Case: DINESH KUMAR GUPTA Vs. THE HONBLE HIGH COURT FOR JUDICATURE OF RAJASTHAN

3. In the State of Rajasthan, the matters relating to Constitution of Courts and Jurisdiction of Courts were dealt with by the Rajasthan Civil Courts Ordinance, 1950 which consolidated and amended the law relating to Civil Courts in the State. Clause 6 of said Ordinance dealt with Classes of Courts; Clause 8 dealt with Power to fix number of District Judges while Clause 10 dealt with the appointment of Additional Judges. In exercise of powers conferred by Article 233 and the Proviso to Article 309 of the Constitution of India, the Governor of Rajasthan made the Rajasthan Higher Judicial Service Rules, 1969 ( 1969 Rules, for short) in consultation with the High Court (The High Court of Judicature for Rajasthan) in respect of the Rajasthan Higher Judicial Service for making appointments, postings and promotions to the cadre of District Judges, and to provide for other ancillary mattersThe expressions Direct Recruitment, District Judge, Member of the Service and Service were defined in Rule 3 as under:-(c) Direct recruitment means recruitment in the matter prescribed by clause (ii) of rule 8;(d) District Judge includes Additional District Judge, Sessions Judge and Additional Sessions Judge;(f) Member of the Service means a person appointed in a substantive capacity to a post in the service;(h) Service means the Rajasthan Higher Judicial Service3.1. Part-II and Part-III of 1969 Rules dealt with topics Cadre and Principles and Procedure of Recruitment and Promotion. Rules 6 to 9 under said Parts-II and III were as under:-6. Strength of the Service(1) The strength of the Service shall, until orders varying the same have been passed under sub-rule (2), be as specified in Schedule I(2) The strength of the service may be varied by the Governor, from time to time, in consultation with the Court(3) Notwithstanding anything contained in sub-rule (1) and (2), the Governor may, in consultation with the Court, hold any appointment to the service in abeyance for such time as he deems fit, without thereby entitling any person to compensation7. Principles and procedure to be followed.- For the purpose of recruitment to the service, the following principles and procedure of recruitment and promotion laid down by the Court shall be followed8. Sources of Recruitment.- Recruitment to the service shall be made –(i) by promotion from amongst the members of the Rajasthan Judicial Service; or(ii) by direct recruitment from the advocates who have practiced in the Court or Courts subordinate thereto for a period of not less than seven years9. Appointment to the service.- (1) Subject to the provisions of these rules, appointment of persons to the service shall be made by the Governor on the recommendation of the Court made from time to time; provided that the number of persons appointed to the service by direct recruitment shall at no time exceed one third of the total strength of the service(2) Subject to the provisions of sub-rule (1), after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. If a suitable person is not available for appointment by direct recruitment, the post may be filled by promotion from amongst the members of the Rajasthan Judicial Service3.2. Rules 22 and 23 in Part-III dealt with Temporary or officiating appointment and Appointments to posts in the selection grade as under:-22. Temporary or officiating appointment.- On the occurrence of temporary or permanent vacancies the Court shall recommend the Governor the names of the candidates from amongst the persons who are eligible for appointment to the service by promotion under clause (i) of rule 8, for temporary or officiating appointment23. Appointments to posts in the selection Grade.- Appointments to the posts in the selection grade of the service shall be made by the Governor in consultation with the Court on the basis of merit3.3. Part IV of 1969 Rules dealt with Seniority, Probation and Confirmation. Rule 24 dealt with issue of Seniority was as under:-24. Seniority.- Subject to the other provisions of these rules, seniority in the service shall be determined by the date of the order of substantive appointment in a permanent vacancy including appointment on probation under rule 25:Provided that a promoted officer who may have been allowed to officiate continuously against a permanent vacancy in the cadre from a date, prior to the date of appointment of a direct recruit, shall, if he is subsequently selected and substantively appointed in the service, take his seniority in the cadre over such direct recruit:Provided further that the seniority of candidates appointed to the service shall in the case of the appointment of more persons than one to the service by an order of the same date, follow the order in which their names have been recommended by the CourtSchedule-I to 1969 Rules dealt with Strength of Service, which was stated to be 89 in the post of District & Sessions Judge and Additional District Sessions Judge, which over a period of time got raised to 1504. However, appointments in excess of the strength indicated in Schedule I to 1969 Rules, were made on various occasions. By Notification dated 31.03.2001 issued under the provisions of the Ordinance and under Rule 6(2) of 1969 Rules, 40 Additional District and Sessions Courts were set up in the State for Fast Track disposal of cases pending before the District Judges. By Notification dated 12.07.2002, 13 more Additional District and Sessions Courts were set up under the aforesaid provisions of the Ordinance and 1969 Rules for Fast Track disposal of cases pending before the District Courts. Further, 30 Additional District and Sessions Courts were again set up on 17.04.2003 in pursuance of aforesaid powers for Fast Track disposal of cases pending before the District Judges. Thus 83 Courts were created between 31.03.2001 and 17.04.2003 which are commonly known as Fast Track Courts and officers from the cadre of Senior Civil Judges were promoted under Rule 22 of 1969 Rules to man these Fast Track CourtsIt may be mentioned that though the decision of this Court in Brij Mohan Lal (2002) 5 SCC 1     had indicated three sources from which the candidates could be appointed to man the Fast Track Courts, in the State of Rajasthan candidates were drawn only from one source namely through ad- hoc/officiating promotions to the persons from the feeder cadre viz. Senior Civil Judges Cadre. There was no appointment of any retired Judge or by way of recruitment from the Bar5. By Order dated 07.05.2003 issued in compliance of directions of this Court in All India Judges Association and others versus Union of India and Others (2002) 4 SCC 247     and in accordance with the recommendation of First National Judicial Pay Commission, 71 posts were acknowledged to be in Selection Scale while 29 posts were found to be in Super Time Scale in the Higher Judicial Service for the year 2002-20036. On 20.10.2003, a Notification was issued by the High Court notifying 19 vacansies for Direct Recruitment to the Higher Judicial Service. Out of these 19 vacancies, 11 were shown as current vacancies while 8 were shown as backlog vacancies. A challenge was raised in this Court by way of Writ Petition (Civil) No.576 of 2003 by the Association submitting inter alia that there were no vacancies for Direct Recruits and as such the Notification dated 20.10.2003 was invalid. It was also submitted that as on the date, 220 officers were functioning in the cadre of District Judges and Additional District Judges7. On 13.12.2004, 22 Judicial Officers from the cadre of Senior Civil Judge were promoted as Additional District and Sessions Judges (Fast Track)8. The matters concerning regular promotion to be granted to the level of District Judge including whether those who were promoted as Additional District and Sessions Judge (Fast Track) under Rule 22 of 1969 Rules were being considered by the High Court. A report of a Committee constituted to consider said issues was submitted on 23.08.2008. The matter was then placed before the Full Court on 29.11.2008 and thereafter the matter stood deferred to 13.02.2009, 31.10.2009 and to 23.03.2010 successively.9. By order dated 11.01.2008, some Judicial Officers, including the petitioners in Writ Petition (Civil) No.464 of 2019, were promoted as Additional District and Sessions Judges on Ad-hoc basis to man the Fast Track Courts. The order stated as under:-On the recommendation of Rajasthan High Court, H.E. the Governor of State of Rajasthan is pleased to appoint/promote the following 37 officers in the cadre of R.H.J.S. as Additional District and Sessioins Judges on purely ad-hoc basis to man the temporary Fast Track Courts9.1 A consequential order was thereafter passed on 11.03.2008 directing transfer/posting of said Judicial Officers in the rank of Additional District and Sessions Judges (Fast Track)9.2 In terms of the decision of Full Court in its Meeting dated 29.11.2008, the period of probation of 34 out of said 37 Judicial Officers appointed by Order dated 11.01.2008 was extended till further orders10. On 07.07.2009, the challenge raised by the Association in Writ Petition (Civil) No.576 of 2003 was decided by this Court vide its decision in Rajasthan Judicial Service Officers Association v. State of Rajasthan and Another(2009) 14 SCC 656 .   It was observed by this Court that the sanctioned strength in terms of 1969 Rules was only 150 and as against 25% posts which could be filled up by Direct Recruitment, 41 Direct Recruits were already working in the Higher Judicial Service. It was, therefore, concluded that there was no substantive vacancy available for Direct Recruits. The petition was allowed and the Notification dated 20.10.2003 was set aside. The relevant observations of this Court were as under:-8. According to the petitioner, the total cadre strength of RHJS is 150 and there are already 41 direct recruits working in RHJS. Since the total cadre strength is 150 and since 25% of the posts were directed by the High Court to be filled in by direct recruitment, there were no vacant posts available for direct recruits since 25% of 150 is 37, while 41 direct recruits were already working in RHJS. The petitioner also submitted that if 19 vacancies should be treated as 25% of the direct recruitment then there must be at least 57 fresh appointments in RHJS by promotion, but that has not been done11. In our opinion, as held by us in Veena Verma case, the cadre strength is only 150 and not 240 because the strength of the service is as per Rule 6(2) of the Rajasthan Higher Judicial Service Rules as mentioned in Schedule I to the Rules. Until and unless the Schedule is amended in accordance with Rule 6(2) the strength of the service cannot be varied, as held by us in Veena Verma case (2009) 14 SCC 734 .   As yet, we are told, no order has been passed under Rule 6(2)12. We have also perused the counter-affidavit filed by the State of Rajasthan and also the rejoinder- affidavit filed in the case. It is stated in Para 3 of the rejoinder-affidavit that the impugned notification is in violation of the stay order dated 28-9-2000 in Special Leave Petition No. 9346 of 1999, staying the operation of the order dated 30-4-1999 in DB (C) Spl. Application No. 410 of 1998. It is stated in Para 6 of the rejoinder-affidavit that there are as on date 220 officers functioning in the cadre of District Judges and Additional District Judges and as such there are no existing vacancies13. In our opinion, this writ petition has to be allowed. In view of our decision in Veena Verma case (2009) 14 SCC 734     it has to be held that under the existing Rule the strength of the service of RHJS is 150 and since there are 41 direct recruits already working, there is no substantive vacancy. Hence the impugned notification is illegal and deserves to be quashed. The writ petition is allowed and the impugned notification is quashed. However, we make it clear that it is open to the State Government in consultation with the High Court to amend Schedule I to the Rules in accordance with Rule 6(2) and thereby vary the strength of the service14. The petitioner has filed this writ petition seeking a direction to the respondents to complete the selection process initiated under Notification No. Estt. (RJS)/118/2003 dated 20-10-2003. As we have quashed the said notification in WP (C) No. 576 of 2003, this writ petition [WP (C) No. 275 of 2007] is dismissed as having become infructuous11. On the same day, a decision was rendered by this Court in High Court of Judicature For Rajasthan v. Veena Verma and another (2009) 14 SCC 734   , which inter alia considered whether Notification dated 21.12.1996 inviting applications for 11 posts in the Higher Judicial Service in the State of Rajasthan by Direct Recruitment was valid. It was observed that 11 posts were not available for Direct Recruitment. While dealing with the challenge, it was observed,33. It may be mentioned that posts can be created dehors the cadre of a service, and these are known as ex cadre posts. The posts created without a specific order under Rule 6(2) are ex cadre posts. Hence in our opinion the temporary or permanent vacancies or posts created beyond the number of posts in Schedule I without a specific order under Rule 6(2) varying Schedule I to the Rules are only ex cadre posts, and can only be filled in by promotees, and not by direct recruitment34. It may be noted that Rule 9(2) uses the words as far as possible. In our opinion, this means that there is no hard-and-fast rule that after every three persons appointed by promotion, the fourth person has to be appointed by direct recruitment. In our opinion, the Division Bench of the High Court has given a wrong interpretation of Rule 9(2) of the Rules by observing:it does not give a licence to the respondents to refuse to appoint every fourth person by direct recruitment on the ground that it was not possible for any other reason than the maintenance of the limit of one-third of the total strength imposed by sub-rule (1) of Rule 9 on direct recruitment.In our opinion this is a wrong view taken by the Division Bench of the High Court as is evident from the words as far as possible in Rule 9(2). These words give a discretion to the authorities, and the Court cannot interfere with this discretion, unless it is palpably arbitrary35. In our opinion, the Division Bench of the High Court erred in law in holding that for the purpose of direct recruitment the temporary or permanent posts created outside the cadre without amending Schedule I were also to be included while calculating the strength of the Service. The Division Bench also erred in holding that whenever posts are created, the strength of the Service is deemed to have been automatically increased although there is no order under Rule 6(2) in this connection amending Schedule I. In our opinion, there has to be a specific order under Rule 6(2) amending Schedule I otherwise it cannot be said that the strength of the cadre has been increased. Hence, in our opinion, the temporary or permanent posts created outside the cadre cannot be taken into consideration for determining the strength of the cadre12. On 18.01.2010, in exercise of the powers conferred by Articles 233 and 234 read with proviso to Article 309 of the Constitution of India, the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court made Rules for regulating recruitment to the posts in, and the conditions and other matters related to the service of persons appointed to the Rajasthan Judicial Service. The Rules are called Rajasthan Judicial Service Rules, 2010 ( 2010 Rules, for short)12.1 The terms, Cadre, Cadre Post, Member of the Service and Substantive appointment are defined in clauses (b), (c), (g) and (l) of Rule 3 as under:(b) Cadre means the cadre of District Judge, Senior Civil Judge and Civil Judge as provided under Rule 5 of Part-II of these Rules;(c) Cadre Post means any post specified in Schedule-I;(g) Member of the Service means a person appointed substantively to a post in the service under the provisions of these Rules; and(l) Substantive appointment means an appointment made under the provisions of these rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation followed by confirmation on completion of the probation period12.2 Part-II of 2010 Rules deals with Cadre and Rule 5 stipulates that on and from the date of commencement of the Rules, the Rajasthan Judicial Service shall stand re-constituted and re-designated into following three cadres:(B) Senior Civil Judge, andRule 6 deals with Strength of the Service and is to the following effect(1) The Strength of the Service in each cadre and number of other posts shall be determined by the Government from time to time, in consultation with the Court and the existing posts in each cadre in the service shall be as specified in Schedule-I(2) The strength of other posts manned by the members of the service shall be as specified in Schedule-II unless any order varying the same is issued under sub-rule(1):Provided that the State Government may, in consultation with the Court, create any permanent or temporary post from time to time as may be considered necessary and may abolish any such post or posts in the like manner without thereby conferring any right on any person for any type of claim12.3. Part-III of 2010 Rules deals with subject General Conditions and Rules 7, 8 and 15 are as under :-7. Determination of vacancies: (1) subject to the provisions of these rules, the Court shall determine and notify the actual number of existing and expected vacancies in each cadre as per the time schedule specified in Schedule-III(2) Where the vacancies in the cadre are to be filled in by a single method, the vacancies so determined shall be filled by that method(3) Where the vacancies in the cadre are to be filled in by more than one method, the apportionment of vacancies determined under sub-rule (1), to each such method shall be done maintaining the prescribed percentage for the particular method taking into account consideration the overall number of posts already filled in:Provided that the apportionment for filling up vacancies in the cadre of District Judge, shall be made in a cyclic order of respective quota of each category, i.e. Promotee on the basis of merit-cum-seniority, Promotee on the basis of Limited Competitive Examination and the Direct Recruitee8. Examination:- For filling up of vacancies in the cadre of District Judge and Civil Judge, examination shall be conducted by the Recruiting Authority as per the time Schedule specified in Schedule III… … …15. Temporary or officiating appointments:- On occurrence of temporary or permanent vacancy, in the cadre of District Judge or the Senior Civil Judge, as the case may be, not taken into consideration at the time of determining the vacancies under Rule 7 and if in the opinion of the Court such vacancy is to be filled in immediately, the Court shall recommend to the Appointing Authority the names of the persons eligible for appointment maximum for a period of one year and such appointment shall not confer any rights upon the person so appointed12.4. Part IV deals with Methods of Recruitment under which Recruitment to the cadre of Civil Judge and Recruitment to the cadre of Senior Civil Judge are dealt with in Rules 16 to 30 of sub-Parts A and B, while Recruitment to the cadre of District Judge is dealt with under sub-Part C. Rule 31 deals with source of recruitment, as under:-31. Source of recruitment: (1) Fifty percent posts in the cadre of District Judge shall be filled in by promotion from amongst Senior Civil Judges on the basis of merit-cum-seniority subject to passing of suitability test as provided under Schedule-IV(2) Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted by the Court(3) Twenty Five percent posts in the cadre of District Judge shall be filled in by direct recruitment from amongst the eligible Advocates on the basis of written examination and interview conducted by the Court(4) For the purpose of proper maintenance and determination of seniority of persons appointed through the aforesaid sources, a roster for filling of vacancies based on quota of vacancies reserved here- in-above, as given in Schedule-VII shall be maintained. This roster shall operate prospectively12.5. Thereafter the relevant subjects are dealt with under three sub- heads named as (I) Promotion, (II) Direct Recruitment and (III) Appointment. Rule 32 dealing with the Recruitment by Promotion is as under:32. Recruitment by promotion:- (1) Fifty percent posts in the Cadre of District Judge shall be filled in by promotion from amongst Senior Civil Judges recommended by the Court, on the basis of merit- cum-seniority, subject to passing of suitability test as provided in Schedule-VIExplanation: Qualifying the eligibility test shall not affect the inter-se-seniority of the officers in the Cadre of Senior Civil Judge(2) The recruitment in the cadre of District Judges under sub-rule (2) of rule 31 shall be made by a Limited Competitive Examination conducted by the Court in accordance with the scheme of the examination prescribed under Schedule-VIII(3) A Senior Civil Judge who has completed actual five years service as on the first day of January preceding the last date fixed for the receipt of the applications shall be eligible for appearing in the Limited Competitive Examination for promotion to the Cadre of District Judge(4) For the purpose of Limited Competitive Examination, applications shall be invited by the Court from all eligible Senior Civil Judges in such manner and in such form as may be specified by the Court(5) Candidates who have obtained minimum 50% marks in the Limited Competitive Examination shall be eligible for interview by a Committee consisting of Chief Justice, Administrative Judge and two other Judges nominated by the Chief Justice. The Committee taking into consideration the performance at examination, the service record and the performance at the interview shall assess the suitability and recommend the names of the offices for promotion12.6 Part-D deals with Probation, Confirmation and Seniority. Sub-heading dealing with Appointment deals with issue of combined Select List as under:42. Combined Select List: The Court shall prepare a combined select list putting the names of candidates in cyclic as provided in Schedule-VII from the lit prepared under sub-rule (1) and (5) of Rules 32 and 41 and send it to the Appointing Authority12.7 The issue of seniority is dealt with by Rule 47 as under:47. Seniority: Subject to the other provisions of these Rules:(1) Seniority in the service in the cadre of Civil Judge shall be determined from the date of the order of substantive appointment to the service:Provided that the seniority of candidates appointed to the service shall, in the case of appointment of more persons than one follow the order in which they have been placed in the list prepared by the Recruiting Authority under Rule 24 of these Rules(2) Inter-se seniority of persons promoted to the Senior Civil Judge cadre in the same year shall be the same as it was in the post held by them at the time of promotion(3) Seniority of persons appointed to the Service in the District Judge cadre by direct recruitment shall be determined from the date of the order of substantive appointment in the cadreProvided that the seniority of direct recruitee to the cadre, in the case of appointment of more persons than one by an order of the same selection, shall follow the order in which they have been placed in the list prepared by the Court under rule 41(4) Inter-se seniority of persons promoted to the District Judge cadre in the same year shall be the same as it was in the post held by them at the time of promotion(5) The seniority of direct recruitee vis-a-vis the promote appointed to the cadre of District Judge shall be determined in the order of their names placed in the combined select list prepared under Rule 42:Provided that the persons promoted under Rule 15 shall not be given seniority over the direct recruitee12.8 Rule 57 repealed 1969 Rules and made provisions for saving certain actions as under:57. Repeal and savings: The Rajasthan Highter Judicial Service Rules, 1969 and the Rajasthan Judicial Service Rules, 1955, as amended from time to time, are hereby repealed:Provided that such repeal shall not affect any order made, action taken, effects and consequences of anything done or suffered there under or any right, privilege, obligation or liability already acquired, accrued or incurred there under, or enquiry, verification, or proceedings in respect thereof made12.9 Schedule I which is referable to Rule 3(c) and Rule 6(1) of the Rules deals with topic Cadre Strength of the Service and Part A deals with District Judge Cadre which enumerates various designations in said cadre aggregating to 223 and earmarks 10% reserve for leave, training, deputation etc.; thus taking the grand total to 245. Parts B and C of this Schedule deal with Senior Civil Judge Cadre and Civil Judge Cadre and set out the strength at 222 and 329 respectively12.10 Schedule II which is referable to Rule 6(2) of 2010 Rules deals with topic Strength of the Service. Part-A thereof enumerates various designations and the appropriate strength for the concerned posts in District Judge Cadre, in which 102 posts are mentioned including 83 Additional District Judges (Fast Tracks). In the same Schedule, Parts B and C deal with Senior Civil Judge Cadre and Civil Judge Cadre respectively and the strength noted against said two parts is 7 and 4 respectively.12.11 Schedule VII which is referable to Rule 31(4) sets out the Roster for filling up vacancies in the District Judge Cadre by direct recruitment and by promotion. First four points in the Roster are as under:3. By promotion-Limited Competitive Examination

Reasoning:
39. As regards question No. (A), the law on the point is well settled and though learned Counsel advanced submissions based on various decisions of this Court and the principles emanating therefrom, the following decisions in the context of ad-hoc appointments as Additional District and Sessions Judges to man Fast Track Courts in the country, are sufficient to address the issueThe decisions in Debabrata Dash (2013) 3 SCC 658   , and V . Venkata Prasad (2016) 11 SCC 656     were in the context where serving Judicial Officers were granted ad-hoc promotions as Fast Track Court Judges, while in C. Yamini (2019) 10 SCALE 834   = 2019(8 ) JT 365 the members of the Bar were appointed as Fast Track Court Judges and these decisions thus completely conclude the issue. As has been held in said decisions, the reckonable date has to be the date when substantive appointment is made and not from the date of the initial ad-hoc appointment or promotion. Question (A) is, therefore, answered in the negative40. As regards Question No.(B), it is relevant to note that the Notification dated 15.04.2010 had invited application for filling up 36 vacancies by Direct Recruitments and 22 vacancies by Promotion through LCE. This was preceded by determination of vacancies through Notification dated 31.03.2010. After the process initiated in terms of said Notification dated 15.04.2010 was cancelled, a fresh determination of the vacancies was undertaken and the Notification dated 31.03.2011 now found vacancies for Direct Recruitments, for Promotion through LCE and for Regular Promotion at 37, 32 and 24 respectively. Thus, the vacancies which became available post the Notification dated 15.04.2010 were also taken into account. The Report dated 15.03.2019 shows that some of the selected candidates in the process pursuant to the Notification dated 31.03.2011 had not even participated in the earlier process of 2010. In the premises, if the submission that the process initiated under the Notification dated 31.03.2011 must be held to be in continuation of the earlier selection of 2010 is accepted, it would amount to conferring undue advantages upon persons who either had not participated in the process of 2010 or who were not even eligible in 2010. The Report dated 15.03.2019, therefore, correctly appreciated the fact situation on record and concluded that it would not be in continuation of the earlier process41. As regards Question No.(C), it must be noted that as on the date when 2010 Rules came into effect, the Additional District and Sessions Judges manning the Fast Track Courts had rendered service in ad-hoc capacity for almost 07 years. The question whether they be granted promotion on Regular Basis was subject matter of consideration of the High Court. The Report of the Committee of Judges given in 2008 had advised that they be granted Regular Promotion and the matter was getting deferred at the level of the Full Court. It was at this stage that 2010 Rules became effective from 18.01.2010. Even thereafter, the Notification dated 31.03.2010 had published the vacancy situation only in respect of Direct Recruitment and Promotion through LCE. It was obviously so, as the issue regarding grant of Regular Promotion on substantive basis to those Fast Track Court Judges was simultaneously under consideration and on 21.04.2010 a formal Order was passed promoting the 47 Judicial Officers on substantive basis to the Cadre of District Judge. The grant of promotion to the 47 Judicial Officers and selection process pursuant to the Notification dated 15.04.2010 were not part of the same process and were completely independent. None of the 47 Judicial Officers had the occasion to compete in the LCE that was undertaken in terms of the Notification dated 15.04.2010. It is possible to say that the last of the 47 Judicial Officers could as well have been the first in the list of successful candidates through LCE and thus could possibly have been entitled to better placement. In any case, the process initiated pursuant to the Notification dated 15.04.2010 was cancelled for administrative reasons and the appointments in respect of process pursuant to the Notification dated 31.03.2011 could be effected only in the year 2013, i.e. more than 03 years after the 47 Judicial Officers were granted substantive appointment to the Cadre of District Judge. Further, if grant of promotion to the 47 Judicial Officers is taken to be the part of the same process, some of the Direct Recruits may not even be having eligibility in the year 2010 and yet may be placed above some of the 47 Judicial Officers. In the circumstances, the assessment made by the High Court in its Report dated 15.03.2019 is without any infirmity and we have no hesitation in concluding that the substantive promotion granted to the 47 Judicial Officers cannot be taken to be part of the same selection process where Direct Recruits and candidates through LCE were appointed to the Cadre of District Judge on 15.07.2013If the substantive appointment of the 47 Judicial Officers to the Cadre of District Judge is separate and distinct from the selection process through which appointment were made after three years on 15.07.2017, there would be no question or occasion to apply the Cyclic Order. It is not the contention of anyone that appointment of the 47 Judicial Officers on the relevant date was either beyond the quota meant for Regular Promotion or that there was any serious infirmity in the process or that any of the candidates was completely ineligible. Since there was a difference of more than 03 years between these two modes of selection, the Report dated 15.03.2019 rightly concluded that the Cyclic Order ought not to get attractedIt is true that the Cyclic Order and the quota for different streams ensure equitable treatment for three sources. However, the application of the Cyclic Order must depend upon the fact situations. It was precisely for this reason that the expression as far as possible has been used in the Rule. Other things being equal, certainly the quotas for different streams and the Cyclic Order must be adhered to. However, if such adherence itself is going to cause incongruous situation and inflict incalculable harm, insistence upon applicability of the Cyclic Order in such cases may not be appropriate41.3 The facts noted in paragraph 5 of the decision in Meghachandra Singh(2019) SCC Online SC 1494 show that the promotees entered the relevant grade in March 2007 whereas the direct recruits were appointed in August and November 2007. While overruling the decision in Parmar (2012) 13 SCC 340     it was also observed in paragraph 40 that in Service Jurisprudence, seniority cannot be claimed where the incumbent is yet to be borne in the cadre41.4 In the premises, the conclusion is inescapable that the candidates selected through LCE and Direct Recruitment vide Order dated 15.07.2013 cannot claim to be clubbed with the 47 Judicial Officers promoted in substantive capacity on 21.04.2010 and cannot claim appropriate placement in accordance with the Cyclic Order. We accordingly answer Question (C) and find that the 47 Judicial Officers were rightly placed en-bloc senior to all the candidates selected through the process initiated pursuant to the Notification dated 31.03.201142. While considering Question (D), it is relevant to notice the emphasis placed by this Court in All India Judges Association(2002) 4 SCC 247     while directing that 25 per cent of the posts in the cadre of the District Judge be filled through LCE. It was stated in paragraph 27 that there should be an incentive amongst relatively junior and other officers to improve and to compete with each other so as to excel and get accelerated promotion. In paragraph 28 the relevant direction again stressed that 25 per cent quota for promotion through LCE be strictly on the basis of meritRule 31(2) of 2010 Rules also uses the expression strictly on the basis of merit while dealing with posts to be filled in through LCE. The merit is to be assessed in terms of the scheme laid down in the relevant Schedule. After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, medical fitness etcHowever, placing reliance on Rule 47(4), the Committee in its Report dated 15.03.2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotionIf the list is to be drawn up according to merit, it is possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotees through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background. Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to passing the LCEThe direction issued in All India Judges Association(2002) 4 SCC 247     to afford an incentive to meritorious candidates regardless of their seniority would not thus be carried out. The general principle appearing in Rule 47(4) must, therefore, give way to the special dispensation in Rule 31(2) of 2010 RulesIn our view, the High Court in its Report dated 15.03.2019 completely failed to appreciate the true character of LCE and reservation of certain quota for that categoryWe, therefore, accept the submissions made by the learned Advocate for the petitioners in Writ Petition (Civil) No.498 of 2018 and Diary No.13252 of 2019 and while answering Question (D) declare that the inter se placement of the candidates selected through LCE must be based on merit and not on the basis of the seniority in the erstwhile cadre43. We now deal with the submissions advanced in Writ Petition (Civil) Nos.464 of 2019 and 899 of 2019 and other similar mattersIt is true that as on the date when 2010 Rules came into effect, there were 83 Fast Track Courts functioning in the State and appropriate mention to that effect was made in Part A of Schedule II to 2010 Rules. It is also correct to say that the ad-hoc promotions granted to the concerned Judicial Officers were under 1969 Rules. But such promotions were on ad-hoc basis to man the Fast Track Courts and the law on the point is now well settled that the service rendered by such Judicial Officers as Fast Track Court Judges on ad-hoc basis cannot be taken into account while reckoning seniority after such Judicial Officers were granted promotion on substantive basis and that their seniority has to be reckoned only from the date of their substantive appointment to the cadre of District Judge. Said 1969 Rules do not in any way confer any right which would be inconsistent with the law so laid down by this CourtThe further submission that four Judicial Officers out of the 47 Judicial Officers were also appointed on the same day along with the petitioners in Writ Petition (Civil) No.464 of 2019 also has no merit. The grant of promotion on substantive basis to said four Judicial Officers does not by itself entitle said petitioners to any similar treatment. The issue of grant of promotion on substantive basis may depend upon various issues including suitability of the concerned candidate and availability of posts. The record also shows that after grant of promotion on substantive basis to the 47 Judicial Officers, there were no vacancies for Regular Promotion which is why the selection process undertaken in the year 2010 did not earmark any vacancies for Regular Promotions and it was only in the year 2011, when adequate vacancies for said category became available, that the Notification dated 31.03.2011 contemplated filling up of certain vacancies by Regulation PromotionThe petitioners in Writ Petition (Civil) No.464 of 2019 participated in the process initiated pursuant to said Notification dated 31.03.2011. Some of them also appeared in LCE and availed of the opportunity to stake their claim. Their regular promotions to the Cadre of District Judge must, therefore, be taken only as a result of selection process initiated in terms of the Notification dated 31.03.2011 which culminated in the Order dated 15.07.2013. In the circumstances, their substantive appointment to said cadre has to be reckoned from 15.07.2013 and not with any anterior effectOnce the Regular Promotion was part of the same process along with other streams, namely, through Direct Recruitment and LCE, the Cyclic Order had to be applied and said petitioners cannot be given en- bloc placement above the candidates selected through Direct Recruitment and LCE in the same process of selectionThe petitioners in Writ Petition (Civil) No.899 of 2019 and other connected matters came to be appointed on ad-hoc basis to man the Fast Track Courts after 2010 Rules came into effect. Even if their services were continued after abolition of Fast Track Courts, that by itself would not confer any right on them. They came to be substantively promoted to the Cadre of District Judge only vide Order dated 05.02.2016.