Case: Srikant Roy  Vs. State Of Jharkhand

3. The leading Civil Appeal arising out of Special Leave Petition (Civil) No.9883/2009, is directed against the judgment of the Division Bench of the High Court of Jharkhand at Ranchi in W.P.(S) No.4159/2008 dated 29th August 2008. By the said Writ Petition, the writ petitioners (respondents 4 to 11 herein) had challenged the selection process for filling up of 34 posts of Additional District Judges through Limited Competitive Examination scheduled on 31st August 2008; and also 18 posts of Additional District Judges from the promotee officers on the basis of merit-cum-seniority scheduled on 23rd August 2008. The writ petitioners (respondents 4 to 11 herein) were appointed purely against temporary and ex-cadre posts on ad-hoc basis, as Presiding Officer, Fast Track Courts in the rank of Additional District & Sessions Judge in the year 2002. According to the said writ petitioners, the impugned selection process was improper and not in conformity with the mandate of the amended Rules requiring ratio of 50:25:25 - by promotion from amongst the Sub-Judges on the basis of merit-cum-seniority and passing of a suitability test; by promotion (by way of selection) strictly on the basis of merit through a Limited Competitive Examination of Sub-Judges having not less than 5 years service; and by direct recruitment from the Bar on the basis of written test and viva-voce conducted by the High Court, respectively. The said writ petitioners asserted that if the impugned selection process was allowed to be taken forward, it would be in breach of the relevant Recruitment Rules and also infringe the mandate of adhering to the roster as per Rule 8 of the amended Rules. The main contention of the said writ petitioners was that the High Court was erroneously linking the ratio of posts to fill up the vacancies by giving retrospective effect to the amended Rules, which has come into force w.e.f. 20th August 2004. The challenge before the High Court in the writ petition, as has been noted in the opening para 1 of the impugned judgment was limited to the quota assigned for the Limited Competitive Examination from amongst the (Subordinate Judge/Civil Judge (Senior Division) scheduled to be held on 31st August 2008. The High Court in paragraph 4 of the impugned judgment has noted that the challenge is only to the extent of 42 posts of Additional District Judges which had to be filled up by following the roster system in the ratio of 25:25. Those posts were required to be bifurcated equally between the promotees from the rank of Subordinate Judges by conducting Limited Competitive Examination and direct recruits from the Bar in the ratio of 25:25. In paragraph 10 onwards of the impugned judgment, the High Court upheld the plea of the said writ petitioners and issued directions to the High Court to fill up the vacancies, as directed. The relevant portion of the impugned judgment readsHaving heard the counsel for the parties at some length in the light of the explanation in regard to the bifurcation of the posts as per roster system to be followed in pursuance to the Jharkhand Superior Judicial Service Rules, which was amended in view of the directions of the Supreme Court, we are of the view that 50% of the posts having already been filled up by the promotes on the basis of the merit-cum-seniority due to which 41 posts were filled up, the left over 42 posts have to be bifurcated into 25% and 25% meaning thereby 21 posts will have to be assigned to be filled up by promotion from the Subordinate Judges/Civil Judge (Senior Division) on the basis of Limited Competitive Examination and left over 21 posts which constitute 25% of the available posts will have to be filled up by the direct recruits as that is the clear mandate of the Supreme Court in the case referred to hereinbefore in pursuance to which the Jharkhand Superior Judicial Service Rules, was also amended in 2001 and became effective in 2004. In fact, the petitioners have informed this Court that the respondents have not only invited the applications for all the 42 posts to be filled up by the Subordinate Judges on the basis of Limited Competitive Examination, but even the posts that might be available in the year 2009 have also been included in the advertisement, which is clearly not in consonance with the direction of the Supreme Court and is also contrary to the Jharkhand Superior Judicial Service Rules, 2001.11. Hence, this court is left which no option, than to set aside the examination process, which is scheduled to be held on 31.08.2008 and further direct the respondents to bifurcate the left over posts into the ratio of half and half, i.e. 25% and 25% equally and thereafter issued a fresh advertisement for filling up 21 posts by the Subordinate Judges on the basis of Limited Competitive Examination and the rest 21 posts will have to be filled up by direct recruits for which exercise will have to be undertaken in future by the respondents.12. As no other point has been pressed in this writ petition and the only dispute that has been raised is in record to bifurcation of posts contrary to the roster principle, referred hereinbefore, and the same having been found to be correct, the notification issued on the internet for filling up the posts of Additional District Judges is quashed and set aside. Consequently, the process of examination to be held on 31.8.2008 is also set aside. The writ petition, accordingly, is allowed, but without any order as to costs.The appellants, who were working as Subordinate Judges at the relevant time and were otherwise eligible to appear in the Limited Competitive Examination for filling up the notified vacancies by way of promotion, have approached this Court to question the aforesaid decision.5. The cognate Writ Petitions involve overlapping issues. The petitioners in these Writ Petitions, however, participated in the selection process of 2010 commenced on the basis of an advertisement No. 1/2010 for the post of Additional District Judge from the Bar. These petitioners did not succeed in getting appointed, as the first 8 candidates in the merit list exhausted the 8 vacancies notified for the relevant period. The said writ petitioners were, however, placed at serial No.9 onwards in the merit list. According to these petitioners, some more posts were available for direct recruits from the Bar. That contention, essentially, is dependent on the outcome of Civil Appeal arising out of Special Leave Petition (Civil) No.9883/2009 wherein the selection process of 2008 is the subject matter. According to these writ petitioners, the High Court had failed to notify the correct number of vacancies for 2010. The correct number of vacancies in 2010 to be filled up by direct recruitment ought to be 13. Indeed, the writ petitioners have made their own assumption to arrive at this number of vacancies, as is spelt out from the averments in the Writ Petition.6. The Registrar General of the High Court has filed reply affidavits. The stand of the High Court (Administration Side) was that no vacancy for direct recruit from the Bar existed as on 20.04.2008. It is stated that in the year 2008, the actual vacancy as on 30th April, 2008 and anticipated vacancy till 31st March 2009 were notified on the official Website of the High Court. The said Notification readsVacancy as on 30.04.2008Anticipated Vacancy till 31.03.2009By Promotion from Sub-Judges on basis of merit-cum-seniorityPromotion (by way of Selection) through limited competitive examinationBy promotion from Sub-Judges on basis ofIn the event of issuance of notification by the State Government regarding induction of 10 Adhoc A.D.Js. of the Fast Track Courts in the Jharkhand Superior Judicial Service on regular basis, in view of the recommendation of the Court made vide letter Nos.6949/Apptt. Dated 3rd November 2007 and 2819/Apptt. Dated 11.04.2008, the actual vacancies as on 30.04.2009 in the Promotee Quota shall be reduced toinitiation of the impugned selection process for 2008, a Writ Petition No.4159/2008 was filed in the High Court in which directions were issued to the High Court to fill up 21 vacancies out of 42 vacancies by promotion of Subordinate Judges on the basis of Limited Competitive Examination and the rest of 21 vacancies by direct recruitment. The matter was, therefore, referred to the selection committee. In the meantime, however, the Judicial Officers challenged the decision of the High Court by way of present S.L.P. (Civil) No. 9883/2009 in which interim stay of operation of the directions issued by the High Court was granted on 9th April, 2009. The said interim order was later modified on 24th September 2010, in the followingalongwith the batch of T.C.22 of 2001.Since the matter has been pending at the stage of advertisement of 2008, we modify the order passed by the previous Bench dated 9.4.2009 by directing the process, pursuant to the advertisement of 2008, to continue pending the hearing and final disposal of this Special Leave Petition. However, on completion of the exercise, vacancies will not be filled till furtherto the modification of the interim order, the High Court completed the selection process of filling up of the notified vacancies of 2008 by way of promotion. On a further application filed, this Court on 5th August 2011 permitted the High Court to make appointments concerning the said selection process of 2008. The said order readsmodification of our order dated 24th September 2010, the High Court is free to make appointments subject to the result of the special leave petition.The Interlocutory Application is, accordingly,to the liberty given by this Court, the High Court submitted recommendations to the State Government for promotion of 31 Officers of Sub-Judge Cadre as per the advertisement issued in 2008 to fill up the vacancies in terms of Rule 4(b) and 4(c). The High Court submitted another recommendation to the State Government for promotion of 17 more Officers.7. It is then asserted by the High Court that when the selection process of 2008 was commenced and completed, there was no vacancy for direct recruit quota. The affidavit also refers to the fact that 8 vacancies of direct quota were notified in the year 2010 vide High Court memorandum dated 4th November 2010 for the relevant period, which readsvacancies in the Jharkhand Superior Judicial Service accrued during the period from 18.07.2008 till dateBy Promotion from Sub-Judges on basis of merit-cum-seniorityPromotion (by way of Selection) through limited competitive ExaminationBy direct recruitment from BarTotal Vacancies2808 or 0907 or7671/Apptt. Dated Ranchi the 4th November, 2010Copy forwarded to Scientist (D), N.I.C., Jharkhand High Court Ranchi.He is requested to put the aforesaid vacancies in the official website of the Jharkhand High Court,High Court with a view to fill up those vacancies, commenced the process vide advertisement No.01/2010. Pursuant to the said advertisement, the writ petitioners in the connected writ petitions appeared in the preliminary examination held on 29th September 2011 and the main examination held on 27th November 2011 along with other candidates. Only 32 candidates could qualify the main examination, who were called for viva-voce held on 3rd February 2012. Out of those candidates, only 15 candidates including the writ petitioners in the connected writ petitions successfully qualified all the three rounds. However, as per the merit wise rank of successful candidates, the names of the said writ petitioners were placed at lower position. Thus, the first 8 meritorious candidates were recommended for appointment against the vacant posts to be filled by the process of direct recruitment. It is also mentioned in the affidavit that the appointment of the candidates made against the selection process for 2008, the candidates were made aware that their appointment was subject to the final decision of this Court in SLP (Civil) No. 9883/2009.8. It is asserted by the High Court that the writ petitioners in connected writ petitions, who participated in the subsequent selection process cannot get any advantage qua the selection process of 2008. For, they participated in the selection process commenced on the basis of advertisement No.1 of 2010. Similarly, they cannot claim any relief in respect of fresh vacancy which was notified in the year 2012, vide Notification dated 22nd March, 2012. That notification readsHIGH COURT, RANCHI NOTIFICATIONNo. 102/A. The Vacancies of the Jharkhand Superior Judicial Service including the future vacancies till 31.12.2012 are hereby notified in the following manner:-By promotion from Civil Judge (Sr. Division) on the basis of merit-cum-seniority (65%)- under Rule 4(b) of Rules, 2001Promotion (by way of selection) through limited competitive Examination (10%)- under Rule 4(c) of Rules, 2001By direct recruitment from Bar (25%)- under Rule 4(a) of Rules, 200157+7=64Nil5is made clear that appointment over the aforesaid 69 notified vacancies will also be subject to final decision of the Honble Supreme Court in the Special Leave to Appeal (Civil) No. 9883/2009.Also, all the earlier advertised vacancies are hereby recalled and restructured in the above manner.*Note:- The recommendation for filling up of 08 vacancies of Direct Recruit Quota has already been made to the State Government for issuance of necessary Notification vide Letter No. 1959/Apptt. Dated 10.02.2012 and thus the vacancy under this Quota till 31.12.2012 remains 05(five).Dated: 22nd March, 2012By Order,Registrarvacancy position as on 31st December 2012 was revised and duly notified vide Notification dated 19th September 2012, which readsHIGH COURT, RANCHINOTIFICATIONNo.275/A The Vacancies position of the Jharkhand Superior Judicial Service till 31.12.2012 as notified vide Notification No.102/A dated 22nd March 2012 is revised and notified in the following manner:-By promotion from Civil Judge (Sr.Division) on the basis of merit-cum-seniority (65%) – under Rule 4 (b) of rules, 2001Promotion (by way of selection) through limited competitive examination (10%)-under Rule 4(c) of rules, 2001By direct recruitment from Bar (25%)- under Rule 4(a) of rulesis made clear that appointment over the aforesaid notified vacancies will subject to final decision of the Honble Supreme Court in the Special Leave to Appeal (Civil) No.9883/2009.Note: In the event of the issuance of Notification by the State Govt. regarding Promotion of 28 Officers of the rank of Civil Judge (Sr.Division) in the Jharkhand Superior Judicial Service in view of recommendation of the Court as made vide letter no.9593/Apptt. Dated 17th July 2012, the actual vacancy as on 31.12.2012 under this quota [i.e. under Rule 4(b)] shall be reduced to 40.By OrderSd/-Registrar GeneralDated: 19th September,It is stated that the vacancy position as on 31st December 2012 was notified on the basis of the sanctioned strength of 174 at the relevant time. That sanctioned strength was later on increased to 191 on creation of 17 permanent posts of Superior Officers @ 10% of existing strength. In paragraph 20 of the reply affidavit, the vacancy position as calculated on the basis of amended Rules (as amended on 14th December 2011) has been mentioned as follows:Sanctioned strengthBy promotion from Civil Judge(Sr.Div.)on the basis of merit-cum-seniority (65%)-Rule 4(b)Promotion (by way of selection through limited competitive examination (10%)-Rule 4(C)By direct recruitment from Bar (25%)-Rule 4(a)Sanctioned Strength-1911241948Present working strength-1246820(-1*)36Present vacancies56-1*=55 (*excessIt is then stated that pursuant to the decision of this Court in Civil Appeal Nos.6647-6649/2012 (filed by officers posted as Additional District Judges, Fast Track Courts), vide letter dated 20th February 2013 the State Government was requested to create 13 permanent posts to accommodate the 22 appellants in the said Civil Appeals on condition that in the event of non qualifying of any of the appellants in the selection process to be conducted in terms of the direction given by this Court in the said decision, the equal number of such created posts of District Judge will be abolished. After due consideration, the vacancy position of the Jharkhand Superior Judicial Service was notified vide Notification dated 22nd February 2013 which readsCOURT OF JHARKHAND, RANCHINOTIFICATIONNo.45/A. The Vacancies position of the Jharkhand Superior Judicial Service as notified earlier vide Notification No.275/A dated 19th September, 2012 is hereby recalled and further revised till date in the following manner:-By promotion from Civil Judge (Sr.Division)on the basis of merit-cum-seniority (65%)-under Rule 4(b) of rules,2001Promotion (by way of selection) through limited competitive examination (10%)-under Rule 4(c) of Rules, 2001By direct recruitment from Bar (25%)-under Rule 4(a) of rules,is made clear that appointment over the aforesaid notified vacancies will be subject to final decision of the Honble Supreme Court in the Special Leave Petition(Civil) No.9883/2009.Note:- 1* 22 Vacancies for the appellants of Civil Appeal Nos.6647,6648 & 6649 of 2012.2.^03 Vacancies for Direct Recruitment from Bar.3. Taking into account the 13 posts likely to be created from the end of the State Government.By OrderSd/-A.K.ChoudhnaryRegistrar General I/CDated: 22nd February, 2013Memo No.1644/Apptt.Dated Ranchi, the 22nd February, 2013Copy forwarded to the I/c NIC Cell, High Court of Jharkhand, Ranchi for uploading the above notification in the official website of the Jharkhand High Court, Ranchi immediately.Sd/-22.02.2013Registrar Generalncy as onpromotion from Civil Judgeon the basis of merit-cum-seniority (65%)-under Rule 4(b) of rules,y way ofder Rule 4(c) of Rules,direct recruitment from Bar (25%)-under Rule 4(a) ofs mayn other affidavits filed on behalf of the High Court by the Registrar General, the above factual position has been reiterated.

Reasoning:
18. Considering the fact that no vacancy existed in the quota of direct recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11 in the leading appeal), who could participate in the selection process for direct recruit alone and notion through Limited Competitive Examination, had no locus to challenge the selection process of 2008.19. The High Court has overlooked the distinction between "post" and "vacancy". If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the cadre. The right to be considered for appointment can only be claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court.20. Having said this, it must follow that the selection process of 2008 which has been completed pursuant to the liberty given by this Courtrim order is proper and has become final. On this finding, the challenge in the companion Writ Petitions to the selection process commenced for the year 2010 does not merit interference. In that, the vacancy position as on the date of the notification (i.e. 4th November, 2010), for commencing selection process in 2010, were only upto 8 vacancies for appointment by direct recruitment from the Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list candidates. The petitioners were placed at serial No.9 onwards. The first 8 candidates having been appointed, the selection process for 2010 would get exhausted and considered as complete. Merely because the names of the writ petitioners appear in the selection list, they do not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in conformity with the extant Regulations. The selection process in which the writ petitioners participated, was commenced on the basis of the stated notification for 8 notified vacancies and appointments have been made of the meritorious candidates. That selection process must be treated as having come to an end. The fact that the notifications for subsequent selection process (commenced after 2010), issued by the High Court notifying different or higher number of posts for direct recruitment, can be of no avail to the selection process of 2010. That changed position is ascribable to subsequent period on the basis of availability of posts for direct recruits. Not for selection process of 2010. Similarly, the fact that one candidate amongst the appointed eight candidates after due selection subsequently resigned, no right can accrue to the Writ Petitioner(s) on completion of the selection process of 2010. Reliance placed on Rule 21 which requires preparation of select list and to notify the same or to remain valid for one year from the date of being notified, is also inapposite. That is not a Rule mandating preparation of a wait list of the selected candidates. No express provision for retaining the select list as wait list for one year has been brought to our notice. On the other hand, the effect of Rule 22 is that once the names of candidates from the notified select list are recommended to the Government proportionate to the vacancies available for appointment; and recommended candidates are so appointed or on expiry of one year from notifying the select list whichever is earlier, the select list would become ineffective qua the subject selection process. For, that selection process is concluded. None of the writ petitioners can, therefore, succeed in getting the relief claimed by them.