TaxTMI 
TaxTMI 
2020 (2) TMI 1744
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....ipura Judicial Service (7th Amendment) Rules, 2018 (hereinafter to be referred to as the Amendment Rules of 2018). The prayer of the petitioner is that such Amendment Rules of 2018 should be given limited retrospectivity from the commencement of Tripura Judicial Service (5th Amendment) Rules, 2013 (hereinafter to be referred to as the Amendment Rules of 2013). 3. Brief facts may be noted at the outset: Petitioner was appointed to the Tripura Judicial Service Grade-III on 01.11.2001. He was promoted as Additional Chief Judicial Magistrate in Tripura Judicial Service Grade-II on 23.12.2010. He was thereafter promoted to Tripura Judicial Service Grade-I under order dated 02.02.2015. 4. In All India Judges' Association and others vrs. Union of India and others reported in (2002) 4 SCC 247 (popularly referred to as the 3rd Judges Case) the Supreme Court examined various issues concerning the Judicial Officers of the District Judiciary across the country. One of the issues was to introduce a special stream for promotion to the District Judges cadre by way of competitive examination. Those who excel in such examination would get accelerated promotion. This would be separate from ....
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....nt 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 caliber 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-cumseniority. 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 cent of the....
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.... 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 and Ors., v. State of Punjab reported in (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's case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant Rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts a....
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....the posts in the Grade shall be filled by promotion from the cadre of Grade-II of the Service on the basis of merit cum seniority by the High Court, following the criteria in Schedule „C‟. (iii) Remaining 25% of the posts in the Grade shall be filled up by promotion strictly on the basis of merit through limited departmental competitive examination conducted by the High Court as specified in Schedule-B of the Rules. 4. Must have been in the cadre of Grade-II for a period of not less than 5 years. Selection Grade Scale. (iv) 25% of the posts in Grade-I shall be in Selection Grade to be filled by promotion by the High Court from the officers in Grade-I in accordance with the procedure laid down in Schedule „C‟. Must have served in Grade-I for not less than five years. Super time Grade Scale (v) 10% of the posts in Grade-I shall be in the Super time Scale to be filled by promotion by the High Court from the officers in Selection Grade in accordance with the procedure laid down in Schedule „C‟. Must have served not less than three years in the Selection Grade. Grade-II By promotion from the cadre of Grade- III ....
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.... the post of Grade-I in service. The posts at Serial Nos. 1 and 2 will go to the promotees under 50% quota. The post at Serial No. 3 shall go to the promotee under the limited departmental Competitive Examination and the post at Serial No. 4 shall be available to Direct recruit. This process shall be repeated till all the posts in the cadre are filled up in the roster in manner stated. Provided that the above roster will not affect the existing members of the Service and this will be implemented prospectively. (7) The High Court shall prepare and publish a seniority list of Officers in all Cadres from time to time and the list so published shall be used for the purpose of consideration for promotion to the next higher cadre." 7. The Supreme Court in case of All India Judges' Association and others vrs. Union of India and others reported in (2010) 15 SCC 170 (popularly referred to as the 4th Judges Case) revisited the quota for regular promotion and accelerated promotion in the District Judge cadre. The original proportion of 50% and 25% respectively was modified to 65% and 10% respectively. In other words, the quota for fast track promotion or ac....
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....e. 9. All the High Courts are hereby directed to take steps to see that existing Service Rules be amended positively with effect from 1-1-2011. If the Rules are not suitably amended, this order shall prevail and further recruitment from 1-1-2011 shall be continued accordingly as directed by us. The time schedule prescribed in the order dated 4-1-2007 [in Malik Mazhar Sultan case, (2008) 17 SCC 703] shall be strictly adhered to for the purpose of selection. All the vacancies are to be filled up in that particular year and there shall not be any carry forward of the unfilled posts." 8. Rule 7 of the Rules of 2003 was amended by virtue of Amendment Rules of 2013 which were promulgated on 29.05.2013. The said Amendment Rules of 2013 introduced following amendments in Rule 7 of the Rules of 2003: "6. Amendment of Rule 7: (i) The existing provision against Serial No. 1 (ii) in Column No. 3 of the table, appended under Sub-rule (2) of Rule 7 of the Principal Rules, shall be substituted with the following- "65% of the posts in the Grade shall be filled by promotion from the cadre of Grade-II of the Service on the basis of merit-cums....
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.... of Tripura as under: "Sir, I am directed to communicate to you the relevant extract of the Full Court resolution dated 30.06.2017 regarding amendment of Tripura Judicial Service Rules, 2003 which is as follows: "The Full Court has also resolved that in view of the 15% increase in the promotion quota for regular promotees from the post of Grade-II to Grade-I in Tripura Judicial Service by the Fifth Amendment of Tripura Judicial Service w.e.f. 29.05.2013, the Registrar General shall write to the Law Department, Government of Tripura to take steps for suitable amendment of Rule 18 of Tripura Judicial Service Rules, 2003 regarding determination of inter se seniority among the Officers of Grade-I of Tripura Judicial Service proportionate to the increase in the promotion quota for regular promotees." I am, therefore, directed to request you to kindly take required steps for amendment of Tripura Judicial Service Rules, 2003 in terms of the resolution of the Hon'ble Full Court." 13. On 03.08.2017 the Law Secretary wrote to the Registrar General and conveyed as under: "Sir, I am directed to refer to the above cited subject and to inf....
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....y date." 14. On 13.12.2017 in response to the said letter dated 03.08.2017 of the Government, the Registrar General of the High Court conveyed the Full Court resolution to the Government which was as under: "The Full Court has considered the amendment proposal of the State Government for amendment of sub-rules (4) & (6) of Rule 18 of Tripura Judicial Service Rules with retrospective effect from 29.05.2013 and found that the final seniority list of the Officers of Grade-I of Tripura Judicial Service has already been published with the approval of the Full Court in terms of its resolution dated 30.06.2017 after determination of the seniority of the Officers in Grade-I of Tripura Judicial Service in accordance with existing provisions of Tripura Judicial Service Rules. The Full Court is of the considered view that if sub-rules (4) & (6) of Rule 18 of Tripura Judicial Service Rules with regard to determination of inter se seniority among the Judicial Officers of Grade-I are amended with retrospective effect from 29.05.2013, as proposed by the State Government vide Letter No. F.2(13)-LAW/ESTT.2/2011/141 dated 03.08.2017 of the LR & Secretary, Law Department, the final s....
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....nts be given retrospective effect from 29.05.2013, i.e. the date when the Amendment Rules of 2013 were brought into effect. The High Court vide its order dated 30.08.2018 rejected such request. Thereupon the petitioner first filed a writ petition being WP(C) No. 220 of 2019 which was withdrawn on 13.05.2019 with following observations: "Mr. Raju Datta, learned counsel for the petitioner seeks permission to withdraw the writ petition reserving liberty to file afresh. Learned counsel for the respondents not opposed to the same. As prayed for, the writ petition stands disposed of as having been withdrawn reserving liberty to file afresh in the same and subsequent cause of action." 17. Thereupon the present fresh petition has been filed for the above noted prayers. 18. Appearing for the petitioner learned Sr. counsel Mr. Bijan Chandra Das raised following contentions: (i) The promotion quotas and the quota for direct recruitment in the Grade-I post of Judicial Services were governed by the decisions of Supreme Court in 3rd and 4th Judges cases, so was the inter se seniority between such promotees and direct recruits. When by virtue of 4th ....
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....ent No. 3 who, as we noted earlier, is also a promotee but in accelerated stream raised following contentions: (i) The petition has been filed after a long delay. In the matter of seniority the Court would not reopen the seniority position which is closed long back; (ii) The petitioner has not joined several other promotees who would be affected if the prayers made by the petitioner are granted. In absence of all necessary parties, writ petition should be dismissed; (iii) He submitted that in plain terms the rule has only prospective effect. The High Court in exercise of writ jurisdiction would not give retrospectivity to a legislation which is expressly made prospective; (iv) Counsel further submitted that when a rule was framed and given prospective effect after due deliberations and consciously, it cannot be stated that present is a case of casus omissus which the High Court may be in a position to fill; (v) Counsel submitted that seniority is a vested right. When the respondent No. 3 was promoted in his quota, he acquired right to seniority in terms of the then existing statutory provision. Such vested right cannot be taken....
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....ese directions of the Supreme Court in 3rd Judges Case that the Rules of 2003 were promulgated in the State of Tripura. Rule 7 thereof embodied the principle of two streams of promotion and direct recruitment to the cadre of District Judge in the proportions set out by the Supreme Court. Rule 18 pertaining to seniority laid down various guiding principles for fixing inter se seniority of these promotees and direct recruits. Sub-rule (4) of Rule 18 provided that the inter se seniority of persons appointed in Grade-I in any year by way of promotion and direct recruitment shall be determined by rotation on the basis of quota for promotees 50%, for promotees through competitive examination 25% and direct recruitment 25%, that is to say 2:1:1. As per sub-rule (6) of Rule 18, a 40 (forty) point roster would be maintained for appointment/promotion to the posts of Grade-I. The posts at Sl. No. 1 and 2 will go to the promotees under 50% quota, the third post would go to promotee under the limited departmental competitive examination and the 4th post would be available to the direct recruit. This process would be repeated. 26. Two significant aspects of the matter would emerge from t....
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....xamination under sub-rule (4) and sub-rule (6) of Rule 18 of the Tripura Judicial Service Rules, 2003 were not changed at the time ............." and "as a result the principle of inter se seniority remained unchanged creating anomaly and discrimination amongst the members of the service". In that view of the matter, it was suggested that the draft rules be given effect from coming into force of Tripura Judicial Service (5th Amendment) Rules, 2013. This suggestion was, however, not accepted by the High Court. It was so resolved by the Full Court under resolution dated 12.12.2017 and which was conveyed to the Government on 13.12.2017. In the said resolution, the Full Court expressed an opinion that the final seniority list of officers of Grade-I of Tripura Judicial Service is already approved by the Full Court and finally published, which would have to be republished after redetermination of inter se seniority of the officers and seniority of some of the officers already determined as per the existing rules will be affected and the settled position will be unsettled. The Full Court, therefore, resolved to approve the amendment only with prospective effect. 29. In our opinion, the....
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....which provided for such roster points had to be brought in tune with the amended Rule 7. This in the plain terms was the effect of two judgments of the Supreme Court. 30. Irrespective of that, in plain logic maintaining the roster points as per the original proportion of promotees and direct recruits would even otherwise not be workable. It is nobody's case that such changes in the seniority rules particularly concerning the roster points were not necessary. It was, therefore, that the High Court on its own brought this situation to the notice of the Government to make necessary amendments in Rule 18 of the Rules of 2003. The Government recognized such requirement and, in fact, suggested that such recommended changes be given effect from 29.05.2013 when Rule 7 of the Rules of 2013 was amended. Whatever the reason, the Full Court did not agree to this later suggestion of the Government. 31. Whenever a cadre comprises of more than one stream such as promotees and direct recruits, the question of inter se seniority always comes up. The question that is, therefore, relevant is whether in addition to fixing the quota for such different sources for filling up the vacancies, in fixi....
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....ned accordingly. A question has been raised whether the circular of 1940 to which we have already referred survived after this circular of 1959; but in our opinion it is unnecessary to decide that question, for the circular of 1959 itself lays down that seniority shall be determined accordingly, i.e., in accordance with the rotational system, depending upon the quota reserved for direct recruitment and promotion respectively. It is this circular which according to the respondent has been followed in determining the seniority of Appraisers in 1963. xxx xxx xxx 7. This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words "'seniority determined accordingly", in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where, therefore, recruitment to a cadre is from two sources, namely, direct recruits and promotees a....
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....rinciple of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of 1:1 should be worked out". This order is in accordance with the circular of 1959 and as we have said already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. Nor do we think that this system is on a par with the carry-forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179, and on which strong reliance is placed on behalf of the petitioners. In the case of the carry-forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court ....
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.... and that was done. Any person having more than two living children was disqualified on and from that day for being a member of municipality. However, while enacting a proviso by way of an exception carving out a fact situation from the operation of the newly introduced disqualification the draftsman's folly caused the creation of trouble. A simplistic reading of the text of the proviso spelled out a consequence which the Legislature had never intended and could not have intended. It is true that the Second Amendment does not expressly give the amendment a retrospective operation. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have the retrospective effect and if the Court can unhesitatingly conclude in favour of retrospectivity, the Court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statutes. xxx xxx xxx 25. Substitution of a provision results in repeal of ....
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....s created in terms of the Constitution (73rd Amendment) Act. It is true that ordinarily a statute is construed to have prospective effect, but the same rule does not apply to a disqualifying provision. The inhibition against retrospective construction is not a rigid rule. It does not apply to a curative or a clarificatory statute. If from a perusal of the statute, intendment of the legislature is clear, the Court will give effect thereto. For the said purpose, the general scope of the statute is relevant. Every law that takes away a right vested under the existing law is retrospective in nature. [See Govt. of India & Ors. vs. Indian Tobacco Association, (2005) 7 SCC 396.] "The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to past events. The reason why penal statutes are so constru....
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...., (1997) 3 SCC 472, this Court while dealing with a similar question with regard to the retrospective effect of the amendment made in Section 43-B of the Income Tax Act, 1961 has held that the new proviso to Section 43-B should be given retrospective effect from the inception on the ground that the proviso was added to remedy unintended consequences and supply an obvious omission. The proviso ensured reasonable interpretation and retrospective effect would serve the object behind the enactment. The aforesaid view has consistently been followed by this Court in the following cases, viz., Whirlpool of India Ltd., vs. CIT, (2000) 9 SCC 62 : (2000) 245 ITR 3, CIT vs. Amrit Banaspati Co. Ltd., (2002) 10 SCC 457 : (2002) 255 ITR 117 and CIT vs. Alom Extrusions Ltd., (2010) 1 SCC 489 : (2009) 319 ITR 306." 40. The issue can be looked from a slightly different angle. If we give prospective effect to the amendments in the Rule 18, for the period between 2013 when the quotas for normal promotion and accelerated promotion were re-adjusted but roster points were not, till 2018 when such correction was made, a piquant situation will arise. Promotion quota will follow a different proportion a....
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....ely to be affected by the outcome of such petition. In case of The General Manager, South Central Railway, Secunderabad and another vrs. A.V.R. Siddhantti and others reported in (1974) 4 SCC 335 it was observed as under: "12. The second is that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in this case. Those employees, proceeds the argument, were necessary parties and their non-joinder is fatal to the petition. In support of this contention, Counsel has cited Padam Singh Jhina v. Union of India and Ors. xxx xxx xxx 15. As regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop Departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Go....