1

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

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of posting on ad-hoc basis” in so far as it relate to

the Petitioner.”

74. For the reasons recorded in the judgment,

disposing of Writ Petition Nos.41684-41691/2012, the prayer

in the present writ petition is rejected. The writ petition

accordingly fails and dismissed as such.

Sd/-

JUDGE

Ia