Report No. 116
5.11. Detailed rules for determining inter se seniority of the members of the Indian Judicial Service will have to be formulated by the National Judicial Service Commission keeping in view the broad principles generally judicially accepted. Some Chief Justices suggested that the seniority of the members appointed to the Service at its initial constitution shall be fixed in accordance with the date of entry into State Judicial Service, whether on an ad hoc, temporary or officiating capacity, subject to the rule of continuous officiation. This approach leaves many areas uncovered. It is founded on the assumption that the members of the Indian Judicial Service will have only State-level seniority. It is implicit in an all-India service that it will have an all-India seniority. Some broad outlines governing the rules of inter se seniority may be accordingly indicated:-
(1) At the time of initial constitution of the service, the inter se seniority of members of State Judicial Service who have become members of the Indian Judicial Service shall be retained without any disturbance;
(2) While integrating those members of the State Judicial Service coming from different States who would become members of the Indian Judicial Service at the time of initial constitution, the inter se seniority of all such persons shall be regulated by the date of holding the post which enables each one of them to become members of the Indian Judicial Service subject to the rule of continuous officiation;
(3) Persons who officiate in the post which is included in the Indian Judicial Service at the time of its initial Constitution from the same date will have inter se seniority regulated by age, the older becoming senior to the younger. In the case of a tie even in this situation, the National Judicial Service Commission will prescribe criterion for inter se seniority;
(4) Persons appointed by direct recruitment from the senior and experienced members of the Bar shall always be senior to the promotees and direct recruits of that year. Their inter se seniority will be determined by the merit list prepared by National Judicial Service Commission according to merit;
(5) inter se seniority of promotees from State Judicial Service will be regulated according to the place assigned in the select list by the National Judicial Service Commission which will regulate placement according to merits. In the event of two candidates being found equal, the date of entry in the State Judicial Service will regulate inter se seniority. In the event of date being common, the age will determine seniority; and
(6) Persons recruited as a result of the competitive examination in a given year shall as a bloc be junior to promotees from the State Judicial Service in the year in which examination is held.
Having broadly indicated the principles governing seniority and leaving to the proposed National Judicial Service Commission to draw up detailed rules governing inter se seniority, it would be worthwhile to point out that the rules should conform to the judicial dicta as laid down in A. Janardhan v. Union of India, (1983) 3 SCC 601; P.S. Mehal v. Union of India, (1984) 4 SCC 545; O.P. Singla v. Union of India, (1984)4 SCC 450; G.S. Lamba v. Union of India, (1985) 2 SCC 604, and the recent judgment in Narender Chadha v. Union of India, (1986) 2 SCC 157 Broadly they lay down that unless exigencies of service require, a person already rendering service, may be as a promotee to a cadre in which a direct recruit comes much later, the promotee should not be made to go down below late coming direct recruit.
Cases are not unknown where a promotee who has been regularly promoted to the cadre had to yield his place in seniority to the later direct recruit, who at that time may be a schoolean if not in embryo, by the unjust and inequitable application and interpretation of rules. It was succinctly pointed out that the time has come to recast service jurisprudence on more just and equitable foundation. While making the rules for the proposed Indian Judicial Service, care must be taken not to commit the error over again.