P.K.
Dixit & Ors Vs. Statf of U.P. & Ors [1987] INSC 275 (8 October 1987)
OZA,
G.L. (J) OZA, G.L. (J) PATHAK, R.S. (CJ)
CITATION:
1988 AIR 260 1988 SCR (1) 398 1987 SCC (4) 621 JT 1987 (4) 55 1987 SCALE (2)706
ACT:
Uttar
Pradesh Higher Judicial Service Rules, 1975:
Rules
3, 8, 22, 23 and 26 Additional District and Sessions
Judge-Seniority-Determination of-Notification abolishing post of Civil and
Sessions Judge-Effect of-Filling up of post from officers of Nyayika Sewa-Appointment
to the service on occurrence of substantive vacancies-officiating
period-Whether to be considered as period of probation- Confirmation-To be from
the earliest date vacancy available and not from a date fixed
arbitrarily-Seniority to be counted on the basis of date of
confirmation-Promotions made after coming into force of rules-Principles of
seniority applicable to. to
HEADNOTE:
In
May, 1974 the Higher Judicial Service for the State of UP was constituted, and
the post of Civil and Sessions Judge was abolished. The U.P. State Higher
Judicial Service Rules, 1975 came into force with effect from May 10, 1975.
The
petitioners-State Judicial Service Officers-who were promoted on various dates
to the Higher Judicial Service and posted as Additional District Judges/Civil
and Sessions Judges before 1974, filed writ petitions in this Court challenging
their inter se seniority, vis-a-vis, direct recruits contending that, on their
confirmation, they were given seniority from a date chosen by the High Court
arbitrarily, instead of from the date of their continuous officiation, which
had resulted in their being placed much below the officers appointed much later
by direct recruitment, that there was no provision for direct recruitment to
the Higher Judicial Service before the 1975 rules were brought into force and
all the existing vacancies on that date were to be filled by only promotion,
and therefore, the High Court, while confirming and giving the dates for the
purpose of seniority, ought to have prepared a list of a vacancies existing on
the date the rules came into force and confirmed all those who were officiating
as Additional and District Judges or Civil and Sessions Judges on that day in
all those vacancies. They also contended that while computing the seniority
only three years were counted whereas they should have been given advantage of
continuous officiation as they were officiating in the posts before the 1975
rules came into existence.
399
The aforesaid petitions were contested by the High Court contending that as it
became necessary to fill in the temporary posts the formality of examining
record and consideration by a Committee or the Full Court was not done, and all
the petitioners were appointed only on the basis of seniority and not in accordance
with the rules and, therefore, they could not be treated as appointed on
probation from the date of their officiation and that even if an officer had
been continuously working for more than three years, still for the purpose of
computing seniority only three years will be counted as per proviso to Rule 26.
Allowing
the writ petitions partly, ^
HELD:
1.1 The period of officiation has to be considered as period of probation and
the confirmation has to be from the date on which earliest a vacancy was
available and the seniority has to be counted on that basis.
[406A]
1.2
Before the U.P. Higher Judicial Service Rules, 1975 were brought into force,
there was no rule requiring direct recruitment and hence all the posts
available were to be filled by promotion. In view of this, and in view of
proviso to Rule 8, all the posts (permanent) available in the Higher Judicial
Service plus thirty one temporary posts existing on that date, which may become
permanent later, should be filled by promotion from amongst the members of the
Nyayika Sewa. Some of the posts may be occupied by promotees officers who were
given promotions on ad hoc basis and working on these posts or that the posts
may be Lying vacant. Whatever may be the situation the matter will have to be
gone into afresh by the High Court and all the posts in the Higher Judicial
Service available as on May 10, 1974 plus thirty one posts have to be filled
from the officers of the Nyayika Sewa. [403C, 406E-G]
1.3
In view of Para 3 of the Rules and the Notification abolishing the posts of
Civil and Sessions Judges, all those officers who were officiating as Civil and
Sessions Judges on 8th May, 1974 automatically became Additional District and
Sessions Judges. What has been contemplated in Rule 20 could not be applied
retrospectively for promotions before 1975. What was left was only a
consideration of their cases of confirmation. In doing so, the only thing that
could be kept in view is the date on which a vacancy (permanent) was available
for their confirmation and the seniority of those officers will have to be
reckoned in accordance with the date of confirmation which will be not the
actual date of confirmation but a date when a post was available, and in so
doing, it will not also be reasonable to fix any date, as has been done by 400
the High Court arbitrarily on the assumption that actually when they were
promoted they were not promoted after following the procedure. The only thing
that can be considered will be that if at the time of confirmation an officer
was not found fit naturally he must have been reverted, and the question of ms
seniority in the Higher Judicial Service, therefore, will not arise. [407G-H,
408B- E] So far as the posts available on 10th May, 1974 are concerned, the
High Court will have to look into the matter afresh and decide the seniority.
But after the rules came into force, the Rules will have to be given effect to.
[408H, 409A]
2.1
In Rule 22 the phrase used is "to make appointment to the service on the
occurrence of substantive vacancies".
The
substantive vacancy has not been defined in the Rules.
But
the scheme of the rules clearly indicates that there are permanent posts and
temporary posts also which are created to meet contingency and it may in due
course be made permanent. Therefore, when appointment under Rule 22 is
contemplated in the service of substantive vacancies, it may be both temporary
or permanent. But the vacancy must be in the cadre. A person could only be
confirmed when the permanent post is available for him. It is clear from cl.
(3)
of Rule 22 that appointment to temporary vacancies shall be made from the
Nyayika Sewa and as and when a substantive vacancies arises the procedure for
selection should be followed and the officers who were appointed to fill in the
temporary post should be considered first and appointed on probation if found
fit. [410D-F, 410H-411A]
2.2
Normally the period of probation shall be two years. In computing this period
of probation, an officer who has been continuously officiating immediately
prior to his appointment on probation will also be taken into account and the
period of probation in any event shall not exceed three years. Proviso 2 to
Rule 26 provides that in the case of promotee officers a maximum period of
continuous officiation in the service shall not, for the purpose of determining
seniority, exceed three years immediately preceding the date of confirmation.
This is consistent with the Rule 23 which provides that total period of
probation shall not ordinarily exceed three years. [412A-B, C-D] These
principles of seniority will apply only to the promotions made after the rules
came into force. The scheme of the rules is that if a person is appointed to
officiate in the Higher Judicial Service his case for confirmation will
normally be considered within three years and either he will be confirmed or
reverted and the High Court is expected 401 to examine the case of the promotee
officer within three years and decide whether the officer deserves to be
confirmed or reverted. [412E-F] By laying down that the period of probation
shall not ordinarily exceed three years and that only three years of continuous
officiation will be counted for purposes of seniority in the case of promotee
officers, the rules contemplate that there will not be an occassion when there
may be a person officiating for more than three years and his case has not yet
been considered for confirmation.
[412G-H]
Ordinarily, if the Rules were brought into force the appointments to the Higher
Judicial Service, either on the basis of direct recruitment or on the basis of
promotion, must have been in accordance with the Rules and it is expected that
the probation, confirmation and the seniority must have been looked into by the
High Court strictly in accordance with the Rules. [413A-B]
3.
About the appointments on the posts available before these Rules were brought
into force and to fill in temporary posts, the matter will have to be examined
afresh by the High Court and the posts available on 10th May, 1974 plus thirty
one posts will have to be filled in only by promotees. Thereafter the High
Court should examine the cases of promotion and direct recruitment, after
coming into force of these Rules, and the vacancies available. After
considering the cases in accordance with these Rules, the High Court will
prepare afresh the seniority list which may be notified so that if any
objections are raised they may be placed for determination in accordance with
the Rules.
[413D-F]
O.P. Singla & Anr. etc. v. Union of India & Ors., [1985] 1 SCR 35 l,
referred to.
ORIGINAL
JURISDICTION: Writ Petition (Civil) Nos.11788- 11796 of 1984.
(Under
Article 32 of the Constitution of India).
G.L.
Sanghi, P.P. Rao, Raja Ram Aggarwal, Ayyam Perumal and R. Venkatramani for the
Petitioners.
S.N.
Kacker,. B.D. Aggarwal, M.K. Ramamurthi, P. Gaur, Jitendra Sharma for the
Respondents.
402
Anil Deo Singh, and Mrs. S. Dikshit for the State of U.P. and Jitendra Sharma
for the others.
U.R.
Lalit, Suresh Seth, R.D. Upadhyaya and Madan Sharma for the Intervenor The
Judgment of the Court was delivered by OZA, J. These writ petitions filed by
the petitioners challenge the inter se seniority of the officers in the higher
judicial service coming from two sources; i) promoted from the judicial service
and ii) others who are directly recruited from the Bar.
The
petitioners are officers of the State Judicial Service who have been promoted
on various dates to the higher judicial service and posted as Additional
District Judges or some of them were posted as Civil and Sessions Judges before
1974 as in 1974 the post of Civil and Sessions Judge has been abolished and the
higher judicial service for the State of Uttar Pradesh was constituted.
According
to the petitioners they were promoted to officiate as Additional District and
Sessions Judges on various dates and they continue to officiate as such, they
were confirmed and on their confirmation they have been given the seniority not
from the date of their continuous officiation but from some other date chosen
by the High Court arbitrarily. And because of which, they have been put in the
seniority list much below those officers appointed by direct recruitment and
who were appointed much after the petitioners. According to the petitioners,
they were promoted on various dates shown against their names and they have
also shown the dates on which they were confirmed:
S.
Pet. name Date of Date of pro- Date of Date of No. joining motion & confirm-
vacancy PCS (J) continous mation in which Nyayika officiation confirmed.
Sewa
in HJS on Addl. distt. & Sessions Judge
1.
P.K. Dixit 1.3.61 9.9.73 24.1.81 1.10.78
2.
A.N. Gupta 1.3.61 22.9.73 24.1.81 1.10.78 403
3.
B.K. Srivastava 1.3.61 29.3.74 24.1.81 30.4.79
4.
I.S. Mathur 1.4.62 24.5:74 24.1.81 31.7.79
5.
Taj Shanker 1.4.62 16.8.76 24.1.81 1.1.80
6.
R.N. Sarkar 17.4.61 16.8.76 29.10.83 1.1.80
7.
S.P. Agarawal 2.3.63 3.1.77 29.10.83 1.1.80
8.
A.K. Srivastava 1.3.63 3.1.77 29.10.83 1.1.80
____________________________________________________________ In this list they
have also shown the date of the vacancy on which they were proposed to be
confirmed.
It
is also contended on behalf of the petitioners that in 1975 the present rules
for recruitment of the judicial officers in the higher judicial service came into
force.
Before
these rules were brought into force, the earlier rules were declared to be bad
and in substances therefore, before these rules were brought into force, there
was no provision for direct recruitment to the higher judicial service. It is contended
that all the vacancies existing on the date on which these rules (1975 Rules)
came into force have to be filled in by promotion. And while confirming and
giving the dates for the purposes of seniority, the High Court ought to have
prepared a list of vacancies existing on the date on which these rules (1975
Rules) came into force and confirm all those who were officiating as Additional
District and Sessions Judges or Civil and Sessions Judges on this date in all
those vacancies. And if this was done, these petitioners who were appointed
before 1975 could have been confirmed on those vacancies and in that event they
could not have been confirmed in the vacancies occurring in 1978, 1979 &
1980.
It
is not disputed that out of these petitioners first four were promoted in 1973
and 1974 and on the date on which these rules came into force, they were
already functioning as Civil and Sessions Judges as the designation of
Additional District Judges was not there.
In
the written affidavit filed by the High Court, it is not disputed that before
these rules were brought into force, all the posts which were available on the
date on which these rules came into force have to be filled in by promotion as
till that date there was no rule requiring direct recruitment. But
unfortunately, the High Court in their return have not mentioned the exact
number of vacancies existing on that date also the number of officers who were
officiating on that date as Civil and Sessions Judges or Additional District
and Sessions Judges 404 who were entitled to be included in that cadre of
higher judicial service under these rules.
The
High Court, it was contended has prepared a seniority list which has been
notified and objections have been invited. It was therefore directed that list
must be produced in this Court and consequently, the lists have been produced.
The seniority list or the list which have been produced along with the
affidavit filed by Mr. Chaterjee claiming to be in charge of the litigations of
the High Court, unfortunately do not clearly give the picture. The list must
show the initial date on which officers were promoted and were posted in the
post of Civil and Sessions Judge or Additional District and Sessions Judge. It
also does not clearly show the date on which the order of confirmation was
issued. And it should have been made clear that before this date of
confirmation, on what date a post was available for confirmation of the person
concerned so that he should get the seniority if not from the date on which he
was promoted for the first time from the date on which the post was available
for him. It was expected that these facts clearly should have been stated in
the return filed on behalf of the High Court.
It
is not disputed that on the date on which these rules (1975 Rules) were brought
into force, all the posts available were to Go to the promoted officers and the
only thing that the High Court is expected to do is to find out how many posts
were available on that date and how many persons were officiating in the higher
judicial service or equivalent posts on that date and their seniority ought to
be fixed on the basis of their promotion to the posts except where an officer
was not found fit or where officer concerned was reverted back to the judicial
posts. The documents do not disclose that any one of these judicial officers
who were promotees has been reverted. The documents also do not disclose that
at any time the High Court considered the question of their confirmation and
any one of them was not found fit for confirmation, or that it was decided to
postpone the date of confirmation because the work of the officer was not upto
the mark. The record produced by the High Court only shows the date from which
these petitioners were promoted and started officiating as Additional District
Judges and the date on which they were ultimately confirmed. During this period
their case was considered at any time does not appear from the record produced
in this case nor was the contention of the learned counsel appearing for the
High Court. It, therefore, is not disputed that these petitioners who were
promoted before these rules (1975 Rules) were brought into force were never
found unfit for con 405 firmation and in this view of the matter, therefore, it
is clear that all posts available on the date on which these new rules were
brought into force will have to be filled in by these promoted officers who
were working in the officiating capacity in the post of higher judicial service
on the date on which these rules were brought into force. So far as the
situation before these rules were brought into force is concerned even during
the course of argument not much controversy appears to exist as it is clear
that the question of direct recruitment and the quota of the direct recruits
vis-a-vis promotees was not in existence.
It
was contended on behalf of the High Court that when these judicial officers
were promoted as it became necessary to fill in the temporary posts the
formality of examining their record and consideration by a committee or the
full court was not done but were only promoted on the basis of seniority and
therefore from the date from which these officers started officiating as
Additional District and Sessions Judges, they could not be treated as appointed
on probation. But it is not the case of the High Court that after such adhoc
promotion whenever the High Court (full court or a committee) examined their
cases any one of them who may have been found not fit for promotion normally
would be reverted back to his original post and if at any time these officers
were not reverted then imaginary date for probation could not be given on
arbitrary basis as throughout their officiation as Additional District and
Sessions Judges they have been found fit and they were continuing on these
posts. It is also not stated when after an officer was promoted to fill in the
temporary post, his case was considered for promotion to a substantive post. At
best while confirming and giving seniority the only thing that could be
considered was the availability of a permanent post and from the date a
permanent post was available these officers had to be confirmed giving them
seniority from that date.
It
appears that the stand of the High Court is that as and when a temporary
vacancy was available an officer who was the senior most was promoted as Civil
and Sessions Judge or Additional District and Sessions Judge but it is not the
case of the High Court that afterwards the case of such promoted officers was
considered by a committee or by the full court after examining the records and
this was done at any time before their cases came up for consideration for
confirmation. It only appears that their cases were considered for confirmation
and at that time some date has been given from which they were treated to be on
probation and on that basis the seniority has been counted but as stated
earlier in absence of any one of these officers not having been 406 found fit
for promotion this stand taken by the High Court can not be A justified. The
period of officiation has to be considered as period of probation and the
confirmation has to be from the date on which earliest a vacancy was available
and the seniority has to be counted on that basis.
Unfortunately
neither the affidavit filed on behalf on the High Court nor the list clearly
shows the position of these judicial officers who were promoted long before
these new rules were brought into force in 1975 and what has been stated above
will have to be done afresh so far as the officers who were promoted before the
new rules were brought into force in 1975.
This
also appears to be the intention of the rules when they were framed in 1975 as
is clear from the proviso to Rule 8. It reads:
"Provided
further that the permanent vacancies existing on May 10, 1974 plus 31 temporary
posts existing on that date, if and when they are converted into permanent
posts, shall be filled by promotion from amongst the members of the Nyayika
Sewa; and only the remaining vacancies shall be shared between the three
sources under these rules:
It
therefore is clear that even these rules provided that all the posts
(permanent) available in the Higher Judicial Service existing on May 10, 1974
plus 31 temporary posts existing on that date which may become permanent later
shall be filled by promotion from amongst the members of the Nyayika Sewa. It
is therefore clear that all the posts in the Higher Judicial Service, Lying
vacant on May 10, 1974 plus thirty one will have to be filled in from the
officers of the Nyayika Sewa. May be that some of these posts may be occupied
by promotee officers who were given promotions on ad hoc basis and working on
those posts or that the posts may be Lying vacant. Whatever may be the
situation on the basis of what has been discussed above and also as has been
clearly provided in these rules the matter will have to be gone into by the
High Court afresh and fill in all the posts in the Higher Judicial Service
available on May 10, 1974 plus 31 posts from the officers of the Nyayika Sewa.
It
appears that the date 10th MAY has been mentioned in this proviso to Rule 8
because by Notification of May 1974 the Higher Judicial Service was constituted
and the posts of Civil and Sessions Judges were abolished. Paragraph 3 of these
Rules notified on 8th May 1975 about the abolition of Civil and Sessions Judges
is also significant. Para 3 reads thus:
407
"Creation of posts and confirmation: (1) Upon the abolition of the cadre
of Civil and Sessions Judges, permanent and temporary posts of Additional
District and Sessions Judges equal in number of the permanent and temporary
posts, respectively, of Civil and Sessions Judges existing immediately before
the date of commencement of these rules, shall stand created with effect from
the said date, and the officers holding the posts of Civil and Sessions Judges
immediately before the said date shall become Additional District and Sessions
Judges and be designated accordingly. " This clearly indicates that those
holding the posts either temporarily or permanently as Civil and Sessions
Judges immediately before this date i.e. 8th May 1974 shall become Additional
District and Sessions Judges and were designated accordingly. It is therefore
clear that the officer who was officiating as Civil and Sessions Judge on 8th
May 1974 automatically became Additional District and Sessions Judge and
therefore it could not be contended that proper procedure for promotion was not
followed but as and when occasion arose an officer in the Judicial Service was
posted as Civil and Sessions Judge to perform the functions of that office on
the basis of seniority. It was also contended that when initially an officer in
the Judicial Service (Nyayika Sewa) was posted to perform the functions of
Civil and Sessions Judge, his promotion was not done in accordance with the
Rules and what was suggested was that no Committee considered their record but
on the basis of seniority it was decided to promote them. This argument appears
to have been based on the Rules of 1975 where for promotion of the members of
the Nyayika Sewa it has been provided that Selection Committee will examine the
record of the eligible Judicial officers and then shall prepare a list of those
who have been selected for promotion and as and when a vacancy occurs an
officer from this list will be promoted.
Admittedly
this what has been contemplated in Rule 20 could not be applied retrospectively
for promotions before 1975 when the Rules were brought into force and it is
also not suggested or brought on record that there was any such system or
practice in the High Court. In fact, nothing has been brought on record to
indicate as to how an officer was appointed to the post of Civil and Sessions
Judge from the Nyayika Sewa. In this view of the matter also and in view of the
Notification abolishing the posts of Civil and Sessions Judges dated 8th May
1974 it is apparent that there is no scope for going back and those who were
working as Civil and Sessions Judges either against temporary or permanent
vacancies either appointed temporarily or 408 permanently became Additional
District and Sessions Judges temporary or permanent as the case may be and
therefore there is no scope for examining their cases now to find out as to
whether they were promoted in accordance with the procedure prescribed in Rule
20 which was the rule enacted in 1975. It has therefore to be accepted that all
those who were working as Civil and Sessions Judges on 8th May 1974
automatically became Additional District and Sessions Judges and what was left
was only a consideration of their cases of confirmation and in so doing in view
of the conclusions arrived at by us and also as has been provided in the
proviso to Rule 8 quoted above all the posts available on 10th May 1974 plus 31
posts (temporary) on that date will have to be filled in from the cadre of
Nyayika Sewa by promotion. In this view of the matter therefore while
confirming these Judicial officers who were working as Civil and Sessions
Judges and who became Additional District and Sessions Judges on abolition of
the cadre of Civil and Sessions Judges automatically the only thing that could
be kept in view is the date on which a vacancy (permanent) was available for
their confirmation and the seniority of these officers will have to be reckoned
in accordance with the date of confirmation which will be not the actual date
of confirmation but a date when a post was available and in so doing it will
not also be reasonable to fix any date as has been done by the High Court
arbitrarily on the basis of the assumption that initially when they were
promoted they were not promoted after following the procedure. The only thing
that can be considered will be that if at the time of confirmation an officer
was not found fit naturally he must have been reverted, and the question of his
seniority in the Higher Judicial Service therefore will not arise. Much
reliance was placed on the decision of this Court in o. P.
Singla
& Anr. etc. v. Union of India & ors. [1985] 1 SCR 351. So far as the
officers promoted before the Rules were brought into force, this decision also
does not carry the matter further and as regards the interpretation of rules,
although an attempt was made to contend that the Delhi Rules and the U.P. Rules
are similar but it could not be said that they are identical and therefore also
this decision is not of much help to the case of the petitioners.
It
could not be disputed that after these Rules which are Uttar Pradesh Higher
Judicial Service Rules, 1975 came into force a ratio has been fixed for the
direct recruits and promotees. The petitioners also did not challenge the ratio
nor did they challenge the rules except on the ground that while computing
seniority they should be given the advantage of the continuous officiation. As
discussed above so far as the posts available on a particular date i.e. 10th
May 1974 is concerned 409 the High Court will have to look into the matter
afresh and decide the seniority in the light of what we have discussed but
after the rules came into force it could not be disputed that the rules will
have to be given effect to. These rules have provided the mode of promotion
& selection and have also provided the manner in which the seniority will
be computed.
It
was contended that the phrase "appointment to the service" which has
been used in Rule 22 should not be restricted to the substantive vacancies i.e.
permanent vacancies only. As it was contended that the term the service"
in Rule 3 has been defined to mean Uttar Pradesh Higher Judicial Service and it
does not mean only permanent posts. Rule 22 provides for the manner of
appointments from the direct recruits as well as from the promotees which reads
as under:
"Appointment-(1)
Subject to the provisions of sub- rules (2) and (3), the Governor shall on
receipt from the Court of the lists mentioned in rules 18, 20 and 21 make
appointments to the service on the occurrence of substantive vacancies by
taking candidates from the lists in the order in which they stand in the
respective lists.
(2)
Appointments to the service shall be made on the rotational system, the first
vacancy shall be filled from the list of officers of the Nyayik Sewa, the
second vacancy shall be filled from the list of direct recruits (and so on),
the remaining vacancies shall thereafter be filled by promotion from the list of
the officers of the Nyayik Sewa:
Provided
that for so long as suitable officers are available from the cadre of the
Judicial Magistrate appointments to the service shall be made in such a way
that the second, fifth and eighth (and so on), vacancies shall be filled from
the list of Judicial Magistrates.
(3)
Appointment for temporary vacancies or in officiating capacity shall be made by
the Governor in consultation with the Court from amongst the members of the
Nyayik Sewa:
Provided
that for so long as suitable officers are available from the cadre of the
Judicial Magistrates, appointments on temporary vacancies or in officiating 410
capacity shall be made in consultation with the Court from amongst the Judicial
Magistrates according to the quota fixed for that source under these rules:
Provided
further that for so long as such members of the Judicial Service as are
considered suitable for appointments on temporary vacancies or in officiating
capacity, are not available in sufficient number, the Governor in consultation
with the Court may fill in not more than 50 per cent of such vacancies from
amongst the officers of the cadre of Judicial Magistrates.
(4)
The appointments shall be made on rotational system-the first vacancy shall be
filled from the list of officers of the Nyayik Sewa, the second vacancy shall
be filled from the list of Judicial Magistrates (and so on).
In
Rule 22 the phrase used is "to make appointment to the Service on the
occurrence of substantive vacancies" and it was contended on the one side
that substantive vacancies does not mean permanent vacancies whereas on the
other hand it was contended that it only means permanent vacancies. The
substantive vacancy has not been defined in the Rules but proviso to Rule 8
which has been quoted above speaks of permanent vacancies and temporary posts.
In fact the scheme of the Rules clearly indicates that there are permanent
posts and temporary also which are created to meet contingency and it may in
due course be made permanent. It therefore could not be doubted that when
appointment under Rule 22 is contemplated in the service of substantive
vacancies, it may be both temporary and permanent but the vacancy must be in
the cadre. It could not be doubted than a person could only be confirmed when a
permanent post is available for him.
Different
procedure is provided for appointment to a temporary vacancy and to a permanent
vacancy. It was contended that if an officer is promoted to fill in a temporary
post it is done without following the procedure i.e. selection but there is
nothing to indicate as to how and when such appointments were considered and
appointed on probation in a substantive post. Unfortunately the record produced
by the High Court does not indicate this. What has been done it appears is that
for purpose of seniority a date has been given and this has been done
arbitrarily as there is no reason as to why the seniority should be counted
from the date alone. What appears from the scheme of the Rules as provided in
clause (3) of Rule 22 is, that appointment to 411 temporary vacancies shall be
made only from the Nyayik Sewa and as and when a substantive vacancy arises and
the procedure for selection is to be followed, the officers who are appointed
to fill in the temporary posts should be considered first and appointed on
probation if found fit, but it appears that it has not been made clear as to
how and when this was done nor it is clearly stated as to what was the number
of temporary posts created and when those posts became permanent and in our
opinion the High Court will have to examine the matter in the light of the
scheme of the Rules as discussed above. Probation has been provided in Rule 23
which reads:
"(1)
All persons shall on appointment to the service in substantive vacancies be
placed on probation. The period of probation shall, in each case, be two years,
provided that the period for which an officer has been continuously officiating
immediately prior to his appointment may be taken into account for the purpose
of computing the period of probation.
(2)
(a) The Court may, in special cases, extend the period of probation upto a
specified date:
Provided
that the total period of probation shall not ordinarily exceed three years.
(b)
An order sanctioning such extension of probation shall specify whether or not
such extension shall count for increment in the time-scale.
(3)
If it appears to the court at any time during or at the end of the period of
probation, or extended period of probation, as the case may be, that a
probationer has not made sufficient use of his opportunities or has otherwise
failed to give satisfaction, it may make recommendation to the appointing
authority whereupon the appointing authority may revert the probationer to his
substantive post, if any, or if he does not hold a lien on any post, his
services may be dispensed with.
(4)
A person whose services are dispensed with or who is reverted under sub-rule
(3) shall not be entitled to any compensation.
412
This clearly shows that normally the period of probation shall be 2 years and
in computing this period of probation an officer who has been continuously
officiating immediately prior to his appointment on probation will also be
taken into account for the purpose of computing the period of probation and it
has been further provided that period of probation in any event shall not
exceed three years.
Much
controversy was raised about Rule 26 which provides for fixing the seniority
wherein in the proviso it has been provided:
"Provided
that in the case of a promotee the maximum period of continuous officiation in
the service shall not, for the purpose of determining seniority exceed three
years immediately preceding the date of confirmation." It was contended
that in the case of promotees even if he has been continuously officiating for
more than 3 years still for purpose of computing seniority only 3 years will be
counted according to this proviso. But this appears to be consistent with Rule
23 where it has been provided that total period of probation shall not ordinarily
exceed 3 years. In. fact the contention raised on behalf of the petitioners was
that they were officiating in the posts before these rules were brought into
force but still for computing their seniority only 3 years have been counted
but in view of what we have held earlier in respect of posts -:
available
before the Rules of 1975 came into force, this question will not be of any
consequence. In fact these principles of seniority will only apply to the
promotions made after these rules came into force i.e. in 1975 and the scheme
of the Rules appears to be that if a person is appointed to officiate in the
Higher Judicial Service, his case for confirmation normally will be considered
within 3 years and either he will be confirmed or will be reverted and this
scheme of these Rules therefore expect that an officer who has been promoted
his case must be examined by the High Court within three years and decide
whether the officer deserves to be confirmed or deserves to be reverted and it
is in this view of the matter it appears that in Rule 23 it has been provided
that period of probation shall not ordinarily exceed 3 years. Similarly in Rule
26 while providing the principles of counting seniority it has been
specifically provided that in case of promote officers continuous officiation
even if it is for more than 3 years, only three years will be counted for
purpose of seniority.
This
it self contemplates that such an occasion shall not arise when a person may be
officiating for more than 3 years and still his case has not been considered
for confirmation.
In
fact not much controversy has been placed before us 413 about appointments
after the rules came into force. As it is ordinarily expected that if these
Rules were brought into force the appointments to the Higher Judicial Service
either on the basis of direct recruitment or on the basis of promotion must
have been in accordance with these rules and it is expected that the probation,
confirmation and seniority must have been looked into by the High Court
strictly in accordance with these rules. It appears that some amount of
controversy has been raised as even after these rules were brought into force
some officers continued to be officiating and it appears that while fixing
seniority in the provisional list which has been notified by the High Court,
the proviso to Rule 8 which we have quoted above and the principle that all
posts before these rules were brought into force, will have to be filled in by
the promotees, was not kept in view. Having gone through these Rules it appears
that the contention advanced by the petitioners in respect of proviso to Rule
26 about seniority does not appear to be justified. We therefore feel that from
the date these Rules have been brought into force, the High Court must have
given effect to these Rules. But in view of what we have discussed earlier
about the appointments on the posts available before these Rules were brought
into force and to fill in temporary posts, we feel that the matter will have to
be examined afresh by the High Court. So far as posts available on 10th May
1974 plus 31 posts are concerned they will have to be filled in only by
promotees as we have discussed earlier and also in view of proviso to Rule 8
and after doing it examine the cases of promotion and direct recruitment after
the coming into force of these Rules and the vacancies available and after
considering the cases in accordance with these Rules the High Court will
prepare afresh the seniority list which may be notified so that if any objections
are there.
they
may be placed for determination in accordance with the Rules and in the light
of the discussions above. We therefore allow the petition partly and dispose it
of as stated above. In the circumstances of the case, we direct that parties shall
bear their own costs.
N.P.V.
Petitions partly allowed.
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