DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS

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A from the date of assuming charge of their office as per Rule 44 of the Rajasthan Judicial Service Rules, 2010:…” Thereafter, the names of 87 candidates were mentioned and the names of 8 successful candidates in LCE were at Sr. Nos. 10, 19, 30, 39, 50 59, 65 and 68.

23Copy pinpoint23. In the meantime, by Notification dated 31.03.2013 issued by the High Court, 58 vacancies were determined for the years 2012-13 and 2013-14 in the cadre of District Judge. This Notification also stated that in case the cadre strength was revised to 362, the vacancies in the cadre of District Judge would be 165. On 14.09.2013, the strength of C District Judge cadre was revised to 372. By Notification dated 01.04.2014 issued by the High Court, 204 vacancies were determined in the cadre of District Judge for the years 2012-13, 2013-14 and 2014-15. The relevant portion of the Notification dated 01.04.2014 was as under:- “In suppression of earlier notification No.Estt.(RJS)/06/2014 dated D 15.01.2014, as per schedule I of RJS rules 2010, the determination of vacancies in District Judge Cadre for the year 2012-2013, 2013- 14 and 2014-15 is hereby notified as under:- As per cadre strength – 372 Total vacancies – 186 + 18* = 204 E Vacancies for district recruitment – 41 Vacancies for promotion by limited competitive examination – 29 Vacancies for promotion – 116 *Note:- 18 future vacancies (against 10% of the total Number of F vacancies) are not assigned to any category for the present. However, these will be given as per roaster to the particular category wherein any vacancy(ies) on account of death elevation, dismissal etc. will arise.”

24Copy pinpoint24. On 21.04.2014, 56 Senior Civil Judges were promoted as G Additional District and Sessions Judges on Ad-hoc basis. The Order recited as under. “On the recommendation of Rajasthan High Court, H.E. the Governor of State of Rajasthan is pleased to appoint the following 56 officers purely on ad-hoc basis as Additional District and H

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JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]

Sessions Judge in the District Judge cadre under Rule 15 of the A Rajasthan Judicial Service Rules, 2010:-” The names of concerned 56 Judicial Officers were thereafter mentioned in the Order.

25Copy pinpoint25. On 15.12.2014 a final seniority list of all the Judicial Officers who were then in service and appointed under the provisions of 1969 B Rules prior to 2008 (from Serial Nos.1 to 205) was published. This seniority list is not under challenge and is accepted to be correct by all the concerned.

26Copy pinpoint26. A Notification was issued on 31.03.2015 by the High Court determining cumulative vacancies in the cadre of District Judge for the years 2012-13, 2013-14, 2014-15 and 2015-16 as under:- “In supersession of earlier Notification No.Estt.(RJS)/33/2014 dated 01.04.2014, as per Schedule-1 of RJS Rules, 2010, the cumulative vacancies in District judge cadre for the years 2012- 13, 2-13-14, 2014-15 & 2015-16 are hereby determined and notified as under:- As per cadre strength 372 Total Vacancies = 207+21 228 Vacancies for Direct Recruitment 44 E Vacancies for promotion by Limited Competitive Examination 29 Vacancies for promotion 134 *Note:- 21 future vacancies (against 10% of the total Number of F vacancies) are not assigned to any category for the present. However, these will be given as per roster to the particular category wherein any vacancy (ies) on account of death elevation, dismissal etc. will arise.” 26.1 Pursuant to the selection undertaken thereafter by Order G dated 05.02.2016, 175 candidates were appointed to the cadre of District Judge, which included recruitment through Promotion, LCE and Direct Recruitment, . The Order stated :- “i. This Select List in cyclic order has been prepared of the candidates being recommended for appointment while leaving one H

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A post unfilled for a candidate Shri. Akhilesh Kumar selected through Direct Recruitment. However, it is notified that this list shall remain subject to revision after receipt of complete verification report from State Government with regard to Shri Akhilesh Kumar and on his being recommended by the Court for appointment, he shall occupy the roster point in the cyclic order as he would have occupied if included in the original list as per his position in order or merit. ii. This Select List in cyclic order has been prepared of the candidates being recommended for appointment while leaving eight posts unfilled for eight Sr. Civil Judges, failing in the zone of consideration for promotion on merit-cum-seniority basis as their consideration has been deferred due to pendency of departmental enquiries against them. However, it is notified that this list shall remain subject to revision after outcome of the departmental enquiries with regard to the said eight Sr. Civil Judges and on their being recommended by the court for promotion; they shall occupy the roster point in the cycle order as they would have occupied if included in the original list as per their position in order of interese seniority in their feeder cadre.” 26.2. The petitioners in Writ Petition (Civil) No.895 of 2019, Writ E Petition (Civil) No.897 of 2019 and Writ Petition (Civil) No.899 of 2019 were promoted to the cadre of District Judge by aforesaid order dated 05.02.2016.

27Copy pinpoint27. Thereafter, a Provisional Seniority List was issued vide communication dated 16.08.2017 as regards Judicial Officers from Serial F Nos. 206 onwards. The communication recited as under:- “TENTATIVE DETERMINATION OF SENIORITY OF THE OFFICERS OF DISTRICT JUDGE CADRE. **** Final Seniority List of the officers of District Judge Cadre upto G Shri Nagendra Pal Bhandari was published on 15.12.2014. After taking into consideration, the representations received from the officers of different categories and all relevant provisions, the tentative/provisional seniority list of the officers of District Judge Cadre next to Shri Nagendra Pal Bhandari is reckoned/proposed:” H

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The names of all the concerned candidates were mentioned in the Provisional Seniority List. The candidates, who were successful in LCE were given the original order of Seniority in the feeder cadre without giving them any benefit for having successfully cleared the LCE. Further the 47 Judicial Officers promoted on 21.04.2010 were en-bloc placed above all the appointees pursuant to selection undertaken in 2011. B

28Copy pinpoint28. In August 2018, Writ Petition Nos.936 of 2018 and 967 of 2018 namely Writ Petitions in Categories A and referred to in Para 1 hereinabove were filed in this Court submitting inter alia that post the coming into effect of 2010 Rules, all the appointments in the categories of selection through LCE and Direct Recruitment had to be in conformity with 2010 Rules and in tune with the Cyclic Order; that placement of the 47 Judicial Officers whose Appointment Orders were issued after the process was undertaken in the year 2010 for selection of candidates through LCE and Direct Recruitment, was not correct.

29Copy pinpoint29. Notice was issued by this Court in aforesaid Writ Petition (Civil) Nos.936 of 2018 and 967 of 2018 on 20.09.2018. On 14.12.2018 D the learned counsel for the High Court submitted that the objections to the Provisional Lists were pending consideration with the High Court. Therefore, at his request the petitions were adjourned. Thereafter, the entire matter was considered by the High Court and by its Report dated 15.03.2019 all the objections raised by the concerned candidates were E dealt with. The report was thereafter placed on record. On 18.07.2019 when said Writ Petitions and all other connected matters were taken up, it was highlighted that the 47 Judicial Officers were not promoted in conformity with Rule 32(1) of 2010 Rules, and, in any case, the principle of Cyclic Order, in terms of Rule 42, was also not complied with and yet they were placed at Serial Nos.206 to 250. Since the 47 Judicial Officers F were not parties to the present proceedings, notice was issued to them by Order dated 18.07.2019.

30Copy pinpoint30. In the meantime, the Report of the Committee of five Judges of the High Court under the Chairmanship of the Chief Justice of the High Court which had considered all the representations was placed on G record. The Committee had framed following four questions for its consideration in said Report dated 15.03.2019:- (1) Whether the officers, who were promoted on the post of Additional District Judge (Fast Track) on ad-hoc basis under H

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A Rule 22 of the Rules of 1969, can claim seniority from the date of such ad-hoc promotion in view of the first proviso to Rule 24 of the Rules of 1969, by virtue of saving clause in Rule 57 of the Rules of 2010, which were enforced on 19.01.2010? B (2) Whether the process of selection for direct recruitment against 36 posts determined in the year 2010-11 should be taken to have commenced from 15.04.2010 when initial advertisement for recruitment was issued or from 19.07.2011 when fresh advertisement was issued after earlier process was cancelled with the decision of the High Court to hold the C process of recruitment afresh? (3) Whether seniority of officers of the same batch promoted to the District Judge cadre in the Limited Competitive Examination quota, should be prepared on the basis of their inter-se placement in the merit list of such examination under D Rule 32(2) or should be, in view of Rule 47(4) of the Rules of 2010, the same as it was in Senior Civil Judge cadre? (4) Whether seniority of the officers promoted to the District Judge cadre in view of Rule 31(4), is required to be fixed in cyclic order as per roster given in Schedule V to Rules of E 2010 with adherence to quota-rota rule and what bearing in the facts of the case, the opening words “As far as possible” in Rule 42 of the Rules, would have on determination of seniority? 30.1 Before dealing with the aforesaid four questions, the scope of the matter was dealt with as under:- “The Rajasthan High Court notified the provisional seniority list of the officers of the District Judge cadre next to Shri Nagendra Pal Singh Bhandari on 16.08.2017, inviting objections thereto. This seniority list started from Shri N.S. Dhaddha at serial no.206 and continued upto Shri Mohammad Arif at serial no.519. Recruitment to District Judge cadre is made by three methods – 65% by promotion, 10% by Limited Competitive Examination (for short, ‘LCE), both from amongst the Senior Civil Judges and 25% by direct recruitment from the members of the Bar. The officers from all the three streams submitted their written objections to H

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JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]

the provisional seniority list. Meeting of the Committee was A convened under the Chairmanship of the Chief Justice in the Committee Hall of the High Court premises at Jodhpur on 06.01.2019. Their oral submissions were also heard in support of the written objections already submitted. … … … B We may at the outset make it clear that we do not wish to unsettle the seniority position which has attained finality insofar as final seniority list dated 15.12.2014 is concerned, because no one from any of the three streams of recruitment has ever challenged the same before any forum known to law. However, at the same C time, we wish to make it clear at this stage itself that while deciding the objections as to correctness of the provisional seniority list dated 16.08.2017, we may not agree and may deviate from the principles on which the conclusions of the earlier seniority committee in its report are founded.” D 30.2 With regard to first question the conclusion arrived at by the Committee was as under:- “In view of the position of law discussed above, we are not persuaded to countenance the submission that the promotes against the posts outside the cadre should be taken to have been promoted from the date of their ad hoc promotion either in the fast track courts or any other court, for the purpose of grant of seniority with reference to proviso to Rule 24 even though their regular promotion has actually taken place after the Rules of 1969 were repealed and the Rules of 2010 were promulgated on 19.01.2010. We also cannot uphold the argument that any right stood crystalized in favour of such promotes by reason of prescription made in proviso to Rule 24 and such right, by virtue of the savings clause under Rule 57 of the Rules of 2010, would remain protected so as to entitle them to claim seniority from the date of initial promotion on ad hoc basis even if their regular promotion has taken place later than the promulgation of the Rules of 2010. We are not examining the correctness of the order granting selection scale to certain officers by counting the ad hoc service towards requisite period of five years, but that cannot justify giving the benefit of seniority on the basis of ad hoc promotion in view of the interpretation of the extant rules we have taken in the light of H

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A settled proposition of law. In our considered view, all those who were promoted on ad hoc basis earlier under the Rules of 1969, prior to promulgation of the Rules of 2010, can be given seniority only from the date of their substantive appointment, upon regular promotion, which took place after the Rules of 2010 came into force with effect from 19.01.2010. There is therefore no legal B justification for en-bloc placement of such officers in the provisional seniority list on the basis of revision of cadre strength, when temporary/permanent posts included in the cadre with increase of its strength from 150 to 245 and every time later when the cadre strength was revised from 246 to 255, 256 to 265 and 266 C to 372 respectively.” 30.3 With regard to second question the conclusion was as under:- “In the case at hand, it should be noted that the process of recruitment was initially notified vide advertisement dated 15.04.2010, but the entire selection process both by direct recruitment as well by promotion through LCE was abandoned pursuant to decision of the Full Court, which is evident from the order of the Registrar General of the Rajasthan High Court dated 22.09.2010, whereby it was decided that recruitment process shall be initiated afresh. New process of selection/recruitment was started in both these categories by notification dated 19.07.2011. Out of 41 candidates, who were selected in the year 2013 by way of direct recruitment pursuant to the said notification, there are at least 15 such candidates, whose names did not find place either in the eligibility list or rejection list, as per the information furnished by the Examination Cell of the High Court. These names are – F (1) Shri Malkhan Singh, (2) Shri Ram Suresh Prasad, (3) Shri Manchha Ram Suthar, (4) Shri Keshav Kaushik, (5) Shri Dinesh Tyagi, (6) Shri Hariom Sharma Attri, (7) Shri Arun Kumar Beriwal, (8) Shri Hukam Singh Rajpurohit, (9) Ms. Shivani Singh, (10) Shri Mashroor Alam Khan, (11) Ramesh Prashad Choudhary, (12) G Ms. Meenakshi Sharma, (13) Ms. Anu Aggarwal, (14) Shri Kishan Chand, and (15) Shri Satish Kumar. This proves that either they were not eligible, or even if eligible, they did not apply in response to the earlier notification for recruitment dated 15.04.2010. We are therefore not inclined to uphold the claim of direct recruits that they should be conferred the benefit of seniority from the H

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year 2010. In any event, the direct recruits cannot claim seniority A earlier than initiation of fresh process of selection pursuant to notification dated 19.07.2011 during the year 2011-12. The result of this would be that these direct recruits would not be entitled to claim seniority over at least those 47 officers, who were promoted on regular basis vide order dated 21.04.2010 in the year 2010-11 B after the Rules of 2010 came into force. The direct recruits cannot therefore claim seniority above those officers, who were promoted on regular basis soon after promulgation of the Rules of 2010, when they were not even borne on the cadre.” (emphasis supplied) C 30.4 While dealing with third question the Committee concluded:- “…We are therefore of the view that merit of those promoted through LCE should by virtue of Rule 32(2) be considered as the benchmark for promotion, inter-se seniority amongst them in the feeder cadre being maintained by prescription of Rule 47(4), subject to the exception that if an officer by regular method of promotion is able to otherwise secure promotion in the same year in the regular line on his turn and on that basis he gets a higher placement in the seniority, regardless of his selection in the LCE, he should not be put to a disadvantageous position and allowed to retain his position in the seniority based on his regular promotion. In other words, such officer would be entitled to retain seniority, either on the basis of LCE or on the basis of regular promotion, whichever is more beneficial to him.” 30.5 Finally, while dealing with fourth question, the Committee took into account that there was no actual recruitment in the years 2012- F 13, 2013-14 and 2014-15 and the recruitment process commenced by the Notification dated 26.04.2015 was with regard to vacancies of all four years i.e. 2012-13, 2013-14, 2014-15 and 2015-16. In the circumstances, it was concluded:- “As far as the period subsequent to the roster order dated G 15.07.2013 is concerned, the determination of vacancies was made every year fairly regularly as noticed above, but actual recruitment from none of the three modes could take place in any one of the years 2012-13, 2013-14 and 2014-15. Finally again the recruitment process commenced by notification dated 26.04.2015 in the year H

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A 2015-16. Since the vacancies of all four years, viz., 2012-13, 2013- 14, 2014-15 and 2015-16, were combined, even if some of the officers were in between allowed to continue on the post of Additional District & Sessions Judge on ad hoc basis, they cannot in view of the afore-discussed provisions of the Rules claim seniority on that basis. The vacancies of all these four years having B been determined as those of the year 2015-16, all the appointments, by direct recruitment, LCE or regular promotion, should be deemed to belong to the year 2015-16. …. …. … C Perusal of the provisional seniority list shows that all 56 officers starting from Shri Satish Kumar Vyas (S.No.369) upto Shri Jai Prakash Narain Purohit (S.No.423), promoted on ad hoc basis vide order dated 21.04.2014 as Additional District Judge in the DJ cadre under Rule 15 of the Rules of 2010, have been wrongly assigned higher seniority. Thereafter, 26 officers starting from D Shri Paras Kumar Jain (S.No.424*) upto Shri Jagendra Kumar Agarwal (S.No.450), all promoted on ad hoc basis by order dated 21.04.2015 also have been wrongly assigned higher seniority in the provisional seniority list. The next slot of officers starting from Shri Ashok Kumar Agarwal (S.No.451) onwards though have been promoted on regular basis by order dated 05.02.2016, but they have been all placed en-bloc senior to those who were selected against direct recruitment quota. Surprisingly, the cadre strength was initially increased with the enforcement of the Rules of 2010 on 19.01.2010, but the High Court administration has applied the same analogy of revision of cadre strength even on three subsequent occasions for placing all the officers appointed on ad hoc basis en-bloc in the seniority above those directly recruited. Some of the officers, who though got regular promotion vide order dated 05.02.2016, deviating from the roster point indicated in the order of promotion dated 05.02.2016, have been placed en-bloc above the officers of direct recruitment and LCE quota by wrongly applying the proviso to Rule 24 as if this repealed Rule would perpetually survive by mere reason of ad hoc promotions, for each succeeding year. Grant of benefit of seniority to officers promoted on ad hoc basis was thus contrary to the provisions contained in Rule 15 and 47(4). H

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Taking all the aforementioned circumstances into account, we are inclined to hold that each of the years 2012-13, 2013-14, 2014- 15 for the purpose of operating the roster system should be treated as zero recruitment year and that the recruitment against combined 207 vacancies determined for these years and the year 2015-16, should be taken as the vacancies of the year 2015-16 so as to make the Rule 42 of the Rules of 2010 workable, which begins with the phraseology “As far as possible”, a select list as provided in Schedule-V shall be prepared by the High Court. Such select list in the cyclic order as per the roster point was earlier prepared by order dated 15.07.2013 and also when the next regular selections took place vide order dated 05.02.2016 but this was not truly reflected in the seniority list. All the officers promoted on regular basis by order dated 05.02.2016 should be taken to have been substantively appointed from that date only. If this view is taken, no prejudice would be caused to any class of the officers as none of them would compete for promotion/appointment in their respective category in previous three years. Vacancies of all these three years having been clubbed with the vacancies of the year 2015-16 to be determined as the vacancies of that year, each one of them has had opportunity to compete with his fellow officers/ candidates for substantive appointment by way of promotion/LCE/ direct-recruitment, to the DJ cadre together.” E

31Copy pinpoint31. Mr. Ranjit Kumar, learned Senior Advocate and Mr. A.D.N. Rao, learned Advocate for the petitioners in Writ Petition (Civil) No.936 of 2018, and Mr. P.S. Patwalia and Mr. Nitesh Gupta, learned Senior Advocates for the petitioners in Writ Petition (Civil) No.967 of 2018 submitted that in terms of the provisions of 2010 Rules, any appointments F made after said Rules came into effect, had to be in conformity with the principles therein and in accordance with the percentages for three different sources set out therein. It was submitted that before 2010 Rules came into effect, the strength of the cadre of District Judge in the State was 150 and it got raised to 245 only after 2010 Rules came into effect. Relying on the decisions of this Court in Debabrata Dash and G Another v. Jatindra Prasad Das and Others 16, V.Venkata Prasad and Others v. High Court of A.P. and Other17and in Kum C. Yamini

16 (2013) 3 SCC 658 17 (2016) 11 SCC 656 H

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A v. The State of Andhra Pradesh18, it was submitted that no service rendered on ad-hoc basis as Fast Track Court Judges could be counted and that the rights of such candidates to be considered for promotion arose only after 2010 Rules and that since the Notification dated 31.03.2010 notified vacancies to be filled up by Direct Recruitment and through LCE, the High Court could not have promoted the 47 Judicial B Officers by Order dated 21.04.2010 so as to adversely affect the chances and status of the petitioners. It was submitted that the entire exercise must be taken to be one single package under which appointments through all three sources could be undertaken after the vacancies became available by enhancement of cadre strength; and that the entire exercise undertaken after issuance of the Notification on 31.03.2011 was nothing but continuation of what was contemplated by the Notification dated 15.04.2010. It was, therefore, submitted that the vacancies which were subject matter of Notification dated 31.03.2011 and the posting of the 47 Judicial Officers pursuant to Order dated 21.04.2010 must be considered as part of the same process. Resultantly, the placement of the concerned candidates ought to be governed by the Cyclic Order enumerated in Schedule VII to 2010 Rules. Reliance was placed on the decision of this Court in Union of India and Others v. N. R. Parmar and Others19. Mr. Nikhil Singhvi, learned Advocate for the petitioners in Writ Petition (Civil) Diary No.13252 of 2019 added another dimension in respect of LCE candidates. It was submitted that in keeping with the directions issued by this Court in para 28 in All India Judges’ Association1 the promotions through LCE must be “strictly on the basis of merit” and that Rule 31(2) of 2010 Rules translates the same principle and, therefore, the ranking of the candidates who had cleared LCE must be in accordance with merit and not in accordance with their inter se seniority in the erstwhile cadre.

32Copy pinpoint32. On the other hand, Mr. R. Balasubramanian, learned Senior Advocate and Ms. Prerna Singh, learned Advocate appearing for the 47 candidates submitted that said candidates were promoted well before the initiation of selection process initiated pursuant to the Notification dated 31.03.2011; that said Notification was not in continuation of the process initiated in 2010; that number of candidates who were selected in the selection process pursuant to the Notification dated 31.03.2011 18 (2019) 10 SCALE 834 = 2019(8) JT 365 H 19 (2012) 13 SCC 340

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had not even participated in the process initiated in 2010 and the A Committee of the High Court in its Report dated 15.03.2019 rightly answered Question No.2 in the negative. In their submission, the issue of regular promotion of those who were manning the Fast Track Court on ad-hoc basis was always under consideration right from 23.08.2008 when a Committee of the High Court had made its recommendations. In B the process, the case of the 47 candidates stood on a completely different footing and the Committee of the High Court in its Report dated 15.03.2019 rightly acknowledged their entitlement.

33Copy pinpoint33. Mr. Vijay Hansaria, learned Senior Advocate appearing for the petitioners in Writ Petition (Civil) No.464 of 2019 submitted that all these petitioners were appointed on ad-hoc basis as Fast Track Court C Judges in the year 2008 and as a matter of fact, 4 Judicial Officers who were also appointed along with these petitioners in the year 2008 were part of the list of the 47 candidates at Serial Nos.44 to 47 whereas these petitioners were not included in said list. These Petitioners, therefore, pray that the order dated 15.03.2019 be set aside to the extent it deprived said petitioners of their rightful due and they be given seniority from their initial appointment as Judges of the Fast Track Court that is from 11.01.2008 or, at least, above all LCE candidates and Direct Recruits as was given to the 47 candidates. It was further submitted that out of 83 Fast Track Courts which were mentioned in Part A of Schedule II to 2010 Rules, 40 Courts were abolished on 31.03.2011 and the petitioners were continued as Additional District Judges against vacant regular posts vide Order dated 31.03.2011. However, their substantive promotion to the Cadre of District Judge was made on 15.07.2013 along with the Direct Recruits and candidates through LCE. It was submitted that their initial appointments being under 1969 Rules and the fact that they were occupying posts indicated in Part A of Schedule II as stated above, their case would be covered by Rule 57 of 2010 Rules. It was however accepted that some of the petitioners had participated in the LCE around that time.

34Copy pinpoint34. Mr. Neeraj Jain, learned Senior Advocate for the Association G in Writ Petition (Civil) No.1471 of 2018 submitted that as acknowledged in the decision of this Court in Rajasthan Judicial Service Officers Association11 there were 41 Direct Recruits in the Cadre of District Judges in the year 2009 and as such it was incorrect to assess the vacancies for Direct Recruits in the Notifications dated 15.04.2010 and H

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A 31.03.20111 at the level of 36 and 37 respectively. In his submission the allocation of vacancies to Direct Recruits was in excess of their entitlement.

35Copy pinpoint35. Mr. V.K. Shukla, learned Senior Advocate appeared for the petitioners in Writ Petition (Civil) No.899 of 2019, who were promoted on ad-hoc basis as Additional District and Sessions Judges to man the Fast Track Courts on 21.04.2010 i.e. after 2010 Rules had come into force and who were substantively promoted to the Cadre of District Judge by Order dated 05.02.2016. It was submitted that their services at the level of Additional District and Sessions Judge were continued even after abolition of Fast Track Courts and thus said petitioners ought to be given the benefit of past service and be conferred appropriate seniority.

36Copy pinpoint36. Dr. Sumant Bhardwaj, learned Advocate appeared for the petitioner in Writ Petition (Civil) No.1008 of 2019, where the petitioner stands on similar footing as in Writ Petition (Civil) No.899 of 2019, in that the ad-hoc promotion to the Cadre of District Judge was granted in the year 2012.

37Copy pinpoint37. Dr. Manish Singhvi, and Mr. Sanjay Hegde, learned Senior Advocates appearing for the State and the High Court respectively supported the actions taken by the High Court on the administrative side. E

38Copy pinpoint38. In the backdrop of the facts and circumstances on record and the submissions of all the learned Counsel, following questions arise for our consideration:- (A) Whether the judicial officers promoted on ad-hoc basis as F Additional District and Sessions Judges to man the Fast Track Courts in the State and who were substantively appointed to the Cadre of the District Judge, are entitled to seniority from the date of their initial ad- hoc promotion? (B) Whether the selection process initiated in terms of the Notification dated 31.03.2011 can be said to be in continuation of the G process initiated under Notification dated 15.04.2010? (C) Whether the substantive promotion granted to the 47 Judicial Officers must be taken to be part of the same selection process pursuant to the Notification dated 31.03.2011 and whether the 47 Judicial Officers could be placed en-bloc senior to the candidates selected in said selection H

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process initiated pursuant to the Notification dated 31.03.2011, without applying the Cyclic Order in terms of 2010 Rules? (D) Whether the inter se placement of candidates selected to the Cadre of District Judge in the State through Limited Competitive Examination, in the seniority list must be based on their merit in said examination or should it be based on their initial seniority in the erstwhile cadre? (E) Whether the Report dated 15.03.2019 and the consequential Final Seniority List, otherwise calls for any modification or correction?

39Copy pinpoint39. As regards question No. (A), the law on the point is well settled and though learned Counsel advanced submissions based on various decisions of this Court and the principles emanating therefrom, the following decisions in the context of ad-hoc appointments as Additional District and Sessions Judges to man Fast Track Courts in the country, are sufficient to address the issue. (A) In Debabrata Dash and Another v. Jatindra Prasad Das D and Others16, a Bench of three Judges of this Court considered the case wherein respondent No.1 was initially appointed as Additional District Judge (Fast Track Court) on ad-hoc basis and later his service was regularized in the Senior Branch Cadre in Orrisa Superior Judicial Service. His claim that service rendered as Judge of the Fast Track E Court ought to be reckoned for seniority was accepted by the Orissa High Court. This Court, however, set aside the decision of the High Court. The question that came up for consideration was posed in para 28 as under:- “28. The crucial question that arises for consideration in F this appeal is: whether promotion of the writ petitioner as an ad hoc Additional District Judge vide Notification dated 5-1-2002 to the Senior Branch of the Superior Judicial Service for being posted in the Fast Track Court established out of the Eleventh Finance G Commission recommendations can be said to be an appointment in the Senior Branch Cadre of Superior Judicial Service? The fate of the appeal depends upon the answer to this question. If the answer to this question is found in the affirmative, the appeal must fail. On the other hand, the appeal must succeed if the answer is in the negative.” H

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A This Court thereafter considered the effect of 2001 Rules which were made to regulate the recruitment of Judicial Officers in the State to man Fast Track Courts on ad-hoc basis. Para 35 considered the effect of the Rules as under:- “35. As noted earlier, 72 posts of ad hoc Additional District Judges B were created under the 2001 Rules to meet its objectives. These posts were not part of cadre strength of Senior Branch Service in the 1963 Rules nor by creation of these posts under the 2001 Rules, the cadre strength of the Senior Branch of service got increased. The writ petitioner’s promotion as an ad hoc Additional District Judge vide Notification dated 5-1-2002 pursuant to which C he joined the post of ad hoc Additional District Judge, Bargarh on 26-4-2002 is traceable wholly and squarely to the 2001 Rules. Merely because the writ petitioner was adjudged suitable on the touchstone of the 1963 Rules, we are afraid, it cannot be said that he was given appointment to the post of ad hoc Additional District D Judge under the 1963 Rules. As noted above, there was no vacancy to be filled by promotion in the cadre strength of Senior Branch of the service under the 1963 Rules on that date.” The decisions of this Court in Direct Recruit Class II Engg. Officers’ Assn.20 and Rudra Kumar Sain21 as well as in Brij Mohan Lal6 were also considered as under:- E

41Copy pinpoint41. A five-Judge Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn.20 was concerned with a question of seniority in service between the direct recruits and promotees amongst Deputy Engineers in the State of Maharashtra. This Court considered previous decisions of this Court, including S.B. F Patwardhan v. State of Maharashtra22 and Baleshwar Dass v. State of U.P.23 and in para 47 of the Report summed up the legal position. Clauses (A), (B) and (C) of para 47 are relevant for the present purpose which read as follows: (Direct Recruit Class II Engg. Officers’ Assn.20, SCC p. 745, para 47) G “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. 20 (1990) 2 SCC 715 21 (2008) 8 SCC 25 22 (1977) 3 SCC 399

23 (1980) 4 SCC 226 H

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The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.” The essence of direction in Clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed to a post according to the rules. In other words, where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority. The writ petitioner’s appointment as an ad hoc Additional District Judge is not traceable to the 1963 Rules. The simple reason leading to this consequence is that there was no vacancy available which was to be filled up by promotion on that date in the Superior Judicial Service (Senior Branch).

42Copy pinpoint42. In Rudra Kumar Sain21 a five-Judge Bench of this Court was again concerned with the inter se seniority between the promotees and direct recruits in the Delhi Higher Judicial Service. The contention was whether the guidelines and directions given by this Court in O. P. Singla24 have been followed or not. The Court considered the 3 terms “ad hoc”, “stopgap” and “fortuitous” in the context of the service jurisprudence and in para 20 of the Report held as under: (Rudra Kumar G Sain case21, SCC p. 45) “20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post

24 (1984) 4 SCC 450 H

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A and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be ‘stopgap or fortuitous or purely ad hoc’. In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be ‘fortuitous/ad hoc/ stopgap’ are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.” The Division Bench in the impugned order25 has quoted the above paragraph from Rudra Kumar Sain21 but applied it wrongly.

43Copy pinpoint43. In Brij Mohan Lal (1)6 a three-Judge Bench of this Court, inter alia, considered the Fast Track Courts Scheme. In para 10 of the judgment, this Court gave various directions. Direction 14 in that paragraph is relevant which can be paraphrased as follows: (SCC p. 10) (i) No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme.

E (ii) The service rendered in the Fast Track Courts will be deemed as service rendered in the parent cadre. (iii) In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.

44Copy pinpoint44. The learned Senior Counsel for the writ petitioner heavily relied upon the third part of Direction 14. As a matter of fact, this part has been relied upon in the impugned judgment1 as well. It is submitted on behalf of the writ petitioner that on promotion to the Senior Branch Cadre of Superior Judicial Service during his tenure in the Fast Track Courts, the writ petitioner is entitled to the counting of the service rendered by him in the Fast Track Court as a service in Superior Judicial Service (Senior Branch).

25Jatindra Prasad Das v. State of Orissa, WP(C) No.21449 of 2011, decided on H 15-11-2011 (Ori)

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The submission overlooks the first two parts of Direction 14, one, A no right will be conferred in judicial service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the scheme; and two, the service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In our opinion, until the vacancy occurred in the cadre of Superior B Judicial Service (Senior Branch) which was to be filled up by promotion, the service rendered by the writ petitioner in the Fast Track Court cannot be deemed to be service rendered in the Superior Judicial Service (Senior Branch). Rather until then, he continued to be a member of the parent cadre i.e. Superior Judicial Service (Junior Branch). The third part of Direction 14, in our C view, does not deserve to be read in a manner that overrides the 1963 Rules.” (B) In V. Venkata Prasad and Others v. High Court of A.P. and Others17, a Bench of two Judges of this Court considered the case which arose in almost identical fact situation. The claim of the concerned D Judicial Officer for reckoning the service rendered as Additional District Judge (Fast Track Courts) on ad-hoc basis was rejected. Reliance was placed on the decision of this Court in Debabrata Dash19 and the ratio in that decision was followed. (C) In Kum C. Yamini v. The State of Andhra Pradesh18 a E bench of three Judges of this Court considered the issue where the candidates from the Bar were appointed on ad-hoc basis and after their consideration, claim was raised to reckon their seniority from the date of initial ad-hoc appointment. The relevant observations are :- “12. While rejecting the claim for their absorption and challenge to the notification issued for the recruitment in the regular cadre posts, certain directions were issued in Brij Mohan Lal (2) (supra) for considering the claims of ad hoc judges appointed to Fast Track Courts into regular cadre posts. Following the directions only, the second respondent has issued notification inviting applications for appointments to the regular cadre of District Judges and appellants and others responded to such notification and totally 12 of them were selected for regular vacancies. In the appointment order dated 02.07.2013 in G.O.MS. No.68 issued by Law (LA & J- SC.F) Department, they were put on probation for a period of two years and after the declaration of successful probation and H

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A nearly after four years of appointment, the present claim is made claiming seniority from the date of their initial appointment, as ad hoc District Judges.

13. The claim of the appellants that they were appointed as ad hoc District Judges by following the procedure which is similar to B the procedure for appointments to the sanctioned posts in the regular cadre, is no ground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11th C Finance Scheme are totally different and distinct, compared to appointments which are to be made for regular vacant posts of District Judges covered under A.P. Higher Judicial Service. If a person is not appointed to any post in the cadre, such person cannot claim any seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11th Finance Commission, were continued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is no ground to consider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation/absorption and challenge to notification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and confirmed by this Court, we are of the view that the appellants have no basis to claim seniority from the date of initial appointment. In any event, having applied in response to the notification issued by the High Court in the year 2013 after availing the benefit of appointment, it is not open to the appellants to question the conditions imposed in the order which is in conformity with rules. Undisputedly, appellant was appointed as ad hoc District Judges to preside over the Fast Track Courts only. Initially when she was not appointed to a post or category of posts, forming part of cadre strength in such category, appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the

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appellant. Though the appellant claims seniority over the persons A who are appointed in regular vacant posts forming part of cadre strength but they are not even made parties. On this ground also, the claim of the appellants deserves rejection.

14. We have perused the judgment relied on by the appellant party in person, in the case of Rudra Kumar Sain & Ors. v. Union of B India & Ors. (supra). In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. Learned senior counsel Sri Venkataramani, has also relied on the judgments of this Court in the case of Brij Mohan Lal (1) v. Union of India & Ors. (supra); in the case of Debabrata Dash & Anr. v. Jatindra Prasad Das & Ors. (supra); in the case of V. Venkata Prasad & C Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in the case of Brij Mohan Lal (2) v. Union of India & Ors. (supra). We have looked into the judgments referred above by the learned senior counsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would not render any assistance in support of their claim in these cases. The claim of seniority will depend upon several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or not etc. When the appellants were not appointed to any regular posts in the A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would not render any assistance in support of their case. F

15. On the other hand, the judgment in the case of V. Venkata Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra), this Court has, in clear terms, while considering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are G ad hoc in nature and no right accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Paragraph 25 of the said case which is relevant for the purpose of these cases reads as under : “25. From the aforesaid two authorities, it is quite clear that the appointments in respect of H

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A Fast Track Courts are ad hoc in nature and no right is to accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services.” B The decisions in Debabrata Dash16, and V. Venkata Prasad17 were in the context where serving Judicial Officers were granted ad- hoc promotions as Fast Track Court Judges, while in C. Yamini18 the members of the Bar were appointed as Fast Track Court Judges and these decisions thus completely conclude the issue. As has been held in C said decisions, the reckonable date has to be the date when substantive appointment is made and not from the date of the initial ad-hoc appointment or promotion. Question (A) is, therefore, answered in the negative.

40. As regards Question No.(B), it is relevant to note that the D Notification dated 15.04.2010 had invited application for filling up 36 vacancies by Direct Recruitments and 22 vacancies by Promotion through LCE. This was preceded by determination of vacancies through Notification dated 31.03.2010. After the process initiated in terms of said Notification dated 15.04.2010 was cancelled, a fresh determination E of the vacancies was undertaken and the Notification dated 31.03.2011 now found vacancies for Direct Recruitments, for Promotion through LCE and for Regular Promotion at 37, 32 and 24 respectively. Thus, the vacancies which became available post the Notification dated 15.04.2010 were also taken into account. The Report dated 15.03.2019 shows that some of the selected candidates in the process pursuant to the Notification F dated 31.03.2011 had not even participated in the earlier process of 2010. In the premises, if the submission that the process initiated under the Notification dated 31.03.2011 must be held to be in continuation of the earlier selection of 2010 is accepted, it would amount to conferring undue advantages upon persons who either had not participated in the process G of 2010 or who were not even eligible in 2010. The Report dated 15.03.2019, therefore, correctly appreciated the fact situation on record and concluded that it would not be in continuation of the earlier process.

41. As regards Question No.(C), it must be noted that as on the date when 2010 Rules came into effect, the Additional District and H Sessions Judges manning the Fast Track Courts had rendered service in

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ad-hoc capacity for almost 07 years. The question whether they be A granted promotion on Regular Basis was subject matter of consideration of the High Court. The Report of the Committee of Judges given in 2008 had advised that they be granted Regular Promotion and the matter was getting deferred at the level of the Full Court. It was at this stage that 2010 Rules became effective from 18.01.2010. Even thereafter, the B Notification dated 31.03.2010 had published the vacancy situation only in respect of Direct Recruitment and Promotion through LCE. It was obviously so, as the issue regarding grant of Regular Promotion on substantive basis to those Fast Track Court Judges was simultaneously under consideration and on 21.04.2010 a formal Order was passed promoting the 47 Judicial Officers on substantive basis to the Cadre of C District Judge. The grant of promotion to the 47 Judicial Officers and selection process pursuant to the Notification dated 15.04.2010 were not part of the same process and were completely independent. None of the 47 Judicial Officers had the occasion to compete in the LCE that was undertaken in terms of the Notification dated 15.04.2010. It is possible to say that the last of the 47 Judicial Officers could as well have been the first in the list of successful candidates through LCE and thus could possibly have been entitled to better placement. In any case, the process initiated pursuant to the Notification dated 15.04.2010 was cancelled for administrative reasons and the appointments in respect of process pursuant to the Notification dated 31.03.2011 could be effected only in the year 2013, i.e. more than 03 years after the 47 Judicial Officers were granted substantive appointment to the Cadre of District Judge. Further, if grant of promotion to the 47 Judicial Officers is taken to be the part of the same process, some of the Direct Recruits may not even be having eligibility in the year 2010 and yet may be placed above some of the 47 Judicial Officers. In the circumstances, the assessment made by the High Court in its Report dated 15.03.2019 is without any infirmity and we have no hesitation in concluding that the substantive promotion granted to the 47 Judicial Officers cannot be taken to be part of the same selection process where Direct Recruits and candidates through LCE were appointed to the Cadre of District Judge on 15.07.2013. G If the substantive appointment of the 47 Judicial Officers to the Cadre of District Judge is separate and distinct from the selection process through which appointment were made after three years on 15.07.2017, there would be no question or occasion to apply the Cyclic Order. It is not the contention of anyone that appointment of the 47 Judicial Officers H

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A on the relevant date was either beyond the quota meant for Regular Promotion or that there was any serious infirmity in the process or that any of the candidates was completely ineligible. Since there was a difference of more than 03 years between these two modes of selection, the Report dated 15.03.2019 rightly concluded that the Cyclic Order ought not to get attracted. B It is true that the Cyclic Order and the quota for different streams ensure equitable treatment for three sources. However, the application of the Cyclic Order must depend upon the fact situations. It was precisely for this reason that the expression “as far as possible” has been used in the Rule. Other things being equal, certainly the quotas for different C streams and the Cyclic Order must be adhered to. However, if such adherence itself is going to cause incongruous situation and inflict incalculable harm, insistence upon applicability of the Cyclic Order in such cases may not be appropriate. The expression “as far as possible” was, therefore, relied upon by this Court in Para 34 of its decision in D Veena Verma12. It would also be instructive to refer to a decision of this Court in State of M.P. v. Narmada Bachao Andolan and Another26, where the expression “as far as possible” was explained:- ““As far as possible”

38. The aforesaid phrase provides for flexibility, clothing E the authority concerned with powers to meet special situations where the normal process of resolution cannot flow smoothly. The aforesaid phrase can be interpreted as not being prohibitory in nature. The said words rather connote a discretion vested in the prescribed authority. It is thus discretion and not compulsion. F There is no hard-and-fast rule in this regard as these words give a discretion to the authority concerned. Once the authority exercises its discretion, the court should not interfere with the said discretion/decision unless it is found to be palpably arbitrary. (Vide Iridium India Telecom Ltd. v. Motorola Inc.27 and High Court of Judicature for Rajasthan v. Veena Verma12.) Thus, it G is evident that this phrase simply means that the principles are to be observed unless it is not possible to follow the same in the particular circumstances of a case.”

26 (2011) 7 SCC 639 H 27 (2005) 2 SCC 145

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41.1. We must at this stage deal with submissions based on the decision of this Court in N.R. Parmar19. In that case a Bench of two Judges of this Court while considering O.N. dated 20.12.1999 and 02.02.2000 had concluded as under:- “31.2. It is not necessary, that the direct recruits for vacancies of a particular recruitment year, should join within the recruitment year (during which the vacancies had arisen) itself. As such, the date of joining would not be a relevant factor for determining seniority of direct recruits. It would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available. This is so, because delay in administrative action, it was felt, could not deprive an individual of his due seniority. As such, initiation of action for recruitment within the recruitment year would be sufficient to assign seniority to the appointees concerned in terms of the “rotation of quotas” principle, so as to arrange them with other appointees (from the alternative source), for vacancies of the same recruitment year. … 34.1. If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a E subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which F the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2-2-2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection.” G Relying on the aforementioned observations, it was submitted that the candidates selected through Direct Recruitment and LCE on 15.07.2013 could not be prejudiced if the High Court on the administrative side had segregated the issue of promotion of the 47 Judicial Officers on one hand and the selection through Direct Recruitment and LCE on the H

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A other; and the time lag of three years between the appointments would, therefore, be of no consequence. The decision in N.R. Parmar19 was thereafter relied upon by another Bench of two Judges of this Court in Hon’ble Punjab and Haryana High Court v. State of Punjab and others28. In that case, the recruitment from three different sources to the cadre of District Judge was done on three different dates but in the same year. Paragraphs 50 to 53 of said decision may be extracted as under:-

50. At this juncture, one of the submissions, which has been emphatically pressed by the learned Counsel for the promotees is that for determination of seniority, continuous length of service is determinative. The direct recruits and out of turn promotees, who were not even born in the cadre when promotees were promoted, they have to take seniority after the promotees. In this reference, it is useful to refer to a judgment of this Court in Union of India and Ors. v. N.R. Parmar and Ors. (2012) 13 SCC 340, the issue in the said case was also an issue of determination of seniority between direct recruits vis-à-vis promotees and quota and rota principles. This Court had occasion to consider the office memorandum issued by the Government dated 22.12.1959. Noticing Para 6 of above office memorandum following was stated in Para 23 of the judgment:

23. The General Principles for determining seniority in the Central Services are shown to have been laid down in an annexure to an Office Memorandum dated 22-12-1959 issued by the Government of India, Ministry of Home Affairs (hereinafter referred to as F “the OM dated 22-12-1959”). Para 6 of the annexure, referred to above, laid down the manner of determining inter se seniority between direct recruits and promotees. Para 6 is being extracted hereunder:

6. Relative seniority of direct recruits and promotees.—The G relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Department Rules.

H 28 (2019) 12 SCC 496

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It is apparent from the above extract of the OM dated 22- A 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 observed that “when direct recruits or promotees become available through later examinations or selections”, it clearly mean that the situation contemplated is one where, there has been an earlier examination or selection, and is then followed by a “later” E examination or selection.

52. In the above context, this Court laid down following in Paragraph 31.2 that “it is not necessary, that the direct recruits of a particular recruitment year, should join within the recruitment year itself”. It was held that date of joining would not be a relevant F factor for determining seniority of direct recruits. In paragraph 31.2 and 34.1 following has been laid down: 31.2. It is not necessary, that the direct recruits for vacancies of a particular recruitment year, should join within the recruitment year (during which the vacancies had arisen) itself. G As such, the date of joining would not be a relevant factor for determining seniority of direct recruits. It would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available. This is so, because delay in administrative action, it was felt, H

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A could not deprive an individual of his due seniority. As such, initiation of action for recruitment within the recruitment year would be sufficient to assign seniority to the appointees concerned in terms of the “rotation of quotas” principle, so as to arrange them with other appointees (from the alternative source), for vacancies of the same recruitment year. B 34.1. If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected C candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the D ON dated 2-2-2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection.

53. In the present case, process for all the three streams was E 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 F 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 G 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.” H

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41.2 It must, however, be stated that the decision in N.R*. A Parmar19 has since then been overruled by a Bench of three Judges of this Court in K. Meghachandra Singh and Ors. vs. Ningam Siro and Others29. The relevant paragraphs of said decision are as under:

5. Before the Writ Court, the promotees contended that they entered the MPS Grade II Cadre on 01.03.2007 whereas the private Respondent Nos. 3 to 33 were appointed subsequently (on 14.08.2007 and 24.11.2007 respectively) and, therefore, they should be regarded as senior to the direct recruits.

6. The direct recruits on the other hand claimed seniority over the promotees by contending that seniority has to be decided in accordance with the year of the vacancy and not by the fortuitous date on which, the appointment could be finalized for the direct recruits. …

13. It was also made clear that the promotees will naturally have seniority over the Appellants as they had entered the cadre of MPS Grade II, before the Writ Appellants were borne in the cadre. …

17. The Senior Counsel cites Union of India and Ors. v. N.R. E Parmar, (2012)13 SCC 340, to argue that when action was initiated for filling up the 2005 vacancies, the administrative delay in finalization of the recruitment leading to delayed appointment should not deprive the individual of his due seniority. By referring to the rotation of quota principle, the counsel argues that initiation of action for recruitment in the year of the vacancy would be sufficient, to assign seniority from that year. …

20. Representing the Respondents/promotees, the learned Senior Counsel, Shri Jaideep Gupta refers to the MPS Rules, 1965 to argue that the provisions of the Rules make it abundantly clear that inter-se seniority in the cadre of MPS Grade-III is to be determined by the order in which appointments are made to the service. The counsel pointedly refers to Rules 28 (i) where it is

29 (2019) SCC Online SC 1494 H

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A specified that the ....... seniority in the service shall be determined by the order in which appointments are made to the service....... He also refers to the later part of Rule 28(iii), where again it is specified that the “seniority of the officer...... shall be counted from the date, he/she is appointed to the service............ . The provisions in Rule 16(iii) are pressed home by Mr. Gupta to argue that only when the person is appointed, he shall be deemed to have been appointed to the service from the date of encadrement.

21. The judgment in N.R. Parmar (Supra) is read with equal emphasis by Mr. Gupta to firstly point out that this case does not lay down the correct law in determination of seniority. The counsel highlights the incongruity in a situation where a person who entered service later will claim seniority above those who joined service at an earlier point of time. The applicability of the ratio in N.R. Parmar (Supra) to the litigants in the present case is also questioned by Mr. Gupta by pointing out that the provisions of MPS Rules, D 1965 applicable for the officers in the Manipur Police Officers, was not the subject of consideration in N.R. Parmar (Supra), and, therefore, the said ratio relatable to Income Tax Inspectors, with different Service Rules, will not apply to the present case. …

E 29. Before proceeding to deal with the contention of the Appellants’ Counsel vis-à-vis the judgment in N.R. Parmar (Supra), it is necessary to observe that the Law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in J.C. Patnaik (Supra)30 F the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word G “recruited” occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in J.C. Patnaik (Supra) that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued. 30 H (1998) 4 SCC 456

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30. The above ratio in J.C. Patnaik (Supra) is followed by this A Court in several subsequent cases. It would however be appropriate to make specific reference considering the seniority dispute in reference to the Arunachal Pradesh Rules which are pari materia to the MPS Rules, 1965, (vide (2007) 15 SCC 406- Nani Sha and Ors. v. State of Arunachal Pradesh and Ors.). B Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the date when vacancy arose but from the date on which the appointment is made to the post. The Court particularly held that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who C were validly appointed in the meantime.

31. We may also benefit by referring to the Judgment in State of Uttar Pradesh and Ors. v. Ashok Kumar Srivastava and Anr. (2014) 14 SCC 720. This judgment is significant since this is rendered after the N.R. Parmar (Supra) decision. Here the Court D approved the ratio in Pawan Pratap Singh and Ors. v. Reevan Singh and Ors. (2011) 3 SCC 267, and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant service Rules. The Supreme Court held that seniority cannot be given for an employee who is yet to be borne in the cadre and by doing so it may adversely E affect the employees who have been appointed validly in the meantime. The law so declared in Ashok Kumar Srivastava (supra) being the one appealing to us, is profitably extracted as follows:

24. The learned Senior Counsel for the Appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. F Reevan Singh where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below:

45Copy pinpoint45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a G particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must H

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A be consistent with the requirements of Articles 14 and 16 of the Constitution. .....................

45. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively B unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. C …

34. In the above context, it is also necessary to refer to the relevant advertisement issued in 2005 for direct recruitment which allowed the aspirants to apply even if, their result in the qualification examination is awaited. Even more intriguing and significant is the relaxation that those proposing to appear in the qualifying examination are also allowed to respond to the advertisement. If such be the nature of the process initiated (in the year 2005) for making direct recruitment, we can easily visualize a situation where, in the event of granting seniority from the stage of commencing the process, a person when eventually appointed, would get seniority from a date even before obtaining the qualification, for holding the post. …

38. When we carefully read the judgment in N.R. Parmar (Supra), F it appears to us that the referred OMs (dated 07.02.1986 and 03.07.1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in the N.R. Parmar (Supra) itself, makes it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent year’s seniority list but not in

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the seniority list of 1986. In fact, this was indicated in the two A OMs dated 07.02.1986 and 03.07.1986 and that is why the Government issued the subsequent OM on 03.03.2008 by way of clarification of the two earlier OMs.

39. At this stage, we must also emphasize that the Court in N.R. Parmar (Supra) need not have observed that the selected candidate B cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The C persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the Applicant morphs into a selected candidate and, therefore, unnecessary observation was made in D N.R. Parmar (Supra) to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in Shankarsan Dash v. Union of India (1991) 3 SCC 47, where it was held even upon empanelment, an appointee does not acquire any right. E

40. The Judgment in N.R. Parmar (Supra) relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules,

1965. We also feel that N.R. Parmar (Supra) had incorrectly distinguished the long-standing seniority determination principles propounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Gupta F and Ors. v. State of J&K and Ors. (2000) 7 SCC 561 and Pawan Pratap Singh and Ors. v. Reevan Singh and Ors. (Supra). These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a G date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N.R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled. H

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A However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement.

B 41. As noted earlier, the Learned Single Judge based his judgment on two propositions but the Division Bench was of the view that result would be the same merely on the basis of one of the two propositions and, therefore, it was unnecessary to pronounce upon the other proposition. Such an approach cannot therefore be described as a conflict (as has been suggested), between the two judgments. Both Benches were absolutely consistent in their conclusion that promotees would have to be given seniority over direct recruits. It cannot therefore be argued that by some convoluted reasoning, it is possible to come to the conclusion that the orders passed by the two Courts would result in diametrically opposite situation namely, that direct recruits would have to be given seniority over promotees.” 41.3 The facts noted in paragraph 5 of the decision in Meghachandra Singh29 show that the promotees entered the relevant grade in March 2007 whereas the direct recruits were appointed in E August and November 2007. While overruling the decision in Parmar19 it was also observed in paragraph 40 that in Service Jurisprudence, seniority cannot be claimed where the incumbent is yet to be borne in the cadre. 41.4 In the premises, the conclusion is inescapable that the candidates selected through LCE and Direct Recruitment vide Order dated 15.07.2013 cannot claim to be clubbed with the 47 Judicial Officers promoted in substantive capacity on 21.04.2010 and cannot claim appropriate placement in accordance with the Cyclic Order. We accordingly answer Question (C) and find that the 47 Judicial Officers were rightly placed en-bloc senior to all the candidates selected through the process initiated pursuant to the Notification dated 31.03.2011. Writ Petition (Civil) Nos.936 of 2018 and 967 are, therefore, dismissed.

42. While considering Question (D), it is relevant to notice the emphasis placed by this Court in All India Judges Association1 while directing that 25 per cent of the posts in the cadre of the District Judge H be filled through LCE. It was stated in paragraph 27 that there should

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be an incentive amongst relatively junior and other officers to improve and to compete with each other so as to excel and get accelerated 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.” 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. C

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. D 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 E 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. F The direction issued in All India Judges Association1 to afford an incentive to meritorious 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. G 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 2019* and H

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A Diary No.13252 of 2019 and while answering Question (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. Said Writ Petitions are allowed to that extent.

43. We now deal with the submissions advanced in Writ Petition B (Civil) Nos.464 of 2019 and 899 of 2019 and other similar matters. It is true that as on the date when 2010 Rules came into effect, there were 83 Fast Track Courts functioning in the State and appropriate mention to that effect was made in Part A of Schedule II to 2010 Rules. It is also correct to say that the ad-hoc promotions granted to the concerned Judicial Officers were under 1969 Rules. But such promotions were on ad-hoc basis to man the Fast Track Courts and the law on the point is now well settled that the service rendered by such Judicial Officers as Fast Track Court Judges on ad-hoc basis cannot be taken into account while reckoning seniority after such Judicial Officers were granted promotion on substantive basis and that their seniority has to be reckoned only from the date of their substantive appointment to the cadre of District Judge. Said 1969 Rules do not in any way confer any right which would be inconsistent with the law so laid down by this Court. The further submission that four Judicial Officers out of the 47 Judicial Officers were also appointed on the same day along with the petitioners in Writ Petition (Civil) No.464 of 2019 also has no merit. The grant of promotion on substantive basis to said four Judicial Officers does not by itself entitle said petitioners to any similar treatment. The issue of grant of promotion on substantive basis may depend upon various issues including suitability of the concerned candidate and availability of posts. The record also shows that after grant of promotion on substantive basis to the 47 Judicial Officers, there were no vacancies for Regular Promotion which is why the selection process undertaken in the year 2010 did not earmark any vacancies for Regular Promotions and it was only in the year 2011, when adequate vacancies for said category became available, that the Notification dated 31.03.2011 contemplated filling up of certain vacancies by Regulation Promotion. The petitioners in Writ Petition (Civil) No.464 of 2019 participated in the process initiated pursuant to said Notification dated 31.03.2011. Some of them also appeared in LCE and availed of the opportunity to stake their claim. Their regular promotions to the Cadre of District Judge H

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must, therefore, be taken only as a result of selection process initiated in terms of the Notification dated 31.03.2011 which culminated in the Order dated 15.07.2013. In the circumstances, their substantive appointment to said cadre has to be reckoned from 15.07.2013 and not with any anterior effect. Once the Regular Promotion was part of the same process along with other streams, namely, through Direct Recruitment and LCE, the Cyclic Order had to be applied and said petitioners cannot be given en- bloc placement above the candidates selected through Direct Recruitment and LCE in the same process of selection. We, therefore, see no merit in Writ Petition (Civil) No. 464 of C 2019 and said Writ Petition is dismissed. The petitioners in Writ Petition (Civil) No.899 of 2019 and other connected matters came to be appointed on ad-hoc basis to man the Fast Track Courts after 2010 Rules came into effect. Even if their services were continued after abolition of Fast Track Courts, that by itself would not confer any right on them. They came to be substantively promoted to the Cadre of District Judge only vide Order dated 05.02.2016. For the reasons stated hereinabove, their entitlement on substantive basis has to be reckoned only from 05.02.2016 and not from any earlier date. Writ Petition (Civil) No.899 of 2019 and other connected matters are, therefore, dismissed. Thus, while answering Question (E), we conclude that the Report dated 15.03.2019 does not call for any modification, except to the extent dealt with in answer to Question (D).

44. Concluding thus, we direct:- (a) Writ Petition (Civil) No.498 of 2019* and Writ Petition (Civil) F _______ of 2020 [D. No.13252 of 2019] are allowed to the extent indicated above. (b) Consequently, the seniority list issued in terms of Report dated 15.03.2019 shall stand modified only to the extent that appropriate placement to the candidates selected through LCE G be given on the basis of their merit in the examination and not on the basis of their seniority in the erstwhile cadre. Let the appropriate changes be made within four weeks of this Judgment.

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A (c) Except to the extent indicated in direction (b) above, the Report dated 15.03.2019 does not call for any modification or clarification. (d) All other writ petitions are dismissed.

B Divya Pandey Writ Petitions disposed of.