Post on 27-Apr-2020
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF SEPTEMBER 2013
BEFORE
THE HON’BLE MR. JUSTICE DILIP B BHOSALE
W.P.NOS.41684-41691/2012 (S-PRO) C/W
W.P.NO.28147/2013 (S-RES)
IN W.P.NOS.41684-41691/2012(S-PRO)
BETWEEN 1. N RUDRMUNI
S/O N AIYYANNA AGED 45 YEARS
DISTRICT & SESSIONS JUDGE RAMANAGARA DISTRICT
RAMANAGARA
2. SHIVASHANKAR B AMARANNAVAR
S/O BASAPPA AMARANNAVAR AGED 42 YEARS
DISTRICT & SESSIONS JUDGE BAGALKOT
3. R J SATHISH SINGH S/O R J JAYARAM SINGH
AGED 50 YEARS DISTRICT & SESSIONS JUDGE GADAG
4. SMT UMA
W/O LATE VENKATESH SHIVAPOR AGED 48 YEARS PRL DISTRICT & SESSIONS JUDGE
BELLARY
5. V SRISHANANDA S/O G VEDAVYASACHAR
®
2
AGED 46 YEARS DISTRICT & SESSIONS JUDGE
UTTARA KANNADA DISTRICT KARWAR
R/AT NO. 691, 6TH MAIN, III CROSS VIJAY NAGAR, BANGALORE-560040 KARNATAKA
6. HANCHATE SANJEEV KUMAR
S/O VIJAYA KUMAR AGED ABOUT 40 YEARS PRL DIST JUDGE
YADGIR
7. SMT S MAHALAXMI N NERALE W/O B SIDDARAJU AGED 42 YEARS
PRINCIPAL DISTRICT & SESSIONS JUDGE SHIMOGA
8. MASTER R K G M M MAHASWAMIJI
S/O R K GANGANNA AGED 39 YEARS DISTRICT & SESSIONS JUDGE
CHAMARAJANAGAR ... PETITIONERS
(BY SRI BASAVAPRABHU S PATIL, SR. ADV., FOR SRI BRIJESH PATIL, ADV.,)
AND
1. DEPARTMENT OF LAW JUSTICE & HUMAN RIGHTS GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA, BANGALORE THROUGH PRL. SECRETARY
2. DEPARTMENT OF PUBLIC & ADMINISTRATIVE
REFORMS, VIDHANA SOUDHA BANGALORE
THROUGH SECRETARY
3
3. THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA
BANGALORE
4. B G JATTENNAVAR AGED 61 YEARS R/AT NEW MUNICIPAL NO.16
WARD NO.127, 3RD MAIN MUDALAPALYA, 9TH CROSS
BYRAVESHWARA NAGAR (PID NO.38.75, 16) BANGALORE-560072
5. S N KEMPAGOUDAR
AGED 61 YEARS R/AT POST ATTIKATTI TALUK BYADGI
DISTRICT HAVERI-581120
6. B C PATTAR AGED 63 YEARS
R/AT HOUSE NO.38 JANAKIRAM, TEJASWINAGAR DHARWAD
7. ASHOK S GADAG
AGED ABOUT 59 YEARS PRL DISTRICT JUDGE BIJAPUR
8. K SUKANYA AGED 60 YEARS R/AT NO 927, 9TH MAIN
BEML LAYOUT, 3RD STAGE RAJARAJESHWARI NAGARA
BANGALORE-560098
9. B SHIVALINGEGOUDA
AGED ABOUT 62 YEARS PRL DISTRICT JUDGE
MANDYA
4
10. SHIVANANDA KATTI AGED 62 YEARS
R/AT C/O M S MAJEGE HOUSE NO. 8/11/57 (O) KEB ROAD
BIDAR, HOUSE NO.1-4-155/52 JYOTHI COLONY, RAICHUR PRESENT ADDRESS:
RETD DISTRICT JUDGE H NO. 9-587/24/109
GANJEEGUDI LAYOUT NEAR AKKAMAHADEVI TEMPLE SHAHABAJA ROAD, GULBARGA
11. S R SOMASHEKHARA
AGED 56 YEARS DISTRICT JUDGE MADIKERI
12. A R DESHPANDE
AGED 62 YEARS R/AT C/O SRI P Y NAIK
# 70, BHANDURGALLI BELGAUM NO.76, I D MAIN PIPELINE ROAD, RPC LAYOUT
VIJAYANAGAR II STAGE BANGALORE
13. SUBHASH YALLAPPA IRANNAVAR
AGED 58 YEARS
DISTRICT JUDGE CHIKKABALLAPUR
14. SANGAPPA HUCHCHAPPA MITTALKOD
AGED 59 YEARS
PRL DISTRICT JUDGE, RAICHUR
15. DATTA SATYAPPA SHINDE AGED 59 YEARS PRL DISTRICT JUDGE
KOPPAL
16. B M SINDGI AGED ABOUT 62 YEARS
5
R/AT PLOT NO.499, S R COLONY BEHIND DISTRICT COURT COMPLEX
BIJAPUR
17. RAJASHEKHAR MALLESHAPPA SHETTAR AGED 58 YEARS JUDGE FAMILY COURT
MANGALORE
18. D VISHWESHWARA BHAT AGED ABOUT 58 YEARS I ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
19. C CHANDRAMALLE GOWDA AGED 58 YEARS JUDGE FAMILY COURT
DAVANAGERE
20. RAVINDRA M VAIDYA AGED 59 YEARS
PRESIDING OFFICER LABOUR COURT, BANGALORE
21. K NINGE GOWDA AGED ABOUT 58 YEARS
VIII ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
22. R CHANDRASHEKAR AGED 59 YEARS
DISTRICT JUDGE OOD REGISTRAR ADMINISTRATION HIGH COURT OF KARNATAKA
BANGALORE
23. SUKHADEV M NAYAK AGED ABOUT 61 YEARS R/AT J1-B-103, JUDICIAL BLOCK
NGV, KORAMANAGALA BANGALORE-560047
6
24. AVIN TIPPANNA HANUMAPPA AGED ABOUT 58 YEARS
PRESIDING OFFICER ADDL LABOUR COURT
HUBLI
25. SHANKAR N NAYAK
AGED 62 YEARS R/AT SANAGULI HOUSE
NEAR LAND LINKS KONCHADI DEREBAIL D K MANGALORE
26. SUBHASH T GOGI
AGED 62 YEARS R/AT NO. 45 (OLD NO.369) KRISHAN R M V 2ND STAGE
2ND BLOCK, (60 FEET ROAD) BANGALORE-560094
27. A B WADEYAR
AGED 60 YEARS R/AT AMOGH BUIDLING PLOT NO.126, SECTOR NO.13
T V CENTRE, BELGAUM
28. VASANT HANMANTRAO KULKARNI
AGED 59 YEARS
I ADDL DISTRICT & SESSIONS JUDGE RAICHUR
29. CHANDRAPPA NAGAPPA SHIVAPUJI
AGED 61 YEARS
R./AT 4TH MAIN, 2ND CROSS GORISHANKARA NAGAR
RANIBENNUR-581115 HAVERI DISTRICT
30. MANAKERI KRISHNA MURTHY PRAHLADA AGED 58 YEARS
ADDL DISTRICT & SESSIONS JUDGE CHITRADURGA
7
31. VISHWANATH GURUSHIDDAPPA SAVADKAR
AGED 57 YEARS PRESIDING OFFICER
INDUSTRIAL TRIBUNAL MYSORE
32. S RENUKA PRASAD AGED 57 YEARS
JUDGE, FAST TRACK COURT MYSORE
33. J S SOMASEKHARA AGED 59 YEARS
XXX ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
34. A MANJUNATHAPPA @ A MANJUNATH AGED 58 YEARS
DISRICT JUDGE OOD MEMBER
KARNATAKA APPELLATE TRIBUNAL BANGALORE
35. G K SOMANATH AGED 58 YEARS
XXII ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
36. SOMALINGAPPA CHANNAPPA INGALAGI AGED 61 YEARS
R/AT B-4, 419, GHATAPRABHA BLOCK NGV, KORAMANGALA BANGALORE-560040
37. MADAPPA S KANTI
AGED ABOUT 63 YEARS R/AT NO. 25, RADHESH NILAYA 3RD MAIN, 2ND CROSS
VRISHABHAVATHINAGARA KAMAKSHIPALYA
BANGALORE-560079
8
38. SHIVAPUTRAPPA YAMANAPPA KUMBAR
LAW OFFICER REVENUE DEPARTMENT
GOVERNMENT OF KARNATAKA KARNATAKA
39. VIDYAVATHI S AKKI AGED ABOUT 58 YEARS
I ADDL JUDGE, FAMILY COURT BANGALORE
40. M A LOHAR AGED 62 YEARS
R/AT KOTIGERONI HANGAL, HAVERI DISTRICT-581110
KARNATAKA
41. V N RAVINDRA AGED ABOUT 59 YEARS
PRESIDING OFFICER LABOUR COURT, MYSORE
42. D R VENKATASUDARSHAN AGED ABOUT 57 YEARS
XXI ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
43. B BALAKRISHNA AGED 58 YEARS
XVIII ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
44. K MANAMOHANA AGED 62 YEARS
APPOINTED AS PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FOURM,. M G ROAD
U K, KARWAR-581301, R/O RHS CLASS GROUP 3-25, PWD QUARTERS
U K KARWAR-581301
9
45. H S KAMALA
AGED 56 YEARS IV ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
46. PRAHALAD RAO GOVINDRAO MUTHALIK PATIL
AGED 54 YEARS JUDGE, FAMILY COURT, BELGAUM
47. S SAVITHRI VINAYAKA
AGED 58 YEARS
JUDGE, FAMILY COURT SHIMOGA
48. K A LALITHA
AGED 61 YEARS
R/AT NO. 90 II MAIN 16TH CROSS, AECS LAYOUT
GEDDALAHALLI, SANJAYANAGAR BANGALORE
49. P A SHIVAPRASAD NAIK
AGED 62 YEARS
R/AT PALYA, PALYA POST KOLLEGAL TALUK
CHAMARAJANAGAR DISTRICT
50. M RAMESH RAO
AGED 57 YEARS XXII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE 51. APPASAHEB SHANTAPPA BELLUNKE
AGED 55 YEARS ADDL DISTRICT & SESSIONS JUDGE
MANDYA
52. CHANDRASHEKAR PATIL
AGED 56 YEARS III ADDL DISTRICT & SESSIONS JUDGE
BELGAUM
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53. C R JAWEED PASHA
AGED 60 YEARS R/AT NO. 1714/A, 41ST CROSS
EAST END B MAIN ROAD OPP SAHAKARI VIDYA KENDRA HIGH SCHOOL JAYANAGAR 9TH BLOCK
BANGALORE
54. ANGADI SHARASCHANDRA BASAPPA AGED 57 YEARS XXXI ADDL CITY CIVIL & SESSISON JUDGE
BANGALORE
55. G D NARASIMHAMURTHY AGED 59 YEARS I ADDL DISTRICT & SESSIONS JUDGE
DAKSHINA KANNADA, MANGALORE
56. JEEVAN RAO R KULKARNI
AGED 61 YEARS R/AT C/O DR ANAND ANUGRAHA H NO. 1-891
BEHIND VARGHESE FLATS SANTHOSH COLONY
BHAGYAVANTHI NAGAR UDNOOR ROAD GULBARGA
57. B SREERAMA REDDY
AGED 63 YEARS R/AT NO. 1773, ‘RAMASHREE’ 7TH MAIN, JUDICIAL LAYOUT
GKVK POST YELAHANKA BANGALORE-560067
58. DEVENDRA RAMACHANDRA RENAKE
AGED ABOUT 56 YEARS
DISTRICT JUDGE, OOD MEMBER KARNATAKA APPELLATE TRIBUNAL
BANGALORE
11
59. V G BOAPAIAH
AGED 56 YEARS II ADDL JUDGE, FAMILY COURT
BANGALORE
60. V H RAMACHANDRA
AGED 62 YEARS APPOINTED AS PRESIDENT
DISTRICT CONSUMER REDRESSAL FORUM, CHITRADURGA-577501 R/O KARIBSAVESHWAR KRUPA
BANK COLONY VENKATESHWARA BADAVANE
OPP TO VENKTESHWARA TEMPLE CHITRADURGA-577501
61. BASAVANAHALLI VENKATAKRISHNAIAH PRAKASH AGED 58 YEARS
ADDL REGISTRAR LOKAYUKTHA
BANGALORE
62. J S DESHPANDE
AGED 59 YEARS I ADDL DISTRICT & SESSIONS JUDGE
DHARWAD
63. JAVID PASHA
AGED 61 YEARS R/AT NO. 1877, 7TH CROSS
3RD A MAIN, JUDICIAL LAYOUT GKVK POST, BANGALORE-560065
64. SOMALINGAPPA SHIVARUDRAPPA MURAGOD AGED 57 YEARS
JUDGE, FAMILY COURT DHARWAD
65. DUNDAPPA SOMAPPA MUTTUR
AGED 59 YEARS ADDL REGISTRAR
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KARNATAKA LOKAYUKTHA BANGALORE
66. GUNJIGAVI SIDDAPPA BHIMAPPA
AGED 56 YEARS IV ADDL DISTRICT & SESSIONS JUDGE GULBARGA
67. CHANDRASEKHARA BASAVARAJ HIPPARGI
AGED 58 YEARS PRESIDING OFFICER INDUSTRIAL TRIBUNAL
HUBLI
68. PRAKASH KUMAR AGED 63 YEARS CHAIRMAN
DISTRICT CONSUMER FORUM, BELLARY
69. CHANNAMALLAPPA R BENAKANAHALLI
AGED 58 YEARS PRESIDING OFFICER DEBT RECOVERY TRIBUNAL, BANGALORE
70. MAHADEVE GOWDA
AGED 56 YEARS IV ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
71. SHANKAR MANIKRAO PATIL
AGED 55 YEARS XLVII ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
72. C S NANJUNDAPPA
AGED 63 YEARS R/AT NO. J1B-504, NATIONAL GAMES VILLAGE KORAMANGALA, BANGALORE
73. SIDDAPPA CHANNABASAPPA MARADI
AGED 58 YEARS
13
II ADDL DISTRICT & SESSIONS JUDGE BIJAPUR
74. NELHAL SHARANAPPA
AGED 56 YEARS I ADDL DISRICT & SESSIONS JUDGE GULBARGA
75. SOMNATH REVANNASIDDAPPA SINDGI
AGED 59 YERS II ADDL CITY CIVIL & SESSIONS JUDGE BANGALORE
76. MAJAGE NIJAGUNAPPA
AGED 59 YEARS III ADDL DISTRICT & SESSIONS JUDGE D K MANGALORE
77. CHANNABASAPPA MARGOOR
AGED 56 YEARS V ADDL JUDGE FAMILY COURT
BANGALORE
78. NIYAJ AHMED SYED HASMAM DAFEDAR
AGED 58 YEARS XVII ADDL CITY CIVIL & SESSIONS JUDGE
BANGALORE
79. PAMPAPATHI
AGED 63 YEARS R/AT C/O RAJESH PARAMANNACHAL
NEAR BASAVESHWARA HIGH SCHOOL LINGASUGUR, RAICHUR DISTRICT
80. M C SACHIDANANDA PRASAD AGED 63 YEARS
NO. 1783/412, 1ST FLOOR SANTHOSH NILAYA OPP TO MARKANA MARBLES
CHAMUNDESHWARI TEMPLE STREET K R EXTENSION, TUMKUR-572101 ... RESPONDENTS
14
(CAUSE TITLE IS AMENDED AS PER COURT ORDER DATED:3.4.2013)
(BY SRI P S RAJAGOPAL, SR. ADV., A/W SRI RAGHAVENDRA G
GAYATHRI, AGA FOR R1-3; SRI PUTTIGE R RAMESH, ADV., FOR SRI SACHIN V.R. FOR R5, 32, 33, 42, 47 AND 50,
SRI SHARATH S GOWDA, ADV., FOR R8 & 35, SRI K.V. NARASIMHAN, ADV., FOR R6, 9, 12, 14, 15, 19, 21, 23,
31, 48, 55, 56, 66 & 72, SRI L K SRINIVASA MURTHY, ADV., FOR R10, SRI S.V. NARASIMHAN, ADV., FOR R20, 22, 24, 28, 34, 36, 40,
43, 44, 53, 58, 63, 64, 67, 71, 74, 77 TO 80, 82, 83, SRI K SHRIHARI, ADV., FOR R46,
RESPONDENT NOS. 7, 11, 13, 16 TO 18, 25 TO 27, 29, 30, 37 TO 39, 41, 51, 52, 57, 59, 61, 62, 65, 68 TO 70, 73, 75, 76, 81, 84, 85 ARE SERVED AND UNREPRESENTED,
RESPONDENT NOS. 4, 45, 49, 54 AND 60 ARE DELETED V/O DATED 3.4.13)
THESE W.PS. FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DT.14.9.12, VIDE ANN-A, ISSUED BY THE R3 ETC.,
IN W.P.NO.28147/2013 (S-RES)
BETWEEN: SRI V N RAVINDRA
S/O LATE V S NARAHARI RAO AGED 60 YEARS
RETD DIST & SESSIONS JUDGE #229, 4TH CROSS, BALAJI LAYOUT VAJARTAHALLI
BANGALORE 560062 ... PETITIONER
(BY SRI PUTTIGE R RAMESH, ADV.,) AND
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY DEPT OF LAW, GOVT OF KARNATAKA
15
VIDHANA SOUDHA BANGALORE 560 001
2. THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA BANGALORE 560 001
3. N RUDRAMUNI S/O N AIYYANNA
AGED 45 YEARS DIST & SESSION JUDGE RAMANAGARA DIST
RAMANAGARA - 571511
4. SHIVASHANKAR B AMARANNAVAR S/O BASAPPA AMARANNAVAR AGED 42 YEARS
DIST & SESSION JUDGE BAGALKOT - 587102
5. R J SATHISH SINGH
S/O R J JAYARAM SINGH AGED 50 YEARS DIST & SESSION JUDGE
GADAG - 582101
6. SMT UMA W/O LATE VENKATESH SHIVAPUR AGED ABOUT 48 YEARS
PRL. DIST & SESSION JUDGE BELLARY - 583101
7. V SRISHANANDA
S/O VEDAVYASACHAR
16
AGED 46 YEARS DIST & SESSION JUDGE
UTTARA KANNADA, KARWAR R/A #691, 6TH MAIN III CROSS, VIJAYANAGAR
BANGALORE 560 040
8. HANCHATE SANJEEV KUMAR S/O VIJAYA KUMAR AGED 40 YEARS
PRL DIST JUDGE YADGIR - 585201
9. SMT S MAHALAKSHMI N NERALE
W/O B SIDDARAJU
AGED 42 YEARS PRL DIST & SESSION JUDGE
SHIMOGA - 577201
10. MASTER R K G M M MAHASWAMIJI S/O R K RANGANNA AGED 39 YEARS
DIST & SESSION JUDGE CHAMARAJANAGAR-571313 ... RESPONDENTS
(BY SRI RAGHAVENDRA G GAYATHRI, AGA, FOR R1 & 2, SRI BASAVA PRABHU PATIL, SR. ADV., FOR R3-10)
THIS W.P. FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT TO HOLD THAT
THE WORDS WITH IMMEDIATE EFFECT CONTAINED IN THE
NOTIFICATION DATED 1.6.09 OF THE R1 AT ANNX-B REQUIRES
TO BE READ AS W.E.F THE DATE OF POSTING ON AD-HOC BASIS
IN SO FAR AS IT RELATE TO THE PETITIONER
THESE WRIT PETITIONS HAVING COME FOR FINAL HEARING AND RESERVED FOR JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
17
JUDGMENT : (DILIP B BHOSALE J)
The question of inter-se seniority between promotees
and direct recruits has always been a matter of controversy
that engaged the attention of the Supreme Court and High
Courts on several occasions and there are many decisions
bearing upon the controversy. This is one more.
2. The petitioners-direct recruits have instituted
these writ petitions under Article 226 of the Constitution of
India calling in question the legality of notification dated 14th
September 2012 issued by respondent No.3-Registrar
General, High Court of Karnataka, Bangalore (for short “the
RG”), whereby, a final seniority list of District Judges has
been published. In the final seniority list, according to the
petitioners, respondent Nos.4 to 85, (for short “the
respondent-DJs”) who were promoted/ appointed in the
cadre of District Judge subsequent to their appointments as
District Judges, have wrongly been placed above them.
Petitioners have also prayed for a direction to the RG to
18
redraw the seniority, taking into consideration the actual
date of appointment of the petitioners (direct recruits) and
the dates of promotion of the respondent-DJs in the cadre of
District Judge.
3. Petitioners were appointed as District Judges under
25% category of direct recruits as provided for in Rule 4 of
the Karnataka Judicial Services (Recruitment) Rules, 2004
(for short “2004 Rules”) vide notification dated 13.2.2008.
The Notification dated 13.2.2008, to the extent it is relevant
reads thus:
“NOTIFICATION
In exercise of the powers conferred under
Article 233 of the Constitution of India, the Governor of Karnataka hereby appoints the
following Advocates as District Judges with immediate effect.”
(emphasis supplied)
4. Having regard to huge pendency of cases and for
disposal of long pending sessions and other cases, the
Eleventh Finance Commission recommended a scheme for
creation of 1734 Fast Track Courts (for short FTCs) in the
19
country. The Ministry of Finance sanctioned an amount of Rs
502.90 crores as “special problem and upgradation grant” for
judicial administration. The scheme was temporary and for a
period of 5 years. Government accorded its approval for the
continuation of 1562 Fast Track Courts that were operational
as on 31.3.2005 for a further period of 5 years i.e. up to 31st
Mach, 2010.
5. In view of the recommendation of the 11th
Finance Commission the Government of Karnataka created
FTCs and decided to appoint Civil Judges as District Judges
temporarily on ad-hoc basis and accordingly respondent-DJs
were promoted by issuing four different notifications as ad-
hoc District Judges. The respondent-DJs, at the relevant
time, were working in the cadre of Civil Judge (Sr.Dn.).
They were promoted temporarily on ad-hoc basis to officiate
as District Judges vide notifications dated 15-2-2003, 19-3-
2003, 15-11-2003 and 20-3-2004. Though a specific
request was made vide letter dated 27-12-2002 by the RG,
addressed to the Chief Secretary, Government of Karnataka,
20
requesting him to move His Excellency the Governor of
Karnataka and obtain orders promoting the Civil Judges
(Sr.Dn.) named therein, under Article 233 of the
Constitution of India as ad-hoc District Judges temporarily,
subject to reversion at any time, the notifications did not
make any reference to Article 233 of the Constitution of
India. It would be convenient to reproduce the first
notification dated 15.2.2003 (Annexure-R9), to the extent it
is relevant, which reads thus:
“NOTIFICATION
The following eighteen Civil Judges (Senior Division) are promoted, temporarily
on adhoc basis to officiate as District Judges with immediate effect to man the Fast
Track Courts subject to reversion at any time.”
(emphasis supplied)
The language of remaining three notifications dated
19.3.2003, 15.11.2003 and 20.03.2004 is similar.
5.1. Total 82 Civil Judges (Sr.Dn.) were promoted
temporarily on ad hoc basis to officiate as District Judges
21
with immediate effect to man the Fast Track Courts subject
to reversion at any time. The expression “to man the Fast
Track Courts” in the aforesaid notifications, however, was
deleted vide corrigendum dated 21.4.2003.
5.2. After their appointments, they took charge as
ad-hoc District Judges and continued till they were
promoted/appointed under 50% and 25% quota to be filled
by promotions on the basis of seniority-cum-merit and
through Departmental Competitive Examination (for short
‘accelerated promotion’), respectively as provided for under
Rule 4 of the 2004 Rules vide notifications dated 1st June
2009, 27th June 2009 and 29th July 2009. (Annexure-R22 to
Annexure-24). All the three notifications, were issued by the
Governor of Karnataka, in exercise of the powers conferred
on him under Article 233 of the Constitution of India
appointing them on the existing vacancies in the cadre of
District Judge, under the 2004 Rules, with immediate effect.
22
5.3. The first notifications dated 1st June 2009, issued
by the Governor of Karnataka, to the extent it is relevant,
reads thus :
“NOTIFICATION
I.Rameshwar Thakur, Governor of Karnataka in exercise of the powers conferred
on me, under Article 233 of the Constitution of India, hereby appoints the following 48 Ad-hoc
District Judges/Civil Judges (Sr.Dn.) filling up 50% of the existing vacancies in the cadre
of District Judges by promotion on the basis of seniority-cum-merit under the Karnataka
Judicial Service (Recruitment) Rules, 2004, with
immediate effect.” (emphasis supplied )
5.4. The second notification dated 29.7.2009
appointing 14 ad hoc District Judges/Civil Judges (Sr.Dn) in
the cadre of DJ, filling up 50% of the existing vacancies is
identical. The third notification dated 27.6.2009, whereby 45
ad-hoc DJs/Civil Judges (Sr.Dn.) filling up 25% of the
existing vacancies in the cadre of District judges by
accelerated promotion reads thus:
“GOVERNMENT OF KARNATAKA
No.DPAR 35 SHC 2009 Karnataka Government
Secretariat, “Vidhana Soudha”
23
Bangalore, dated: 27th June, 2009.
NOTIFICATION
I, Rameshwar Thakur, Governor of
Karnataka in exercise of the powers conferred on me, under Article 233 of the Constitution of
India, hereby appoint the following 45 Ad-hoc District Judges/Civil Judges (Sr.Dn.) filling up
25% of the existing vacancies in the cadre of District Judges who have put in not less
than 5 years of service strictly on the basis of merit through limited departmental
competitive examination in accordance with the guidelines framed by the High Court under
the Karnataka Judicial Service (Recruitment)
Rules, 2004, with the immediate effect.”
(emphasis supplied)
6. Perusal of the above notifications, clearly
demonstrate that the respondent DJs were promoted as
District Judges in 2009 under the 2004 Rules against the
vacancies available in the cadre. In other words, their
regular promotion/appointments in the cadre of District
Judge were made, for the first time under the 50% and 25%
category/quota provided for in the 2004 Rules, on the basis
of seniority-cum-merit and through departmental
24
competitive examination i.e. accelerated promotion,
respectively.
6.1. Initial appointments, i.e. before their temporary
promotions on ad hoc basis, of respondent-DJs as Munsiffs
were, however, made under the Karnataka Judicial Services
(Recruitment) Rules, 1983 (for short “1983 Rules”) and then
as ad hoc District Judges, from the cadre of Civil Judge
(Sr.Dn.) on the basis of seniority-cum-merit in 2003-04, in
view of the recommendation of the 11th Finance Commission
for FTCs. I would deal with the question whether their
appointments as ad hoc District Judges were made under
1983 Rules or as per the Scheme and policy of appointment
of ad hoc District Judges for the Fast Track Courts little
later.
6.2. It is not in dispute that their (Respondent DJs)
promotions as ad hoc DJs temporarily in 2003-2004 were
made after following the due procedure in force i.e. the
procedure adopted by the High Court as contemplated by
1983 Rules.
25
7. Having regard to the dates of their (respondent-
DJs) appointments under Article 233 of the Constitution as
DJs, on the existing vacancies in the cadre of District Judge,
and the date of appointment of the petitioners, they contend
that they were born in the cadre of District Judge in 2008,
while respondents-DJs in 2009 and in view thereof, they
(petitioners) were initially treated as senior to the respondent
DJs and were posted as District Judges with independent
charge or as principal District Judge/s.
8. Respondent-DJs, therefore, made representations
dated 24th August 2009 and 3rd November 2009 addressed to
the RG, requesting to recognize/consider their service
rendered as ad hoc District Judges as the service rendered in
the District Judge cadre and accordingly, their seniority may
be fixed from the date of their initial appointments as ad hoc
District Judges in view of the directions issued by the
Supreme Court in Brij Mohan Lal Vs. Union of India, AIR
2002 SC 2006 (for short “Brij Mohan Lal -1”).
26
8.1. In view thereof, the RG, vide notice dated 15th
September 2010, requested the petitioners-direct recruits to
file their response to the representations made by the
respondent-DJs. The petitioners accordingly submitted their
response dated 21st September 2010.
9. The representations of respondent-DJs were
placed before Administrative Committee No.I, which in the
meeting held on 23.8.2010 constituted a Committee of
Mrs. Manjula Chellur J (as she then was) and Mr.
K.L.Manjunath J and requested to consider the
request/prayer to fix their seniority as District Judges from
the date of their appointments on ad-hoc basis after giving
an opportunity of hearing to the officers who were likely to
be affected. Before the report was submitted by the
Committee, Mrs. Manjula Chellur J was appointed as Chief
Justice and hence it was re-constituted consisting of
Mr. K.L.Manjunath J and Mr. Ajit J Gunjal J (for short “the
Committee”). The Committee considered the request made
by the respondent DJs in the light of judgment of the
27
Supreme Court in Brij Mohan Lal-1, in particular, direction
6 and 14 in paragraph-10 thereof, and paragraphs 6 and 7 of
the judgment in Brij Mohan Lal vs. Union of India and
others (2012) 6 SCC 502 (for short “Brij Mohan Lal-2”)
and in the concluding paragraph, stated thus:
“In view of the judgment rendered by the Hon’ble
Supreme Court, there is nothing for the Committee to fix the date of seniority of the ad
hoc Judges who have worked as Judges in the FTCs. Since Hon’ble Supreme Court has
already ruled that services rendered in the
FTCs by a judicial officer will be deemed to be in service for such higher grade on his
promotion to higher grade in the permanent cadre (as District and Sessions Judge).
Based on the above, we are of the view that it is for the Registry to work out and fix the
inter-se seniority of all the Adhoc Judges who have been promoted latter as regular District
Judges by taking into consideration the rights of the District Judges who have been directly
appointed and also rights of the District Judges who have been promoted from amongst the Civil
Judges who were selected on their success in limited examination.”
(emphasis supplied)
10. The report of the Committee was placed before
Full Court held on 14th July 2012. The Full Court passed the
following resolution :
28
“ Discussed. The Full Court considering the
office note, materials on record, judgment passed by the Hon’ble Supreme Court in Transferred
Case No.22/2001 in the case of Brij Mohan Lal Vs. Union of India & others and the report of
the Committee constituted to fix the Seniority of Ad-hoc District Judges on their promotion as
Regular District Judges, RESOLVED to accept the report submitted by the Committee
headed by Hon’ble Shri Justice K.L.Manjunath and further resolved to direct
the Registrar General to prepare a draft seniority list keeping in view the Karnataka
Judicial Service (Recruitment) Rules, 1983, Karnataka Judicial Service (Recruitment)
Rules, 2004 and Full Court resolutions
governing the same and circulate the same to affected Officers calling for objections
and thereafter finalise the seniority list with the approval of the Hon’ble Chief Justice.”
(emphasis supplied )
11. In view of the resolution passed by the Full Court
a provisional seniority list of District Judges based on the
judgment of the Supreme Court in Brij Mohan Lal-1 was
prepared by the RG dated 27-7-2012 inviting objections from
the aggrieved Judges. In the provisional list, Respondents-
DJs (promotee judges) were placed above the petitioners
(direct recruits). As a result thereof, the petitioners filed
objections to the provisional list.
29
12. The RG, as per the directions issued by the Full
Court in its meeting dated 14th July 2012, after considering
the objections, finalised seniority list and obtained approval
of the Hon’ble Chief Justice. From perusal of the submission
of the RG, which runs into about 22 pages, it appears that he
rejected the objections raised by the petitioners, based on
the observations made by the Committee and by the
Supreme Court in Brij Mohan Lal-1. The relevant paragraph
in the submission of the RG reads thus:
“The Hon’ble Committee which has gone into the
question as to from which date the Adhoc District Judges who were subsequently promoted as District &
Sessions Judge were entitled to count their seniority in the cadre of District & Sessions Judges. After
considering the effect of the judgment of the Hon’ble Supreme Court of India in Brij Mohan Lal’s case which
has dealt with this very specific issue has given a report stating that all such Officers are entitled to
count their seniority in the cadre of District & Sessions Judges from the date when they were initially posted
as Adhoc District Judges. This observation of the
Hon’ble Committee is a complete answer to all the objections by this group of Officers in as
much as once they are entitled to count their seniority from the date when they initially
became Adhoc District Judges which being prior to the date of coming into force of the Karnataka
Judicial Service (Recruitment) Rules, 2004, with effect from 9.9.2005, they will have to be ranked
30
above the candidates promoted under the said
provision from the cadre of Senior Civil Judges. Further once the Hon’ble Committee has held that the
date of seniority is from the date of posting as Adhoc District Judges, the matter as to whether some of
them had taken the limited departmental examination and were unsuccessful in the same does not make any
material difference to the said legal position. In other words, in view of the Brij Mohan Lal’s
decision and the report of the Committee, they are automatically entitled to count their
seniority from the date of their becoming Adhoc District Judges and therefore their taking limited
departmental examination was wholly superfluous in the eye of law. Accordingly, the
contention raised in this behalf cannot be sustained.”
(emphasis supplied)
13. Accordingly, the impugned notification dated
14th September 2012 (Annexure-A) came to be issued in
which Respondents-DJs were placed above the petitioners
taking into account their service as ad hoc District Judges
and treating it as service rendered in the District Judge
cadre. The notification dated 14th September 2012 to the
extent it is relevant reads thus:
“GOB(I)343/2009 High Court of Karnataka
Bangalore, Date: 14.09.2012
31
NOTIFICATION
A Provisional Seniority List from and subsequent to 01.01.2003 of Directly
Recruited District Judges, District Judges promoted on seniority-cum-merit basis
under 50% category, District Judges promoted from the cadre of Senior Civil
Judges under 25% category by holding limited departmental competitive
examination has been published by the High Court, inviting objections, if any, to the said
Provisional Seniority List, vide this office letter of even number dated 28.07.2012.
The High Court of Karnataka considered
the objections received and on such consideration resolved to publish the Final
Seniority List of District Judges who have been promoted/appointed after 01.01.2003.”
14. In this backdrop, before I make reference and
advert to the diverse contentions urged by learned counsel
for the parties, in support of their case, it would be relevant
to make a brief reference to the relevant rules in the 1983
Rules. These Rules were made in exercise of the powers
conferred by Articles 233, 234 and the proviso to Article 309
of the Constitution of India by the Governor of Karnataka
after consultation with the Karnataka Public Service
Commission and the High Court of Karnataka.
32
14.1. Rule-2 provides for method of recruitment,
minimum qualifications, etc.. Schedule appended to Rule-2
provides category of posts and method of recruitment and
minimum qualifications. The category of posts mentioned
therein are District Judges (Super-time scale), District
Judges, Civil Judges and Munsiffs. In the present case we
are concerned with the cadre of District Judge. Rule 2 and
Item Nos.1 and 2 in Schedule thereto, with which, we are
concerned in the present case, read thus:
“2. Method of recruitment, minimum
qualifications, etc. – In respect of each category of posts specified in column (2) of the Schedule
below, the method of recruitment and the minimum qualifications shall be as specified in
the corresponding entries in columns (3) and (4) thereof:-
SCHEDULE
Sl.
No
Category of
posts
Method of
recruitment
Minimum
qualifications etc.
1. District
Judges (Supertime
scale)
By promotion by
selection from the cadre of District
Judges by the High Court of Karnataka
Must have put in at
least 5(five) years of service as District
Judge.
2. District
Judges
By promotion on
the basis of seniority-cum-
merit from the cadre
For Direct
Recruitment. – Must be holder of a
degree in Law or
33
of Civil Judges:
Provided that such number of posts as
may be determined by the High Court
from time to time, but not exceeding in
the aggregate 33 1/3% of the posts in
the cadre of District Judges may be filled
by Direct recruitment).
Note- The Highcourt of
Karnataka may,
subject to those rules, adopt such
procedure as it deems fit for
selecting the candidates by
direct recruitment or by promotion by
seniority-cum-merit.
equivalent
qualification; and Must be practicing on
the last date fixed for submission of
applications, as an Advocate and must
have so practised for not less than seven
years as on such date.
Age: Must not have attained the age of
(forty-eight) years on the last date fixed
for submission of
application.) Probation.-
Two years. During the period of
probation he must undergo such
training as may be specified by the High
Court of Karnataka Officiation.–2 years.
(emphasis supplied)
14.2. Sub-Rule (1) of Rule 3 states that subject to
Articles 233, 234 and 235 of the Constitution of India,
provisions of Rules 5, 6(2), 6(3), 8, 9, 10 to 13 of the
Karnataka Civil Services (General Recruitment) Rules, 1977,
shall, insofar as they are not inconsistent with these rules,
34
mutatis mutandis, apply to recruitment of DJs, Civil Judges
and Munsiffs under these Rules. Sub-Rule(2) of Rule 3 states
that all rules regulating the conditions of service of the
members of the State Civil Services made from time to time
under any law or the Proviso to Article 309 of the
Constitution of India shall, subject to Articles 233, 234 and
235 be applicable to the Munsiffs, Civil Judges and the
District Judges recruited and appointed under these rules.
14.3. Rule 5 provides for repeal and savings. It states,
the Karnataka District Judges (Recruitment) Rules 1962, the
Karnataka Civil Judges (Recruitment) Rules 1966, and
Karnataka Munsiffs (Recruitment) Rules 1981, and all Rules
made on the subject are repealed, provided that the said
repeal shall not affect (a) previous operations of the said
Rules or anything duly done or suffered thereunder or any
right, liability or obligation acquired, accrued or incurred
under the said Rules; (b) the validity of the list of selected
candidates for the posts of DJs or Munsiffs, as the case may
be, prepared under the repealed rules and appointments of
35
such selected candidates; and (c) all proceedings, including
action taken to make recruitment and preparation of the list
of selected candidates, commenced under the repealed rules
etc.
15. Another set of Rules we are concerned with, is
the 2004 Rules which were published vide notification dated
9th September 2005. Those Rules were also made by the
Governor of Karnataka, in exercise of powers conferred upon
him by Articles 233 and 234 and the proviso to Article 309 of
the Constitution of India, and in consultation with the
Karnataka Public Service Commission and High Court of
Karnataka.
15.1. Rule 2 (e) defines “Recruiting Authority” which
means the High Court of Karnataka. Rule 2(f) defines
“service” which means the Karnataka Judicial Service. Rule 3
states that the appointing authority for the posts in the cadre
of District Judges and Civil Judges (Jr.Dn.) shall be the
Governor and for the posts in the cadre of Civil Judges
(Sr.Dn.) shall be the High Court.
36
15.2. Rule 4 provides for method of recruitment,
qualification and age limit in respect of three cadre of posts
i.e., District Judge, Civil Judge (Sr.Dn.) and Civil Judge
(Jr.Dn.). In the present petitions, we are concerned with
the cadre of District Judge. The relevant Rule 4 to the
extent, it is necessary, reads thus:
“4. Method of recruitment, qualification and age limit:-
In respect of each cadre of posts specified in column (2) of the table below the method of
recruitment and minimum qualification, age limit, etc., shall be as specified in the
corresponding entries in columns (3) and (4) thereof
Sl.
No. (1)
Cadre
(2)
Method of Recruitment
(3)
Qualification, age
limit, etc
(4)
1. District Judges
50% of the total posts in the cadre
shall be filled by promotion from the
cadre of Civil Judges (Sr. Dn.) on the
basis of seniority cum merit.) (For the
said purpose, the High Court shall
devise and evolve a test in order to
By direct recruitment:-
Must be holder of a
degree in law granted by a university
established by law in India.
Must be practicing as an advocate in the
High Court or in a subordinate Court on
37
ascertain and examine
the legal knowledge of the candidates and to
Assess their continued efficiency with
adequate knowledge of case laws).
25% of the posts in
the service shall be filed by promotion
from the cadre of Civil Judges (Sr.Dn.) who
have put in not less than 5 years of service
strictly on the basis
of merit through limited Department
competitive exami- nation in accordance
with the guidelines to be framed by the
High Court.
25% of the posts in the cadre shall be filled
by direct recruitment on the basis of the
aggregate marks obtained in a
competitive exami-
nation (written & viva voce) conducted by the
High Court.
the last date fixed for
receipt of applications and must have so
practiced for a period not less than seven
years as on such date.
Must not have attained the age of
forty-eight years in the case of
candidates belonging
to Schedules Castes or Scheduled Tribes
and forty-five years in the case of others,
as on the last date fixed for receipt of
applications.”
(emphasis supplied)
38
15.3. Rule 5 provides for competitive examination.
Part-I of Rule 5 provides for examination for recruitment of
District Judges which consists of written examination of two
papers each for 150 marks in Civil law and in Criminal law
and viva voce examination for maximum 100 marks which
provides for selection of candidates in order of merits on the
basis of aggregate of the marks obtained in the written
examination and viva voce test subject to the government
orders relating to reservation of posts for scheduled castes,
schedule tribes and other backward classes. Part-II of Rule-5
provides for competitive examination for recruitment of civil
judges, junior division, we are not concerned with this part of
the Rule. Rule 6 provides for disqualification for appointment
such as the person shall be eligible for appointment to the
service only if he is a citizen of India.
15.4. Rule 7 provides for recruitment, sub-rule(1)
thereof provides for filling up of vacancies by promotion for
which the recruiting authority shall take all necessary steps
well in advance so as to finalise the list of persons considered
39
eligible for promotion atleast 10-15 days before the
occurrence of the vacancy. Sub-rule (2) (i) and (2) (ii)
provides for the procedure for filling up of vacancies by direct
recruitment.
15.5. Rule-8 provides for conditions, suitability, fitness
and character. Rule-9 provides for fees required to be paid
along with the application.
15.6. Rule-10 provides for joining time for
appointment. Rule 12 which provides for repeal and savings
is also similar to Rule 5 in the 1983 Rules.
15.7. Neither the 1983 rules nor the 2004 Rules
provide for an appointment on ad hoc basis or on temporary
basis or provide for temporary posts or promotion against
vacant posts created temporarily. The 1983 and 2004 rules
insofar as such appointments are concerned are silent.
15.8. It is clear from the 1983 Rules, and other
documents referred to herein above, that no specific
procedure was prescribed in the Rules to be followed for
40
granting promotions and it was left open to the High
Court(Administrative Committee and Full Court) to adopt
such method as it deemed fit to accord promotion to Civil
Judges (Sr.Dn.) to the post of District Judge on seniority-
cum-merit. Accordingly, the Administrative Committee as
well as the Full Court seem to have promoted Civil Judges
(Sr.Dn.) temporarily by notifications dated 15-2-2003, 19-3-
2003, 15-11-2003, 20-03-2004 to the posts of ad hoc
District Judges (FTC) after following the procedure adopted
as contemplated by Rule 2 of the 1983 Rules.
16. At this stage, I would like to make a brief
reference to the stand/case of the respondents as reflected in
the statements of objection filed on their behalf. Several
respondents have filed statements of objections. The RG has
filed two statements of objections. The first statement of
objections dated 12-6-2013 filed by the RG was not clear,
which is evident from the following quotations, by way of an
illustration, from paragraphs-3, 5 and 7:
“3. …….……Initially, all are appointed on adhoc basis which was later came to be given
41
regular promotions and all these contesting
Respondents placed as Ad-hoc judges in that vacancy arise and quota available and that the
promotions are appointment by limited competitive examinations.
5. ……………Therefore, neither under the
earlier Rules nor under the Amended Rules, there is a provision to the fill up the Posts by way of
promotion by promoting eligible Judicial Officers in the cadre of Civil Judge Senior Division and
only 1/3 is recruited to be filled up by way of direct recruitment which is further reduced to
25% by way of amended Rules of 2004.
7. …………...Therefore, even though these
contesting Respondents were initially promoted on adhoc basis, subsequently, there promotions
have been regularized by issuing the order dated 01.07.2009 and all such promotions were taken
place only to fill up the post of the District Judges available for promotions.”
16.1. The RG was, therefore, allowed to file additional
statement of objections dated 25.6.2013 making their stand
clear in respect of the respondents-DJs and the date of their
seniority.
16.2. In the subsequent statement of objections, the
RG has referred to the procedure that was followed for
granting promotions to the respondents-DJs on ad hoc basis
42
in view of the FTCs scheme. The norms/guidelines that were
followed and taken into consideration for granting promotions
on ad-hoc basis are also reproduced in the statement of
objections.
16.3. It is further stated that the Administrative
Committee No.II considered senior-most Civil Judges for
promotion to the cadre of District Judge on ad hoc basis, out
of which, few of them were recommended for promotion.
The recommendations made by the Administrative
Committee were placed before the Full Court. The Full court
accepted the recommendations of Committee No.II for
according promotion to the senior most Civil Judges to the
cadre of District Judges on ad hoc basis. Then the RG had
requested the Government of Karnataka, to seek approval of
the Governor of Karnataka. The recommendations made by
the High Court were accordingly approved and the
notifications were issued in 2003-2004, in the name of the
Governor of Karnataka.
43
16.4. The statement of objections make reference to
1983 Rules and 2004 Rules and so also to the direction 14 in
paragraph 10 in judgment of the Supreme Court in Brij
Mohan Lal-1 to justify the date of seniority fixed pursuant to
the Full Court resolution.
16.5. While narrating the facts we have made
reference to all the documents which are referred to by the
RG in both the statement of objections as annexures-R1 to
R24. From bare perusal of the statement of objections and
the annexures it is clear that the RG has simply stated the
procedure that was followed for appointing respondent-DJs
and the manner in which their appointment
orders/notifications were issued. He has made reference to
the decision of the Committee and the Full Court and also the
correspondence made with the Government requesting to
issue notifications of promotion of respondent-DJs. In short,
the RG has emphasized that the due procedure was followed
while granting temporary promotions as ad hoc District
Judges and hence their appointments in the cadre of District
44
Judge in 2009 will have to be counted from the dates of their
appointments as ad hoc District Judges in 2003-04.
17. The other respondents also, though filed
separate statement of objections, have taken similar stand.
Their focus is also on the direction No.14 in paragraph-10 in
Brij Mohan Lal-1 to contend that the date of their initial
appointments as Adhoc DJs was rightly taken into
consideration for fixing seniority and the decision deserves
no interference by this Court in the present writ petitions. In
one of the statements of objections it is stated that the High
Court never made a distinction between ad hoc District
Judges and regular District Judges, and their pay-scale was
also on par with the regular District Judges, which, further, it
is stated, shows that though they were not promoted under
Article 233 of the Constitution, they were appointed after
following the due procedure and with approval of the
Governor. It has also been stated that the petitioners have
no locus standi to question as to when the respondents-DJs
became eligible to be appointed as District Judges. In other
45
words, it is stated that eligibility of respondents-DJs for
promotion to the cadre of District Judge cannot be
questioned by the petitioners as long as their number does
not exceed the quota fixed for promotion as on the date of
appointment of the petitioners.
18. I have, with the assistance of learned counsel for
the parties, formulated the following question for
consideration:
“whether promotions of respondents-DJs as ad hoc
District Judges vide notifications dated 15-2-2003,
19-3-2003, 15-11-2003 and 20-3-2004 for being posted in
the Fast Track Courts could be treated as regular promotions
in the cadre of District Judge under the 1983 Rules and/or
services rendered by them as ad hoc Fast Track Judges can
be counted for the purpose of seniority in the cadre of
District Judge from the date of the aforesaid notifications or it
should be from the date on which they were promoted under
the 2004 Rules vide notifications dated 1.6.2009, 27.6.2009
and 29.7.2009? ”
46
18.1. Alongwith the aforementioned question, it would
be necessary to consider peripheral issues, such as whether
the procedure in force in the matter of promotion to the
posts of District Judge was followed while appointing
respondent-DJs, as adhoc DJs for the Fast Track Courts;
whether their promotions as ad hoc District Judges are
traceable to 1983 Rules; whether vacancies, that occurred
prior to the date on which the 2004 Rules were brought into
force, can be taken into consideration for giving deemed date
of promotion from the dates of their promotions on ad hoc
basis in 2003-04; whether or not the seniority list affects
rights of the parties; and whether the respondents-DJs, who
were promoted vide notification 26th June 2009 to fill up 25%
vacancies through departmental competitive examination,
under the 2004 Rules would be entitled for the same benefits
that could be extended to those, who were appointed under
50% quota to be filled up by promotion on the basis of
seniority-cum-merit.
47
19. In view of a categoric stand taken by the RG that
while making appointments/promotions all respondent-DJs in
2003-2004 the procedure in force as under the 1983 Rules
was followed, Mr.Patil, learned Senior Counsel for the
petitioners, did not raise any dispute in respect thereof. On
the contrary, he made submissions on the assumption that
the due procedure, adopted by the High Court as
contemplated by 1983 Rules read with Articles 233 and 236
of the Constitution of India, was followed. He submitted that
the procedure adopted by the High Court for promotion as
District Judges was followed while promoting the respondent-
DJs as presiding officers of FTCs temporarily on ad hoc basis
and not as regular DJs in the light of the direction (1) & (2)
in paragraph 10 of Brij Mohan Lal-1.
19.1. From the materials placed on record by the RG
and the submissions advanced by learned Senior Counsel for
the parties, it is clear that the due procedure adopted by the
High Court as contemplated by the 1983 Rules for temporary
promotions of the Civil Judges, from amongst eligible judicial
48
officers was scrupulously followed. The RG has placed on
record the material supporting their stand to which I have
made reference while narrating the facts in the earlier part of
the judgment. Since no dispute in respect thereof is raised,
this question need not detain me any future, and I hold that
the due procedure in force was followed for appointing
respondent-DJs as ad hoc DJs for FTCs. However, I would
consider the question whether their appointments are
traceable to the 1983 Rule little later.
20. I would now proceed to consider the principal
question and the peripheral issues raised in the course of
arguments. Mr.Patil, learned Senior Counsel appearing for
the petitioners submitted that under any circumstances,
promotions of the respondent-DJs in 2003-2004, cannot be
treated as regular promotions against vacant posts. At the
relevant time, Respondent DJs, who were working as Civil
Judges (Sr.Dn.), were temporarily made as Presiding Officers
of the FTCs and their appointment was to an ad hoc ex cadre
post. In other words, the posts held by respondent-DJs were
49
not part of sanctioned strength of the cadre of District Judge
or to any sanctioned posts in service, whether permanent or
otherwise. Their promotions were for to FTCs which was only
a temporary arrangement. He further submitted that the
appointments to the ad hoc FTCs, being outside the cadre of
District Judge, the functions of the ad hoc District Judges
were also limited. The mere fact that the procedure
prescribed for appointment to the posts of District Judges
was followed for appointing respondent-DJs as ad hoc Fast
Track Judges cannot be a basis to treat their appointments as
regular promotions or their promotions in the cadre of
District Judge. The procedure applicable to promotion of
District Judge was followed in the light of paragraph 10 (1) of
Brij Mohan lal-1. Thus, he submitted, merely because, the
procedure contemplated was followed, the same cannot be
the basis to claim seniority in the cadre of District Judge from
the dates of their appointments in 2003-04. He submitted
that the 1983 Rules do not provide for an appointment as
District Judges either on temporary basis or creation of posts
of District Judges on temporary basis or on ad hoc basis and
50
in view thereof, the promotion of respondent-DJs are not
traceable to the 1983 Rules. Further, he submitted, that the
record shows that as on the date of ad hoc appointment
there were no vacant posts and therefore, there could not
have been any regular promotion. It was submitted that the
contention raised on behalf of respondent-DJs that their
officiating promotions have to be counted for seniority also
deserves to be rejected outright. He submitted that merely
because the orders of appointment are issued in the name of
Governor the same will not change the complexion of
appointments which are ad hoc and to temporarily created
FTCs and outside the service/cadre of District Judge. Then in
reply to the submissions advanced by Sri P.S.Rajagopal,
learned senior counsel on behalf of the High Court based on
Karnataka Civil Services Rules and Karnataka Civil Services
(General Recruitment) Rules, 1977, he submitted that the
term “officiate” and appointments by promotion being on
“officiating basis” has no application as the said rules
contemplate officiating in relation to “post in service” and not
something out of service/cadre as in the present case. In
51
support of these contentions, he placed reliance upon the
following judgments of the Supreme Court: i) Brij Mohan Lal-
1; ii) Brij Mohan Lal-2; iii) Debabrata Dash v. Jatindra Prasad
Dash (2013) 3 SCC 658 (for short “Debabrata Dash”); iv)
Mahesh Chandra Verma and Ors. Vs. State of Jharkhand and
Ors., (2012) 11 SCC 656; v) State of Orissa and Ors., v. Sri
Jagabandhu Panda, 2013 (3) SCALE 93; vi) O.P.Singla and
Anr. v. Union of India and ors., (1984) 4 SCC 450; vii)
V.Sreenivasa Reddy and others vs. Govt. of Andhra Pradesh
and others, 1995 Supp. (1) SCC 572; viii) All India Judges
Association and Ors. Vs. Union of India (UOI) and Ors.
(2002) 4 SCC 247.
21. On the other hand Mr. P.S.Rajagopal, learned
Senior Counsel on behalf of the High Court submitted that to
fill up certain permanent posts and temporary posts, the
respondent-DJs were promoted, temporarily on ad hoc basis
to officiate as District Judges. All those promotions, he
52
submitted, were regular promotions against vacant posts
created temporarily and were made under the 1983 Rules.
He then submitted that the promotions being on officiating
basis, count for seniority, particularly, because they were
continued uninterruptedly till the promotions were made
permanent against permanent vacancies in 2009. Then it
was contended that only for the reason that the promotions
were against temporary vacancies and on ad hoc basis
cannot be the reason not to treat them for regular
promotion. In other words, he submitted that merely
because words “temporarily” and “ad hoc” were used in the
notifications, the substance of appointments cannot be
overlooked in the light of the 1983 Rules. In support, he
placed reliance upon Rule 19 of the Karnataka Services
(General Recruitment) Rules 1977 and Rule 8 (31) of the
Karnataka Civil Services Rules,1958, which defines the
expression “officiating”. He also invited my attention to the
resolutions passed by the Administrative Committee No.II
and the Full Court and submitted that it clearly demonstrate
that the respondent-DJs were fit and suitable to be promoted
53
temporarily as ad hoc District Judges on officiating basis.
Then he invited my attention to the definition of “cadre” as
defined by Rule 9 (7) of the Karnataka Civil Service Rules
and submitted that the promotion order should be read in the
light of these rules and if so read, it is clear that was a
regular officiating promotion on the temporary vacancies
subject to reversion at any time. He submitted that words
“temporary” and “ad hoc” and the expression “subject to
reversion at any time” would not mean that the promotions
in 2003-04 cannot be treated as regular promotion since
those posts were continued until their regular promotions
were made in 2009. Lastly, he submitted that it is true that
the posts against which their promotion orders issued were
temporary/officiating promotions and were to lasts until
subsistence of the temporary vacancies, and when such
temporary vacancies cease to be available, entailing
reversion of such promotees, but then the temporary
vacancies against which promotions of the respondent-DJs
were made subsisted until the permanent vacancies arose
and in view thereof their seniority will have to be continued
54
from the dates of their appointments in 2003-2004. In
support of the contentions urged on behalf of the High Court,
Mr.Rajagopal, learned Senior counsel placed heavy reliance
upon the following judgments: (i) Direct Recruit Class II
Engineering Officers’ Association v. State of
Maharashtra,(1990) 2 SCC 714; (ii) L.Chandra Kishore Singh
V. State of Manipur, (1999) 8 SCC 287; (iii) Ajit Kumar Rath
v. State of Orissa (1999) 9 SCC 596; (iv) O.P.Garg V. State
OF U.P. 1991 SUPP.(2) SCC 51; (v) Rudra Kumar Sain V.
Union Of India, (2008) 8 SCC 25; (vi) B.S.Mathur V. Union of
India 2008 AIR SCW 7042; (vii) G.K.Dudani V. S.D.Sharma
1986 (SUPP) SCC 239. He also placed reliance upon some of
the judgments relied upon by Mr.Patil, learned senior counsel
for the petitioners, in support of his contentions.
22. Before I advert to the diverse submissions
advanced on behalf of the parties, it would be advantageous
to refer to the judgments of the Supreme Court in Brij
Mohan Lal-1, Brij Mohan Lal-2 and Debabrata Dash.
Not only in the course of arguments by learned counsel for
55
the parties, but even in the decision making process, the
Committee and the Full Court placed heavy reliance upon the
first two judgments. Some other judgments were also
referred to and relied upon by learned counsel for the parties
in support of their submissions to which I would make
reference at appropriate stage.
22.1. Mr.Patil, learned Senior Advocate for the
petitioners at the outset submitted that the committee as
well as the Full Court committed a grave error of law in fixing
the seniority based on the direction 1 and 14 in paragraph-10
of Brij Mohan Lal-1. He submitted, this judgment was
considered by the Supreme court in Debabrata Dash and
direction 14 in paragraph-10 in particular to hold that until
the vacancy occurred in the cadre of superior judicial service
(senior branch) which was to be filled up by promotion, the
service rendered by the petitioners-promotee therein in the
Fast Track Court cannot be deemed to be service rendered in
the superior judicial service, senior branch. In our case it is
District Judge. He submitted that, until then, the promotees
56
continue to be member of the parent cadre, that is, Senior
Judge (Sr.Dn.) in our case. He submitted that it clearly
shows that direction-14 was not understood correctly and
was wrongly interpreted to hold that respondents-DJs are
entitled for deemed date of promotion from the dates on
which they were appointed as ad hoc District Judges in 2003
and 2004.
22.2. On the other hand, Mr.P.S.Rajagopal, learned
Senior Advocate on behalf of High Court, based on the
judgment of the Supreme Court in Debabrata Dash,
submitted that even if the deemed seniority is given to the
respondents-DJs, from the dates on which the vacancies in
the cadre of DJ occurred that would not change the seniority
fixed by way of impugned notification. He submitted that
even before the petitioners were appointed as DJs, under
25% quota of direct recruits, there were sufficient number of
vacancies in the cadre of District Judges in 50% quota for
promotions and 25% quota for accelerated promotions. He
therefore submitted, under any circumstances, based on the
57
judgment of Debabrata Dash, this Court need not interfere
with the impugned notification. He also submitted that in fact
the judgment in Debabrata Dash, has no application to the
facts of the present case.
23. In Brij Mohan Lal-1, the Supreme Court was
dealing with a case related to the establishment and
functioning of courts described as Fast Track Courts (“FTCs”).
Challenge was made to the FTCs scheme in various High
Courts, primarily on the ground that there was no
constitutional sanction for employment of retired Judges and
that effective guidelines were not in operation. Several
deficiencies were pointed out and a plea was made that
instead of retired officers, eligible members of the Bar should
be considered for the appointment. The stand of the Union
of India was that there was no mandatory requirement for
appointment of retired Sessions/Addl. Sessions Judge or
other officers and that ad hoc promotion of judicial officers
would meet the objective of the scheme. It was pointed out
that consequential vacancies created on account of ad hoc
58
promotions can be filled by a special drive so that there is no
shortfall in the personnel of lower courts. The Supreme
Court considered its several judgments including All India
Judges Association and others vs. Union of India and others,
2002 AIR SCW 1706; All India Judges Association and others
vs. Union of India and others, 1982(1) SCC 119; and All
India Judges Association and others vs. Union of India and
others, 1993 (4) SCC 288.
23.1. The Supreme Court held that there was nothing
constitutionally improper in the scheme. It was further
observed that High Court has to play a pivotal role in
implementation of the scheme for its effective
implementation and achievements of the objectives of the
scheme, of course, complying with the constitutional
requirements embodied in the relevant provisions of Chapter-
VI of the Constitution. The Supreme Court, then, in
paragraph-10 of the report, proceeded to issue directions,
keeping in view the laudable objective with which the FTCs
scheme had been conceived and introduced, to take care of
59
initial teething problems highlighted by the parties. The
relevant directions for our purpose find place in sub-paras-1
and 14 in paragraph 10 of the report, which read thus:
“1. The first preference for appointment of
judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial
officers. While giving such promotion the High Court shall follow the procedures in
force in the matter of promotion to such posts in Superior/Higher Judicial Services.
14. No right will be conferred on
Judicial Officers in service for claiming any
regular promotion on the basis of his/her appointment on ad-hoc basis under the
Scheme. The service rendered in Fast Track Courts will be deemed as service rendered
in the parent cadre. In case any Judicial Officer is promoted to higher grade in the
parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track
Courts will be deemed to be service in such higher grade.”
(emphasis supplied )
24. Then the Supreme Court again in Brij Mohan
Lal-2, dealt with the writ petitions filed under Article 32 of
the Constitution and some Special Leave Petitions, filed
against various judgments of different High Courts, with
respect to the scheme and policy of appointment of ad hoc
60
Judges of FTCs and for directions to the respondents to
extend the FTC scheme for another five years or even till
31-3-2015 and to release necessary funds for that purpose.
The Supreme Court considered the contention urged in those
writ petitions that the constitutional scheme contained under
Articles 233 and 235 read with Articles 309 and 310 of the
Constitution of India does not contemplate and permit
appointment of retired Judges as ad hoc District and Sessions
Judges. The Supreme Court also considered the submission
that there is no constitutional provision which empowers the
authorities concerned to make such appointments and
observed that the purpose of those objectives obviously was
to ensure that only the members of bar were appointed by
direct recruitment to the post of ad hoc District and Sessions
Judges. Then the Supreme Court after considering the
direction issued in Brij Mohan Lal-1 as reflected in
paragraph-10 thereof, in paragraphs-6 and 7, to the extent it
is necessary for our purpose, observed thus :
“6. As is evident from the above
directions in Brij Mohan Lal-1, the
61
appointments to FTCs were to be made
on adhoc basis……………
7. This Court had foreseen the possibility of the closure of the Fast Track Courts
Scheme (FTC Scheme). It directed that the service in FTCs will be deemed as
service of the promoted judicial officers rendered in the parent cadre.
However, no right would accrue to such recruits promoted/posted on
ad hoc basis from the lower judiciary for regular promotion on the basis of
such appointment…………….”
(emphasis supplied)
24.1. Then, in paragraph 176 of the Report, the
Supreme Court noted that while appointing Fast Track Court
Judges, it was clearly stipulated that such appointments
would be ad hoc and temporary and that the appointees shall
not derive any benefit from such appointments.
25. From perusal of the judgments of the Supreme
Court in Brij Mohan Lal-1 and Brij Mohan Lal-2, it is clear
that though the Supreme Court exhaustively dealt with the
FTC Scheme and issued useful guidelines, related questions
did not have an occasion to address the question/issue of
62
seniority, as has been raised in these petitions, between the
direct recruits and ad hoc promotees. The observations made
by the Supreme Court, and the guidelines/directions issued
therein, however, would definitely guide/help us to resolve
the question raised in these petitions.
26. The Supreme Court, in Debabrata Dash had an
occasion to deal with the question whether the service
rendered by a promotee in the Fast Track Court as Additional
District Judge is to be taken into account while fixing his
seniority after regularization of his services in the Senior
Branch Cadre under the Orissa Superior Judicial Service
Rules, 1963 (for short “Orissa Rules”). The question that fell
for consideration of the Supreme Court in that case and the
question that falls for our consideration in the present case
are similar.
26.1. The Supreme Court while dealing with the
question, apart from other judgments, directly and indirectly
covering the question, also considered the judgments in Brij
63
Mohan Lal-1 and Brij Mohan Lal-2 exhaustively. A heavy
reliance was placed upon the judgment of the Supreme Court
in Debabrata Dash by the petitioners to contend that the
question that falls for my consideration in the present
proceedings is squarely covered by the said judgment. On
the other hand it was submitted that this judgment is wholly
inapplicable to the fact situation in the present case.
26.2. The brief facts leading to the controversy
involved in Debabrata Dash would be necessary. The
promotee therein was posted as ad hoc ADJ in the FTC on
11.4.2002. On 28-5-2003, his tenure as ad hoc ADJ was
extended for further period of one year or till 31-3-2004,
whichever, was earlier. By a notification dated 15-12-2003,
he was allowed to officiate in the Senior Branch of the
Superior Judicial Service on regular basis on account of
vacancies that arose due to retirement of officer of the
superior Branch on 31-7-2003. He was posted on 19-1-2004
as Addl. District and Sessions Judge pursuant to the
notification dated 15-12-2003 to which post he joined on
64
3-2-2004. He was then appointed in the cadre of District
Judge with effect from 17-01-2007 and he was granted
selection grade with effect from 22-10-2009. On
13-11-2009, he submitted a representation seeking seniority
in the cadre of District Judge with effect from 26-4-2002,
i.e., the date of his joining as ad hoc ADJ.
26.3. As against this, the appellants-direct recruits in
that case were appointed on 13-1-2003 in senior cadre of
Orissa Superior Judicial Services by way of direct recruits
under the said Rules. Pursuant to the posting order dated
22-1-2003, they joined as ADJ on 3-2-2003 and 7-2-2003.
They were continued with effect from 03-02-2004 and 07-02-
2004 and were conferred selection grade with effect from
3-2-2008 and 7-2-2008.
26.4. The claim of seniority by the promotee over the
direct recruits was based on the ground that the period of
their service as ad hoc addl. District Judge (FTC) should be
65
included for the purpose of computing length of service in the
cadre of senior branch superior judicial service under the
1963 Rules.
26.5. The Division Bench of the High Court considered
the challenge raised by the promotee judge and held that
promotion of the promotee judge has to be counted with
effect from 26-4-2002 when he joined the post initially and
his subsequent regularisation deserves to be considered to
be effective from that date.
26.6. The Supreme Court, in Debabrata Dash,
keeping in view the aforementioned materials/judgments,
considered in depth both the judgment in Brij Mohan Lal and
in paragraphs-43 to 48 (paragraph numbers referred to are
from the typed copy of this judgment furnished before me)
held/observed thus:
“43. In Brij Mohan Lal (1) a three-Judge Bench of
this Court, inter alia, considered the Fast Track Courts scheme. In paragraph 10 of the
judgment, this Court gave various directions. Direction No.14 in that para is relevant which can
be paraphrased as follows: (SCC p.10)
66
(i) No right will be conferred on
judicial officers in service for claiming any regular promotion
on the basis of his/her appointment on ad hoc basis
under the scheme. (ii) The service rendered in Fast
Track Courts will be deemed as service rendered in the parent
cadre. (iii) In case any judicial officer is
promoted to higher grade in the parent cadre during his
tenure in Fast Track Courts, the service rendered in Fast Track
Courts will be deemed to be
service in such higher grade.
44. The learned Senior Counsel for the writ
petitioner heavily relied upon the third part of
direction No.14. As a matter of fact, this part has been relied upon in the impugned judgment
as well. It is submitted on behalf of the writ Petitioner that on promotion to the Senior Branch
cadre of Superior Judicial Service during his tenure in the Fast Track Courts, the writ
petitioner is entitled to the counting of the service rendered by him in the Fast Track Court
as a service in Superior Judicial Service (Senior Branch). The submission overlooks the first
two parts of direction No. 14, one, no right will be conferred in judicial service for
claiming any regular promotion on the basis of his/her appointment on ad hoc basis
under the scheme; and two, the service
rendered in Fast Track Courts will be deemed as service rendered in the parent
cadre. In our opinion, until the vacancy occurred in the cadre of Superior Judicial
Service (Senior Branch) which was to be
67
filled up by promotion, the service rendered
by the writ Petitioner in the Fast Track Court cannot be deemed to be service rendered in
the Superior Judicial Service, (Senior Branch). Rather until then, he continued to
be a member of the parent cadre i.e., Superior Judicial Service (Junior Branch).
The third part of direction No.14, in our view, does not deserve to be read in a
manner that overrides the 1963 Rules. 45. In Brij Mohan Lal (2), inter alia, the
controversy centered around the closure of Fast Track Courts Scheme and the appointment of
retired district and sessions judges as ad hoc judges of the Fast Track Courts. In one of the
writ petitions filed before this Court, the relief
was intended to ensure that only the members of the Bar were appointed by direct recruitment to
the post of ad hoc district and sessions judges under the Fast Track Courts Scheme. The Court
considered the directions given by this Court in Brij Mohan Lal (1). The Court observed in Brij
Mohan Lal 2, that this Court had foreseen the possibility of the closure of the Fast Track Courts
Scheme. The Court noted the directions given in Brij Mohan Lal (1), inter alia, in the following
manner: (SCC p 523, para 7) “7….that the service in FTCs will
be deemed as service of the promoted judicial officers
rendered in the parent cadre.
However, no right would accrue to such recruits promoted/posted
on ad hoc basis from the lower judiciary for regular promotion on
the basis of such appointment. For direct recruits, continuation
in service will be dependent on review by the High Court and
68
there could be possibility of
absorption in the regular vacancy if their performance was found to
be satisfactory”.
46. In Brij Mohan Lal (2), this Court with reference to the Superior Judicial Service in the
State of Orissa, noted in paragraph 171 of the Report thus: (SCC p.567)
“171. Similarly, we also find no merit in the contention that this Court
should quash the advertisement issued by the State of Orissa for
making selections to the Orissa Higher Judicial Services on the basis
of the claims for regularisation of the
petitioners against such posts. There are two different sets of
Rules, applicable in different situations, to these two different
classes of officers and further they are governed by different
conditions of service. They cannot be placed on a par. The
process of their appointments is distinct and different. These
petitioners have no right to the post. Thus, it would neither be permissible
nor proper for the Court to halt the regular process of selection on the
plea that these petitioners have a
right to be absorbed against the posts in the regular cadre.”
Then, in para 176 of the Report, the Court
observed that the Fast Track Court Judges were appointed under a separate set of rules than the
rules governing the regular appointment to the State Higher Judicial Service. The Court noted
69
that while appointing Fast Track Court
Judges, it was clearly stipulated that such appointments would be ad hoc and
temporary and that the appointees shall not derive any benefit from such appointment.
47. We have already indicated above that on
05.01.2002 or 26.04.2002, there was no vacancy in the cadre of Superior Judicial Service (Senior
Branch) for being filled up by promotion. Such vacancy in the Senior Branch cadre of the service
occurred on 15.12.2003 and from that date the writ petitioner has been given benefit of his
service rendered in the Fast Track Court. The administrative decision by the Full Court is
in accord with the 1963 Rules, the 2001
Rules and the legal position already indicated above. The view of the Division
Bench in the impugned judgment is legally unsustainable. The impugned judgment is liable
to be set aside and is set aside.”
(emphasis supplied by me)
26.7. The Supreme Court in paragraph-32 of the
report, observed that “the cadre strength in Orissa Superior
Judicial Service, Senior Branch has been fixed in the 1963
Rules. No ad hoc or temporary posts of Additional District
Judges have been created under these Rules before 5-1-
2002 or 26-4-2002. The cadre strength of Senior Branch of
service has not been increased. In this view of the matter,
70
the question of giving any promotion to the Senior Branch of
service in the absence of a vacancy in the cadre does not
arise”.
27. I would now proceed to consider the questions
raised and advert to the rival submissions advanced on
behalf of the parties, in the light of the materials on record
and judgments of the Supreme Court relied upon by learned
counsel for the parties. It is not in dispute that immediately
before the respondent-DJs were promoted as District Judges
temporarily on ad hoc basis they were all working in the
cadre of Civil Judge (Sr.Dn.). It is also not in dispute that as
on the date of their promotions i.e., 15-2-2003, 19-3-2003,
15-11-2003 and 20-03-2004, there were no vacancies/posts
in the cadre of District Judge available under the 1983 Rules.
27.1. The vacancy position show that on 15-2-2003 the
sanctioned cadre strength of DJ was 155 and that 4 District
Judges were in excess and no cadre post for promotion on
seniority-cum-merit basis was vacant/available. 12 posts in
the cadre to be recruited/appointed directly were, however,
71
vacant/available. Those were kept vacant till the 2004 Rules
were brought into force and/or, till the petitioners were
appointed in 2008. On 19-3-2003 also no cadre post was
vacant/available to be filled by promotion. On 15-11-2003, 9
cadre posts were vacant/available to be filled by promotion
and on 20-03-2004, 12 cadre posts were vacant/available to
be filled by promotion. Under the 1983 Rules, cadre
strength, as indicated in the RG’s statement of objections on
20-03-2004, was 157.
28. At this stage, I would also like to make reference
to the cadre strength and the vacancy position on other
relevant dates. The 2004 Rules were brought into force on
9.9.2005. Just before that, on 1.9.2005, the sanctioned
cadre strength of DJ was 172 and only 37 cadre posts were
vacant/available to be filled by way of promotion on
seniority-cum-merit, and 21 posts were vacant/available to
be filled by way of direct recruitment.
72
28.1. After the 2004 Rules were brought into force i.e.
on 1.10.2005, the cadre strength of DJ was 172 and there
were only 8 posts vacant/available to be filled by promotion
on seniority-cum-merit; while 43 by way of accelerated
promotion and 7 by direct recruitment.
28.2. On 25-2-2008, when the petitioners were
appointed as DJs, the cadre strength of DJ was 180, out of
which, 34 were available to be filled by way of promotion, 45
by way of accelerated promotion and 14 by way of direct
recruitment. On 1-6-2009, 27-6-2009 and 29-7-2009, when
the respondent-DJs were promoted under Article 233 of the
Constitution of India, the cadre strength of DJ was 179, out
of which 52 were vacant/available to be filled by promotion,
45 by way of accelerated promotion, and 8 by direct
recruitment. The fact of the matter is that though about 85
posts of ad hoc additional District Judges (FTC) were created
out of Eleventh Finance Commission Recommendations, and
those posts were filled by following the procedure adopted by
the High Court as per the 1983 Rules, no vacancies to
73
accommodate them all as on the date of the notifications, in
2003-04, were available in the cadre of District Judge nor the
cadre strength was increased.
29. At this stage, it would be convenient to have a
look at the judgment of the Supreme Court in Direct
Recruit Class-II Engineering Officers’ Association
(supra), the Supreme Court in paragraph – 47, while
summing up held, as under:
“(A) Once an incumbent is appointed to a post
according to rule, his seniority has to be counted from the date of his appointment
and not according to the date of his confirmation.
The corollary of the above rule is that were the initial appointment is only
ad hoc and not according to rules and made as a stop-gap arrangement, the
officiation in such post cannot be taken into account for considering the
seniority.
(B) If the initial appointment is not made by
following the procedure laid down by the rules but the appointee continues in the
post uninterruptedly till the regularization of his service in accordance with the rules, the
period of officiating service will be counted.
(C) When appointments are made from more
than one source, it is permissible to fix the
74
ratio for recruitment from the different
sources, and if rules are framed in this regard they must ordinarily be followed
strictly.”
(emphasis supplied)
29.1 Though, there appeared to be a contradiction in
Conclusion (A) and (B), the Constitution Bench of the
Supreme Court in West Bengal Vs. Aghore Nath Dey,
(1993) 3 SCC 371, while reading the conclusions (A) and
(B) observed thus:
“i) Conclusion (B) cannot cover cases which are expressly excluded by conclusion (A).
ii) Conclusion (B) covers cases where the
initial appointment is made against an “existing vacancy”, “not limited to a fixed
period of time or purpose” by the appointment order itself and is made
subject to deficiency in the procedural requirements prescribed for adjudging
suitability of the appointee for the post being cured at the time of regularization.”
(emphasis supplied)
This is reiterated in the State of Haryana & others vs.
Vijay Singh and others (2012) 8 SCC 633.
75
29.2. In Debabrata Dash, the Supreme Court
considered the directions (A), (B) and (C) and in paragraph-
43 observed thus :
“43. The essence of direction in clause (A)
is that the seniority of an appointee has to be counted from the date of his appointment
and not according to the date of his confirmation once a recruitee is appointed
to a post according to rules. In other words, where initial appointment is only ad
hoc and not according to rules and made as a stop-gap arrangement, the officiation in
such post cannot be taken into account for
considering the seniority. The writ petitioner’s appointment as an ad hoc Additional District
Judge is not traceable to the 1963 Rules. The simple reason leading to this consequence is that
there was no vacancy available which was to be filled up by promotion on that date in Superior
Judicial Service (Senior Branch)”.
(emphasis supplied)
30. In this backdrop, I would like to consider whether
it is possible to treat the appointments of respondent-DJs as
ad hoc DJs in 2003-04, as regular promotions or as
promotions in the cadre of District Judge on temporarily
created posts.
76
30.1. In Brij Mohan Lal-1, the Supreme Court in
paragraph-10 (1) had directed that the first preference for
appointment of Judges of Fast Track Courts is to be given by
ad hoc promotions from amongst eligible judicial officers and
while giving such promotion, the High Court shall follow the
procedure in force in the matter of promotion to such posts
in Superior/Higher Judicial Services. Thus, in the backdrop of
Eleventh Finance Commission Recommendations and in view
of the directions issued in Brij Mohan Lal-1, the
respondent-DJs were appointed temporarily as ad hoc DJs
without increasing the cadre strength of DJ under the 1983
Rules.
31. At this stage I would like to refer to two more
judgments of the Supreme Court, relied upon by the
respondent-DJs. In Rudra Kumar Sain (supra), the
Supreme Court has held thus:
“20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is
appointed with the approval and consultation of
77
the appropriate authority and continues in the
post for a fairly long period, then such an appointment cannot be held to be “stop-gap or
fortuitous or purely ad hoc”. In this view of the matter, the reasoning and basis on which, the
appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was
held by the High Court to be “fortuitous/ad hoc/ stop-gap” are wholly erroneous and, therefore,
exclusion of those appointees to have their continuous length of service for seniority is
erroneous.”
31.1. In O.P. Singla (supra), the Supreme Court in
paragraphs 26 & 27 observed thus:
“26.The pre-requisite of the right to inclusion in a common list of seniority is that all those who claim that right must, broadly, bear
the same characteristics. The mere
circumstance that they hold posts which carry the same designation will not justify
the conclusion that they belong to the same class. Persons who are appointed or
promoted on an ad hoc basis or for fortuitous reasons or by way of a stop-gap
arrangement cannot rank for purposes of seniority with those who are appointed to
their posts in strict conformity with the rules of recruitment, whether such latter
class or posts are permanent or temporary. The rules in the instant case do not require that
persons belonging to the former category have to satisfy any particular prescription like
consultation with the High Court. We are
informed that in practice, persons who are
78
promoted to the Delhi Higher Judicial Service on
an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement are appointed
only after their names are cleared or approved by the High Court. That may or may not be so. The
point of the matter is that there is no provision in the Rules which requires that
such appointments must also be made in accordance with any set formula. The
courtesy shown by the authorities to the High Court when certain appointments are
made, is one thing; The obligation imposed by the Rules on the authorities that the High
Court shall be consulted when certain other appointments are made, is quite another.
Indeed, there is a distinction between the process
of consultation with the High Court and the screening of the promotees done by the High
Court, may be at the instance of the authorities, when their names are considered for
appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stop-gap
basis.
27. Thus, persons belonging to the Delhi Judicial Service who are appointed to
temporary posts of Additional District and
Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap
arrangement, constitute a class which is separate and distinct from those who are
appointed to posts in the Service in strict conformity with the rules of recruitment. In
view of this, the former class of promotees cannot be included in the list of seniority of
officers belonging to the Service”.
(emphasis supplied)
79
31.2. Judgment of the Supreme Court in O.P.Singla
and Rudra Kumar Sain (supra) concerned entitlement of
seniority of the appointees to temporary posts created in
accordance with the Rules. Unlike the present case, the rules
therein expressly provided that such temporary posts are
cadre posts and such temporary post in service were held to
be distinct from ad hoc post. The decision in O.P.Singla
itself distinguished such temporary posts which were created
as per statute and were part of cadre posts from ad hoc or
fortuitous posts. This understanding is also reflected in
Rudra Kumar Sain.
31.3. In the present case, we are concerned with ad
hoc and temporary posts. The 1983 Rules did not provide for
or created any temporary posts or ad hoc posts. Similarly
there is nothing on record to show that the respondent DJs
were appointed/promoted against vacant posts created
temporarily or the cadre strength was increased,
permanently or temporarily under the 1983 Rules. The 1983
Rules, as a matter of fact, do not provide for creation of any
80
such posts. In this connection, let us see what the Supreme
Court in V.Sreenivasa Reddy (supra) in paragraph-29 has
observed, to understand the effect of ad hoc appointment
outside the cadre/service, which read thus:
“29. The further contention that in Bhatnagar’s
case, it is one of regularization of the ad hoc employees and in the instant case regularization
is of the temporary service is not helpful since the distinction is without difference. Both were
not the members of the service unless they were appointed to the service in accordance
with Rules. Therefore, ad hoc employee or
employees appointed on emergency basis, both form the same class. There cannot be
any distinction on that score.”
(emphasis supplied)
32. The fact of the matter is that there is no provision
in the 1983 Rules which provides for an appointment on ad
hoc basis either on permanent vacancy in the cadre of DJ or
on temporarily created post or that an appointment on ad
hoc basis must also be made in accordance with any set
formula. The courtesy shown by the High Court when
respondent-DJs were promoted as ad hoc DJs is one thing;
and the obligation imposed by the Rules is quite another. The
81
respondent DJs, who were appointed as ad hoc DJs,
constitute a class which is separate and distinct from those
who are appointed to the posts in the cadre/service in strict
conformity with the rules of recruitment. It is clear and not in
dispute that no ad hoc or temporary posts in the cadre of DJs
on which the respondent-DJs were appointed in 2003-04,
had been created. The 1983 Rules, which were then
prevailing also did not provide for such appointments. Even
the cadre strength was not increased. In view thereof, the
question of giving any promotion to the post of DJ, at that
stage or even thereafter under the 1983 Rules did not arise.
Moreover, no steps were taken by the High Court before the
2004 Rules were brought into force to fill the posts in the
cadre of DJ which were vacant/available. The promotions
were also possible when the 2004 Rules were brought into
force, but no steps were taken till 2009. Neither any
explanation has been afforded by the RG, nor did the
respondent-DJs at any point of time made any grievance or
sought their regular promotions in the cadre of DJs on the
available vacancies. In view thereof, whether such
82
appointees can be placed in the list of seniority, taking the
earlier period i.e., from the date of their appointments on ad-
hoc basis on the posts outside the cadre, above the direct
recruitees who are appointed in conformity with the Rule in
force is the question.
33. Justification for placing the respondent-DJs above
the petitioners was on the sole premise of direction 14 in
paragraph-10 of Brij Mohan Lal-1. If the report of the
Committee is carefully seen, I find that the Committee
concluded stating that there was nothing for them to decide
as the issue had been decided in Brij Mohan Lal-1.
Therefore to state that the Committee interpreted and
decided that the services rendered by the respondent DJs as
ad hoc District Judges should be considered for the purpose
of seniority, is incorrect. Even otherwise, interpretation of the
RG based on the report of the Committee, as regards
direction No.14 in paragraph-10 of the Brij Mohan Lal-1
runs quite contrary to the decision of the Supreme Court in
Debabrata Dash. Besides, a mere reading of Brij Mohan
83
Lal-1 itself, indicates that, the services rendered as ad hoc
Judges will be treated as service rendered in the parent
cadre, i.e., Civil Judge, Senior Division. Thus, in my opinion,
the understanding based on which the impugned seniority is
prepared by the RG is contrary to the decision of the
Supreme Court.
34. In Brij Mohan Lal-2, the Supreme Court
regarding the nature of appointments of Fast Track Judges in
paragraph-79 held that where neither the post is sanctioned
nor is permanent and, in fact, the entire arrangement is ad
hoc or is for uncertain duration, it cannot create any rights
and obligations in favour of the appointees, akin to those of
permanent employees. The appointees in that case, had been
appointed not only on ad hoc and temporary basis but entire
FTC Scheme was ad hoc and for a duration of five years only
as declared by the Central Government. The Supreme Court
observed in paragraph-8 that if the entire scheme has to be
disbanded now, a chaos will be created inasmuch as services
of several officers who had been promoted on an ad hoc
84
basis will have to be reverted to their substantive post.
Similarly, if corresponding promotion had been given to
others, it will be necessary also to pass orders of reversion in
such cases. This observation clearly shows that ad hoc
judges were to be continued to remain in the cadre of Civil
Judge, Senior Division.
35. The Supreme Court in Mahesh Chandra Verma
(Supra) made it clear that FTCs were to be ad hoc courts.
The judgments of the Supreme Court in Brij Mohan Lal-1,
Brij Mohan Lal-2 and Mahesh Chandra Verma, show that
the appointments were ad hoc and not to any sanctioned
posts in service, whether permanent or otherwise, but to
FTCs which was only a temporary arrangement.
36. In Sri Jagabhandu Panda, (supra) the Supreme
Court clearly observed that a cadre may consist of
permanent as well as temporary post and there may be
permanent vacancies in permanent as well as temporary
post, but it does not follow that appointment made outside
the very service and outside the cadre must be considered to
85
be made to temporary post borne on the cadre merely
because the post was likely to continue indefinitely. These
observations further help us to understand the nature of
posting of respondent-DJs.
37. In Debabrata Dash, the Supreme Court
considered whether promotion of the promotee judge, who
was petitioner therein, as an ad hoc Additional District Judge
vide notification dated 5-1-2002 to the Senior Branch of the
Superior Judicial Service for being posted in the Fast Track
Court can be said to be appointed in the Senior Branch cadre
of Superior Judicial Service. The Division Bench of Orissa
High Court had taken the very same view as contended by
the respondent-DJs in the present case. The view was
though the promotion of the writ petitioner in Senior Branch
Cadre of Superior Judicial Service was initially ad hoc but
that was given to him after the High Court adjudged his
suitability for promotion by following the 1963 Rules, and
that such ad hoc promotion was regularized vide notification
dated 15-12-2003 under the 1963 Rules as he had rendered
86
uninterrupted service. This view of the Division Bench was
however negatived by the Supreme Court in Debabrata
Dash. It would be relevant to reproduce paragraph 36
thereof, which reads thus:
“36. As noted earlier, 72 posts of ad hoc
Additional District Judges were created under the 2001 Rules to meet its objectives. These
posts were not part of cadre strength of Senior Branch Service in the 1963 Rules nor by
creation of these posts under the 2001 Rules, the cadre strength of the Senior Branch of
service got increased…………
…..….Merely because the writ petitioner was adjudged suitable on the touchstone of the
1963 Rules, we are afraid, it cannot be said that he was given appointment to the post of ad hoc
Additional District Judge under the 1963 Rules.”
38. The distinction between an appointment in
accordance with the Rules and an appointment made after
following the due procedure in force will have to be noticed.
Merely because, appointment is made after following the
procedure contemplated by Rules, temporarily on ad hoc
basis, would not mean that the appointment is in accordance
with or in conformity of the Rules, unless the Rules provide
for such appointments. In other words, it is necessary that
87
such posts, temporary or ad hoc, are part of cadre strength
or that such posts are recognized by the relevant rules. The
appointee on such posts would not become member of the
cadre, if his appointment is not in accordance with the Rule.
Merely because such appointee was adjudged suitable on
touchstone of the Rules, such as the 1983 Rules in the
present case, his appointment cannot be treated as an
appointment on the vacant post in the cadre. The 1983
Rules do not provide for temporary or ad hoc appointments
either on permanent (vacant) posts or on temporarily created
posts or otherwise. The appointments made outside the
cadre or the cadre strength fixed with reference to the 1983
Rules cannot be treated as an appointment/promotion in
accordance with the rules. In the present case, even if it is
accepted that the procedure in force was followed the fact
remains that the 1983 Rules and, even the 2004 Rules for
that matter, do not provide for appointments/promotion on
ad hoc basis or temporary promotion or promotion on
temporarily created posts as cadre posts. Similarly, merely
because orders of appointments of respondent-DJs were
88
issued in the name of Governor, the same would not change
the complexion of the appointments which were ad hoc and
to the temporarily created FTCs and definitely outside the
service cadre.
39. The notifications appointing the respondent-DJs
as ad hoc Judges, make it clear that their appointments to
FTCs was made “temporarily on ad hoc basis”, “subject to
reversion at any time”. Thus, it is clear that the
appointments were made to FTCs and not to any posts in
service/cadre. In other words, the question of appointing
them on regular basis did not arise since there were no
vacancies available to appoint/promote the respondent DJs in
2003-04. Therefore, I am afraid the case of the respondent-
DJs cannot be said to have been covered by Conclusion (B) in
Aghore Nath Dey (supra). The Supreme Court held that in
cases covered by Conclusion (B) if there is a delay in curing
the defects on account of fault of the appointee such as the
respondent-DJs in the present case they would not get the
full benefit of earlier period. In the present case, the
89
respondent-DJs never complained of they not being
promoted when vacancies arose nor did they make any
efforts to seek regular promotion on the vacancies as they
kept occurring. Even the High Court did not take any steps
since 2002-03 till the respondent-DJs were promoted in 2009
to fill the vacancies that kept on occurring in the cadre of DJ,
despite there being Rule 7 in the 2004 Rules. This rule
provides that for filling up of vacancies by promotion the
recruiting authority shall take all necessary steps well in
advance so as to finalise the list of persons considered
eligible for promotion atleast 10-15 days before occurrence
of vacancy.
40. The Karnataka High Court has not framed
independent rules for appointment of ad hoc judges. The
2004 Rules were framed and brought into force after the FTC
scheme was implemented in this State, still they are silent in
respect of temporary posts or ad hoc posts of District Judges
for Fast Track Courts and the procedure to fill those posts. In
2008, the petitioners were recruited/appointed while in 2009
90
respondent-DJs were promoted as DJs. The High Court did
not take any steps nor did it feel necessary to frame
independent rules relating to recruitment of judicial officers
in the State temporarily on ad hoc basis for implementation
of the directions issued in Brij Mohan Lal-1 or the
recommendation of the Eleventh Finance Commission for
upgradation of judicial administration for elimination of
pending cases.
41. From the documents placed on record by the RG it
appears that all decisions in respect of the appointment of
Civil Judges (Sr.Dn.) as ad hoc District Judges were taken by
the Committee and confirmed by the Full Court. The
committee considered confidential records, quantum of work
turned out, opinion of the Hon’ble Judges about the quality of
judgments and other relevant materials on record in respect
of the Judges who were considered for the posts of ad hoc
District Judges for the Fast Track Courts.
91
42. It would not be out of place to observe that, the
1983 Rules, do not provide for the procedure to be followed
either for promotion or for accelerated promotion or for direct
recruitment of DJs. Rule 2 only provides minimum
qualification and promotion on the basis of seniority-cum-
merit from the cadre of Civil Judges. It further provides that
the High Court may adopt such procedure as it deem fit for
selecting candidates for direct recruitment or promotion on
the basis of seniority-cum-merit.
43. The Full Court considered the subject regarding
promotion of Civil Judges (Sr.Dn.) to the cadre of District
Judges, and accordingly, after considering the confidential
records, quantum of work turned out, opinion of the Hon’ble
Judges about the quality of judgments and overall suitability
of the officers for the posts of District Judges, in 2003-04
resolved to appoint/promote, who were found to be fit and
suitable, temporarily as ad hoc of District Judges,
subject to reversion at any time. These appointments,
92
therefore, cannot be treated as the appointments on vacant
posts in the cadre of DJ either at the inception or from the
dates on which the vacancies kept occurring.
44. In pursuance of the decision taken by the Full
Court, the RG had recommended appointments of Civil
Judges (Sr.Dn.) for promotion to the cadre of District Judges
for Fast Track Courts. Accordingly, notifications were issued
and Civil Judges (Sr.Dn.) were promoted temporarily on ad
hoc basis to officiate as District Judges with immediate effect
“to man the Fast Track Courts” subject to reversion at any
time. The words “to man the Fast Track Courts” were
subsequently removed that in our opinion, would not have
any bearing on merits of the case.
45. In either of the Rules i.e., 1983 and 2004 there
does not appear to be any rule which deal with seniority of
officers in the service. There is no rule giving any benefit to
the judicial officers appointed either on temporary basis or on
ad hoc basis of their service when they are promoted on the
93
permanent vacancies in the cadre of District Judge. In the
absence of any rule, such as, Rule 17 in 1963 Rules referred
to by the Supreme court in Debabrata Dash (supra), the
respondent DJs are not entitled for deemed date of
promotion.
46. In this connection, I would like to have a glance at
some more judgments of the Supreme Court, which made
the position of law further clear. In Pavan Prathap Singh
and others vs. Reevan Singh and others, (2011) 3 SCC
267 the Supreme Court considered the similar issue. The
Division Bench, comprising of Aftab Alam and R.M.Lodha JJ.,
after making reference to the judgment in Direct Recruit
Class II Engineer Officers Association (supra) and other
judgments, R.M.Lodha J., summarized the legal position with
regard to determination of seniority in service as follows :
“45. From the above, the legal position with
regard to determination of seniority in service can be summarized as follows:
(i) The effective date of selection has to be understood in the context of the service rules
under which the appointment is made. It may mean the date on which the process of selection
94
starts with the issuance of advertisement or the
factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the
service rules. The date of entry in a particular service or the date of substantive
appointment is the safest criterion for fixing seniority inter se between one officer or the
other or between one group of officers and the other recruited from different sources.
Any departure therefrom in the statutory rules, executive instructions or otherwise
must be consistent with the requirements of articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not
be granted from the backdate and if it is done, it must be based on objective considerations and
on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy
and cannot be given retrospectively unless it is so expressly provided by the relevant
service rules. It is so because seniority cannot be given on retrospective basis when
an employee has not even been borne in the cadre and by doing so it may adversely
affect the employees who have been appointed validly in the meantime.”
(emphasis supplied)
Aftab Alam J., concurred with the view expressed by
R.M.Lodha J., but by a different way and for slightly different
reasons.
95
47. In Mahesh Chandra Verma (supra), the
Supreme Court made it clear that FTCs were to be ad-hoc
Courts. The relevant observations in paragraphs 45, 47 & 50
read thus:
“45…………The Fast Track Courts Scheme was challenged on various grounds. The said
challenge was dealt with by this Court in Brij Mohan Lal-I……
47………………This court observed that the
cumulative effect of the notifications appointing
the petitioners therein to the said posts under the Fast Track Court Scheme and the
relevant rules governing them clearly demonstrate that those were temporary
and, in some cases, even time-bound appointments terminable without prior
notice and, therefore, it is difficult to accept the contention that the appointees were
entitled to be absorbed regularly in those posts. It was observed that where neither the
post is sanctioned nor is it permanent and, in fact, the entire arrangement is ad hoc or
is for an uncertain duration, it cannot create any rights and obligations in favour of the
appointees, akin to those of permanent
employees.
50. …………In Brij Mohan Lal-II, this court even considered the contention that the direct recruits
had taken all the tests and, therefore, they should not be made to undergo them again. After
considering this argument, this court directed
96
that they will have to take written examination
and they must also be interviewed………..”
(emphasis supplied)
47.1. Thus, the persons appointed on ad hoc basis
were not given any benefit of such appointment and for their
absorption it was held that they must take written
examination and interviewed.
48. In Sri Jagabandhu Panda (supra), the Supreme
Court observed as under:
“23. ……..It is well settled that a cadre may consist of permanent as well as temporary post
and there may be permanent vacancies in permanent as well as temporary post, but it
does not follow that appointment made outside the very service and outside the
cadre must be considered to be made to temporary post borne on the cadre merely
because, the post was likely to continue indefinitely.”
(emphasis supplied)
49. In P.D.Aggarwal (supra) the following
observations are relevant:
97
“…….the period of service rendered by
the ad hoc appointees before their service has been duly regularized in accordance
with the regularization rules, cannot be taken into account in reckoning their
seniority in service. Their seniority in service will be counted only from the date
when such ad hoc appointees after regularization in accordance with concerned
rules have become members of the Service.”
(emphasis supplied)
50. In Swapan Kumar Pal and Ors. vs.
Samitabhar Chakraborty & Ors. (2001) 5 SCC 581, the
Supreme Court in paragraph 9 observed thus:
“……………It is also true that they had been continuing from their respective dates of ad hoc
promotion till they were regularized, after being selected through due process. But that by itself
cannot confer a right on them to claim the ad hoc period of service to be tagged on, for the
purpose of their seniority inasmuch as there is no provision which says that an employee on
being regularly promoted, such regular promotion would date back to the date of
original promotion in the cadre, which might
have been on ad hoc basis. When the service conditions are governed by a set of rules, in
the absence of any rules, it is difficult to hold that regular promotion would date
back to the date of ad hoc promotion itself”.
(emphasis supplied)
98
51. In State of Uttaranchal and Anr. Vs.
Rajendra Singh Kandwal MANU/SC/1345/2011 in
paragraph 4 and 6 the Supreme Court observed thus:
“4. The Respondents herein were appointed on ad hoc officiating post in the year 1988 for a
fixed term which was continued. They were regularized in the year 2004 under the
Uttaranchal Regularization of Ad Hoc Appointments (Posts under the purview of Public
Service Commission) Rules, 2002 (for short ‘the Rules’). The Respondents claimed benefit of
their service from 1988 to 2004 for the purpose
of seniority and this has been granted by the High Court. Hence, this appeal.
6. Admittedly, the Respondents were
appointed after a selection under the Regularization Rules in the year 2004.
Hence, in our view, they can get seniority only from the year 2004 and not from 1988.
The rule is clear and hence we cannot debar from the clear meaning of the rule.”
(emphasis supplied)
52. From the 1983 Rules and the 2004 Rues and so
also, the vacancy position placed on record along with the
Statement of objections filed by the RG, it is clear that the
cadre strength in the cadre of District Judge had been fixed
by the High Court. No ad hoc or temporary posts of Addl.
99
District Judges or District Judges were/are created under
these rules. No rules were made to regulate the judicial
officers in the State appointed on ad hoc basis purely on
temporary posts for the FTCs. The cadre strength of District
Judges was not increased when the respondents were
appointed in 2003 -2004. In this view of the matter, the
question of giving any promotions to the posts of District
Judge since the dates of their ad hoc promotions in the
absence of vacancies in the cadre in 2003-04 did not arise.
53. The notifications issued in 2003-04, whereby the
respondent-DJs were promoted temporarily on ad hoc basis
to officiate as District Judges with immediate effect for the
Fast Track Courts subject to reversion at any time, do not
indicate that their appointments were made under 1983
Rules. It is in this backdrop we have no hesitation to hold
that the posts created temporarily on ad hoc basis, on which
the respondent-DJs were appointed, were not part of the
cadre strength of District Judge in the 1983 Rules nor by
creation of those posts as per the FTC Scheme, the cadre
100
strength of District Judges got increased. That is not even
the case of respondents.
54. It is now well settled that when a statutory
functionary make an order based on certain
ground/materials, its validity must be judged by the reasons
so mentioned and cannot be supplemented by fresh reasons
either in the shape of affidavit or otherwise, as has been
done in the present case (See Mohinder Singh Gill v. Chief
Election Commissioner (1978) 1 SCC 405 and
Hindustan Petroleum Corpn. Ltd. v. Darius Shahpur
Chenai & others (2005) 7 SCC 627). In the present case,
the case tried to be made out in the course of arguments on
behalf of the High Court, does not find place either in reply
affidavit or the material on the basis of which the seniority
list was prepared. Such case is not reflected even in the
resolution passed by the Committee or the Full Court.
55. The promotion of respondent-DJs as ad hoc
District Judges vide notifications dated 15-2-2003,
101
19-2-2003, 15-11-2003 and 20-03-2004, in pursuance of
which they joined the posts on ad hoc basis are traceable
wholly and squarely to the FTC scheme and in any case not
to the 1983 Rules or even the 2004 Rules for that matter.
Merely because, the respondent-DJs were adjudged suitable
on the touchstone of the 1983 Rules, I am afraid, it cannot
be said that they were promoted to the posts of ad hoc
District Judges under 1983 Rules. As noted above, there
were no vacancies to be filled by promotion and to
accommodate the respondent-DJs in the cadre strength of
DJ, on the date of their appointments as ad hoc District
Judges, under the 1983 Rules. Moreover, it cannot be
overlooked that the respondent-DJs, who were promoted in
2009 under the 25% quota for accelerated promotion, were
not entitled for promotion, without clearing Departmental
Competitive Examination. Similarly, even the respondent
DJs who were promoted under 50% quota for promotion on
seniority cum merits basis, also were not entitled for
promotion with retrospective effect in the absence of any rule
in the 1983 Rules, giving such benefit.
102
56. In this connection, reference to the following
judgments of the Supreme court would be advantageous. In
Uttaranchal Forest Rangers’ Assn. (Direct Recruit) &
Others vs. State of U.P. & others (2006) 10 SCC 346,
the Supreme court in paragraphs-37 observed thus:
“37. ……………no retrospective promotion or
seniority can be granted from a date when an employee has not even been borne in the
cadre so as to adversely affect the direct recruits
appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of
India (1992 Supp (1) SCC 272; 1993 SCC (L&S) 694; (1993) 24 ATC 545]…………”
(emphasis supplied)
57. In Pawan Pratap Singh & Ors. Vs. Reevan
Singh & Ors. ((2011) 3 SCC 267, the Supreme Court held
that :
“45……..(iv) The seniority cannot be
reckoned from the date of occurrence of the vacancy and cannot be given retrospectively
unless it is so expressly provided by the relevant service rules. It is so because
seniority cannot be given on retrospective basis when an employee has not even been born in the
cadre and by doing so it may adversely affect the
103
employees who have been appointed validly in
the mean time.”
(emphasis supplied)
58. In P. Sudhakar Rao and Ors. Vs. U.Govinda
Rao and Ors. 2013(8)SCALE 504, in the following
observations made in paragraphs-60 and 61 are relevant,
which read thus:
“60. However, the mere existence of a
vacancy is not enough to enable an
employee to claim seniority. The date of actual appointment in accordance with the
required procedure becomes important in such a case. This was so held in State of
Uttaranchal v. Dinesh Kumar Sharma (2007) 1 SCC 683 (followed in Nani Sha v. State of
Arunachal Pradesh (2007) 15 SCC 406] where it was said:
“Another issue that deserves consideration
is whether the year in which the vacancy accrues can have any relevance for the purpose of
determining the seniority irrespective of the fact when the persons are recruited. Here the
respondent’s contention is that since the vacancy
arose in 1995-96 he should be given promotion and seniority from that year and not from 1999
when his actual appointment letter was issued by the Appellant. This cannot be allowed as no
retrospective effect can be given to the order of appointment order under the Rules
nor is such contention reasonable to normal parlance. This was the view taken by this
104
Court in Jagdish Ch. Patnaik v. State of Orissa
(1998) 4 SCC 456]”. (emphasis supplied)
59. In my opinion, the RG, while fixing seniority of
respondent-DJs, based on the resolution passed by the
Committee and the resolution of the Full Court held on 14th
July 2012 committed two fundamental errors, one, in holding
that in view of the judgment of the Supreme court in Brij
Mohan Lal-1 the issue of seniority of ad hoc judges has
been concluded, and two, overlooking the observations in
Brij Mohan Lal-2 in respect of, the date of seniority of the
respondent-DJs, who had taken limited departmental
examination in 2009 and granted accelerated promotion
irrespective of the fact whether they were successful. They
were also given seniority from the date of their promotions
as adhoc DJs in 2003-04, giving the similar benefit that was
given to the respondent DJs who were promoted under 50%
quota on seniority-cum-merit. In short, the RG in his report
stated that in view of Brij Mohan Lal-1 & 2 decisions and
the report of the Committee, the ad hoc District Judges i.e.
105
the respondent-DJs are entitled to seniority from the date of
their becoming ad hoc District Judges including those who
took limited departmental examination, holding that their
taking of the examination was wholly fortuitous in the eye of
law. This report of the RG based on the resolution of the
Committee and of the Full Court was ultimately approved by
the then learned Chief Justice and as a result thereof, the
impugned seniority list was published.
60. In this connection, the observations made by the
Supreme Court in Deepak Aggarwal (supra), are relevant,
which read thus:
“2. The old vacancies have to be filled under the old rules is the mantra, sought to be
invoked by the appellants ….based on the principle enunciated by this Court in
Y.V.Rangaiah & Ors. Vs. J.Sreenivasa Rao (1983) 3 SCC 284;
24. We are of the considered opinion that the judgment in Y.V. Rangaiah's case would not be
applicable…….. In the present case, there is no statutory duty cast upon the respondents to
either prepare a year-wise panel of the eligible candidates or of the selected
candidates for promotion…..
106
26. It is by now a settled proposition of law
that a candidate has the right to be considered in the light of the existing rules,
which implies the ‘rule in force' on the date the consideration took place. There is no rule
of universal or absolute application that vacancies are to be filled invariably by the law
existing on the date when the vacancy arises. The requirement of filling up old vacancies under
the old rules is interlinked with the candidate having acquired a right to be considered for
promotion. The right to be considered for promotion accrues on the date of consideration of
the eligible candidates. Unless, of course, the applicable rule, as in Y.V.Rangaiah's case lays
down any particular time frame, within which the
selection process is to be completed. In the present case, consideration for promotion took
place after the amendment came into operation. Thus, it cannot be accepted that any accrued or
vested right of the appellants have been taken away by the amendment.”
(emphasis supplied)
61. In Delhi Judicial Services Assn. (supra) the
Supreme Court at paragraph– 5 held thus:
“5. ……………..whether the temporary posts having
been created prior to the amendment of the Rules, is it the law that those posts could be filled
up only in accordance with the un-amended rules and not otherwise?.......In Rangaiah’s case
(1983) II LLJ 23 SC ……. The aforesaid decision will have no application to the case in hand
inasmuch as in Delhi Higher Judicial Service there is no requirement of preparation of any panel or
107
list of candidates eligible for promotion by any
particular date. Then again, merely because posts were created under Rule 16, it was not
obligatory for the appointing authority to fill up those posts immediately….…..”
(emphasis supplied)
62. It is pertinent to note that the RG by resolution
of the Full Court was directed to prepare the draft seniority
list keeping in view the Karnataka Judicial Service
(Recruitment) Rules, 1983, Karnataka Judicial Service
(General Recruitment) Rules, 2004 and Full Court resolutions
governing the same. From the report prepared by the RG, it
is clear that the RG did not consider the 1983 and 2004 Rules
at all nor did he consider Brij Mohan Lal-1 and 2 in proper
perspective.
63. It is true that the judgment of the Supreme
Court in Debabrata Dash was not in the field when the
Committee and the Full Court passed the resolutions and
when the objections were considered and decided by the RG.
That by itself would not change the position of law. The
108
decision of the RG based on the resolution of the Committee
and of the Full Court, in my opinion was wrong in view of the
observations made by the Supreme Court in Debabrata
Dash. The Supreme Court has clearly observed that the first
two conditions of direction-14 in paragraph 10 of Brij Mohan
Lal-1, one, no right will be conferred in judicial officers for
claiming any regular promotion on the basis of his/her
appointment on ad hoc basis under the scheme, and two, the
services rendered in Fast Track Courts will be deemed as
service rendered in the parent cadre cannot be overlooked.
The third part of the direction 14 cannot be read in isolation.
Having regard to these two conditions, the Supreme Court
observed that until the vacancy occurred in the cadre of
Superior Judicial Service (Senior Branch) which was to be
filled by promotion, the service rendered by the writ
petitioner (promotee judge) in the Fast Track Court cannot
be deemed to be service rendered in the Superior Judicial
Service (Senior Branch). Rather until then, he continued to
be a member of the parent cadre, i.e., Superior Judicial
Service (Junior Branch). The third part of direction No.14, the
109
Supreme Court observed, does not deserve to be read in a
manner that overrides the 1963 Rules.
64. The Supreme Court, while making such
observations, had also taken note of the 1963 Rules in detail
and so also the Orissa Judicial Service (Special Scheme)
Rules, 2001. It is also apparent from the judgment of the
Supreme Court in Debabrata Dash, in particular,
paragraph-23 thereof, that Rule-17 in 1963 Rules was given
special attention to. Paragraph-23 of the report reads thus:
“23. Rule 17 makes provision for seniority of
officers in the following manner:
17. Seniority of officers in the service
shall be determined in accordance with the dates of substantive appointment to the
service.
Provided that a promoted officer, who may have been allowed to continuously
officiate from a date prior to the date of appointment of a direct recruit, shall, if he is
subsequently substantively appointed in the service without reversion to his parent service,
take his seniority in the cadre over such direct recruit.”
110
64.1. Keeping in view the 1963 rules and the 2001
Rules and judgments in various cases including Brij Mohan
Lal-1 and 2 the Supreme Court observed that the
administrative decision by the Full Court of Orissa High Court
is in accordance with those Rules and the legal position
already indicated therein. As it is apparent, Rule-17 of the
1963 Rules clearly provides that a promotee officer who may
have been allowed to continuously officiate from the date
prior to the appointment of direct recruit, or, if he
subsequently substantively appointed in the service without
reversion to his parent service, take his seniority in the cadre
over such direct recruit. Such Rule does not exist either in
the 1983 Rules or in the 2004 Rules nor the Supreme Court
in Brij Mohan Lal-1 say so in the third part of the direction-
14 in paragraph-10 of the report.
65. At this stage, I would like to consider the specific
submission advanced on behalf of the petitioners by Mr.Patil,
learned Senior Counsel that the impugned seniority list
prepared was based on the understanding, that the services
111
rendered as ad hoc judge can be considered for the purpose
of seniority, is not consistent with the decision in Brij Mohan
Lal-1. He submitted that the word “grade” in the direction-
14 cannot be read as “cadre”. I would like to have a fresh
look at the third part of direction 14 in paragraph-10 of Brij
Mohan Lal-1. The third part of direction-14 read thus:
“14. …….. In case any Judicial Officer is
promoted to “higher grade” in the “parent cadre” during his tenure in Fast Track Courts,
the service rendered in Fast Track Courts will
be deemed to be service in such “higher grade”.”
(emphasis supplied)
65.1. This direction uses the words/expressions
“grade”, “parent cadre” and “higher grade”. The direction, in
my opinion, was issued granting protection to all judicial
officers who were appointed as Additional District
Judges/District Judges on ad hoc basis for FTCs because, the
Supreme Court was conscious that the FTCs being
temporary/ad hoc, on their being discontinued the ad hoc
appointees would stand reverted to the parent cadre, but for
protection granted, on their reversion to parent cadre, i.e.
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Civil Judge (Sr.Dn.), they would be accorded the same
position/grade which they held in the parent cadre at the
time of appointment as ad hoc FTC Judges and their
entitlement of next grade in the same cadre.
65.2. One need to notice the difference between
“cadre” and “grade”. In the direction-14 of paragraph-10 of
Brij Mohan Lal-1, it appears to me, what is protected is the
promotion to “higher grade”. The word “cadre” cannot be
equated with “grade”, as both terms are quite different from
each other. In this connection it would be relevant to make
reference to the judgment of Jharkhand High Court dated 21-
2-2007 in Ajit Prasad Verma vs. State of Jharkhand,
MANU/JH/0055/007. In this judgment, a difference was
noticed between “grade” and “post” and observed that
direction-14 is to “higher grade” “not the post”. The Supreme
Court in Lalith Mohan Dey and others vs. Union of India
(1973) 3 SCC 862 observed that promotion post is a higher
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post with a higher pay and a selection grade is a higher pay
but in the same post.
65.3. From perusal of the 1983 Rules and the 2004
Rules, it appears that there are three cadres of civil side viz.,
District Judge/Additional District Judge, Civil Judge, (Sr.Dn.)
and Civil Judge (Jr. Dn.). Similarly, on criminal side, Sessions
Judge, Chief Judicial Magistrate and Judicial Magistrate First
Class. The Commission headed by Justice E.Padmanabhan
had fixed grades on the length of service rendered by judicial
officers in their parent cadre based on which the Government
of Karnataka issued Government Order in No.LAW 147 LAC
2009, Bangalore dated 24-6-2010, which fixed pay scales
within the cadre based on different levels/grades. This
Government order make it clear that the services rendered
by Fast Track Judges in the parent cadre shall be considered
for first stage of ACP Scale and Second Stage of ACP scale.
To make it further clear even in the cadre of Civil Judge, Jr.
Division, there are three grades, entry level, first Stage ACP
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Scale and second Stage ACP Scale. Similarly in the cadre of
Civil Judge, Senior Division, there are three grades/groups,
entry level, first Stage ACP Scale and second Stage ACP
Scale. Even in cadre of District Judge, there are three grades
viz., Entry level, selection grade and super time scale. The
Supreme Court in Brij Mohan Lal-1 has not, in the third
part of direction No.14, used the word “cadre”. The
words/expressions used are “grade” and “higher grade” and
not “cadre” or “higher cadre”.
66. Next, I would like to consider Rule 8 (31) of the
Karnataka Civil Service Rules and Rule 19 of the Karnataka
Civil Service (General Recruitment) Rules, 1977 (for short
“Recruitment Rules”) to which specific reference was made
by Mr.P.S.Rajagopal, learned Senior Counsel appearing for
the respondents. He submitted that Rule 19 of the
Recruitment Rules, which provides for “Probation and
Appointment by Promotion”, stipulates that all appointments
by direct recruitment to service or post shall be on probation.
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Rule 19 (3) (a) stipulates that save as otherwise provided in
the recruitment Rules relating to any “service or post” and
subject to the proviso to clause (f), all appointments by
promotion shall be on officiating basis for a period of one
year, which may, for reasons to be recorded in writing, be
extended by the Appointing Authority by a period not
exceeding one year. Clause (c) of Rule 19 (3) speaks of
declaration of satisfactory completion of period of officiation.
Rule 8(31) of the Karnataka Civil Services Rules (for short
“KCS Rules”) defines “Officiate”. In the light of these
provisions, he invited our attention to the resolutions passed
by the Administrative Committee No.II and the Full Court and
submitted that respondent-DJs were fit and suitable to be
promoted temporarily to the cadre of District Judge subject
to reversion at any time. Thus, he submitted promotions
accorded to the respondent-DJs were on officiating basis and
the promotions were to the cadre of District Judge. He also
drew my attention to the definition of the word “cadre” made
by Rule 8 (7) of the KCS Rules. He submitted that promotion
orders should be read in the light of the KCS rules and if so
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read every one of the promotions is a regular officiating
promotion and the words “ temporary”, “ad hoc” and the
phrase “subject to reversion at any time” only indicate that
as the posts against which the promotion orders were issued,
initially were temporary, the officiating promotion was to last
until subsistence of these temporary vacancies/posts and if
any temporary vacancies cease to be available it would entail
reversion of concerned promotee. In the present case, he
submitted that the temporary vacancies against which the
promotions of the respondent-DJs were made subsisted until
the permanent vacancies arose. As a matter of fact, as
against 93 Fast Track Court established, 54 Fast Track Courts
were ordered to be closed with effect from 1-4-2013 and 39
Fast Track Courts are still continuing and would continue till
31-2-2015.
66.1. Mr.Rajagopal, further submitted that no right of
the petitioners is affected by the impugned seniority list. He
also endeavored to demonstrate on the basis of the vacancy
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position placed on record by the RG along with their
statement of objections that the grievance made by the
petitioners is imaginary and at any event all that would
happen by the impugned seniority list is that the promotion
of respondent-DJs to selection grade may get delayed by an
year or two. In short, he submitted that no respondent-DJs
will stand in the way of career progression of any of the
direct recruits. In support of this contention he also pressed
into service the proposition that “chance of promotion are not
conditions of service”.
66.2. In support of his contentions he placed reliance
upon the judgment of the Supreme Court in Direct Recruit
Class II Engineering Officers’ Association (supra) L.Chandra
Kishore Singh (supra); Ajit Kumar Rath v. State of Orissa
(1999) 9 SCC 596; O.P.Garg V. State OF U.P. 1991 SUPP.(2)
SCC 51; Rudra Kumar Sain V. Union Of India, (2008) 8 SCC
25; B.S.Mathur V. Union of India 2008 AIR SCW 7042;
G.K.Dudani V. S.D.Sharma 1986 (SUPP) SCC 239.
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67. In L.Chandra Kishore (surpa), the Supreme
Court was concerned with the seniority of a person appointed
on officiating basis as expressly provided for in the rules
framed under Article 209 of the Constitution. In this case, the
Supreme Court was not considering the question of persons
appointed outside the service/cadre as a stop gap
arrangement as in the present case and therefore, in my
opinion, this judgment is of no avail to the respondent-DJs.
67.1. As a matter of fact, in K.Madalaimuthu and
another vs. State of Tamil Nadu, 2006 (6) SCC 558, the
Supreme Court observed that the judgment in L.Chandra
Kishore (surpa) did not involve the question of persons
appointed outside the service as a stop gap arrangement.
67.2. In B.S.Mathur (supra), the Supreme Court did
not consider the permissibility of retrospective seniority. It
only laid down that direct recruits cannot claim seniority from
the date of occurrence of vacancy in the direct recruitment
quota and seniority should be determined on the basis of
continuous length. The cadre of Delhi High Court Higher
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Judicial Service did not refer to ad hoc appointments/outside
service/cadre. Applying the principle laid down in this case,
the conditions of length of service of the petitioners have to
be reckoned from 2008 and that of respondent-DJs from
2009.
67.3. In G.K.Dudani (supra) the Supreme Court
observed that a person can be said to hold a post permanent
or temporary, in a substantive capacity only if his
appointment to that post is not fortuitous or ad hoc. In the
present case, the appointment of respondent-DJs admittedly
was on ad hoc basis and that too, temporary.
67.4. In Ajith Kumar Rath (supra), the promotion of
the appellant therein was held to be regular, though
provisional, since it was made against the permanent
vacancy in accordance with the service rules and in this
backdrop, it was observed that when the appellant was
appointed on regular basis on the concurrence of the vacancy
would be counted towards the seniority of the appellant viz-
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a-viz the contesting respondents (direct recruits). This
judgment also is of no avail to the respondent-DJs.
67.5. In O.P.Garg (supra), temporary posts were
created under Rule 4 (4) of U.P. Higher Judicial Services
1975 Rules. All temporary posts created under that rule were
additions to the permanent strength of cadre and as such,
formed part of the cadre. The appointments under Rule 22 of
1975 Rules, in that case, could be made to a permanent post
as well as a temporary post. In this backdrop, the Supreme
Court observed, so long as the temporary post has an
independent existence and is a part of the cadre strength,
the appointment against the said post has to be treated as a
substantive appointment. In view of the peculiar facts and
circumstances of that case, in my opinion, this judgment is of
no avail to the respondent-DJs.
68. I have considered the submissions of
Mr.P.S.Rajagopal, learned senior Counsel for the High Court
based on the relevant rules of Karnataka Civil Services Rules
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and Karnataka Civil Services (General Recruitment) Rules.
His submissions proceed on the assumption that the
respondent-DJs were promoted on the temporarily created
vacancies in the cadre of DJ, which in my opinion, as
expressed in the earlier part of the judgment, deserves to be
rejected outright. That apart, if the provisions referred to
are seen carefully and meaning of the term/expression
“officiate” and “appointments by promotion being on
officiating basis”, in my opinion, has no application as the
said rules contemplate officiating “in relation to posts in
service” and not something out of service/cadre as in the
present case. In the present case, the appointments of the
respondent-DJs as presiding officers of FTCs cannot be
treated as appointments to posts in the cadre of District
Judge. The same were ad hoc and to ad hoc posts outside
service/cadre. Just to test the argument advanced by
Mr.Rajagopal based on the aforementioned rules, if the
contention of the RG that the appointments were made to
the cadre of District Judge has to be accepted, then it would
imply that FTC schemes had not been implemented in the
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State of Karnataka. That is not the case of the High Court or
even of the respondent-DJs for that matter.
69. It would be relevant to notice the following
factual matrix which further supports the case of the
petitioners that the appointments of respondent-DJs was
outside the service/cadre. It is not in dispute that unlike any
regular District Judge, the FTCs did not work as special
courts under any of the special enactments. Similarly, the
principal District Judge is the administrative head of the
District and in his absence, it is the additional District Judge
who is made incharge of the administration and that role is
never assigned to an ad hoc District Judge appointed for
FTCs. This further shows that the respondent-DJs, before
their promotions in 2009, were appointed temporarily as ad
hoc District Judges by the Governor and were not treated as
regular promotions in the cadre of District Judge. This
supports the case of the petitioners that the respondent-DJs
were appointed on ad hoc basis temporarily on the posts of
District Judges for Fast Track Courts and their appointment
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could never to be treated as regular promotions against
vacant posts.
70. It is well settled that seniority even by one day
may materially affect the future prospects and career of an
officer. The person appointed even a day earlier may reach
the position which the person appointed one day later may
not be able to reach due to reasons such as limited number
of higher posts or his becoming age barred by the time next
vacancy arises. The submission that respondent-DJs will not
stand in the way of career progression of any of the
petitioners also, therefore, deserves to be rejected.
70.1. In B.S.Mathur (supra) in para-26, the Supreme
Court observed thus:
“26. … seniority even by one day may materially
affect the future prospects and career of an officer. The person appointed even on day
earlier may reach a position which the person appointed one day later may not be able to reach
due to reasons such as limited number of higher posts or his becoming age barred by the time
next vacancy arises. The only advancement in the career of a member of Delhi Higher Judicial
Service is elevation to the High Court.
Therefore, it will not be fair and equitable to
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give march to a later appointee over a prior
appointee of the same year, even if that march is for a few months or even for a few
days”. (emphasis supplied)
Therefore, it will not be fair and equitable to give march to
the respondent DJs over the petitioners irrespective of the
fact that they were holding the posts of Ad hoc DJs since
2003-04.
71. In the result, I hold that the promotions of
respondent-DJs as ad hoc District Judges vide notifications
issued in 2003-04 for being posted in the Fast Track Courts
cannot be treated as regular promotions in the cadre of DJs
under the 1983 Rules. In other words, service rendered by
them as ad hoc Fast Track Judges cannot be counted for the
purpose of seniority in the cadre of District Judge from the
date of notifications issued in 2003-04, and in my opinion,
promotion of the respondent-DJs should be counted from the
date of promotions/notifications issued/made in 2009 in the
cadre of DJs under the 2004 Rules.
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72. The impugned notification dated 14-9-2012 by
which the final seniority list of District Judges was published
by the RG is accordingly set-aside. It is open to the RG to
redraw the seniority, taking into account the actual date of
appointment of the petitioners (direct recruits) in 2008 and
the dates of promotions of the respondent-DJs (promotees)
in the cadre of District Judge in 2009. It is needless to state
that the RG while redrawing the seniority shall follow the
procedure and shall also keep in view the observations made
in this judgment. The Rule is made absolute in terms of this
judgment. No costs.
W.P.No.28147 of 2013
73. The petitioner in Writ petition No.28147/2013, who
is respondent No.34 in Writ Petition No.41684-41691/2012,
has filed this petition for the following relief:
“i) issue a writ of certiorari or any other
appropriate writ or order or direction to hold that the words “with immediate effect” contained in
the Notification No.DPAR 24 SHC 2009 dt.1st June, 2009 of the First Respondent at Annexure B
requires to be read as “with effect from the date