'/ £rfu,= a,- . 5.8.200 IN THE HIGH COURT OF SIKKIM OFZDEF` SHEET Writ Petition (C) PHURBA WAREDI PULGER Versus sTp`TE OF slzcKIM & OrRERs Order with Signature .No. 29 of 2004 Petitioner / Appellant Pespondent Office Note as to action (if any) taken on Order LYLLtF'alus,#. I ^'-I DL^ Heard Miss Sapna Rai, learned counsel for the petitioner. Defects as pointed out by the Stamp Reporter shall be removed within three days', falling which this writ petition shall stand dismissed without further reference to the Bench. R.H.# a:!ei:gfigr- 2. 8..09.2004 The petitioner in this petition und;r Ar~ticl-e 226 6f the Constitution of India seeks to quash the office order no.674/G/DOP dated 24.07.2004 of the Government of Sikkim in the Department of Personnel, Administrative Reforms and Training at annexure 9 temporarily promoting the respondent no.3 as District & Sessions Judge in the cadre of Sikkim Superior Judicial Service and the consequential office order no.118/HCS dated 28.7.2004 at annexure 10 of this Court posting the said respondent no.3`as District & Sessions Judge, Special Division - 11, Gangtok. 1 `~ ¢(`8. --:-.--:--i--i:i=`- A al,MJjA fry rfua4LLeiferfuinifefr 8qoH fry a ial Date Order with Signature Office Note as to of of -` action (if any) 1er Order taken on Order 2. We have heard sbri s. K. Homchoudary, leame . ._-_ `I-+.:-`-`,,-,r'`:' -i=:i - senior counsel for the petitioner. 3. The petitioner is a member of the sikkim Judici Service and at present is in the cadre of Chief Judici Magistrate-cum-Senior Civil Judge. At the outset, it is appropriate to state that no one denies his legal right to invoke the writ jurisdiction of this Court challenging his non-promotion. It is however not appreciated that in a case like alleged non-promotion, when an alternative remedy, equally effective and efficacious was available to him by way of filing a representation to, this Court on its administrative side he should not have resorted to the writ jurisdiction. He seems to be very conscious of his legarright but is no+ mindful to the observations made of the Honble Supreme 'Court in the first All India Judges' Association case that there is a marked distinction between the officers--belonging to judiciary ' and executive and the Court has placed the judicial ofricers at a higher pedestal. The betitioner like an 'ordinary litigant should not' have rushed to this Court by presenting a writ petition to challenge his non- prom6tion which is usual,ly done by some officers belonging to the executive. The Honble Supreme Court in the Orissa Judicial Services Association vs. State of Orissa AIR 1991 SC 382 had dis-approved the conduct of judicial offlcers indulging in I.itigation as "it does not bring credit to the judicial administration". Since he has chosen to pursue the legal remedy, we have nothing more to say. 4. Leaned counsel for the petitioner firstly submitted that petitioner is a grade 11 officer in the cadre of Chief Judicial Magistrate-cum-Senior CivilJudgewhereasrespondentno.3isingradeIllofthe 2 Writ Petition lcI No. 29 of 2004 SerialNo.Of ateof. Order with Signature Office Note as toaction(ifany) Order Order taken on Order I same cadre of Chief Judicial Magistrate-cum-Senio Civil Judge and has not yet completed 5 years' o service therein and therefore is not eligible to b promoted as District LJudge which is in the Sikki Superior Judicial Service. In support of thi submission he has referred to paragraph 2(A) of the writ petition wherein the direction of the Honble Supreme Court in All India Judges' Association case [2002 (4) SCC 247] has been extracted. We repeatedly asked the learned counsel to point out the rule requiring completion of 5 years' of service in the rank of Chief Judicial Magistrate for being considered for promotion to the cadre of District Judge. Learned counsel could not point out any such rule. Admittedly there is no such provision in the Sikkim Superior Judicial Service Rules, 1980 prescribing such requirement. No doubt in the direction of the Honble Supreme Court (supra) there is mention that for recruitment to the cadre of District Judge, there shall be 25% by Promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than 5 vears ciualifving service. We put it on record that till now no rules have been made by the Governor under the proviso to Article 309 of the Constitution of India prescribing the requirement of 5 years' of qualifying servlce for consideration for promotion to the post of District Judge. Rules were drafted in obedience to the direction of the Honble Court and have been sent to the State Government and are awaited for promulgation. Therefore, the position as it stands, the Sikkim Superior Judicial Service Rules, 1980 governs the field. Petition 29 of 2004 SerlaNo.o (a`\ I Datefof Order with Signature Office Note as to Orde r Order action (if any)takenonOrder Rule 7 thereof, which is relevant for our purpose ) / is quoted hereunder:- "7. RECRUITMENT TO SERVICE: (1 Recr.uitment to the service shall be made - (i) bv Promotion from the SikkimLJudicialservice;Or (ii) by direct recruitment. NOTE: Notwithstanding the provisions ofsub-rules1(i)and(ii)personsmaybe appointed against any of the posts inAppendix`A'ondeputationfromthe Judicial Service of other States in India for a period of five years from the commencement of these rules. This periodof5yearsmaybefurtherextendedbytheGovernorinconsultationwiththeHigh Court if the circumstances so warrant. (2) Of the total number of posts specified in Appendix `A' two-thirds shall be manned by promoted Officers and one-third by direct recruits if filled by promotion or direct recruitment as the case may be: Provided that nothing in this sub-rule shall prevent the officiating appointment of a member of the Sikkim Judicial Service on any post which is to be filled up by direct recruitment till a direct recruit is appointed.„ It may be seen from the above rule that an officer belonging to the Sikkim Judicial Service is eligible to be considered for promotion to the cadre of District Judge I.e. the Sikkim Superior Judicial Service. In the State of Sikkim, the echelon of the subordinate judiciary is as follows:- 1. Civil Judge-Gum-Judicial Magistrate; 2. Chief Judicial Magistrate-cum-Senior Civil Judge; 3. District Judge. Promotion from the post of Civil Judge-Gum- Judicial Maristrate to the Dost of Chief Judicial 4 Writ Petition |C| No. 29 of 2004 Order with Signature Office Note as to action (if any) taken on Order Magistrate-cum-Senior Civil Judge is governed by the Sikkim LJudicial Service Rules, 1975 with which we are not concerned. For promotion from the cadre of Chief Judicial Magistrate-cum-Senior Civil Judge to the cadre of District Judge, one has to follow rule 7 of the Sikkim Superior Judicial Service Rules, 1980 (supra) which do not require 5 years' of qualifying service in the rank of Chief LJudicial Magistrate-cum-Senior Civil Judge for being considered for promotion to the cadre of District Judge. Tnere is also no mention in the said rule 7 that for promotion to the post of District Judge, the Chief Judicial Magistrate-cum-Senior Civil Judge should be in the particular grade of scale of pay. Therefore we have no hesitation to hold that all officers in the cadre of Chief LJudicial Magistrate-cum-Senior Civil Judge are eligible to be considered for promotion to the cadre of District Judge. F`or the reasons aforesaid, we do not find any merit in the submission of the petitioner and we outright reject it. 5. It was riext contended by the learned counsel for the petitioner that he is in grade 11 of Chief Judicial Magistrate-oum-Senior Civil Judge whereas respondent no.3 is in grade Ill of Chief LJudicial Magistrate-cum- Senior Civil Judge and he being on higher grade he alone is eligible for promotion. The contention is based on mis-conception of service jurisprudence. It is usually found that in many service rules incremental scale of pay is rixed depending on. the duration of the service rendered by an officer. In other words different grades of scale of pay are provided on the basis of the duration of the service rendered by the officers in the cadre. Merely because in the cadre of Chief Judicial Magistrate-cum- Senior Civil Judge there are 3 fade s of Hrit Petition |q No. 29 of 200L± Off ice Note Order with Signature action (if any) taken on Order scale of pay it does not mean that there is a sub-cadre within the same cadre of Chief Judicial Magistrate- cum-Senior Civil Judge in absence of anything in the rule to the contrary. Moreover if the contention of the petitioner is accepted that a grade in the cadre of Chief LJudicial Magistrate-cum-Senior Civil LJudge should be considered for promotion to the post of District Judge, then one has to go to grade I and then only the case for consideration for promotion would arise. In such a case the petitioner himself being in grade 11 is ineligible for consideration because he has yet to go to grade I. As noted above under the rule governing the field, all Chief Judicial Magistrates-cum-Senior Civil Judge are eligible to be considered for promotion to the cadre of District Judge. Therefore we do not rind any flaw in considering respondent no.3 for promotion to the cadre of District Judge. The petitioner is in the cadre of Chief Judicial Magistrate-Gum-Senior Civil Judge since 17.11.1997 whereas the respondent no.3 is with effect from 20.4.2000 in the same cadre. It is true that the petitioner is senior to the respondent no.3, in the cadre of Chief Judicial Magistrate-cum-Senior Civil Judge but seniority itself is not the criterion for promotion. A District Judge is the principal judicial officer of the .District. Therefore for promoting an ofricer to the cadre of District Judge merit cannot be sacririced. The Full Court after considering the ACRs of the petitioner and respondent no.3 considered the later to be more suitable and accordingly recommended her name to the State Government for being appointed as District Judge. The State Government on consideration of the recommendation has issued the im ned no 6 Writ Petition lcI No. 29 of 2004 Seri Date Order with Signature Office Note as to No. of of action (if any) Order Order taken on Order 6. In course of hearing we also looked at the ACRs ---::.---:-:-::-::lL'-q-\V.,Hl?` of the petitioner and respondent no.3. As Chief LJudicial Magistrate-Gum-Senior Civil Judge the reports of the petitioner are dismal inusmuch as for the year lst April,1998 to 31st March,1999,1st April, 1999 to 31st March, 2000, 1st April, 2000 to 31st March, 2001, 1st April, 2001 to 318t March, 2002 and 1st April, 2002 to 31st March, 2003 he has been rated as an "average officer" by this Court. As Chief Judicial Magistrate-cum-Senior Civil Judge the reports of the respondent no.3 for the year lst April, 2000 to 31st March, 2001, 1st April, 2001 to 31st March, 2002 and lst April, 2002 to 31st March, 2003 show that this Court has rated her as "very good" ofricer. F`rom the above, it can be safely concluded that respondent no.3 is more meritorious than the petitioner. Therefore her promotion to the cadre of Sikkim Superior Judicial Service is unexceptionable. 7. For all the reasons aforesaid, we do not find any merit in this writ petition which is accordingly dismissed with costs assessed at Rs.3,000/- and this amount shall be taken as fund of the Sikkim High Court Bar Association. The District & Sessions Judge (East & North), Gangtok is directed to deduct the above amount from the salary of the petitioner for the month of September, 2004 and deposit the same with the Sikkim High Court Bar Association forthwith. 8. Before parting with the case, it would not be out of place to mention that counsel for the petitioner in course of his submission had been harping that we should consider this matter dis-passionately. It is well-accepted that the Judges w.ho decide matters on administrative side may have to decide those very writ petition ici NO. 29 Of2oo4 a SerialNo.of Dateof Order with Signature Office Note¥ .action(ifany) Order Order taken on Order matters on judicial side. While sitting in judicial capacity a LJudge decides the matter with judicious blend. We state without any hesitation that we heard the matter with an open mind and decided it keeping nothing except the law in view. ( R. K. Ea:ira ) Chiof Jhastice 08.09.2004 N. - ( N. S\rtyarfuarti Singh ) Jfrdge 0&09.2004