THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.31528 of 2010 Dated:23.02.2011 Between: K.Venkateswarlu. …Petitioner And High Court of Andhra Pradesh, Rep.by Registrar (Recruitment) Hyderabad. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.31528 of 2010 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The petitioner is a member of the Andhra Pradesh State Judicial Service. As of now he is working as the II Additional District & Sessions Judge (Fast Track Court), Srikakulam. He filed the instant writ petition challenging the communication of the respondent dated 03.12.2010, whereby and whereunder the petitioner’s application for the post of District Judge by promotion through a Limited Departmental Competitive Examination (Accelerated Recruitment by Transfer) of Civil Judges (Senior Division) was rejected on the ground that the petitioner is having four years seven months and eighteen days of service as Senior Civil Judge as on 01.08.2010 i.e., less than five years of qualifying service. The case of the petitioner, in a nutshell, may be noticed. While the petitioner was working as a Junior Civil Judge he was placed high up in the seniority list of the said category. However, when promotions were made in December, 2004, his case was not considered. At that time disciplinary enquiry was pending against him. As many as sixty Junior Civil Judges, statedly junior to the petitioner, were promoted as Senior Civil Judges while not considering the case of the petitioner at all on the ground of pendency of disciplinary enquiry. Be that as it is, by an order in November 2005, the petitioner was exonerated of all the charges. Consequently, by proceedings dated 23.11.2005, he was promoted as Senior Civil Judge. He then made a representation seeking restoration of his seniority. By proceedings dated 26.02.2009 the respondent restored his seniority over and above his juniors who were promoted in December, 2004. In pursuance of the High Court notification dated 10.08.2010, notifying the vacancies in the category of District Judges by promotion by accelerated recruitment by transfer, the petitioner sent an application which was rejected. Be it noted, as per the said notification, a Senior Civil Judge having not less than five years of qualifying service as on 01.08.2010, in the Andhra Pradesh State Judicial Service, is eligible to compete in the competitive examination in accelerated recruitment by transfer. The Registrar (Recruitment) filed a counter affidavit. While making reference to Rule 4(2)(b) and its proviso, of the Andhra Pradesh State Judicial Service Rules, 2007 (the Rules, for brevity), the impugned action is sought to be justified. The Counsel for the petitioner relies on Union of India v Sadhana Khanna[1] in support of his contention that though the petitioner has not actually worked for five years as a Senior Civil Judge, as he was restored seniority with effect from the date when his juniors were promoted as Senior Civil Judges, the notional seniority should also be considered for the purpose of qualifying service under Rule 4(2)(b)(iii) read with the proviso thereto. We are afraid, we cannot accept the submission. Rule 4(2)(b) of the Rules reads as under. b) Appointment to the category of District Judges shall be made: i) By direct recruitment. ii) By transfer strictly on the basis of merit through a limited departmental competitive examination (accelerated recruitment by transfer), and iii) By recruitment by transfer from among the Senior Civil Judges. Provided that 25% of the cadre strength shall be filled up by direct recruitment from among the eligible Advocates on the basis of written and viva voce tests as prescribed by the High Court; 25% of the cadre strength shall be filled up by means of recruitment by transfer on the basis of merit through departmental competitive examination (Accelerated recruitment by transfer) as prescribed by the High Court from among the category of Senior Civil Judges who have put in not less than five years of qualifying service; and 50% of the cadre strength shall be filled up by recruitment transfer from among the category of Senior Civil Judges on the basis of merit-cum-seniority and by conducting a suitability test as prescribed by the High Court in order to ascertain and examine the legal knowledge of the candidates and to assess their continued efficiency with adequate knowledge of case law. 10% of the cadre strength (as directed by the Supreme Court, in Civil Appeal No.1867 of 2006, dated 20.04.2010, 25% is reduced to 10%) shall be filled by means of recruitment by transfer on the basis of merit through departmental competitive examination (Accelerated recruitment by transfer) as prescribed by the High Court from among the category of Senior Civil Judges who have “put in not less than five years of qualifying service”. The question, therefore, is whether the notional service for the purpose of seniority can be treated as qualifying service under Rule 4(2)(b) of the Rules. In R.Prabha Devi v Government of India[2] a similar question was considered by the Supreme Court while testing the vires of Rule 12(2) of the Central Secretariat Service Rules, 1962, which provided that Section Officers with a qualifying service of eight years shall be eligible for being considered for promotion to Grade I posts in the Central Secretariat Service. While rejecting the submission that seniority should also be considered for the purpose of reckoning qualifying service, it was held. …When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Article 14 or 16 of the Constitution. It has been rightly held by the Tribunal: When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience. A similar view was expressed in Union of India v Deo Narain[3], and it was observed. …Even otherwise, in our considered opinion, the two concepts viz. (i) eligibility, and (ii) Seniority are quite distinct, different and independent of each other. A person may be eligible, fit or qualified to be considered for promotion. It does not, however, necessarily mean that he must be treated as having requisite “seniority” for entry in the zone of consideration. Even if he fulfils the first requirement, but does not come within the zone of consideration in the light of his position and placement in “seniority”, and the second condition is not fulfilled, he cannot claim consideration merely on the basis of his eligibility or qualification. It is only at the time when “seniority” cases of other employees similarly placed are considered that his case must also be considered… Reverting to the facts of the case, the petitioner was admittedly promoted as Senior Civil Judge on 23.11.2005 and he actually worked as such from that date alone, though his seniority was restored presumably with effect from December, 2004. The period from December, 2004 to 22.11.2005 cannot be taken for reckoning the qualifying service for the purpose of Rule 4(2)(b) of the Rules. It is nextly contended by the Counsel for the petitioner that the petitioner would be acquiring the qualifying service of five years as on the date of the examination which was initially scheduled on 23.01.2011. We are afraid, this submission cannot be accepted. In Bhupinderpal Singh v State of Punjab[4] the Supreme Court considered the test for determining the cut off date with regard to eligibility for recruitment. It was held. (1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority. The above principles were reiterated and followed subsequently in Jasbir Rani v State of Punjab[5], and Shankar K.Mandal v State of Bihar[6]. For the purpose of the present recruitment, the notification itself required the Senior Civil Judge to have qualifying service of five years as on 01.08.2010. The petitioner indisputably cannot be said to have the qualifying service as on that date. The Writ Petition for the above reasons is accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) _____________________________ (RAMESH RANGANATHAN, J) 23.02.2011 vs [1] (2008) 1 SCC 720 [2] (1988) 2 SCC 233 [3] (2008) 10 SCC 84 [4] (2000) 5 SCC 262 [5] (2002) 1 SCC 124 [6] (2003) 9 SCC 519