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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