Dinesh Kumar Gupta and Others vs High Court of Judicature of Rajasthan Others

(A) Whether the judicial officers promoted on ad-hoc basis as Additional District and Sessions Judges to man the Fast Track Courts in the State and who were substantively appointed to the Cadre of the District Judge, are entitled to seniority from the date of their initial ad-hoc promotion?

(B) Whether the selection process initiated in terms of the Notification dated 31.03.2011 can be said to be in continuation of the process initiated under Notification dated 15.04.2010?

(C) Whether the substantive promotion granted to the 47 Judicial Officers must be taken to be part of the same selection process pursuant to the Notification dated 31.03.2011 and whether the 47 Judicial Officers could be placed en-bloc senior to the candidates selected in said selection process initiated pursuant to the Notification dated 31.03.2011, without applying the Cyclic Order in terms of Rajasthan Judicial Service Rules, 2010?

(D) Whether the inter se placement of candidates selected to the Cadre of District Judge in the State through Limited Competitive Examination, in the seniority list must be based on their merit in said examination or should it be based on their initial seniority in the erstwhile cadre?

(E) Whether the Report dated 15.03.2019 and the consequential Final Seniority List, otherwise calls for any modification or correction? [Para 38][554-E-H; 555-A-B]

1.2 The decisions in Debabrata Dash, and V. Venkata Prasad were in the context where serving Judicial Officers were granted ad-hoc promotions as Fast Track Court Judges, while in C. Yamin the members of the Bar were appointed as Fast Track Court Judges and these decisions thus completely conclude the issue. As has been held in said decisions, the reckonable date has to be the date when substantive appointment is made and not from the date of the initial ad-hoc appointment or promotion. Question (A) is, therefore, answered in the negative. [Para 39]

Debabrata Dash and Another v. Jatindra Prasad Das and Others (2013) 3 SCC 658 : [2013] 2 SCR 331; V. Venkata Prasad and Others v. High Court of A.P. and Other (2016) 11 SCC 656 : [2016] 3 SCR 834; Kum C. Yamini v. The State of Andhra Pradesh (2019) 10 SCALE 834 : [2019] 10 SCR 595 – relied on.

1.3 As regards Question No.(B), it is relevant to note that the Notification dated 15.04.2010 had invited application for filling up 36 vacancies by Direct Recruitments and 22 vacancies by Promotion through LCE. This was preceded by determination of vacancies through Notification dated 31.03.2010. After the process initiated in terms of said Notification dated 15.04.2010 was cancelled, a fresh determination of the vacancies was undertaken and the Notification dated 31.03.2011 now found vacancies for Direct Recruitments, for Promotion through LCE and for Regular Promotion at 37, 32 and 24 respectively. Thus, the vacancies which became available post the Notification dated 15.04.2010 were also taken into account. The Report dated 15.03.2019 shows that some of the selected candidates in the process pursuant to the Notification dated 31.03.2011 had not even participated in the earlier process of 2010. In the premises, if the submission that the process initiated under the Notification dated 31.03.2011 must be held to be in continuation of the earlier selection of 2010 is accepted, it would amount to conferring undue advantages upon persons who either had not participated in the process of 2010 or who were not even eligible in 2010. The Report dated 15.03.2019, therefore, correctly appreciated the fact situation on record and concluded that it would not be in continuation of the earlier process. [Para 40][562-D-G]

1.4 As regards Question No.(C), it must be noted that as on the date when 2010 Rules (Rule 57 thereof repealed 1969 Rules and made provisions for saving certain actions) came into effect, the Additional District and Sessions Judges manning the Fast Track Courts had rendered service in ad-hoc capacity for almost 07 years. The question whether they be granted promotion on Regular Basis was subject matter of consideration of the High Court. The Report of the Committee of Judges given in 2008 had advised that they be granted Regular Promotion and the matter was getting deferred at the level of the Full Court. It was at this stage that 2010 Rules became effective from 18.01.2010. Even thereafter, the Notification dated 31.03.2010 had published the vacancy situation only in respect of Direct Recruitment and Promotion through LCE. It was obviously so, as the issue regarding grant of Regular Promotion on substantive basis to those Fast Track Court Judges was simultaneously under consideration and on 21.04.2010 a formal Order was passed promoting the 47 Judicial Officers on substantive basis to the Cadre of District Judge. The grant of promotion to the 47 Judicial Officers and selection process pursuant to the Notification dated 15.04.2010 were not part of the same process and were completely independent. None of the 47 Judicial Officers had the occasion to compete in the LCE that was undertaken in terms of the Notification dated 15.04.2010. It is possible to say that the last of the 47 Judicial Officers could as well have been the first in the list of successful candidates through LCE and thus could possibly have been entitled to better placement. In any case, the process initiated pursuant to the Notification dated 15.04.2010 was cancelled for administrative reasons and the appointments in respect of process pursuant to the Notification dated 31.03.2011 could be effected only in the year 2013, i.e. more than 03 years after the 47 Judicial Officers were granted substantive appointment to the Cadre of District Judge. Further, if grant of promotion to the 47 Judicial Officers is taken to be the part of the same process, some of the Direct Recruits may not even be having eligibility in the year 2010 and yet may be placed above some of the 47 Judicial Officers. In the circumstances, the assessment made by the High Court in its Report dated 15.03.2019 is without any infirmity. The substantive promotion granted to the 47 Judicial Officers cannot be taken to be part of the same selection process where Direct Recruits and candidates through LCE were appointed to the Cadre of District Judge on 15.07.2013. If the substantive appointment of the 47 Judicial Officers to the Cadre of District Judge is separate and distinct from the selection process through which appointment were made after three years on 15.07.2017, there would be no question or occasion to apply the Cyclic Order (provided in Schedule VII to 2010 Rules). It is not the contention of anyone that appointment of the 47 Judicial Officers on the relevant date was either beyond the quota meant for Regular Promotion or that there was any serious infirmity in the process or that any of the candidates was completely ineligible. Since there was a difference of more than

03 years between these two modes of selection, the Report dated 15.03.2019 rightly concluded that the Cyclic Order ought not to get attracted. It is true that the Cyclic Order and the quota for different streams ensure equitable treatment for three sources. However, the application of the Cyclic Order must depend upon the fact situations. It was precisely for this reason that the expression “as far as possible” has been used in the Rule. Other things being equal, certainly the quotas for different streams and the Cyclic Order must be adhered to. However, if such adherence itself is going to cause incongruous situation and inflict incalculable harm, insistence upon applicability of the Cyclic Order in such cases may not be appropriate. The candidates selected through LCE and Direct Recruitment vide Order dated 15.07.2013 cannot claim to be clubbed with the 47 Judicial Officers promoted in substantive capacity on 21.04.2010 and cannot claim appropriate placement in accordance with the Cyclic Order. The 47 Judicial Officers were rightly placed en-bloc senior to all the candidates selected through the process initiated pursuant to the Notification dated 31.03.2011. Writ Petition (Civil) Nos.936 of 2018 and 967 are, therefore, dismissed. [Paras 1, 41, 41.4][562H; 563-A-H; 564-A-D; 574-F-G]

State of M.P. v. Narmada Bachao Andolan and Another (2011) 7 SCC 639 : [2011] 6 SCR 443 – relied on.

1.5 While considering Question (D), it is relevant to notice the emphasis placed by this Court in All India Judges Association while directing that 25 per cent of the posts in the cadre of the District Judge be filled through LCE. It was stated in paragraph

27 that there should be an incentive amongst relatively junior and other officers to improve and to compete with each other so as to excel and get accelerated promotion. In paragraph 28 the relevant direction again stressed that 25 per cent quota for promotion through LCE be “strictly on the basis of merit.” Rule 31(2) of 2010 Rules (Rule 31 deals with source of recruitment) also uses the expression “strictly on the basis of merit” while dealing with posts to be filled in through LCE. The merit is to be assessed in terms of the scheme laid down in the relevant Schedule. After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, medical fitness etc. However, placing reliance on Rule 47(4) (the issue of seniority is dealt with by Rule 47), the Committee in its Report dated 15.03.2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotion. If the list is to be drawn up according to merit, it is possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotees through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background. Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to passing the LCE. The direction issued in All India Judges Association to afford an incentive to meritorious candidates regardless of their seniority would not thus be carried out. The general principle appearing in Rule 47(4) must, therefore, give way to the special dispensation in Rule 31(2) of 2010 Rules. The High Court in its Report dated 15.03.2019 completely failed to appreciate the true character of LCE and reservation of certain quota for that category. The Court, therefore, accepts the submissions made for the petitioners in Writ Petition (Civil) No.498 of 2018 and Diary No.13252 of 2019 and while answering Question (D) it is declared that the inter se placement of the candidates selected through LCE must be based on merit and not on the basis of the seniority in the erstwhile cadre. Said Writ Petitions are allowed to that extent. [Paras 42][574-H; 575-A-H; 576-A]

All India Judges Association v. Union of India and Others (2002) 4 SCC 247 : [2002] 2 SCR 712 – relied on.

1.6 It is true that as on the date when 2010 Rules came into effect, there were 83 Fast Track Courts functioning in the State and appropriate mention to that effect was made in Part A of Schedule II to 2010 Rules. It is also correct to say that the adhoc promotions granted to the concerned Judicial Officers were under 1969 Rules. But such promotions were on ad-hoc basis to man the Fast Track Courts and the law on the point is now well settled that the service rendered by such Judicial Officers as Fast Track Court Judges on ad-hoc basis cannot be taken into account while reckoning seniority after such Judicial Officers were granted promotion on substantive basis and that their seniority has to be reckoned only from the date of their substantive appointment to the cadre of District Judge. Said 1969 Rules do not in any way confer any right which would be inconsistent with the law so laid down by this Court. The further submission that four Judicial Officers out of the 47 Judicial Officers were also appointed on the same day along with the petitioners in Writ Petition (Civil) No.464 of 2019 also has no merit. The grant of promotion on substantive basis to said four Judicial Officers does not by itself entitle said petitioners to any similar treatment. The issue of grant of promotion on substantive basis may depend upon various issues including suitability of the concerned candidate and availability of posts. The record also shows that after grant of promotion on substantive basis to the 47 Judicial Officers, there were no vacancies for Regular Promotion which is why the selection process undertaken in the year 2010 did not earmark any vacancies for Regular Promotions and it was only in the year 2011, when adequate vacancies for said category became available, that the Notification dated 31.03.2011 contemplated filling up of certain vacancies by Regulation Promotion. The petitioners in Writ Petition (Civil) No.464 of 2019 participated in the process initiated pursuant to said Notification dated 31.03.2011. Some of them also appeared in LCE and availed of the opportunity to stake their claim. Their regular promotions to the Cadre of District Judge must, therefore, be taken only as a result of selection process initiated in terms of the Notification dated 31.03.2011 which culminated in the Order dated 15.07.2013. In the circumstances, their substantive appointment to said cadre has to be reckoned from 15.07.2013 and not with any anterior effect. Once the Regular Promotion was part of the same process along with other streams, namely, through Direct Recruitment and LCE, the Cyclic Order had to be applied and said petitioners cannot be given en-bloc placement above the candidates selected through Direct Recruitment and LCE in the same process of selection. Therefore, there is no merit in Writ Petition (Civil) No. 464 of 2019 and said Writ Petition is dismissed. The petitioners in Writ Petition (Civil) No.899 of 2019 and other connected matters came to be appointed on ad-hoc basis to man the Fast Track Courts after 2010 Rules came into effect. Even if their services were continued after abolition of Fast Track Courts, that by itself would not confer any right on them. They came to be substantively promoted to the Cadre of District Judge only vide Order dated 05.02.2016. For the reasons stated hereinabove, their entitlement on substantive basis has to be reckoned only from 05.02.2016 and not from any earlier date. Writ Petition (Civil) No.899 of 2019 and other connected matters are, therefore, dismissed. Thus, while answering Question (E), it is concluded that the Report dated 15.03.2019 does not call for any modification, except to the extent dealt with in answer to Question (D). [Para 43][576B-H; 577-A-E]

1.7 The seniority list issued in terms of Report dated 15.03.2019 shall stand modified only to the extent that appropriate placement to the candidates selected through LCE be given on the basis of their merit in the examination and not on the basis of their seniority in the erstwhile cadre. Except to the said extent, the Report dated 15.03.2019 does not call for any modification or clarification. [Para 44][577-G-H; 578-A]

All India Judges’ Association v. Union of India and others (1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206; All India Judges’ Association and others v. Union of India and others (1993) 4 SCC 288 : [1993] 1 Suppl. SCR 749; All India Judges Association and Others v. Union of India and others (2002) 4 SCC 274; Brij Mohan Lal v. Union of India and others (2002) 5 SCC

1 : [2002] 3 SCR 810; Malik Mazhar Sultan and another v. U.P. Public Service Commission and others (2006) 9 SCC 507 : [2006] 3 SCR 689; Malik Mazhar Sultan and another v. U.P. Public Service Commission and others (2008) 17 SCC 703; All India Judges’ Association v. Union of India and others (2010) 15 SCC 170; Rajasthan Judicial Service Officers’ Association v. State of Rajasthan and Another (2009) 14 SCC 656: [2009] 10 SCR 814; High Court of Judicature For Rajasthan v. Veena Verma and another (2009) 14 SCC

734 : [2009] 10 SCR 795; Brij Mohan Lal v. Union of India and Others (2012) 6 SCC 502 : [2012] 5 SCR 305; Union of India and Others v. N. R. Parmar and Others (2012) 13 SCC 340 : [2012] 13 SCR 555; Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900; Rudra Kumar Sain & Ors. v. Union of India & Ors. (2008) 8 SCC 25; Hon’ble Punjab and Haryana High Court v. State of Punjab and others (2019) 12 SCC

496 : [2018] 13 SCR 91; K. Meghachandra Singh and Ors. v. Ningam Siro and Others (2019) SCC Online SC 1494 : [2019] 16 SCR 651 – referred to.