D. Ganesh Rao Patnaik &
Ors Vs. State of Jharkhand & Ors [2005] Insc 550 (6 October 2005)
CJI R.C. Lahoti,G.P.
Mathur & P.K. Balasubramanyan G.P. Mathur, J.
This appeal, by special leave, has been filed challenging the judgment and
order dated 1.4.2003 of the High Court of Jharkhand by which the writ petition
preferred by the appellants was dismissed and the issue raised is that of
seniority between the direct recruits and the promotees in the Bihar Superior
Judicial Service, who are currently serving in the State of Jharkhand.
2. The Bihar Superior Judicial Service Rules, 1946 (hereinafter referred to
as the "Rules") provide for appointment to the post of Additional
District and Sessions Judge by two sources, namely, by direct recruitment from
amongst members of the Bar and by promotion from amongst members of the Bihar
Civil Service (Judicial Branch), and they further provide that one-third posts
in the cadre of service shall be filled in by direct recruitment and two-third
shall be filled in by promotion. It appears that direct recruitment to Bihar
Superior Judicial Service was not regularly made and often the posts of
Additional District and Sessions Judges were filled in by promotion. After the
year 1979 an advertisement was issued in the year 1985 inviting applications
for making appointment to the posts of Additional District and Sessions Judges
by direct recruitment. Even after the said advertisement had been issued, no
action was taken for making the selection for a considerable period of time. One
K.P.
Verma then filed a writ petition in Patna High Court praying that a writ of
mandamus be issued to the State Government and to the High Court on the
administrative side to observe the constitutional mandate of Article 233 of the
Constitution and to make appointments by making direct recruitment from amongst
members of the Bar in order to comply with the requirement of the Rules
whereunder one-third appointments to the posts of Additional District and
Sessions Judges had to be made by direct recruitment. The writ petition was
heard by a Full Bench of three learned Judges and the judgment is reported in
K.P. Verma vs. State of Bihar AIR 1989 Patna 276. In the said judgment a
direction was issued to the State Government and to the High Court on the
administrative side to make appointments to the posts of Additional District
and Sessions Judges by direct recruitment of members of the Bar within a period
of six months from the date of the judgment and a further direction was issued
that in no case the vacancies meant for direct recruits shall be filled in by
promotion or vice versa and the continuity and the parity shall be maintained
until altered by due process of law. In compliance with the aforesaid direction
a fresh advertisement was issued in the year 1989 inviting applications from
eligible members of the Bar for the purpose of making direct recruitment to the
posts of Additional District and Sessions Judges. A written examination was
thereafter held, which was followed by interview and a merit list containing
names of 129 candidates was declared on 24.11.1990, which was to remain valid
till November, 1991. Out of this merit list the High Court recommended names of
32 candidates, in order of merit, for appointment as Additional District and
Sessions Judges in the quota of direct recruits.
The appellants, who are nine in number, were amongst those 32 candidates,
whose names had been recommended to the State Government for appointment.
3. Around the same time the High Court also recommended names of 23 Subordinate
Judges, including respondent Nos. 4 to 11 in the present appeal (hereinafter
referred to as contesting respondents), for promotion to the temporary posts of
Additional District and Sessions Judges. The State Government did not take
immediate steps to issue the appointment orders in favour of the persons whose
names had been recommended by the High Court. At the time when the
advertisement was issued in the year 1989 the total number of permanent and
temporary posts of Additional District and Sessions Judges was 251. If the
quota for the direct recruits was to be worked out for all the posts, including
temporary posts, it came to 83 and the remaining 168 posts fell in the quota
for the promotees. However, the number of promotees, who were working as Additional
District and Sessions Judges by April, 1991, far exceeded their quota of 168.
The State Government, it appears, was proceeding on the basis that the cadre of
Additional District and Sessions Judges would consist only of permanent posts
and, therefore, the temporary posts could not be taken into consideration for
making appointment by direct recruitment and such temporary posts had to be
excluded while determining the quota of the direct recruits. One Madan Mohan
Singh then filed a writ petition before the Patna High Court being C.W.J.C. No.
945 of 1991 wherein several prayers were made and one of the prayers was that
direct recruitment should also be made to temporary posts and the quota of
direct recruits should be determined by also taking into account the temporary
posts of Additional District and Sessions Judges. An interim order was passed
in the writ petition on 25.4.1991, which has some relevance and, therefore, it
is being reproduced below: - "Meanwhile as this matter cannot be heard and
disposed of before the summer vacation, to safe guard the interest of all
concerned, including the members of the subordinate judiciary as such, we
direct that the state government shall be entitled to make appointment to the
superior judicial service by promotion in accordance with law, but such
promotion and the question of seniority of the persons so promoted shall abide
by the final result of this writ petition and/or any other order of this Court.
It is further directed that this direction shall be incorporated in each
letter/order relating to such appointment/ promotion as one of the conditions
of such appointment/ promotion and unless such condition is accepted by the
person concerned no such appointment/promotion is to be given effect to."
The State Government thereafter issued two separate notifications on the same
date, i.e., on 30.4.1991. By one notification 32 persons, including the
appellants herein, were appointed to the posts of Additional District and
Sessions Judges against the quota of direct recruits and by another
notification several persons, including the contesting respondents in the
present appeal, were promoted to the Bihar Superior Judicial Service and were
appointed as Additional District and Sessions Judges. In the notification, which
related to the promotees, following two conditions were mentioned: - "2
(ka) The promotion of the above said officers can be cancelled/modified in the
light of the decision of Writ No. 945/1991;
(kha) In the case of promoted officers, their promotion will become
effective only in the event of their furnishing consent letters accepting the
abovesaid condition. In other words, those officers who do not submit such
written consent letters accepting such condition shall not be deemed to have
been promoted and their joining to the promoted post will not be
accepted." The promotee officers, including respondent No. 4 and Nos. 6 to
11, duly submitted their consent letters/undertakings to be bound by the above
conditions and joined at their respective places of postings some time after
the appellants had joined. The respondent No. 5 did not submit any consent
letter/undertaking but he was allowed to join as Additional District and
Sessions Judge. Factually, thus the promotion of respondent Nos. 4 to 11 came
into effect much after 30.4.1991.
4. The writ petition filed by Madan Mohan Singh (C.W.J.C. No.
945 of 1991) was decided by a Division Bench of the Patna High Court on
16.12.1991 and it was held that the cadre of Superior Judicial Service included
both permanent and temporary posts and consequently the one-third quota of
direct recruitment from the Bar had to be calculated by taking into account
permanent as well as temporary posts. The Division Bench issued a further
direction that apart from those 32 persons, who had already been appointed,
further appointments should be made from the same merit list, which was
declared on 24.11.1990 so as to fill in the complete quota of direct recruits
and the validity of the merit list prepared, which was for a period of one
year, i.e., up to November, 1991, was extended for a further period of six
months with effect from 24.11.1991. The State Government preferred an appeal
against the aforesaid decision of the Patna High Court before this Court and
the judgment of this Court is reported in State of Bihar vs. Madan Mohan Singh
1994 Supp. (3) SCC 308. This Court decided only one question in the appeal,
namely, having regard to the fact that the advertisement had been issued to
fill in only 32 vacancies and 129 candidates having been called for interview
in the ratio of 1:4, whether the said selection process could be availed of for
making further appointments. After examining the original record this Court
held that the Full Court of the Patna High Court had approved the selection of
32 candidates only and had sent a list of the said candidates in order of merit
to the State Government for making appointments, and, therefore, the merit list
prepared could not be utilized for making any further appointment as the same
got exhausted and came to an end. It was observed that if the same merit list
had to be kept subsisting for the purpose of filling up other vacancies also,
it would naturally amount to deprivation of rights of other candidates, who had
become eligible subsequent to the advertisement and selection process. The
appeals were accordingly allowed, the direction of the Division Bench of the
High Court to fill in other vacancies from the same merit list was set aside
and the State Government was directed to issue a fresh advertisement calling
for applications and completing the selection process as early as possible.
In the judgment no opinion was expressed on the question whether for the
purpose of calculating the quota of direct recruits the temporary posts of
Additional District & Sessions Judges had to be taken into consideration or
not.
5. It is relevant to note here that respondent No. 4 Shri Ram Nath Mahto was
confirmed on 23.5.1994, respondent No. 5 Shri Ram Bilas Gupta was confirmed on
1.1.1995 and respondent No. 6 Shri Krishna Murari was confirmed on 1.2.1995 as
Additional District and Sessions Judges consequence upon occurrence of a
substantive vacancy. Some of the appellants (direct recruits) preferred a
representation before the Patna High Court claiming seniority over 24 promotee
officers, including the contesting respondents. The High Court, after issuing
notices and giving an opportunity of making representations to the direct
recruits as well as promotee officers, declared by order dated 4.9.1996 that
"32 directly recruited Additional District and Sessions Judges appointed
vide notification dated 30.4.1991 shall be treated as senior to the 23
appointees by promotion (of the same date) to the Bihar Superior Judicial
Service". Thus, all the appellants herein were declared senior to the
contesting respondents (respondents 4 to 11 in the present appeal) in terms of
the aforesaid order. Feeling aggrieved by the aforesaid decision on the
administrative side some of the promotee officers, including respondent Nos. 4,
5, 8, 9 and 11 herein, filed a writ petition being C.W.J.C. No. 11620 of 1996
before the Patna High Court, which, according to the learned counsel for the
parties, is still pending. In the said writ petition a counter affidavit was
filed by the High Court through the Registrar General wherein the proceedings
of the meeting of the Standing Committee dated 24.8.1996 were extensively
quoted and in paragraph 9 thereof it was stated that in view of the condition
imposed in the promotion order of all the promotees their notification of
promotion was liable to be cancelled after the decision in the writ petition.
However, the High Court did not take such harsh step to cancel their promotion
but instead the promotees were allowed to continue treating them as promoted against
subsequent quota of promotees. A copy of the aforesaid counter affidavit has
been filed as Annexure P/2 to the special leave petition giving rise to the
present appeal.
6. The State of Bihar was bifurcated under the provisions of the Bihar
Reorganization Act, 2000 and the State of Jharkhand was carved out with effect
from 15.11.2000. The appellants and the contesting respondents besides others
were provisionally allocated to the State of Jharkhand and in the said
provisional allocation order the names of the appellants were placed above the
names of the contesting respondents in accordance with the administrative
decision of the Patna High Court dated 4.9.1996. The Jharkhand High Court
promoted the appellants to the posts of District and Sessions Judges in June,
2001, whereas the contesting respondents were promoted on or after August,
2001.
7. Some time in January, 2002 two of the promotee officers, viz., respondent
Nos. 9 and 11, filed representations on the administrative side of the
Jharkhand High Court for treating them as senior to the direct recruits. This
representation was referred to a Committee of two Hon'ble Judges, which, after
issuing notices and giving an opportunity of making representations to the
appellants, gave a report on 26.7.2002 recommending that the promotee officers
are entitled to be ranked senior to the direct recruits. The report of the
Committee was accepted by the High Court vide order dated 29.8.2002 and the
contesting respondents were declared senior to the appellants. The appellants
then filed a writ petition on 20.9.2002 before the Jharkhand High Court
challenging the aforesaid decision on the administrative side dated 29.8.2002
wherein an interim order of stay was passed on 3.10.2002, but ultimately the
writ petition was dismissed on 1.4.2003, which order is the subject-matter of
challenge in the present appeal.
8. Before adverting to the contentions raised by learned counsel for the
parties it will be convenient to reproduce the relevant provisions of the Bihar
Superior Judicial Service Rules, 1946, which have been made by Governor of
Bihar in exercise of powers conferred by the proviso to Article 309, read with
Article 233 of the Constitution of India and in supersession of all existing
rules and orders on the subject. The Rules were published by notification dated
31.7.1951 but in view of Rule 1(2) they are deemed to have come into force on
21.10.1946. Rules 2, 3, 5, 6, 15 and 16, which are relevant for the decision of
the present case, are being reproduced below: - "2. Definitions In these
rules, unless there is anything repugnant in the subject or context. (a)
"cadre" means the cadre of the Bihar Superior Judicial Service;
(b) "direct recruit" means an officer appointed to the Service in
accordance with clause (a) of rule 5;
(c) "promoted officer" means an officer appointed to the Service
from the Bihar Civil Service (Judicial Branch) by promotion in accordance with
clause (b) of rule 5;
and (d) "Service" means the Bihar Superior Judicial Service.
3. (1) The strength of the Service and the number and character of the posts
shall be as specified in the schedule to these rules.
(2) The State Government may, from time to time, after consultation with the
High Court amend the said schedule.
5. Appointment to the Bihar Superior Judicial Service, which shall, in the
first instance, ordinarily be to the post of Additional District and Sessions
Judge, shall be made by the Government in consultation with the High Court- (a)
by direct recruitment, from among persons qualified and recommended by the High
Court for appointment under clause (2) of Article 233 of the Constitution; or
(b) by promotion, from among members of the Bihar Civil Service (Judicial
Branch).
6. Of the posts in cadre of the Service, two-third shall be filled by
promotion and one-third by direct recruitment;
Provided that the State Government may in consultation with the High Court
deviate from the said proportion in either direction.
15.(1) (a) A member of the Service appointed under clause (a) of rule 5
shall be on probation for a period of one year and shall not be confirmed
unless he is found to be suitable in every respect for appointment to the
Service:
Provided that the period of probation may be extended by the State
Government, in consultation with the High Court.
(b) When such a member is confirmed in the Service, the period spent on
probation shall be counted towards leave, pension or increments in the relevant
time scale.
(2) Promoted officers appointed against substantive vacancies in the cadre
shall forthwith be confirmed in the Service.
16. (a) Seniority inter se of direct recruits shall be determined in
accordance with the date of their substantive appointments to the Service:
Provided that a direct recruit appointed to the post of an Additional
District Judge shall be junior to a direct recruit appointed to any other post
in the schedule.
(b) Seniority inter se of promoted officers shall also be determined in
accordance with the dates of their substantive appointments to the Service.
(c) When more than one direct recruit is appointed at one time, the
seniority inter se will be determined in accordance with the order given in the
notification making their appointments.
(d) When more than one appointment is made by promotion at one time the
seniority inter se of the officers promoted shall be in accordance with their
respective seniority in the Bihar Civil Service (Judicial Branch).
(e) Seniority of direct recruit vis-`-vis promoted officer shall be
determined with reference to the dates from which they may have been allowed to
officiate continuously, in posts in the cadre of the Service or in, posts
outside the cadre or identical time-scale of pay and of equal status and
responsibility or in posts of higher scale of pay and of higher responsibility
in or outside the cadre:
Provided that when a direct recruit and promoted officer are appointed on
the same date, the promoted officer shall be senior to the direct
recruits." Rule 5 gives the source of recruitment to the Bihar Superior Judicial
Service, which is by direct recruitment from among persons qualified and
recommended by the High Court for appointment and by promotion from among
members of Bihar Civil Service (Judicial Branch). Rule 6 provides that of the
posts in the cadre of the service, two-thirds shall be filled by promotion and
one-third by direct recruitment. Rule 16 deals with inter se seniority of
direct recruits and promotees and sub-Rule (e) thereof gives the procedure for
determining the seniority of direct recruits vis-`-vis promotee officers.
9. Before dealing with the main issue raised in the appeal, namely, the
inter se seniority of direct recruits and the promotees, the first and foremost
question which requires consideration is whether for calculating the one-third
quota of direct recruits as provided in Rule 6, the temporary posts of
Additional District and Sessions Judges have to be included or not. Rule 6 only
says that of the posts in the cadre of the service, two-thirds shall be filled
by promotion and one-third by direct recruitment. Cadre is defined in sub-rule
(a) of Rule 2 and it means the cadre of the Bihar Superior Judicial Service. It
is important to note here that the definition of "cadre", as given in
the aforesaid Rule does not say that the temporary posts have not to be taken
into consideration or have to be excluded nor there is any indication to that
effect. The "cadre" means the entire cadre of Bihar Superior Judicial
Service and, therefore, there is no warrant for excluding the temporary posts.
10. Shri Amarendra Sharan, learned senior counsel for the appellants, has
submitted that in C.W.J.C. No. 945 of 1991 (Madan Mohan Singh vs. State of
Bihar) the Division Bench of the Patna High Court had clearly held that the
cadre will include both temporary and permanent posts and for the purposes of
Rule 6 all such posts have to be taken into consideration for determining the
one-third quota of direct recruits. According to the learned counsel this part
of the judgment of the Patna High Court in the case of Madan Mohan Singh had
not been reversed by this Court as in the appeal preferred by the State of
Bihar this Court only set aside the direction given by the High Court
whereunder the same merit list of 129 candidates was to be utilized for filling
in all the vacancies in the quota of direct recruits, even though the
advertisement had been issued for filling in only 32 vacancies on which
appointments had already been made and also the further direction extending the
validity of the merit list for a further period of six months. According to the
learned counsel the decision of the High Court to the effect that the temporary
posts had also to be taken into consideration for determining the quota of the
direct recruits had neither been commented upon nor reversed by this Court and,
therefore, the said decision was binding upon the parties.
11. Shri Vijay Hansaria, learned senior counsel for the contesting
respondents, has, on the other hand, submitted that the mere fact that this
Court did not specifically advert to the aforesaid part of the judgment of the
High Court would not mean that it gave a seal of approval to the same,
specially when the appeal preferred by the State of Bihar was allowed and the
directions issued in the judgment of the High Court for making further
appointments of direct recruits was set aside.
12. In our opinion, it is not necessary to go into the question as to what
extent the judgment of the Patna High Court rendered in Madan Mohan Singh vs.
State of Bihar remained intact and would consequently bind the parties. The
question whether for the application of "quota rule" temporary posts
have to be taken into consideration or not has been examined in several
decisions of this Court. In A.K. Subraman vs. Union of India AIR 1975 SC 483
(para 29), it was held as under: - "The quota rule will be enforced with
reference to vacancies in all posts, whether permanent or temporary included in
the sanctioned strength of the cadre (except such vacancies as are purely of a
fortuitous or adventitious nature)......................" In P.S. Mahal
vs. Union of India (1984) 3 SCR 847, it was held as under: - "It is
therefore obvious that if a vacancy arises on account of an incumbent going on
leave or for training or on deputation for a short period, it would be a
fortuitous or adventitious vacancy and the quota rule would not be attracted in
case of such a vacancy. But where a vacancy arises on account of the incumbent
going on deputation for a reasonably long period and there is no reasonable
likelihood of the persons promoted to fill such vacancy having to revert, the
vacancy would be subject to the quota rule." "It is, therefore,
apparent that what has to be considered for the applicability of the quota rule
is a vacancy in a post included in the sanctioned strength of the
cadre............................" "It is thus clear that the
vacancies in the posts of Executive Engineer arising on account of deputation
of Executive Engineers to other departments, organizations and public
undertakings for a period of one or more years were long term vacancies and
they could not be regarded as fortuitous or adventitious in character and hence
they were subject to the quota rule."
13. The same question was considered in Keshav Chandra Joshi and others vs.
Union of India and others 1992 Supp. (1) SCC 272, with reference to U.P. Forest
Service Rules, 1952, which provide for recruitment to the posts of Assistant
Conservator of Forest by direct recruitment and by promotion. In paragraph 24
of the report it was held that the rule of quota being a statutory one it must
be strictly implemented and it is impermissible for the authorities concerned
to deviate from the rule due to administrative exigencies or expediency.
It was further held that the result of pushing down the promotees appointed
in excess of the quota may work out hardship but it is unavoidable and any
construction otherwise would be illegal, nullifying the force of statutory
rules and would offend Article 14 of the Constitution.
14. An identical question was examined in considerable detail with reference
to U.P. Higher Judicial Service Rules, 1975 in O.P. Garg and others etc. vs.
State of U.P. and others AIR 1991 SC 1202. Rule 6 of these Rules provides quota
for recruitment from three sources, viz., (i) direct recruitment from the Bar,
(ii) Uttar Pradesh Nyayik Sewa and (iii) U.P. Judicial Officers Service
(Judicial Magistrates). After a thorough examination of the question, it was
held as under: - "......................The service having comprised of three
sources including the direct recruitment there is no justification to deprive
the direct recruits of their share in the temporary posts in the service.
Unless the direct recruits are given their due quota in the temporary posts the
seniority rule cannot operate equitably. We see no justification whatsoever in
having Rr. 22(3) and 22(4) of the 1975 rules which deprive one of the sources
of recruitment the benefit of appointment to the temporary posts. The rules on
the face of it are discriminatory.
There is no nexus with the object sought to be achieved by framing the
above-said rules. We, therefore, strike down rules 22(3) and 22(4) of the 1975
rules being discriminatory and violative of Arts. 14 and 16 of the Constitution
of India. We, however, direct that the appointments already made under these
Rr. 22(3) and 22(4) shall not be invalidated on this ground. We further direct
that while selecting candidates under R. 18 the Committee shall prepare a merit
list of candidates twice the number of vacancies and the said list shall remain
operative till the next recruitment. We further direct that the appointments
under Rr. 22(1) and 22(2) of the Rules shall be made to permanent as well as
temporary posts from all the three sources in accordance with the quota provided
under the 1975 rules." In view of these authoritative pronouncements of
this Court there cannot be any doubt whatsoever that for determining the quota
of direct recruits, both the temporary and permanent posts have to be counted
and taken into consideration and their quota cannot be confined to permanent
posts alone.
15. As mentioned earlier no appointments by direct recruitment to Bihar
Superior Judicial Service were made after 1979. Even though the advertisement
was issued in 1985, but no follow-up action was taken. It was under these
circumstances that K.P. Verma filed a writ petition, which was heard and
decided by a Full Bench of three learned Judges of Patna High Court, who wrote
separate but concurring opinions and the judgment is reported in K.P. Verma vs.
State of Bihar AIR 1989 Patna 276. Shamsul Hasan, J., who authored the main
judgment, while disposing of the writ petition, issued several directions and
direction No. (i) which is of vital significance is being reproduced below: -
"(i) The 30 vacancies that are now being filled up were available earlier
and they would ordinarily have been treated to be the vacancy of the year 1985.
This cannot be done now but it is now to be ensured that the vacancies meant
for direct recruits are filled up in due time.
Though, those who are appointed directly will rank junior to those who are
promoted in the vacancy of the same year but the direct appointees will rank
senior to those who are promoted after the appointment of direct recruits, i.
e. after the direct appointees of the earlier year though the Direct recruits
might have been actually appointed later due to official delay. The candidates
appointed against the vacancy of a particular year will in future be treated as
appointees of that particular year.
Further, the vacancies meant for recruitment from amongst the Advocates
should never be filled up by promotees even on the ground that the posts are
lying vacant due to the delay caused by the appointment procedure. If any post
out of the 30 lying vacant from the quota of direct recruits has been filled up
or is filled up by promotion, such promotee will revert immediately to his
original position in the service from which he has been promoted and on being
promoted in the future will rank below those who fill up the 30 vacancies by
direct recruitment." P.S. Mishra, J. directed that all the existing
vacancies should be filled up within six months from the date of delivery of
the judgment and in no case the State or the High Court shall fill up the vacancies
meant for direct recruits by promotion or vice versa and continue the parity
until altered by due process of law. S.B. Sinha, J., issued a similar direction
that the State Government and the High Court should see to it that the quota
rule is not violated and recruitment be made from amongst the members of the
Bar in terms of Clause (2) of Article 233 of the Constitution with utmost
expedition and not beyond a period of six months from the date of the judgment.
The judgment in the case of K.P. Verma attained finality and the directions
issued therein by all the learned Judges were binding upon the State Government
and the High Court on the administrative side. Therefore, as a result of this
decision a complete prohibition was imposed upon the State Government on
filling in vacancies of the quota of direct recruits by giving promotion to
members of Bihar Civil Service (Judicial Branch) and no appointment in the
quota of direct recruits in Bihar Superior Judicial Service could be made by
promotion.
16. Before the notification dated 30.4.1991 promoting the contesting
respondents to the posts of Additional District and Sessions Judges had been
issued, the total number of permanent and temporary posts in the said cadre was
251 in which the quota of direct recruits was 83 and that of promotee officers
was 168. However, the complete quota meant for the promotee officers had
already been filled up much before 30.4.1991 and there was absolutely no scope
for any further promotion. When steps were being taken to make appointments by
promotion of the contesting respondents and some others, C.W.J.C.
No. 945 of 1991 (Madan Mohan Singh vs. State of Bihar) was filed in the High
Court wherein an interim order was passed on 25.4.1991 to the effect that such
promotion and the question of seniority of the persons so promoted shall abide
by the final results of the writ petition. It was further directed that in the
appointment/promotion order the said condition shall be incorporated and the
promotees will have to give a written consent for accepting such a condition.
It is not in dispute that the appointment/promotion order of the contesting
respondents contained such a condition and respondent Nos. 4 and 6 to 11 joined
at their respective places of posting after they had submitted their consent
letters/undertakings. The contesting respondents having been promoted in the
vacancies which in fact were in the quota of direct recruits, in normal
circumstances, their promotion was liable to be rescinded after the decision of
the writ petition. However, as mentioned in the counter affidavit filed by the
Registrar General on behalf of the High Court in C.W.J.C. No. 11620 of 1996
filed in the Patna High Court, this step was not taken on sympathetic
consideration. Instead the promotees were allowed to continue treating them as
having been promoted against subsequent quota of promotees.
17. After the decision in the case of Madan Mohan Singh by the High Court,
which ruled that temporary posts have also to be counted for determining the
one-third quota of direct recruits, which decision, in our opinion, is legally
correct and sound, there was absolutely no scope for giving promotion to the
contesting respondents in the vacancies, which did not fall in the quota of
promotees but fell within the quota earmarked for direct recruits. The High
Court had issued clear directions in the case of K.P. Verma that vacancies
meant for recruitment from amongst advocates should never be filled up by
promotees even on the ground that the posts are lying vacant due to the delay
caused by the appointment procedure and further if any post out of that lying
vacant from the quota of direct recruits had been filled up or is filled up by
promotion, such promotee will revert immediately to its original position in
the service from which he had been promoted. The promotion order passed in
favour of the contesting respondents on 30.4.1991 was, therefore, liable to be
cancelled. However, instead of taking this decision, which would have naturally
meant reverting the contesting respondents back to their original position,
they were allowed to continue treating them as promoted against subsequent
quota of promotees. In such circumstances there is absolutely no scope for
treating the contesting respondents as senior to the appellants who are all
direct recruits.
18. Shri Amarendra Sharan, learned senior counsel for the appellants, has
also drawn the attention of the Court to following observations made in
paragraph 27 of the judgment in O.P. Garg vs.
State of U.P. (Supra): - "..................Since the recruitment to
the service is from three sources the existence of a vacancy either permanent
or temporary is the sine qua non for claiming benefit of continuous length of
service towards seniority. The period of officiation/service which is not
against a substantive vacancy (permanent or temporary) cannot be counted
towards seniority........................." The aforesaid observations
certainly support the contention of the appellants that as no vacancy either
permanent or temporary in the quota meant for promotees was available on
30.4.1991, the period of officiation/service rendered by the contesting
respondents till a vacancy in their quota became available to them, cannot be
counted towards their seniority.
19. The learned counsel for the appellants has also submitted that the
appointment of the contesting respondents was not only contrary to Rules but
was fortuitous in nature and they can get no advantage of such fortuitous
appointment until a substantive vacancy was available in their quota, which in
fact became available much later some time in the year 1993-94, which is long
after the appointment of the appellants. What is a fortuitous appointment has
been explained in a Constitution Bench decision of this Court in Rudra Kumar
Sain vs.
Union of India (2000) 8 SCC 25. After observing that the Rules in question
did not define the terms "ad hoc", "stopgap" and
"fortuitous", which are in frequent use in service jurisprudence, the
Court referred to several dictionaries. The meaning given to the expression
"fortuitous" in Stroud's Judicial Dictionary is "accident or
fortuitous casualty". This should obviously connote that if an appointment
is made accidentally, because of a particular emergent situation, such appointment
obviously would not continue for a reasonably long period. In Black's Law
Dictionary the expression "fortuitous" means "occurring by
chance", "a fortuitous event may be highly unfortunate". It thus
indicates that it occurs only by chance or accident, which could not have been
reasonably foreseen. In Oxford dictionary the meaning given to the word
"fortuitous" is happening by accident or chance rather than design.
In our opinion it will not be proper to hold that the promotion of the
contesting respondents was fortuitous as contended by learned counsel for the
appellants. It cannot be said that the contesting respondents were promoted by
accident or by chance. Their promotion order was passed as there were vacancies
to the posts of Additional District and Sessions Judges, though in the quota or
direct recruits, but as no recruitment from the said channel had been made for
a long time and sufficient number of candidates were not available, the
vacancies were filled in by giving promotion to members of Bihar Civil Service
(Judicial Branch). If promotion orders had not been passed and the posts had
not been filled in, the judicial work in the districts would have suffered.
However, it is clear that having regard to the various orders passed on the
judicial side by the Patna High Court and the legal position being well settled
that the temporary posts have also to be counted for determining the one-third
quota of direct recruits, the promotion given to the contesting respondents was
not in accordance with law. Instead of taking the harsh step of rescinding
their order of promotion the Patna High Court, on the administrative side, took
the decision to treat them promoted against subsequent quota of promotees.
Therefore, the contesting respondents can under no circumstances claim
seniority over the appellants and the view to the contrary taken by the
Jharkhand High Court on 29.8.2002 on administrative side and also in the
judgment and order dated 1.4.2003, which is the subject-matter of challenge in
the present appeal, is wholly erroneous in law.
20. Shri Vijay Hansaria, learned senior counsel for the contesting
respondents, has submitted that Rule 6 of the Rules, which says that of the
posts in the cadre of the service, two-thirds shall be filled by promotion and
one-third by direct recruitment, is not in absolute terms but contains a
proviso, which lays down that the State Government may in consultation with the
High Court, deviate from the said proportion in either direction. Learned
counsel has submitted that in view of the proviso appended to Rule 6 it was
fully open to the State Government not to strictly adhere to the quota rule of
one-third and two-third and the said quota could be exceeded or reduced. The
submission is that any appointment made by promotion, which was beyond the
two-third quota, would not be illegal and would be fully saved by the proviso
to the Rule. It is difficult to accept the contention raised by the learned
counsel for the contesting respondents. The proviso to Rule 6 does not give
untrammeled power to the State Government to deviate from the substantive
provisions of the Rule which fixes the quota. On the contrary it says that the
State Government may, in consultation with the High Court, deviate from the
said proportion in either direction. This is in tune with the constitutional
mandate of Clause (1) of Article 233 of the Constitution, which says that
appointments of persons to be, and the posting and promotion of, district
judges in any State shall be made by the Governor of the State in consultation
with the High Court exercising jurisdiction in relation to such State. The
proviso contemplates a conscious decision taken by the State Government after
having consultations with the High Court in this regard. The dictionary meaning
of the word "consultation" is a council or conference (as between two
or more persons); deliberation of two or more persons on some matter. There is
neither any pleading nor any material on record to show that at any point of
time the State Government ever took a conscious decision for deviating from the
quota rule after having made consultation with the High Court. In absence of
any material to show that any such decision was taken by the State Government
it is not possible to assume that the promotions made beyond the two-third
quota were legal or valid or that the notification issued on 30.4.1991giving
promotions to the contesting respondents was in accordance with law and was
justified.
21. Shri Vijay Hansaria, learned senior counsel for the contesting
respondents, has also submitted that in the State of Bihar the quota rule had
completely broken down as after 1979 no appointments by direct recruitment were
made for almost 12 years and in such circumstances the dispute of inter se
seniority between the appellants and the contesting respondents cannot be
decided by applying the principle underlying Rule 6, which provides for quota
in the matter of appointment to Bihar Superior Judicial Service. In support of
this contention learned counsel has referred to a Division Bench decision of
Patna High Court rendered in Bihar Judicial Services Association vs. The State
of Bihar 1998 (3) PLJR 21. After observing that unfortunately after the year
1979 direct recruits were not being appointed regularly with the result the
number of posts to be filled up by direct recruits were accumulated and they
were filled up in one year the Bench made a casual observation that the quota
rule had broken down and to that extent the promotees benefited in the earlier
years as they were promoted while no direct recruitment took place.
It may be noted that the court did not strike down Rule 6 of the Rules nor
held it to be ultra vires. There is no direction in the judgment that
henceforth quota rule should not be followed. Learned counsel has also referred
to a decision of this Court in Direct Recruit Class II Engineering Officers'
Association vs. State of Maharashtra (1990) 2 SCC 715 and in particular drawn
our attention to the opening part of paragraph 23 of the report where it is
said, "Mr. Tarkunde is right that the rules fixing the quota or the
appointees from two sources are meant to be followed. But if it becomes
impractical to act upon it, it is no use insisting that the authorities must
continue to give effect to it. There is no sense in asking the performance of
something which has become impossible..................." Reference has
also been made to sub-paragraphs (D), (E) and (F) of paragraph 47 of the
reports, where it is said that when appointments are made from more than one
source, it is permissible to fix the ratio for recruitment from different
sources and if rules are framed in this regard, they must ordinarily be
followed strictly. It is also said that if it becomes impossible to adhere to
the existing quota rule, it should be substituted by an appropriate rule to
meet the needs of the situation. In case, however, the quota rule is not
followed continuously for a number of years because it was impossible to do so
the interference is irresistible that the quota rule has broken down. We do not
think that the authority cited by the learned counsel can render any assistance
to him. That the quota rule had broken down is neither pleaded nor
demonstrated. Similarly, no material has been placed on record to show that it
had become impossible to adhere to the quota rule contained in Rule 6 of the
Rules. If no direct recruitment had been made after the year 1979 in the State
of Bihar, it was not on account of the fact that it was impossible to do so. At
any rate after the decision in K.P. Verma's case necessary steps were taken for
making appointment by direct recruitment. The contesting respondents were
appointed long after the publication of the merit list of the examination
conducted for making direct recruitment and it does not lie in their mouth to
say that the quota rule had broken down or that their promotion though made
beyond the quota fixed for promotees, yet the same should be treated not only
perfectly valid but also in a manner so as to give them the benefit of
seniority over the direct recruits. The other case cited by Shri Vijay Hansaria
is Rudra Kumar Singh vs. Union of India (2000) 8 SCC 25, is clearly
distinguishable on facts as the observations made here have to be seen in the
light of the fact that direct recruits of the year 1980 were claiming seniority
over those who had been given promotion four years earlier in the year 1976.
22. Shri Amarendra Sharan, learned senior counsel for the appellants, has
also submitted that both the appellants and the contesting respondents were
members of Bihar Superior Judicial Service and dispute of their inter se
seniority had been settled by the Patna High Court on the administrative side
vide its decision dated 4.9.1996 whereunder appellants were declared to be
senior to the contesting respondents. In such circumstances it was not open to
the Jharkhand High Court to reopen the issue and take a contrary view on
29.8.2002 whereunder the contesting respondents were declared to be senior to
the appellants. More so when the decision taken by the Patna High Court on
4.9.1996 on the administrative side had already been challenged by filing a
writ petition to which respondent Nos. 9 and 11 were parties and the writ
petition was still pending. In our opinion, as a principle of law, there is no
legal bar or prohibition against an administrative body in seeking to review
its earlier decision provided the parties likely to be affected by such a
decision are afforded an opportunity of hearing. In the present case the
Jharkhand High Court did give notice to the appellants and they were given an
opportunity to make representations. Therefore, as an abstract principle of
law, it cannot be said that the decision taken by the Jharkhand High Court on
29.8.2002 suffers from any legal infirmity.
However, having regard to the background of events and the legal position
emerging from the fact that Rule 6 of the Rules prescribes a quota and for
determining the quota the temporary posts have also to be counted and taken
into consideration and further the orders passed on the judicial side by the
Patna High Court prior to the appointment of the contesting respondents the
inevitable conclusion is that the contesting respondents cannot claim seniority
over the appellants.
23. In the result the appeal is allowed with costs. The order dated
29.8.2002 passed on the administrative side by the Jharkhand High Court and
also the judgment and order dated 1.4.2003, which is the subject-matter of
challenge in the present appeal, are hereby set aside.
The administrative decision taken by the Patna High Court on 4.9.1996 is
restored and the appellants shall be treated as senior to the respondent Nos. 4
to 11.
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