Sharma Vs. Hon'ble Rajasthan High Court at Jodhpur & Anr  INSC 452 (2 September 1998)
Anand, D.P. Wadhwa D.P.Wadhwa,J.
appellant, who was a member of the Rajasthan Judicial Service (for short
'RJS'), is aggrieved by the judgment dated September 17 1997 of the Division
Bench of the Rajasthan High Court dismissing his writ petition (CWP No.
3455/97), wherein he had prayed in effect that his case for promotion to the
Rajasthan Higher Judicial Service (for short 'RHJS') be considered from the
date when the posts in the RHJS fell vacant.
time the appellant filed the writ petition he had already superannuated on May 31, 1996. Prior to his retirement, posts in
the RHJS were available in the promotional quota for promotion of the
appellant. He had earlier filed writ petition (CWP No. 1544/96) in the High
Court seeking his promotion. This earlier writ petition came up for admission
before the High Court on May 27, 1996 and the following order was passed:-
"27.5.96: Hon'ble Mr. M.G. Mukherji Actg. CJ. Hon'ble Mr. Bhagwati Prasad
notice returnable four weeks after the summer holidays. Notice be given 'dasti'
to the learned advocate.
direct that even though the writ petitioner retires on 31.5.96, his case is to
be considered alongwith the other officers for the purpose of promotion to the
Rajasthan Higher Judicial Service, and in case such a promotion is accorded to
him nationally his case would be sympathetically considered with appropriate
directions, as may be deemed fit and proper." That writ petition was
withdrawn by the appellant on January 8, 1997.
Liberty was, however, granted to him to
file a fresh writ petition if any occasion arose. The order dismissing the writ
petition as withdrawn is as under:- "8.1.97: Hon'ble Mr. M.G. Mukherji CJ.
Mr. Bhagwati Prasad J.
petitioner expresses desire to withdraw the writ petition application with
liberty to file representation in the Administrative forum.
granted liberty to file fresh writ application if occasion arises.
writ application dismissed as withdrawn." Subsequent writ petition (CWP
No. 3455/97) was dismissed in limine with the following order which is now
MR. M.G. MUKHERJI, C.J.
MR. BHAGWATI PRASAD,J.
H.N. Calla for the petitioner.
of the opinion that the present writ application is barred by the principles of
representation as submitted by the writ petitioner was considered by the Full Court and the Full Court in its Wisdom rejected the same. It
is further contended that the Full Court did
not pass a speaking order on his representation. We are constrained to hold
that the matter was discussed in the Full Court and the ultimate decision was communicated to the writ petitioner. We
do not think that there is any force in this writ application. Till such time
the petitioner retired none of his juniors was considered for promotion or was
given promotion to the Rajasthan Higher Judicial Service. It may be a very sad
state of affairs that he was not considered for promotion till he retired but
that does not make out any case for interference.
writ application stands dismissed." This order is being challenged by the
appellant in this appeal.
appellant joined RJS on January
2, 1979. He was
confirmed in the post of Munsif-cum-Judicial magistrate by order dated December 31, 1980. He was promoted as Civil Judge
(Senior Division)-cum-Additional Chief Judicial Magistrate on February 13, 1992 and by order dated August 17, 1993 appellant was granted selection
1992. He retired on May
31, 1996. After
withdrawal of his writ petition (CWP No. 1544/96) the appellant represented on January 29, 1997 that his case for promotion to RHJS
be considered and he be given notional promotion in view of the observations
made on May 27, 1996 in writ petition. This
representation did not find favour with the High Court and was rejected by
resolution of the Full
Court dated July 3, 1997, which was communicated to the appellant.
This led the appellant to file the second writ petition (CWP No. 3455/97),
which as noted above, was rejected on two grounds, namely, (1) it was barred by
principle of res judicata and (2) till the appellant retired from service none
of his juniors was considered for promotion or even promoted to RHJS.
not think that High Court was right in holding that the second writ petition
(CWP No. 3455/97) was barred by principle of res judicata. Appellant made his
representations on the basis of observations made by the High Court on May 27, 1996 in his earlier writ petition.
this writ petition came up for hearing again, the appellant had retired. He,
therefore, withdrew the writ petition. Liberty was granted to him to file another writ petition, "if occasion
arises". This certainly does not mean that fresh writ petition could be
filed only if fresh cause of action arose. In any case fresh cause of action
did arise when representations of the appellant were rejected by the High Court
and his case for promotion to RHJS was not considered for giving him notional
promotion. However, our holding that second writ petition was not barred by
principle of res judicata does not help the appellant as his writ petition was
also dismissed on merit. There is some controversy if grant of selection grade
to the appellant would give him seniority over those officers who though senior
in the seniority list of RJS were not granted selection grade. Admittedly
seniority list was never under challenge. This controversy is, however, not
material for our purposes inasmuch as it is not disputed that on the date when
the appellant retired from service, posts in the promotional quota were
available and the appellant could have been considered for promotion to RHJS in
that quota. He was not so considered because the High Court had taken a
decision by resolution of the Full Court
dated February 9, 1996 not to make further promotions from
RJS till recruitment from the bar to RHJS was made. The appellant in his first
writ petition had challenged the resolution of the Full Court not to make promotions to the cadre
of RHJS till appointments from the bar were made. This resolution of the Full Court he certainly could not challenge in
the second writ petition. High Court in its counter affidavit has given
justification as to why it took decision not to make any promotion to the cadre
of RHJS though at the relevant time 21 posts of Additional District and
Sessions Judges were Vacant to be filled in by promotion and direct recruitment
in the ratio of 3:1 as per Rule 9(2) of the Rajasthan Higher Judicial Service
Rules, 1969. This is how the High Court justified its decision:- "The Full
Court in its meeting held on 9.2.96 resolved that no promotion shall be made
till direct recruitment is made. The decision to this effect was taken by Full Court keeping in view the inequitable
operation of quota 3:1 which has to be maintained between promotees and direct
recruits to the R.H.J.S. which was not being done. While vacancy in the direct
recruits quota were being determined on the basis of sanctioned strength of the
cadre, the promotional quota strength of the cadre, the promotional quota was
being operated on the basis of the recruitment. There were 89 sanctioned posts
but factually more than 200 officers were working on the R.H.J.S. posts. The
posts in excess of 89 were being manned by temporary/ ad hoc promotees from
R.H.J.S. only and therefore factually the proportion of direct recruits has
gone down abysmall.
embargo on promotions was therefore, imposed by the Full Court to stop further
inequality and imbalance in the proportions between the two quotas which
created problems in determining interse seniority in R.H.J.S. on the basis of
the Full Court took the decision not to promote
the officers from R.J.S. cadre to R.H.J.S. cadre till the direct recruitment is
made keeping in view the inequitable operation of Rota- quota rule. The resolution passed by the Full Court in its meeting held on 9.2.96 did
not require any interference of his excellency the Governor. Therefore it is
wrong to contend that the Full Court has
no wrong to contend that the Full Court has
no authority to stop the promotions by way of recruitment to the R.H.J.S. to
maintain the proportional representation and interse seniority between direct
recruits and promotees." The appellant could certainly have a grievance if
any of his juniors had been given promotion from a date prior to his
superannuation. It is not the case there. From the promotional quota, four
promotions were made only on December 30, 1996
i.e., after the appellant had retired.
promoted were given promotions from the dates the orders of their promotions
were issued and not from the dates the posts had fallen vacant. It is also the
contention of the High Court that these four officers, who were promoted to
RHJS, were senior to the appellant as per the seniority list. The question
which falls for consideration is very narrow and that is if under the Rules
applicable to the appellant promotion was to be given to him from the date the
post fell vacant or from the date when order for promotion is made. We have not
been shown any rule which could help the appellant. No officer in RJS has been
promoted to RHJS prior to May 31, 1996
who is junior to the appellant. Further decision by Rajasthan High Court has
been taken to restore the imbalance between the direct recruits and the promotees
which, of course, as noted above, is beyond challenge.
union of India and others vs. K.K.Vadera and others
(AIR 1990 SC 442) this Court with reference to Defence Research and Development
Service Rules, 1970, held that promotion would be effective from the date of
the order and not from the date when promotional posts were created. Rule 8 of
those Rules did not specify any date from which the promotion would be
effective. This Court said as under:- "There is no statutory provision
that the promotion to the post of Scientist 'B' should take effect from 1st
July of the year that rightly or wrongly, for some reason or other, the
promotions were granted from 1st July, but we do not find any justifying
Tribunal that the promotions of the should be with effect from the date of the
creation of these promotional posts. We do not know of any law or nay rule
under which a promotion is to be effective from the date of creation of the
a post falls vacant for any reason whatsoever, a promotion to that post should
be from the date the promotion is granted and not from the date on which such
post falls vacant. In created, promotions to those posts can be granted only
after the Assessment Board has met and made its recommendations for promotions
being granted. If on the contrary, promotions are directed to become effective
from the date of the creation of additional posts, then it would have the
effect of giving promotions even before the Assessment Board has met and
assessed the suitability of the candidates for promotion. In the circumstances,
it is difficult to sustain the judgment of the Tribunal.
regrettable because of the inaction on the part of the High Court that
recruitment from bar could not be made in time which created an imbalance in
the service and ultimately it were the appellant and officers similarly placed
who suffered. After having put in long years of service it is the seniority and
promotion which an officer looks forward to. He expects he is given due
promotion in time. Non promotion may be an incidence of any service. But here
the appellant has been deprived of his promotion without any fault of his. High
Court said that it might be sad state of affairs that the name of the appellant
was not considered for promotion till he retired. High Court may feel anguish
but it gives no comfort to the appellant. At least for future such an unfortunate
thing should not happen to any other officer similarly situated. This malaise
which abysmally afflicts any service when there is recruitment from different
sources when there is recruitment from different sources crops up in the one
form or the other with great disadvantage of one or the other. But then service
is not constituted merely for the benefit of the officers in the service but
with a certain purpose in view and in the present case for dispensing justice
to the public at large.
not at all advisable to keep any post in judiciary vacant for days when the
courts are burdened with arrears and litigants are the ones who suffer. We
expect the High Courts to be vigilant and to fill up the posts in direct quota
in time and if the bar quota cannot be filled for any reason fro no fault of
the promotee officers their case for promotion should not be kept pending till
some of them even superannuate. When the process for recruitment from Bar
begins and it is expected that posts for direct quota will be filled up soon,
during the intervening period the officers in the subordinate service can be
given ad hoc promotions without their right to claim seniority over direct
recruits, who may join later. Functioning of the courts must not stop.
these observations we would dismiss the appeal and leave the parties to bear
their won costs.