Civil Appeal No 911 of 1978
Appeal by Special Leave from the Judgment and order dated 12 12 1977 of the Allahabad High Court Lucknow Bench in Writ Petition No 1283 of 1976 RKGarg V J Francis Madan Mohan and DK Garg for the Appellant
G N Dikshit and OP Rana for Respondents Nos 1 and 2
84 section N Andley B P Maheshwari and Sures Sethi for Respondents 3 and 5
Yogeshwar Prasad Mrs Rani Chhabra and Miss Meera Bali for Respondent No 4
P C Bhartari and R P Kathuria for the Intervener B section Yadav and Ors The Judgment of the Court was delivered by SARKARIAJ
This appeal by special leave is directed against a judgment dated December 12 1977 of the High Court of Allahabad
The appellant herein Shri B L Goel is a District and Sessions Judge and as such a Member of UP Higher Judicial Service
The sanctioned permanent strength of the Higher Judicial Service was 82
It comprised i 37 posts of District and Sessions Judges and ii 45 Civil and Sessions Judges including five posts of leave reserve
The service includes substantive posts as well as temporary posts
The appointments to the posts of Civil and Sessions Judges are made from two sources a By promotion from the members of the UP Civil Service Judicial Branch and b By direct recruitment after consultation with the Court vide Rule 5
Under Rules 13 and 17 of the UP Higher
Judicial Service 1953 hereinafter referred to as the 1953 Rules waiting lists were to be prepared of the persons found fit for promotion or appointment to the higher service
Rule 19 provided that the Governor shall on receipt from the Court of the waiting lists prepared under Rules 13 and 17 make appointment to the service on the occurrence of substantive vacancies
Para 2 of Rule 19 provide d that the Governor could make appointments in temporary or officiating vacancies of the persons who were eligible for appointment by promotion and whose names were borne on the waiting list on force prepared under Rule 13
Rule 21 fixed the period of probation for direct recruits at two years
Rule 22 provided that the probation could be extended for a specific period
On satisfactory completion of his period of probation a direct recruit was entitled to be confirmed
No period of probation was fixed in the case of promotees
Rule 20 which is being impugned originally ran as follows 20 Seniority
Subject to the provisions of rule 31 seniority in each of the two classes of posts in the Services shall be determined by the date of confirmation in that class of post 85 Provided that if in any class of the post two or more persons are confirmed on the same date their seniority will be determined according to the order in which their confirmation has been notified Provided further that in the case of direct recruits their inter se seniority will be fixed in the same order in which their names appear in the list prepared by the Selection Committee under rule 17
 Rule 23 dealt with confirmation
It provided 23
Confirmation 1 A probationer shall be confirm ed in his appointment at the end of his period of probation or at the end of the extended period of probation if the Governor after consultation with the Court is satisfied that he is fit for confirmation
2 All confirmations under this rule shall be notified in the the official Gazette
 D The appellant was appointed to the UP Civil Service Judicial Branch on September 13 1948 on the basis of a competitive examination held by the UP Public Service Commission
He was posted as Civil Judge in the same service in January 1955
He was appointed by promotion as an officiating Civil and Sessions Judge in UP Higher Judicial Service in July 1 960
Respondents 3 4 and 5 are direct recruits
They were appointed on probation on Civil and Sessions Judges and joined the service on May 31 1966 May 27 1966 and June 1 1966 respectively
The constitutional validity of the 1953 Rules providing for appointment to UP Higher Judicial Service first came up for consideration before this Court in 1966 in Chandra Mohan v state of UP1 wherein it was held that the 1953 Rules providing for recruitment of District Judges particularly rules 5 8 13 17 and 19 of the UP Higher Judicial Service Rules 1953 were invalid as they contravened the mandate of Article 2331 and that consequently the appointments of persons appointed under those Rules including the appellant and respondents 3 4 and S to the UP Higher Judicial Service were unconstitutional and invalid
The appointments of persons appointed under the 1953 Rules including the appellant and respondents 3 4 and S were however
validated by the Constitution Twentieth Amendment Act 1964 which inserted Article 233A in the Constitution
l ATR 86 By a notification dated March 31 1969 the Governor confirmed respondents 3 4 and 5 as Civil and Sessions Judges with effect from May 31 1966
May 27 1966 and June 1 1966 respectively
Again by a Notification dated May 31 1969 they were confirmed with effect form the same dates
These Notifications were superseded by Notification dated July 19 1974
The dates of confirmation of the respondents however remained unchanged
This notification was cancelled by Government notification dated August 26 1974
The Government by its order GO No 8707 AI 503 dated June 19 1971 created by conversion of the existing temporary posts22 permanent posts of Civil  Sessions Judges with effect from June 11969 for absorbing the promoted officers who had been continuously officiating as Civil  Sessions Judges for more than three years
Subsequently by its GO 2693VII A Niaya50370
the Government in partial modification of its GO dated June 19 1971 directed that the creation of 22 permanent posts of Civil  Sessions Judges shall have effect from April 1 1966
This Notification shows that all these postscourts continuously existed on temporary basis from different dates ranging between July 22 1949 to August 81962
Consequent upon the creation of 22 permanent posts with effect from April 1 1966 the Governor on March 19 975 issued a Notification in supersession of the earlier ones
Although all the 22 permanent posts created with effect from April 11966 according to the Government Notification were meant for absorption of promotees only three of those posts were given to the three direct recruits respondents 3 4 and S SShri R C Bajpai Rikheshwari Prasad and Behari Ji Das who were shown as confirmed with effect from May 31 1968 May 27 1968 and June 1 1968 respectively the dates on which they completed their two years  probation
Against 12 of those posts 12 promotees were confirmed as District and Sessions Judges with effect from April 1 1966
The appellant was not one of those 12 promotees who were so confirmed although he had been continuously officiating as Civil and Sessions Judge since July 1960 and the direct recruitsRespondents 3 4 and 5 were appointed to that cadre about six years later
The appellant was however shown along with others as confirmed with effect from January 1 1969
The appellant was appointed as officiating District and Sessions Judge under Government Notification dated January 9 1974 with the rider that the seniority would be determined later on
This Notification was cancelled by Notification dated July 17 1974 whereby the 87 appellant was confirmed on the post of District and Sessions Judge with effect from February 1 1973
Respondent 3 4 and 5 were appointed as District and Sessions Judges and confirmed as such by a Government Notification dated January 9 1974
These Notifications were cancelled and replaced by fresh Notifications from time to time
The last Notification Issued by the State Government confirming the appellant and respondents 3 4 and 5 as District and Sessions Judges is of March 19 1975
Under this Notification the appellant was confirmed with effect from February 11973 while respondents 3 4 and 5 were confirmed with effect from July 16 1972 August 8 1972 and August 25 1975 respectively
On July 22 1977 the High Court in exercise of its powers under Article 235 of the Constitution issued a Notification confirming certain officers as District and Sessions Judges in order of seniority from the dates and in the vacancies shown against their names
the appellant was shown at Serial No 38 and respondents 3 4 and 5 at Serial Nos 30 31 and 32 respectively
While the appellant s date of confirmation was mentioned as May 18 1973 respondents 3 4 and 5 were shown as confirmed with effect from August 25
The appellant challenged the validity of all the Notifications issued by the State Government relating to his confirmation as also of respondents 3 4 and 5 on the post of Civil and Sessions Judge as well as on the post of District and Sessions Judge by a writ petition under Article 226 on these grounds 1 That these orders were discriminatory and therefore violative of Articles 14 and 16 of the Constitution and 2 that the Governor had no power to confirm Civil and Session Judges and District Judges as the same power being a part of control  vested exclusively in the High Court under Article 235 3 The appellant also by amending his writ petition impugned the validity of Notification No 670 dated July 22 1977 issued by the High Court during the pendency of the writ petition 4 It was also contended on the authority of this Court in section B Patwardhan vs State of Maharashtra1 that the rule requiring determination of the seniority to be governed by the date of confirmation is Unconstitutional as it made seniority dependent upon the fortuitous circumstances of confirmation and where a cadre consists of both permanent and temporary employees the date of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees
The High Court has however taken the view that Patwardhan s supra is not attracted to the facts of the instant case because in the case of UP Higher Judicial Service the matter stands concluded 1   88 by the decision of this Court in Chandra Mohan s casel wherein it was held that it is open to the competent authority to determine the seniority in accordance with rule 20 sans the second proviso supplemented by any other valid principles or rules
After an elaborate discussion the High Court concluded The Notification dated 17th July 1974 and Notification dated 19th March 1975 issued by the Governor confirming the petitioner and the opposite parties 3 4 and 5 are invalid and ultra vires inasmuch as the power to confirm on the post of District Judge vests in the High Court and not in the Governor
The Notification of the High Court dated 22nd July 1977 however meets the situation and fills up the lacuna to a certain extent
This Notification has been issued by the High Court in exercise of its powers under Article 235 of the Constitution
The said Notification of the High Court also mentions the respective dates from which they stood confirmed
These dates are not founded on proper criteria and it appears that they were not properly fixed
Hence that part of the said Notification of the High Court cannot be sustained
Their dates of confirmation shall have to be redetermined by the High Court
 In the result the High Court partly allowed the writ petition and quashed the aforesaid Notifications dated July 17 1974 and July 22 1977 so far as they relate to the dates of confirmation of the petitioner and the opposite parties 3 4 and 5
A direction was given to the High Court in its administrative side to redetermine the dates of their confirmation as District  Sessions Judges and their inter se seniority in accordance with rule 20 sans the second proviso of the UP Higher Judicial Service Rules 1953 supplemented by any other valid principles or rules
The main contentions raised by Shri R K Garg appearing on be half of the appellant are 1 Rules 20 and 23 of the 1953 Rules which make determination of seniority wholly dependent upon the fortuitous circumstance of confirmation offend Articles 14 and 15 of the Constitution
It is submitted that earlier in Civil Appeal 1703 of 1969 decided on April 19 1976 he was obliged to give up the plea because fundamental rights were then under suspension and the broader protection of Article 14 was not available to him
Reliance has been placed on Patwardhan s case ibid
2 a In the impugned Notifications dates of confirmations have been fixed arbitrarily in a manner which unduly favours the direct recruits respondents 3 4 and 5 and singles out the appellant pro I AIR 1976 SC 1482
89 motee for unfavourable treatment notwithstanding the fact that he was Promoted as Civil and Sessions Judge about 6 years prior to the recruitment of Respondents 3 4 and 5 to the same cadre and had also been promoted to the senior grade of the Service as District and Sessions Judge one year prior to the promotion of these respondents to that grade
The High Court has not properly construed the observation in this Court s decision dated April 19 1976 in CA 1703 of 1969 to the effect that the seniority was to be determined in accordance with rule 20 sans the second proviso of the UP Higher Judicial Service Rules 1953 supplemented by any other valid principles or rules
In that observation the indication was clear that the confirmations were not to be arbitrarily made but in accordance with valid and fair criteria which would ensure that its consequences did not offend Articles 14 and 16
One of these criteria would be the length of continuous service in the cadre of the Higher Judicial Service
Indeed new Rules of 1975 adopt this as the governing criteria for fixation of inter se seniority in the service
According to Mr Garg this criterion based as it was on a principle of fairplay could be validly imported into the truncated Rule 20 of 1953 Rules in accordance with the broad observation of this Court in its decision in CA 1703 of 1969
b In any case the Government had while creating 22 permanent posts with effect from April 1966 by conversion of the existing temporary posts held by promotees into permanent ones as per Notifications GO No 8707 AI 503 and GC
No 2093VII A Niaya 50370 declared it as a matter of policy that all these posts are being created for permanent absorption of promotes who have been continuously working against temporary posts in an officiating capacity for more than three years
Respondents 3 4 and S had not even been appointed on probation to the service on April 1 1966
They entered the service on May 31 1966 May 21 1966 and June 1 1966 while on April 1 1966 or even on the date of respondents  entry into service the appellant had put in about six years  continuous service as officiating Civil and Sessions Judge
Thus both as a matter of declared policy and fair principle the appellant could not be denied confirmation with effect from April 1 1966 against one of those 22 posts and none of the respondents could be confirmed against any of those 22 posts which had been made permanent for the purpose of absorbing promotes who had put in officiating service for a period of more than three years
Stress has been laid on the fact that apart ll from greater length of service the appellant has an excellent unblemished record of service
In the circumstances therefore the confir 7 817 SCI78 90 mation of the appellant with effect from a date later than those assigned to Respondents 3 4 and 5 is unfair arbitrary and discriminatory
As against this Shri Andley Learned Counsel for Respondents 3 4 and 5 submits that the Respondents should be deemed to have been appointed to the service in 1964 when they were selected for appointment to the service by the Select Committee of the High Court and were recommended for appointment to the Government
The Respondents it is submitted would have been appointed to the Service and joined it in 1964 but for the fact that Chander Mohan etc
in the writ proceeding obtained an interim order from the Court restraining the Government from giving effect to their appointments and it was only on the vacation of that stay order in 1966 the respondents could join duty which they did in May and June 1966
The delay in joining the service being not due to any fault on the part of the Respondents for the purpose of confirmation and determination of seniority it would be but fair to take the date of their appointment as the date on which they were selected by the Selection Committee in 1964 for recruitment to the Service
If no stay order issued by the Court had intervened the Respondents would have been entitled to be confirmed on completion of their two years  probation in 1966 Long before a substantive vacancy could become available to the appellant
It is pointed out while these direct recruits were as usual appointed against substantive vacancies on probation the appellant and other promotes like him were appointed against temporary posts on officiating basis only and they promotees could claim confirmation only when substantive vacanciesposts became available to them
It is further argued that the intendment of Rule 8 of the 1953 Rules was that 25 per cent of the vacancies in UP Higher Judicial Service should be filled by direct recruitment and this according to the learned Counsel implies that confirmation of direct recruits and promotes at any given time should also be made in the ratio of 1 3 by rotation
It is urged that when the matter is considered from this angle the en bloc confirmation of 12 promotes with effect from April l 1966 followed by the confirmation of the three direct recruits respondents 3 4 and 5 with effect from May 30 1968 May 27 1968 and June 1968 was neither improper nor arbitrary
Learned Counsel further maintains that equities are wholly on the side of respondents 3 4 and S who are not younger than the appellant and this should also be taken into account as a factor in their favour
The last but luke warm contention of Shri Andley is that it is not clearly borne out by the record that the 22 temporary posts converted 91 into permanent ones with effect from April 1 1966 were created for the purpose of absorbing the promotees only
We do not think it necessary to decide the question with regard to the constitutional validity of Rules 20 and 23 because this appeal can be disposed of on the second ground urged by Shri Garg
Before dealing with that contention it is necessary to have a clear picture of its factual premises
There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960 while Respondents 3 4 and 5 joined the service as Civil and Sessions Judges on probation about six years later in MayJune 1966
We are unable to accept Shri Andley s argument that the date of the Respondents  C entry into service should be assumed as the date in 1964 when the Selection Committee selected them for appointment
There is no warrant for importing such a fiction
The stark fact remains that respondents 3 4 and S joined the service in MayJune 1966
It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about one year prior to the respondents  promotion to that grade
It is further clear from the record vide Paragraph 6 g of the affidavit of Shri Radhika Raman Under Secretary to the Government of Uttar Pradesh Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5 filed in the High Court as also the copies of the Notifications filed by the appellant in this Court that the State Government created by conversion of the existing temporary postscourts 22 permanent posts courts of Civil and Sessions Judges under GO Nos
8707 1 503 dated 19 6 1971 with effect from 1 1 69
Later on by another Government order No 2693VIIA Nyay 50370 dated 3 3 1973 in modification of the earlier notification the creation of the aforesaid 22 permanent posts was given effect from 1 4 1966
By the impugned Government Notification of March 19 1975 against 12 of those 22 posts twelve promoted officers shown at Serial Nos
24 to 35 were confirmed with effect from 1 4 1966
Against the next 3 of those 22 posts respondents 3 4 and 5 were confirmed with effect from 31 5 68 27 5 68 and 1 6 68
Against the remaining seven promoted officers including the appellant were confirmed with effect from January 1 1969
The first proviso to Rule 8 of 1953 Rules which provided for a quota of 25 for direct recruitment and 75 for promotion was specifically declared void by this Court in Chandra Mohan s case decided in 1966
That void Rule being non existent was not available for the purposes of confirmation etc
92 After considering the entire material on record and hearing the Counsel for the parties including Shri Dikshit appearing for the State we are unable to appreciate why the appellant like 12 other promoted officers was not confirmed with effect from April 1 1966 when he was continuously working as officiating Civil and Sessions Judge from July 1960
In the case of promoted officers the main criteria to be considered for their confirmation are i Availability of a substantive vacancypost
ii Suitability for the post
Here in the case of the appellant a substantive post was available to him with effect from April 1 1966 when respondents 3 4 and S had not even been appointed on probation or otherwise to the service
By that date April 1 1966 he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately
There is nothing on record to suggest that by or on April 1 1966 he was not found suitable for confirmation
Why was he then not accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were confirmed with effect from April 1 1966 Shri Dikshit has not been able to satisfy us that in not allocating 1 4 66 to the appellant as the date of his confirmation the Government were acting according to any intelligible differentia or reasonable principle
Nor is any a principle justifying a differential treatment to the appellant in the matter of fixing the date of his confirmation discernible from the impugned Notification dated March 19 1975 itself
We are therefore of opinion that this Government Notification dated March 19 1975 cannot as it stands be sustained and needs reconsideration 
The same comments apply mutatis mutandis to the impugned Notification dated July 22 1977 issued by the High Court
Moreover once it is found that the Notification dated March 19 1975 cannot be sustained the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble
Accordingly we allow this appeal set aside the impugned Notifications dated March 19 1975 and July 22 1977 in so far as they fix the dates of confirmation of the appellant vis a vis Respondents 3 4 93 and 5 both in the junior and senior grade of the UP Higher Judicial Service
The High Court shall consider the matter afresh and refix and readjust in the exercise of its powers under Article 235 of the Constitution the dates of the confirmation of the appellant and the said respondents at first in the grade of Civil and Sessions Judges and then in the grade of District and Sessions Judges in accordance with law
There will be no order as to costs in this Court
PBR Appeal allowed


Summary:
Under the UP Higher Judicial Service Rules 1953 appointments to the posts of Civil and Sessions Judges were made by promotion from the members of the UP Civil Service Judicial Branch and by direct rccruitment
Rule 20 of the Rules dealing with seniority provided that seniority in each of the two classes of posts shall be determined by the date of confirmation in that class of post
Rule 23 provided that a probationer shall be confirmed in his appointment at the end of his period of probation if the Governor was satisfied that he was fit for confirmation
The appellant who was appointed as a Civil Judge in 1955 was promoted as officiating Civil and Sessions Judge in July 1960
Respondents 3 to 5 who were direct recruits to the post of Civil and Sessions Judges joined service In MayJune 1966
For the purpose of absorbing the promoted officers the Government converted 22 temporary posts into permanent posts of Civil and Sessions Judges with effect from April 1 1966
Three out of those posts were given to the three respondents who were direct recruits and they were confirmed in the posts with effect from MayJune 1968
In twelve other posts twelve promotees were confirmed with effect from April 1 1966 but the appellant was not so confirmed though he had been continuously officiating as a Civil and Sessions Judge since July 1960
He was confirmed as Civil and Sessions Judge with effect from January 1 1969
He was eventually confirmed in the post of District and Sessions Judge with effect from February 1 1973
The three respondents were later appointed as District and Sessions Judges
By a Notification dated March 19 1975 they were confirmed in those posts with effect from JulyAugust 1972
The Notification dated July 22 1977 issued by the High Court showed the three respondents at serial Nos 31 and 32 of the list and the appellant at No38 and the dates of confirmation were shown as August 25 1972 in respect of three respondents and March 18 1973 in respect of the appellant
The High Court allowed the appellant s writ petition and quashed the Notifications dated March 19 1975 and July 22 1971 insofar as they related to the dates of confirmation of the appellant and the respondents
The High Court on the administrative side was directed to redetermine the dates of their confirmation as District and Sessions Judges and their inter se seniority in accordance with Rule 20 83 In appeal it was inter alia contended on behalf of the appellant that the 22 permanent posts having been created with effect from 1 4 1966 for permanent absorption of promotees who had been officiating prior to that date four a period of more than three years Respondents 3 to S who were not even in service on that date could not be absorbed against any of those vacancies and the appellant who had put in nearly six years of service in the Cadre on the date when the three respondents were appointed could not be denied confirmation with effect from April 1 1966 that apart from greater length of service the appellant has an excellant unblemished record of service and in the circumstances the confirmation of the appellant with effect from date later than those assigned to Respondents 3 4 and S is unfair arbitrary and discriminatory
Allowing the appeal  HELD The main criteria to be considered for confirmation of officers officiating in the Higher Judicial Service of the State are i Availability of a substantive vacancypost
ii Suitability for the post
92C Here a substantive post of Civil and Sessions Judge was available to the appellant from April 1 1966 when Respondents 3 4 and 5 had not even been appointed to the service in any capacity
By April 1 1966 the appellant had put in service as officiating Civil and Sessions Judge for a period exceeding 5 years and 9 months
There is nothing on record to suggest that by or on April 1 1966 he was not suitable for confirmation as Civil and Sessions Judge or later as District and Sessions Judge when a post in that grade became available to him
In the circumstances the impugned Notification dated March 19 1975 issued by the Government inasmuch as it did not accord to the appellant the same treatment which had been meted out to twelve other promoted officers who were confirmed with effect from April 1 1966 is not based on any intelligible
differentia or reasonable principle and as such cannot be sustained
The same comments apply mutatis mutandis to the impugned Notification dated July 22 1977 issued by the High Court
Once it is found that the Notification dated March 19 1975 cannot be sustained The foundation for fixing the dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble
92D G The entire matter therefore requires reconsideration by the High Court in the exercise of its powers under Article 235 of the Constitution