Case: B.S. Yadav and Others Etc Vs. State of Haryana and Others Etc

open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will, therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. Insofar as we see, judicial officers from Serial Nos. 1 to 36 mentioned in Annexure ‘P-I’ to the Punjab writ petition, that is, beginning with Shri J.S Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G.S Kalra and ending with Shri H.L Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.79. Insofar as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B.S Yadav, who is a promotee and Shri N.S Rao, who is a direct recruit. The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the writ petitions in this Court. Rule 12, which is now in force in Haryana, is similar to Rule 12 which was in force in Punjab prior to its amendment on December 31, 1976. Rule 12, as it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970. However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules. In Haryana, therefore, the seniority of the members of the Superior Judicial Service will be determined with reference to the dates of confirmation, without applying the rule of rotation.90. We must express our concern at the manner in which the Rules of the Superior Judicial Service have been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date. The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.91. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a common High Court. Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test. In Punjab, continuous officiation on a post in the service is the criterion of seniority. In Haryana, the date of confirmation is the governing factor. Can the two Governors not come together and take a joint decision applying a uniform test of seniority of their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to Article 309 of the Constitution, we hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the rules since the control over the subordinate courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill-afford and which arises largely because of the lack of coordination between the High Court and the State Governments. It is time enough now to turn a new leaf.

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

Explanation:
1[ds]But the point of the matter is that there has been no unconcerned acquiescence by High Courts and judicial officers in rules framed by the Governors. In Haryana itself, Respondent 3, Shri N.S Rao, challenged the Governors power to override the order of his confirmation which was passed by the High Court. And he won. Whenever there was the semblance of a justification for doing so, either one or the other party motivated by personal interest or out of the broader consideration that the High Courts controlling jurisdiction must remain inviolate has challenged the rules framed by the Governor as being excessive. But there is a good reason why the rules of seniority framed by the Governor have been acquiesced in, all over the country, over all these years. The reason is asnot the High Court because, there is no power in the High Court to pass a law, though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law. There is a distinction between the power to pass a law and the power to make rules, which by law, have the force of law. Besides,which the second part of Article 235 speaks of, is law made by the legislature because, if it were not so, there was no purpose in saying that the High Courts power of control will not be construed as taking away certain rights of certain persons under a law regulating their conditions of service. It could not have been possibly intended to be provided that the High Courts power of control will be subject to the conditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the legislature regulating his conditions of service.42. Article 235 does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers attached to District Courts and the courts subordinate thereto. Whenever it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated so in expressthis particular provision before them, the framers of the Constitution would not have failed to incorporate a similarif it was intended that the High Courts should have the power to make rules regulating the conditions of service of judicial officers attached to District Courts and courts subordinate309 furnishes the answer. It provides that Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to posts in connection with the affairs of the union or of any State. Article 246(3), read with Entry 41 in List II of the Seventh Schedule, confers upon the State legislatures the power to pass laws with respect towhich must include the judicial services of the State. The power of control vested in the High Court by Article 235 is thus expressly, by the terms of that Article itself, made subject to the law which the State legislature may pass for regulating the recruitment and service conditions of judicial officers of the State. The power to pass such a law was evidently not considered by the Constitution-makers as an encroachment on theof the High Court under the first part of Article 235. The control over the District Courts and subordinate courts is vested in the High Court in order to safeguard the independence of the judiciary. It is the High Court, not the executive, which possesses control over the State judiciary. But, what is important to bear in mind is that the Constitution which has taken the greatest care to preserve the independence of the judiciary did not regard the power of the State legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of that independence. The mere power to pass such a law is not violative of the control vested in the High Court over the State judiciary.It is true that the power conferred by Article 309 ishe provisions of theBut it is fallacious for that reason to contend that the Governor cannot frame rules regulating the recruitment and conditions of service of the judicial officers of the State. In the first place, the power of control conferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating conditions of service of its judicial officers. The first part of Article 235 is, as it were, subject to a proviso which carves out an exception from the area covered by it. Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject. A combined reading of Articles 235 and 309 will yield the result that though the control over subordinate courts is vested in the High Court, the appropriate legislature, and until that legislature acts, the Governor of the State, has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State. The power of the legislature or of the Governor thus to legislate is subject to all otherof the Constitution like, for example. Articlesand 16. The question raised before us is primarily one of the location of the power, not of its extent. The second part of Article 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the State. The substantiveincluding its proviso, fixes the location of the power. The opening words of Article 309 limit the amplitude of that power.47. We entertain no doubt that seniority is a condition of service and an important one at that. The control vested in the High Court by the first part of Article 235 is therefore subject to any law regulating seniority as envisaged by the second part of that article. The power to make such law is vested by Article 309 in the legislature, and until it acts, in the Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority, the end product iswithin the meaning of the second part of Article 235. The legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State judicial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to9 of theSuch rules are, of course, subject tos of the Constitution andto the provisions of anywhich the appropriate legislature may pass on the subject.48. As we have said earlier, the mere power to pass a law or to make rules having the force of law regulating seniority does not impinge upon the control vested in the High Court over the District Courts and the courts subordinate thereto by Article 235. Such law or the rules, as the case may be, can provide for general or abstract rules of seniority, leaving it to the High Court to apply them to each individual case as and when the occasion arises. The power to legislate on seniority being subject to all other provisions of the Constitution, cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Articleshort answer to these submissions is that the power conferred by Article 309 is a legislative, not executive, power and that the power is subject to all the provisionsof the Constitution.If despite this position, the Governors rule-making power is likely to create a magnetic field wherein the executive will be the focal point of attraction, it is not the Constitution that is to blame. As is often said, the danger to judicial independence springs more from within than from without.51. Before parting with this point, we would like to refer to a decision of this Court inState of Bihar v. Madan Mohan Prasad= 1976 3 SCR 110  ]. Sarkaria, J., speaking for the court, observed in that case that in determining the seniority of the Bihar Superior Judicial Service the High Court was bound to act in accordance with the rules validly made by the Governor under the proviso to9 of theThe judgment does not discuss the question any further which makes it unnecessary to analyse it in detail.52. For these reasons, we reject the contention that the Governor has no power to make rules of seniority of the District and Sessions Judges.Under the amendment effected in Punjab by the notification dated December 31, 1976, which is given retrospective effect from April 9, 1976,ns a permanentas well as a temporarypost in the Service.Insofar as the rule of seniority is concerned, under the aforesaid amendment the inter se seniority of the members of the Service is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation.It may be recalled that inHigh Court of Punjab &. State ofit was held by this Court that Rule 10, insofar as it confers the power of confirmation on the Governor, is bad because the power of confirmation is a part of the control of the High Court which is vested in it by5 of theTherefore, the High Court alone had the power to confirm a District and Sessions Judge. As a result of that judgment, Respondent 3 came back into the service as a confirmed District and Sessions Judge.This apart, the application of rota system at the stage of confirmation is beset with practical difficulties. For example, if vacancies in the quota of direct recruits cannot be filled for 2 or 3 years for the not uncommon reason that direct recruits are not available, and during that period several vacancies occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the confirmation of such promotees against vacant posts in their quota, until the direct recruits are appointed and become eligible for confirmation on completing the prescribed period of probation, be justified on any reasonable ground? Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation? This, precisely, is what the High Court has done by the impugned notification dated August 25, 1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.In our opinion, therefore, the High Court was not justified in applying the rule of rotation at the time of confirmation of the membersof the Superior Judicial Servicewho were appointed to that Service by promotion and by direct recruitment. In fact, we would like to remind that a special Bench of five learned Judges of theHigh Court of Punjab &had itself held on December 13, 1977 inState ofthat the rule of rota cannot be read into the rule of quota prescribed by8 of the Punjab Superior Judicial ServiceIt was observed by the Special Bench in para 14 of its judgment that a plain reading of Rule 8 shows that the intention of the framers of the rules was only to provide for quota and that no indication at all has been given that the rotational system also had to be followed at the time of confirmation or for the purpose of fixing seniority.73. In coming to this conclusion, the High Court placed reliance on the decisions of this Court in A.K Subraman and N.K Chauhan to which we have already referred. The High Court expressed its conclusion in parajudgment by saying that Rules8 and 12are independent of each other, that the rotational system cannot impliedly be read into the quota rule prescribed by Rule 8 and that the membersof the Superior Judicial Serviceare entitled to claim seniority, strictly in accordance with the provisions of Rule 12. We are unable to understand how, in the discharge of its administrative functions, the High Court could have failed to follow a judgment of its own special Bench consisting of five learned Judges. We are of the opinion that the aforesaid judgment has taken a correct view of the matter on a combined reading of RulesWe are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of 2/3rd, whether or not 1/3rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of 1/3rd, whether or not 2/3rd of the vacancies are occupied by confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits.75. The fairness which Articles 14 and 16 postulate is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in the matter of confirmation, will not, in practice, give any undue advantage to the promotees. The facts and figures supplied by the High Court in Annexureto its counter-affidavit in Writ Petition No. 266 of 1979 show that vacancies in the quota of promotees do not generally become available before the promotees have put in two to five years service as officiating District and Sessions Judges.76. Insofar as the confirmation of Respondents 6, 7 and 8 is concerned, the facts set out by the Registrar of the High Court in his counter-affidavit do not, in our opinion, constitutech as to justify their confirmation long before they had completed the normal period of their probation. It may be recalled that they were confirmed after they had each completed a period of probation of approximately a year and four months. In the absence of exceptional circumstances justifying the reduction of their normal probationary period of two years, we find ourselves unable to uphold the order of the High Court by which these three respondents were confirmed before they were normally due for confirmation. The order is in clear violation of the guarantee of equal opportunity, by which the petitioners are prejudiced, and must for that reason be set aside.77. The High Court will be at liberty now to confirm them with effect from the date or dates on which they completed their normal period of probation, to the satisfaction of the High Court. This is apart from the question as to whether the High Court can exercise the power which was conferred by the proviso to Rule 10(1) on the Governor. The power conferred by the proviso on the Governor is ex facie bad because such a power directly impinges upon the control vested in the High Court by5 of theIf at all any authority could exercise such a power, it is the High Court and not the Governor. We are assuming for the limited purpose of these petitions that the High Court may, in exceptional circumstances, reduce the period of probation of a direct recruit. The rules must now be understood to mean that the High Court and not the Governor has the power of confirmation, that the normal period of probation of direct recruits is two years and that unless there are exceptional circumstances attaching to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily completed his probation of two years. The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure.78. The amended Rule 12, as in force in Punjab, lays down the length of continuous service in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the Governor on December 31, 1976 and was given retrospective effect from April 9, 1976. Since the Governor exercises a legislative power under the proviso to9 of theit is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears to us that the retrospective effect was given to the rules from April 9, 1976 for the mere reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab. The notification issued by the Governor on December 31, 1976, will, therefore, operate on future appointments or promotions made after that date and not on appointments or promotions made before that date. The seniority of all officers appointed or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without applying the rule of rotation. The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. Insofar as we see, judicial officers from Serial Nos. 1 to 36 mentioned in Annexureto the Punjab writ petition, that is, beginning with Shri J.S Chatha and ending with Shri Hardev Singh were appointed or promoted prior to December 31, 1976. Those from Serial No. 37 to Serial No. 43, that is beginning with Shri G.S Kalra and ending with Shri H.L Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated December 31, 1976 was not seriously challenged before us, apart from its retrospectivity. We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby.79. Insofar as the Haryana writ petitions are concerned, they involve a question of seniority really between two officers only, namely, Shri B.S Yadav, who is a promotee and Shri N.S Rao, who is a direct recruit. The other two promotees, namely, petitioners 2 and 3, have been compulsorily retired during the pendency of the writ petitions in this Court. Rule 12, which is now in force in Haryana, is similar to Rule 12 which was in force in Punjab prior to its amendment on Decemberas it originally existed, was amended by the Governor of Haryana, on April 21, 1972 with retrospective effect from April 1, 1970. However, on September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniority as it existed originally in the 1963 Rules. In Haryana, therefore, the seniority of the membersof the Superior Judicial Servicewill be determined with reference to the dates of confirmation, without applying the rule of rotation.90. We must express our concern at the manner in which the Rulesof the Superior Judicial Servicehave been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what date. The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the rules will not be tinkered with too often. It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena, which is to be deprecated.91. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a common High Court. Today we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test. In Punjab, continuous officiation on a post in the service is the criterion of seniority. In Haryana, the date of confirmation is the governing factor. Can the two Governors not come together and take a joint decision applying a uniform test of seniority of their judicial officers who are under one common High Court? And though that is not the requirement of the proviso to9 of thewe hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the rules since the control over the subordinate courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their time and energy in litigation which they can ill-afford and which arises largely because of the lack of coordination between the High Court and the State Governments. It is time enough now to turn a new leaf.