Case: B.L. Goel  Vs. State of Uttar Pradesh and Ors

posts on officiating basis only, and they (promotees) could claim confirmation only when substantive vacancies/posts 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 U.P. Higher Judicial Service should be filled by direct recruitment, and this, according to the learned Counsel implies that confirmation of direct recruits and promotees 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 promotees with effect from April 1, 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 5 who are not younger than the appellant, and this should also be taken into account as a factor in their favour. 19. The last but lukewarm contention of Shri Andley is that it is not clearly borne out by the record that the 22 temporary posts, converted into permanent ones with effect from April 1, 1966, were created for the purpose of absorbing the promotees only. 20. 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 May/June, 1966. We are unable to accept Shri Andleys argument that the date of the Respondents 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 5 joined the service in May/June, 1966. 21. 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 posts/courts) 22 permanent posts/courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-6-1971 with effect from 1-1-69. Later on, by another Government Order No. 2693/VII/A-Nyay/503/70, 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 Mohans case decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc. 22. 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. 23. In the case of promoted officers, the main criteria to be considered for their confirmation are : (i) Availability of a substantive vacancy/post. (ii) Suitability for the post. 24. 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 5 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. 25. We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration. 26. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. 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.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 May/June, 1966. We are unable to accept Shri Andleys argument that the date of the Respondents 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 5 joined the service in May/June, 1966.21. 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 posts/courts) 22 permanent posts/courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-6-1971 with effect from 1-1-69. Later on, by another Government Order No. 2693/VII/A-Nyay/503/70, 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 Mohans case decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc.22. 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, 1960.23. In the case of promoted officers, the main criteria to be considered for their confirmation are :(i) Availability of a substantive vacancy/post.(ii) Suitability for the post.24. 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 5 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.25. We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration.26. 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.