DINESH KUMAR GUPTA AND OTHERS versus HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS
[2020] 10 S.C.R. 497, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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DINESH KUMAR GUPTA AND OTHERS
v.
HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS
(Writ Petition (Civil) No. 936 of 2018)
APRIL 29, 2020
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Rajasthan Judicial Service Rules, 2010 – rr.3, 5-8, 15-32,
42, 47, 57; Schedule I, II, VII – Effect of 2010 Rules – Cadre of
District Judges in State of Rajasthan – Promotees, Direct Recruits
and candidates selected through Limited Competitive Examination
(LCE) – Appointments and seniority – Objection to – Report
dtd.15.03.19 by five judge Committee of High Court – Held: Judicial
officers promoted on ad-hoc basis as Additional District and
Sessions Judges to man Fast Track Courts in the State and
substantively appointed to the Cadre of District Judge are entitled
to seniority from the date when substantive appointment is made
and not from the date of initial ad-hoc appointment or promotion –
Further, selection process initiated under Notification dated
31.03.2011 is not in continuation of the earlier selection of 2010 –
Report dated 15.03.2019 correctly concluded the same – Candidates
selected through LCE and Direct Recruitment vide Order dated
15.07.2013 cannot be clubbed with 47 Judicial Officers manning
Fast Track Courts who were promoted to the Cadre of District Judge
in substantive capacity on 21.04.2010 and cannot be placed in
accordance with Cyclic Order provided in Schedule VII – The 47
Judicial Officers were rightly placed en-bloc senior to all the
candidates selected
pursuant to Notification dtd. 31.03.2011 – Inter
se placement of candidates selected through LCE be based on merit
and not on seniority in the erstwhile cadre – Seniority list issued in
terms of Report dtd.15.03.2019 stands modified only to the said
extent – Rajasthan Higher Judicial Service Rules, 1969 – rr.3, 6-9,
22-24; Schedule I – Rajasthan Civil Courts Ordinance, 1950 –
Constitution of India – Arts.233, 234, 309 – Service Law.
Service Law – Rajasthan Higher Judicial Service – Judicial
Officers granted ad-hoc promotions u/1969 Rules to man Fast Track
Courts – Service rendered if to be considered for seniority – Held:
[2020] 10 S.C.R. 497
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Service rendered by such Judicial Officers as Fast Track Court
Judges on ad-hoc basis cannot be taken into account while
reckoning seniority after they were granted promotion on substantive
basis – Rajasthan Higher Judicial Service Rules, 1969.
Disposing of the writ petitions, the Court
HELD: 1.1  Following questions arise for consideration:-
(A) Whether the judicial officers promoted on ad-hoc basis
as Additional District and Sessions Judges to man the Fast Track
Courts in the State and who were substantively appointed to the
Cadre of the District Judge, are entitled to seniority from the
date of their initial ad-hoc promotion?
(B) Whether the selection process initiated in terms of the
Notification dated 31.03.2011 can be said to be in continuation of
the process initiated under Notification dated 15.04.2010?
(C) Whether the substantive promotion granted to the 47
Judicial Officers must be taken to be part of the same selection
process pursuant to the Notification dated 31.03.2011 and whether
the 47 Judicial Officers could be placed en-bloc senior to the
candidates selected in said selection process initiated pursuant
to the Notification dated 31.03.2011, without applying the Cyclic
Order in terms of Rajasthan Judicial Service Rules, 2010?
(D) Whether the inter se placement of candidates selected
to the Cadre of District Judge in the State through Limited
Competitive Examination, in the seniority list must be based
on
their merit in said examination or should it be based on their
initial seniority in the erstwhile cadre?
(E) Whether the Report dated 15.03.2019 and the
consequential Final Seniority List, otherwise calls for any
modification or correction? [Para 38][554-E-H; 555-A-B]
1.2 The decisions in Debabrata Dash, and V. Venkata Prasad
were in the context where serving Judicial Officers were granted
ad-hoc promotions as Fast Track Court Judges, while in C. Yamin
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
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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 negative. [Para 39]
Debabrata Dash and Another v. Jatindra Prasad Das
and Others (2013) 3 SCC 658 : [2013] 2 SCR 331; V.
Venkata Prasad and Others v. High Court of A.P. and
Other (2016) 11 SCC 656 : [2016] 3 SCR 834; Kum C.
Yamini v. The State of Andhra Pradesh (2019) 10
SCALE 834 : [2019] 10 SCR 595 – relied on.
1.3 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 process. [Para 40][562-D-G]
1.4  As regards Question No.(C), it must be noted that as
on the date when 2010 Rules (Rule 57 thereof repealed 1969
Rules and made provisions for saving certain actions) came into
effect, the Additional District and Sessions Judges manning the
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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. 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
15.07.2013. If the substantive appointment of the 47 Judicial
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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 (provided in Schedule VII to
2010 Rules). 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 attracted. It 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 appropriate. 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. The 47 Judicial
Officers were rightly placed en-bloc senior to all  the candidates
selected  through  the  process   initiated   pursuant to the
Notification dated 31.03.2011. Writ Petition (Civil) Nos.936 of
2018 and 967 are, therefore, dismissed. [Paras 1, 41, 41.4][562-
H; 563-A-H; 564-A-D; 574-F-G]
State of M.P. v. Narmada Bachao Andolan and Another
(2011) 7 SCC 639 : [2011] 6 SCR 443 – relied on.
1.5 While considering Question (D), it is relevant to notice
the emphasis placed by this Court in All India Judges Association
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
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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 merit.” Rule
31(2) of 2010 Rules (Rule 31 deals with source of recruitment)
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 etc. However, placing reliance on Rule 47(4) (the
issue of seniority is dealt with by Rule 47), 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
promotion. If 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 LCE. The direction issued in All India Judges
Association 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 Rules. 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 category. The Court, therefore, accepts the
submissions made for the petitioners in Writ Petition (Civil)
No.498 of 2018 and Diary No.13252 of 2019 and while answering
Question (D) it is declared that the inter se placement of the
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candidates selected through LCE must be based on merit and
not on the basis of the seniority in the erstwhile cadre. Said Writ
Petitions are allowed to that extent. [Paras 42][574-H; 575-A-H;
576-A]
All India Judges Association v. Union of India and
Others (2002) 4 SCC 247 : [2002] 2 SCR 712 – relied
on.
1.6 It 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 Court. The 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 Promotion. The petitioners in
Writ Petition (Civil) No.464 of 2019 participated in the process
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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 effect.
Once 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 selection.
Therefore, there is no merit in Writ Petition (Civil) No. 464 of
2019 and said Writ Petition is dismissed. The 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.  For the reasons stated hereinabove, their entitlement
on substantive basis has to be reckoned
only from 05.02.2016
and not from any earlier date. Writ Petition (Civil) No.899 of 2019
and other connected matters are, therefore, dismissed. Thus,
while answering Question (E), it is concluded that the Report
dated 15.03.2019 does not call for any modification, except to
the extent dealt with in answer to Question (D). [Para 43][576-
B-H; 577-A-E]
1.7 The seniority list issued in terms of Report dated
15.03.2019 shall stand modified only to the extent that appropriate
placement to the candidates selected through LCE be given on
the basis of their merit in the examination and not on the basis of
their seniority in the erstwhile cadre. Except to the said extent,
the Report dated 15.03.2019 does not call for any modification or
clarification. [Para 44][577-G-H; 578-A]
All India Judges’ Association v. Union of India and
others (1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206;
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All India Judges’ Association and others v. Union of
India and others (1993) 4 SCC 288 : [1993] 1 Suppl.
SCR 749; All India Judges Association and Others v.
Union of India and others (2002) 4 SCC 274; Brij
Mohan Lal v. Union of India and others (2002) 5 SCC
1 : [2002] 3 SCR 810; Malik Mazhar Sultan and
another v. U.P. Public Service Commission and others
(2006) 9 SCC 507 : [2006] 3 SCR 689; Malik Mazhar
Sultan and another v. U.P. Public Service Commission
and others (2008) 17 SCC 703; All India Judges’
Association v. Union of India and others (2010) 15 SCC
170; Rajasthan Judicial Service Officers’ Association
v. State of Rajasthan and Another (2009) 14 SCC 656:
[2009] 10 SCR 814; High Court of Judicature For
Rajasthan v. Veena Verma and another (2009) 14 SCC
734 : [2009] 10 SCR 795; Brij Mohan Lal v. Union of
India and Others (2012) 6 SCC 502 : [2012] 5 SCR
305; Union of India and Others v. N. R. Parmar and
Others (2012) 13 SCC 340 : [2012] 13 SCR 555; Direct
Recruit Class II Engg. Officers’ Assn. v. State of
Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900;
Rudra Kumar Sain & Ors. v. Union of India & Ors.
(2008) 8 SCC 25; Hon’ble Punjab and Haryana High
Court v. State of Punjab and others (2019) 12 SCC
496 : [2018] 13 SCR 91; K. Meghachandra Singh and
Ors. v. Ningam Siro and Others (2019) SCC Online SC
1494 : [2019] 16 SCR 651 – referred to.
Case law Reference
[2002] 2 SCR 712
relied on
Para 1
[1991] 2 Suppl. SCR 206
referred to
Para 2.1
[1993] 1 Suppl.
SCR 749
referred to
Para 2.1
(2002) 4 SCC 274
referred to
Para 2.1
[2002] 3 SCR 810
referred to
Para 2.3
[2006] 3 SCR 689
referred to
Para 2.4
(2008) 17 SCC 703
referred to
Para 2.5
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(2010) 5 SCC 170
referred to
Para 2.6
[2009] 10 SCR 814
referred to
Para 10
[2009] 10 SCR 795
referred to
Para 11
[2012] 5 SCR 305
referred to
Para 21
[2013] 2 SCR 331
relied on
Para 31
[2016] 3 SCR 834
relied on
Para 31
[2019] 10 SCR 595
relied on
Para 31
[2012] 13 SCR 555
referred to
Para 31
[1990] 2 SCR 900
referred to
Para 39
(2008) 8 SCC 25
referred to
Para 39
[2011] 6 SCR 443
relied on
Para 41
[2018] 13 SCR 91
referred to
Para 41.1
[2019] 16 SCR 651
referred to
Para 41.2
CIVIL ORIGINAL JURISDICTION: Writ Petiton (Civil) No. 936
of 2018.
Under Article 32 of the Consitution of India
With
W.P. (C) No. 967/2018, 1471/2018, 498/2019, 464/2019, 899/2019,
897/2019, 895/2019, 1008/2019 and Diary No. 13252/2019.
Vijay Hansaria, Sanjay R. Hegde, V.K. Shukla, P.S. Patwalia,
Nidhesh Gupta, Ms. Vibha Datta Makhija, Dr. Manish Singhvi,
R. Balasubramanian, Sr. Advs., Avnish Pandey, Ms. Sneha Kalita, Gopal
Jha, Abhinav Mukerji, Siddharth Garg, Ms. Bihu Sharma, Purnima
Krishna, Samarth Khanna, Rishabh Sancheti, Ms. Padma Priya, Anchit
Bhandari, Mohd. Shahrukh Ali, For Mr. K. Paari Vendhan, John Mathew,
Ms. Vriti Gujral, Ms.Pallavi Singh, Ms. Jasneet Kaur, Rishi Matoliya,
H.D. Thanvi, Praveen Gaur, Ms.Priyanshi Aggarwal, Ms. Aadya Mishra,
D.K. Devesh, Satyendra Kumar, Shailja Nanda Mishra, Harsha Vinoy,
Arpit Parkash, Milind Kumar, Annam D. N. Rao, A. Venkatesh, Rahul
Sharma, Ms. Sangeetha M.R., Ms. Ananya Khandelwal, Ms. Avni
Sharma, Ms. Prerna Singh, Guntur Pramod Kumar, Ms. Supriya Juneja,
Ms. Mridula Ray Bhardwaj, Ms. Sriparna Chatterjee, Ms. Sakshi Kakkar,
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S.S. Dahiya, R. C. Kaushik, Ms. Sangeeta Gaur, K. Parameshwar, M.V.
Mukunda, Avadh Bihari Kaushik, Devashish Maharishi, Adarsh Upadhyay,
Dr. Harsh V. Surana, Rohit K. Singh, Karthik S.D., Sachin Sharma,
Sunil Samdaria, Sanchit Garga, P.D. Sharma, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These Writ Petitions broadly fall in following three categories:-
A]  Writ Petition (Civil) No. 936 of 2018 filed by four petitioners,
prays for appropriate directions that after the promulgation of
Rajasthan Judicial Service Rules, 2010 (“2010 Rules”, for short),
all appointments ought to be in conformity with 2010 Rules and
allocation of seniority must be in accordance with the Cyclic Order
provided in Schedule VII to 2010 Rules. In terms of 2010 Rules,
posts in the cadre of District Judges in the Higher Judicial Service
in State of Rajasthan were required to be filled up in accordance
with quota of 50% for Promotees, 25% for Direct Recruits and
25% by way of Limited Competitive Examination (“LCE”, for
short) in keeping with law laid down by this Court in All India
Judges Association vs. Union of India and Others1. This Writ
Petition filed by candidates who were successful in LCE prays
that they be allocated seniority in terms of the Cyclic Order in
Schedule VII. In this group fall Writ Petition (Civil) No.498 of
2019*and Writ Petition Diary No.13252 of 2019  which pray that
the inter se seniority between
candidates who were successful in
LCE must be determined on the basis of their merit in LCE and
not by their erstwhile seniority.
B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37
Direct Recruits challenging the Provisional Seniority List dated
16.08.2017 with regard to the cadre of District Judges in the Higher
Judicial Service in the State, on the ground that the appointments
made after 2010 Rules had come into effect, ought to be in
accordance with the Cyclic Order; and the inter se seniority and
placement of Direct Recruits and Promotees, promoted after 2010
1(2002) 4 SCC 247
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Rules had come into effect must be in accordance with 2010
Rules.
C] Writ Petition (Civil) No.1471 of 2018 has been filed by
Rajasthan Judicial Service Officers Association (“the Association”,
for short) seeking benefit of ad-hoc/officiating service put in by
Promotees who were promoted on ad-hoc basis as Fast Track
Court Judges and also prays for re-determination of vacancies of
Direct Recruits submitting that the vacancies earmarked for Direct
Recruits were in excess of their quota. Writ Petition (C) Nos.464
of 2019, 895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018
are filed by Judicial Officers seeking similar benefit in respect of
ad-hoc/officiating service as Fast Track Court Judges in the State
and pray that such candidates be placed above the Direct Recruits
in the cadre of District Judges in the State.
2. Since the issues involved in all these matters pertain to
appointments to and allocation of seniority in respect of, the cadre of
District Judges in the State of Rajasthan and regarding effect of 2010
Rules, the petitions were heard together.  Before we deal with the factual
aspects, it would be necessary to consider certain decisions of this Court
touching upon the establishment of Fast Track Courts as well as the
concept of promotion through LCE and the respective quotas for
candidates coming from three different streams in the Higher Judicial
Service in various States.
2.1. In All India Judges’
Associationv. Union of India and
others2, the issues with regard to the working conditions of the members
of the subordinate judiciary throughout the country came up for
consideration.  Number of directions were issued by this Court.  However,
review petitions were filed by Union of India seeking certain
modifications/clarifications. These review petitions were disposed of by
this Court while issuing further directions in All India Judges’
Association and others v. Union of India and others3. In pursuance
of said directions, First National Judicial Pay Commission under the
Chairmanship of Mr. Justice K.J. Shetty (former Judge of this Court)
was constituted on 21.03.1996. The terms of reference were thereafter
modified on 16.12.1997 and the Commission was also empowered to
consider and grant interim relief.  By Report dated 31.01.1998 some
2 (1992) 1 SCC 119
3 (1993) 4 SCC 288
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interim relief was granted by Justice Shetty Commission. After due
deliberations Justice Shetty Commission submitted a Report on 11.11.1999
and all the States/ Union Territories were directed by this Court4 to send
their responses to Union of India so that all the issues could be deliberated
upon and dealt with.4
2.2 After considering all the submissions, this Court in its decision
dated 21.03.2002 in All India Judges’ Association and others v. Union
of India and others1 passed some directions. We are presently concerned
with the observations made in paragraphs 24 to 29 in which reference
was made to the 85th Report of the Standing Committee of Parliament
recommending that there should be increase in the number of Judges.
Said Committee had noted the Judges to Population ratio and in tune
with 120th Report of the Law Commission, recommendations were made
to increase the Judges’ strength to 50 Judges per 10 lakh people in the
first instance.  Recommendations made by Justice Shetty Commission
were also considered and recruitment to the Higher Judicial Service in
the cadre of District Judges was also subject-matter of directions.
Paragraphs 27 to 29 are quoted for ready reference:
“27. Another question which falls for consideration is the method
of recruitment to the posts in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. At the present
moment, there are two sources for recruitment to the Higher
Judicial Service,
namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
subordinate judiciary is the foundation of the edifice of the judicial
system. It is, therefore, imperative, like any other foundation, that
it should become as strong as possible. The weight on the judicial
system essentially rests on the subordinate judiciary. While we
have accepted the recommendation of the Shetty Commission
which will result in the increase in the pay scales of the subordinate
judiciary, it is at the same time necessary that the judicial officers,
hard-working as they are, become more efficient. It is imperative
that they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty
Commission has recommended the establishment of a Judicial
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum standard,
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objectively adjudged, for officers who are to enter the Higher
Judicial Service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
to the Higher Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
calibre of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per cent
appointment by promotion and 25 per cent by direct recruitment
to the Higher Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned: 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion on the basis
of principle of merit-cum-seniority. For this purpose, the High
Courts should devise and evolve a test in order to ascertain and
examine the legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be not less than
five years. The High Courts will have to frame a rule in this regard.
(emphasis supplied)
28. As a result of the aforesaid, to recapitulate, we direct that
recruitment to the Higher Judicial Service i.e. the cadre of District
Judges will be:
(1) (a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cum-
seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Civil Judges
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(Senior Division) having not less than five years’ qualifying
service; and
(c) 25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the
written and viva voce test conducted by respective High
Courts.
(2) Appropriate rules shall be framed as above by the High Courts
as early as possible.
29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher Judicial
Service in regard to their seniority in service. For over three
decades a large number of cases have been instituted in order to
decide the relative seniority from the officers recruited from the
two different sources, namely, promotees and direct recruits. As
a result of the decision today, there will, in a way, be three ways
of recruitment to the Higher Judicial Service. The quota for
promotion which we have prescribed is 50 per cent by following
the principle “merit-cum-seniority”, 25 per cent strictly on merit
by limited departmental competitive examination and 25 per cent
by direct recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned, is where a
roster system is followed. For example, there is, as per the rules
of the Central Government, a 40-point roster which has been
prescribed which deals with the quotas for Scheduled Castes and
Scheduled Tribes. Hardly, if ever, there has been a
litigation
amongst the members of the service after their recruitment as
per the quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited. When
roster system is followed, there is no question of any dispute arising.
The 40-point roster has been considered and approved by this
Court in R.K. Sabharwal v. State of Punjab5. One of the methods
of avoiding any litigation and bringing about certainty in this regard
is by specifying quotas in relation to posts and not in relation to the
vacancies. This is the basic principle on the basis of which the 40-
point roster works. We direct the High Courts to suitably amend
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and promulgate seniority rules on the basis of the roster principle
as approved by this Court in R.K. Sabharwal case as early as
possible. We hope that as a result thereof there would be no further
dispute in the fixation of seniority. It is obvious that this system
can only apply prospectively except where under the relevant
rules seniority is to be determined on the basis of quota and
rotational system. The existing relative seniority of the members
of the Higher Judicial Service has to be protected but the roster
has to be evolved for the future. Appropriate rules and methods
will be adopted by the High Courts and approved by the States,
wherever necessary by 31-3-2003.”
2.3. Soon thereafter, in its decision rendered on 06.05.2002 in
Brij Mohan Lal v. Union of India and others6 this Court had an occasion
to consider the issue relating to Fast Track Courts.  The 11th Finance
Commission had allocated Rs.502.90 crores for the purpose of setting
up 1734 courts in various States to deal with long pending cases,
particularly sessions cases.  On the basis of said recommendations a
note was prepared by the Department of Justice, Government of India
to set up Fast Track Courts.  Challenges were raised in some High
Courts to the constitution of such Fast Track Courts and the matters
were dealt by this Court in Transfer Petitions.
After considering rival
submissions, directions were issued in para 10 and for the present
purposes
direction Nos.1 to 8, 14 and 18 are relevant:-
“10. Keeping in view the laudable objectives with which the Fast
Track Courts Scheme has been conceived and introduced, we
feel the following directions, for the present, would be sufficient
to take care of initial teething problems highlighted by the parties:
Directions by the Court
1. The first preference for appointment of judges of the
Fast Track Courts is to be given by ad-hoc promotions from
amongst eligible judicial officers. While giving such promotion,
the High Court shall follow the procedures in force in the matter
of promotion to such posts in Superior/Higher Judicial Services.
2. The second preference in appointments to Fast Track
Courts shall be given to retired judges who have good service
records with no adverse comments in their ACRs, so far as judicial
6 (2002) 5 SCC 1
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acumen, reputation regarding honesty, integrity and character are
concerned. Those who were not given the benefit of two years’
extension of the age of superannuation, shall not be considered
for appointment. It should be ensured that they satisfy the
conditions laid down in Articles 233(2) and 309 of the Constitution.
The High Court concerned shall take a decision with regard to
the minimum-maximum age of eligibility to ensure that they are
physically fit for the work in Fast Track Courts.
3. No judicial officer who was dismissed or removed or
compulsorily retired or made to seek retirement shall be considered
for appointment under the Scheme. Judicial officers who have
sought voluntary retirement after initiation of departmental
proceedings/inquiry shall not be considered for appointment.
4. The third preference shall be given to members of the
Bar for direct appointment in these courts. They should be
preferably in the age group of 35-45 years, so that they could
aspire to continue against the regular posts if the Fast Track Courts
cease to function. The question of their continuance in service
shall be reviewed periodically by the High Court based on their
performance. They may be absorbed in regular vacancies, if
subsequent recruitment takes place and their performance in the
Fast Track Courts is found satisfactory. For the initial selection,
the High Court shall adopt such methods of selection as are
normally followed for selection of members of the
Bar as direct
recruits to the Superior/Higher Judicial Services.
5. Overall preference for appointment in Fast Track Courts
shall be given to eligible officers who are on the verge of retirement
subject to they being physically fit.
6. The recommendation for selection shall be made by a
committee of at least three Judges of the High Court, constituted
by the Chief Justice of the High Court concerned in this regard.
The final decision in the matter shall be taken by the Full Court of
the High Court.
7. After ad-hoc promotion of judicial officers to the Fast
Track Courts, the consequential vacancies shall be filled up
immediately by organizing a special recruitment drive. Steps should
be taken in advance to initiate process for selection to fill up these
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vacancies much before the judicial officers are promoted to the
Fast Track Courts, so that vacancies may not be generated at the
lower levels of the subordinate judiciary. The High Court and the
State Government concerned shall take prompt steps to fill up the
consequential as well as existing vacancies in the subordinate courts
on priority basis. The State Government concerned shall take
necessary decisions within a month from the receipt of the
recommendations made by the High Court.
8. Priority shall be given by the Fast Track Courts for
disposal of those sessions cases which are pending for the longest
period of time, and/or those involving undertrials. Similar shall be
the approach for civil cases i.e. old cases shall be given priority.
9. …...
10…...
11…..
12 …..
13 …..
14. No right will be conferred on judicial officers in service
for claiming any regular promotion on the basis of his/her
appointment on ad-hoc basis under the Scheme. The service
rendered in Fast Track Courts will be deemed as service rendered
in the parent cadre. In case any judicial officer is promoted to
higher grade in the parent cadre during his tenure in Fast Track
Courts, the service rendered in Fast Track Courts will be deemed
to be service in such higher grade.
15…..
16….
17….
18. The High Court and the State Government shall ensure
that there exists no vacancy so far as the Fast Track Courts are
concerned, and necessary steps in that
regard shall be taken within
three months from today. In other words, steps should be taken to
set up all the Fast Track Courts within the stipulated time.”
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2.4. Thereafter in Malik Mazhar Sultan and another v. U.P.
Public Service Commission and others7 the issues regarding timely
declaration of vacancies in judicial service and timely appointments were
considered by this Court as under:
“23. It is absolutely necessary to evolve a mechanism to speedily
determine and fill vacancies of judges at all levels. For this purpose,
timely steps are required to be taken for determination of vacancies,
issue of advertisement, conducting examinations, interviews,
declaration of the final results and issue of orders of appointments.
For all these and other steps, if any, it is necessary to provide for
fixed time schedule so that the system works automatically and
there is no delay in filling up of vacancies. The dates for taking
these steps can be provided for on the pattern similar to filling of
vacancies in some other services or filling of seats for admission
in medical colleges. The schedule appended to the regulations
governing medical admissions sets out a time schedule for every
step to be strictly adhered to every year. The exception can be
provided for where sufficient number of vacancies do not occur
in a given year. The adherence to strict time schedule can ensure
timely filling of vacancies. All the State Governments, the Union
Territories and/or the High Courts are directed to provide for time
schedule for the aforesaid purposes so that every year vacancies
that may occur are timely filled. All the State
Governments, the
Union Territories and the High Courts are directed to file within
three months details of the time schedule so fixed and date from
which the time schedule so fixed would be operational.”
2.5. After the disposal of the appeals in Malik Mazhar Sultan
and others v. U.P. Public Service Commission7 suggestions were made
by some of the State Governments and written submissions were also
filed by the learned Amicus Curiae. In its order dated 04.01.20178, this
Court  issued further directions and prescribed timelines. From paragraph
7 onwards directions were issued for filling up vacancies in various cadres
including the cadre of District Judges.
2.6. By order dated 20.04.2010 passed in All India Judges’
Association v. Union of India and others9 directions issued earlier
7 (2006) 9 SCC 507
8 (2008) 17 SCC 703.
9 (2010) 15 SCC 170
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with regard to 25% quota for Limited Departmental Competitive
Examination were modified by this court as under:
“6. Having regard to various strategies available, we are of the
considered view that suitable amendment is to be made for this
25% quota of limited departmental competitive examination. We
are also of the view, with the past experience, that it is desirable
that 25% quota be reduced to 10%. We feel so as the required
result, which was sought to be achieved by this process could not
be achieved, thus it calls for modification.
7. Thus, we direct that henceforth only 10% of the cadre strength
of District Judges be filled up by limited departmental competitive
examination with those candidates who have qualified service of
five years as Civil Judge (Senior Division). Every year vacancies
are to be ascertained and the process of selection shall be taken
care of by the High Courts. If any of the post is not filled up under
10% quota, the same shall be filled up by regular promotion. In
some of the High Courts, process of selection of these 25% quota
by holding limited departmental competitive examination is in
progress, such process can be continued and the unfilled seats, if
meritorious candidates are available, should be filled up. But if for
some reason the seats are not filled up, they may be filled up by
regular promotion and apply the usual mode of promotion process.
Thus we pass the following order.
8.
Hereinafter, there shall be 25% of seats for direct recruitment
from the Bar, 65% of seats are to be filled up by regular promotion
of Civil Judge (Senior Division) and 10% seats are to be filled up
by limited departmental competitive examination. If candidates
are not available for 10% seats, or are not able to qualify in the
examination then vacant posts are to be filled up by regular
promotion in accordance with the Service Rules applicable.
9. All the High Courts are hereby directed to take steps to see
that existing Service Rules be amended positively with effect from
1-1-2011. If the Rules are not suitably amended, this order shall
prevail and further recruitment from 1-1-2011 shall be continued
accordingly as directed by us. The time schedule prescribed in
the order dated 4-1-2007 (in Malik Mazhar Sultan case8) shall
be strictly adhered to for the purpose of selection. All the vacancies
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are to be filled up in that particular year and there shall not be any
carry forward of the unfilled posts.”
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 Court10 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 matters.
The 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 Service”
3.1. 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.
10 The High Court of Judicature for Rajasthan
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(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 compensation.
7. 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
followed.
8. 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 years.
9. 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 Service.”
3.2. 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
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amongst the persons who are eligible for appointment to the service
by promotion under clause (i) of rule 8, for temporary or officiating
appointment.
23. 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 merit.”
3.3. 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 Court.”
Schedule-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 150.
4. 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.
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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 Courts.
It may be mentioned that though the decision of this Court in Brij
Mohan Lal6 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 Bar.
5. 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 Others1 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 2002-2003.
6. 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 Judges.
7. 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 20.03.2010** successively.
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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 Courts”.
9.1 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 orders.
10. 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 Another11. 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 done.
…     …      …
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
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11. 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
case12. 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
vacancies.
13. In our opinion, this writ petition has to be allowed. In view of
our decision in Veena Verma case12 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 service.
14. 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 infructuous.”
11. On the same day, a decision was rendered by this Court in
High Court of Judicature For Rajasthan v. Veena Verma and
another12, which inter alia considered whether Notification dated
12 (2009) 14 SCC 734
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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 recruitment.
34.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
arbitrary.
[Emphasis supplied]
35. 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.
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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
cadre.”
12. 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:
“Rule 3: Definitions
(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 period.”
12.2 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:
(A) District Judges
(B) Senior Civil Judge, and
(C) Civil Judge.
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Rule 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 claim.”
12.3. 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 Recruitee.
8.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.
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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 appointed.”
12.4. 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 prospectively.”
12.5. 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
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Senior Civil Judges recommended by the Court, on the basis of
merit-cum-seniority, subject to passing of suitability test as provided
in Schedule-VI.
Explanation: “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 promotion.”
12.6 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 Authority.”
12.7  The issue of seniority is dealt with by Rule 47 as under:
“47. Seniority: Subject to the other provisions of these Rules:
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(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 cadre.
Provided 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 recruitee.”
12.8 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
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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 made.”
12.9 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 respectively.
12.10 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:
1. By promotion-merit-cum-seniority
2. By promotion-merit-cum-seniority
3. By
promotion-Limited Competitive Examination
4. By direct recruitment.
Said pattern is then followed in succession13.
13. On 31.03.2010 a Notification was issued by the High Court
notifying 58 vacancies to be filled in the cadre of District Judge. Out of
58 vacancies so notified, 36 vacancies were to be filled by the Direct
Recruitment from the Bar while remaining 22 vacancies were to be
filled by promotion through LCE as provided in Rules 7, 8, 32(1) and
40(1) along with Schedule-II to 2010 Rules. In this recruitment, no
13 The pattern was thereafter modified vide Notification dated 31.08.2012 although
the ratio between three sources was kept intact.
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provision was made for 50% promotion quota meant for Promotees.
Thereafter, a Notification was issued on 15.04.2010 inviting applications
from Senior Civil Judges who had completed five years of actual service
for being considered for 22 posts in the cadre of the District Judge to be
filled by LCE and for filling up 36 vacancies through Direct Recruitment.
14. In Malik Mazhar Sultan and others v. U.P. Public Service
Commission7, an affidavit was filed on behalf of the High Court in I.A.
No. 73 of 2009. The stand taken by the High Court in said affidavit was
as under:-
“2. It is submitted that in compliance of the directions of Hon’ble
Court dated 21.03.2002 passed in All India Judges Association
Vs. UOI & Ors. (AIR 2002 SC 1752 +2002 (4) SCC 247), new
Rules for State Judicial Service, namely “Rajasthan State Judicial
Service Rules 2003” (hereinafter referred to as draft Rules of
2003) were being framed, wherein provision of various modes of
Recruitment/Promotion as approved and directed by this Hon’ble
Court had been incorporated.
3.  In the draft Rules, 2003 a time bound schedule for recruitment
of the Judicial Officers was also provided, which was more or
less on the same lines as directed by the Hon’ble Court in this
matter. However, there was variation between dates specified in
the calendar provided in Schedule-III of the draft Rules of 2003
and time schedule prescribed by the Hon’ble Court. As such, the
time
schedule prescribed by the Hon’ble Court could be
implemented only after amending the Draft Rules, 2003 and due
promulgation of the same. Amendment in the Draft Rules of 2003
would have further required, approval of the Full Court of the
High Court and consultation with the Rajasthan Public Service
Commission resulting in further delay in due promulgation of the
Draft Rules of 2003. Therefore, an application dated 11.07.2008
for direction and modification was preferred by the Rajasthan
High Court before the Hon’ble Court and it was prayed that the
Hon’ble Court may be pleased:-
(a) to allow the application and permit the applicant/Rajasthan
High Court to follow the calendar as annexed in Schedule-III of
the draft of Rules, 2003 after due promulgation thereof; and
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(b) to grant exemption to the applicant from implementing the
time Schedule as prescribed by the Hon’ble Court vide it’s order
dated 04.01.2007 till draft Rules 2003 are finalized and duly
promulgated.
This application for directions and modification was registered as
I.A. No.39. Copy of the same is annexed herewith and marked
as Annexure-R1.
4. It is submitted that while I.A. No.39 preferred by the Rajasthan
High Court was pending consideration, in pursuance of order dated
24.07.2008 passed by this Hon’ble Court, a factual report on behalf
of Rajasthan High Court with regard to filling of vacancies in
subordinate judiciary in the format prescribed by the Hon’ble Court
was filed by the answering respondent through an affidavit dated
27.08.2008. True copy of the same is annexed herewith and marked
as ANNEXURE-R-2.
5. It is submitted that while considering the factual report with
regard to filling of vacancies in subordinate judiciary filed by the
Rajasthan High Court through the affidavit dated 27.08.2008
(Annexure-R-2), the Hon’ble Court vide its order dated 23.09.2008
(Annexure-A-1) dismissed the I.A. No.39 preferred by the
Rajasthan High Court.
6. It is submitted that meanwhile the Draft Rules 2003,
incorporating the time schedule prescribed by the Hon’ble Court
and other necessary amendments were renamed as “Rajasthan
Judicial Service Rules, 2010” (hereinafter to be referred as Rules,
2010) and the same have been duly promulgated and come into
force
w.e.f. the date of its publication in Rajasthan Gazette
i.e.19.01.2010.
7. It is submitted that: on the date of submission of the IA i.e.
10.10.2009, there were 75 vacancies in the cadre of Rajasthan
Higher Judicial Service and 33 vacancies in the cadre of Civil
Judge (Sr. Division).
8. It is submitted that a report dated 23.08.2008 of a Committee
of Hon’ble Judges, constituted by the Hon’ble Chief Justice to
consider the matter regarding promotions in the cadre of District
Judge on the post of Additional District & Sessions Judge (regular),
Additional District & Sessions Judge (Fast Track) and from the
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post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr.
Division), recommending promotions in these cadres was placed
before the Hon’ble Full Court in its meeting held on 29.11.2008,
13.02.2009 and 31.10.2009 but due to difference of opinion, the
report of the Hon’ble Committee could not be approved by the
Full Court. However, Hon’ble Full Court in its meeting held on
31.10.2009 approved the report of the Hon’ble Committee dated
23.08.2008 to the extent of making promotion of 33 officers from
the post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr.
Division). Consequently, 33 officers have been promoted from
the post of Civil Judge (Jr. Division) to that of Civil Judge (Sr.
Division) vide order dated 30.11.2009.  Copy of order dated
30.11.2009 is annexed herewith and marked as ANNEXURE-R/
3.
9. It is submitted that the report dated 23.08.2008 of the Hon’ble
Committee regarding grant of promotions to the post of Additional
District & Sessions Judge (regular) and Additional District &
Sessions Judge (Fast Track) was again placed for consideration
before the Hon’ble Full Court in its meeting held on 20.03.2010.
Whereupon it was Resolved that the report requires
reconsideration by the Promotion Committee after considering
the service record for subsequent period also and the report of
the Promotion Committee  be  placed before the Hon’ble Full
Court by circulation. Pursuant  to  the  Full  Court
Resolution,
Hon’ble  Committee convened its meeting on 05-06.04.2010 and
submitted its report, suggesting amendment in Rule 15 of the
Rajasthan Judicial Service Rules, 2010. This report of the Hon’ble
Committee was placed before the Hon’ble Full Court in its meeting
held on 10.04.2010 whereupon it was Resolved to defer the matter
regarding amendment in Rule 15 of Rajasthan Judicial Service
Rules, 2010 and also Resolved to again request the Committee to
reconsider the matter regarding promotion as per Full Court
Resolution dated 20.03.2010.  It is submitted that pursuant to the
aforesaid Resolution the meeting of Hon’ble Committee has been
fixed on 12.04.2010 and 13.04.2010.
10. It is submitted that after the judgment dated 07.07.2009
rendered by the Hon’ble Supreme Court in Civil Appeal No.5699/
2000 High Court of Judicature for Rajasthan vs. Veena Verma &
Ors. and the judgment of the same date rendered by the Hon’ble
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Court in Writ Petition Civil No.576/2003 RJS Officers Asson. Vs.
State of Rajasthan & Ors. the matter of determination of vacancies
for direct recruitment in Rajasthan Higher Judicial Service was
placed before the Hon’ble Full Court vide Circulation Case No.10/
2009 on 18.07.2009 and on account of different opinion of Hon’ble
Judges, on 16.09.2009 the Hon’ble Chief Justice directed to put
up the file later. In the meanwhile, Rajasthan Judicial Service Rules,
2010 came into force w.e.f. 19.01.2010. Therefore, the matter
regarding consideration of vacancies in each cadre under the Rules
of 2010 was considered by the Hon’ble Full Court in its meeting
held on 24.01.2010 and the same was resolved to be deferred.
The matter was again placed before the Hon’ble Full Court in its
meeting held on 20.03.2010 and as per Rajasthan Judicial Service
Rules, 2010, the category wise vacancy in the District Judge Cadre
upto 31.03.2011 has been resolved to be determined as under –
(a) By promoting
           -     49
(b) By limited competitive examination
-     22
(c) By direct recruitment
-     36
…     …     …”
15. The matter in respect of consideration of the Report of the
Committee with respect to promotion of Additional District and Sessions
Judges, including those who were manning Fast Track Courts, was taken
up by the Full Court on 20.03.2010**.  In March-April 2010, the Report
of the Committee and records of the services rendered by all the
concerned candidates were
considered by the High Court and substantive
absorption of those who were promoted to Fast Track Court and
promotion of some candidates to the cadre of District Judge on substantive
basis was approved by the Full Court.
16. On 21.04.2010 a formal Order was issued by the State
Government in view of the recommendation made by the High Court in
its Resolution dated 12/13.04.2010 promoting 47 Judicial Officers who
were manning Fast Track Courts to the level of Additional District Judges
in accordance with the recommendation made by the Committee in its
Report dated 23.08.2008 (“the 47 Judicial Officers”, for short). It must
be noted that the 47 Judicial Officers were not intimated by the High
Court that they could appear at LCE to be conducted in pursuance of
the Notification dated 15.04.2010. The Order recited as under:-
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“On the recommendation of Rajasthan High Court, H.E. the
Government of State of Rajasthan is pleased to appoint/promote
the following 47 officers as Additional District and Sessions Judges
in the District Judge Cadre.”
On the same day i.e. on 21.04.2010 another Order was issued
promoting 49 Senior Civil Judges, including the petitioner in Writ Petition
(Civil) No.1008 of 2019, as Additional District and Sessions Judges on
ad-hoc basis to man the Fast Track Courts.
17. The candidates who had applied in pursuance of the
Notification dated 15.04.2010 appeared at the written examination held
on 30.06.2010 and the successful candidates were then called for
interview. However, by communication dated 04.09.2010 interviews were
postponed sine die. Later, by Notification dated 22.09.2010 which was
issued in pursuance of the Resolution of the Full Court, the entire
examination process for recruitment by Direct Recruitment and through
LCE was directed to be held afresh.
18. A Notification was issued on 31.03.2011 renotifying the number
of vacancies available for Direct Recruitment and for promotion through
LCE.  Said Notification was as under:-
“RAJASTHAN HIGH COURT JODHPUR
NOTIFICATION
As per the determination of vacancies for the current year & the
strength of District Judge cadre being 245, the vacancies in the
District Judge cadre as hereby notified as under:-
Vacancies for Direct Recruitment       -
37
Vacancies for
promotion by Limited
Competitive Examination
      -
22
Vacancies for promotion
      -
24
In case the cadre strength is revised to 255, the vacancies would
be as under:-
Vacancies for Direct Recruitment      -
39
Vacancies for promotion by Limited
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Competitive Examination
      -
22
Vacancies for promotion
     -
33"
18.1.  On the same day i.e. on 31.03.2011 two Orders were passed
by the High Court; one abolishing 40 Fast Track Courts while the other
directed continuation of the others “on ad-hoc basis as against the available
vacant posts” till the matter was considered for regular promotion. The
Order stated:-
“Consequent upon abolition of 40 ADJ (FT) Courts vide
Government Notification No.F.10(4) Nyay/98/Part dt. 31.3.2011,
the following officers shown at SI. No.01 to 39 working as ADJ
(FT) are continued on ad hoc basis as against the available vacant
posts till the matter is considered for regular promotion in
accordance with Rules and are transferred/ posted as mentioned
below. The officers shown at S.No.40 to 53 are also
transferred / posted as mentioned below:-….”
19. A Bench of three Judges of this Court after noting its earlier
Judgment in All India Judges’ Association  vs.  Union of India and
Others1 modified certain directions contained therein by its Order dated
20.04.20109. The relevant paragraphs have already been quoated in
paragraph 2.6 hereinabove.
20. On 10.06.2011, appropriate amendments were effected in 2010
Rules to fix the quota for Promotees at 65% in accordance with the
aforesaid Order dated 20.04.20109 issued by this Court and raising the
cadre strength of District Judges from 245 to 255.
21. In Brij Mohan Lal v. Union of India and Others14, this
Court inter alia dealt with
two Transferred Cases, one arising from
Writ Petition filed in the High Court of Punjab and Haryana seeking
directions to stop the scheme and policy of appointment of retired District
and Sessions Judges as Ad-hoc Judges of the Fast Track Courts and the
other filed in the High Court of Andhra Pradesh seeking declaration that
constitution of Fast Track Courts was unconstitutional and consequently
be set aside. This Court considered the entire scheme as well as the
relevant provisions in various States and considered diverse submissions.
One of the questions raised by this Court was:-
14 (2012) 6 SCC 502
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“Whether any of the appointees to the post of ad hoc
Judges under the FTC Scheme have a right to the post in the
context of the facts of the present case?”
21.1 Thereafter, the letters of appointment issued to various
appointees including those from the State of Rajasthan were considered
and while dealing with the issue of regularization of service rendered by
the Judicial Officers’ manning Fast Track Courts, it was observed:-
“172. The prayer for regularisation of service and absorption
of the petitioner appointees against the vacancies appearing in
the regular cadre has been made not only in cases involving the
case of the State of Orissa, but even in other States. Absorption
in service is not a right. Regularisation also is not a statutory or a
legal right enforceable by the persons appointed under different
rules to different posts. Regularisation shall depend upon the facts
and circumstances of a given case as well as the relevant rules
applicable to such class of persons.”
21.2 In so far as the State of Rajasthan is concerned, it was
observed:-
“177. In the case of State of Rajasthan, it is the judicial
officers from the cadre of Civil Judge, Senior Division, who were
promoted as FTC Judges. They have continued to hold those posts
for a considerable period. According to these petitioners, they
were promoted to the Higher Judicial Services as per the Rules
and, therefore, keeping in view the order of this Court
in
Madhumita Das15 as well as the very essence of the FTC Scheme,
they should be absorbed as members of the regular cadre of Higher
Judicial Services of the State of Rajasthan. The State Government
had issued a directive that they should undertake the limited
competitive examination for their regular promotion/absorption in
the higher cadre. These officers questioned the correctness of
this directive on the ground that they were promoted as Additional
Sessions Judges (FTC) under the Rules and, therefore, there was
no question of any further requirement for them to take any written
examination after the long years of service that they have already
put in in the Higher Judicial Services.
15 (2008) 6 SCC 731
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178. The Rajasthan Judicial Service Rules, 2010 are in force
for appointment to the Higher Judicial Services of the State. The
judgment of this Court in All India Judges’ Assn. (3) case1 as
well as the relevant Rules contemplate that a person who is to be
directly appointed to the Higher Judicial Services has to undergo
a written examination and appear in an interview before he can
be appointed to the said cadre. As far as appointment by promotion
is concerned, the promotion can be made by two different modes
i.e. on the basis of seniority-cum-merit or through out-of-turn
promotion wherein any Civil Judge, Senior Division who has put
in five years of service is required to take a competitive
examination and then to the extent of 25% of the vacancies
available, such Judges would be promoted to the Higher Judicial
Services.
179. It was admitted before us by the learned counsel
appearing for the petitioners that these officers who were promoted
as ad hoc FTC Judges had not taken any written competitive
examination before their promotion to this post under the Higher
Judicial Services. In other words, they were promoted on ad hoc
basis depending on the availability of vacancy in FTCs. Once the
Rules required a particular procedure to be adopted for promotion
to the regular posts of the Higher Judicial Services, then the
competent authority can effect the promotion only by that process
and none other. In view of the admitted fact that these officers
have not
taken any written examination, we see no reason as to
how the challenge made by these judicial officers to the directive
issued by the State Government for undertaking of written
examination may be sustained. Thus, the relief prayed for cannot
be granted in its entirety.”
21.3 Finally, following directions were issued in paragraph 207:-
“207. Without any intent to interfere with the policy decision
taken by the Governments, but unmistakably, to protect the
guarantees of Article 21 of the Constitution, to improve the justice
delivery system and fortify the independence of judiciary, while
ensuring attainment of constitutional goals as well as to do complete
justice to the lis before us, in terms of Article 142 of the Constitution,
we pass the following orders and directions:
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207.1. Being a policy decision which has already taken
effect, we decline to strike down the policy decision of the Union
of India vide Letter dated 14-9-2010 not to finance the FTC Scheme
beyond 31-3-2011.
207.2. All the States which have taken a policy decision to
continue the FTC Scheme beyond 31-3-2011 shall adhere to the
respective dates as announced, for example in the cases of States
of Orissa (March 2013), Haryana (March 2016), Andhra Pradesh
(March 2012) and Rajasthan (February 2013).
207.3. The States which are in the process of taking a
policy decision on whether or not to continue the FTC Scheme as
a permanent feature of administration of justice in the respective
States are free to take such a decision.
207.4. It is directed that all the States, henceforth, shall not
take a decision to continue the FTC Scheme on ad hoc and
temporary basis. The States are at liberty to decide but only with
regard either to bring the FTC Scheme to an end or to continue
the same as a permanent feature in the State.
207.5. The Union of India and the State Governments shall
reallocate and utilise the funds apportioned by the 13th Finance
Commission and/or make provisions for such additional funds to
ensure regularisation of the FTC Judges in the manner indicated
and/or for creation of additional courts as directed in this judgment.
207.6. All the decisions taken and recommendations made
at the Chief Justices and Chief
Ministers’ Conference shall be
placed before the Cabinet of the Centre or the State, as the case
may be, which alone shall have the authority to finally accept,
modify or decline the implementation of such decisions and, that
too, upon objective consideration and for valid reasons. Let the
minutes of the Conference of 2009, at least now, be placed before
the Cabinet within three months from the date of pronouncement
of this judgment for its information and appropriate action.
207.7. No decision, recommendation or proposal made by
the Chief Justices and Chief Ministers’ Conference shall be rejected
or declined or varied at any bureaucratic level, in the hierarchy of
the Governments, whether in the State or the Centre.
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207.8. We hereby direct that it shall be for the Central
Government to provide funds for carrying out the directions
contained in this judgment and, if necessary, by reallocation of
funds already allocated under the 13th Finance Commission for
judiciary. We further direct that for creation of additional 10%
posts of the existing cadre, the burden shall be equally shared by
the Centre and the State Governments and funds be provided
without any undue delay so that the courts can be established as
per the schedule directed in this judgment.
207.9. All the persons who have been appointed by way of
direct recruitment from the Bar as Judges to preside over FTCs
under the FTC Scheme shall be entitled to be appointed to the
regular cadre of the Higher Judicial Services of the respective
States only in the following manner:
(a) The direct recruits to FTCs who opt for regularisation
shall take a written examination to be conducted by the High
Courts of the respective States for determining their suitability
for absorption in the regular cadre of Additional District Judges.
(b) Thereafter, they shall be subjected to an interview
by a Selection Committee consisting of the Chief Justice and
four senior most Judges of that High Court.
(c) There shall be 150 marks for the written examination
and 100 marks for the interview. The qualifying marks shall be
40% aggregate for general candidates and 35% for SC/ST/
OBC candidates. The examination and interview shall be held
in
accordance with the relevant Rules enacted by the States
for direct appointment to Higher Judicial Services.
(d) Each of the appointees shall be entitled to one mark
per year of service in the FTCs, which shall form part of the
interview marks.
(e) Needless to point out that this examination and
interview should be conducted by the respective High Courts
keeping in mind that all these applicants have put in a number
of years as FTC Judges and have served the country by
administering justice in accordance with law. The written
examination and interview module, should, thus, be framed
keeping in mind the peculiar facts and circumstances of these
cases.
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(f) The candidates who qualify the written examination
and obtain consolidated percentage as aforeindicated shall be
appointed to the post of Additional District Judge in the regular
cadre of the State.
(g) If, for any reason, vacancies are not available in the
regular cadre, we hereby direct the State Governments to
create such additional vacancies as may be necessary keeping
in view the number of candidates selected.
(h) All sitting and/or former FTC Judges who were
directly appointed from the Bar and are desirous of taking the
examination and interview for regular appointment shall be given
age relaxation. No application shall be rejected on the ground
of age of the applicant being in excess of the prescribed age.
207.10. The members of the Bar who have directly been
appointed but whose services were either dispensed with or
terminated on the ground of doubtful integrity, unsatisfactory work
or against whom, on any other ground, disciplinary action had
been taken, shall not be eligible to the benefits stated in para 207.9
of the judgment.
207.11. Keeping in view the need of the hour and the
constitutional mandate to provide fair and expeditious trial to all
litigants and the citizens of the country, we direct the respective
States and the Central Government to create 10% of the total
regular cadre of the State as additional posts within three months
from today and take up the process for filling such additional
vacancies as per the Higher Judicial Service and Judicial Services
Rules of that State, immediately thereafter.
207.12. These directions, of course, are in addition to and
not in derogation of the recommendations that may be made by
the Law Commission of India and any other order which may be
passed by the courts of competent jurisdiction, in other such
matters.
207.13. The candidates from any State, who were promoted
as FTC Judges from the post of Civil Judge, Senior Division having
requisite experience in service, shall be entitled to be absorbed
and remain promoted to the Higher Judicial Services of that State
subject to:
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(a) Such promotion, when effected against the 25%
quota for out-of-turn promotion on merit, in accordance with
the judgment of this Court in All India Judges’ Assn. (3) 1, by
taking and being selected through the requisite examination, as
contemplated for out-of-turn promotion.
(b) If the appointee has the requisite seniority and is
entitled to promotion against 25% quota for promotion by
seniority-cum-merit, he shall be promoted on his own turn to
the Higher Judicial Services without any written examination.
(c) While considering candidates either under Category
(a) or (b) above, due weightage shall be given to the fact that
they have already put in a number of years in service in the
Higher Judicial Services and, of course, with reference to their
performance.
(d) All other appointees in this category, in the event of
discontinuation of the FTC Scheme, would revert to their
respective posts in the appropriate cadre.”
22. In the selection process undertaken pursuant to the Notification
dated 31.03.2011 for filling up vacancies through Direct Recruitment,
LCE and Promotion, only 9 candidates could clear LCE against 22
vacancies meant for that category. This number got reduced to 8 as the
candidature of one of the successful candidates was not accepted.
Resultantly, the unfilled vacancies meant for LCE were added to the
quota for Promotees and by Government Order dated 15.07.2013
appropriate Appointment Orders were issued.  The text of the Order
was as
under:-
“In exercise of the powers conferred by Article 233(1) of the
Constitution of India read with Rule 43 of the Rajasthan Judicial
Service Rules, 2010, the Governor of the State of Rajasthan on
the recommendation of the Rajasthan High Court is pleased to
appoint the following persons recruited by promotion, limited
competitive examination and direct recruitment to the Rajasthan
Judicial Service in the District Judge Cadre in the pay scale of
Rs.51550-1230-58930-1380-63070 [District Judge (Entry Level)]
with such allowances as are admissible as per rules and their pay
shall be fixed as per rules. The persons appointed by direct
recruitment shall be placed on probation for a period of two years
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from the date of assuming charge of their office as per Rule 44 of
the Rajasthan Judicial Service Rules, 2010:…”
Thereafter, the names of 87 candidates were mentioned and the
names of 8 successful candidates in LCE were at Sr. Nos. 10, 19, 30,
39, 50 59, 65 and 68.
23. In the meantime, by Notification dated 31.03.2013 issued by
the High Court, 58 vacancies were determined for the years 2012-13
and   2013-14 in the cadre of District Judge. This Notification also stated
that in case the cadre strength was revised to 362, the vacancies in the
cadre of District Judge would be 165. On 14.09.2013, the strength of
District Judge cadre was revised to 372. By Notification dated 01.04.2014
issued by the High Court, 204 vacancies were determined in the cadre
of District Judge for the years 2012-13, 2013-14 and 2014-15. The
relevant portion of the Notification dated 01.04.2014 was as under:-
“In suppression of earlier notification No.Estt.(RJS)/06/2014 dated
15.01.2014, as per schedule I of RJS rules 2010, the determination
of vacancies in District Judge Cadre for the year 2012-2013, 2013-
14 and 2014-15 is hereby notified as under:-
As per cadre strength – 372
Total vacancies – 186 + 18* = 204
Vacancies for district recruitment – 41
Vacancies for promotion by limited competitive examination – 29
Vacancies for promotion – 116
*Note:- 18 future vacancies (against 10% of the total Number of
vacancies) are not assigned to any
category for the present.
However, these will be given as per roaster to the particular
category wherein any vacancy(ies) on account of death elevation,
dismissal etc. will arise.”
24. On 21.04.2014, 56 Senior Civil Judges were promoted as
Additional District and Sessions Judges on Ad-hoc basis. The Order
recited as under.
“On the recommendation of Rajasthan High Court, H.E. the
Governor of State of Rajasthan is pleased to appoint the following
56 officers purely on ad-hoc basis as Additional District and
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Sessions Judge in the District Judge cadre under Rule 15 of the
Rajasthan Judicial Service Rules, 2010:-”
The names of concerned 56 Judicial Officers were thereafter
mentioned in the Order.
25. On 15.12.2014 a final seniority list of all the Judicial Officers
who were then in service and appointed under the provisions of 1969
Rules prior to 2008 (from Serial Nos.1 to 205) was published. This
seniority list is not under challenge and is accepted to be correct by all
the concerned.
26. A Notification was issued on 31.03.2015 by the High Court
determining cumulative vacancies in the cadre of District Judge for the
years 2012-13, 2013-14, 2014-15 and 2015-16 as under:-
“In supersession of earlier Notification No.Estt.(RJS)/33/2014
dated 01.04.2014, as per Schedule-1 of RJS Rules, 2010, the
cumulative vacancies in District judge cadre for the years 2012-
13, 2-13-14, 2014-15 & 2015-16 are hereby determined and
notified as under:-
As per cadre strength
372
Total Vacancies = 207+21
228
Vacancies for Direct Recruitment   44
Vacancies for promotion by Limited
Competitive Examination
  29
Vacancies for promotion
134
*Note:- 21 future vacancies (against 10% of the total Number of
vacancies) are not assigned to any category for the present.
However, these will be given as per roster to the particular category
wherein any vacancy (ies) on account of death elevation, dismissal
etc. will arise.”
26.1 Pursuant to the selection undertaken thereafter by Order
dated
05.02.2016, 175 candidates were appointed to the cadre of District
Judge, which included recruitment through Promotion, LCE and Direct
Recruitment, . The Order stated :-
“i. This Select List in cyclic order has been prepared of the
candidates being recommended for appointment while leaving one
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post unfilled for a candidate Shri. Akhilesh Kumar selected through
Direct Recruitment. However, it is notified that this list shall remain
subject to revision after receipt of complete verification report
from State Government with regard to Shri Akhilesh Kumar and
on his being recommended by the Court for appointment, he shall
occupy the roster point in the cyclic order as he would have
occupied if included in the original list as per his position in order
or merit.
ii. This Select List in cyclic order has been prepared of the
candidates being recommended for appointment while leaving eight
posts unfilled for eight Sr. Civil Judges, failing in the zone of
consideration for promotion on merit-cum-seniority basis as their
consideration has been deferred due to pendency of departmental
enquiries against them. However, it is notified that this list shall
remain subject to revision after outcome of the departmental
enquiries with regard to the said eight Sr. Civil Judges and on their
being recommended by the court for promotion; they shall occupy
the roster point in the cycle order as they would have occupied if
included in the original list as per their position in order of interese
seniority in their feeder cadre.”
26.2. The petitioners in Writ Petition (Civil) No.895 of 2019, Writ
Petition (Civil) No.897 of 2019 and Writ Petition (Civil) No.899 of 2019
were promoted to the cadre of District Judge by aforesaid order
dated
05.02.2016.
27. Thereafter, a Provisional Seniority List was issued vide
communication dated 16.08.2017 as regards Judicial Officers from Serial
Nos. 206 onwards.  The communication recited as under:-
“TENTATIVE DETERMINATION OF SENIORITY OF THE
OFFICERS OF DISTRICT JUDGE CADRE.
****
Final Seniority List of the officers of District Judge Cadre upto
Shri Nagendra Pal Bhandari was published on 15.12.2014.
After taking into consideration, the representations received from
the officers of different categories and all relevant provisions, the
tentative/provisional seniority list of the officers of District Judge
Cadre next to Shri Nagendra Pal Bhandari is reckoned/proposed:”
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The names of all the concerned candidates were mentioned in
the Provisional Seniority List.  The candidates, who were successful in
LCE were given the original order of Seniority in the feeder cadre without
giving them any benefit for having successfully cleared the LCE.  Further
the 47 Judicial Officers promoted on 21.04.2010 were en-bloc placed
above all the appointees pursuant to selection undertaken in 2011.
28. In August 2018, Writ Petition Nos.936 of 2018 and 967 of
2018 namely Writ Petitions in Categories A and B referred to in Para 1
hereinabove were filed in this Court submitting inter alia that post the
coming into effect of 2010 Rules, all the appointments in the categories
of selection through LCE and Direct Recruitment had to be in conformity
with 2010 Rules and in tune  with the Cyclic Order; that placement of
the 47 Judicial Officers whose Appointment Orders were issued after
the process was undertaken in the year 2010 for selection of candidates
through LCE and Direct Recruitment, was not correct.
29. Notice was issued by this Court in aforesaid Writ Petition
(Civil) Nos.936 of 2018 and 967 of 2018 on 20.09.2018.  On 14.12.2018
the learned counsel for the High Court submitted that the objections to
the Provisional Lists were pending consideration with the High Court.
Therefore, at his request the petitions were adjourned.  Thereafter, the
entire matter was considered by the High Court and by its Report dated
15.03.2019 all the objections
raised by the concerned candidates were
dealt with. The report was thereafter placed on record. On 18.07.2019
when said Writ Petitions and all other connected matters were taken up,
it was highlighted that the 47 Judicial Officers were not promoted in
conformity with Rule 32(1) of 2010 Rules, and, in any case, the principle
of Cyclic Order, in terms of Rule 42, was also not complied with and yet
they were placed at Serial Nos.206 to 250.  Since the 47 Judicial Officers
were not parties to the present proceedings, notice was issued to them
by Order dated 18.07.2019.
30. In the meantime, the Report of the Committee of five Judges
of the High Court under the Chairmanship of the Chief Justice of the
High Court which had considered all the representations was placed on
record. The Committee had framed following four questions for its
consideration in said Report dated 15.03.2019:-
(1) Whether the officers, who were promoted on the post of
Additional District Judge (Fast Track) on ad-hoc basis under
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Rule 22 of the Rules of 1969, can claim seniority from the
date of such ad-hoc promotion in view of the first proviso to
Rule 24 of the Rules of 1969, by virtue of saving clause in
Rule 57 of the Rules of 2010, which were enforced on
19.01.2010?
(2) Whether the process of selection for direct recruitment
against 36 posts determined in the year 2010-11 should be
taken to have commenced from 15.04.2010 when initial
advertisement for recruitment was issued or from 19.07.2011
when fresh advertisement was issued after earlier process
was cancelled with the decision of the High Court to hold the
process of recruitment afresh?
(3) Whether seniority of officers of the same batch promoted to
the District Judge cadre in the Limited Competitive
Examination quota, should be prepared on the basis of their
inter-se placement in the merit list of such examination under
Rule 32(2) or should be, in view of Rule 47(4) of the Rules of
2010, the same as it was in Senior Civil Judge cadre?
(4) Whether seniority of the officers promoted to the District
Judge cadre in view of Rule 31(4), is required to be fixed in
cyclic order as per roster given in Schedule V to Rules of
2010 with adherence to quota-rota rule and what bearing in
the facts of the case, the opening words “As far as possible”
in Rule 42 of the Rules, would have on determination of
seniority?
30.1 Before dealing with the aforesaid four questions, the scope
of the matter was
dealt with as under:-
“The Rajasthan High Court notified the provisional seniority list
of the officers of the District Judge cadre next to Shri Nagendra
Pal Singh Bhandari on 16.08.2017, inviting objections thereto.  This
seniority list started from Shri N.S. Dhaddha at serial no.206 and
continued upto Shri Mohammad Arif at serial no.519.  Recruitment
to District Judge cadre is made by three methods – 65% by
promotion, 10% by Limited Competitive Examination (for short,
‘LCE), both from amongst the Senior Civil Judges and 25% by
direct recruitment from the members of the Bar.  The officers
from all the three streams submitted their written objections to
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the provisional seniority list.  Meeting of the Committee was
convened under the Chairmanship of the Chief Justice in the
Committee Hall of the High Court premises at Jodhpur on
06.01.2019.  Their oral submissions were also heard in support of
the written objections already submitted.
…     …     …
We may at the outset make it clear that we do not wish to unsettle
the seniority position which has attained finality insofar as final
seniority list dated 15.12.2014 is concerned, because no one from
any of the three streams of recruitment has ever challenged the
same before any forum known to law.  However, at the same
time, we wish to make it clear at this stage itself that while deciding
the objections as to correctness of the provisional seniority list
dated 16.08.2017, we may not agree and may deviate from the
principles on which the conclusions of the earlier seniority
committee in its report are founded.”
30.2 With regard to first question the conclusion arrived at by the
Committee was as under:-
“In view of the position of law discussed above, we are not
persuaded to countenance the submission that the promotes against
the posts outside the cadre should be taken to have been promoted
from the date of their ad hoc promotion either in the fast track
courts or any other court, for the purpose of grant of seniority
with reference to proviso to Rule 24 even though their regular
promotion has actually taken place after the Rules of 1969 were
repealed and the
Rules of 2010 were promulgated on 19.01.2010.
We also cannot uphold the argument that any right stood crystalized
in favour of such promotes by reason of prescription made in
proviso to Rule 24 and such right, by virtue of the savings clause
under Rule 57 of the Rules of 2010, would remain protected so as
to entitle them to claim seniority from the date of initial promotion
on ad hoc basis even if their regular promotion has taken place
later than the promulgation of the Rules of 2010. We are not
examining the correctness of the order granting selection scale to
certain officers by counting the ad hoc service towards requisite
period of five years, but that cannot justify giving the benefit of
seniority on the basis of ad hoc promotion in view of the
interpretation of the extant rules we have taken in the light of
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settled proposition of law. In our considered view, all those who
were promoted on ad hoc basis earlier under the Rules of 1969,
prior to promulgation of the Rules of 2010, can be given seniority
only from the date of their substantive appointment, upon regular
promotion, which took place after the Rules of 2010 came into
force with effect from 19.01.2010. There is therefore no legal
justification for en-bloc placement of such officers in the provisional
seniority list on the basis of revision of cadre strength, when
temporary/permanent posts included in the cadre with increase
of its strength from 150 to 245 and every time later when the
cadre strength was revised from 246 to 255, 256 to 265 and 266
to 372 respectively.”
30.3 With regard to second question the conclusion was as under:-
“In the case at hand, it should be noted that the process of
recruitment was initially notified vide advertisement dated
15.04.2010, but the entire selection process both by direct
recruitment as well by promotion through LCE was abandoned
pursuant to decision of the Full Court, which is evident from the
order of the Registrar General of the Rajasthan High Court dated
22.09.2010, whereby it was decided that recruitment process shall
be initiated afresh. New process of selection/recruitment was
started in both these categories by notification dated 19.07.2011.
Out of 41 candidates, who were selected in the year 2013 by way
of direct
recruitment pursuant to the said notification, there are at
least 15 such candidates, whose names did not find place either in
the eligibility list or rejection list, as per the information furnished
by the Examination Cell of the High Court. These names are –
(1) Shri Malkhan Singh, (2) Shri Ram Suresh Prasad, (3) Shri
Manchha Ram Suthar, (4) Shri Keshav Kaushik, (5) Shri Dinesh
Tyagi, (6) Shri Hariom Sharma Attri, (7) Shri Arun Kumar Beriwal,
(8) Shri Hukam Singh Rajpurohit, (9) Ms. Shivani Singh, (10) Shri
Mashroor Alam Khan, (11) Ramesh Prashad Choudhary, (12)
Ms. Meenakshi Sharma, (13) Ms. Anu Aggarwal, (14) Shri Kishan
Chand, and (15) Shri Satish Kumar. This proves that either they
were not eligible, or even if eligible, they did not apply in response
to the earlier notification for recruitment dated 15.04.2010.  We
are therefore not inclined to uphold the claim of direct recruits
that they should be conferred the benefit of seniority from the
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year 2010.  In any event, the direct recruits cannot claim seniority
earlier than initiation of fresh process of selection pursuant to
notification dated 19.07.2011 during the year 2011-12.  The result
of this would be that these direct recruits would not be entitled to
claim seniority over at least those 47 officers, who were promoted
on regular basis vide order dated 21.04.2010 in the year 2010-11
after the Rules of 2010 came into force.  The direct recruits cannot
therefore claim seniority above those officers, who were promoted
on regular basis soon after promulgation of the Rules of 2010,
when they were not even borne on the cadre.”
(emphasis supplied)
30.4 While dealing with third question the Committee concluded:-
“…We are therefore of the view that merit of those promoted
through LCE should by virtue of Rule 32(2) be considered as the
benchmark for promotion, inter-se seniority amongst them in the
feeder cadre being maintained by prescription of Rule 47(4), subject
to the exception that if an officer by regular method of promotion
is able to otherwise secure promotion in the same year in the
regular line on his turn and on that basis he gets a higher placement
in the seniority, regardless of his selection in the LCE, he should
not be put to a disadvantageous position and allowed to retain his
position in the seniority based on his regular promotion.  In other
words, such officer would be entitled to retain seniority, either on
the basis of LCE or
on the basis of regular promotion, whichever
is more beneficial to him.”
30.5 Finally, while dealing with fourth question, the Committee
took into account that there was no actual recruitment in the years 2012-
13, 2013-14 and 2014-15 and the recruitment process commenced by
the Notification dated 26.04.2015 was with regard to vacancies of all
four years i.e. 2012-13, 2013-14, 2014-15 and 2015-16. In the
circumstances, it was concluded:-
“As far as the period subsequent to the roster order dated
15.07.2013 is concerned, the determination of vacancies was made
every year fairly regularly as noticed above, but actual recruitment
from none of the three modes could take place in any one of the
years 2012-13, 2013-14 and 2014-15. Finally again the recruitment
process commenced by notification dated 26.04.2015 in the year
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JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
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2015-16. Since the vacancies of all four years, viz., 2012-13, 2013-
14, 2014-15 and 2015-16, were combined, even if some of the
officers were in between allowed to continue on the post of
Additional District & Sessions Judge on ad hoc basis, they cannot
in view of the afore-discussed provisions of the Rules claim
seniority on that basis. The vacancies of all these four years having
been determined as those of the year 2015-16, all the appointments,
by direct recruitment, LCE or regular promotion, should be deemed
to belong to the year 2015-16.
…. …. …
Perusal of the provisional seniority list shows that all 56 officers
starting from Shri Satish Kumar Vyas (S.No.369) upto Shri Jai
Prakash Narain Purohit (S.No.423), promoted on ad hoc basis
vide order dated 21.04.2014 as Additional District Judge in the DJ
cadre under Rule 15 of the Rules of 2010, have been wrongly
assigned higher seniority. Thereafter, 26 officers starting from
Shri Paras Kumar Jain (S.No.424*) upto Shri Jagendra Kumar
Agarwal (S.No.450), all promoted on ad hoc basis by order dated
21.04.2015 also have been wrongly assigned higher seniority in
the provisional seniority list. The next slot of officers starting from
Shri Ashok Kumar Agarwal (S.No.451) onwards though have been
promoted on regular basis by order dated 05.02.2016, but they
have been all placed en-bloc senior to those who were selected
against direct recruitment quota. Surprisingly, the
cadre strength
was initially increased with the enforcement of the Rules of 2010
on 19.01.2010, but the High Court administration has applied the
same analogy of revision of cadre strength even on three
subsequent occasions for placing all the officers appointed on ad
hoc basis en-bloc in the seniority above those directly recruited.
Some of the officers, who though got regular promotion vide order
dated 05.02.2016, deviating from the roster point indicated in the
order of promotion dated 05.02.2016, have been placed en-bloc
above the officers of direct recruitment and LCE quota by wrongly
applying the proviso to Rule 24 as if this repealed Rule would
perpetually survive by mere reason of ad hoc promotions, for each
succeeding year. Grant of benefit of seniority to officers promoted
on ad hoc basis was thus contrary to the provisions contained in
Rule 15 and 47(4).
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Taking all the aforementioned circumstances into account, we
are inclined to hold that each of the years 2012-13, 2013-14, 2014-
15 for the purpose of operating the roster system should be treated
as zero recruitment year and that the recruitment against combined
207 vacancies determined for these years and the year 2015-16,
should be taken as the vacancies of the year 2015-16 so as to
make the Rule 42 of the Rules of 2010 workable, which begins
with the phraseology “As far as possible”, a select list as provided
in Schedule-V shall be prepared by the High Court. Such select
list in the cyclic order as per the roster point was earlier prepared
by order dated 15.07.2013 and also when the next regular selections
took place vide order dated 05.02.2016 but this was not truly
reflected in the seniority list.  All the officers promoted on regular
basis by order dated 05.02.2016 should be taken to have been
substantively appointed from that date only.  If this view is taken,
no prejudice would be caused to any class of the officers as none
of them would compete for promotion/appointment in their
respective category in previous three years.  Vacancies of all
these three years having been clubbed with the vacancies of the
year 2015-16 to be determined as the vacancies of that year, each
one of them has had opportunity to compete with his fellow officers/
candidates for substantive appointment by way of promotion/LCE/
direct-recruitment, to the DJ cadre together.”
31. Mr. Ranjit Kumar, learned Senior Advocate and Mr. A.D.N.
Rao, learned Advocate for the petitioners in Writ Petition (Civil) No.936
of 2018, and Mr. P.S. Patwalia and Mr. Nitesh Gupta, learned Senior
Advocates for the petitioners in Writ Petition (Civil) No.967 of 2018
submitted that in terms of the provisions of 2010 Rules, any appointments
made after said Rules came into effect, had to be in conformity with the
principles therein and in accordance with the percentages for three
different sources set out therein.  It was submitted that before 2010
Rules came into effect, the strength of the cadre of District Judge in the
State was 150 and it got raised to 245 only after 2010 Rules came into
effect.  Relying on the decisions of this Court in  Debabrata Dash and
Another v. Jatindra Prasad Das and Others16, V.Venkata Prasad
and Others v. High Court of A.P. and Other17and in Kum C. Yamini
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
16 (2013) 3 SCC 658
17 (2016) 11 SCC 656
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v. The State of Andhra Pradesh18, it was  submitted  that  no service
rendered on ad-hoc basis  as Fast Track Court Judges could be counted
and that the rights of such candidates to be considered for promotion
arose only after 2010 Rules and that since the Notification dated
31.03.2010  notified  vacancies to be filled up by Direct Recruitment
and through LCE, the High Court could not have promoted the 47 Judicial
Officers by Order dated 21.04.2010 so as to adversely affect the chances
and status of the petitioners. It was submitted that the entire exercise
must be taken to be one single package under which appointments through
all three sources could be undertaken after the vacancies became
available by enhancement of cadre strength; and that the entire exercise
undertaken after issuance of the Notification on 31.03.2011 was nothing
but continuation of what was contemplated by the Notification dated
15.04.2010. It was, therefore, submitted that the vacancies which were
subject matter of Notification dated 31.03.2011 and the posting of the 47
Judicial Officers pursuant to Order dated 21.04.2010 must be considered
as part of the same process. Resultantly, the placement of the concerned
candidates ought to be governed by the Cyclic Order enumerated in
Schedule VII to 2010 Rules. Reliance was placed on the decision of this
Court in Union of India and Others v. N. R. Parmar and Others19.
Mr. Nikhil Singhvi, learned
Advocate for the petitioners in Writ
Petition (Civil) Diary No.13252 of 2019 added another dimension in
respect of LCE candidates. It was submitted that in keeping with the
directions issued by this Court in para 28 in All India Judges’
Association1 the promotions through LCE must be “strictly on the basis
of merit” and that Rule 31(2) of 2010 Rules translates the same principle
and, therefore, the ranking of the candidates who had cleared LCE must
be in accordance with merit and not in accordance with their inter se
seniority in the erstwhile cadre.
32. On the other hand, Mr. R. Balasubramanian, learned Senior
Advocate and Ms. Prerna Singh, learned Advocate appearing for the 47
candidates submitted that said candidates were promoted well before
the initiation of selection process initiated pursuant to the Notification
dated 31.03.2011; that said Notification was not in continuation of the
process initiated in 2010; that  number of candidates who were selected
in the selection process pursuant to the Notification dated 31.03.2011
18  (2019) 10 SCALE 834 = 2019(8) JT 365
19 (2012) 13 SCC 340
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had not even participated in the process initiated in 2010 and the
Committee of the High Court in its Report dated 15.03.2019 rightly
answered Question No.2 in the negative. In their submission, the issue
of regular promotion of those who were manning the Fast Track Court
on ad-hoc basis was always under consideration right from 23.08.2008
when a Committee of the High Court had made its recommendations. In
the process, the case of the 47 candidates stood on a completely different
footing  and the Committee of the High Court in its Report dated
15.03.2019 rightly acknowledged their entitlement.
33. Mr. Vijay Hansaria, learned Senior Advocate appearing for
the petitioners in Writ Petition (Civil) No.464 of 2019 submitted that all
these petitioners were appointed on ad-hoc basis as Fast Track Court
Judges in the year 2008 and as a matter of fact, 4 Judicial Officers who
were also appointed along with these petitioners in the year 2008 were
part of the list of the 47 candidates at Serial Nos.44 to 47 whereas these
petitioners were not included in said list. These Petitioners, therefore,
pray that the order dated 15.03.2019 be set aside to the extent it deprived
said petitioners of their rightful due and they be given seniority from
their initial appointment as Judges of the Fast Track Court that is from
11.01.2008 or, at least, above all LCE candidates and Direct Recruits as
was given to the 47 candidates. It was further submitted that out of 83
Fast Track
Courts which were mentioned in Part A of Schedule II to
2010 Rules, 40 Courts were abolished on 31.03.2011 and the petitioners
were continued as Additional District Judges against vacant regular posts
vide Order dated 31.03.2011. However, their substantive promotion to
the Cadre of District Judge was made on 15.07.2013 along with the
Direct Recruits and candidates through LCE. It was submitted that their
initial appointments being under 1969 Rules and the fact that they were
occupying posts indicated in Part A of Schedule II as stated above, their
case would be covered by Rule 57 of 2010 Rules. It was however
accepted that some of the petitioners had participated in the LCE around
that time.
34.  Mr.  Neeraj Jain, learned Senior Advocate for the Association
in Writ Petition (Civil) No.1471 of 2018 submitted that as acknowledged
in the decision of this Court in Rajasthan Judicial Service Officers
Association11 there were 41 Direct Recruits in the Cadre of District
Judges in the year 2009 and as such it was incorrect to assess the
vacancies for Direct Recruits in the Notifications dated 15.04.2010 and
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
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31.03.20111 at the level of 36 and 37 respectively. In his submission the
allocation of vacancies to Direct Recruits was in excess of their
entitlement.
35. Mr. V.K. Shukla, learned Senior Advocate appeared for the
petitioners in Writ Petition (Civil) No.899 of 2019, who were promoted
on ad-hoc basis as Additional District and Sessions Judges to man the
Fast Track Courts on 21.04.2010 i.e. after 2010 Rules had come into
force and who were substantively promoted to the Cadre of District
Judge by Order dated 05.02.2016. It was submitted that their services at
the level of Additional District and Sessions Judge were continued even
after abolition of Fast Track Courts and thus said petitioners ought to be
given the benefit of past service and be conferred appropriate seniority.
36. Dr. Sumant Bhardwaj, learned Advocate appeared for the
petitioner in Writ Petition (Civil) No.1008 of 2019, where the petitioner
stands on similar footing as in Writ Petition (Civil) No.899 of 2019, in
that the ad-hoc promotion to the Cadre of District Judge was granted in
the year 2012.
37. Dr. Manish Singhvi, and Mr. Sanjay Hegde, learned Senior
Advocates appearing for the State and the High Court respectively
supported the actions taken by the High Court on the administrative
side.
38. In the backdrop of the facts and circumstances on record and
the submissions of all the learned Counsel, following questions arise for
our consideration:-
(A) Whether the judicial officers promoted on ad-hoc basis as
Additional District and Sessions Judges to man the Fast Track Courts in
the State and who were substantively appointed to the Cadre of the
District Judge, are entitled to seniority from the date of their initial ad-
hoc promotion?
(B) Whether the selection process initiated in terms of the
Notification dated 31.03.2011 can be said to be in continuation of the
process initiated under Notification dated 15.04.2010?
(C) Whether the substantive promotion granted to the 47 Judicial
Officers must be taken to be part of the same selection process pursuant
to the Notification dated 31.03.2011 and whether the 47 Judicial Officers
could be placed en-bloc senior to the candidates selected in said selection
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process initiated pursuant to the Notification dated 31.03.2011, without
applying the Cyclic Order in terms of 2010 Rules?
(D) Whether the inter se placement of candidates selected to the
Cadre of District Judge in the State through Limited Competitive
Examination, in the seniority list must be based on their merit in said
examination or should it be based on their initial seniority in the erstwhile
cadre?
(E) Whether the Report dated 15.03.2019 and the consequential
Final Seniority List, otherwise calls for any modification or correction?
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 issue.
(A) In Debabrata Dash and Another v. Jatindra Prasad Das
and Others16, a Bench of three Judges of this Court considered the
case wherein respondent No.1 was initially appointed as Additional
District Judge (Fast Track Court) on ad-hoc basis and later his service
was regularized in the Senior Branch Cadre in Orrisa Superior Judicial
Service. His claim that service rendered as Judge of the Fast Track
Court ought to be reckoned for seniority was accepted by the Orissa
High Court. This Court, however, set aside the decision of the High
Court.  The
question that came up for consideration was posed in para
28 as under:-
“28. The crucial question that arises for consideration in
this appeal is:
whether promotion of the writ petitioner as an ad hoc
Additional District Judge vide Notification dated 5-1-2002 to the
Senior Branch of the Superior Judicial Service for being posted in
the Fast Track Court established out of the Eleventh Finance
Commission recommendations can be said to be an appointment
in the Senior Branch Cadre of Superior Judicial Service?
The fate of the appeal depends upon the answer to this
question. If the answer to this question is found in the affirmative,
the appeal must fail. On the other hand, the appeal must succeed
if the answer is in the negative.”
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
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This Court thereafter considered the effect of 2001 Rules which
were made to regulate the recruitment of Judicial Officers in the State
to man Fast Track Courts on ad-hoc basis. Para 35 considered the effect
of the Rules as under:-
“35. As noted earlier, 72 posts of ad hoc Additional District Judges
were created under the 2001 Rules to meet its objectives. These
posts were not part of cadre strength of Senior Branch Service in
the 1963 Rules nor by creation of these posts under the 2001
Rules, the cadre strength of the Senior Branch of service got
increased. The writ petitioner’s promotion as an ad hoc Additional
District Judge vide Notification dated 5-1-2002 pursuant to which
he joined the post of ad hoc Additional District Judge, Bargarh on
26-4-2002 is traceable wholly and squarely to the 2001 Rules.
Merely because the writ petitioner was adjudged suitable on the
touchstone of the 1963 Rules, we are afraid, it cannot be said that
he was given appointment to the post of ad hoc Additional District
Judge under the 1963 Rules. As noted above, there was no vacancy
to be filled by promotion in the cadre strength of Senior Branch of
the service under the 1963 Rules on that date.”
The decisions of this Court in Direct Recruit Class II Engg.
Officers’ Assn.20 and Rudra Kumar Sain21 as well as in Brij Mohan
Lal6 were also considered as under:-
41. A five-Judge Bench of this Court in Direct Recruit
Class II Engg. Officers’
Assn.20 was concerned with a question
of seniority in service between the direct recruits and promotees
amongst Deputy Engineers in the State of Maharashtra. This Court
considered previous decisions of this Court, including S.B.
Patwardhan v. State of Maharashtra22 and Baleshwar Dass v.
State of U.P.23 and in para 47 of the Report summed up the legal
position. Clauses (A), (B) and (C) of para 47 are relevant for the
present purpose which read as follows: (Direct Recruit Class II
Engg. Officers’ Assn.20, SCC p. 745, para 47)
“(A) Once an incumbent is appointed to a post according
to rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation.
20 (1990) 2 SCC 715
21 (2008) 8 SCC 25
22 (1977) 3 SCC 399
23 (1980) 4 SCC 226
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The corollary of the above rule is that where the initial appointment
is only ad hoc and not according to rules and made as a stop gap
arrangement, the officiation in such post cannot be taken into
account for considering the seniority.
(B) If the initial appointment is not made by following
the procedure laid down by the rules but the appointee continues
in the post uninterruptedly till the regularisation of his service
in accordance with the rules, the period of officiating service
will be counted.
(C) When appointments are made from more than one
source, it is permissible to fix the ratio for recruitment from the
different sources, and if rules are framed in this regard they
must ordinarily be followed strictly.”
The essence of direction in Clause (A) is that the seniority of an
appointee has to be counted from the date of his appointment and
not according to the date of his confirmation once a recruitee is
appointed to a post according to the rules. In other words, where
initial appointment is only ad hoc and not according to the rules
and made as a stopgap arrangement, the officiation in such post
cannot be taken into account for considering the seniority. The
writ petitioner’s appointment as an ad hoc Additional District Judge
is not traceable to the 1963 Rules. The simple reason leading to
this consequence is that there was no vacancy available which
was to be filled up by promotion on that date in the Superior Judicial
Service (Senior Branch).
42.
In Rudra Kumar Sain21 a five-Judge Bench of this Court
was again concerned with the inter se seniority between the promotees
and direct recruits in the Delhi Higher Judicial Service. The contention
was whether the guidelines and directions given by this Court in
O. P. Singla24 have been followed or not. The Court considered the 3
terms “ad hoc”, “stopgap” and “fortuitous” in the context of the service
jurisprudence and in para 20 of the Report held as under: (Rudra Kumar
Sain case21, SCC p. 45)
“20. In service jurisprudence, a person who possesses the
requisite qualification for being appointed to a particular post
24 (1984) 4 SCC 450
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
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and then he is appointed with the approval and consultation of
the appropriate authority and continues in the post for a fairly
long period, then such an appointment cannot be held to be
‘stopgap or fortuitous or purely ad hoc’. In this view of the
matter, the reasoning and basis on which the appointment of
the promotees in the Delhi Higher Judicial Service in the case
in hand was held by the High Court to be ‘fortuitous/ad hoc/
stopgap’ are wholly erroneous and, therefore, exclusion of those
appointees to have their continuous length of service for
seniority is erroneous.”
The Division Bench in the impugned order25 has quoted the above
paragraph from Rudra Kumar Sain21 but applied it wrongly.
43. In Brij Mohan Lal (1)6 a three-Judge Bench of this
Court, inter alia, considered the Fast Track Courts Scheme. In
para 10 of the judgment, this Court gave various directions.
Direction 14 in that paragraph is relevant which can be
paraphrased as follows: (SCC p. 10)
(i) No right will be conferred on judicial officers in service
for claiming any regular promotion on the basis of his/her
appointment on ad hoc basis under the Scheme.
(ii) The service rendered in the Fast Track Courts will
be deemed as service rendered in the parent cadre.
(iii) In case any judicial officer is promoted to higher
grade in the parent cadre during his tenure in Fast Track Courts,
the service rendered in Fast Track Courts will be deemed to
be
service in such higher grade.
44. The learned Senior Counsel for the writ petitioner
heavily relied upon the third part of Direction 14. As a matter of
fact, this part has been relied upon in the impugned judgment1 as
well. It is submitted on behalf of the writ petitioner that on promotion
to the Senior Branch Cadre of Superior Judicial Service during
his tenure in the Fast Track Courts, the writ petitioner is entitled
to the counting of the service rendered by him in the Fast Track
Court as a service in Superior Judicial Service (Senior Branch).
25 Jatindra Prasad Das v. State of Orissa, WP(C) No.21449 of 2011, decided on
15-11-2011 (Ori)
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The submission overlooks the first two parts of Direction 14, one,
no right will be conferred in judicial service for claiming any regular
promotion on the basis of his/her appointment on ad hoc basis
under the scheme; and two, the service rendered in Fast Track
Courts will be deemed as service rendered in the parent cadre. In
our opinion, until the vacancy occurred in the cadre of Superior
Judicial Service (Senior Branch) which was to be filled up by
promotion, the service rendered by the writ petitioner in the Fast
Track Court cannot be deemed to be service rendered in the
Superior Judicial Service (Senior Branch). Rather until then, he
continued to be a member of the parent cadre i.e. Superior Judicial
Service (Junior Branch). The third part of Direction 14, in our
view, does not deserve to be read in a manner that overrides the
1963 Rules.”
(B) In V. Venkata Prasad and Others v. High Court of A.P.
and Others17, a Bench of two Judges of this Court considered the case
which arose in almost identical fact situation.  The claim of the concerned
Judicial Officer for reckoning the service rendered as Additional District
Judge (Fast Track Courts) on ad-hoc basis was rejected.  Reliance was
placed on the decision of this Court in Debabrata Dash19 and the ratio
in that decision was followed.
(C) In Kum C. Yamini v. The State of Andhra Pradesh18 a
bench of three Judges of this Court considered the issue where the
candidates from the Bar were appointed on ad-hoc
basis and after their
consideration, claim was raised to reckon their seniority from the date of
initial ad-hoc appointment. The relevant observations are :-
“12. While rejecting the claim for their absorption and challenge
to the notification issued for the recruitment in the regular cadre
posts, certain directions were issued in Brij Mohan Lal (2) (supra)
for considering the claims of ad hoc judges appointed to Fast Track
Courts into regular cadre posts. Following the directions only, the
second respondent has issued notification inviting applications for
appointments to the regular cadre of District Judges and appellants
and others responded to such notification and totally 12 of them
were selected for regular vacancies. In the appointment order
dated 02.07.2013 in G.O.MS. No.68 issued by Law (LA & J-
SC.F) Department, they were put on probation for a period of
two years and after the declaration of successful probation and
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
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nearly after four years of appointment, the present claim is made
claiming seniority from the date of their initial appointment, as ad
hoc District Judges.
13. The claim of the appellants that they were appointed as ad
hoc District Judges by following the procedure which is similar to
the procedure for appointments to the sanctioned posts in the
regular cadre, is no ground to accede to their request to reckon
their seniority in the permanent cadre of District Judges, from
their initial appointment as the District Judges for the Fast Track
Courts. The appointments which came to be made for selecting
District Judges for Fast Track Courts sanctioned under the 11th
Finance Scheme are totally different and distinct, compared to
appointments which are to be made for regular vacant posts of
District Judges covered under A.P. Higher Judicial Service. If a
person is not appointed to any post in the cadre, such person cannot
claim any seniority over the persons who are appointed in vacant
posts in the cadre. The Fast Track Courts which were sanctioned
initially for five years from the grants of 11th Finance Commission,
were continued in some States beyond such period with the
assistance, from States and such Fast Track Courts were
discontinued in some other States. Merely on the ground that they
were selected by following the same procedure akin to that of
regular selections, is no ground to consider their claim for grant of
seniority from the date of initial appointment. When their claim
for regularisation/absorption and challenge to notification issued
in the year 2004 for making selections to the vacant regular posts
of District Judges is rejected by the High Court and confirmed by
this Court, we are of the view that the appellants have no basis to
claim seniority from the date of initial appointment. In any event,
having applied in response to the notification issued by the High
Court in the year 2013 after availing the benefit of appointment, it
is not open to the appellants to question the conditions imposed in
the order which is in conformity with rules. Undisputedly, appellant
was appointed as ad hoc District Judges to preside over the Fast
Track Courts only. Initially when she was not appointed to a post
or category of posts, forming part of cadre strength in such
category, appellant cannot claim any seniority over the persons
regularly appointed in the category of posts forming part of cadre
strength. There is yet another ground to reject the claim of the
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appellant. Though the appellant claims seniority over the persons
who are appointed in regular vacant posts forming part of cadre
strength but they are not even made parties. On this ground also,
the claim of the appellants deserves rejection.
14. We have perused the judgment relied on by the appellant party
in person, in the case of Rudra Kumar Sain & Ors. v. Union of
India & Ors. (supra). In the aforesaid case, issue relates to claim
of seniority between direct recruits and promotees. Learned senior
counsel Sri Venkataramani, has also relied on the judgments of
this Court in the case of Brij Mohan Lal (1) v. Union of India &
Ors. (supra); in the case of Debabrata Dash & Anr. v. Jatindra
Prasad Das & Ors. (supra); in the case of V. Venkata Prasad &
Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in the
case of Brij Mohan Lal (2) v. Union of India & Ors. (supra). We
have looked into the judgments referred above by the learned
senior counsel Sri Venkataramani and the party in person. Having
regard to issue involved in the present appeals, we are of the
view that the ratio decided in the aforesaid cases would not render
any assistance in support of their claim in these cases. The claim
of seniority will depend upon several factors, nature of
appointment, rules as per which the appointments are made and
when appointments are made, were such appointments to the
cadre posts or not etc. When the appellants were not appointed to
any regular posts in the
A.P. Judicial Service, appellants cannot
claim seniority based on their ad hoc appointments to preside over
Fast Track Courts. We are of the view that the ratio decided in
the said judgments relied on by the appellants would not render
any assistance in support of their case.
15. On the other hand, the judgment in the case of V. Venkata
Prasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra),
this Court has, in clear terms, while considering A.P. State Higher
Judicial Service Special Rules for Ad Hoc Appointments, 2001
held that such appointments in respect of Fast Track Courts are
ad hoc in nature and no right accrues to such appointees. The
aforesaid view of this Court clearly supports the case of the
respondents. Paragraph 25 of the said case which is relevant for
the purpose of these cases reads as under : “25. From the aforesaid
two authorities, it is quite clear that the appointments in respect of
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
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Fast Track Courts are ad hoc in nature and no right is to accrue to
such recruits promoted/posted on ad hoc basis from the lower
judiciary for the regular promotion on the basis of such appointment.
It has been categorically stated that FTC Judges were appointed
under a separate set of rules than the rules governing the regular
appointment in the State Higher Judicial Services.”
The decisions in Debabrata Dash16, and V. Venkata Prasad17
were in the context where serving Judicial Officers were granted ad-
hoc promotions as Fast Track Court Judges, while in C. Yamini18 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
negative.
40. 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 process.
41. 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
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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 15.07.2013.
If 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
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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 attracted.
It 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 appropriate. The expression “as far as possible”
was, therefore, relied upon by this Court in Para 34 of its decision in
Veena Verma12. It would also be instructive to refer to a decision of this
Court in State of M.P. v. Narmada Bachao Andolan and Another26,
where the expression “as far as possible” was explained:-
““As far as possible”
38. The aforesaid phrase provides for flexibility, clothing
the authority concerned with powers to meet special situations
where the
normal process of resolution cannot flow smoothly.
The aforesaid phrase can be interpreted as not being prohibitory
in nature. The said words rather connote a discretion vested in
the prescribed authority. It is thus discretion and not compulsion.
There is no hard-and-fast rule in this regard as these words give
a discretion to the authority concerned. Once the authority
exercises its discretion, the court should not interfere with the
said discretion/decision unless it is found to be palpably arbitrary.
(Vide Iridium India Telecom Ltd. v. Motorola Inc.27 and High
Court of Judicature for Rajasthan v. Veena Verma12.) Thus, it
is evident that this phrase simply means that the principles are to
be observed unless it is not possible to follow the same in the
particular circumstances of a case.”
26 (2011) 7 SCC 639
27 (2005) 2 SCC 145
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41.1. We must at this stage deal with submissions based on the
decision of this Court in N.R. Parmar19. In that case a Bench of two
Judges of this Court while considering O.N. dated 20.12.1999 and
02.02.2000 had concluded as under:-
“31.2. It is not necessary, that the direct recruits for
vacancies of a particular recruitment year, should join within the
recruitment year (during which the vacancies had arisen) itself.
As such, the date of joining would not be a relevant factor for
determining seniority of direct recruits. It would suffice if action
has been initiated for direct recruit vacancies, within the recruitment
year in which the vacancies had become available. This is so,
because delay in administrative action, it was felt, could not deprive
an individual of his due seniority. As such, initiation of action for
recruitment within the recruitment year would be sufficient to
assign seniority to the appointees concerned in terms of the
“rotation of quotas” principle, so as to arrange them with other
appointees (from the alternative source), for vacancies of the same
recruitment year.
…
34.1. If the process of recruitment has been initiated during
the recruitment year (in which the vacancies have arisen) itself,
even if the examination for the said recruitment is held in a
subsequent year, and the result is declared in a year later (than
the one in which the examination was held), and the selected
candidates joined in a further later year (than the one
in which the
result was declared), the selected candidates will be entitled to be
assigned seniority, with reference to the recruitment year (in which
the requisition of vacancies was made). The logic and reasoning
for the aforesaid conclusion (expressed in the ON dated 2-2-2000)
is, if the process of direct recruitment is initiated in the recruitment
year itself, the selected candidate(s) cannot be blamed for the
administrative delay, in completing the process of selection.”
Relying on the aforementioned observations, it was submitted that
the candidates selected through Direct Recruitment and LCE on
15.07.2013 could not be prejudiced if the High Court on the administrative
side had segregated the issue of promotion of the 47 Judicial Officers on
one hand and the selection through Direct Recruitment and LCE on the
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other; and the time lag of three years between the appointments would,
therefore, be of no consequence.
The decision in N.R. Parmar19 was thereafter relied upon by
another Bench of two Judges of this Court in Hon’ble Punjab and
Haryana High Court v. State of Punjab and others28. In that case,
the recruitment from three different sources to the cadre of District
Judge was done on three different dates but in the same year.  Paragraphs
50 to 53 of said decision may be extracted as under:-
50. At this juncture, one of the submissions, which has been
emphatically pressed by the learned Counsel for the promotees is
that for determination of seniority, continuous length of service is
determinative. The direct recruits and out of turn promotees, who
were not even born in the cadre when promotees were promoted,
they have to take seniority after the promotees. In this reference,
it is useful to refer to a judgment of this Court in Union of India
and Ors. v. N.R. Parmar and Ors. (2012) 13 SCC 340, the issue
in the said case was also an issue of determination of seniority
between direct recruits vis-à-vis promotees and quota and rota
principles. This Court had occasion to consider the office
memorandum issued by the Government dated 22.12.1959.
Noticing Para 6 of above office memorandum following was stated
in Para 23 of the judgment:
23. The General Principles for determining seniority in the Central
Services are shown to have
been laid down in an annexure to an
Office Memorandum dated 22-12-1959 issued by the Government
of India, Ministry of Home Affairs (hereinafter referred to as
“the OM dated 22-12-1959”). Para 6 of the annexure, referred to
above, laid down the manner of determining inter se seniority
between direct recruits and promotees. Para 6 is being extracted
hereunder:
6. Relative seniority of direct recruits and promotees.—The
relative seniority of direct recruits and of promotees shall be
determined according to the rotation of vacancies between
direct recruits and promotees which shall be based on the quotas
of vacancies reserved for direct recruitment and promotion
respectively in the Department Rules.
28 (2019) 12 SCC 496
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It is apparent from the above extract of the OM dated 22-
12-1959, that the “quota” between promotees and direct recruits
was to be read into the seniority rule. The OM also provided for a
definite rotation of seniority points (“rota”) between promotees
and direct recruits. The rotation provided for was founded on the
concept of rotation of quotas between promo-tees and direct
recruits. It is therefore apparent, that under the OM dated 22-12-
1959 inter se seniority between the promotees and direct recruits
was based on the “quota” and “rota” principle. The same has
been meaningfully described as “rotation of quotas” in some of
these instruments.
51. There was further office memorandum on 07.02.1986 to take
care of situation where it was decided that in future, while the
principle of rotation of quotas will still be followed for determining
the inter-se seniority of direct recruits and promotees, the present
practice of keeping vacant slots for being filled up by direct recruits
of later years, thereby giving them unintended seniority over
promotees who were already in position, would be dispensed with.
This Court noticed office memorandum dated 07.02.1986 and
observed that “when direct recruits or promotees become available
through later examinations or selections”, it clearly mean that the
situation contemplated is one where, there has been an earlier
examination or selection, and is then followed by a “later”
examination or selection.
52. In the above
context, this Court laid down following in
Paragraph 31.2 that “it is not necessary, that the direct recruits of
a particular recruitment year, should join within the recruitment
year itself”. It was held that date of joining would not be a relevant
factor for determining seniority of direct recruits. In paragraph
31.2 and 34.1 following has been laid down:
31.2. It is not necessary, that the direct recruits for vacancies
of a particular recruitment year, should join within the
recruitment year (during which the vacancies had arisen) itself.
As such, the date of joining would not be a relevant factor for
determining seniority of direct recruits. It would suffice if action
has been initiated for direct recruit vacancies, within the
recruitment year in which the vacancies had become available.
This is so, because delay in administrative action, it was felt,
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could not deprive an individual of his due seniority. As such,
initiation of action for recruitment within the recruitment year
would be sufficient to assign seniority to the appointees
concerned in terms of the “rotation of quotas” principle, so as
to arrange them with other appointees (from the alternative
source), for vacancies of the same recruitment year.
34.1. If the process of recruitment has been initiated during
the recruitment year (in which the vacancies have arisen) itself,
even if the examination for the said recruitment is held in a
subsequent year, and the result is declared in a year later (than
the one in which the examination was held), and the selected
candidates joined in a further later year (than the one in which
the result was declared), the selected candidates will be entitled
to be assigned seniority, with reference to the recruitment year
(in which the requisition of vacancies was made). The logic
and reasoning for the aforesaid conclusion (expressed in the
ON dated 2-2-2000) is, if the process of direct recruitment is
initiated in the recruitment year itself, the selected candidate(s)
cannot be blamed for the administrative delay, in completing
the process of selection.
53. In the present case, process for all the three streams was
completed in the year 2008 and all the officers of three streams
had joined in the same year. The submission that quota rota Rule
was broken or seniority will be
affected because of joining of one
category of officers earlier cannot be accepted. It is also relevant
to notice that purpose of statutory Rules and laying down a
procedure for recruitment was to achieve the certainty. Officers
belonging to different streams have to be confidant that they shall
be recruited under their quota and get seniority as per their quota
and roster. In event, the seniority is to be fixed with date of joining
of particular stream, it will lead to uncertainty and making seniority
depending on administrative authorities, which is neither in the
interest of service nor serve the cause of justice. We, thus, conclude
that roster is fully applicable for determination of seniority. Officers
of different streams selected in a particular year even though
they were allowed to join the post on different dates shall not
affect their inter se seniority, which is to be decided on the basis
of roster.”
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41.2 It must, however, be stated that the decision in N.R*.
Parmar19 has since then been overruled by a Bench of three Judges of
this Court in K. Meghachandra Singh and Ors. vs. Ningam Siro and
Others29. The relevant paragraphs of said decision are as under:
5. Before the Writ Court, the promotees contended that they
entered the MPS Grade II Cadre on 01.03.2007 whereas the
private Respondent Nos. 3 to 33 were appointed subsequently
(on 14.08.2007 and 24.11.2007 respectively) and, therefore, they
should be regarded as senior to the direct recruits.
6. The direct recruits on the other hand claimed seniority over the
promotees by contending that seniority has to be decided in
accordance with the year of the vacancy and not by the fortuitous
date on which, the appointment could be finalized for the direct
recruits.
…
13. It was also made clear that the promotees will naturally have
seniority over the Appellants as they had entered the cadre of
MPS Grade II, before the Writ Appellants were borne in the cadre.
…
17. The Senior Counsel cites Union of India and Ors. v. N.R.
Parmar, (2012)13 SCC 340, to argue that when action was initiated
for filling up the 2005 vacancies, the administrative delay in
finalization of the recruitment leading to delayed appointment
should not deprive the individual of his due seniority. By referring
to the rotation of quota principle, the counsel argues that initiation
of action for recruitment in the year of the vacancy would be
sufficient, to assign seniority from that year.
…
20. Representing the Respondents/promotees, the learned Senior
Counsel, Shri Jaideep Gupta refers to the MPS Rules, 1965 to
argue that the provisions of the Rules make it abundantly clear
that inter-se seniority in the cadre of MPS Grade-III is to be
determined by the order in which appointments are made to the
service. The counsel pointedly refers to Rules 28 (i) where it is
29 (2019) SCC Online SC 1494
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specified that the ....... seniority in the service shall be determined
by the order in which appointments are made to the service.......
He also refers to the later part of Rule 28(iii), where again it is
specified that the “seniority of the officer...... shall be counted
from the date, he/she is appointed to the service............ . The
provisions in Rule 16(iii) are pressed home by Mr. Gupta to argue
that only when the person is appointed, he shall be deemed to
have been appointed to the service from the date of encadrement.
21. The judgment in N.R. Parmar (Supra) is read with equal
emphasis by Mr. Gupta to firstly point out that this case does not
lay down the correct law in determination of seniority. The counsel
highlights the incongruity in a situation where a person who entered
service later will claim seniority above those who joined service
at an earlier point of time. The applicability of the ratio in N.R.
Parmar (Supra) to the litigants in the present case is also questioned
by Mr. Gupta by pointing out that the provisions of MPS Rules,
1965 applicable for the officers in the Manipur Police Officers,
was not the subject of consideration in N.R. Parmar (Supra), and,
therefore, the said ratio relatable to Income Tax Inspectors, with
different Service Rules, will not apply to the present case.
…
29. Before proceeding to deal with the contention of the Appellants’
Counsel vis-à-vis the judgment in N.R.
Parmar (Supra), it is
necessary to observe that the Law is fairly well settled in a series
of cases, that a person is disentitled to claim seniority from a date
he was not borne in service. For example, in J.C. Patnaik (Supra)30
the Court considered the question whether the year in which the
vacancy accrues can have any bearing for the purpose of
determining the seniority irrespective of the fact when the person
is actually recruited. The Court observed that there could be time
lag between the year when the vacancy accrues and the year
when the final recruitment is made. Referring to the word
“recruited” occurring in the Orissa Service of Engineers Rules,
1941 the Supreme Court held in J.C. Patnaik (Supra) that person
cannot be said to have been recruited to the service only on the
basis of initiation of process of recruitment but he is borne in the
post only when, formal appointment order is issued.
30 (1998) 4 SCC 456
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30. The above ratio in J.C. Patnaik (Supra) is followed by this
Court in several subsequent cases. It would however be
appropriate to make specific reference considering the seniority
dispute in reference to the Arunachal Pradesh Rules which are
pari materia to the MPS Rules, 1965, (vide (2007) 15 SCC 406-
Nani Sha and Ors. v. State of Arunachal Pradesh and Ors.).
Having regard to the similar provisions, the Court approved the
view that seniority is to be reckoned not from the date when
vacancy arose but from the date on which the appointment is
made to the post. The Court particularly held that retrospective
seniority should not be granted from a day when an employee is
not even borne in the cadre so as to adversely impact those who
were validly appointed in the meantime.
31. We may also benefit by referring to the Judgment in State of
Uttar Pradesh and Ors. v. Ashok Kumar Srivastava and Anr.
(2014) 14 SCC 720. This judgment is significant since this is
rendered after the N.R. Parmar (Supra) decision. Here the Court
approved the ratio in Pawan Pratap Singh and Ors. v. Reevan
Singh and Ors. (2011) 3 SCC 267, and concurred with the view
that seniority should not be reckoned retrospectively unless it is
so expressly provided by the relevant service Rules. The Supreme
Court held that seniority cannot be given for an employee who is
yet to be borne in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the
meantime. The law so declared in Ashok Kumar Srivastava (supra)
being the one appealing to us, is profitably extracted as follows:
24. The learned Senior Counsel for the Appellants has drawn
inspiration from the recent authority in Pawan Pratap Singh v.
Reevan Singh where the Court after referring to earlier
authorities in the field has culled out certain principles out of
which the following being the relevant are produced below:
45. (ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry in a
particular service or the date of substantive appointment is the
safest criterion for fixing seniority inter se between one officer
or the other or between one group of officers and the other
recruited from different sources. Any departure therefrom in
the statutory rules, executive instructions or otherwise must
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be consistent with the requirements of Articles 14 and 16 of
the Constitution.
.....................
45. (iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given retrospectively
unless it is so expressly provided by the relevant service rules.
It is so because seniority cannot be given on retrospective basis
when an employee has not even been borne in the cadre and
by doing so it may adversely affect the employees who have
been appointed validly in the meantime.
…
34. In the above context, it is also necessary to refer to the relevant
advertisement issued in 2005 for direct recruitment which allowed
the aspirants to apply even if, their result in the qualification
examination is awaited. Even more intriguing and significant is
the relaxation that those proposing to appear in the qualifying
examination are also allowed to respond to the advertisement. If
such be the nature of the process initiated (in the year 2005) for
making direct recruitment, we can easily visualize a situation where,
in the event of granting seniority from the stage of commencing
the process, a person when eventually appointed, would get
seniority from a date even before obtaining the qualification, for
holding the post.
…
38. When we carefully read the judgment in N.R. Parmar (Supra),
it appears to us that the referred OMs (dated 07.02.1986 and
03.07.1986) were not properly construed in the judgment.
Contrary
to the eventual finding, the said two OMs had made it clear that
seniority of the direct recruits be declared only from the date of
appointment and not from the date of initiation of recruitment
process. But surprisingly, the judgment while referring to the
illustration given in the OM in fact overlooks the effect of the said
illustration. According to us, the illustration extracted in the N.R.
Parmar (Supra) itself, makes it clear that the vacancies which
were intended for direct recruitment in a particular year (1986)
which were filled in the next year (1987) could be taken into
consideration only in the subsequent year’s seniority list but not in
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the seniority list of 1986. In fact, this was indicated in the two
OMs dated 07.02.1986 and 03.07.1986 and that is why the
Government issued the subsequent OM on 03.03.2008 by way of
clarification of the two earlier OMs.
39.  At this stage, we must also emphasize that the Court in N.R.
Parmar (Supra) need not have observed that the selected candidate
cannot be blamed for administrative delay and the gap between
initiation of process and appointment. Such observation is fallacious
in as much as none can be identified as being a selected candidate
on the date when the process of recruitment had commenced.
On that day, a body of persons aspiring to be appointed to the
vacancy intended for direct recruits was not in existence. The
persons who might respond to an advertisement cannot have any
service-related rights, not to talk of right to have their seniority
counted from the date of the advertisement. In other words, only
on completion of the process, the Applicant morphs into a selected
candidate and, therefore, unnecessary observation was made in
N.R. Parmar (Supra) to the effect that the selected candidate
cannot be blamed for the administrative delay. In the same context,
we may usefully refer to the ratio in Shankarsan Dash v. Union of
India (1991) 3 SCC 47, where it was held even upon empanelment,
an appointee does not acquire any right.
40. The Judgment in N.R. Parmar (Supra) relating to the Central
Government employees cannot in our opinion,
automatically apply
to the Manipur State Police Officers, governed by the MPS Rules,
1965. We also feel that N.R. Parmar (Supra) had incorrectly
distinguished the long-standing seniority determination principles
propounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Gupta
and Ors. v. State of J&K and Ors. (2000) 7 SCC 561 and Pawan
Pratap Singh and Ors. v. Reevan Singh and Ors. (Supra). These
three judgments and several others with like enunciation on the
law for determination of seniority makes it abundantly clear that
under Service Jurisprudence, seniority cannot be claimed from a
date when the incumbent is yet to be borne in the cadre. In our
considered opinion, the law on the issue is correctly declared in
J.C. Patnaik (Supra) and consequently we disapprove the norms
on assessment of inter-se seniority, suggested in N.R. Parmar
(Supra). Accordingly, the decision in N.R. Parmar is overruled.
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However, it is made clear that this decision will not affect the
inter-se seniority already based on N.R. Parmar and the same is
protected. This decision will apply prospectively except where
seniority is to be fixed under the relevant Rules from the date of
vacancy/the date of advertisement.
41. As noted earlier, the Learned Single Judge based his judgment
on two propositions but the Division Bench was of the view that
result would be the same merely on the basis of one of the two
propositions and, therefore, it was unnecessary to pronounce upon
the other proposition. Such an approach cannot therefore be
described as a conflict (as has been suggested), between the two
judgments. Both Benches were absolutely consistent in their
conclusion that promotees would have to be given seniority over
direct recruits. It cannot therefore be argued that by some
convoluted reasoning, it is possible to come to the conclusion that
the orders passed by the two Courts would result in diametrically
opposite situation namely, that direct recruits would have to be
given seniority over promotees.”
41.3 The facts noted in paragraph 5 of the decision in
Meghachandra Singh29 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 Parmar19
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 cadre.
41.4 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 31.03.2011. Writ
Petition (Civil) Nos.936 of 2018 and 967 are, therefore, dismissed.
42. While considering Question (D), it is relevant to notice the
emphasis placed by this Court in All India Judges Association1 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
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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
merit.”
Rule 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 etc.
However, 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 promotion.
If 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 LCE.
The direction issued in All India Judges Association1 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 Rules.
In 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 category.
We, therefore, accept the submissions made by the learned
Advocate for the petitioners in Writ Petition (Civil) No.498 of 2019* and
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
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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
cadre.  Said Writ Petitions are allowed to that extent.
43. We now deal with the submissions advanced in Writ Petition
(Civil) Nos.464 of 2019 and 899 of 2019 and other similar matters.
It 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 Court.
The 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 Promotion.
The 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
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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 effect.
Once 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 selection.
We, therefore, see no merit in Writ Petition (Civil) No. 464 of
2019 and said Writ Petition is dismissed.
The 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.
For the reasons stated hereinabove, their entitlement on substantive basis
has to be reckoned only from 05.02.2016 and not from any earlier date.
Writ Petition (Civil) No.899 of 2019 and other connected matters are,
therefore, dismissed. Thus, while answering Question (E), we conclude
that the Report dated 15.03.2019 does not call for
any modification,
except to the extent dealt with in answer to Question (D).
44. Concluding thus, we direct:-
(a) Writ Petition (Civil) No.498 of 2019* and Writ Petition (Civil)
_______ of 2020 [D. No.13252 of 2019] are allowed to the
extent indicated above.
(b) Consequently, the seniority list issued in terms of Report
dated 15.03.2019 shall stand modified only to the extent that
appropriate placement to the candidates selected through LCE
be given on the basis of their merit in the examination and not
on the basis of their seniority in the erstwhile cadre.  Let the
appropriate changes be made within four weeks of this
Judgment.
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
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(c) Except to the extent indicated in direction (b) above, the
Report dated 15.03.2019 does not call for any modification or
clarification.
(d) All other writ petitions are dismissed.
Divya Pandey
Writ Petitions disposed of.