Supreme Court of India

B. S. Yadav And Others Etc vs State Of Haryana And Others Etc on 5 November, 1980

Equivalent citations: 1981 AIR 561, 1981 SCR (1)1024

Author:
Y.V. Chandrachud

Bench:
Y.V. Chandrachud
,
P.N. Bhagwati
,
V.R. Krishnaiyer
,
V.D. Tulzapurkar
,
A.P. Sen

PETITIONER:
B. S. YADAV AND OTHERS ETC.

Vs.

RESPONDENT:
STATE OF HARYANA AND OTHERS ETC.

DATE OF JUDGMENT05/11/1980

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
KRISHNAIYER, V.R.
TULZAPURKAR, V.D.
SEN, A.P. (J)

CITATION:
1981 AIR 561 1981 SCR (1)1024
1980 SCC Supl. 524
CITATOR INFO :
R 1982 SC1244 (14)
F 1984 SC 161 (52)
R 1984 SC 850 (17)
R 1985 SC1681 (5)
F 1987 SC 415 (16,17)
RF 1987 SC1832 (1)
R 1988 SC 488 (9)
D 1988 SC1153 (2)

ACT:
Constitution of India, 1950-Articles 235 and 309,
proviso-scope of- Governor, if could make rules regulating
conditions of service of judicial officers-If could
retrospectively amend the rules-determination of inter se
seniority of judicial officers and declaring that an officer
has satisfactorily completed the period of probation,
Governor if competent to do-period of probation if could be
reduced in individual cases without exceptional
circumstances justifying reduction.
Rule of rotation, if could be read into rule of quota
of direct recruits and promotees-vacant post for promotees,
if could be filled by confirmation of a direct recruit and
vice versa.

HEADNOTE:
Exercising power under the proviso to
Art. 309
of the
Constitution (which empowers the Governor to make rules
regulating the recruitment and conditions of service of
persons appointed to services and posts in connection with
the affairs of the State) the Governor of Punjab, in
consultation with the Punjab High Court, framed the Punjab
Superior Judicial Service Rules, 1963. The rules provide for
the direct recruitment as well as appointment by promotion
from the Punjab Civil Service (Judicial branch). Under rule
8(2), two third of the total number of cadre posts have to
be manned by promoted officers and one-third by direct
recruits. Under rule 10(1) direct recruits have to remain on
probation for two years provided that the Government may, in
exceptional circumstances, reduce the period of probation in
consultation with the High Court. The period of probation of
an officer can be extended by the Governor beyond the period
of two years in consultation with the High Court but not so
as to exceed a total period of three years. Rule 10(2)
empowers the Governor to confirm in consultation with the
High Court a direct recruit on a cadre post with effect from
a date not earlier than the date on which he completes the
period of probation. Rule 12 (now in force in Haryana)
provides that the seniority of direct recruits and promoted
officers shall be determined with reference to the
respective dates of their confirmation.
Under the Punjab Rules as amended retrospectively with
effect from April 9, 1976 'cadre post' means a permanent as
well as a temporary post in the service. The inter se
seniority of the members of the service is to be deter mined
by the length of continuous service on a post in the service
irrespective of the date of confirmation.
The three petitioners in the Haryana writ petitions
were selected for recruitment to the Punjab Civil Service
(Judicial Branch) in a competitive examination and after the
formation of the State of Haryana, they were promoted in an
officiating capacity to the Haryana Superior Judicial
Service in 1967 and 1968. Respondent No. 3 who was a direct
recruit to the Haryana Superior Judicial Service was
appointed as a District and Sessions Judge on July 7,
1970 and was confirmed in that post on July 7, 1972 on the
completion of A two year probationary period. The three
petitioners were confirmed as District and Sessions Judges
with effect from July 8, 1972.
In the case of judicial officers of Punjab, although
there were ten vacancies in the quota of promoted officers
and an equal number of promoted officers were officiating
for more than three years as Additional District and
Sessions Judges, the High Court did not confirm the
promotees in those vacancies but confirmed the promotees and
the direct recruits by applying the rule of rotational Six
direct recruits were given prior dates of confirmation in
comparison with the promotees, as a result of which the
confirmation of eight promotees was postponed. In the case
of some direct recruits confirmation was given within a
period of one year and four months though the period of
probation was two years.
Rule 12 was amended retrospectively from April 9, 1976
by which seniority was to be determined by the length of
continuous service on a post in the service irrespective of
the date of confirmation
Rejecting the plea of one of the direct recruits that
the rules not only required the application of a rule of
quota at the time of appointment but also required the
application of a rule of rotation at the time of
confirmation, the High Court held that rules 8 and 12 were
independent of each other, that rotational system could not
be implicitly read in the quota rule provided for by rule 8
and that members of the Superior Judicial Service were
entitled to claim seniority strictly in accordance with the
provisions of rule 12. The promotees complained that this
decision rendered by the High Court in its judicial capacity
was not being followed by the High Court in the discharge of
its administrative duties and that seniority of the
promotees and direct recruits must be fixed without applying
the rule of rotation at the time of confirmation. It was
also stated that after the amendment of rule 12 in 1976
although two vacancies of District and Sessions Judges arose
on each of these occasions the High Court promoted a direct
recruit treating the date of his confirmation as the
criterion of seniority.
It was contended on behalf of the promotees in Haryana
that the control which the High Court exercises under
Art.
over the subordinate judiciary does not include the
power to make rules regulating the condition of service of
judicial officers but that since the power conferred on the
Governor under the proviso to
Art. 309
to make rules is
legislative in nature the principle of independence of
judiciary is not in any manner violated when the Governor
makes the rules. On the other hand it was contended on
behalf of the High Court that the control over the
subordinate judiciary vested in the High Court by
Art. 235

being exclusive in nature, the power to frame rules in
regard to the seniority of judicial officers must reside in
the High Court and not in the Governor.
It was contended on behalf of the promotees that the
quota of 2: 1 provided for by rule 8 is applicable only at
the time of initial recruitment and that there was no
warrant for extending the application of that rule at the
time of confirmation.
Partly allowing the Petitions;
^
HELD: There is no force in the contention that the
Governor has no power to make rules of seniority of District
and Sessions Judges. [1058B]
On a plain reading of Arts. 235 and 309 of the
Constitution it is clear that the power to frame rules
regarding seniority of officers in the judicial service of
the State is vested in the Governor and not in the High
Court. The first part of
Art. 235
vests the control over
District Courts and courts subordinate thereto in the High
Court. But the second part of that Article says that nothing
in the article shall be construed as taking away from any
person belonging to the judicial service of the State any
right of appeal which he may have under the law regulating
the conditions of his service or as authorising the High
Court to deal with him otherwise than in accordance with the
conditions of his service prescribed under such law. Thus,

Art. 235
itself defines the outer-limits of the High Court's
power of control over the District Courts and courts
subordinate thereto. In the first place, in the exercise of
its control over the District Courts and subordinate courts
it is not open to the High Court to deny to a member of the
subordinate judicial service of the State the right of
appeal given to him by the law which regulates the
conditions of his service. Secondly, the High Court cannot,
in the exercise of its power of control, deal with such
person otherwise than in accordance with the conditions of
his service which are prescribed by such law. [1052C]
There is no power in the High Court to pass a law
though rules made by the High Court in the exercise of power
conferred upon it in that behalf may have the force of law.
Law which the second part of
Art. 235
speaks of is law made
by the Legislature. The clear meaning, therefore, of the
second part of
Art. 235
is that the power of control vested
in the High Court by the first part will not deprive a
judicial officer of the rights conferred upon him by a law
made by the Legislature regulating his conditions of
service. [1052G-H]

Article 235
does not confer upon the High Courts the
power to make rules relating to conditions of service of
judicial officers attached to District Courts and the courts
subordinate thereto. Whenever it was intended to confer on
any authority the power to make any special provision or
rules including rules relating to conditions of service, the
Constitution has stated so in express terms. For example the
provisions contained in
Articles 225
, 227(2)

& (3)
and

229(1)

& (2)
confer powers on the High Court to frame rules
for certain specific purposes.
Art. 229(2)
which is directly
in point provides that subject to the provisions of any law
made by Legislature of the State the conditions of service
of officers of a High Court shall be made by the High Court.
The framers of the Constitution would not have failed to
incorporate a similar provision in
Art. 235
if it was
intended that the High Courts should have the power to make
rules regulating the conditions of service of judicial
officers in the subordinate judiciary. [1053B-F]
The power of control vested in the High Court by
Art.
is expressly made subject to the law which the State
Legislature may pass for regulating the recruitment and
service conditions of judicial officers of the State. The
framers of the Constitution did not regard the power of the
State Legislature to pass laws regulating the recruitment
and conditions of service of judicial officers as an
infringement of the independence of the judiciary. The mere
powers to pass such a law is not violative of the control
vested in the High Court over the State judiciary. [1053H;
1054C]
In order that there may be no vacuum until the passing
of a law by the Legislature on the subject, the Constitution
has made provision under the proviso to
Art. 309
that until
the State Legislature passes a law on the
particular subject, it shall be competent to the Governor of
the State to A make rules regulating the recruitment and
conditions of service of the judicial officers of the State.
The power exercised by the Governor under the proviso is
thus a power which the Legislature is competent to exercise
but has in fact not yet exercised. It partakes of the
characteristics of the legislative, not executive, power. It
is legislative power. [1054D-F]
That the Governor possesses legislative power under the
Constitution is incontrovertible. Just as under
Art. 213
the
Governor substitutes tor the Legislature because the
Legislature is in recess so under the proviso to
Art. 309
he
substitutes for the Legislature because the Legislature has
not yet exercised its power to pass an appropriate law on
the subject. [1054G and 1055B-C]
It is true that the power conferred by
Article 309
is
subject to the provisions of the Constitution but it is
fallacious for that reason to contend that the Governor
cannot frame rules regulating the recruitment and conditions
of service of the Judicial officers of the State. Firstly,
the power of control conferred upon High Courts by the first
part of
Article 235
is expressly made subject, by the second
part of that Article, to laws regulating conditions of
service of its Judicial officers. Secondly, the Governor, in
terms equally express, is given the power by the proviso to

Article 309
to frame rules on the subject. [1055B-C]
A combined reading of Arts. 235 and 309 will yield the
result that though the control over the subordinate courts
is vested in the High Court the appropriate Legislature and
until that Legislature acts the Governor of the State has
the power to make rules regulating the recruitment and the
conditions of service of judicial officers of the State. The
power of the Legislature or of the Governor thus to
legislate is subject to all other provisions of the
Constitution like Arts. 14 and 16. [1055D-E]
The second part of
Art. 235
recognises the legislative
power to provide for recruitment and the conditions of
service of the judicial officers of the State. The
substantive provision of
Art. 309
, including its proviso,
fixes the location of the power. The opening words of
Art.
limit the amplitude of that power. [1055F]
Seniority is undoubtedly an important condition of
service. The control vested in the High Court by the first
part of
Art. 235
is, therefore subject to any law regulating
seniority as envisaged by the second part of that article.
The power to make such law is vested by
Art. 309
in the
Legislature and until it acts, in the Governor. Whether it
is the Legislature which passes an Act or the Governor who
makes rules regulating seniority, the end product is law
within the meaning of second part of
Art. 235.
The
Legislatures of Punjab and Haryana not having passed an Act
regulating seniority of the respective State judicial
officers, the Governors of the two States have the power to
frame rules for that purpose under the proviso to
Art. 309

of the Constitution Such rules are subject to the provisions
of the Constitution and to the provisions of any Act which
the appropriate Legislature may pass on the subject. [1055G-
H]
The law passed by the Legislature or the rules made by
the Governor can provide for general or abstract rules of
seniority leaving it to the High Court to apply them to each
individual case as and when the occasion arises. The power
to legislate on seniority being subject to all other
provisions of the Constitution cannot be exercised in a
manner which will affect or be detrimental to the control
vested in the High Court by
Art. 235.
[1056B-C]
Though the Legislature or the Governor has the power to
regulate seniority of judicial officers by laying down rules
of general application, that power cannot be exercised in a
manner which will lead to interference with the control
vested in the High Court by the first part of
Art. 235.
In a
word, the application of law governing seniority must be
left to the High Court. The determination of seniority of
each individual judicial officer is a matter which
indubitably falls within the area of control of the High
Court over the district courts and the courts subordinate
thereto. For the same reason, though rules of recruitment
can provide for a period of probation, the question whether
a particular judicial officer has satisfactorily completed
his probation or not is a matter which is exclusively in the
domain or the High Court to decide. [1056E-F]]
The independence of the judiciary has to be preserved.
at all costs. But at the same time the Legislature or the
Governor cannot be deprived of their legitimate legislative
powers under
Art. 309.
That power is subject to all other
provisions of the Constitution which means that the power
cannot be exercised in a manner which will lead to the
violation of Arts. 14 or 16 or the pervasive ambit of the
first part of
Art. 235.
Since the power conferred by
Art.
is not absolute or untrammeled it will be wrong to test
the validity of that power on the anvil of its possible
abuse. [1057 A-B]
High Court of Punjab and Haryana v. State of Haryana,
[1975] 3 SCR 355, Union of India v. Justice S. H. Sheth,
[1978] 1 S.C.R. 423., A. P. High Court v. Krishnamurthy,
[1979] 1 S.C.R. 26 & State of Bihar v. Madan Mohan Prasad,
[1976] 3 S.C.R. 110, referred to.
Rule 8 as its very heading shows, provides for a
distinct condition of ser vice with reference to a specific
point of time, namely "recruitment to service". The language
of the rule also indicates that the operation of this rule
is confined to the stage of initial recruitment to the
service either by promotion or by direct appointment from
the Bar. [1063F]
The reservation contemplated by rule 8 is intended to
be made at the stage of initial appointment only by
reserving two third of the total number of posts in the
cadre for promotees and one third for direct recruits. A
post which falls vacant in the quota of promotees cannot be
filed by the confirmation of a direct recruit therein nor
indeed can a promotee be confirmed in a post which is within
the quota of direct recruits. [1063H]
If this be the true construction of rule 8 the method
of confirmation by rotation of direct recruits and
promotees, regardless of whether the vacancy assigned to the
particular officer falls within the quota of the class to
which he belongs will be in contravention of that rule.
[1064B]
'Appointment' is not a continuous process. The process
of appointment is complete as soon as a person is initially
recruited to the service either by promotion or by direct
recruitment and confirmation is not a part of the process of
appointment. "Recruitment to the service" is a matter which
falls within the power of the Governor under
Art. 233
while
"confirmation" is a matter of 'control' vesting in the High
Court under
Art. 235.
The superimposition of rule 8, which
fixes the quota at the stage of recruitment on the rules
relating to confirmation and seniority is, therefore,
contrary to the basic constitutional concepts governing
judicial service. [1064C-D]
The rule of rota cannot be read into the rule of quota.
In other words the ratio of 2: 1 shall have to be applied at
the stage of recruitment but cannot on the language of the
relevant rules be applied at the stage of confirmation.
[1066B]
A K. Subraman v. Union of India, [1975] 2 SCR 979, N.K.
Chauhan v. State of Gujarat, [1977] 1 SCR 1037 referred to.
Paramjit Singh Sandhu v. Ram Rakha, [1979] 3 SCR 584
held inapplicable.
The High Court was not justified in applying tho rule
of rotation at the time of confirmation of the members of
the superior judicial service who were appointed to that
service by promotion and by direct recruitment. In the
discharge of its administrative functions the High Court
could not have failed to follow a judgment of its own
special bench consisting of five Judges. [1066C-D]
High Court of Punjab and Haryana v. State of Haryana,
[1975] 3 S.C.R. 365, referred to.
On a proper interpretation of the rules, promotees are
entitled to be confirmed in the vacancies which are
available within their quota of two third, whether or not
one third of the vacancies are occupied by confirmed direct
recruits. Similarly direct recruits are entitled to be
confirmed in vacancies which are available within their
quota of one third whether or not two third of the vacancies
are occupied by confirmed promotees. [1067D-E]
The fairness which Arts. 14 and 16 postulate is that it
a promotee is otherwise fit for confirmation and a vacancy
falling within the quota of promotees is available in which
he can be confirmed, his confirmation ought not to be
postponed until a direct recruit, whether yet appointed or
not, completes his period of probation and thereupon becomes
eligible for confirmation. The adoption of this principle in
the matter of confirmation will not, in practice, give any
undue advantage to the promotees. [1067D-E].
In so far as the confirmation of respondents 6, 7 and 8
is concerned, in the absence of exceptional circumstances
justifying the reduction of their normal probationary period
of two years, the order of the High Court confirming he
three respondents before they were normally due for
confirmation cannot be upheld. The order is in clear
violation of the guarantee of equal opportunity, by the
petitioners were prejudiced and must for that reason be sel
aside. [1067G-H]
The power conferred by the proviso to rule 10(1) on the
Governor is ex-facie bad because such a power directly
impinges upon the control vested in the High Court by
Art.
of the Constitution. If at all any authority could
exercise such a power, it is the High Court and not the
Governor. The rules must now be understood to mean that the
High Court and not the Governor has the power of
confirmation, that the normal period of probation of direct
recruits is two years and that unless there are exceptional
circumstances in regard to each individual case, a direct
recruit cannot be confirmed from a date earlier than the
date on which he has satisfactorily completed his probation
of two years. The High Court is not free to fix any period
of probation as it likes or to reduce the period of two
years at its will and pleasure. [1068B-E]
As regards The power of the Governor to amend a rule
with retrospective effect, since he exercises a legislative
power under proviso to
Art. 309
it is open to him to give
retrospective effect to the rules made under that provision.
But the date from which the rules are made to operate must
be shown to bear
either from the face of the rules or by extrinsic evidence
reasonable nexus with the provisions contained in the rules,
especially when the retrospective effect extends over a long
period. In the instant case rule 12 which was amended
retrospectively from April 9, 1976 by a notification dated
December 31, 1976 is invalid because no such nexus is shown
to exist. [1068F-H]

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition Nos. 4228-4230 of
1978 and 266 of 1979.

(Under
Article 32
of the Constitution)
V. M. Tarkunde, O. P. Malhotra, K. N. Bhatt, Vijay
Kumar Verma and R. C. Kathuria for the Petitioners in WPs
4228-4230/78.

Y. S. Chitale (Dr.), Lala Ram Gupta, C. R.
Somashekharan, M. S. Ganesh, P. N. Jain and M. V. Goswami
for the Petitioners in W.P. 266/79.

5. N. Kackar, S. N. Ashri, R. N. Sachthey and M. N.
Shroff for Respondent 1 in WP 4228-4230/78.

Soli J. Sorabjee, and Hardev Singh for R. 2 in WPs
4228-30 of 1978 and 266/79.

F. S. Nariman, B. R. Tuli and R. S. Sodhi for RR 3-11
in WP 266/79.

Kuldip Singh, Prem Malhotra and R. S. Mongia for R. 3
in WPs 4228-30/78 and intervener.

A. K. Sen and Mrs. Urmila Kapoor for R. 1 in WP 266/79.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-These Writ Petitions under
Article 32

of the Constitution involve the consideration of a two-fold
controversy: first, as to the rules governing seniority
between direct recruits and promotees appointed to the
Superior Judicial Services of Punjab and Haryana and second,
between the control over district courts and subordinate
courts vested in the High Court by
Art. 235
and the power
conferred upon the Governor by the proviso to
Art. 309
of
the Constitution to make rules regulating the recruitment
and conditions of service of persons appointed, inter alia,
to the Judicial Service of the State.

We have two sets of Writ Petitions before us which
involve identical points except for one material difference
which we will mention later. Writ Petitions 4228 to 4230 of
1978 are filed by three judicial officers of the State of
Haryana who are promotees, that is to say, who were promoted
to the Superior Judicial Service of the State
from the Haryana Civil Service (Judicial Branch).
Respondents 1 and 2 to those Writ Petitions are the State of
Haryana and the High Court of Punjab and Haryana
respectively. Respondent 3, Shri N. S. Rao, is a direct
recruit, having been appointed from the Bar to the Haryana
Superior Judicial Service. Writ Petition 266 of 1979 is
filed by twenty-two promotees, that is to say, those who
were promoted to the Punjab Superior Judicial Service from
the Punjab Civil Service (Judicial Branch). Respondents 1
and 2 to that petition are the State of Punjab and the High
Court of Punjab and Haryana respectively. Respondents 3 to
11 were appointed directly from the Bar to the Punjab
Superior Judicial Service.

Some of the more important grievances of the
petitioners are that their seniority qua direct recruits is
wrongly and unjustly made to depend upon the fortuitous
circumstance of the date of their confirmation in the
Superior Judicial Service; that even if a substantive
vacancy is available, the confirmation of a promotee in that
vacancy is postponed arbitrarily and indefinitely, that
promotees are treated with an unequal hand qua direct
recruits: for example, a promotee, despite his satisfactory
performance and the availability of a substantive vacancy in
which he can be confirmed, is continued in an officiating
capacity until after a direct recruit completes his
probation and is due for confirmation, and that, the High
Court applies the principle of rotation as between promotees
and direct recruits at the time of their confirmation when,
in fact, that the relevant rules provide for is the
application of a rule of quota at the time of their
appointment.

These grievances of the promotees can best be
understood in the light of the following facts: The three
petitioners in the Haryana Writ Petitions were selected for
recruitment to the Punjab Civil Service (Judicial Branch)
after qualifying in a competitive examination. They were
appointed as Subordinate Judges in 1950. By Act 3 of 1966,
the State of Haryana came into existence on November li
1966. Petitioners 1 and 2-Shri B. S. Yadav and Shri V. P.
Aggarwal- were promoted in an officiating capacity to the
Haryana Superior Judicial Service on July 28 and October 7,
1967 respectively, while petitioner No. 3 Shri A. N.
Aggarwal, was promoted similarly on March 27, 1968.
Respondent 3, Shri N. S. Rao who as a member of the Bar was
working as a District Attorney, was appointed directly to
the Haryana Superior Judicial Service with effect from July
7, 1970. The normal period of his two years' probation
expired on July 7, 1972 but before the issuance of the
orders of his confirmation, a complaint dated August 2, 1977
was received against him. That complaint was inquired into
by a High Court Judge who, by his report of March 1973, held
it to be unfounded. Respondent 3
was thereupon confirmed by the High Court as a District and
Sessions Judge with effect from March 30, 1973. By a
notification dated May 4, 1973 that date was corrected to
July 7, 1972 being the date on which Respondent 3 completed
the two years' probationary period. By the same
notification, the High Court confirmed the Petitioners and
two other promotees as District and Sessions Judges with
effect from July 8, 1972. Thus, the petitioners, who were
officiating continuously in the Superior Judicial Service of
the State as Additional District and Sessions Judges for two
or three years prior to the appointment of Respondent 3
directly to that service, lost their seniority over him by
being allotted a date of confirmation which was one day
later than the date on which he completed his probationary
period.

(A small digression will be permissible here. The
Government of Haryana was unwilling to concede to the High
Court the right to confirm a Judicial officer. It
disregarded the High Court's order whereby Shri N. S. Rao
was confirmed and passed an order reverting him to the post
of a District Attorney which he was holding at the time of
his appointment as a District and Sessions Judge. Rao filed
a Writ Petition in the High Court to challenge the order of
the Government. The High Court set aside his reversion on
certain other grounds but it held by a majority (N. S. Rao
v. State of Haryana that the power to confirm a direct
recruit vested in the Governor and not in the High Court.
A
Constitution Bench or this Court reversed the view of the
High Court and held by a unanimous judgment (High Court of

Punjab and Haryana v. State of Haryana
), that the power to
confirm a District and Sessions Judge resides in the High
Court and not in the Governor).

In the Punjab Writ Petition, the contesting parties are
twenty-two promotees who have filed the writ petition and
Respondents 3 to 11 who were appointed directly to the
Punjab Superior Judicial Service. Petitioner No. 1, Shri
Pritpal Singh, was promoted to that Service on November 12,
1969 when he was 44 years of age. Respondent 3, Shri J. S.
Sekhon, was appointed directly to that Service on February
1, 1973 when he was 41 years of age. The former, though
promoted to the Superior Judicial Service more than three
years before the appointment of Respondent 3, was confirmed
on February 3, 1975 which was one day later than February 2,
1975 on which date Respondent 3 was confirmed on the
completion of his two years' probation. The grievance of
Petitioner No. 1 is that a permanent vacancy was available
on December 23, 1972 in which
he could have been confirmed but the High Court marked time
in order to enable Respondent 3 to complete his probation
and gave to Petitioner 1 an arbitrary and artificial date of
confirmation in order that he may not rank higher in
seniority to Respondent 3.

The case of Petitioner 1 in the Punjab Writ Petition is
illustrative of the grievance of the other petitioners.
Petitioners 2 to 6 were Promoted to the Superior Judicial
Service between January 1972 and August 1972. Petitioner 7
was promoted in April 1973, Petitioners 8 to 10 in August
1974, Petitioners 11 to 16 in 1975, Petitioner 17 in 1976,
Petitioners 18 to 20 in 1977 and Petitioners 21 and 22 in
1978. Respondents 4 and 5 were recruited directly in January
1973 and were confirmed in February 1975 on the completion
of the probationary period. Their confirmation is open to no
exception but, Petitioners 2 and 3 Shri Amarjit Chopra and
Shri H. S. Ahluwalia who were promoted on January 16 and
August 21, 1972 were confirmed on August 6 and August 7,
1975 respectively. The significance of these dates of
confirmation becomes apparent in relation to the
confirmation of respondents 6 and 7. Having been appointed
directly to the Superior Judicial Service on the 1st and 2nd
of April 1975, they were confirmed on the 2nd and 5th August
1976 respectively, which was even before they had completed
their probationary period. Petitioners 2 and 3 who were
promoted to the Superior Judicial Service roughly three
years prior to the direct appointment of Respondents 6 and 7
were confirmed on the 6th and 7th August, 1976 which was
three or four days later than the dates of confirmation
allotted to Respondents 6 and 7. Petitioners 4 to 22 whose
dates of promotion to the Superior Judicial Service range
between August 1972 and July 1978 were not yet confirmed
when the Writ Petition was filed on February 27, 1979.

Do the rules which apply to the members of the Superior
Judicial Services of Punjab and Haryana warrant this course
of action and how far are the rules valid ? For deciding
these questions we must necessarily have a look at the
relevant rules.

The recruitment to the Punjab Superior Judicial Service
and the other conditions of service of the members thereof
are regulated by the "Punjab Superior Judicial Service
Rules, 1963" as amended from time to time. These rules were
originally framed by the Governor of Punjab in consultation
with the Punjab High Court, in exercise of the powers
conferred on the Governor by the proviso to
Art. 309
of the
Constitution. By that proviso, the Governor has the power to
make Rules regulating the recruitment and the conditions of
service of persons appointed to services and posts in
connection with the affairs of the State
Rules 2, 4, 8, 9, 10, 11, 12 and 14 of the aforesaid
rules which are relevant for the present purposes read as
follows in so far as they are material:

Rule 2: Definitions.-(1) 'appointment to the
service' means an appointment to a cadre post, whether
on permanent, temporary or officiating basis, or on
probation;

(2) 'cadre post' means a permanent post in the
Service;

(6) 'member of the Service' means a person-

(a) who immediately before the commencement of
these rules, holds a cadre post, whether on
permanent, temporary or officiating basis, or
on probation; or

(b) who is appointed to a cadre post in
accordance with the provisions of these
rules;

(7) 'Promoted officer' means a person-

(a) who is not a direct recruit and is holding a
cadre-post whether on permanent, temporary or
officiating basis or on probation,
immediately before the commencement of these
rules; or

(b) who is appointed to the Service by promotion
from Punjab Civil Service (Judicial Branch).

Rule 4: Appointing Authority-All appointments to
the Service shall be made by the Governor in
consultation with the High Court.

Rule 8: Recruitment to service-(1) Recruitment to
the Service shall be made-

(i) by promotion from the Punjab Civil Service
(Judicial Branch); or

(ii) by direct recruitment.

(2) of the total number of cadre-posts, two-third
shall be manned by promoted officers and one-

third by direct recruits:

Provided that nothing in this sub-rule shall
prevent the officiating appointment of a member of the
provincial Civil Service (Judicial Branch) on any post
which is to be filled up by direct recruitment, till a
direct recruit is appointed.

Rule 9: Appointment of direct recruits.-(1) No
person shall be eligible for direct recruitment unless
he-

(i) is not less than 35 years and not more than
45 years of age on the first day of January
next following the year in which his
appointment is made;
(ii) has been for not less than 7 years an
Advocate or a pleader and is recommended by
the High Court for such appointment
(2) No person who is recommended by the High Court
for appointment under sub-rule (i) shall be appointed
unless he is found physically fit by a Medical Board
set up by the Governor and is also found suitable for
appointment in all other respects.

Rule 10: Probation.-(1) Direct recruits to the
Service shall remain on probation for a period of two
years, which may be so extended by the Governor in
consultation with the High Court, as not to exceed a
total period of three years;

(2) on the completion of the period of probation
the Governor may, in consultation with the High Court,
confirm a direct recruit on a cadre-post with effect
from a date not earlier than the date on which he
completes the period of probation;

(3) If the work or conduct of a direct recruit
has, in the opinion of the Governor, not been
satisfactory he may, at any time, during the period of
probation or the extended period of probation, if any,
in consultation with the High Court, and without
assigning any reason, dispense with the services of
such direct recruits.

Rule 11: Reversion of promoted officers the work
of E a promoted officer officiating on a cadre-post
has, in the opinion of the Governor, not been
satisfactory, he may, at any time during the period of
officiation, in consultation with the High Court,-

(i) revert him to his substantive post; or

(ii) deal with him in such other manner as may be
warranted by the terms and conditions of his
substantive appointment.

Rule 12: Seniority-The seniority, inter se, of the
substantive members of the Service, whether direct
recruits of promoted officers, shall be determined with
reference to the respective dates of their
confirmation.

Provided that the seniority, inter se, of
substantive members of the Service having the same date
of confirmation shall be determined as follows:

(i) in the case of direct recruits the older in
age shall be senior to the younger;

(ii) in the case of promoted officers, in
accordance with the seniority in the Punjab
Civil Service (Judicial Branch) as it stood
immediately before their confirmation;
(iii) in the case of promoted officers and direct
recruits, the older in age shall be senior to
the younger.

Rule 14: Selection Grades.-(1) The members of the
Service shall be eligible for promotion, permanently or
provisionally, to the following selection grade posts,
carrying scales of pay specified against them: Two
Selection Grade posts in the time scale of Rs. 1800-
100-2000; and Two Selection Grade posts at a fixed pay
of Rs. 2,250.

(2) Promotion to the Selection grade posts shall
be made on merit and suitability in all respects with
due regard to seniority and no member of the Service
shall be entitled as of right to suck promotion.
Appendix to the rules shows that the Punjab Superior
Judicial Service consisted then of 20 posts: one Legal
Remembrancer and Secretary to Government, Punjab,
Legislative Department; 15 District and Sessions Judges; and
4 Additional District and Sessions Judges.

These rules were amended from time to time with or
without the consultation of the High Court. The relevant
amendments are these:

On February, 1966 the Governor of Punjab, in exercise
of the powers conferred by the proviso to
Art. 309
of the
Constitution and all other powers enabling him in this
behalf, promulgated the "Punjab Superior Judicial Service
(First Amendment) Rules, 1966". By clause 2 of these rules
the following proviso was added to sub-rule (1) of rule 10
of the 1963 Rules:

"Provided that the Governor may in exceptional
circumstances or any case, after consulting the High
Court, reduce the period or probation".

On December 31, 1976 the Governor of Punjab, in
exercise of the powers conferred by the proviso to
Art. 309

of the Constitution and all other powers enabling him in
this behalf, made the "Punjab Superior Judicial Service
(Second Amendment) Rules, 1976" in consultation with the
High Court of Punjab and Haryana. These rules were given
retrospective effect from April 9, 1976. Rule 2(2) of the
1963 Rules defined a 'cadre post' to mean a permanent post
in the service. Clause 2 of the Second Amendment Rules
substituted the following sub-rule (2) in rule 2 for the
original sub-rule:

"2(2) 'cadre post' means a permanent or temporary post
in the service .
Rule 12 of the 1963 Rules provided that the seniority, inter
se, of the substantive members of the Service, whether
direct recruits or promoted officers, shall be determined
with reference to the respective dates of their
confirmation. Clause 3 of the Second Amendment Rules
substituted the following rule for the original rule 12:

"12. Seniority.-The seniority, inter se, of the
members of the service, shall be determined by the
length of continuous ser vice on a post in the Service
irrespective of the date of confirmation;
Provided that in the case of two members appointed
on the same date, their seniority shall be determined
as follows:

(i) in the case of direct recruits, the older in
age shall be senior to the younger;

(ii) a member recruited by direct appointment
shall be senior to a member recruited
otherwise; and

(iii) in the case of members appointed by
promotion, seniority shall be determined
according to the seniority of such members in
the appointments from which they were
promoted."

This is how the rules stand in so far as the State of
Punjab is concerned. The State of Haryana came into
existence on November 1, 1966 by Act 3 of 1966. The Punjab
Superior Judicial Service Rules, 1963, as amended upto
November 1966 apply to the State of Haryana with the
amendments made from time to time by the Governor of
Haryana.

On March 17, 1971 certain formal amendments were made
to the 1963 Rules by the Haryana First Amendment Rules,
1971. On April 21, 1972 the Governor of Haryana, in exercise
of the powers conferred by the proviso to
Article 309
of the
Constitution and all other powers enabling him in that
behalf, amended the 1963 Rules by the Haryana First
Amendment Rules, 1972, with retrospective effect from April
1, 1970. By Clause 3 of the Amendment, the definition of
"cadre post" in Rule 2(2) was amended to mean a post,
whether permanent or temporary, in the service. Rule 8(2) of
the 1963 Rules provided that the total number of cadre
posts, two-third shall be manned by promoted officers and
one-third by direct recruits. Clause 5 of the Amendment
altered this ratio by providing that of the total number of
posts, three-fourth shall be manned by promoted officers and
one-fourth by direct recruits. Rule 12 governing seniority
was amended by clause 6 in the same manner as in Punjab,
that is to say,
by providing that the seniority of the members of the
service, whether direct recruits or promoted officers, shall
be determined by the length of continuous service (in a post
in the service irrespective of the date of confirmation. As
an aside we may mention, though it has no direct relevance
in the points under consideration, that on December 3, 1976
the Governor in the exercise of his constitutional and other
power promulgated an amendment providing that:

"No person-

(a) who has more than two children and has not got
himself or herself or his or her spouse
sterilized, or

(b) who, having not more than two children, does not
give an undertaking not to have more than two
children.

shall be allowed to Join the Service."

On September, 2, 1977 the Governor in the exercise of his
constitutional and other powers further amended the 1963
Rules with retrospective effect from April 1, 1970. The
definition of 'cadre post' in rule 2(2) was once again
amended to mean "a permanent post in the Service".
Similarly, Rule 8(2) was amended for the purpose of
restoring the quota between promotees and direct recruits.
Once again, two-third of the cadre posts were to be manned
by promoted officers and one-third by direct recruits. Rule
12, which deals with seniority, was also amended so as to
restore the original position by providing that the
seniority of members of the Service will be determined with
reference to the dates of confirmation. In short, the
Haryana First Amendment Rules, 1977, which were given
retrospective effect from April 1, 1970, superseded the
amendments made by the Haryana First Amendment Rules, 1972
and restored the position as it obtained originally under
the 1963 Rules, in regard to the definition of 'cadre post',
the quota between promotees and direct recruits and the rule
of seniority.

Ever since November 1, 1966 when the State of Haryana
was formed, there has been a common High Court for the
States of Punjab and Haryana called the High Court of Punjab
and Haryana. Two separate High Courts were not created for
these two States probably because of considerations of
viability in regard to one of the States and the need to
foster a spirit of national integration. But the fact of
there being two separate Governors for the two States with
independent powers under the proviso to
Article 309
of the
Constitution has made the task of the High Court difficult
and unenviable. The Chief Justice and Judges of the Common
High Court of the two States are faced with the predicament
of applying one set or service rules to members of the
Superior Judicial Service of one State and a totally
different,
and to a large extent opposite, set of rules to those of the
other State. As the matter stands to-day, (and we mean what
we say because there is no knowing when one or the other
State will amend the rules and with what degree of
retroactivity) under the Haryana First Amendment Rules,
1977, 'cadre post' means a permanent post in the Service.
Temporary posts are not cadre posts in Haryana. In Punjab,
'cadre post' means both permanent and temporary posts in the
Superior Judiciary. The definition of 'cadre post' has a
significant bearing on the fortunes and future of judicial
officers. In Punjab, prior to the amendment made to the 1963
Rules on December 31, 1976 promotees alone used to be
appointed, though on an officiating basis, to temporary
posts in the Superior Judicial Service. Direct recruits were
not appointed to temporary posts because temporary posts
were outside the cadre and C. direct recruits were appointed
to cadre posts only, in which they were entitled to be
confirmed on the completion of the probationary period.
After the amendment, applications were invited for direct
recruitment to temporary posts also with the result that
promotees lost the opportunity of being appointed to those
posts, though on an officiating basis. Respondents 9 to 11
in the Punjab writ petition were appointed directly in July
1977 to temporary posts of Additional District and Session
Judges.

In regard to the rule of seniority, the position as it
obtains in the two States is fundamentally different: In
Punjab, under rule 12 as amended on December 31, 1976 with
retrospective effect from April 9, 1976, seniority is
determined by the length of continuous service on a post
irrespective of the date of confirmation. In Haryana, rule
12 as it stood originally was revived with effect from April
1, 1976 with the result, that seniority of judicial officers
in the Superior Judicial Service is determined with
reference to the dates of confirmation. The High Court has
to deal with one set of officers under its control on the
basis that the date of confirmation is the correct criterion
of seniority and with another set of officers, also under
its control, on the basis that the length of continuous
officiation in a post is the true test of seniority.
Whatever decision the High Court takes or is driven to take
administratively in the matter of seniority of judicial
officers becomes a bone of contention between the promotees
and direct recruits. Sometimes, the administrative decision
satisfies neither the one class nor the other, leading to a
triangular controversy. The frequent amendments to the rules
which are often given a long retrospective effect, as long
as seven years, makes the High Court's administrative
task difficult. And if the amendments are made either
without consulting the High Court or against its advice, the
High Court has a delicate task to perform because if it
adheres to its opinion, it is accused of bias and if it
gives up its stand, it is accused of being weak kneed and
vacillating. The administrative decisions taken by the High
Court in the instant cases from time to time have been
assailed by members of the Judiciary on one or the other of
these grounds. That is hardly conducive to the sense of
discipline and the feeling of brotherhood which ought to
animate the Judiciary. Surely, the State Governments of
Punjab and Haryana could have saved the High Court from this
predicament by evolving a common set of rules of seniority,
at least in the name of national integration. There is
nothing peculiar in the soil of Punjab and nothing wanting
in the soil of Haryana to justify the application of
diametrically opposite rules of service to the judicial
officers of the two States. The territories comprised in
these two States were at one time, and that too not in the
distant past, parts of the territory of the same State of
Punjab. The promotees, at any rate, who figure in these
proceedings, all flowered on the soil of Punjab but are not
told that their claim to seniority will depend upon whether
they remained in Punjab or were allotted to Haryana.

This unfortunate position has arisen largely because of
the failure of the State Governments to take the High Court
into confidence while amending the rules of service. The
amendments made in Punjab on December 3, 1966 with
retrospective effect from April 9, 1976, including the
amendment to rule 12 governing seniority, were made in the
teeth of opposition of the High Court and indeed, in so far
as tho retrospective effect of the rules ii concerned, the
amendment was made without consulting the High Court. In
Haryana, rule 12 was amended in 1972 with retrospective
effect from April 1, 1970 contrary to the advice of the High
Court. The plain infirmity of that amendment could be that
it was designed to operate to the detriment of one and only
one judicial officer who was directly recruited to the
Superior Judicial Service, namely, Shri. N. S. Rao, who is
respondent No. 3 to the Haryana Petitions. The original rule
12 was, however, subsequently, restored by the State
Government by yet another amendment dated September 4, 1977.
There was a change in the Government which evidently led to
a change in the rules, as if service rules are a plaything
in the hands of the Government. This only shows how
essential it is for the Governors, though not as a
constitutional requirement, to consult the High Court before
framing rules under the proviso to
Article 309
of the
Constitution. Consultation, be it said is not to be equated
with the formal process of asking the High Court what
opinion it holds on a particular issue. Consultation is a
meaningful prelude to the proposed action, whereby the High
Court is afforded an opportunity to discuss the matter under
consideration and to meet the Government's or Governor's
reasons for the proposed action. In the instant case, the
High Court could have made an effort to persuade one or the
other Governor to see its point of view; or else, it could
at least have impressed upon the two Governors the
imperative need to adopt an identical pattern of rules for
the two States which are blessed with a common High Court.

Little wonder then that the Superior Judicial Service
of the two States was thrown into a state of turmoil and
uncertainty. Neither promotees nor direct recruits felt
secure about their existing rank or seniority because the
rules were being amended from time to time, sometimes just
to suit the convenience, sometimes to tide over a temporary
crisis, sometimes to appease a class of officers who shouted
louder and at least once in order to strike at an
individual. The amendments to the rules led to a spate of
representations from the members of the service to the High
Court and human nature being what it is, Judicial Officers
were not wanting who sought the intercession of the
concerned State Government in order to advance the interests
of an individual or the interest of a class. Once it was
known that the Governor could ignore or defy the High Court
while framing rules of service, the centre of power shifted
from the Nyayalaya to the Mantralaya which is an undesirable
state of affairs because thereby the very independence of
the Judiciary is put in jeopardy.

Questions regarding confirmation, seniority and the
equitable integration of direct recruits and promotees had
plagued the High Court for nearly two decades, even before
the separate State of Haryana was formed. These questions
were further complicated by the changes brought about in the
rules of 1963 by the respective State Governments of Punjab
and Haryana. The case of Shri N. S. Rao, who is respondent 3
to the Haryana Writ Petition, is an eloquent illustration of
the effect of the amendments made to the rules with
retrospective effect. At the time when the Governor of
Haryana amended the rules in 1972 with retrospective effect
from April 1, 1970, Shri N. S. Rao was the only direct
recruit in the Haryana Superior Judicial Service. He was
appointed on probation on July 7, 1970. The amendment was
given retrospective effect from April 1, 1970, as if to
demote him and him alone.

In so far as the Haryana Writ Petitions are concerned
some time in February 1972 the Punjab and Haryana High Court
took up the question of confirmation of some of the
promotees, including the petitioners, against the permanent
posts which fell within the quota
of promotees out of the six permanent posts which were newly
created w.e.f. January 18, 1972. Before the High Court could
decide the question of confirmation of the promotees against
the aforesaid posts, respondent 3 made a representation to
the High Court on February 13, 1972 contending that the
ratio of 2: 1 between the promotees and direct recruits had
to be maintained at all stages, that is to say, not only at
the time of appointment but at the time of confirmation
also. The High Court appears to have postponed the
confirmation of the promotees in response to respondent 3's
representation. Later respondent 3 was confirmed with effect
from July 7, 1972. Five promotees including the three
petitioners were confirmed w.e.f. July 8, 1972, that is, a
day after respondent 3 was confirmed. The Governor of
Haryana refused to recognise the order of confirmation of
respondent 3 passed by the High Court and he reverted the
latter to the post of a District Attorney w.e.f. June 23,
1973. Respondent 3 challenged the order of his reversion by
Writ Petition No. 2147 of 1973. The Petition was heard by a
special Bench of five Judges of the High Court which set
aside the order of reversion of respondent 3 but held by a
majority that the order of respondent 3's confirmation
passed by the High Court was invalid since the power to
confirm a District & Sessions Judge was vested in the
Governor and not in the High Court. The Judgment of the High
Court is reported in
Narendra Singh Rao v. State of
Haryana
(1).

The view of the High Court regarding the power
of confirmation was set aside by this Court by its judgment
dated January 24, 1975 in High Court of
Punjab and Haryana
v. The State of Haryana.
(2). It was held by this Court that
the power to confirm a District and Sessions Judge resides
in the High Court and not in the Governor.

Petitioner No. 1 then made representations to the High
Court on February 12 and March 31, 1975 contending that
recruitment to the Superior Judicial Service was governed by
a rule of quota only and not also by the rule of rotation;
therefore, it was not open to the High Court to give an
arbitrary date of confirmation to the promotees. Petitioners
2 and 3 also made similar representations. In the meanwhile
the Governor of Haryana amended rule 12 by the Haryana First
Amendment Rules 1972 providing that the seniority of the
members of the Service, direct recruits or promoted
officers, shall be determined by the length of the
continuous service on a post in the service irrespective or
the date of confirmation. In pursuance of that amendment,
the High Court decided by an administrative order dated
November 2, 1975 that the Petitioners were senior to
respondent 3. It does not, however, appear to have taken any
decision on the representations of the petitioners that the
rule of rotation cannot be applied at the time of
confirmation.

Aggrieved by the order of the High Court that the
petitioners were senior to respondent 3 by reason of the
amended rule 12, the latter filed yet another writ petition,
No. 100 of 1977, in the High Court challenging the vires of
the amended rule 12. During the pendency of that Writ
Petition, the Governor of Haryana amended the rules again by
a notification dated September 2, 1977 rescinding the
amendment introduced to the rules in April 1972. The
original rule 12 thus having been restored, the High Court
dealt with respondent 3's writ petition on the basis that he
had automatically become senior to the petitioners. The High
Court therefore confined its judgement to the question of
inter se seniority between respondent 3 and Shri J. M.
Tandon (now a Judge of the High Court). The representations
of the petitioners appear to have been rejected by the High
Court since on June 6, 1978 respondent 3 was granted the
selection grade, presumably on the basis that he was senior
to the petitioners. It is thereafter that the petitioners
filed these writ petitions (4228 to 4230 of 1978) under
Art.
of the Constitution, claiming the following reliefs:

(a) a writ of certiorari directing respondents 1 and 2
(the State of Haryana and the High Court of Punjab
& Haryana respectively) to quash the order dated
May 4, 1973 where by respondent 3 was confirmed
w.e.f. July 7, 1972 and the order dated June 6,
1978 granting the selection grade to him;

(b) a writ of mandamus declaring rule 12 of the Rules
as violative of the fundamental rights of the
petitioners guaranteed under Articles 14 and 16 of
the Constitution; and

(c) a writ of prohibition restraining respondents 1
and 2 from taking any action on the new seniority
list or in pursuance of the orders dated May 4,
1973 and June 6, 1978.

This is the genesis of the controversy between the
promotees and direct recruits in Haryana. In Punjab, matters
were in no better shape, though it must be said to the
credit of its Governor that no amendment was made with an
evil eye on any individual Judicial Officer. In 1975, the
Association of promoted officers made a representation to
the State Government asking that in order to avoid arbitrary
dates of confirmation being given to the promotees,
continuous officiation in the service and not the date of
confirmation should be accepted as the criterion of
seniority, as was done in the case of
other employees of the Punjab Government. The State
Government forwarded that representation to the High Court
for its comments but the High Court appears to have kept the
matter pending with it for quite some time. Sometime in
1976, the State Government ultimately sent a draft
notification to the High Court proposing an amendment to the
Rules. It seems that the Government did not then convey to
the High Court its intention to give retrospective effect to
the proposed amendment. By that time, ten vacancies in the
quota of promoted officers had become available and an equal
number of promoted officers was officiating for more than
three years as Additional District and Sessions Judges. The
High Court, however, did not confirm the promotees in those
vacancies. On the contrary, apprehending that the proposed
amendment to rule 12 may be given retrospective effect, the
High Court confirmed the promotees and the direct recruits
by applying the rule of rotation. It issued a Notification
dated August 25, 1976 which was published in the Punjab
Government Gazette dated September 3, 1976, whereby
Respondents 3 to 8 were given prior dates of confirmation in
comparison with the promotees. The confirmation of eight
promotees was evidently postponed. In the case of
respondents 6 to 8, the period of probation of two years was
reduced by the High Court substantially. Respondent 6, Shri
B. S. Nehra, was appointed on probation on April 1, 1975 and
was confirmed on August 2, 1976. Respondent 7, Shri T. S.
Cheema, was appointed on probation on April 2, 1975 and was
confirmed on August 5, 1976. Respondent 8 Shri J. S. Sidhu
was appointed on April 11, 1975 and was confirmed with
effect from August 8, 1976. Thus, these direct recruits were
confirmed within a period of one year and four months after
their appointment, though the normal period of probation is
two years.

On the issuance of the Notification dated August 25,
1976, petitioner 1 addressed a representation to the High
Court stating that he was officiating in the Superior
Judicial Service with effect from November 12, 1969 and
asking that he should be confirmed in the post which became
available from December 23, 1972. He complained against the
date of confirmation, February 3, 1975, allotted to him as
arbitrary.

Rule 12 of the Rules was thereafter amended by the
Governor of Punjab by a Notification dated December 31, 1976
which was given retrospective effect from April 9, 1976. By
that amendment, Seniority was to be determined by the length
of continuous service on a post in the service, irrespective
of the date of confirmation. The direct recruits,
respondents 4 to 9, addressed a representation to the High
Court contending that their seniority as fixed by the High
Court's Notification dated August 23, 1976, with reference
to the respective dates of their confirmation, ought not to
be disturbed. They also challenged the validity of rule 12.

For the purpose of considering those conflicting claims
of promotees and direct recruits, the High Court constituted
a sub-committee consisting of three Judges, S. S.
Sandhawalia (now Chief Justice), Bhopinder Singh Dhillon and
Gurnam Singh, JJ. The Committee gave an oral hearing on
February 7, 1979 to the representatives of the promotees and
direct recruits. The High Court, however, has not readjusted
the seniority of the promotees and direct recruits in the
light of amended rule 12.

It is interesting that before the Sub-Committee heard
the representatives of the promotees and direct recruits, a
Full Bench of five Judges of the High Court of Punjab and
Haryana, delivered its judgment on December 13, 1977 in
Civil Writ 100 of 1977 which was filed by Shri N. S. Rao,
who is respondent 3 in the Haryana petition. By the
aforesaid judgment which is reported in AIR 1978 (P and H)
234, the High Court rejected the plea of Shri Rao that the
rules not only required the application of a rule of quota
at the time of appointment but they also required the
application of a rule of rotation at the time of
confirmation. At page 240 of the report appears the
conclusion of the High Court to the effect that rules 8 and
12 were independent of each other, that rotational system
could not be implicitly read in the quota rule provided for
by rule 8 and that members of the Superior Judicial Service
were entitled to claim seniority strictly in accordance with
the provisions of rule 12. The grievance of the promotees is
that this decision which was rendered by the High Court in
the exercise of its judicial functions is not being followed
by the High Court in the discharge of its administrative
duties. After the amendment of rule 12 by the Notification
dated December 31, 1976, two vacancies of District and
Sessions Judges arose and on each of these occasions the
High Court promoted a direct recruit, treating the date of
his confirmation as the criterion of seniority. In the
quarterly Gradation and Distribution list of officers of the
Judicial Department which the High Court publishes, the
inter se seniority has been shown according to the dates of
confirmation and not in accordance with the amended rule 12.
One of the grievances of the promotees is that the High
Court amended the quarterly Gradation List in compliance
with the amendments made by the Governor of Haryana in rule
12 but it did not amend the Gradation List of the Punjab
Officers in compliance with the amended rule 12.
This, according to the petitioners, has deeply affected
their sense of security, contentment and well-being. It is
said that eight more vacancies arose within the quota of
promotees after the High Court issued the Notification dated
August 25, 1976 but the promotees, who were officiating for
a period of more than three years, have not yet been
confirmed in those posts.

One of the other grievances of the petitioners is that
the High Court acted upon the amendment made by the Governor
of Punjab on December 31, 1976 in the definition of 'cadre
post' by appointing direct recruits to temporary posts in
the Superior Judicial Service. It however ignored the other
amendment effected by the same Notification, namely,
amendment to rule 12, under which continuous officiation is
the test of seniority.

Being aggrieved by the Gradation List prepared by the
High Court, the promotees in Punjab have filed Writ Petition
266 of 1979 in this Court claiming the following reliefs:

(i) an appropriate writ or direction quashing the
impugned notification dated 25th August, 1976;

(ii) a writ of mandamus directing the High Court to
discharge its constitutional obligation to
redetermine the, seniority inter se of all the
members of the Punjab Superior Judicial Service in
accordance with the provisions of rule 12, as
amended by the notification dated December 31,
1976 and to make corrections in the Gradation and
Distribution Lists, accordingly;

(iii) an appropriate writ, directing the State
Government and the High Court to confirm the
petitioners with effect from the dates that the
vacancies arose and became available in their
quota without applying the rule of rotation;

(iv) an appropriate writ directing the High Court to
consider afresh the matter of filling up four
vacancies of District and Sessions Judges which
occurred after 9-4-1976 and to readjust the
seniority and respective dates of confirmation of
the petitioners and respondents 3 to 11 in
accordance with the amended rule 12;

(v) a writ of prohibition restraining the State of
Punjab and the High Court from acting upon the
seniority fixed prior to the amendment of rule 12,
for any purpose whatsoever, including further
promotions within the Service; and

(vi) a writ of certiorari quashing rule 11 of the Rules
as being violative of the fundamental rights of
the petitioners guaranteed under
Articles 14
and
of the Constitution.
These then are the respective grievances and demands of
the promotees and direct recruits in the Superior Judicial
Services of Punjab and Haryana. In so far as the High Court
is concerned, its point of view may best be stated in the
language of the report dated May 2, 1978 which was submitted
by the Sub-Committee consisting of its three learned Judges.
After setting out the background of the controversy, the
report says:

"It is in the aforesaid context that the question
pointedly and squarely arises, whether the
determination of seniority of the members of the
Service is a matter which is within the exclusive
jurisdiction of the High Court as a necessary
consequence of the control vested in it by virtue of

Article 235
of the Constitution of India. If that be
so, then it is plain that any intrusion into the field
of this control by any agency other than the High Court
would be unwarranted and therefore, unconstitutional.
We are of the firm view that both on principle and
logic and in view of the trend of the present
authorities, it appears to be plain that the Seniority
of the members of the judicial Service is so integral
and vital to the control of the High Court over them,
that any erosion thereof would both be violative of

Article 235
of the Constitution and equally run counter
to the settled concept of the independence of judiciary
which is now coming to be recognised as the basic
feature of the Constitution.. it follows a fortiori
that if seniority of the members of Superior Judicial
Service is once deemed to be not within the control of
the High Court under
Article 235
, then, in fact, it
could be determined by the State Governments by making
rules without even reference or consultation with the
High Court. Such a position would be utterly anomalous
and wholly destructive of the exclusive control over
the district courts and courts subordinate thereto
vested in the High Court by
Art. 235.
It appears to be
well-settled both on principle and precedents that the
power of determining the seniority of the members of
the Service cannot possibly be vested in an authority
other than the High Court. For example, it cannot on
the existing provisions be vested in the Governor or
the State Government. Therefore, it appears to us that
what the State Government cannot do directly, it cannot
be allowed to do indirectly by framing rules even by
the exercise of executive power vested in it by virtue
of
Article 309
and without even consulting or informing
the High Court. It is, however, well-settled that
Art.
is subject to the other provisions of the
Constitution. Therefore, the control over the
subordinate judiciary vested in the High Court
by
Article 235
must necessarily override
Article 309

wherever the two happen to conflict at all.
Consequently, if seniority is exclusively within the
ambit of the control of the High Court, then it cannot
be surreptitiously intruded upon either directly or by
devious method of framing rules under
Article 309

without even reference or consultation with the High
Court."

"The true rationale underlying the ratio of N. S.
Rao's case and the subsequent decisions of Their
Lordships of the Supreme Court to which a reference
would follow appears to be that in the field of control
over the district courts and courts subordinate thereto
under
article 235
, there cannot be a duality. There
cannot exist control by the High Court on the one hand
and by the State Government or the Governor on the
other. Therefore, the situation that seniority must be
determined by the State Government without reference or
consultation with the High Court cannot be countenanced
in principle. To our mind this would be a patent
example of a duality of control against which the final
Court has firmly set its face."

"On principle, therefore we are of the view that
the seniority of the members of the Superior Judicial
Service is exclusively within the control of the High
Court under
Article 235
and the State Government is,
therefore, not competent to frame or alter rules with
regard thereto".

After examining the decisions of this Court and of various
High Courts, the report concludes thus:

"Both on principle and precedents we are of the
view that the Seniority of the members of higher
Judicial Service being vested entirely under the
control of the High Court cannot be intruded upon by
the framing and re-framing of rules by the State
Government, which it is not competent to make and
consequently rule 12 is ultra vires of
Article 235
of
the Constitution."

"Once we arrive at that finding, it is obvious
that till the vires of the said rule are
authoritatively pronounced upon on the judicial side,
no firm basis can exist for determining the individual
seniority inter se of the members of the Service-both
direct recruits and promotees-whose innumerable
representations are before the Committee. The High
Court has earlier taken action on the basis of some of
the earlier amendments to the rules and on the
administrative side it would be obviously inept to take
up a contradictory position now. Even otherwise it does
not appear appropriate to us in the present case to act
administratively in violation of the purported
promulgation of statutory rules on the point. There is
thus no choice but to place the matter squarely for a
binding and authoritative decision on the judicial side
forthwith."

"The High Court inevitably is the guardian of the
independence and integrity of the subordinate judicial
service, whose control is constitutionally vested in
it. As an institution, it is fundamentally interested
in the maintenance of these traits. We are of the view
that it would be invidious to push a private litigant
or any one of the affected members of the judicial
service to a court of law to seek the necessary
decision. This burden, therefore, must also be carried
by the High Court. We would consequently recommend that
the Registrar be directed to immediately initiate
necessary proceedings under
Article 226
of the
Constitution of India on behalf of the High Court."

"Once it is settled that the determination of
seniority of the members of the Superior Judicial
Service vests exclusively in the High Court, then there
is no manner of doubt that such control inevitably
implies the power of framing rules to make the exercise
of such control feasible, convenient and effective.
This has been recently settled in the Constitution
Bench judgment reported in
State of U.P. v. Tripathi
,
AIR 1978 (Vol. 2) S.C. Cases page 102. We have no doubt
in our mind that rules for the determination of the
seniority inter se of the members of the Superior
Judicial Service can be framed to the satisfaction of
both the wings of the promotees and direct recruits".

The Haryana Writ Petition was filed in this Court by
the promotees in July 1978 and the Punjab Writ Petition was
filed in February 1979. The High Court was thereby spared
the need to have a Writ Petition filed under Article 226
before itself and the embarrassment of being required to
decide it.

The arguments advanced before us by the learned counsel
for the promotees, direct recruits, the High Court of Punjab
and Haryana, the Government of Punjab and the Government of
Haryana cover a wide range but on a careful analysis of
those arguments, the questions raised by the counsel resolve
themselves into two issues. They are: (1) whether the power
to frame rules of seniority of District and Session Judges
vests in the Governor or in the High Court and (2) whether
the High Court, basing itself on the rule of quota, is
justified in applying the rule of rotation at the time of
the confirmation of promotees and direct recruits as
District and Session Judges.
The decision of the first question depends on the
scope, meaning and purpose of the provisions contained in

Article 309
and
Article 235
of the Constitution.
Article 309

reads thus:

"309. Subject to the provisions of this
Constitution, Acts of the appropriate Legislature may
regulate the recruitment, and conditions of service of
persons appointed, to public services and posts in
connection with the affairs of the Union or of any
State:

Provided that it shall be competent for the
President or such person as he may direct in the case
of services and posts in connection with the affairs of
the Union, and for the Governor of a State or such
person as he may direct in the case of services and
posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to such
services and posts until provision in that behalf is
made by or under an Act of the appropriate Legislature
under this article, and any rules so made shall have
effect subject to the provisions of any such Act".

Article 235
reads thus:

"235. The control over district courts and Courts
subordinate thereto including the posting and promotion
of, and the grant of leave to, persons belonging to the
judicial service of a State and holding any post
inferior to the post of district judge shall be vested
in the High Court, but nothing in this article shall be
construed as taking away from any such person any right
of appeal which he may have under the law regulating
the conditions of his service or as authorising the
High Court to deal with him otherwise than in
accordance with the conditions of his service
prescribed under such law."

It is urged by Shri V. M. Tarkunde who appears on
behalf of the promotees in Haryana that if the two parts of

Article 235
are read together, it will be obvious that the
control which the High Court is entitled to exercise over
District Courts and courts subordinate thereto does not
include the power to make rules regulating the conditions of
service of judicial officers. According to the learned
counsel, the power which the Constitution has conferred on
the Governor by the proviso to
Article 309
is a legislative
and not an executive power; and since the Governor exercises
a legislative power while making rules under the proviso to

Article 309
, the principle of the independence of the
judiciary is not in any manner violated thereby. Judicial
independence, says the Counsel, means freedom from executive
interference, not freedom from laws.
Shri A. K. Sen, Shri S. N. Kackkar, Dr. Y. S. Chitale,
Shri F. S. Nariman and Shri B. R. Tuli supported the
argument of Shri Tarkunde by citing various decisions of
this Court and of the High Courts, the connected provisions
of the Constitution and the debates of the Constituent
Assembly. On the other hand, it was contended by the learned
Solicitor General, Shri Sorabji, who appears on behalf of
the High Court that the paramount object of
Article 235
is
to secure the independence of the judiciary by insulating it
from executive interference, which postulates that once an
appointment of a judicial officer is made, his subsequent
career should be under the control of the High Court. He
should not be exposed to the possibility of any improper
executive pressure in the course of his judicial career. The
control over the subordinate judiciary, which is vested in
the High Court by
Article 235
, is exclusive in nature,
comprehensive in extent and effective in operation. There
can be no duality in these matters, says the Solicitor
General, and therefore the power to frame rules in regard to
seniority of judicial officers must reside in the High Court
and not in the Governor. That, according to the Solicitor
General, is a necessary consequence of the control over the
subordinate courts which is vested in the High Court.

There is no direct decision on the question whether the
Governor, in the exercise of power conferred by the proviso
to
Article 309
, has the power to frame rules regulating the
seniority of judicial officers of the State. The reason for
the absence of precedent on this point, when law reports are
overflowing with constitutional decisions, probably is that
during the last thirty years of the working of our
Constitution, no one ever disputed the power of the Governor
to frame rules governing seniority of judicial officers. In
several States such rules are in force in the absence of a
law passed by the State legislature on the subject and High
Courts have been applying those rules from time to time and
case to case without demur. It is also significant that
hardly any High Court has framed rules of its own for
determining the seniority of its judicial officers. Even the
High Court of Punjab and Haryana, which disputes the right
of the Governor so to frame rules, has not made any rules of
its own to occupy that field. All this, which is stark
history, cannot be dismissed by saying that the absence of a
precedent is no authority for holding that what has not been
challenged is lawful. It is true that the novelty of a
contention cannot be its infirmity and indeed law would have
remained static and stagnant if it had not been allowed to
grow from
case to case. But the point of the matter is that there has
been no unconcerned acquiescence by High Courts and judicial
officers in rules framed by the Governors. In Haryana
itself, respondent 3, Shri N. S. Rao, challenged the
Governor's power to override the order of his confirmation
which was passed by the High Court. And he won. Whenever
there was the semblance of a justification for doing so,
either one or the other party motivated by personal interest
or out of the broader consideration that the High Court's
controlling jurisdiction must remain inviolate has
challenged the rules framed by the Governor as being
excessive. But there is a good reason why the rules of
seniority framed by the Governor have been acquiesced in,
all over the country, over all these years. The reason is as
follows:

On a plain reading of
Articles 235
and
of the
Constitution, it is clear that the power to frame rules
regarding seniority of officers in the judicial service of
the State is vested in the Governor and not in the High
Court. The first part of
Article 235
vests the control over
district courts and courts subordinate thereto in the High
Court. But the second part of that article says that nothing
in the article shall be construed as taking away from any
person belonging to the judicial service of the State any
right of appeal which he may have under the law regulating
the conditions of his service or as authorising the High
Court to deal with him otherwise than in accordance with the
conditions of his service prescribed under such law. Thus,

Article 235
itself defines the outer limits of the High
Court's power of control over the district courts and courts
subordinate thereto. In the first place, in the exercise of
its control over the district courts and subordinate courts,
it is not open to the High Court to deny to a member of the
subordinate judicial service of the State the right of
appeal given to him by the law which regulates the
conditions of his service. Secondly, the High Court cannot,
in the exercise of its power of control, deal with such
person otherwise than in accordance with the conditions of
his service which are prescribed by such law.

Who has the power to pass such a law? Obviously not the
High Court because, there is no power in the High Court to
pass a law, though rules made by the High Court in the
exercise of power conferred upon it in that behalf may have
the force of law. There is a distinction between the power
to pass a law and the power to make rules, which by law,
have the force of law. Besides, "law" which the second part
of
Art. 235
speaks of, is law made by the legislature
because, if it were not so, there was no purpose in saying
that the High Court's power of control will not be construed
as taking away certain rights of certain persons under a law
regulating their conditions of service. It could not have
been possibly intended to be
provided that the High Court's power of control will be
subject to the conditions of service prescribed by it. The
clear meaning, therefore, of the second part of
Article 235

is that the power of control vested in the High Court by the
first part will not deprive a judicial officer or the rights
conferred upon him by a law made by the legislation
regulating him conditions of service.

Article 235
does not confer upon the High Courts the
power to make rules relating to conditions of service of
judicial officers attached to district courts and the courts
subordinate thereto. Whenever, it was intended to confer on
any authority the power to make any special provisions or
rules, including rules relating to conditions of service,
the Constitution has stated so in express terms. See, for
example
Articles 15(4)
, 16(4)
, 77(3)
, 87(2)
, 118
, 145(1)
,
146(1)
, and
2(148)(5)
, 166(3)
, 176(2)
, 187(3)
, 208
, 225
,
227(2)
and
(3)
, 229(1)
and
(2)
, 234
, 237
and
283(1)
and
(2).

Out of this fasciculus of Articles, the provisions contained
in
Articles 225
, 227(2)
and
(3)
and
229(1)
and
(2)
bear
relevance on the question, because these Articles confer
power on the High Court to frame rules for certain specific
purposes.
Article 229(2)
which is directly in point provides
in express terms that subject to the provisions of any law
made by the legislature of the State, the conditions of
service of officers and servants of a High Court shall be
such as may be prescribed by the rules made by the Chief
Justice or by some other Judge or Officer of the Court
authorised by the Chief Justice to make rules for the
purposes. With this particular provision before them, the
framers of the Constitution would not have failed to
incorporate a similar provision in
Article 235
if it was
intended that the High Courts shall have the power to make
rules regulating the conditions of service of judicial
officers attached to district courts and courts subordinate
thereto.

Having seen that the Constitution does not confer upon
the High Court the power to make rules regulating the
conditions of service of judicial officers of the district
courts and the courts subordinate thereto, we must proceed
to consider: who, then, possesses that power?
Article 309

furnishes the answer. It provides that Acts of the
appropriate legislature may regulate the recruitment and
conditions of service of persons appointed to posts in
connection with the affairs of the Union or of any State.

Article 248(3)
, read with Entry 41 in List II of the Seventh
Schedule, confers upon the State legislatures the power to
pass laws with respect to "State public services" which must
include the judicial services of the State. The power of
control vested in the High Court by
Art. 235
is thus
expressly, by the terms of that Article itself, made subject
to the law which the State legislature may pass for
regulating the recruitment
and service conditions of judicial officers of the State.
The power to pass such a law was evidently not considered by
the Constitution makers as an encroachment on the "control
jurisdiction" of the High Courts under the first part of

Article 235.
The control over the district courts and
subordinate courts is vested in the High Court in order to
safeguard the independence of the judiciary. It is the High
Court, not the executive, which possesses control over the
State judiciary. But, what is important to bear in mind is
that the Constitution which has taken the greatest care to
preserve the independence of the judiciary did not regard
the power of the State legislature to pass laws regulating
the recruitment and conditions of service of judicial
officers as an infringement of that independence. The mere
power to pass such a law is not violative of the control
vested in the High Court over the State Judiciary.

It is in this context that the proviso to
Art. 309

assumes relevance and importance. The State legislature has
the power to pass laws regulating the recruitment and
conditions of service of judicial officers of the State. But
it was necessary to make a suitable provision enabling the
exercise of that power until the passing of the law by the
legislature on that subject. The Constitution furnishes by
its provisions ample evidence that it abhors a vacuum. It
has therefore made provisions to deal with situations which
arise on account of the ultimate repository of a power not
exercising that power. The proviso to
Art. 309
provides, in
so far as material, that until the State legislature passes
a law on the particular subject, it shall be competent to
the Governor of the State to make rules regulating the
recruitment and the conditions of service of the judicial
officers of the State. The Governor thus steps in when the
legislature does not act. The power exercised by the
Governor under the proviso is thus a power which the
legislature is competent to exercise but has in fact not yet
exercised. It partakes of the characteristics of the
legislative, not executive, power. It is legislative power.

That the Governor possesses legislative power under our
Constitution is incontrovertible and, therefore, there is
nothing unique about the Governor's power under the proviso
to
Article 309
being in the nature of a legislative power.
By
Article 168
, the Governor of a State is a part of the
legislature of the State. And the most obvious exercise of
legislative power by the Governor is the power given to him
by
Art. 213
to promulgate ordinances when the legislature is
not in session. Under that Article, he exercises a power of
the same kind which the legislature normally exercises : the
power to make laws. The heading of Chapter IV of Part VI of
the Constitution, in which
Art. 213
occurs, is significant:

"Legislative Power of
the Governor". The power of the Governor under the proviso
to
Article 309
to make appropriate rules is of the same
kind. It is legislative power. Under
Article 213
, he
substitutes for the legislature because the legislature is
in recess. Under the proviso to
Article 309
, he substitutes
for the legislature because the legislature has not yet
exercised its power to pass an appropriate law on the
subject.

It is true that the power conferred by
Article 309
is
"subject to" the provisions of the Constitution. But it is
fallacious for that reason to contend that the Governor
cannot frame rules regulating the recruitment and conditions
of service of the judicial officers of the State. In the
first place, the power of control conferred upon High Courts
by the first part of
Article 235
is expressly made subject,
by the second part of that Article, to laws regulating
conditions of service of its judicial officers. The first
part of
Article 235
is, as it were, subject to a proviso
which carves out an exception from the area covered by it.
Secondly, the Governor, in terms equally express, is given
the power by the proviso to
Article 309
to frame rules on
the subject. A combined reading of
Articles 235
and
will
yield the result that though the control over Subordinate
Courts is vested in the High Court, the appropriate
legislature, and until that legislature acts, the Governor
of the State, has the power to make rules regulating the
recruitment and the conditions of service of judicial
officers of the State. The power of the legislature or of
the Governor thus to legislate is subject to all other
provisions of the Constitution like, for example,
Articles
and
16.
The question raised before us is primarily one of
the location of the power, not of its extent. The second
part of
Article 235
recognises the legislative power to
provide for recruitment and the conditions of service of the
judicial officers of the State. The substantive provision of

Article 309
, including its proviso, fixes the location of
the power. The opening words of
Article 309
limit the
amplitude of that power.

We entertain no doubt that seniority is a condition of
service and an important one at that. The control vested in
the High Court by the first part of
Article 235
is therefore
subject to any law regulating seniority as envisaged by the
second part of that article. The power to make such law is
vested by
Article 309
in the legislature, and until it acts,
in the Governor. Whether it is the legislature which passes
an Act or the Governor who makes rules regulating seniority,
the end product is 'law' within the meaning of the second
part of
Article 235.
The legislatures of Punjab and Haryana
not having passed an Act regulating seniority of the
respective State judicial officers, the Governors of the two
States have the power to frame rules for that purpose under
the proviso to
Article 309
of the
Constitution. Such rules are, of course, subject to the
provisions of the Constitution and to the provisions of any
Act which the appropriate legislature may pass on the
subject.

As we have said earlier, the mere power to pass a law
or to make rules having the force of law regulating
seniority does not impinge upon the control vested in the
High Court over the district courts and the courts
subordinate thereto by
Article 235.
Such law or the rules,
as the case may be, can provide for general or abstract
rules of seniority, leaving it to the High Court to apply
them to each individual case as and when the occasion
arises. The power to legislate on seniority being subject to
all other provisions of the Constitution, cannot be
exercised in a manner which will affect or be detrimental to
the control vested in the High Court by
Article 235.
To take
an easy example, the State legislature or the Governor
cannot provide by law or by rules governing seniority that
the State Government in the concerned department will
determine the seniority of judicial officers of the State by
the actual application of the rules of seniority to each
individual case. Thereby, the High Court's control over the
State judiciary shall have been significantly impaired. The
opening words of
Article 309
, "Subject to the provisions of
this Constitution" do not exclude the provision contained in
the first part of
Article 235.
It follows that though the
legislature or the Governor has the power to regulate
seniority of judicial officers by laying down rules of
general application, that power cannot be exercised in a
manner which will lead to interference with the control
vested in the High Court by the first part of
Article 235.

In a word, the application of law governing seniority must
be left to the High Court. The determination of seniority of
each individual judicial officer is a matter which
indubitably falls within the area of control of the High
Court over the district courts and the courts subordinate
thereto. For the same reason, though rules of recruitment
can provide for a period of probation, the question whether
a particular judicial officer has satisfactorily completed
his probation or not is a matter which is exclusively in the
domain of the High Court to decide. That explains partly why
in High Court of
Punjab & Haryana v. State of Haryana
(1)
this Court held that the power to confirm a judicial officer
is vested in the High Court and not in the Governor.

The error of the High Court's point of view, like the
error of the report dated May 2, 1978 of its Sub-Committee,
consists in the assumption that the Governor, while acting
in the exercise of power conferred by the proviso to
Article
, exercises an executive function. That is why it felt so
greatly exercised that the independence
of the judiciary was being eroded. That independence has to
be preserved at all costs but, as Constitutional realists,
we cannot deprive the legislature or the Governor of their
legitimate legislative powers under
Article 309.
That power
is subject to all other provisions of the Constitution which
means that the power cannot be exercised in a manner which
will lead, for example, to the violation of
Articles 14
, 16

or the pervasive ambit of the first part of
Article 235.

Since the power conferred by
Article 309
is not absolute or
untrammeled, it will be wrong to test the validity of that
power on the anvil of its possible abuse. The various
constitutional safeguards are an insurance against its
abuse.

Numerous decisions were cited before us to highlight
the importance of insulating the judiciary from executive
interference. It was urged by the learned Solicitor General
on behalf of the High Court that the paramount object of

Article 235
is to secure the independence of the judiciary
by ensuring that the subordinate judiciary is insulated from
executive interference and once the appointment of a
judicial officer is made, his subsequent career should be
under the control of the High Court and he should not be
exposed to the possibility of any improper executive
pressure (Union of India v. Justice S. H. Sheth(1), that the
control over the subordinate judiciary vested in the High
Court under
Article 235
is exclusive in nature,
comprehensive in extent and effective in operation; and that
there can be no "duality" in the matter of control over the
district courts and the courts subordinate thereto (A. P.
High Court v. Krishnamurthy(2). The short answer to these
submissions is that the power conferred by
Article 309
is a
legislative, not executive, power and that the power is
subject to all the provisions of the Constitution. If
despite this position, the Governor's rule-making power is
likely to create a magnetic field wherein the executive will
be the focal point of attraction, it is not the Constitution
that is to blame. As is often said, the danger to judicial
independence springs more from within than from without.

Before parting with this point, we would like to refer
to a decision of this Court in
State of Bihar v. Madan Mohan
Prasad
(3). Sarkaria J., speaking for the Court, observed
in
that case
that in
determining the seniority of the Bihar Superior Judicial
Service the High Court was bound to act in accordance with
the rules validly made by the Governor under the proviso to

Art. 309
of the Constitution. The judgment does not discuss
the question any further which makes it unnecessary to
analyse it in detail.

For these reasons, we reject the contention that the
Governor has no power to make rules of seniority of the
District and Sessions Judges.

That takes us to the second question which is, whether
the rotation method devised by the High Court in applying
the relevant service rules in the matter of confirmation and
consequent fixation of seniority of the petitioners vis-a-
vis the direct recruits suffers from any legal or
constitutional infirmity. The main thrust of the argument of
the promotees, who have filed the two sets of Writ Petitions
before us, is that the method of rotation applied by the
High Court at the time of confirmation is violative of their
fundamental rights under
Articles 14
and
of the
Constitution. In the Punjab Writ Petition, the petitioners
have taken an alternative plea that their seniority should
be fixed in accordance with the amendment made by the
Governor of Punjab by the Notification dated December 31,
1976, effective from April 9, 1976. By that amendment,
length of continuous service in a cadre irrespective of the
date of confirmation is the governing criterion of
seniority. In so far as the power of the Governor to amend
the rules is concerned, that question must be deemed to have
been set at rest by the preceding part of our judgment in
which we have upheld the Governor's power to frame rules of
seniority.

To recapitulate briefly, the Superior Judicial Service
Rules, 1963, which are currently in force in Haryana, are
identical with the rules which were in force in Punjab
before the amendment dated December 31, 1976. The Governor
of Haryana had introduced amendments similar to those which
are now in force in Punjab, but those amendments were
subsequently withdrawn and the original position as it
obtained under the Rules of 1963 was restored.

Under the rules now in force in Haryana, which were in
force in Punjab prior to the aforesaid amendment dated
December 31, 1976, 'cadre post' by rule 2(2) means a
permanent post in the Service. Under rule 8(2), two-third of
the total number of cadre posts have to be manned by
promoted officers and one-third by direct recruits. Under
rule 10(1), direct recruits have to remain on probation for
two years provided that the Government may, in exceptional
circumstances of any case, reduce the period of probation in
consultation
with the High Court. The probation can be extended by the
Governor beyond the period of two years in consultation with
the High Court but not so as to exceed a total period of
three years. Rule 10 (2) gives to the Governor the power in
consultation with the High Court to confirm a direct recruit
on a cadre post with effect from a date not earlier than the
date on which he completes the period of probation.

Rule 12 now in force in Haryana and which was in force
in Punjab prior to the amendment dated December 31, 1976,
provides that the seniority of direct recruits and promoted
officers shall be determined with reference to the
respective dates of their confirmation. The proviso to rule
12 deals with three kinds of cases in which substantive
members of the Service have the same date of confirmation.
In regard to the third category of such cases, the proviso
says that in the case of promoted officers and direct
recruits having the same date of confirmation, the older in
age shall be senior to the younger.

Under the amendment effected in Punjab by the
Notification dated December 31, 1976, which is given
retrospective effect from April 9, 1976, 'cadre post' means
a permanent as well as a temporary post in the Service. In
so far as the rule of seniority is concerned, under the
aforesaid amendment the inter se seniority of the members of
the Service is to be determined by the length of continuous
service on a post in the Service irrespective of the date of
confirmation.

It may be recalled that in High Court of
Punjab and
Haryana v. State of Haryana
(supra), it was held by this
Court that rule 10, in so far as it confers the power of
confirmation on the Governor, is bad because the power of
confirmation is a part of the control of the High Court
which is vested in it by
Article 235
of the Constitution.
Therefore, the High Court alone had the power to confirm a
District & Sessions Judge. As a result of that judgment,
respondent 3 came back into the service as a confirmed
District & Sessions Judge.

It is necessary to bear in mind that the only provision
of which the validity was assailed by respondent 3 in the
aforesaid case was the one contained in rule 10(2) which
conferred a right on the Governor to confirm a direct
recruit. No challenge was made therein to that part of sub-
rule (2) which requires that the confirmation shall be made
from a date not earlier than the date on which the direct
recruit satisfactorily completes his period of probation.
That part of sub-rule (2) still holds the field. It must
also be mentioned that no opinion was expressed by this
Court on the validity of rule 12 of the Haryana Superior
Judicial Service Rules as it then stood, which was in
material respects identical with rule 12 of the Punjab Rules
as it exists now under the amendment of 1976.
Dr. Chitale, who appears on behalf of the promotees in
the Punjab Writ Petition, contends that the promotees are
not being confirmed by the High Court in the Superior
Judicial Service even though vacancies occur within their
two-third quota, which is prescribed by rule 8(2). The
argument of the learned counsel is that the quota of 2/3:
1/3, which is provided for by rule 8 is applicable at the
time of initial recruitment only. There is therefore no
warrant, according to counsel, for extending the application
of that rule at the time of confirmation.
In support of this
argument, reliance is placed on a unanimous decision dated
December 13, 1977 of a Bench of five learned Judges of the
Punjab and Haryana in
Narender Singh Rao v. State of
Haryana
(1). The High Court held
in that case
that rule 8
which provides for quota and rule 12 which contains a rule
of seniority, are independent of each other, that the rule
of rotation cannot implicitly be read into the quota rule
and that every member of the Superior Judicial Service is
entitled to claim seniority strictly in accordance with the
provisions of rule 12. The promotees have made a very strong
and emphatic grievance that in spite of the fact that the
Punjab Rules prior to the 1976 amendment were in material
respects similar to the rules applicable in Haryana, the
High Court has been persistently refusing to follow, in the
exercise of its administrative functions, the decision which
was rendered by it in the exercise of its judicial powers.
The promotees contend that the judgment of the five Judge
Bench which held that there is no scope for the application
of the rule of rotation at the time of confirmation is
binding on the High Court as an administrative body and that
therefore the seniority of the promotees and direct recruits
must be fixed without applying the rule of rotation at the
time of confirmation.

In order to demonstrate the hardship caused to the
promotees, Dr. Chitale has drawn our attention to Annexure
P-I to the Writ Petition which has been further elaborated
in Annexure II to his written submissions. These Annexures
show, and that is not disputed, that the direct recruits
have been assigned a date of confirmation which is a day or
so earlier than the date of confirmation allotted to the
promotees. Our attention is also drawn to the relevant order
passed by the High Court in the case of Haryana officers
whereby the date of confirmation allotted to the direct
recruit, Shri N. S. Rao, is only one day prior to the dates
of confirmation allotted to the three promotees, even though
the latter were officiating for a much longer period in the
Superior Judicial Service than respondent 3. The promotees
have assailed both the legality and propriety of the High
Court's Notification dated August 25, 1976, under which
eight direct
recruits and eight promotees in Punjab were confirmed by
applying the method of rotation, and the direct recruits
were confirmed with effect from dates which are a little
earlier than the dates assigned to the promotees. The
grievance of the promotees is accentuated by the
circumstance that respondents 6 to 8 had not even completed
their normal period of probation and yet they were confirmed
by the High Court after reducing the period of their
probation to approximately a year and four months, without
there being any exceptional circumstances for adopting such
a course. Besides, the power to reduce the probationary
period is vested in the Governor under the proviso to rule
10(1). And if that provision is unconstitutional for reasons
similar to those for which it was held by this Court in Shri
N. S. Rao's(1) case that the Governor had no power of
confirmation, there is no provision under which the High
Court can claim the power to reduce the period of probation.

The High Court has submitted in its written brief that
we should decide upon the scope of
Article 235
, including
the question as to who has the power to frame the rules of
seniority, and leave the other questions to be decided by it
administratively. Representations of both sides are still
pending before it and if we were to pronounce upon the
validity of the impugned notifications, numerous practical
complications may arise rendering the High Court's task of
fixing seniority difficult. In Haryana, we are concerned
with two officers only: Shri B. S. Yadav, a promotee, and
Shri N. S. Rao, a direct recruit, since petitioners 2 and 3
have been compulsorily retired during the pendency of these
writ petitions. But the High Court says that our decision on
the other issues will have a far-reaching impact in Punjab
where the conflicting claims of several members of the
Superior Judicial Service require consideration.

The High Court justifies the method adopted by it for
determining the seniority of promotees vis-a-vis the direct
recruits by the application of the rule of rotation at the
time of confirmation. It contends that persons recruited
from these two sources have to be merged in such a manner so
as not only to maintain a proper ratio amongst them in the
service but also to so deal with them as to have due regard
to their promotional prospects, in the over all context of
the maintenance of highest standards of Administration of
Justice by the members of the service. Translated in
concrete terms, it means that members of the subordinate
judiciary who are promoted to the Superior Judicial Service
and those who are recruited from amongst the members of the
Bar should have an equal chance of promotion to the
Selection Grade as also of elevation to the High Court
Bench. When recruitment to the Superior Judicial Service is
from two sources,
it becomes imperative to ensure proper blending of the
members of the service and it is for that reason that the
quota rule (whenever direct recruits are available) has to
be applied even at the time of confirmation. It will not be
in the interest of the service if it were otherwise since,
according to the High Court, if direct recruits are
confirmed and assigned seniority in a block, that will
adversely affect the chances of further promotion of the
promotees assigned seniority below them. Direct recruits
when recruited are much younger than the promotees, when
promoted. It is for this reason that, wherever possible, the
High Court claims to have assigned seniority to direct
recruits by interposing two promotees between two direct
recruits. Promotees, on the other hand, have been confirmed
and assigned seniority one after the other, in numbers
exceeding two, when there were no direct recruits. In order
to explain and justify its point of view, the High Court has
annexed four annexures to its written brief, Annexures 'A'
to 'D'. Annexure 'A' shows seniority of the members of the
service as fixed and determined by the High Court from 1-11-
1966, up to and including August 1976. The direct recruits
are placed therein at serial Nos. 4, 5, 10, 21, 24, 27, 38,
41, 44, 47, 50 and 53. The rest are promotees. Not only,
says the High Court, did it confirm a large number of
promotees between each group of direct recruits but it
interposed two promotees between the direct recruits.
Annexure 'B' shows the likely seniority of members of the
service with reference to the dates of the availability of
posts in accordance with the quota rule. This depicts the
position of direct recruits if they are assigned seniority
with effect from the dates when they complete their period
of probation. Annexure 'C' is the same as Annexure 'B' with
the modification that it depicts the position of direct
recruits if seniority is assigned to them with effect from
the date from which they joined service. Annexure 'D' shows
the position of the members of the service in accordance
with the dates of their continuous officiation a such
members. These statements, the High Court says, will show
that it has assigned seniority to promotees and direct
recruits in a manner designed to secure the interests of
both the classes.

Whereas the promotees complain that they have been
discriminated against and the High Court replies that it has
held the scales of justice even between the two classes of
officers, the direct recruits contend that it is in fact
they who have suffered injustice under the notification of
seniority issued by the High Court on August 25, 1976.
Respondents 3 to 5 in the Punjab Writ Petition complain that
they were not confirmed by the High Court on the due dates,
that is, on their completing the period of probation
satisfactorily.
The High Court confirmed ten promotees in between Shri S. S.
Sodhi, who is at present the Registrar of the High Court,
and respondents 3 to 5, thereby giving to the promotees the
benefit of their officiation in vacancies meant for direct
recruits. According to the direct recruits, the quota rule
will lose its relevance unless the rule of rotation is
applied at the time of confirmation. They assail the
validity of the amended rule 12, which is in force in
Punjab, on the ground that the rule that seniority must
depend upon the date of continuous officiation in any post
is neither just nor reasonable. They also challenge the
notification issued by the Governor of Punjab on December
31, 1976 on the ground that it was given retrospective
effect from April 9, 1976 arbitrarily, with a view only to
superseding the notification of seniority issued by the High
Court on August 25, 1976. It is contended by them, in the
alternative, that if the period of their probation has to be
weighed against the period of officiation of the promotees,
it should be reckoned from the date on which the promotee
officer begins to officiate against a permanent vacancy
available in his quota.

In the light of these contentions, the question for
determination is whether the method of confirmation adopted
by the High Court by the rotation of promotees and direct
recruits in the ratio of 2:1 is justified on a proper
interpretation of the relevant rules. Is the operation of
rule 8 confined to the stage of initial recruitment to the
service by promotion and by direct appointment? Or, can that
rule be superimposed on rules 10 and 12 so as to justify its
application at the stage of confirmation also? These are the
questions which are posed for our consideration.

Rule 8, as its very heading shows, provides for a
distinct condition of service with reference to a specific
point of time, namely: 'Recruitment to Service'. The words
"to be filled up by direct recruitment" which occur in the
proviso to sub-rule (2) of rule 8 also point in the
direction that the operation of this sub-rule is confined to
the stage of initial recruitment to the service either by
promotion or by direct appointment from the Bar. Rules 10,
11 and 12 provide for the regulation of probation, reversion
of promoted officers and seniority, which conditions of
service are distinct and separate from 'Recruitment to
Service' dealt with in rule 8. In other words, rule 8 only
fixes the respective quota of recruits from the two sources
specified in clauses (i) and (ii) of sub-rule (1). Such
reservation is intended to be made at the stage of initial
appointments only, by reserving 2/3rd of the total number of
posts in the cadre for promotees and 1/3rd for direct
recruits. It seems
to us evident that a post which falls vacant in the quota of
promotees cannot be filled by the confirmation of a direct
recruit therein nor indeed can a promotee be confirmed in a
post which is within the quota of direct recruits.

If this be the true construction of rule 8, the method
of confirmation by rotation of direct recruits and
promotees, regardless of whether the vacancy assigned to the
particular officer falls within the quota of the class to
which he belongs will be in contravention of that rule. It
was held by this Court in Punjab and Haryana High Court v.
State of Haryana (Supra) that 'appointment' is not a
continuous process, that the process of appointment is
complete as soon as a person is initially recruited to the
service either by promotion or by direct recruitment and
that confirmation is not a part of the process of
appointment. The necessity of treating 'Recruitment to the
Service' and 'confirmation' as two distinct and separate
matters can be appreciated if only it is realised that
'Recruitment to the Service' is a matter which falls within
the power of the Governor under
Article 233
while
'confirmation' is a matter of 'control' vesting in the High
Court under
Article 235.
The superimposition of rule 8,
which fixes the quota at the stage of recruitment, on the
rules relating to confirmation and seniority is therefore
contrary to the basic constitutional concepts governing
judicial service.

This apart, the application of Rota system at the stage
of confirmation is beset with practical difficulties. For
example, if vacancies in the quota of direct recruits cannot
be filled for 2 or 3 years for the not uncommon reason that
direct recruits are not available, and during that period
several vacancies occur in the quota of promotees who have
been officiating continuously for two or three years, can
the postponement of the confirmation of such promotees
against vacant posts in their quota, until the direct
recruits are appointed and become eligible for confirmation
on completing the prescribed period of probation, be
justified on any reasonable ground? Is it proper and fair to
defer the confirmation of the promotees merely because
direct recruits are not available at that point of time so
as to enable the High Court to make confirmations from both
the sources by rotation? This, precisely, is what the High
Court has done by the impugned notification dated 25-8-1976
and that is the reason why it has not confirmed ten more
promotees in Punjab, for whom vacancies are available within
the quota of promotees.

In
A. K. Subraman v. Union of India
,(1) the contention
of the respondents that there is an implied rotational
system involved in the
quota rule and that therefore the quota rule must also be
applied at the stage of confirmation was rejected by this
Court. It is true that it was observed
in that case
that
when recruitment is from two or more sources, there is no
inherent invalidity in introducing the quota system and
working it out by the rule of rotation. But that is not the
question which we have to consider in the writ petitions
before us. What is relevant is the decision of the Court
(page 994) that the quota rule will be enforced at the time
of initial recruitment and not at the time of confirmation.
The Court observed that the tests to be applied for the
purposes of promotion and confirmation are entirely
different since there is a well recognised distinction
between 'promotion' and 'confirmation'.

In
N. K. Chauhan v. State of Gujarat
,(1) it was
reiterated (pages 1051-1053) that having regard to the
recent decisions of this Court, it could not be held that
'quota' is so interlocked with 'rota' that where the former
is expressly prescribed the latter is impliedly inscribed.
One of us, Krishna Iyer, J., while summarising the
conclusions of the Court said:

"The quota rule does not, inevitably, invoke the
application of the rota rule. The impact of this
position is that if sufficient number of direct
recruits have not been forthcoming in the years since
1960 to fill in the ratio due to them and those
deficient vacancies have been filled up by promotees,
later direct recruits cannot claim 'deemed' dates of
appointment for seniority in service with effect from
the time, according to the rota or turn, the direct
recruits' vacancies arose".

Seniority of promotees, according to this decision, could
not be upset by later arrivals from the open market, save to
the extent to which any excess promotees have to be pushed
down.

In
Paramjit Singh Sandhu v. Ram Rakha
,(2) it was held
by this Court on a harmonious reading of rules 3, 4, 6, 8
and 10 of the Punjab Police Rules, 1959 that the quota rule
was operative both at the time of initial recruitment and at
the time of confirmation. We would like to clarify that this
case is not an authority for the proposition that whenever
Service Rules provide for quota, the rule of rota must be
read into the rule of quota. We are not laying down that the
rules of quota and rota cannot coexist. Service Rules may so
provide or they may yield to such an interpretation. In that
event, their validity may have to be tested in the total
setting of
facts. Therefore, whether the quota system has to be
observed not only at the stage of initial recruitment but
also at the stage of confirmation is not a matter of
abstract law but will depend on the wording of the rules and
the scheme of the rules under consideration. Any dogmatic
assertion, one way or the other, is wrong to make. On a
review of these authorities, all that we would like to say
is that on a proper interpretation of the rules governing
the Punjab and Haryana Superior Judicial Service, the rule
of rota cannot be read into the rule of quota. In other
words, the ratio of 2:1 shall have to be applied at the
stage of recruitment but cannot, on the language of the
relevant rules, be applied at the stage of confirmation.

In our opinion, therefore, the High Court was not
justified in applying the rule of rotation at the time of
confirmation of the members of the Superior Judicial Service
who were appointed to that Service by promotion and by
direct recruitment. In fact, we would like to remind that a
special Bench of five learned Judges of the High Court of
Punjab and Haryana had itself held on December 13, 1977 in
N. S. Rao v. State of Haryana, (supra) that the rule of rota
cannot be read into the rule of quota prescribed by rule 8
of the Punjab Superior Judicial Service Rules. It was
observed by the Special Bench in paragraph 14 of its
judgment that a plain reading of rule 8 shows that the
intention of the framers of the Rules was only to provide
for quota and that no indication at all has been given that
the rotational system also had to be followed at the time of
confirmation or for the purpose of fixing seniority. In
coming to this conclusion, the High Court placed reliance on
the decisions of this Court in A. K. Subraman and N. K.
Chauhan to which we have already referred. The High Court
expressed its conclusion in paragraph 22 of the judgment by
saying that rules 8 and 22 are independent of each other,
that the rotational system cannot impliedly be read into the
quota rule prescribed by rule 8 and that the members of the
Superior Judicial Service are entitled to claim seniority,
strictly in accordance with the provisions of rule 12. We
are unable to understand how, in the discharge of its
administrative functions. the High Court could have failed
to follow a judgment of its own special Bench consisting of
five learned Judges. We are of the opinion that the
aforesaid judgment has taken a correct view of the matter on
a combined reading of rules 8 and 12.

We would like to say at the cost of repetition that we
are not dealing with the abstract question as to whether the
rule of quota necessarily excludes the rule of rotation. We
are only concerned to point out that it is not correct to
say that the rule of rota must
necessarily be read into the rule of quota. We have to
decide in those cases the narrow question as to whether, on
a true interpretation of rules 8 and 12 of the Superior
Judicial Service Rules of Punjab and Haryana, the quota rule
prescribed by rule 8 justifies, without more, its extension
at the time of confirmation so that, after every two
promotees are confirmed one direct recruit has to be
confirmed and until that is done, promotees cannot be
confirmed even if vacancies are available within their quota
in which they can be confirmed. We are of the opinion, on a
proper interpretation of the rules, that promotees are
entitled to be confirmed in the vacancies which are
available within their quota of 2/3rd, whether or not 1/3rd
of the vacancies are occupied by confirmed direct recruits.
And similarly, direct recruits are entitled to be confirmed
in vacancies which are available within their quota of
1/3rd, whether or not 2/3rd of the vacancies are occupied by
confirmed promotees. What we find lacking in justification
is the refusal of the High Court to confirm the promotees
even if vacancies are available in their quota in which they
can be confirmed merely because, by doing so, more than two
promotees may have to be confirmed at one time, without the
confirmation of a proportionate number of direct recruits.
The fairness which
Articles 14
and
postulates is that if
a promotee is otherwise fit for confirmation and a vacancy
falling within the quota of promotees is available in which
he can be confirmed, his confirmation ought not to be
postponed until a direct recruit, whether yet appointed or
not, completes his period of probation and thereupon becomes
eligible for confirmation. The adoption of this principle in
the matter of confirmation, will not, in practice, give any
undue advantage to the promotees. The facts and figures
supplied by the High Court in Annexure R-4 to its counter-
affidavit in W. P. 266 of 1979 show that vacancies in the
quota of promotees do not generally become available before
the promotees have put in two to five years' service as
officiating District and Sessions Judges.

In so far as the confirmation of respondents 6, 7 and 8
is concerned, the facts set out by the Registrar of the High
Court in his counter affidavit do not, in our opinion,
constitute "exceptional circumstances" such as to justify
their confirmation long before they had completed the normal
period of their probation. It may be recalled that they were
confirmed after they had each completed a period of
probation of approximately a year and four months. In the
absence of exceptional circumstances justifying the
reduction of their normal probationary period of two years,
we find ourselves unable to uphold the order of the High
Court by which these three respondents were confirmed before
they were normally due for
confirmation. The order is in clear violation of the
guarantee of equal opportunity, by which the petitioners are
prejudiced, and must for that reason be set aside.

The High Court will be at liberty now to confirm them
with effect from the date or dates on which they completed
their normal period of probation, to the satisfaction of the
High Court. This is apart from the question as to whether
the High Court can exercise the power which was conferred by
the proviso to rule 10(1) on the Governor. The power
conferred by the proviso on the Governor is ex facie bad
because such a power directly impinges upon the control
vested in the High Court by
Article 235
of the Constitution.
If at all any authority could exercise such a power, it is
the High Court and not the Governor. We are assuming for the
limited purpose of these petitions that the High Court may,
in exceptional circumstances, reduce the period of probation
of a direct recruit. The rules must now be understood to
mean that the High Court and not the Governor has the power
of confirmation, that the normal period of probation of
direct recruits is two years and that unless there are
exceptional circumstances attaching to each individual case,
a direct recruit cannot be confirmed from a date earlier
than the date on which he has satisfactorily completed his
probation of to years. The High Court is not free to fix any
period of probation as it likes or to reduce the period of
two years at its will and pleasure.

The amended rule 12, as in force in Punjab, lays down
the length of continuous service in a cadre post as the
guiding criterion for fixing seniority. That rule was
notified by the Governor on December 31, 1976 and was given
retrospective effect from April 9, 1976. Since the Governor
exercises a Legislative power under the proviso to
Article
of the Constitution, it is open to him to give
retrospective operation to the rules made under that
provision. But the date from which the rules are made to
operate must be shown to bear, either from the face of the
rules or by extrinsic evidence, reasonable nexus with the
provisions contained in the rules, especially when the
retrospective effect extends over a long period as in this
case. No such nexus is shown in the present case on behalf
of the State Government. On the contrary, it appears to us
that the retrospective effect was given to the rules from
April 9, 1976 for the mere reason that on August 25, 1976
the High Court had issued a notification fixing seniority of
the promotees and direct recruits appointed to the Superior
Judicial Service of Punjab. The notification issued by the
Governor on December 31, 1976 will, therefore, operate on
future appointments or promotions made after that date and
not on
appointments or promotions made before that date. The
seniority of all officers appointed or promoted to the
Superior Judicial Service, Punjab, before December 31, 1976
will be determined by the High Court according to the
criterion of the dates of confirmation, without applying the
rule of rotation. The seniority of those promoted or
appointed after December 31, 1976 will be determined in
accordance with the rules promulgated under the notification
of that date. In so far as we see, Judicial officers from
Serial No. 1 to 36 mentioned in Annexure P-I to the Punjab
Writ Petition, that is, beginning with Shri J. S. Chatha and
ending with Sri Hardev Singh were appointed or promoted
prior to December 31, 1976. Those from serial No. 37 to
serial No. 43, that is beginning with Shri G. S. Kalra and
ending with Shri H. L. Garg, were appointed or promoted
after December 31, 1976. The validity of the notification
dated December 31, 1976 was not seriously challenged before
us, apart from its retrospectivity. We do not also see any
constitutional or legal objection to the test of continuous
officiation introduced thereby.

In so far as the Haryana writ petitions are concerned,
they involve a question of seniority really between two
officers only, namely, Shri B. S. Yadav, who is a promotee
and Shri N. S. Rao, who is a direct recruit. The other two
promotees, namely, petitioners 2 and 3, have been
compulsorily retired during the pendency of the Writ
Petitions in this Court. Rule 12, which is not in force in
Haryana, is similar to rule 12 which was in force in Punjab
prior to its amendment on December 31, 1976. Rule 12, as it
originally existed, was amended by the Governor of Haryana,
on April 21, 1972 with retrospective effect from April 1,
1970. However, on September 2, 1977 the Governor superseded
that amendment, again with effect from April 1, 1970, and
restored the rule of seniority as it existed originally in
the 1963 Rules. In Haryana, therefore, the seniority of the
members of the Superior Judicial Service will be determined
with reference to the dates of confirmation, without
applying the rule or rotation.

We must express our concern at the manner in which the
Rules of the Superior Judicial Service have been amended by
the Governor of Punjab and, particularly, by the Governor of
Haryana. In Punjab, the High Court was never consulted on
the question whether the amendments made on December 31,
1976 should be given retrospective effect and, if so, from
what date. The amendments were made despite the opposition
of the High Court. In Haryana, the amendment of April 21,
1972 was made just in order to spite a single judicial
officer who is a direct recruit. Fortunately, that amendment
was withdrawn by the successor Government on September 2,
1977. A
long retrospective effect was given to that amendment from
April 1, 1970 because the amendment of April 21, 1972 was
given retrospective effect from April 1, 1970 and that
amendment had to be effectively superseded. We do hope that
the State Governments will apply their mind more closely to
the need to amend the Service Rules of the Superior
Judiciary and that the Rules will not be tinkered with too
often. It should also be realised that giving retrospective
effect the rules creates frustration and discontentment
since the just expectations of the officers are falsified.
Settled seniority is thereby unsettled, giving rise to long
drawn-out litigation between the promotees and direct
appointees. That breeds indiscipline and draws the High
Court into the arena, which is to be deprecated.

Punjab and Haryana have a peculiar problem since they
have a common High Court. But they are blessed, not cursed,
with a common High Court. Today we find the strange
spectacle of the High Court being called upon to determine
the seniority of officers in one State by one test and that
of officers in the other State by an opposite test. In
Punjab, continuous officiation on a post in the Service is
the criterion of seniority. In Haryana, the date of
confirmation is the governing factor. Can the two Governors
not come together and take a joint decision applying a
uniform test of seniority to their judicial officers who are
under one common High Court? And though that is not the
requirement of the proviso to
Article 309
of the
Constitution, we hope that whatever amendments are going to
be made hereafter to the Rules will be made in consultation
with the High Court. Nothing will be lost thereby and there
is so much to gain: Goodwill, expert advice and the benefit
of the experience of a body which has to administer the
Rules since the control over the Subordinate Courts is
vested in it by
Article 235.
It is sad that the promotees
and direct recruits have to dissipate their time and energy
in litigation which they can ill-afford and which arises
largely because of the lack of co-ordination between the
High Court and the State Governments. It is time enough now
to turn a new leaf.

In the result, we partly allow Writ Petition 266 of
1979, quash the impugned orders including (i) the order
dated August 25, 1976 of the High Court, published in the
Punjab Government Gazette dated September 3, 1976; (ii) the
order whereby Respondents 6, 7 and 8 were confirmed by
reducing their period of probation; and (iii) all subsequent
orders of the High Court confirming the promotees and direct
recruits by rotation. We direct that:

(a) The High Court will revise and refix the
respective dates of confirmation of the petitioners and
respondents 3 to 11, without applying the rule of
rotation;
(i) The petitioners, if they are otherwise fit
for confirmation, shall be confirmed with
effect from the dates on which vacancies
became available to them in the quota of
promotees;

(ii) Respondents 3 to 11 shall be confirmed
against vacancies falling within the quota of
direct recruits, with effect from dates on
which they successfully completed their two
years' probation. Since, the normal period of
probation cannot be reduced unless the High
Court is satisfied in each individual case
that there are "exceptional circumstances"

justifying the reduction of that period, and
since the High Court had not given such
reasons while reducing the probationary
period of some of the respondents,
respondents 3 to 11 will be confirmed as
stated above without reducing the period of
their probation.

(b) The High Court will re-draw the inter se
seniority-

(i) of such of the petitioners and respondents as
were promoted or appointed to the Superior
Judicial Service prior to December 31, 1976,
on the basis of the respective dates of
confirmation allotted to them in compliance
with the aforesaid direction (a); and

(ii) of such of the petitioners, respondents and
others who were appointed to a post in the
service on or after December 31, 1976 in
accordance with the amended rule 12.

(c) The High Court will review and reconsider
promotions to the Selection Grade and other allied
orders made by it, having regard to these directions
and the seniority to be fixed on the basis thereof. The
High Court will make necessary adjustments and
alterations therein, in the light of the action to be
taken in compliance with the aforesaid directions (a)
and (b). The confirmations, promotions and other orders
passed by the High Court during the pendency of these
Writ Petitions are, according to the interim order
passed by this Court, subject to the result of these
Writ Petitions.

Writ Petitions 4228 to 4230 of 1978 are also allowed
partly, to the same extent as Writ Petition No. 266 of 1979.
The High Court will readjust the seniority of the
petitioners and respondent No. 3 therein by the application
of the aforesaid principles and in accordance with the
Haryana Superior Judicial Service Rules, 1963
as in force on, or as given effect to from April 1, 1970.
The seniority list will be drawn by the High Court on the
basis of the dates of confirmation without applying the rule
of rotation and in the light of the directions given by us
in the Punjab Writ Petition, in so far as relevant. The High
Court will also comply with the other directions therein
given regarding the review of the promotions to Selection
Grade and the consequential orders.

These directions in the aforesaid Writ Petitions from
Punjab and Haryana shall be complied with as soon as
possible, preferably within a period of three months from
to-day.

Parties will pay and bear their own costs.

P. B. R. Petitions allowed in part.