TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1744
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....8 (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 promotion based on merit-cum-seniority. The Supreme Cou....
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....a 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 posts in the Service shall be filled by promotion strictly on....
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....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 and approved by the States, wherever necessary by 31-3-2003. 30. We disapprove the recommendatio....
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....g 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 selected by the High Court on the basis of criteria indicated in Schedule „C‟. Must have been in the cadre of Grade-III for a period of not less than five years. Gra....
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....ial 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 accelerated promotion was reduced from 25% to 10%. Corresponding increase was made in normal promotion quota from 50% to 65%. The High Courts were required to amend the rules accordingly w.e.f. 01.01.2011. By way of greater emphasis it was provided that if t....
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....ngly 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-cumseniority by the High Court, following the criteria in Schedule-C" (ii) The existing provision against Serial No 11 (iii) 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- "Remaining 10% of the posts in the Grade sha....
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....om 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 inform you that as per Judgment of the Hon'ble Supreme Court dated 19.04.2012 passed in "Brij Mohan Lal versus Union of India" in the case bearing Transfer Petition No. 22 of 2001 directing to increase 10% cadre strength of judicial officers in Tripura Judicial Service by amending the Tripura Judicial Service Rules, 2003 and in compliance of the order dated 20.04.2010 ....
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....ffect 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 seniority list of the Officers of Grade-I of Tripura Judicial Service already approved by the Full Court and finally published, has to be re-published after redetermination of inter se seniority of the Officers and the seniority of some of the Officers already determined as per the existing rules will be affected and the settled position will thereby be un-settled. The Full Court has, therefore, r....
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....hdraw 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 Judges Case, Rule 7 of Rules of 2003 was being amended, corresponding amendment in Rule 18 for fixation of seniority should also have been made. The directives for such corresponding changes were inbuilt in the said two judgments of the Supreme Court. Not amending Rule 18 was thus a pure oversight, which even the High Court and the Government later on acknowledged. While doing so, in the year 2018, the seniority rule should have been given retro....
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....ed; (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 away by subordinate legislation. 22. Counsel relied on certain decisions reference to which would be made at appropriate stage. 23. Learned counsel Mr. T.D. Majumder appearing for respondent No. 4, the direct recruit, also opposed the petition making similar submissions. 24. In order to decide these issues, we may revisit the 3rd Judges Case and 4th Judges Case judgments. The entire fulcrum of the petitioner's case as well as the right of promotion and seniority of the petitioner and the private r....
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....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 the said judgments of the Supreme Court and the corresponding rules framed by the State. First that quota for normal promotion, accelerated promotion and direct recruitment were fixed and second that the seniority inter se between candidates of these three different streams who would all occupy the posts in a common cadre, would be governed by the roster point. The first two vacancies would go to the promotees under normal channel, third to the promotee on acceleration basis and the fourth would go to the direct recr....
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....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 amendments in Rule 18 particularly, sub-rules (4) and (6) of the Rules of 2003 by virtue of the Amendment Rules of 2018 shall have to be applied from 29.05.2013, i.e. the date from which Rule 7 of the Rules of 2003 was amended by virtue of the Amendment Rules of 2013. This is so for the following reasons: Firstly, by combined reading of 3rd and 4th Judges Cases, it was inbuilt in the formula fixing inter se quota for two streams of promotions and direct recruitment to Grade-I judicial service that the seniority by way o....
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....tuation 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 fixing inter se seniority, has the legislature also adopted the principle of rotation of such vacancies which in popular parlance in the service jurisprudence has come to be known as the rota and quota system of promotion and seniority. If in addition to providing quota for different streams no rotation of vacancies is to be made for fixing seniority, the question would stand on an entirely different footing. Any change in internal quota would not necessarily affect the seniority rule. On the other hand, if the service rule in addi....
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....rs 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 and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service. The anomalies wh....
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....79, 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 does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devdasan's case, AIR 1964 SC 179. The petition must, therefore, fail so far as seniority of Appraisers is concerned." 33. We may now consider whether the amendments of 2018 would have retrospective or retroactive effect. We are conscious that a legislation is presumed to be prospective unless either in express terms or necessary implica....
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....rospective 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 the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. Vs. State of U.P. and Ors., (2002) 2 SCC 645, State of Rajasthan Vs. Mangilal Pindwal, (1996) 5 SCC 60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co., (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar Vs. S. Michael & Ors., AIR 1963 SC 933. In West U.P. Sugar Mills Association case a three-Judge Bench of this Court held that the....
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.... 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 construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye, (1861) 10 CBNS 179 at p.191 in the following words: "Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment." This principle has now been recognised by our Constitution and established as a Co....
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...., (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 and seniority roster a different one. This will make the seniority rule vulnerable to the charge of being arbitrary. To save it from being unconstitutional and ultra vires the said amendment will have to be seen as curative and, therefore, retroactive. In view of this discussion, we find that the situation can be addressed only by interpreting the amendments in sub-rules (4) and (6) of Rule 18 of the Rules of 2003 by virtue of amendments of the Rules of 2018 as curative in nature and would relate back to the amendment to Rule 7 by virtue of Amendment Rules of 2013. Such amendments in subrules (4) and (6) of Rule 18, ther....
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....o 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 Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's de....