Case: Anand Kumar Tiwari &amp; Ors Vs. High Court of Madhya Pradesh &amp; Ors

Ashok Kumar Sharma, learned Senior Counsel relied upon the judgment of this Court in All India Judges Association (supra) and an order passed at a later date directing the High Courts to amend the seniority Rule by including the roster system for determining the inter-se seniority of District Judges. The delay that occurred in the amendment of Rules cannot be detrimental to the interest of the directly recruited District Judges, and, therefore, according to the Petitioners, the seniority of District Judges has to be re-determined on the basis of roster by retrospective effect being given to the 2017 Rules. 8. On the other hand, Mr. Ravindra Shrivastava learned Senior Counsel appearing for the High Court of Madhya Pradesh submitted that the Full Court which met on several occasions after the judgment of this Court in All India Judges Association (supra) deferred the amendment to the seniority rule in view of the pendency of SLP (C) No.24437 of 2008 before this Court relating to the inter-se seniority of District Judges. Ultimately, the High Court has taken a decision in the year 2018 to amend the rule of seniority by introducing the roster as the basis for determining inter-se seniority. He asserted that the 2017 Rules are prospective and the representations preferred by the direct recruits for the benefit of roster system from a prior date were rejected by the Administrative Committee of the High Court of Madhya Pradesh. 9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shuklas case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on 14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges Association (supra) case. 10. Dr. Harshvir Pratap Sharma, learned Senior Counsel submitted that the Petitioners were correctly shown above the District Judges promoted through LCE till 2013. He argued that the representations preferred by promotee District Judges through LCE ought not to have been accepted by the High Court to unsettle the seniority of direct recruits. He further submitted that the decision of the Special Committee is flawed as the date of appointment was taken to be the criteria for fixing inter-se seniority by resorting to Rule 12 (1) (e) of the Madhya Pradesh Civil Services (General Condition of Service) Rules, 1961 (for short, the 1961 Rules), which is not applicable for determining the seniority of the District Judges. Therefore, the decision taken by the Special Committee and approved by the Full Court of the Madhya Pradesh High Court is unsustainable. 11. It was contended on behalf of the High Court that there is no provision in the 1994 Rules by which inter-se seniority of promotees and directly recruited District Judges could be determined. Therefore, the High Court followed the principles of the 1961 Rules for determining the same. Moreover, in the absence of any rule for determination of inter-se seniority continuous officiation is a well-accepted principle. After carefully examining the recommendations made by the Special Committee which was approved by the Administrative Committee and the Full Court of the Madhya Pradesh High Court, we are in agreement with the submission made on behalf of the High Court that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority. In addition, there is no error committed by the High Court in adopting the principle of Rule 12 (1) of the 1961 Rules. 12. On 19.07.2014, the Full Court of the Madhya Pradesh High Court requested the Special Committee to examine the dispute of inter-se seniority of direct recruits and promotees through LCE in light of Rule 11 of 1994 Rules and Rule 12 of 1961 Rules. After giving an opportunity to all stakeholders, the Special Committee resolved to follow the 1961 Rules according to which the relative seniority of direct recruits and promotees was determined according to the date of appointment/ promotion order. Taking note of the absence of any provision for determining inter-se seniority of direct recruits and promotees, the Special Committee suggested amendment to the Rules. Realising that the principle of continuous officiation is well settled, especially where inter-se seniority is not dealt with in the Rules, the Full Court of the High Court correctly approved the resolution of the Special Committee. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster. 13. As we have answered the main issues against the Petitioners, it is not necessary to deal with the other submissions made on their behalf. Mr. Puneet Jain, learned counsel for Respondent No. 11 submitted that the service rendered by Respondent No.11 in the Fast-Track Court should be counted while computing his seniority. Respondent No. 11 is at liberty to pursue his remedies as this Court is not concerned with the said issue in these Writ Petitions.

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

Explanation:
0[ds]9. The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges Association (supra) on the ground of pendency of SLP before this Court is not justified. The subject matter of the decision of the High Court of Madhya Pradesh in Y.D. Shuklas case is the validity of proviso to Rule 5 (1) (b) of the 1994 Rules, according to which recruitment to the post of District Judges shall be made on the basis of vacancies available on the attainment of required percentage. The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case. Moreover, the 2017 Rules were made during the pendency of the SLP which was dismissed later on 14.08.2018. However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges Association (supra) case.After carefully examining the recommendations made by the Special Committee which was approved by the Administrative Committee and the Full Court of the Madhya Pradesh High Court, we are in agreement with the submission made on behalf of the High Court that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority. In addition, there is no error committed by the High Court in adopting the principle of Rule 12 (1) of the 1961 Rules.12. On 19.07.2014, the Full Court of the Madhya Pradesh High Court requested the Special Committee to examine the dispute of inter-se seniority of direct recruits and promotees through LCE in light of Rule 11 of 1994 Rules and Rule 12 of 1961 Rules. After giving an opportunity to all stakeholders, the Special Committee resolved to follow the 1961 Rules according to which the relative seniority of direct recruits and promotees was determined according to the date of appointment/ promotion order. Taking note of the absence of any provision for determining inter-se seniority of direct recruits and promotees, the Special Committee suggested amendment to the Rules. Realising that the principle of continuous officiation is well settled, especially where inter-se seniority is not dealt with in the Rules, the Full Court of the High Court correctly approved the resolution of the Special Committee. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster.13. As we have answered the main issues against the Petitioners, it is not necessary to deal with the other submissions made on their behalf.Mr. Puneet Jain, learned counsel for Respondent No. 11 submitted that the service rendered by Respondent No.11 in the Fast-Track Court should be counted while computing his seniority. Respondent No. 11 is at liberty to pursue his remedies as this Court is not concerned with the said issue in these Writ Petitions.