Ishwar
Chand Jain Vs. High Court of Punjab & Haryana & Ors [2001] Insc 16 (10 January 2001)
G.B.Pattanaik,
U.C.Banerjee, N.S.Hegde Banerjee, J.
L.J
Judicial
precedents are available in large numbers in regard to the irksome issue of
inter-se seniority between the direct recruits and promotees. One direct
recruit judicial officer, said to be aggrieved by the issuance of a
Notification dated 13th
December, 1990 in the
matter of revision and refixation of the dates of confirmation of
Districts/Additional District and Session Judges in Haryana Superior Judicial
Service has brought this matter before this Court under Article 32 of the
Constitution. On an analysis of the factual details, it can undoubtedly be said
that the matter itself has a chequered career. The appellant joined the service
on 2nd May, 1983 as a direct recruit Additional
District & Sessions Judge in Judicial Service on probation for a period of
2 years. The contextual facts depict that shortly after joining the post and
during the probationary period, the petitioners services were terminated and in
accordance with the existing Rules, the recommendation for such termination was
duly sent to the State Government but the State Government in its turn however
requested for a further probationary period of one year. Subsequently however,
upon the expiry of the extended period the petitioners services were terminated
and it is against the termination order, that the petitioner moved this Court
under Article 32 of the Constitution. By an order dated 26.5.1988 this Court
however did set aside the order of termination and a direction was issued for
reinstatement of the appellant with continuity of service together with all
arrears of salary, allowances and other benefits and in terms therewith
petitioners service was confirmed with effect from 2nd May, 1986. Subsequent to
the placement of the petitioner as above (i.e. to say from 2.5.1986), the
petitioner however, moved an interlocutory application in the Civil Appeal
No.811 of 1988 and this Court on 11th September, 1990 passed an order to the
effect that the petitioners entitlement for confirmation from 2nd May, 1985
cannot be doubted and the High Court was not right in confirming the petitioner
with effect from 2nd May, 1986 and it is on this perspective a further
direction was issued by this Court for confirmation of the petitioner with
effect from 2nd May, 1985 within two months and the same was duly complied with
recording the confirmation as directed. The petitioner however moved once again
this Court, under Article 32 which is presently under consideration inter alia
for issuance of a Writ of Certiorari for quashing the order or notification
dated 13.12.1990 regarding the placement of the petitioner in the seniority
list. Incidentally, it is convenient to note at this juncture that the
petitioner has been placed at Sl. No.27 in the seniority list. It is also
convenient to note that whereas the petitioner claims placement immediately
after Sl. No.18 i.e. Shri Krishan Kant in the pleadings before this Court but
there is slight shift in the stand during the course of hearing since the
petitioner (appearing in person) contended that as a matter of fact, the
placement should have been immediately after Shri M.K.Bansal at Sl.No.20.
Sl.No.19 and before Shri A.S.Garg who is placed at The second Writ Petition
presently under consideration also contain two other prayers the first being
for issuance of a proper writ striking down Rule 10 (2) regarding the date of
confirmation of direct recruits and portion of Rule 12 regarding fixation of
seniority on the date of confirmation as being violative of Articles 14 and 16
of the Constitution and secondly for issuance of a Writ of Mandamus directing
the Respondent No.1 to refix the seniority of the petitioner in accordance with
the rules after giving same interpretation which had been given for the
petitioners and respondents in the case of H.L. Randev & Ors and for
appropriate placement of the petitioner being senior to Respondent No.3 to 9
with all consequential benefits. As noticed above the petitioner during the
course of hearing withdrew the names of Respondent No.3 Shri M.K. Bansal as
also Respondent No.9 Shri B.L. Gulati and prayed for striking off the same from
the Cause Title of the petition and in terms therewith this Court directed
withdrawal of the names as prayed for by the petitioner.
The
principal grievance thus pertains to placement of Respondent Nos.4 to 8. It
will not be out of context to note that Respondent Nos.4 to 8 have all retired
from the Judicial Service and the petitioner himself is to retire shortly.
Before proceeding with the matter further, a look at the prayers of the
Interlocutory Application in the earlier disposed of appeal noted above would
be convenient at this juncture: a) to fully implement the judgment passed in Civil
appeal No.811 of 1988 decided on 26.5.1988.
b) to
confirm the petitioner Ishwar Chand Jain at least with@@ JJJJJJJJJJ effect from
2.5.1985 and to fix the seniority accordingly.@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ c) to revise the A.C.R. for the
year 1984-85 suitably i.e. from C (unsatisfactory) to B plus (Good) in the
light of the judgment of this Honble Court. d) to pass such other further
orders as this Honble
Court may deem fit
and proper in the circumstances of the case. It is in regard to the prayer (b)
that Shri Mahabir Singh, learned Advocate appearing for the Respondents
contended as a preliminary issue for consideration that since the petitioner
has prayed for fixation of seniority in earlier Interlocutory Application,
question of further fixation would not arise and the present application is
barred under the doctrine of res judicata or constructive res judicata or
principles analogous thereto. We are, however, not impressed with the
preliminary objection of the learned Advocate since the seniority list under
challenge in the petition is of 13th December, 1990 and the earlier petition was filed on 7th July, 1990 and the order thereon was passed on
11th September, 1990. In the premises, question of the
challenge being barred by the doctrine of res judicata or constructive res judicata
or under any principles analogous thereto does not and cannot arise and as such
the preliminary objection of Mr. Mahabir Singh fails. Turning attention on to
the merits of the matter, be it noted that prior to the completion of the
probationary period the rules stood amended and Mr. Mahabir Singh, Advocate for
the Respondents contended that it is the earlier rule which ought to be treated
as the governing rule in the matter of placement of the petitioner in the
seniority list and it is on this score, the petitioner while conceding the factum
of the earlier rule being the governing rule, contended that Rule 10(2) and a
portion of Rule 12 however ought to be declared as invalid since the same is violative
of Articles 14 and
16.
Rule 10 (2) and Rule 12 as the Rules then stood and before amendment read as
below: Ru le 10. Probation (1) (2) On the completion of period of probation the
Governor may, in consultation with the High Court confirm a direct recruit on a
cadre post with effect from a date not earlier than the date on which he
completes the period of probation. 12. Seniority:- The Seniority-inter-se of
the substantive members of the service, whether direct recruits or promotee
officers, shall be determined with the reference to the respective dates of
their confirmation; (Emphasis supplied) Provided that the seniority, inter-se
of substantive members of the Service having the same date of confirmation
shall be determined as follows:-
(i) in
the case of direct recruits, the older in age shall be senior to the younger;
(ii) in
the case of promotee officers, in accordance with the seniority in the Punjab
Civil Service (Judicial Branch) as it stood immediately before their
confirmation;
(iii) in
the case of promotee officers and direct recruits, the older in age shall be
senior to the younger.
The
validity of Rule 10(2) also that of emphasised portion of Rule 12 as above, are
under challenge in this Writ Petition.
In
order however to appreciate the submissions made by the parties and for
effective adjudication of the disputes between the parties it would be
convenient to note Rules 2.1, 2.2 and 2.6 at this juncture and the same read as
below:
Rules
2.1 Appointment to the Service means an appointment to a cadre post, whether on
permanent, temporary or officiating basis or on probation.
Rules
2.2 Cadre post means a permanent post in the service.
Rules
2.6 Member of the service means a person a) who, immediately before the
commencement of these rules, holds a cadre post, whether on permanent,
temporary or officiating basis, or on probation or b) who is appointed to a
cadre post in accordance with the provisions of these rules;
These
rules, however, stood amended as noticed above and excepting the amendment to
Rule 2.2 there is not much of a change introduced by the amendment to the rules
since the amendments pertain to the alteration of number from earlier Rule 2.6
to present 2.5. Definition of Cadre post in terms of Rule 2.2 however has
undergone a substantive change: whereas in the earlier rule Cadre post meant a
permanent post in the service, under the new and existing Rule. Cadre post
means a post whether permanent or temporary in the service as regards seniority
in terms of Rule 12. The amendment seems to be rather drastic in the sense that
whereas the earlier Rule 12 specifically provided, that the seniority-inter-se
would be dependant upon reference to the respective dates of their confirmation
for both direct recruits and promotee officers, the amendment introduced the
length of continuous service instead of dates of confirmation. (Emphasis
supplied) Turning on to the issue of the validity of the rules, it has been
contended by the petitioner that the portion of Rule 12 of the Rules, which
makes the seniority dependant on the date of the confirmation, is liable to be
quashed being arbitrary and violative of Article 14 of the Constitution.
The
petitioner contended that his entitlement for assigning of seniority should be
next to Shri Krishan Kant Agarwal as the other respondents being respondent
Nos.3 to 8 were not members of the cadre on the date of joining the service by
the petitioner i.e. on 2.5.83 while under the Notifications Nos.606 and 607
dated 13.12.1990 confirmation of the petitioner with effect from 2.5.85 and
fixation of his seniority next to Shri RD Aneja and Ors. cannot but be ascribed
to be illegal and void being contrary to the Punjab Superior Judicial Service
Rules (as applicable to Haryana on 2.5.83) and in fact runs contrary to the
directions issued by this Court in the Interlocutory Application No.1A in CA
No.811/88. The petitioner contended that the petitioner is entitled to be
confirmed with effect from 2.5.83 and have his seniority fixed next to Shri KK Agarwal
and the seniority has to be assigned on the date of promotion/date of joining
service since the appointment of the petitioner was on a vacant post on 2.5.83
and in the cadre having a total strength of 27 candidates and having regard to
the ratio between the direct recruits and promotees, the former were entitled
to 9 posts whereas promotees were entitled to 18 posts and since respondent
Nos. 3 to 8 do not come within those 18 promotee officers and Shri KK Agarwal
being placed at Item No.18 in the list of promotee officers there exists no
manner of doubt as to the placement of the petitioner before respondent Nos. 3
to 8 as promotee officers. Mr. Mahabir Singh on the other hand contended that
at the time of appointment of the petitioner along with two others in the Haryana
Superior Judicial Service there were 27 permanent posts in the cadre. According
to Rule 8(2) of the Punjab Superior Judicial Service Rules, 1963 (as applicable
to the State of Haryana) in force on the relevant date, the
number of posts to be manned by the direct recruits were nine. There were only
6 direct recruits in the service they being
(1) Sh.
N.S. Rao,
(2) Sh.
SK Jain,
(3) Sh.
R.K. Nehru
(4) Shri
Surinder Sarup
(5) Sh.
B.L. Gulati and
(6) Sh.
V.M. Jain.
At the
time of appointment of the petitioner along with two others in the Haryana
Superior Judicial Service, only 24 officers (18 promotees and 6 direct
recruits) were working against the permanent 27 cadre posts meaning thereby that
3 permanent posts were lying vacant. It may also be stated that prior to the
amendment made in Rules 2(2) and 12 of the Punjab Superior Judicial Service
Rules, 1963 (as applicable to the State of Haryana) with effect from 19.3.1984
only permanent posts were treated as cadre posts and seniority of members of Haryana
Superior Judicial Service was to be determined with reference to the respective
dates of confirmation.
Incidentally,
factors relating to confirmation in service of the officers of the Haryana Superior
Judicial Service stand settled by the decision of this Court in B.S. Yadav and
Ors. v. State of Haryana and Ors. (AIR 1981 SC 561) and the
directions for confirmation in service of the officers as contained therein are
summarised as below: (i) A member of the service who had been appointed thereto
by promotion would if he was otherwise fit for confirmation, was to be
confirmed with effect from the date on which vacan cy became available in the
quota of promotees: (ii) a direct recruit could not be confirmed against a post
available in the quota of direct recruits from a date earlier to the date on
which he had satisfactorily completed his period of probation of two years.
Incidentally, according to the instructions contained in Haryana Government letter
No.6817-2GSI-76/28957 dated 29.10.1976 the policy of the State Government has
been that the temporary posts which have been in existence in the permanent
departments for five years or more and the work of which is of a continuous
nature, would be made permanent by the Administration Department after
obtaining formal concurrence of the Finance Department. On the wake of the
observations and the directions of the Constitution Bench in Yadavs case
(supra) Sh. IC Jain, the petitioner having joined Haryana Superior Judicial
Service on 2.5.1983, could not be confirmed earlier to 2.5.1985 i.e. on
completion of two years period of probation. It may also be stated that the Haryana
Government vide their letter dated 24.12.1981 converted one post of District
& Sessions Judge with effect from 24.12.1981 into cadre (permanent) post
thereby revising the cadre strength from 18 to 19 of permanent posts.
Against
this post, Sh. R.K. Gupta (since retired) was confirmed. Similarly the Haryana
Government vide their letter dated 1.6.1982 converted 8 temporary posts into
permanent raising the cadre posts in the service from 19 to 27. Out of these 8
permanent posts, 3 posts were kept vacant for direct recruits to complete their
quota and against 5 remaining posts S/Sh. O.P. Gupta (since retired), RC Jain
(since expired), I.P. Vasishth, N.K. Jain and O.P. Gupta-II were confirmed with
effect from 1.6.1982 as the records depict.
In the
meantime Sh. B.S. Yadav, Sh. O.P.Gupta and Sh. K.L. Wason retired from Haryana
Superior Judicial Service with effect from 31.7.1982, 31.12.1982 and 31.5.1983
respectively and against these posts S/Sh. Krishan Kant, M.K. Bansal and A.S. Garg
were confirmed. The Haryana Government vide their letter dated 10.11.1988
converted 1 temporary post of Joint Legal Remembrancer into permanent one with
effect from 1.6.1983 and Sh. M.S. Nagra, was confirmed against this post. The Haryana
Government vide their letter dated 14.11.1983 converted 3 temporary posts into
permanent raising the cadre posts in the service from 28 to 31. Out of these 3
permanent posts, 1 post was kept vacant for direct recruits to complete their
quota and against 2 remaining posts S/Shri S.B. Ahuja and Gorakh Nath were
confirmed with effect from 14.11.1983. One permanent post in the cadre of promotee
officers became available on the untimely death of Sh. V.K. Jain (I) on
22.11.1983 and against this permanent post Shr. R.D. Aneja was confirmed with
effect from 22.11.1983. The petitioner Shri I.C. Jain was confirmed on 2.5.1985
i.e. on completion of two years period of probation against one of the
permanent posts lying in the quota of direct recruits with effect from
14.11.1983 in accordance with the guidelines of this Court, referred to above.
Thus, the petitioner had been given confirmation on the due date.
Incidentally
be it noticed that the petitioner on 7th July, 1990 moved this Court as and by
way of an Interlocutory Application in a disposed of matter being Civil Appeal
No.811 of 1988 decided on 26.5.1988 for an order to confirm the petitioner at
least with effect from 2.5.1985 and to fix the seniority accordingly. The other
prayers are not being taken note of by reason of the fact that the same are not
relevant for the present purpose. In that Interlocutory Application, however
and for the prayer as noted above, this Court observed having regard to the
earlier decision as below:
In
view of the above observation there was no adverse entry against the petitioner
for the year 1984-85. The petitioner was in normal course entitled to
confirmation with effect from 2.5.1985 as no adverse material was there against
the petitioners work or conduct. But the High Court has confirmed the
petitioner with effect from 2.5.1986 on the premise that the probationary
period was extended.
No
order of the High Court extending probation has been placed before us. Since
the initial period of two years probationary period had been completed the
petitioner is entitled to be confirmed with effect from 2.5.1985. The High
Court was not right in confirming the petitioner w.e.f. 2.5.1986. We
accordingly, direct the High Court to consider the appellants case for his
confirmation w.e.f. 2.5.1985 within two months and if necessary it may hear the
officers (on administration side) who may be affected by such decision. The
application is accordingly disposed of.
The
confirmation thus stands effective from 2nd May, 1985 and not 2nd May, 1986 as was offered. It is in terms@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of this order that a Notification dated 13th December, 1990 was published recording the
placement of the officers and as per the date of the confirmation being
2.5.1985 as directed by this Court, the Petitioner was placed at item No.27,
i.e. immediately after Shri Gorakhnath and Shri Aneja but before Shri M.C. Agrawal.
S/Shri Gorakhnath and Aneja having been confirmed on 14.11.1983 and 27.11.1983
respectively, cannot, but be treated as senior. This Court has already dealt
with the issue and it is on the basis of the directions contained therein that
the gradation list has been prepared and we see no reason to interfere with the
same. The contention of placement immediately after Sh. Krishan Kant at No.19
and before Shri M.K. Bansal or Sh. AS Garg in our view does not and cannot
arise in the contextual facts having regard to the decision of this Court as
noticed above. It is not the date of joining which ought to be taken note of
but date of confirmation and in any event since the issue has been dealt with
by this Court once before, question of reopening of the same would not arise.
It is on this score, however, that Mr. Mahabir Singh contended that the same is
barred by the doctrine of res-judicata: whereas it can not be said to be
strictly within the ambit of the doctrine but no further relief can be granted
to the petitioner by reason of the finding of this Court in the absence of
which, the decision of this court in Chandra Kishore Singhs case (L. Chandra Kishore
Singh v. State of Manipur: 1999 (8) SCC 287) could have had some application,
wherein this Court in paragraphs 14 and 15 of the Report (page 303), observed
as below:-
14.
Seniority itself based upon length of service is an acquired right of an
employee which entitles him to be considered for further promotion. It is
generally regulated by service rules. Such rules normally provide for
determined seniority with reference to the date of appointment to the class,
category and grade to which the appointment is made. It is determined only on
the basis of the length of service. Such length of service may be on the basis
of the difference of continuous officiation or on the basis of the difference
of continuous officiation or on the basis of the difference of substantive
appointment in the cadre or grade or service which may be reckoned from the
date of confirmation on the basis of regularisation.
15. It
is now well settled that even in cases of probation or officiating appointments
which are followed by a confirmation unless a contrary rule is shown, the
service rendered as officiating appointment or on probation cannot be ignored
for reckoning the length of continuous officiating service for determining the
place in the seniority list. Where the first appointment is made by not
following the prescribed procedure and such appointee is approved later on, the
approval would mean his confirmation by the authority and shall relate back to
the date on which his appointment was made and the entire service will have to
be computed in reckoning the seniority according to the length of continuous officiation.
In this regard we fortify our view by the judgment of the Court in G.P. Doval
v. Chief Secretary, Government of U.P. [1984 (4) SCC329] The probationary
period in the matter under consideration however cannot be considered by reason
of the settlement of the issue as above and also the factum of a contra service
rule Incidentally be it noted that the original two year probationary period
was extended by the State Government for one year more, by reason wherefor,
this Court on a petition under Article 32 by the Petitioner redressed the grievance
by recording that substantive placement of the Petitioner ought to be from
2.5.1985 and by reason of the finding and observation of this Court as regards
substantive appointment neither any continuous officiation nor any probationary
period can be considered to ascribe seniority to the petitioner herein. The
direction to the High Court by this Court to consider the appellants case for
confirmation with effect from 2.5.1985 answers all the queries raised in the
matter, as such we need not even delve into the validity of the rules as raised
by the petitioner herein and thus would leave the questions open.
Significantly,
petitioners rank and file has been determined by this Court at his own instance
and having gained the desired objective, we should have thought that the litigatious
spirit would die down or be at its lowest ebb at least but unfortunately and we
say so since we feel it expedient to record that the spirit continued unabated
and undaunted and resultantly the instant proceeding, which is, to put it very
mildly, a total abuse of the process of court. The petitioner herein, has been
able to persuade this Court in the earlier matter to redress his grievances and
even after obtaining the fullest benefit, the demand still remains to be
insatiable, which in our view runs counter to all known principles of judicial
ethics. Before we part with the judgment and record our conclusion in the
matter we would wish to highlight one aspect of the matter which needs to be
considered with care and caution so far as the judicial officers are concerned.
Judiciary is one of the three organs of the State and owes constitutional
responsibility. Responsiveness to the needs of a litigant to have the matter
disposed of expeditiously cannot be decried in any way and in any event is the
need of the day.
The
petitioner herein has been in the judicial service since 1983 (if that date had
to be taken note of) and a long period of seventeen years has been spent more
in the law courts in ventilating the personal grievance rather than redressing
the grievances of the litigant public. All of us owe a duty to the public at
large and one need not take the extreme recourse unless placed against a wall.
There might be some grievances here and there or some dissatisfaction about service
conditions but that will not otherwise authorise a judicial officer to indulge
in fanciful litigations. With these observations we do feel it inclined to
record our opinion in the matter to the effect that the writ petition has no
merit and as such the same stands dismissed with costs assessed at Rs. 2000/-
to be paid to the Legal Aid Committee of this Court.
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