Hon’ble Punjab and Haryana High Court at Chandigarh vs State of Punjab and Ors.

Inter-se seniority – Between three streams of Superior Judicial Service i.e. promotees, direct recruits and out of turn promotees – In the seniority list promotee officers were placed at serial Nos. 1 to 14; at serial Nos. 15 and 16 were direct recruits; out of turn promotees at serial Nos. 17 to 24 and at serial Nos. 25 to 35 were direct recruits – Writ petition by direct recruits and out of turn promotees challenging the seniority list – High Court allowing the petitions held that the promotees were in excess of quota and hence should be treated as ad hoc and placed at the bottom of seniority list and directed to re-cast the seniority list – On appeal, held: Prior to amendment of Service Rules of 1963 in 2004, 75% of the cadre was required to be filled up by promotees and 25% by direct recruits – After the amendment in 2004, promotion quota was fixed as 50%, 25% for out of turn promotees (by departmental examination) and 25% for direct recruits – The amendment of Service Rules in 2004 was as a result of direction in *All India Judges’ Association case – The judgment in the case being prospective, the ratio of officers as existing before unamended Rules cannot be adversely affected – Determination of quota which existed prior to and subsequent to amended Rules have to be treated differently – Determination of seniority as brought in place by 2007 Rules, cannot be implemented so as to defeat any existing right – Promotition of officers u/r. 7(3)(a) of Service Rules was in accordance with the service Rules and their promotion canot be treated ad hoc nor they can be pushed to the bottom of seniority list – Out of turn promotion quota having been culled out only as per judgment in *All India Judges’ Association case, the said quota will come into existence propectively – Therefore, out of turn promotees cannot claim 25% quota from day one – Thus there is no patent error in calculation of the vacancies – Recruitment made from three different streams cannot be faulted – Supreme Court in *All India Judges’ Association case had directed for adopting roster system – Quota was throughout present in 1963 Rules, which has been amplified in 2007 Rules – The purpose and object of r. 7 of 2007 Rules r/w Appendix-B is clear that roster is to be followed for determination of seniority – Therefore, roster is applicable in determining the seniority – All the Fast Track Court Judges who were taken into regular cadre in different streams have been rightly placed in seniority list – The seniority positition of the officers of the three streams is determined as per the roster as indicated in Appendix-B – Punjab Superior Judicial Service Rules, 1963 – r. 8 – Punjab Superior Judicial Service Rules, 2007 – rr. 7(3)(a),(b) and (c); 7(4),8,12(3) and Appendix B.

Allowing the appeals, the Court

HELD: 1.1 From 28.01.1991, Rule 8 of Punjab Superior Judicial Service Rules, 1963 was amended providing for threefourth of the cadre to be filled up by promotee officers and onefourth by direct recruits. The above position continues till Rules were amended in 2004 under the direction of this court in *All India Judges’ Association case. For the first time by amending Punjab Superior Judicial Service Rules on 15.01.2004, the promotion quota under Rule 8 was fixed as 50 per cent, 25 per cent for limited departmental competitive examination and as far as for direct recruits, earlier 25 per cent was maintained. [Paras 39 and 40][116-H; 117-A-B]

1.2 The cadre strength as on 13.09.2007 was 89, which was increased on 10.11.2007 to 107. After the amendment of Rules on 15.01.2004, promotion of 10 officers were made. The cadre strength before 2004 was 88. Thus, in the year 2004, when the cadre strength was 88, 75 per cent posts were to be manned by promotees under merit-cum-seniority, i.e. 66 were to be manned by promotee officers. The judgment in *All India Judges’ Association case being prospective, the ratio of officers as existing before unamended Rules can not be adversely affected. A promotee before the amendment of Rules, 2004, who was well within their quota, suddenly cannot go out of their quota and become an excess merely on the strength of amendment of Rules, which are prospective in nature. For determining the quota, the cadre strength, which existed prior to amended rules and subsequent to the amended rules have to be treated differently. [Para 40][117-D-F]

1.3 The out of turn promotion quota having been culled out only as per the judgment in *All India Judges’ Association case, which was required in the Rules by the State, the said quota will come into existence only prospectively. An out of turn promotee cannot claim that they should be given 25 per cent posts of the cadre strength right from day one. It is true that quota has to be determined on the basis of cadre strength but determination of the cadre strength has to be made taking into consideration that rules amended w.e.f. 15.01.2004 were prospective in nature and cannot impair or affect any right, which accrued to the member of judicial service prior to the amendment of the Rules. [Para 40][118-B-D]

1.4 Rule 2007 having been brought in place to give effect to the judgment in *All India Judges’ Association case, while interpreting the Rules 2007 the direction issued by this court have to be kept in mind and the rules cannot be interpreted in a manner so as to violate the directions issued by this Court in the above judgment. [Para 70 (4)][135-C]

1.5 Thus, there is no patent error in the calculation of the vacancy by the High court in the administrative side and consequently the recruitment made from three different streams was well within such determination and cannot be faulted. The promotion of officers under Rule 7(3)(a) was in accordance with the rules and there is no question of treating the promotion to be ad hoc promotion nor they can be pushed to the bottom of seniority. The new set of rules, the new scheme of recruitment, new rules of determination of seniority as brought in place by 2007 Rules, its implementation has to be done with care so as not to defeat any existing right. Mechanical application of the Rules, which may result to unjust result has to be avoided to advance the scheme of the new Rules and the object which were delineated in *All India Judges’ Association case. While allocating posts to be filled by different streams, cadre strength, officers of particular stream in position, quota of each stream has to be kept in mind. The vacancies existing for recruitment in particular year has not to be mechanically divided at the ratio of 50, 25 and 25 per cent. [Para 41][118-D-G]

*All India Judges’ Association and others v. Union of India and others, (2002) 4 SCC 247 : [2002] 2 SCR 712 Srikant Roy and Others v. State of Jharkhand and Others (2017) 1 SCC 457 : [2016] 11 SCR 58 – relied on.

2.1 Rota and quota in service jurisprudence is a well known concept, which finds reflected in large number of service rules of different services. Quota between promotees and directs were throughout present in 1963 Rules, which has been further amplified in 2007 Rules. [Para 43][119-C-D]

2.2 The object as incapsulated by this Court in *All India Judges’ Association case in carrying recruitment by roster was with the object of eliminating disputes pertaining to determination of seniority. The purpose and object of Rule 7 of Rules, 2007 read with Appendix-B is clear that the roster is to be followed for determination of the seniority. The Rule 7(4) and Appendix-B has to be read in a manner so as to advance the object of the Rules. When this court directed for adopting roster system for determining seniority, Rules, 2007 cannot be interpreted in a manner which may violate the direction of this Court. Article 141 of the Constitution provides that law declared by the Supreme Court shall be binding on all courts and authorities. [Para 45][121-A-C]

2.3 There is nothing in the 2007 Rules which may indicate that there is any provision contrary to determination of seniority by roster. Mere fact that said rules are not explicit or make it expressly clear that seniority is to be determined on the basis of roster is not conclusive. [Para 48][123-G]

2.4 The purpose of statutory rules and laying down a procedure for recruitment was to achieve the certainty. Officers belonging to different streams have to be confidant that they shall be recruited under their quota and get seniority as per their quota and roster. In the event, the seniority is to be fixed with date of joining of particular stream, it will lead to uncertainty and making seniority depending on administrative authorities, which is neither in the interest of service nor serve the cause of justice. [Para 53][126-F-G]

2.5 Roster is fully applicable for determination of seniority. Officers of different streams selected in a particular year even though they were allowed to join the post on different dates shall not affect their inter se seniority, which is to be decided on the basis of roster. [Para 53][126-G-H]

2.6 The High Court even though accepted the principle that roster is applicable in the seniority but in the operative portion of the judgment did not issue any direction to re-cast the seniority as per the roster given in the Appendix-B which is an apparent error committed by the High Court. [Para 70 (3)][135-B]

2.7 Rule 7(4) read with Appendix-B has to be read in the light of direction in *All India Judges Association case and harmonious construction of the rule clearly indicates that roster which has been expressly made applicable for filling the post of all the three streams shall be applicable while determining the seniority. The seniority list dated 24.12.2015 is to be set aside. [Para 70 (5) and 71][135-D-E]

O.P. Singla and Another v. Union of India and Others (1984) 4 SCC 450 : [1985] 1 SCR 351; Union of India and Others v. N.R. Parmar and Others (2012) 13 SCC

340 : [2012] 13 SCR 555 – relied on.

3.1 The promotion order issued by the Government of Punjab on the recommendations of the High Court promoting fifteen officers under 50% quota under Rule 7(3)(a) also contained six officers who were working on ad-hoc basis in Fast Track Courts. Similarly, appointment order promoting eight judicial officers under quota for out of turn promotion, included one officer who was working on ad-hoc basis in Fast Track Court. The tentative seniority list indicates that two officers who were at Sl.No.15 and at Sl.No.16, were shown as direct recruits having been absorbed from Fast Track Courts against the quota of direct recruits under Rule 7(3)(c). These officers were recruited as Fast Track Court Judges directly from the Bar. In the tentative seniority list, the name of promotee officers who had earlier been working as Fast Track Court Judges have been shown as per their seniority in lower cadre. [Para 54][127-B-D]

3.2 The two officers (who were appointed as direct recruits) were appointed to Punjab Superior Judicial Service by Order dated 24.06.2008. In the tentative seniority list, they were placed at serial Nos. 15 and 16 i.e. above the direct recruits. The tentative seniority list was prepared by the committee on the basis of continuous length of service. It was probably due to that reason that serial Nos. 15 and 16, direct recruits were shown above the out of turn promotees and direct recruits. The above two officers who were taken on the regular Cadre of Additional District Judge, after written test and viva-voce test which is almost the same procedure which has been subsequently laid down by this Court in **Brij Mohan Lal case. The above two officers having been included in direct recruitment quota, they have to be clubbed along with the direct recruits. The objection of direct recruits that they cannot be included in the quota meant for direct recruits since they have not undergone the same written test and vivavoce, which has been undertaken by the direct recruits, thus, cannot be accepted. [Para 61][131-B-E]

3.3 Rule 12(3) provides that “the inter-se-seniority of the direct appointee shall be on the basis of merit as is determined by the High Court.” The inter-se-seniority as contemplated by Rule 12(3) obviously means inter-se-seniority reflected in the same examination. The two officers from the Fast Track Court having not taken the same examination, Rule 12(3) is not technically applicable while judging inter-se-seniority of these two officers and other direct recruits. [Para 63][132-A-B]

3.4 The two officers having been working as Additional District Judges in the Fast Track Court and they having been appointed in the regular cadre although in the same recruitment year, their placement above other direct recruits is justified. However, these two officers will be grouped along with direct recruits and shall occupy position number 1 and 2 in the direct recruits. [Para 63][132-C]

3.5 The Fast Track Court Judge who was selected by out of turn promotion, was appointed as Fast Track Court Judge consequent to promotion of fifteen officers under Rule 7(3)(a). The appointment and selection committee along with proposing fifteen promotions under Rule 7(3)(a) has also proposed seven officers to man the Fast Track Courts in which the officer was included. He thus occupied the Fast Track Court judge post in the year 2008 itself and participated in the limited departmental competitive examination and secured sixth position on merit. Among the out of turn promotees he has been placed at sixth place. [Para 64][132-D-F]

3.6 There is no denial that the fast track court Judge who was out of turn promotee has been regularly promoted under Rule 7(3)(b) and continues his substantive promotion. When the roster is applicable, the seniority has to be fixed by the roster point. As per Rule 12(2) the inter-se-seniority of the out of turn promoted officers shall be “in the order of merit as is determined by the High Court”. Thus, seniority position of the officer among the out of turn promotees has to be in accordance with the merit. His position among the out of turn promotees has thus rightly been shown at serial No.6 with which no infirmity can be found. [Para 67][133-G-H; 134-A]

3.7 All the Fast Track Court judges who were taken into the regular cadre in different streams have been rightly placed in the seniority list amongst their stream to which no exception can be taken. [Para 67][134-A]

**Brij Mohan Lal v. Union of India and others (2012)

6 SCC 502 : [2012] 5 SCR 305– relied on.

4. Already period of three years has elapsed when the tentative seniority list was published. Finalisation of seniority as early as possible is essential and necessary for administration of justice. There is no dispute regarding inter-se-seniority of the promotees under Rule 7(3)(a) and issue pertaining to inter-seseniority of out of turn promotees and direct recruits have already been finalized. Only exercise which is to be undertaken is to place officers of three streams in accordance with the roster as indicated in Appendix-B. The seniority position of the officers of three steams is determined as per the roster. [Para 71 (a) and (b)] [135-F-H]

5. *** In All India Judges Association quota of 25 percent for out of turn promotees has been reduced as 10 percent w.e.f. 01.01.2011. The present seniority dispute being related to recruitment held in 2008, the reduction in quota may not be relevant in the present case. [Para 72][138-C-D]

***All India Judges Association and Ors. v. Union of India and Ors. (2010) 15 SCC 170 – referred to.