observed: 27....The subordinate judiciary is....
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....fell for consideration before the Justice Shetty Commission was method of recruitment to the Higher Judicial Service. In All India Judges' Association case (supra) this Court held that it is imperative for the Judicial Officer to keep abreast of knowledge of law. This Court also held 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. In paragraph 27 of the judgment following was laid down: 27....It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a judicial academy which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standards, 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 i....
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....pective High Courts. (2) Appropriate Rules shall be framed as above by the High Courts as early as possible. 31. This Court has noticed the serious discontentment regarding inter se seniority of members of Higher Judicial Service. This Court observed that the least amount of litigation in the country is there where quota system in recruitment exists and where a roster system is followed. Following was laid down in paragraph 29: 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, 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 higher judicial service. The quota for promotion which we have prescribed is 50 percent by following the principle "merit-cum-seniority" 25 percent strictly on merit by limited departmental competitive examination and 25 per cent by direct rec....
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.... five per cent by promotion strictly on the basis of merit through limited departmental competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; (c) twenty five per cent by direct recruitment from amongst the eligible Advocates by holding a test consisting of written examination of 200 marks and viva voce test of 50 marks to be conducted by the High Court. 33. Punjab Superior Judicial Service Rules, 2007 were framed and notified in Gazette on 3rd September, 2007. Rule 7 dealt with method of appointment which is to the following effect: "7. Method of appointment.--(1) The appointment to the Service by promotion shall be made from amongst the members of the Punjab Civil Service (Judicial Branch), by the Governor on the recommendations of the High Court. (2) The direct appointment to the Service shall be made by the Governor on the recommendations of the High Court from amongst the eligible advocates on the basis of the written test and viva-voce conducted by the High Court. (3) Appointment to the Service shall be made in the fol....
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....and Common Conditions of Service Rules, 1994. -- (1) In respect of the matters, which are not specifically provided in these rules, the members of the Service shall be governed by the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994, as amended from time to time: Provided that the said Rules of 1994 shall not affect the provisions as contained in Rules 5, 7, 12, 13, 19, 20 and 21 of these rules: Provided further that the conditions of service as determined by the National Judicial Pay Commission shall have an overriding effect. (2) The Punjab Civil Services (General and Commons Conditions of Service) Rules, 1994, at present, in force are contained in Appendix 'E'. 36. Appendix 'B' provided for roster as referred to in Rules, 2007. 37. As noticed above in the present matter recruitments for all the three streams as enumerated in Rule 7(3)(a), (b) and (c) were completed in 2008 and all incumbent also joined their post in 2008. The dispute is regarding inter se seniority of above three streams. From the submis....
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....tion of Jharkhand as in Jharkhand Superior Judicial Service has held that "cadre strength is always measured by the number of posts comprising the cadre and 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. Following was laid down in Paragraph 24: 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.... 39. The High Court Committee deter....
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....ed on 10.11.2007 as 107. After the amendment of Rules on 15.01.2004, promotion of 10 officers were made. It is mentioned in the Civil Appeal of the High Court that cadre strength of Punjab Superior Judicial Service before 2004 was 88. Thus, in the year 2004, when the cadre strength was 88, 75 per cent posts were to be manned by promotees under merit-cum-seniority, i.e. 66 were to be manned by promotee officers. The judgment of this Court in All India Judges case (supra) 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....
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....e strength, officers of particular stream in position, quota of each stream has to be kept in mind. The vacancies existing for recruitment in particular year has not to be mechanically divided at the ratio of 50, 25 and 25 per cent. Issue Nos. 2 and 3: Whether appointment to members of Superior Judicial Service belonging to all three streams have to be made on the basis of roster as per Rule 7(4) read with Appendix B of the Rules, 2007? and Whether for determination of inter se seniority belonging to all the three streams has to be based on the basis of roster in pursuance of Rule 7 read with Appendix B? 42. One of the major area of difference in submissions advanced by learned Counsel appearing for the promotees, direct recruits and out of turn promotees is regarding applicability of roster for determination of seniority. In so far the stand of out of turn promotees is concerned, although before the High Court in its pleadings and submissions, out of turn promotees prayed for implementation of roster in seniority but in this Court they have taken a somersault and are now contending that the roster is not applicable in seniority. 43. Rota and quota in service jurisprudence is ....
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....tion 7 (3) (b) 5. Officer promoted on the basis of seniority-cum-suitability 7 (3) (a) Xxxxxxxxxxxxxxx 89. Officer promoted on the basis of seniority-cum-suitability. 7 (3) (a) 45. Sub-rule (4) uses the phrase "the posts shall be filled". The word "filled" means appointment on the post. The submission of the learned Counsel for the promotees is that Sub-rule (4) read with Appendix-B at best can be read that roster is to be followed in recruitment only and not for determination of seniority. When an order for filling up of a post is provided in Appendix-B, the purpose and object is that officers of different streams should hold the posts in the sequence, which is provided in Appendix-B. The recruitment to the different streams consists of different and separate processes, few processes may take lesser time like effecting promotion Under Rule 7(3)(a) whereas few processes like direct recruitment under 7(3)(c) takes greater time. For direct recruits, which is an All India Competitive Written Test, large number of candidates participate and evaluation of answer sheets and holding viva-voce takes sufficient time. The object as incapsulated by this Court in All I....
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.... which deals with fixation of seniority amongst the members of the Service, provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the proviso prescribes "quotas" and reserves vacancies for both categories. The language of the proviso to Rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for direct recruits. But the proviso, as I have stated earlier, must be read along with Rule 8(2) since the two provisions are interrelated. Their combined reading yields but one result, that the proviso prescribes a quota of one-third for direct recruits. 46. One submission, which was pressed by learned Counsel for the promotees as well as by learned Counsel appearing for the out of turn promotees was that in 2007 itself, Judicial Service Rules have been framed for Haryana namely, Haryana Superior Judicial Service Rules, 2007, in which Rules, it was expressly provided by Rule 10 of the Rules that inter se seniority of the persons recruited to the service under Clause (a), (b) and (c) of Rule 6 shall take his position in the seniority list as shown in roster annexed. Rule 10 of the Haryana Rules is as follows: &nbs....
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....ase, we need not enter into the issue as to what was proposed and what changes were made by Government while notifying the rules. The above observation in the impugned judgment clearly indicate that Punjab & Haryana High Court has contemplated to implement the direction of this Court in All India Judges case (supra) and it was clear to the High Court that the appointment of all the three streams as per roster is to also determine the seniority as per the roster. In any view of the matter, there is nothing in the Rules-Punjab Superior Judicial Service Rules, 2007, which may indicate that there is any provision contrary to determination of seniority by roster. Mere fact that said Rules are not explicit or makes it expressly clear that seniority is to be determined on the basis of roster is not conclusive. The purpose and object of the Rule 7 of Rules, 2007 read with Appendix-B is clear that the roster is to be followed for determination of the seniority. The High Court in the impugned judgment has considered the issue as to whether roster is applicable in determination of seniority or not. Issue No. 7 as was noticed above, which was framed by the Committee and was also adjudicated by....
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....sp; It is apparent from the above extract of the OM dated 22-12-1959, that the "quota" between promotees and direct recruits was to be read into the seniority rule. The OM also provided for a definite rotation of seniority points ("rota") between promotees and direct recruits. The rotation provided for was founded on the concept of rotation of quotas between promo-tees and direct recruits. It is therefore apparent, that under the OM dated 22-12-1959 inter se seniority between the promotees and direct recruits was based on the "quota" and "rota" principle. The same has been meaningfully described as "rotation of quotas" in some of these instruments. 51. There was further office memorandum on 07.02.1986 to take care of situation where it was decided that in future, while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who were already in position, would be dispensed with. This Court noticed office memorandum dated 07.02.1986 and observ....
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....cess of selection. 53. In the present case, process for all the three streams was completed in the year 2008 and all the officers of three streams had joined in the same year. The submission that quota rota Rule was broken or seniority will be affected because of joining of one category of officers earlier cannot be accepted. It is also relevant to notice that purpose of statutory Rules and laying down a procedure for recruitment was to achieve the certainty. Officers belonging to different streams have to be confidant that they shall be recruited under their quota and get seniority as per their quota and roster. In event, the seniority is to be fixed with date of joining of particular stream, it will lead to uncertainty and making seniority depending on administrative authorities, which is neither in the interest of service nor serve the cause of justice. We, thus, conclude that roster is fully applicable for determination of seniority. Officers of different streams selected in a particular year even though they were allowed to join the post on different dates shall not affect their inter se seniority, which is to be decided on the basis of roster. The position of Fast Track Cou....
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....One of the out of turn promotee namely, Arunvir Vashista had staked his claim before the committee. It was submitted that he being senior most officer among the out of turn selected candidates and although he was placed at serial No. 6 as per his merit but he being the only officer who already stood promoted as presiding officer of the Fast Track Court on ad-hoc basis, he was entitled to be absorbed and remained promoted to the Superior Judicial Service. Thus, his appointment on regular basis will relate back to his appointment in Fast Track Court in the service. 58. With regard to absorption of Fast Track Court Judges, this Court had elaborately considered the issue in Brij Mohan Lal v. Union of India and Ors. (2012) 6 SCC 502. Fast Track Courts Judges who were working as direct recruits from the Bar as well as those who were ad-hoc promotees as Fast Track Court Judges had staked their claim for being absorbed on regular cadre. After considering the respective submission, this Court in paragraph 207 has issued various directions. Paragraph 207.9 relates to Fast Track Court Judges who were appointed by way of direct appointment, which is to the following effect:  ....
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....r FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age. 59. With regard to candidates from any state who were promoted as Fast Track Court Judges from the post of Civil Judge, Senior division, following direction were issued in paragraph 207.13: 207.13. The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, shall be entitled to be absorbed and remain promoted to the Higher Judicial Services of that State subject to: (a) Such promotion, when effected against the 25% quota for out-of-turn promotion on merit, in accordance with the judgment of this Court in All India Judges' Assn. (3)12, by taking and being selected through the requisite examination, as contemplated for out-of-turn promotion. (b) If the appointee has the requisite seniority and is entitled to promot....
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....ntative seniority list, they were placed at serial No. 15 and 16 i.e. above the direct recruits. It is relevant to note that the tentative seniority list was prepared by the committee on the basis of continuous length of service. It was probably due to that reason that serial No. 15 and 16, direct recruits were shown above the out of turn promotees and direct recruits. The above two officers who were taken on the regular Cadre of Additional District Judge, after written test and viva-voice test which is almost the same procedure which has been subsequently laid down by this Court in Brij Mohan Lal case dated 19.04.2012(Supra). The above two officers having been included in direct recruitment quota, they have to be clubbed along with the direct recruits. We have already held that for determining the seniority, the roster is applicable. The objection of direct recruits that they cannot be included in the quota meant for direct recruits since they have not undergone the same written test and viva-voice, which has been undertaken by the direct recruits, thus, cannot be accepted. 62. As per the judgment of this Court in Brij Mohan Lal case (Supra), officers from Bar, advocates working ....
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....n which Shri Arunvir Vashista was included. Shri Arunvir Vashista thus occupied the Fast Track Court judge post in the year 2008 itself and participated in the limited departmental competitive examination and secured sixth position on merit. Among the out of turn promotees Shri Arunvir Vashista has been placed at sixth place. 65. Shri Arunvir Vashista in his brief written synopsis does not dispute that seniority is to be fixed by the roster points and irrespective of the fact, as to when a person is recruited. He rightly submits that Rules are subsidiary and subservient to the law. He has also placed reliance on order of this Court dated 28.04.2016 passed in W.P.(C) No. 1022/1989, All India Judges Association and Ors. v. Union of India and others. The Order of this Court dated 28.04.2016, is to the following effect: The second prayer of the Petitioner is for direction to the Respondents to follow "post based roster" in appointments to the cadre of District Judges with effect from 31.03.2003. The said prayer is again based on the statement of law as propounded in paragraph 49 of the above referred to decision rendered in All Indian Judges' Association and Or....
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.... CONCLUSIONS: 68. The tentative seniority list was prepared on the basis of continuous length of service, hence, all promotee officers who had joined on 27th/28th February, 2008 have been shown at serial No. 1 to 14. Parminder Pal Singh and Sukhdev Singh, Fast Track Court Judges from Bar who were appointed in regular cadre w.e.f. 01.08.2008 have been shown at serial No. 15 and 16. From Serial No. 17 to 24 were out of turn promotees in block and thereafter Serial No. 25 to 35, direct recruits were placed in block. The final tentative seniority list has been approved by the committee after considering the objections. It is reflected in its report dated 11.08.2015. Full Court approved the report dated 11.08.2015, 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....