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S. Ashok Kumar Vs. State of T. N [1993] INSC 356 (17 September 1993)

Ramaswamy, K. Ramaswamy, K. Singh N.P. (J)

CITATION: 1994 SCC Supl. (2) 631

ACT:

HEAD NOTE:

ORDER

1. Leave granted.

2. Heard the learned counsel on either side.

The appellants are direct recruits to the substantive vacancies in the permanent cadre of District and Sessions Judge Grade 11 of Tamil Nadu State Higher Judicial Service. The appointment to the post in category 2 shall be made by the Governor either_by recruitment by transfer from the category of Subordinate Judges in Tamil Nadu State Judicial Service or by direct recruitment, "[p]rovided that not more than ten posts shall be filled or reserved to be filled by direct recruitment". On the appellants' recruitment by the High Court and appointment by the Governor, they started discharging their duties as District and Sessions Judges from November 16, 1987 and they were put on probation with effect from that date. Though they have admittedly completed 14 months of probation as prescribed under the rule, their services were not confirmed. They, therefore, filed a writ petition in the High Court seeking direction for declaration of the completion of their probation and confirmation to the substantive posts. Yet the High Court held that unless inter se seniority is determined between them and the contesting respondents, the Subordinate Judges promoted as District and Sessions Judges, Grade 11 from the cadre of the T.N. Judicial Service, the writ cannot be issued. So the High Court dismissed the writ petition.

Thus this appeal by special leave from the judgment in Writ Petition No. 356 of 1990, dated September 10, 1991.

3. Shri Parasaran, the learned senior counsel for the appellants has contended that the High Court has committed serious error in not giving the direction for the appellants' confirmation to the substantive posts; inter se seniority between the appellants and the contesting respondents would flow from that direction. He contended that the State Government had fixed 31 posts of District and Sessions fudges out of which 18 are for the District and Sessions + Arising out of SLP (C) No. 1158 of 1992 632 Judges, Grade I and II posts are for District and Sessions Judges, Grade II. In the seniority list published by the Government of the cadre of District and Sessions Judges, Grade 11 placement of 28 to 33 have been kept blank which meant that they are reserved for the appellants. The High Court admitted of their appointment to substantive vacancies and successful completion of their probation. Irrespective of the fact that the contesting respondents were promoted earlier in point of time, the appellants are entitled to be fixed in the vacancies kept reserved for them in the placement of Nos. 28 to 33. In that regard, he contended that once the appellants have been appointed substantively by direct recruitment, they should rank senior to the officiating promotees and therefore the High Court has committed serious illegality in not giving the direction in that behalf. Having given our anxious consideration to the contention raised, we find that on the basis of the rule position, it is difficult to accept the contention. The language couched in Rule 2(b) of the T.N. State Higher Judicial Service Rules, 1982 would make the matter clear that appointment to category 2 of the District and Sessions Judges is from two sources, namely, recruitment by transfer from the category of Subordinate Judges in Tamil Nadu State Judicial Service or by direct recruitment. While making a recruitment, the proviso limits its operation that out of the cadre not more than 10 posts shall be filled or shall be reserved to be filled by the direct recruits. It does not indicate that this is meant to be up to a maximum of 1/3rd posts of the cadre. Had the percentage of the posts been linked with the total cadre strength, certainly the direct recruits are entitled to occupy 1/3rd of the posts from the date of their officiation and get seniority from the date of their appointment, subject to successful completion of probation irrespective of the fact whether the promotees have been continuously officiating as District and Sessions Judges prior to the appointment of the appellant in excess of their quota. Their earlier promotion and continuous officiation would not enure to their advantage and they will be pushed down, giving place to the direct recruits within the quota reserved for them. Unfortunately, Rule 2(b) does not prescribe any quota. It would mean that at no point of time the direct recruits would exceed 10 in number.

Undoubtedly the object of direct recruitment is to infuse young blood into service to accelerate efficiency and members of the bar opt for selection by direct recruitment with an object to get elevation as High Court Judges. To achieve the purpose the language of the rule should be different.

4. To find the placement of the appellants as District and Sessions Judges, Grade II, Rule 7(b) to be applied for fixing the inter se seniority of the appellants and promotees from the respective dates from which direct recruits and the promotees have been continuously officiating in the posts of District and Sessions Judges, Grade 11. Rule 7(b) says that:

"The seniority of person appointed to the post of District and Sessions Judge, Second Grade shall be determined by the date from which he was continuously on duty in the category of District and Sessions Judge, Second Grade:

Provided that the seniority of a person appointed to the post of District and Sessions Judge,. Second Grade, by recruitment by transfer from the Tamil Nadu State Judicial Service, shall be fixed by the Government on the recommendation of the High Court." 633 As per Rule 7(b) the point of time i.e. the date from which the direct recruit as well as promotee District and Sessions Judges are continuously officiating is relevant and material.

5. The High Court is requested to recommend to the Government to fix inter se seniority after declaring completion of the probation of the appellants. Inter se seniority shall be determined in terms of Rule 7(b) of the Special Rules within a period of four months from the date of the receipt of this judgment.

6. The appeal is accordingly disposed of. No costs.

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