PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH versus STATE OF PUNJAB AND ORS. on 3 October 2018

[2018] 13 S.C.R. 91

HON’BLE PUNJAB AND HARYANA HIGH COURTAT CHANDIGARH

v.

STATE OF PUNJAB AND ORS.

(Civil Appeal Nos. 5518-5523 of 2017)

OCTOBER 03, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Service Law:

Inter-se seniority – Between three streams of Superior JudicialService i.e. promotees, direct recruits and out of turn promotees –In the seniority list promotee officers were placed at serial Nos. 1 to14; at serial Nos. 15 and 16 were direct recruits; out of turn promoteesat serial Nos. 17 to 24 and at serial Nos. 25 to 35 were direct recruits– Writ petition by direct recruits and out of turn promoteeschallenging the seniority list – High Court allowing the petitionsheld that the promotees were in excess of quota and hence shouldbe treated as ad hoc and placed at the bottom of seniority list anddirected to re-cast the seniority list – On appeal, held: Prior toamendment of Service Rules of 1963 in 2004, 75% of the cadre wasrequired 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) and25% for direct recruits – The amendment of Service Rules in 2004was as a result of direction in *All India Judges’ Association case –The judgment in the case being prospective, the ratio of officers asexisting before unamended Rules cannot be adversely affected –Determination of quota which existed prior to and subsequent toamended Rules have to be treated differently – Determination ofseniority as brought in place by 2007 Rules, cannot be implementedso 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 theirpromotion canot be treated ad hoc nor they can be pushed to thebottom of seniority list – Out of turn promotion quota having beenculled out only as per judgment in *All India Judges’ Associationcase, the said quota will come into existence propectively – Therefore,out of turn promotees cannot claim 25% quota from day one – Thus

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Athere is no patent error in calculation of the vacancies – Recruitmentmade from three different streams cannot be faulted – Supreme Courtin *All India Judges’ Association case had directed for adoptingroster system – Quota was throughout present in 1963 Rules, whichhas been amplified in 2007 Rules – The purpose and object of r. 7of 2007 Rules r/w Appendix-B is clear that roster is to be followedBfor determination of seniority – Therefore, roster is applicable indetermining the seniority – All the Fast Track Court Judges whowere taken into regular cadre in different streams have been rightlyplaced in seniority list – The seniority positition of the officers ofthe three streams is determined as per the roster as indicated inCAppendix-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 SuperiorDJudicial Service Rules, 1963 was amended providing for three-fourth of the cadre to be filled up by promotee officers and one-fourth by direct recruits. The above position continues till Ruleswere amended in 2004 under the direction of this court in *AllIndia Judges’ Association case. For the first time by amendingEPunjab Superior Judicial Service Rules on 15.01.2004, thepromotion quota under Rule 8 was fixed as 50 per cent, 25 percent for limited departmental competitive examination and asfar as for direct recruits, earlier 25 per cent was maintained.[Paras 39 and 40][116-H; 117-A-B]

F1.2 The cadre strength as on 13.09.2007 was 89, which wasincreased on 10.11.2007 to 107. After the amendment of Ruleson 15.01.2004, promotion of 10 officers were made. The cadrestrength before 2004 was 88. Thus, in the year 2004, when thecadre strength was 88, 75 per cent posts were to be manned bypromotees under merit-cum-seniority, i.e. 66 were to be mannedGby promotee officers. The judgment in *All India Judges’Association case being prospective, the ratio of officers as existingbefore unamended Rules can not be adversely affected. Apromotee before the amendment of Rules, 2004, who was wellwithin their quota, suddenly cannot go out of their quota and H

become an excess merely on the strength of amendment of Rules,which are prospective in nature. For determining the quota, thecadre strength, which existed prior to amended rules andsubsequent 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 outonly as per the judgment in *All India Judges’ Association case,which was required in the Rules by the State, the said quota willcome into existence only prospectively. An out of turn promoteecannot claim that they should be given 25 per cent posts of thecadre strength right from day one. It is true that quota has to bedetermined on the basis of cadre strength but determination ofthe cadre strength has to be made taking into consideration thatrules amended w.e.f. 15.01.2004 were prospective in natureand cannot impair or affect any right, which accrued to themember 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 effectto the judgment in *All India Judges’ Association case, whileinterpreting the Rules 2007 the direction issued by this courthave to be kept in mind and the rules cannot be interpreted in amanner so as to violate the directions issued by this Court in theabove judgment. [Para 70 (4)][135-C]

1.5 Thus, there is no patent error in the calculation of thevacancy by the High court in the administrative side andconsequently the recruitment made from three different streamswas well within such determination and cannot be faulted. Thepromotion of officers under Rule 7(3)(a) was in accordance withthe rules and there is no question of treating the promotion to bead hoc promotion nor they can be pushed to the bottom ofseniority. The new set of rules, the new scheme of recruitment,new rules of determination of seniority as brought in place by2007 Rules, its implementation has to be done with care so asnot to defeat any existing right. Mechanical application of theRules, which may result to unjust result has to be avoided toadvance the scheme of the new Rules and the object which weredelineated in *All India Judges’ Association case. While allocatingposts to be filled by different streams, cadre strength, officers of A

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Aparticular stream in position, quota of each stream has to be keptin mind. The vacancies existing for recruitment in particular yearhas not to be mechanically divided at the ratio of 50, 25 and 25per cent. [Para 41][118-D-G]

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

2.1 Rota and quota in service jurisprudence is a well knownCconcept, which finds reflected in large number of service rules ofdifferent services. Quota between promotees and directs werethroughout present in 1963 Rules, which has been furtheramplified in 2007 Rules. [Para 43][119-C-D]

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

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

2.4 The purpose of statutory rules and laying down aprocedure for recruitment was to achieve the certainty. Officersbelonging to different streams have to be confidant that they shallbe recruited under their quota and get seniority as per their quotaand roster. In the event, the seniority is to be fixed with date ofH

joining of particular stream, it will lead to uncertainty and makingseniority depending on administrative authorities, which isneither 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 eventhough they were allowed to join the post on different dates shallnot affect their inter se seniority, which is to be decided on thebasis of roster. [Para 53][126-G-H]

2.6 The High Court even though accepted the principlethat roster is applicable in the seniority but in the operative portionof the judgment did not issue any direction to re-cast the seniorityas per the roster given in the Appendix-B which is an apparenterror committed by the High Court. [Para 70 (3)][135-B]

2.7 Rule 7(4) read with Appendix-B has to be read in thelight of direction in *All India Judges Association case andharmonious construction of the rule clearly indicates that rosterwhich has been expressly made applicable for filling the post ofall the three streams shall be applicable while determining theseniority. 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 Indiaand Others v. N.R. Parmar and Others (2012) 13 SCC340 : [2012] 13 SCR 555 – relied on.

3.1 The promotion order issued by the Government ofPunjab on the recommendations of the High Court promotingfifteen officers under 50% quota under Rule 7(3)(a) also containedsix officers who were working on ad-hoc basis in Fast TrackCourts. Similarly, appointment order promoting eight judicialofficers under quota for out of turn promotion, included one officerwho was working on ad-hoc basis in Fast Track Court. Thetentative seniority list indicates that two officers who were atSl.No.15 and at Sl.No.16, were shown as direct recruits havingbeen absorbed from Fast Track Courts against the quota of directrecruits under Rule 7(3)(c). These officers were recruited as Fast A

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ATrack Court Judges directly from the Bar. In the tentativeseniority list, the name of promotee officers who had earlier beenworking as Fast Track Court Judges have been shown as pertheir seniority in lower cadre. [Para 54][127-B-D]

3.2 The two officers (who were appointed as direct recruits)Bwere appointed to Punjab Superior Judicial Service by Orderdated 24.06.2008. In the tentative seniority list, they were placedat serial Nos. 15 and 16 i.e. above the direct recruits. Thetentative seniority list was prepared by the committee on thebasis of continuous length of service. It was probably due to thatreason that serial Nos. 15 and 16, direct recruits were shownCabove the out of turn promotees and direct recruits. The abovetwo officers who were taken on the regular Cadre of AdditionalDistrict Judge, after written test and viva-voce test which is almostthe same procedure which has been subsequently laid down bythis Court in **Brij Mohan Lal case. The above two officers havingDbeen included in direct recruitment quota, they have to be clubbedalong with the direct recruits. The objection of direct recruitsthat they cannot be included in the quota meant for direct recruitssince they have not undergone the same written test and viva-voce, which has been undertaken by the direct recruits, thus,cannot be accepted. [Para 61][131-B-E]E

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

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

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

3.6 There is no denial that the fast track court Judge whowas out of turn promotee has been regularly promoted underRule 7(3)(b) and continues his substantive promotion. When theroster is applicable, the seniority has to be fixed by the rosterpoint. As per Rule 12(2) the inter-se-seniority of the out of turnpromoted officers shall be “in the order of merit as is determinedby the High Court”. Thus, seniority position of the officer amongthe out of turn promotees has to be in accordance with the merit.His position among the out of turn promotees has thus rightlybeen 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 intothe regular cadre in different streams have been rightly placed inthe seniority list amongst their stream to which no exception canbe 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 thetentative seniority list was published. Finalisation of seniority asearly as possible is essential and necessary for administration ofjustice. There is no dispute regarding inter-se-seniority of thepromotees under Rule 7(3)(a) and issue pertaining to inter-se-seniority of out of turn promotees and direct recruits have alreadybeen finalized. Only exercise which is to be undertaken is to placeofficers of three streams in accordance with the roster as indicatedin Appendix-B. The seniority position of the officers of threesteams is determined as per the roster. [Para 71 (a) and (b)][135-F-H]

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A5. *** In All India Judges Association quota of 25 percentfor out of turn promotees has been reduced as 10 percent w.e.f.01.01.2011. The present seniority dispute being related torecruitment held in 2008, the reduction in quota may not berelevant in the present case. [Para 72][138-C-D]

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

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5518-5523 of 2017.

From the Judgment and Order dated 03.03.2017 of the High Courtof Punjab and Haryana at Chandigarh in Civil Writ Petition Nos.1056,1057, 1209, 1983, 2335, 21544 of 2016

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Civil Appeal Nos. 5513/2017, 5525/2017, 5509/2017, 5510/2017,F5515-5517/2017, 5528-5529/2017, 10176/2018, 10185-10187/2018.

Raju Ramachandran, Ajit Sinha, K. V. Viswanathan, DushyantDave, P. S. Patwalia, Nidhesh Gupta, Sr. Advs., Ashok Mathur, AbhishekKaushik, Raghav Pandey, Vaibhav Niti, Prateek Gupta, E. C. Agrawala,Tarjit Singh, Suhaas Ratna Joshi, Ashok K. Mahajan, S. L. Aneja,GSubhasish Bhowmick, T. V. S. Raghavendra Sreyas, Ms. Gayatir Gulati,Ms. Sneh Dhillon, Ms. Harshika Verma, Mrs. Natasha Dalmia, PuneetVarshney, Ms. Pallavi Singh, Ms.Vriti Gujral, Jagjit Singh Chhabra,S. K. Pabbi, Ms. Priyanka Garg, Ajay Kumar Singh, Karan Bharihoke,Ms. Anusha Nagarajan, Ms. Navkiran Bolay, Karan Dewan, Ms. Aditi Gupta, Ms. Uttara Babbar, Ashok Mathur, Shankar Divate, Advs. forthe appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Delay condoned. Leave granted.

2. These appeals have been filed challenging the judgment dated03.03.2017 of Division Bench of the High Court of Punjab and Haryanaat Chandigarh allowing the Writ Petition No.1056 of 2016 and otherconnected writ petitions.

3. The questions which have arisen for determination in this batchof appeals relate to inter se seniority dispute between three streams ofPunjab Superior Judicial Service, i.e.,

(i) the officers promoted on the basis of merit-cum-seniority under50% quota (hereinafter referred to as “promotees”);

(ii) the direct recruits under 25% quota (hereinafter referred to as“direct recruits”); and

(iii) officers promoted on the basis of limited departmentalcompetitive examination under 25% quota (as it then existed) (hereinafterreferred to as “out of turn promotees”).

4. The members of Punjab Superior Judicial Service had filedwrit petition in the High court challenging the seniority list dated24.12.2007 issued by the High Court determining the inter se seniority ofthe members of the Punjab Superior Judicial Service.

5. The judgment of the Division Bench of the High Court hasbeen questioned by Punjab and Haryana High Court at Chandigarh,members of Punjab Superior Judicial Service who were direct recruitsand Superior Judicial Officers who are promotees under 50% quota.Civil Appeals on behalf of Kanwaljit Singh Bajwa and others and JitenderKaur are the appeals filed by direct recruits and other appeals are theappeals filed by the promotee officers under 50% quota.

6. C.A.Nos.5518-5523 of 2017 filed by the High Court are beingtreated as leading appeals, reference of pleadings of which appeals shallbe sufficient to decide this batch of appeals.

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ABackground Facts

7. The Higher Judicial Service of the State of Punjab was governedby a set of Rules, namely, Punjab Superior Judicial Service Rules, 1963.Rule 8, as it existed initially, provided that of the total number of cadre-posts, two-third shall be manned by promotee officers and one-third byBdirect recruits.

8. Rule 12 dealt with seniority which provided that the seniority,inter se, of the substantive members of the Service, whether direct recruitsor promotee officers, shall be determined with reference to the respectivedates of their confirmation. On 31.12.1976 Rule 12 was amendedCproviding that seniority, inter se, of the members of the Service, shall bedetermined by the length of continuous service on a post in the Serviceirrespective of the date of confirmation.

9. On 28.01.1991, Rule 8(2) was amended providing that of thetotal number of cadre posts, three-fourth shall be manned by promoteeDOfficers and one-fourth by direct recruits.

10. This Court in All India Judges’ Association and others vs.Union of India and others, 2002 (4) SCC 247, on 21.03.2002, afterconsidering Justice Shetty Commission’s report had issued variousdirections regarding recruitment to the Higher Judicial Service in theEcadre of District Judges. The directions were issued by this Courtdirecting that recruitment to the Higher Judicial Service i.e. the cadre ofDistrict Judges shall be from three streams i.e.:

“(1)(a) 50 per cent by promotion from amongst the Civil Judges(Senior Division) on the basis of principle of merit-cum-seniorityand passing a suitability test; F

(b) 25 per cent by promotion strictly on the basis of merit throughlimited competitive examination of Civil Judges (Senior Division)having not less than five years qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitmentfrom amongst the eligible advocates on the basis of the writtenand viva voce test conducted by respective High Courts. “

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11. This Court further directed that appropriate rules shall be framedby the High Courts as early as possible in compliance of the aforesaiddirections. The Punjab Superior Judicial Service (First Amendment) Rules, H

2004 were notified on 15.01.2004 in compliance of judgment of this Courtin All India Judges’ Association case (supra). It appears thatamendment made in Rules on 15.01.2004 did not fully serve the purposenor fully complied with this Court’s directions made in All India Judges’Association(supra), hence, a new set of rules was framed, namely, thePunjab Superior Judicial Service Rules, 2007 which were published inthe Gazette on 03.09.2007. The cadre strength of Punjab Superior JudicialService before 2007 comprised of 88 posts. The High Court on14.10.2004 had made 10 promotions as per unamended Rules on 10vacancies which were existing since prior to amendment of Rules on15.01.2004. On 31.08.2007, total cadre strength was 89, which wasincreased to 107 as on 11.10.2007. The process for recruitment of directrecruits under Rule 7(3)(c) of Rules, 2007 was initiated on 02.02.2008with the publication of advertisement. The promotions under 50% quotaon the basis of merit-cum-seniority was affected on 18.02.2008. Thecompetitive test for limited departmental competitive examination washeld on 18.05.2008 for which process was initiated on 23.04.2008 byissuance of letter via e-mail. Full Court on 25.07.2008 approved therecommendations both for direct recruitment and out of turn promotion,by two separate letters i.e. letter No.628 dated 29.07.2008 therecommendation of direct recruitment and by letter No.629 dated29.07.2008 recommendation for out of turn promotion were sent to theGovernment. The appointment letters in reference to limited competitiveexamination were received earlier than those of direct recruits. On14.08.2008, Governor of Punjab issued Office Order whereby eightOfficers were promoted under out of turn quota, posting with regard towhom was issued on 22.10.2008. The Governor of Punjab had issuedletter for direct recruits on 28.11.2008 with regard to whom posting orderdated 08.12.2008 was issued. Fifteen Officers were promoted under50% quota, eight Officers were promoted under out of turn promotionquota 25%. Twelve direct recruits were appointed vide order dated08.12.2008. The process of recruitment of all the three streams wasthus completed in the same year and Officers of the three streams joinedtheir respective posts in the year 2008 itself although on different dates.The promotees got joining first followed by out of turn promotees andlastly by direct recruits. This Court in All India Judges Associationand Ors. vs. Union of India and Ors., 2010 (15) SCC 170, reducedthe out of turn promotion quota from 25% to 10% which was to takeeffect from 01.01.2011. The High Court initiated the process of fixation ABCDEFG

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Aof inter se seniority of the officers of two streams in the year 2014. Atentative seniority list was prepared and circulated by the Registrar ofthe High Court on 25.09.2014 to the members of Superior Judicial Service.Various objections to the list were filed including the objections by directrecruits as well as officers promoted under the out of turn quota. TheJudges’ Committee submitted a report after considering the objectionsBrecommending that tentative seniority list determined does not requireany modification or alteration and the same may be finalised. The reportof the Committee was accepted by Full Court on 22.12.2015. Anotification dated 24.12.2015 was issued publishing the inter se seniorityof the members of Punjab Superior Judicial Service, promoted, appointed,Cabsorbed in the year 2008. From serial Nos.1 to 14 in the list were thepromotee Officers, from serial Nos.15 and 16 were direct recruits, fromserial Nos.17 to 24 were promotee officers through limited departmentalexamination and from serial Nos.25 to 35 were direct recruits.

12. Writ Petition No.1056 of 2016, was filed by Kanwaljit SinghDBajwa and two others praying for following reliefs:i) To issue an appropriate writ, order or direction especially a writin the nature of certiorari for quashing the impugned SeniorityList dated 24.12.2015 (Annexure P-1) issued by respondent No.2;

ii) To issue a writ of Mandamus or any other suitable writ, orderEor direction, directing the respondent No.1 and 2 to redraw andreframe seniority list by showing the petitioners over and abovethe respondent Nos.3 to 5;

iii) To say the operation of the impugned seniority list 24.12.2015(P-1) and stay the further promotion of the respondents in furtheranceFof the impugned seniority list;

iv) To any other writ, order or direction which this Hon’ble Courtdeem fit and proper keeping in view the peculiar facts andcircumstances of the present case, in the interest of justice;

v) To dispense with the issuance of advance notices to theGrespondents;

vi) Exempt the petitioner from filing the certified & typed copiesfor the Annexures;

vii) Award costs of the writ petition in favour of the petitioner andHagainst the respondents.”

13. Writ Petition No.1209 of 2016 was filed by Jatinder Kaur,direct recruit, challenging the seniority list dated 24.12.2015. SimilarlyWrit Petition No.1057 of 2016 was filed by Jatinder Pal Singh Khurmiand others challenging the seniority list. Writ Petition No.2335 of 2016was filed by Virinder Aggarwal & another, who were out of turnpromotees. They also challenged the seniority list dated 24.12.2015. Theirprayers in the writ petition were to the following effect:

“i) Issue an appropriate writ, order or direction in the natureof certiorari quashing the Tentative Seniority List dated 25.09.2014(AnnexureP-1), the Report dated 11.08.2015 (Annexure P-4) andthe decision of the Full Court dated 22.12.2015 (Annexure P-5)and consequently directing the official respondents to frame afresh seniority list of the Officers belonging to the Punjab SuperiorJudicial Service having been appointed in the year 2008 inaccordance with law and specially by implementing the rosterand for the grant of all consequential benefits flowing therefromviz. continuity of service, antedated promotions, arrears of pay,interest thereon etc.;

ii) issue any other appropriate writ, order or direction, which thisHon’ble Court may deem fit and proper in the peculiar facts andcircumstances of the case;

iii) exempt the petitioners from service of the advance noticesupon the respondents;

iv) exempting the petitioners from filing the certified copies of theannexures;

v) costs of the petition be awarded to the petitioner.”

14. Another Writ Petition No.1983 of 2016 was filed by MunishSingal and two others who were direct recruits challenging seniority listdated 24.12.2015. In the writ petitions affected parties were impleaded.The High Court through Registrar filed written statement in Writ PetitionNo.1056 of 2016. Promotees also filed their written statement in WritPetition No.1056 of 2016. The Division Bench heard the parties. All thewrit petitions were decided by a common judgment. The Division Benchof the High Court in its judgment had noticed the submission of theparties, the report of the Committee. In paragraph 102 of the judgmentthe High Court has observed that the Committee had framed eight issues.

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AThe eight issues framed by the Committee as noticed in paragraph 102are as follows:

“(1) Whether the promotions dated 19.02.2008 made under Rule7(3)(a) are liable to be termed as irregular or ‘ad-hoc’, and if so,to what effect ?

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(2) Whether the posts meant for the ‘out-of-turn promotion’ underRule 7(3)(b) which remained unfilled as no competitiveexamination took place from the year 2004 to 2008, can be includedin ‘promotion quota’ under Rule 7(3)(a), and if not, to which quotasuch posts shall stand diverted ?

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(3) Whether promotions made on 19.2.2008 under Rule 7(3)(a)were in excess to the ‘promotion quota’, and if so, what is theeffect on seniority of such excess promotions?

(4) Whether promoted officers irrespective of Rule 7(3)(a) or (b)are entitled to the ‘weightage’ of their service rendered in PCSD(Judicial Branch) towards seniority in Superior Judicial Service inview of second proviso to Rule 23 of 2007 Rules ?

(5) Whether the direct recruits under Rule 7(3)(c) could be assignedseniority from the date their names were recommended by theHigh Court fro appointment ?

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(6) Whether officers absorbed from Fast Track Courts are liableto be treated as ‘ex gratia appointees’, and if so, what is the effectin law and what would be their ‘deemed date of appointment’?

(7) Whether Roster (Appendix ‘B’) can be read into and appliedto the Rule of seniority ?

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(8) Whether Mr. Arunvir Vashista is entitled to be absorbed asADJ w.e.f. 24.6.2008 or he be placed at Sr.No.1 amongst theout-of-turn promotees in view of para 146(13) of the judgment inBrij Mohan Lal-II ?”

G15. The Division Bench further noticed that in the writ petitionarguments were addressed relating to Issue Nos.1,2,3,5 and 7. The HighCourt held that promotees were in excess, hence, promotions made shallbe treated in excess of quota and they shall take seniority on the datepost is available in their quota. The High Court further held that the dateof recommendation of direct recruits cannot be treated the date for theHpurpose of seniority. On applicability of roster in determination of seniority, the High Court categorically held that roster shall be applicable indetermining the seniority as per Rules, 2007. The vacancies under Rule7(1)(b) shall shift to Rule 7(1)(a) only with effect from 01.01.2011. Thewrit petitions were allowed and operative portion of judgment is containedin paragraph 208 which is to the following effect:

“208. For the reasons mentioned above, the writ petitions areallowed. The impugned seniority list dated 24.12.2015 is set aside.It is held that:

(i) promotion of officers under Rule 7(3)(a) [Regular promotion]of the 2007 Punjab Rules is held to be beyond quota, hence, adhoc. They will not be entitled to get benefit of that service forthe purpose of seniority;

(ii) direct recruits shall not be entitled to be considered asmembers of the cadre from the date of their recommendationby the High Court to the State, for appointment;

(iii) as a consequence, the officers promoted under Rule 7(3)(a)of the 2007 Punjab Rules shall be placed at the bottom of theseniority after the direct recruits.

The seniority list be re-cast accordingly.”

16. Aggrieved by the judgment of the Division Bench of the HighCourt, the High Court has filed Civil Appeal Nos.5518-23 of 2017.

17. Civil Appeals of Kanwaljit Singh Bajwa and others and CivilAppeal of Jatinder Kaur, two Civil Appeals by direct recruits, other CivilAppeals have been filed by promotee Officers whose promotions weretreated to be ad hoc and are directed to be placed at the bottom of theseniority. Out of turn promotees had not challenged the judgment, since,the judgment of the High court was substantially in their favour.

SUBMISSIONS

18. Shri Raju Ramachandran and Shri Ajit Sinha, learned seniorcounsel have appeared for the High Court. Shri Dushyant Dave andShri K.V. Viswanathan, learned senior counsel have appeared forpromotees. Shri P.S. Patwalia, learned senior counsel, has appeared forout of turn promotees. Shri Nidhesh Gupta, learned senior counsel hasappeared for direct recruits. In addition, we have also heard severalcounsel in this batch of appeals appearing for different parties.

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A19. Shri Raju Ramachandran, learned senior counsel appearingfor the High Court submits that seniority list prepared by the High Courtpursuant to the acceptance of Judges’ Committee Report by Full Courtwas in accordance with Rules, 2007 and promotees had first joined thepost and when the promotees joined post of District Judge cadre, neitherdirect recruits nor out of turn promotees were born in the cadre.B

20. Shri Dushyant Dave, learned senior counsel appearing forregular promotees submits that they have completed five years of servicein the year 2000 but neither any Rules were framed nor any examinationwas held. When the quota is to be followed due to the judgment of thisCourt, the promotees cannot be pushed down. No examination was heldCfor effecting promotion under Rule 7(3)(b) hence promotees under Rule7(3)(a) were entitled to have the quota meant for Rule 7(3)(b), continuousofficiation in service is the Rule to be followed for determination ofseniority, Full Court and Administrative Committee has taken correctview of the matter. The officers desirous to compete, ought to haveDapproached the High court praying that examination to be held. TheHigh Court did not hold any suitability test for promotion of the officersunder Rule 7(3)(a) for which promotees cannot be made to suffer. Thechallenge to promotion cannot be allowed to be raised at the time ofdetermination of seniority. The roster provided in Appendix B to theRules, 2007 is only for the purpose of recruitment and has no applicationEfor determination of seniority. Had the competitive examination for outof turn promotees held in February, 2008, promotees would have alsoappeared and would have succeeded in the examination. The appointmenthaving not made in time, quota rule is broken down. The promoteeshaving been promoted on regular basis even if they are in excess ofFquota, their services have to be considered, the appointment of promoteesis not an ad hoc appointment, hence, entire service rendered by promoteesis to be reckoned for seniority.

21. Shri K.V. Viswanathan submits that assumption that promoteesare in excess of their quota is not correct. Rules, 2004 and rosterGintroduced by Rules, 2007 has to be prospective. Computation has to beon 43 vacancies which were existing vacancies and not cadre strengthof 107. In accordance with 43 vacancies the quota for promotees will be22, out of turn promotees will be 10 and direct recruits will be 11. Theroster has no application for determination for seniority. Assuming thatAppendix B applies, it is for quota and since examination has not beenHheld in time the quota has broken down.

22. Shri P.S. Patwalia appearing for out of turn promotees submitsthat whole argument made by the promotees is misconceived. Thediversion of quota under Rule 7(3)(b) to 7(3)(a) shall take place onlywhen test is held and no suitable candidate is available for appointmentunder Rule 7(3)(b). The quota applied to the post in service. The HighCourt has wrongly applied the quota to the vacancies. 25% quota wasintroduced as incentive to improve meritorious officers. On date ofselection, 53 were promotees who were in excess to their quota, 14were filled by direct recruits and there were no vacancies for the regularpromotees. There being no conscious decision of diversion of quota underRule 7(3)(b) to 7(3)(a), no benefit can be claimed by the promotees.The clubbing of vacancies under Rule 7(3)(a) and 7(3)(b) is notpermissible. The out of turn promotees have never challenged the meritpromotion.

23. Shri Patwalia submits that roster is not applicable to theseniority. When the quota is worked out in the cadre strength there is novacancy under Rule 7(3)(a) but 15 promotions have been affected. Theirpromotion is not in accordance with law. Whether they would have takentest or not is realm of conjecture, if we construe Rule 23 of Rules, 2007and Punjab Civil Services (Conditions of Service) Rules, 1994harmoniously the seniority has to be on the strength of length of service.Referring to Haryana Service Rules, Shri Patwalia contends that inHaryana Service Rules roster has been made as part of seniority whereasin Punjab Service Rules it is not so. He submits that the High Court hasmade very equitable decision which needs no interference.

24. Shri Nidhesh Gupta appearing for direct recruits submits thatthis Court in All India Judges’ Association case (supra) has introducedroster in seniority for the purposes to minimise inter se dispute of seniorityin the Higher Judicial Service. The judgment of this Court in All IndiaJudges’ Association case has to be given effect by the High Court.Rules, 2007 has to be interpreted in the light of the judgment of thisCourt in All India Judges’ Association case, which directions resultedin Amendment Rules, 2004 and Rules, 2007. Out of turn promotees intheir writ petitions have prayed for applying the roster for determinationof seniority. The High Court although in the body of judgment held thatroster is applicable in seniority but in operative portion the said conclusionis not reflected which had rendered the judgment of the High Courterroneous. The roster having been accepted as applicable for purposesof seniority, seniority list has to be drawn as per roster. It is submitted AB

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Athat process of recruitment initiated on 2[nd] February, 2008 whereaspromotions and out of turn promotions were held thereafter. It issubmitted that recommendations sent to the Government on the sameday but appointment letter for direct recruits were received later whichwill have no effect on the seniority that is the direct recruits which haveto be made as per the roster. Rule 7(4) read with Appendix B of Rules,B2007 makes it clear that appointment has to be made as per roster whichclearly means that seniority will follow the appointment. In the writ petitionfiled before the High Court, out of turn promotees have categoricallytaken stand that roster is relevant for the purpose of seniority. The out ofturn promotees cannot be allowed to take contrary stand before thisCHon’ble Court. The fortuitous circumstances i.e. when letter ofappointments were issued cannot be basis for seniority. Accepting thecontention that length of service should determine the seniority and notthe roster, shall be defeating the All India Judges Association’s judgmentof this Court as well as Rules, 2007. Rules, 2007 specially Rule 7, Rule 12, Rule 23 read with Appendix B have to be construed in a manner soDto advance the object of Rules and should be interpreted in a manner sothat no prejudice is caused to any member of Service.

25. Learned counsel for the parties have also referred to variousjudgments of this Court which shall be referred to while considering thesubmissions in detail.EDISCUSSION

26. The subordinate judiciary of this Country is back bone of ourjudicial system. It is the subordinate judiciary which comes in contactwith the common man in administration of justice. This Court in AllIndia Judges’ Association (supra) has noticed that the weight on theFjudicial system essentially rests on the subordinate judiciary. In paragraph27 following was observed:

“27....The subordinate judiciary is the foundation of the edificeof the judicial system. It is, therefore, imperative, like any otherfoundation, that it should become as strong as possible. The weightGon the judicial system essentially rests on the subordinatejudiciary.....”

27. The enormous responsibility which is shouldered by subordinatejudiciary demands respectable conditions of service and fulfillment ofthe due aspirations and expectations of the officers manning the judicialH

system. The seniority in service plays a very important and vital role inservice career of an incumbent. Promotions, different perquisites andbenefits follow seniority. It is, thus, very important that due claims ofseniority of members of Superior Judicial Service are recognised andimplemented by all those on whose shoulder the responsibility ofdetermination and implementation lies. This Court by its direction in AllIndia Judges’ Association case (supra) has required uniform procedurefor recruitment and rules for determination of seniority with the objectof achieving a uniformity and a certainty to minimise the inter se senioritydispute as far as possible. Thus, before we proceed to consider therespective submissions of the parties it is pertinent to refer to the judgmentof this Court in All India Judges’ Association case which is foundationof Service Rules, 2007 and throws light on different aspects of higherjudicial service.

28. As noticed above, 1963 Rules contained provisions for fillingthe post of Superior Judicial Service only by two methods, by promotionfrom Punjab Service and by direct recruitment. Initially the total numberof cadre posts two-third were manned by promotion and one-third directrecruits which was changed on 28.1.1991 as three-fourth by promotionsand one-fourth by direct recruits.

29. In different States there were different Rules for recruitmentin Judicial Service. Justice Shetty Commission took up the whole breadthand length of Judicial Service, its service conditions, perks and all aspectsof the matter. On 21.03.1996 pursuant to direction of this Court,Government of India by a Resolution constituted a First JudicialCommission under the Justice Shetty. Justice Shetty Commission hassubmitted its report on 11.11.1999 touching various aspects of JudicialService. State and Union Territories were sent report asking theirresponse. One of the questions which fell for consideration before theJustice Shetty Commission was method of recruitment to the HigherJudicial Service. In All India Judges’ Association case (supra) thisCourt held that it is imperative for the Judicial Officer to keep abreast ofknowledge of law. This Court also held that there has to be certainminimum standard, objectively adjudged, for officers who are to enterthe Higher Judicial Service as Additional District Judges and DistrictJudges. In paragraph 27 of the judgment following was laid down:

“27....It is imperative that they keep abreast of knowledge of lawand the latest pronouncements, and it is for this reason that the AB

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Shetty Commission has recommended the establishment of ajudicial academy which is very necessary. At the same time, weare of the opinion that there has to be certain minimum standards,objectively adjudged, for officers who are to enter the higherjudicial service as Additional District Judges and District Judges.While we agree with the Shetty Commission that the recruitmentto the higher judicial service i.e., the District Judge cadre fromamongst the advocates should be 25 per cent and the process ofrecruitment is to be by a competitive examination, both writtenand viva voce, we are of the opinion that there should be anobjective method of testing the suitability of the subordinate judicialofficers for promotion to the higher judicial service. Furthermore,there should also be an incentive amongst the relatively junior andother officers to improve and to compete with each other so as toexcel and get quicker promotion. In this way, we expect that thecaliber of the members of the higher judicial service will furtherimprove. In order to achieve this, while the ratio of 75 per centappointment by promotion and 25 per cent by direct recruitmentto the higher judicial service is maintained, we are, however, ofthe opinion that there should be two methods as far as appointmentby promotion is concerned : 50 per cent of the total post in thehigher judicial services must be filled by promotion on the basis ofprinciple of merit-cum-seniority. For this purpose, the High Courtsshould devise and evolve a test in order to ascertain and examinethe legal knowledge of those candidates and to assess theircontinued efficiency with adequate knowledge of case law. Theremaining 25 per cent of the posts in the service shall be filled bypromotion strictly on the basis of merit through the limiteddepartmental competitive examination for which the qualifyingservice as a Civil Judge (senior division) should be not less thanfive years. The High Courts will have to frame a rule in thisregard. ”

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30. In paragraph 28 directions were issued by this Court to theGfollowing effect:

“28. As a result of the aforesaid, to recapitulate, we direct thatrecruitment to the High Judicial Service i.e. the cadre of DistrictJudges will be:

(1) (a) 50 per cent by promotion from amongst the Civil Judges(Senior Division) on the basis of principle of merit-cum-seniorityand passing a suitability test;

(b) 25 per cent by promotion strictly on the basis of merit throughlimited competitive examination of Civil Judges (Senior Division)having not less than five years qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitmentfrom amongst the eligible advocates on the basis of the writtenand viva voce test conducted by respective High Courts.

(2) Appropriate rules shall be framed as above by the High Courtsas early as possible.”

31. This Court has noticed the serious discontentment regardinginter se seniority of members of Higher Judicial Service. This Courtobserved that the least amount of litigation in the country is there wherequota system in recruitment exists and where a roster system is followed.Following was laid down in paragraph 29:

“29. Experience has shown that there has been a constantdiscontentment amongst the members of the higher judicial servicein regard to their seniority in service. For over three decades,large number of cases have been instituted in order to decide therelative seniority from the officers recruited from the two differentsources, namely, promotees and direct recruits. As a result of thedecision today, there will, in a way, be three ways of recruitmentto higher judicial service. The quota for promotion which we haveprescribed is 50 percent by following the principle “merit-cum-seniority” 25 percent strictly on merit by limited departmentalcompetitive examination and 25 per cent by direct recruitment.Experience has also shown that the least amount of litigation inthe country, where quota system in recruitment exists, in so far asseniority is concerned, is where a roster system is followed. Forexample, there is, as per the rules of the Central Government, a40-point roster which has been prescribed which deals with thequotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever,there has been a litigation amongst the members of the serviceafter their recruitment as per the quotas, the seniority is fixed bythe roster points and irrespective of the fact as to when a person AB

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is recruited. When roster system is followed, there is no questionof any dispute arising. The 40-point roster has been consideredand approved by this Court in R.K. Sabharwal and Ors. v. Stateof Punjab[1995]2 SCC 745. One of the methods of avoiding anylitigation and bringing about certainty in this regard is by specifyingquotas in relation to posts and not in relation to the vacancies.This is the basic principle on the basis of which the 40-point rosterworks. We direct the High Courts to suitably amend andpromulgate seniority rules on the basis of the roster principle asapproved by this Court in R.K. Sabharwal’s case (supra) as earlyas possible. We hope that as a result thereof, there would be nofurther dispute in the fixation of seniority. It is obvious that thissystem can only apply prospectively except where under therelevant rules seniority is to be determined on the basis of quotaand rotational system. The existing relative seniority of themembers of the higher judicial service has to be protected but theroster has to be evolved for the future. Appropriate rules andmethods will be adopted by the High Courts and approved by theStates, wherever necessary by 31-3-2003. “

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32. In pursuance of judgment of this Court dated 21.03.2002 Rules,1963 were amended in 2004 by Punjab Superior Judicial Service (FirstAmendment) Rules, 2004 where for existing Rules following Rules haveEbeen substituted:

“8. Recruitment to Service.- Recruitments to the Service shall bemade in the following manner:-

(a) fifty per cent by promotion from amongst the Civil Judges(Senior Division) on the basis of merit-cum-seniority andpassing a suitability test; F

(b) twenty five per cent by promotion strictly on the basis ofmerit through limited departmental competitive examination ofCivil Judges (Senior Division) having not less than five yearsqualifying service; G

(c) twenty five per cent by direct recruitment from amongstthe eligible Advocates by holding a test consisting of writtenexamination of 200 marks and viva voce test of 50 marks tobe conducted by the High Court”.

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33. Punjab Superior Judicial Service Rules, 2007 were framedand notified in Gazette on 3[rd] September, 2007. Rule 7 dealt with methodof appointment which is to the following effect:

“7. Method of appointment. — (1) The appointment to theService by promotion shall be made from amongst the membersof the Punjab Civil Service(Judicial Branch), by the Governor onthe recommendations of the High Court.

(2) The direct appointment to the Service shall be made by theGovernor on the recommendations of the High Court from amongstthe eligible advocates on the basis of the written test and viva-voce conducted by the High Court.

(3) Appointment to the Service shall be made in the followingmanner :- (a) fifty per cent by promotion from amongst the Civil Judges(Senior Division), on the basis of merit-cum-seniority andpassing of a suitability test ; (b) twenty-five per cent by promotion on the basis of meritthrough departmental competitive examination of Civil Judges(Senior Division) having not less than five years qualifyingService as Civil Judge (Senior Division); and

(c) twenty-five per cent of the posts shall be filled by directappointment from amongst the eligible advocates on the basisof the written test and viva-voce, as conducted by the HighCourt.

Explanation. — For the purposes of clauses (a) and (b), it isclarified that the qualifying service for promotion should be eitheron the post of Civil Judge(Senior Division) or Chief JudicialMagistrate or Additional Civil Judge(Senior Division) separatelyor by clubbing the service on any of the said posts.

(4) These posts shall be filled in accordance with the Rosterattached as Appendix-B.”

34. Rule 12 dealt with seniority in the following manner:

“12.Seniority.—(1)The original seniority of the promoteeofficers promoted from amongst the members of the Punjab CivilServices (Judicial Branch), shall not be disturbed.

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A(2) The inter se seniority of the out-of-turn promoted officersshall be in the order of merit as is determined by the High Court.

(3) The inter se seniority of the direct appointees shall be on thebasis of merit as is determined by the High Court :

Provided further that an officer, who is promoted on ad hoc basisBon a vacant post, belonging to the out-of-turn promotee officersor direct appointees, as the case may be, shall not have any righton the said post and such officer shall not be allowed to claimaddition of the period of such ad hoc service towards the Service for the purpose of seniority.”C35. Rule 23 dealt with application of the Punjab Civil Services(General and Common Conditions of Service) Rules, 1994 in respect ofthe matters, which are not specifically provided in these rules. Rule 23 isas follows:

“23. Application of the Punjab Civil Services (General and CommonDConditions of Service Rules, 1994. — (1) In respect of the matters,which are not specifically provided in these rules, the members ofthe Service shall be governed by the Punjab Civil Services (Generaland Common Conditions of Service) Rules, 1994, as amendedfrom time to time:

EProvided that the said rules of 1994 shall not affect the provisionsas contained in rules 5, 7, 12, 13, 19, 20 and 21 of these rules :

Provided further that the conditions of service as determined bythe National Judicial Pay Commission shall have an over ridingeffect.

F(2) The Punjab Civil Services (General and Commons Conditionsof Service) Rules, 1994, at present, in force are contained inAppendix ‘E’.”

36. Appendix ‘B’ provided for roster as referred to in Rules, 2007.G37. As noticed above in the present matter recruitments for all thethree streams as enumerated in Rule 7(3)(a), (b) and (c) were completedin 2008 and all incumbent also joined their post in 2008. The dispute isregarding inter se seniority of above three streams. From the submissionsof learned counsel for the parties and pleadings on record following aremain issues which have arisen for consideration in this batch of appeals:H

(1) Whether promotees promoted under Rule 7(3)(a), 15 innumbers who were promoted and joined their post in February,2008 were: (a) in excess to their quota, (b) their appointment hasto be treated as ad hoc appointment, (c) they have to be placed atthe bottom of seniority.

(2) Whether appointment to members of Superior JudicialService belonging to all three streams have to be made on thebasis of roster as per Rule 7(4) read with Appendix B of theRules, 2007.

(3) Whether for determination of inter se seniority belongingto all the three streams has to be based on the basis of roster inpursuance of Rule 7 read with Appendix B.

(4) How the inter se seniority of Fast Track Judges is to bedetermined who were earlier working as Fast Track Judges andhave been absorbed and taken in regular cadre in different streamunder Rule 7(3)(a), (b) and (c).

(5) Reliefs, if any.

Issue No.1:

Whether promotees are in excess of their quota?

38. The High Court in its impugned judgment has noticed the cadrestrength of Punjab Superior Judicial Service as 107 on 10.11.2007. ThePromotion quota under Rule 7(3)(a) was determined as 53 and actualworking having been found as 58. High Court noticed that 05 officerswere working in excess. 25 per cent quota under Rule 7(3)(b) wasdetermined as 27, which was found to be vacant. Direct recruits werealso determined as 21 excluding the officers in position. 14 posts wereadvertised for direct recruitment. One of the issues raised is as to whetherfor determination of the quota cadre strength has to be looked into orquota has to be determined on the basis of vacancies by bifurcatingvacancies as per respective quota. The issue is no more res integra. InAll India Judges Case (supra), this Court in Para 29 has held “One ofthe methods of avoiding any litigation and bringing about certainty in thisregard is by specifying quotas in relation to posts and not in relation tothe vacancies”. A Three Judge Bench of this Court in Srikant Roy andOthers Vs. State of Jharkhand and Others, (2017) 1 SCC 457while determining question of number of vacancies in respect of limited A

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Acompetitive examination of Jharkhand as in Jharkhand Superior JudicialService has held that “cadre strength is always measured by the numberof posts comprising the cadre and the percentage of quota has to beworked out in relation to number of posts which form the cadre and hasno relevance to the vacancy that would occur. Following was laid downin Paragraph 24:-B

“24. The High Court has overlooked the distinction between “post”and “vacancy”. If the requisite posts were already exhausted bythe direct recruits against the earmarked quota for directrecruitment, merely because some vacancies occur, it would notbe open to the aspiring candidates against the direct recruit quotaCto challenge the selection process commenced for the in-servicejudicial officers by promotion through limited competitiveexamination. The cadre strength is always measured by thenumber of posts comprising the cadre. The right to be consideredfor appointment can only be claimed in respect of a post in theDgiven cadre. The percentage of quota has to be worked out inrelation to number of posts which form the cadre and has norelevance to the vacancy that would occur…………………………….”

39. The High Court Committee determined the vacancies for allEthe three streams for 2008 recruitment on the basis of cadre strength of107. Working strength before 2008 selection was 58 promotees, 0 outof turn promotion and 6 direct recruits. Thus, 64 officers were in positionand there were 43 vacancies for 2008 recruitment. High Court determinedvacancies for Rule 7(3)(a) as 15, for Rule 7(3)(b) as 8 and 14 for directrecruitment. In the impugned judgment, the High Court has taken aFview that since 50 per cent of 107 cadre strength comes as 53, 5 promoteeofficers were in excess, since working strength before 2008 selectionwas 58. The above calculation has been arrived by determining 50 percent of 107. Whether any fallacy is committed by the High Court inabove determination is to be examined. On face of it, the determinationGon mathematical calculation, i.e. taking 50 per cent of cadre strength forpromotees come to 53. Thus, whether 5 officers, who were found inexcess were in excess of their quota is one part of question and theother part of question would be that what number of vacancies have tobe earmarked for out of turn promotees under Rule 7(3)(b). We havealready noticed that from 28.01.1991, Rule 8 was amended providingHfor three-fourth of the cadre to be filled up by promotee officers and one-fourth by direct recruits. The above position continues till Ruleswere amended in 2004 under the direction of this court in All IndiaJudges case (supra).

40. For the first time by amending Punjab Superior Judicial ServiceRules on 15.01.2004, the promotion quota under Rule 8 was fixed as 50per cent, 25 per cent for limited departmental competitive examinationand as far as for direct recruits, earlier 25 per cent was maintained.Thus, the issue was only with regard to quota for promotion on the basisof merit-cum-seniority and of out of turn promotees. This Court in AllIndia Judges case (supra) in Para 29 has clearly directed that thesystem which was directed to be put in place by this Court vide Paras27, 28 and 29 was to apply prospectively. This Court had directed thatappropriate rules and methods will be adopted by the High Courts andapproved by the States, wherever necessary by 31st March, 2003. Upto2004, the quota for promotion on the basis of merit-cum-seniority was75 per cent, the cadre strength as on 13.09.2007 was 89, which wasincreased on 10.11.2007 as 107. After the amendment of Rules on15.01.2004, promotion of 10 officers were made. It is mentioned in theCivil Appeal of the High Court that cadre strength of Punjab SuperiorJudicial Service before 2004 was 88. Thus, in the year 2004, when thecadre strength was 88, 75 per cent posts were to be manned by promoteesunder merit-cum-seniority, i.e. 66 were to be manned by promoteeofficers. The judgment of this Court in All India Judges case (supra)being prospective, the ratio of officers as existing before unamendedrules can not be adversely affected. A promotee before the amendmentof Rules, 2004, who was well within their quota, suddenly cannot go outof their quota and become an excess merely on the strength of amendmentof Rules, which are prospective in nature. For determining the quota,the cadre strength, which existed prior to amended rules and subsequentto the amended rules have to be treated differently. Promotees quota,which was 75 per cent prior to 2004 Rules makes 66 posts in their quotaas before amendment dated 15.01.2004, when the cadre strength hasbeen increased from 89 to 107, 18 posts have to be further added to thecadre. This increase having been made after the amendment of theRules dated 15.01.2004, on this cadre strength, the Rules as amendedwill be applied for bifurcation of quota. On 18 newly created posts, 50percent comes to 9, for out of turn promotees 4.5 and for direct recruits4.5. Thus promotee officers on or after the increase of the cadre couldhave been 66+9 i.e. 75. In the appeal filed by the High Court, it is also A

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Aindicated that 10 promotees were affected in October, 2004 under 50per cent quota of merit-cum-seniority. The rules providing 25 per centquota for out of turn promotion being in place, at-least few vacanciesought to have been given to the out of turn promotees. There is nodetails of any further promotion or appointment made after 2004 to 2008.The out of turn promotion quota having been culled out only as per theBjudgment of this Court in All India Judges case (supra), which was tobe required in the Rules by the State, the said quota will come intoexistence only prospectively. An out of turn promotee cannot claim thatthey should be given 25 per cent posts of the cadre strength right fromday one. It is true that quota has to be determined on the basis of cadreCstrength but determination of the cadre strength has to be made takinginto consideration that rules amended w.e.f. 15.01.2004 were prospectivein nature and cannot impair or affect any right, which accrued to themember of judicial service prior to the amendment of the Rules.

41. We, thus, do not find any patent error in the calculation of theDvacancy by the High court in the administrative side and consequentlythe recruitment made from three different streams was well within suchdetermination and cannot be faulted. The promotion of officers underRule 7(3)(a) was in accordance with the rules and there is no questionof treating the promotion to be adhoc promotion nor they can be pushedto the bottom of seniority. The new set of rules, the new scheme ofErecruitment, new rules of determination of seniority as brought in placeby 2007 Rules, its implementation has to be done with care so as not todefeat any existing right. Mechanical application of the rules, whichmay result to unjust result has to be avoided to advance the scheme ofthe new rules and the object which were delineated by this Court in AllFIndia Judges case (supra). While allocating posts to be filled bydifferent streams, cadre strength, officers of particular stream in position,quota of each stream has to be kept in mind. The vacancies existing forrecruitment in particular year has not to be mechanically divided at theratio of 50, 25 and 25 per cent.GIssue Nos. 2 and 3:

Whether appointment to members of Superior JudicialService belonging to all three streams have to be made onthe basis of roster as per Rule 7(4) read with Appendix Bof the Rules, 2007?and H

Whether for determination of inter se seniority belongingto all the three streams has to be based on the basis ofroster in pursuance of Rule 7 read with Appendix B?

42. One of the major area of difference in submissions advancedby learned counsel appearing for the promotees, direct recruits and outof turn promotees is regarding applicability of roster for determination ofseniority. In so far the stand of out of turn promotees is concerned,although before the High Court in its pleadings and submissions, out ofturn promotees prayed for implementation of roster in seniority but inthis Court they have taken a somersault and are now contending that theroster is not applicable in seniority.

43. Rota and quota in service jurisprudence is well known concept,which finds reflected in large number of service rules of differentservices. Quota between promotees and directs were throughout presentin 1963 Rules, which has been further amplified in 2007 Rules. ThisCourt in All India Judges case (supra) has highlighted the importanceand the usefulness of roster system. In Para 29, it was held:

“Experience has also shown that the least amount of litigation inthe country, where quota system in recruitment exists, insofar asseniority is concerned, is where a roster system is followed”. Forexample, there is, as per the rules of the Central Government, a40-point roster which has been prescribed which deals with thequotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever,there has been a litigation amongst the members of the serviceafter their recruitment as per the quotas, the seniority is fixed bythe roster points and irrespective of the fact as to when a personis recruited. When roster system is followed, there is no questionof any dispute arising. The 40-point roster has been consideredand approved by this Court in R.K. Sabharwal v. State of Punjab,(1995) 2 SCC 745.”

44. The Rules, 2007 has been amended by direction of this Courtin in All India Judges case (supra). Now, coming back to the Rules,2007, there are two rules, which need to be interpreted to find out realpurpose and intent of 2007 Rules. Rule 7 as noted above provides formethod of recruitment, sub-rule(3) provides for appointment to the serviceshall be made 50 per cent by promotion on the basis of merit-cum-seniority,25 per cent by promotion on the basis of merit through departmental A

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Acompetitive examination of Civil Judges (Senior Division) and 25 percentof posts shall be filled by direct recruitment. Sub-clause (4), which isrelevant provides “these posts shall be filled in accordance with the Rosterattached as Appendix-B”. Part of Appendix-B, which is relevant forthe present case is as follows (only part is quoted):- B“APPENDIX ‘B’

[See sub-rule(4) of rule 7]

ROSTER

ROSTER INDICATING THE MODE OF RECRUITMENT

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Serial SourceRuleNo.1.Officer Promoted on the basis of 7(3)(a)seniority-cum-suitability2.Officer promoted on the basis of 7(3)(a)Dseniority-cum-suitability3.Direct Recruit from the Bar7(3)(c)4.Officer promoted through limited 7(3)(b)competitive examination5.Officer promoted on the basis of 7(3)(a)Eseniority-cum-suitabilityXxxxxxxxxxxxxxx89.Officer promoted on the basis of 7(3)(a)seniority-cum-suitability.

45. Sub-rule (4) uses the phrase “the posts shall be filled”. TheFword “filled” means appointment on the post. The submission of thelearned counsel for the promotees is that sub-rule(4) read with Appendix-B at best can be read that roster is to be followed in recruitment onlyand not for determination of seniority. When an order for filling up of apost is provided in Appendix-B, the purpose and object is that officers ofGdifferent streams should hold the posts in the sequence, which is providedin Appendix-B. The recruitment to the different streams consists ofdifferent and separate processes, few processes may take lesser timelike effecting promotion under Rule 7(3)(a) whereas few processes likedirect recruitment under 7(3)(c) takes greater time. For direct recruits,which is an All India Competitive Written Test, large number of candidates H

participate and evaluation of answer sheets and holding viva-voce takessufficient time. The object as incapsulated by this Court in All IndiaJudges case (supra) in carrying recruitment by roster was with theobject of eliminating disputes pertaining to determination of seniority.The Rule 7(4) and Appendix-B has to be read in a manner so as toadvance the object of the Rules. When this court directed for adoptingroster system for determining seniority, Rules, 2007 cannot be interpretedin a manner which may violate the direction of this Court. Article 141 ofthe Constitution provides that law declared by the Supreme Court shallbe binding on all courts and authorities. In this reference, it is useful torefer to a Three Judge Bench judgment of this Court in O.P. Singla andAnother Vs. Union of India and Others, (1984) 4 SCC 450, thisCourt had occasion to consider the issue of seniority and promotion incontext of temporary promotee, direct recruits quota rules in respect ofDelhi Higher Judicial Service Rules, 1970. This Court in Para 17 heldthat when a Rule or Section is part of integral scheme, it should not beconsidered or construed in isolation. In paragraph 17, following hasbeen held:- “17……………However, it is well recognised that, when a ruleor a section is a part of an integral scheme, it should not beconsidered or construed in isolation. One must have regard to thescheme of the fasciculus of the relevant rules or sections in orderto determine the true meaning of any one or more of them. Anisolated consideration of a provision leads to the risk of someother inter-related provision becoming otiose or devoid of meaning.That makes it necessary to call attention to the very next rule,namely, Rule 8. It provides by clause 2 that:

“The seniority of direct recruits vis-a-vis promotees shall bedetermined in the order of rotation of vacancies between thedirect recruits and promotees based on the quotas ofvacancies reserved for both categories by Rule 7 providedthat the first available vacancy will be filled by a direct recruitand the next two vacancies by promotees and so on.”

(emphasis supplied)

This provision leaves no doubt that the overall scheme of the rulesand the true intendment of the proviso to Rule 7 is that one-thirdof the substantive posts in the Service must be reserved for direct AB

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Arecruits. Otherwise, there would neither be any occasion nor anyjustification for rotating vacancies between direct recruits andpromotees. Rule 8(2), which deals with fixation of seniorityamongst the members of the Service, provides, as it were, a keyto the interpretation of the proviso to Rule 7 by saying that theproviso prescribes “quotas” and reserves vacancies for bothBcategories. The language of the proviso to Rule 7 is certainly notfelicitous and is unconventional if its intention was to prescribe aquota for direct recruits. But the proviso, as I have stated earlier,must be read along with Rule 8(2) since the two provisions areinterrelated. Their combined reading yields but one result, that theCproviso prescribes a quota of one-third for direct recruits.”

46. One submission, which was pressed by learned counsel forthe promotees as well as by learned counsel appearing for the out ofturn promotees was that in 2007 itself, Judicial Service Rules have beenframed for Haryana namely, Haryana Superior Judicial Service Rules,D2007, in which Rules, it was expressly provided by Rule 10 of the Rulesthat inter se seniority of the persons recruited to the service under clause(a), (b) and (c) of Rule 6 shall take his position in the seniority list asshown in roster annexed. Rule 10 of the Haryana Rules is as follows:- “10. Seniority.E

(i) (a) The inter se seniority of the members of the Haryana CivilService (Judicial Branch) promoted in the same batch underrule 6(a) shall be the same as in the Haryana Civil Service(Judicial Branch).

(b) Inter se seniority of the member of the Haryana SuperiorFJudicial Service promoted under rule 6(b) shall be in theorder of merit determined in the selection process.

(c) Inter se seniority of the direct recruits to the Service underrule 6(c) shall be on the basis of merit determined by theSelection Committee of the High Court at the time of theGrecruitment.

(d) Inter se seniority position of the officers appointed in theService under rule 6 shall be as given in roster annexed.

(ii) A person recruited to the Service under clauses (a), (b) and

(c) of rule 6 shall take his position in the seniority list as shown in H

the roster annexed irrespective of the date on which he actuallyjoins the Service.

(iii) A promoted officer, who is promoted on an ad hoc basis in thevacancy/post against a roster point earmarked for an officerbelonging to categories specified in clauses (b) and (c) of rule 6,shall not have any right to the post. He shall not be entitled to addperiod of his ad hoc service to regular service for the purpose ofseniority:

Provided that the existing rules shall continue to govern thematters of seniority of the existing members of the Service.”

47. It has been pointed out that both Judicial Service Rules, 2007of Haryana and Punjab Superior Judicial Rules, 2007 were sent by theHigh Court in the similar fashion, where Punjab Rules have been publishedby the Government by changing the proposed rules pertaining to senioritywithout consultation of the High Court. The High Court in its impugnedjudgment in Para 181 after noticing the Haryana Rules, 6, 7, 8 and 9 hasmade following observations:- “Similar rules were recommended by the High Court to the Stateof Punjab for notification but changed at its own level withoutconsultation with High Court.”

48. In the present case, we need not enter into the issue as towhat was proposed and what changes were made by Government whilenotifying the rules. The above observation in the impugned judgmentclearly indicate that Punjab & Haryana High Court has contemplated toimplement the direction of this Court in All India Judges case (supra)and it was clear to the High Court that the appointment of all the threestreams as per roster is to also determine the seniority as per the roster.In any view of the matter, there is nothing in the Rules – Punjab SuperiorJudicial Service Rules, 2007, which may indicate that there is any provisioncontrary to determination of seniority by roster. Mere fact that saidrules are not explicit or makes it expressly clear that seniority is to bedetermined on the basis of roster is not conclusive. The purpose andobject of the Rule 7 of Rules, 2007 read with Appendix-B is clear thatthe roster is to be followed for determination of the seniority. The HighCourt in the impugned judgment has considered the issue as to whetherroster is applicable in determination of seniority or not. Issue No. 7 aswas noticed above, which was framed by the Committee and was also AB

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Aadjudicated by the High Court was “Whether roster (Appendix-B) canbe read into and applied to the rule of seniority”. After elaboratediscussions, High Court in Para 180 concluded:- “Hence, this Court is of the opinion that for determination of interse seniority of officers recruited from three different sources,Broster as directed by Hon’ble the Supreme Court shall be applicable.The same forms part of the Rules as Appendix ‘B’ but mentioningroster for recruitment, however, shall be applicable even fordetermination of seniority.”

49. We endorse the above view of the High Court that roster shallCbe applicable for determination of seniority.

50. At this juncture, one of the submissions, which has beenemphatically pressed by the learned counsel for the promotees is thatfor determination of seniority, continuous length of service isdeterminative. The direct recruits and out of turn promotees, who wereDnot even born in the cadre when promotees were promoted, they haveto take seniority after the promotees. In this reference, it is useful torefer to a judgment of this Court in Union of India and Others Vs.N.R. Parmar and Others, (2012) 13 SCC 340, the issue in the saidcase was also an issue of determination of seniority between directrecruits vis-à-vis promotees and quota and rota principles. This CourtEhad occasion to consider the office memorandum issued by theGovernment dated 22.12.1959. Noticing Para 6 of above officememorandum following was stated in Para 23 of the judgment:- “23. The General Principles for determining seniority in the CentralServices are shown to have been laid down in an annexure to anFOffice Memorandum dated 22-12-1959 issued by the Governmentof India, Ministry of Home Affairs (hereinafter referred to as“the OM dated 22-12-1959”). Para 6 of the annexure, referred toabove, laid down the manner of determining inter se senioritybetween direct recruits and promotees. Para 6 is being extractedhereunder:G

“6. Relative seniority of direct recruits and promotees.—The relative seniority of direct recruits and of promotees shallbe determined according to the rotation of vacancies betweendirect recruits and promotees which shall be based on the quotas H

of vacancies reserved for direct recruitment and promotionrespectively in the Department Rules.”

It is apparent from the above extract of the OM dated 22-12-1959, that the “quota” between promotees and direct recruits wasto be read into the seniority rule. The OM also provided for adefinite rotation of seniority points (“rota”) between promoteesand direct recruits. The rotation provided for was founded on theconcept of rotation of quotas between promotees and directrecruits. It is therefore apparent, that under the OM dated 22-12-1959 inter se seniority between the promotees and direct recruitswas based on the “quota” and “rota” principle. The same hasbeen meaningfully described as “rotation of quotas” in some ofthese instruments.”

51. There was further office memorandum on 07.02.1986 to takecare of situation where it was decided that in future, while the principleof rotation of quotas will still be followed for determining the inter-seseniority of direct recruits and promotees, the present practice of keepingvacant slots for being filled up by direct recruits of later years, therebygiving them unintended seniority over promotees who were already inposition, would be dispensed with. This Court noticed office memorandumdated 07.02.1986 and observed that “when direct recruits or promoteesbecome available through later examinations or selections”, it clearlymean that the situation contemplated is one where, there has been anearlier examination or selection, and is then followed by a “later”examination or selection.

52. In the above context, this court laid down following in Paragraph31.2 that “it is not necessary, that the direct recruits of a particularrecruitment year, should join within the recruitment year itself”. It washeld that date of joining would not be a relevant factor for determiningseniority of direct recruits. In paragraph 31.2 and 34.1 following hasbeen laid down:- “31.2. It is not necessary, that the direct recruits for vacancies ofa particular recruitment year, should join within the recruitmentyear (during which the vacancies had arisen) itself. As such, thedate of joining would not be a relevant factor for determiningseniority of direct recruits. It would suffice if action has beeninitiated for direct recruit vacancies, within the recruitment year ABC

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Ain which the vacancies had become available. This is so, becausedelay in administrative action, it was felt, could not deprive anindividual of his due seniority. As such, initiation of action forrecruitment within the recruitment year would be sufficient toassign seniority to the appointees concerned in terms of the“rotation of quotas” principle, so as to arrange them with otherBappointees (from the alternative source), for vacancies of the samerecruitment year.

34.1. If the process of recruitment has been initiated during therecruitment year (in which the vacancies have arisen) itself, evenif the examination for the said recruitment is held in a subsequentCyear, and the result is declared in a year later (than the one inwhich the examination was held), and the selected candidatesjoined in a further later year (than the one in which the result wasdeclared), the selected candidates will be entitled to be assignedseniority, with reference to the recruitment year (in which theDrequisition of vacancies was made). The logic and reasoning forthe aforesaid conclusion (expressed in the ON dated 2-2-2000)is, if the process of direct recruitment is initiated in the recruitmentyear itself, the selected candidate(s) cannot be blamed for theadministrative delay, in completing the process of selection.”

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E53. In the present case, process for all the three streams wascompleted in the year 2008 and all the officers of three streams hadjoined in the same year. The submission that quota rota rule was brokenor seniority will be affected because of joining of one category of officersearlier cannot be accepted. It is also relevant to notice that purpose ofstatutory rules and laying down a procedure for recruitment was to achieveFthe certainty. Officers belonging to different streams have to be confidantthat they shall be recruited under their quota and get seniority as pertheir quota and roster. In event, the seniority is to be fixed with date ofjoining of particular stream, it will lead to uncertainty and making senioritydepending on administrative authorities, which is neither in the interestGof service nor serve the cause of justice. We, thus, conclude that rosteris fully applicable for determination of seniority. Officers of differentstreams selected in a particular year even though they were allowed tojoin the post on different dates shall not affect their inter se seniority,which is to be decided on the basis of roster.

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The position of Fast Track Court Judges including in theSelect list of all three streams in 2008 recruitment.

54. The promotion order issued by the Government of Punjab onthe recommendations of the High Court promoting fifteen officers under50% quota under Rule 7(3)(a) also contained six officers who wereworking on ad-hoc basis in Fast Track Courts. Similarly, appointmentorder promoting eight judicial officers under quota for out of turnpromotion included one officer Shri Arunvir Vashista, who was workingon ad-hoc basis in Fast Track Court. The tentative seniority list indicatesthat two officers namely Parminder Pal Singh (at Sl.No.15) and SukhdevSingh (Sl.No.16) were shown as direct recruits having been absorbedfrom Fast Track Courts against the quota of direct recruits under Rule7(3)(c). Parminder Pal Singh and Sukhdev Singh were recruited as FastTrack Court Judges directly from the Bar. In the tentative seniority list,the name of promotee officers who had earlier been working as FastTrack Court Judge have been shown as per their seniority in lower cadre.

55. The officers, under out of turn promotions quota, whose nameswere mentioned at Serial No.17 to 24 under Rule 7(3)(b) were arrangedaccording to their merit as disclosed in limited Departmental CompetitiveExamination. Two Fast Track Court Judges who were included againstavailable posts in direct recruit quota were shown above the directrecruits. In so far inter-se-seniority amongst the promotee officerspromoted under Rule 7(3)(a) is concerned, there is no issue. All havebeen arranged according to their seniority as required by Rule 12(1).After the circulation of tentative seniority list dated 25.09.2014, objectionswere filed by direct recruits questioning the placement of Parminder PalSingh and Sukhdev Singh at Serial No.15 and 16 under the direct quotaabove other direct recruits.

56. With regard to Parminder Pal Singh and Sukhdev Singh, itwas stated by direct recruits that their appointment under Rule 7(3)(c)was not permissible since they were not advocates at the time of selectionof Direct recruits and they were not selected on the basis of the writtentest and viva-voice under which all direct recruit candidates weresubjected. It was submitted that absorption of these officers is an exgratia absorption in service and as such they cannot be treated senior tothe direct recruits.

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A57. One of the out of turn promotee namely, Arunvir Vashista hadstaked his claim before the committee. It was submitted that he beingseniormost officer among the out of turn selected candidates and althoughhe was placed at serial No.6 as per his merit but he being the onlyofficer who already stood promoted as presiding officer of the Fast TrackCourt on ad-hoc basis, he was entitled to be absorbed and remainedBpromoted to the Superior Judicial Service. Thus, his appointment on regularbasis will relate back to his appointment in Fast Track Court in the service.

58. With regard to absorption of Fast Track Court Judges, thisCourt had elaborately considered the issue in Brij Mohan Lal versusUnion of India and others, (2012) 6 SCC 502. Fast Track CourtsCJudges who were working as direct recruits from the Bar as well asthose who were ad-hoc promotees as Fast Track Court Judges hadstaked their claim for being absorbed on regular cadre. After consideringthe respective submission, this court in paragraph 207 has issued variousdirections. Paragraph 207.9 relates to Fast Track Court Judges whoDwere appointed by way of direct appointment, which is to the followingeffect: - “207.9. All the persons who have been appointed by wayof direct recruitment from the Bar as Judges to preside overFTCs under the FTC Scheme shall be entitled to be appointedEto the regular cadre of the Higher Judicial Services of therespective States only in the following manner:

(a) The direct recruits to FTCs who opt for regularizationshall take a written examination to be conducted by the HighCourts of the respective States for determining their suitabilityFfor absorption in the regular cadre of Additional DistrictJudges.

(b) Thereafter, they shall be subjected to an interview by aSelection Committee consisting of the Chief Justice and foursenior most Judges of that High Court.

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(c) There shall be 150 marks for the written examinationand 100 marks for the interview. The qualifying marks shallbe 40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shall beheld in accordance with the relevant Rules enacted by theStates for direct appointment to Higher Judicial Services.

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(d) Each of the appointees shall be entitled to one markper year of service in the FTCs, which shall form part of theinterview marks.

(e) Needless to point out that this examination and interviewshould be conducted by the respective High Courts keepingin mind that all these applicants have put in a number ofyears as FTC Judges and have served the country byadministering justice in accordance with law. The writtenexamination and interview module, should, thus, be framedkeeping in mind the peculiar facts and circumstances of thesecases.

(f) The candidates who qualify the written examinationand obtain consolidated percentage as aforeindicated shallbe appointed to the post of Additional District Judge in theregular cadre of the State.

(g) If, for any reason, vacancies are not available in theregular cadre, we hereby direct the State Governments tocreate such additional vacancies as may be necessarykeeping in view the number of candidates selected.

(h) All sitting and/or former FTC Judges who were directlyappointed from the Bar and are desirous of taking theexamination and interview for regular appointment shall begiven age relaxation. No application shall be rejected on theground of age of the applicant being in excess of theprescribed age.”

59. With regard to candidates from any state who were promotedas Fast Track Court Judges from the post of Civil Judge, Senior division,following direction were issued in paragraph 207.13:

“207.13. The candidates from any State, who were promotedas FTC Judges from the post of Civil Judge, Senior Divisionhaving requisite experience in service, shall be entitled to beabsorbed and remain promoted to the Higher Judicial Servicesof that State subject to:

(a) Such promotion, when effected against the 25% quotafor out-of-turn promotion on merit, in accordance with thejudgment of this Court in All India Judges’ Assn. (3)[12], by A

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taking and being selected through the requisite examination,as contemplated for out-of-turn promotion.

(b) If the appointee has the requisite seniority and isentitled to promotion against 25% quota for promotion byseniority-cum-merit, he shall be promoted on his own turn toBthe Higher Judicial Services without any written examination.

(c) While considering candidates either under Category(a) or (b) above, due weightage shall be given to the fact thatthey have already put in a number of years in service in theHigher Judicial Services and, of course, with reference totheir performance.

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(d) All other appointees in this category, in the event ofdiscontinuation of the FTC Scheme, would revert to theirrespective posts in the appropriate cadre.”

60. With regard to the candidates Parminder Pal Singh and SukhdevDSingh, Recruitment and Appointment committee has noticed that theywere subjected to a written test and viva-voice for finding their suitabilityto be absorbed in the regular Cadre. In paragraph 9 of the report dated11.08.2015 of Recruitment/Promotion Committee (Superior JudicialService) it has noticed that presiding officers of Fast Track Courts forEbeing considered in the regular Cadre, they were subjected to undergowritten test examination and viva-voice. Paragraph 9 of the report ofthe committee is as follows: - “9. Hon’ble Selection Committee comprising the Chief Justiceand four senior-most judges in its meeting held on 18.03.2008considered the absorption of Presiding Officers of Fast TrackCourts in the regular cadre of Additional District & SessionsJudges from the quota of Bar in the State in the States ofPunjab and Haryana, respectively. The Officers wereconsidered on the basis of their performance in (i) writtenexamination; (ii) viva voice and (iii) ACRs. As per the meritlist, the names of Parminder Pal Singh and Sukhdev Singhwere recommended for absorption in the regular cadre ofAdditional District & Sessions Judge in the State of Punjab.These recommendations were approved by the Full Court inits meeting held on 10.04.2008. The Government of Punjab F

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appointed both the Officers to Punjab Superior JudicialService Order dated 24.06.2008.””

61. The above report was subsequently approved by full court onthe basis of which tentative seniority list was issued. The two officersParminder Pal Singh and Sukhdev Singh were appointed to PunjabSuperior Judicial Service by Order dated 24.06.2008. In the tentativeseniority list, they were placed at serial no.15 and 16 i.e. above thedirect recruits. It is relevant to note that the tentative seniority list wasprepared by the committee on the basis of continuous length of service.It was probably due to that reason that serial no. 15 and 16, direct recruitswere shown above the out of turn promotees and direct recruits. Theabove two officers who were taken on the regular Cadre of AdditionalDistrict Judge, after written test and viva-voice test which is almost thesame procedure which has been subsequently laid down by this Court inBrij Mohan Lal case dated 19.04.2012(Supra). The above twoofficers having been included in direct recruitment quota, they have tobe clubbed along with the direct recruits. We have already held that fordetermining the seniority, the roster is applicable. The objection of directrecruits that they cannot be included in the quota meant for direct recruitssince they have not undergone the same written test and viva-voice,which has been undertaken by the direct recruits, thus, cannot beaccepted.

62. As per the judgment of this court in Brij Mohan Lal case(Supra), officers from Bar, advocates working as Fast Track CourtJudges can be taken under the regular Cadre after they have clearedthe written test and viva-voice. The direction of this Court in paragraph207.9(g) which says that “if for any reason, vacancies are not availablein the regular Cadre, we hereby direct the State Government to createsuch additional vacancies as may be necessary, keeping in view thenumber of selected candidates”, indicates that Fast Track Court Judgeshad to be taken into regular cadre if vacancies are there. In the presentcase, there have been adjustments against two vacancies which wereavailable, hence, they having been taken in the regular Cadre as a directrecruit, has to be accepted. Further, present is not a case where theirselection in the regular cadre as Additional District Judge is underchallenge. Only issue which is raised is regarding their placement in theseniority list.

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A63. One more aspect in this context needs to be noted. Rule 12(3)provides that “the inter-se-seniority of the direct appointee shall be onthe basis of merit as is determined by the High Court.” The inter-se-seniority as contemplated by Rule 12(3) obviously means inter-se-seniorityreflected in the same examination. The two officers from the Fast TrackCourt having not taken the same examination, Rule 12(3) is not technicallyBapplicable while judging inter-se-seniority of these two officers and otherdirect recruits. However, in view of the directions of this Court in BrijMohan Lal’s case (Supra) taking these two Fast Track Court officersfrom Bar in the regular cadre cannot be held faulty. They having beenworking as Additional District Judges in the Fast Track Court and theyChaving been appointed in the regular cadre although in the samerecruitment year, their placement above other direct recruits is justified.However, these two officers will be grouped along with direct recruitsand shall occupy position number 1 and 2 in the direct recruits and otherswill follow thereafter.

D64. Now we come to the claim of Shri Arunvir Vashista FastTrack Court Judge who was selected by out of turn promotion. ShriArunvir Vashista was appointed as Fast Track Court Judge consequentto promotion of fifteen officers under Rule 7(3)(a). The appointmentand selection committee along with proposing fifteen promotions underRule 7(3)(a) has also proposed seven officers to man the Fast TrackECourts in which Shri Arunvir Vashista was included. Shri Arunvir Vashistathus occupied the Fast Track Court judge post in the year 2008 itself andparticipated in the limited departmental competitive examination andsecured sixth position on merit. Among the out of turn promotees ShriArunvir Vashista has been placed at sixth place.F

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65. Shri Arunvir Vashista in his brief written synopsis does notdispute that seniority is to be fixed by the roster points and irrespectiveof the fact, as to when a person is recruited. He rightly submits thatrules are subsidiary and subservient to the law. He has also placed relianceon order of this Court dated 28.04.2016 passed in W.P.(C) No.1022/G1989, All India Judges Association and others versus Union of India andothers. The Order of this court dated 28.04.2016, is to the followingeffect: - “The second prayer of the petitioner is for direction to therespondents to follow “post based roster” in appointments to the cadre of District Judges with effect from 31.03.2003. Thesaid prayer is again based on the statement of law aspropounded in paragraph 49 of the above referred to decisionrendered in All Indian Judges’ Association and Others(Supra).While stating as to in what manner the 40-point rosteris to be determined, this Court directed that appropriate Rulesand methods should be adopted by the High Courts andapproved by the States wherever necessary by 31.03.2003.When this application was moved, initially on behalf of theHigh Court, learned Standing Counsel took notice andsubmitted that in the High Court a Committee has beenconstituted which is deliberating on this issue and, therefore,he will be able to report to this Court in a week’s time. It isnow pointed out by Mr.Patil, learned senior counsel for theapplicant(s) that the 34 point roster has been drawn by theHigh Court based on the cadre strength providing for differentpoints applicable to the promotes by way of limited competitiveexamination as well as for direct recruits in the entry levelDistrict/Additional District and Sessions Judge.It is alsobrought to our notice that appropriate Rules have also beendrawn by the High Court which has been notified by the StateGovernment on 16[th] March, 2004.””

66. The Order of this Court dated 28.04.2006 re-enforces thedirections given by this Court in All India Judges’ Case dated 21.03.2002.

67. It was contended on behalf of Shri Arunvir Vashista beforethe Recruitment and Promotion Committee that although in the merit listof out of turn promotion, he is at serial No. 6 but he being the only officerwho was working officer as presiding officer of the Fast Track Court onad-hoc basis, he is “entitled to be absorbed and remained promoted tothe post.” There is no denial that Shri Arunvir Vashista has been regularlypromoted under Rule 7(3)(b) and continues his substantive promotion.When the roster is applicable, the seniority has to be fixed by the rosterpoint. As per Rule 12(2) the inter-se-seniority of the out of turn promotedofficers shall be “in the order of merit as is determined by the HighCourt”. Thus, seniority position of Shri Arunvir Vashista among the outof turn promotees has to be in accordance with the merit. His positionamong the out of turn promotees has thus rightly been shown as serial AB

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Ano.6 with which no infirmity can be found. We thus conclude that allFast Track Court judges who were taken into the regular cadre in differentstreams have been rightly placed in the seniority list amongst their streamto which no exception can be taken.

OUR CONCLUSIONS:B

68. The tentative seniority list was prepared on the basis ofcontinuous length of service,hence, all promotee officers who had joinedon 27[th]/28[th] February, 2008 have been shown at serial no.1 to 14.Parminder Pal Singh and Sukhdev Singh, Fast Track Court Judges fromBar who were appointed in regular cadre w.e.f. 01.08.2008 have beenCshown at serial no.15 and 16. From Serial No.17 to 24 were out of turnpromotees in block and thereafter Serial No.25 to 35, direct recruitswere placed in block. The final tentative seniority list has been approvedby the committee after considering the objections. It is reflected in itsreport dated 11.08.2015. Full Court approved the report dated 11.08.2015,hence, final seniority list was issued on 24.12.2015. Final seniority listDwas same as tentative seniority list. The Division Bench of the HighCourt deciding the writ petitions challenging the seniority list has held:

i) roster shall be applicable in determination of seniority.

ii) fifteen promotees promoted under Rule 7(3)(a) were in excessEof their quota.iii) Promotion of fifteen promotees under Rule 7(3) has to be treatedas ad-hoc promotion and they shall be placed at the bottom ofseniority.

69. The Writ Petitions were allowed by Division Bench. InFaccordance with the judgment of the Division Bench only change in theseniority list was to displace the promotees from serial no.1 to 14 and toplace it in the seniority list below direct recruits. The division benchjudgment of the High Court is under challenge before us.

70. In view of the foregoing discussion, we come to the followingGconclusions: -

1) Promotion of fifteen officers under Rule 7(3)(a) cannot beheld to be beyond their quota.

2) The promotion of fifteen officers cannot be said to be ad-hoc H

nor they can be directed to be put at the bottom of the senioritylist.

3) The High Court even though accepted the principle that rosteris applicable in the seniority but in the operative portion of thejudgment in paragraph 208 did not issue any direction to re-castthe seniority as per the roster given in the Appendix-B which is anapparent error committed by the High Court.

4) Rule 2007 having been brought in place to give effect to thejudgment of this Court in All India Judges association case,(2002) 4 SCC 247, while interpreting the Rules 2007 the directionissued by this court have to be kept in mind and rules cannot beinterpreted in a manner so as to violate the directions issued bythis Court in the above judgment.

5) Rule 7(4) read with Appendix-B has to be read in the light ofdirection of this Court in All India’s case and harmoniousconstruction of the rule clearly indicates that roster which hasbeen expressly made applicable for filling the post of all the threestreams shall be applicable while determining the seniority.

Reliefs: -

71. In view of foregoing discussion, the seniority list dated24.12.2015 is to be set aside. After setting aside the seniority list, twocourses are open. Firstly, to remit this matter to the High Court again tore-cast the seniority list as per our direction and secondly, to finalizeseniority list in this judgment itself. We choose to adopt the second coursefor two reasons:

a) Already period of three years has elapsed when the tentativeseniority list was published. Finalisation of seniority as early aspossible is essential and necessary for administration of justice.

b) There is no dispute regarding inter-se-seniority of the promoteesunder Rule 7(3)(a) and issue pertaining to inter-se-seniority of outof turn promotees and direct recruits have already been finalizedby us. Only exercise which is to be undertaken is to place officersof three streams in accordance with the roster as indicated inAppendix-B. After placing the officers of three streams, theseniority position as per roster comes as follows:

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S.NO.NAMERULE1.Shri Keshav Chander Gupta, Addl.D&SJ 7(3)(a)(Since retired prematurely)2.Shri Narinder Kumar Gaur, 7(3)(a)BAddl.D&SJ (since retired prematurely w.e.f 07.06.2011)3.Shri Parminder Pal Singh, 7(3)(c)Addl.D&SJ4.Shri Virinder Aggarwal, 7(3)(b)CAddl.D&SJ5.Shri Kishore Kumar, 7(3)(a)Addl.D&SJ6.Shri Paramjit Singh, 7(3)(a)Addl.D&SJD7.Shri Sukhdev Singh, 7(3)(c)Addl.D&SJ8.Ms. Mandeep Pannu,7(3)(b)Addl.D&SJE9.Shri Pritam Singh Dhanona, 7(3)(a)Addl.D&SJ, (Ex.S.M.)10.Shri Harpal Singh, 7(3)(a)Addl.D&SJ11.Shri Munish Singhal, 7(3)(c)FAddl.D&SJ12.Shri Ashok Paul Batra, 7(3)(b)Addl.D&SJ 13.Shri Amrinder Singh Grewal, 7(3)(a)Addl.D&SJG14.Ms. Harpreet Kaur Randhawa, 7(3)(a)Addl.D&SJ15.Ms. Rupinderjit Chahal, 7(3)(c)Addl.D&SJ

H

HON’BLE PUNJAB AND HARYANA HIGH COURT ATCHANDIGARH v. STATE OF PUNJAB [ASHOK BHUSHAN, J.]

A16.Shri Rajinder Agarwal,7(3)(b)Addl.D&SJ17.Ms. Ramesh Kumari,7(3)(a)Addl.D&SJB18.Shri Jagjit Singh Chohan,7(3)(a)Addl.D&SJ (since expired)19.Shri Kamaljit lamba,7(3)(c)Addl.D&SJC20.Shri Tarsem Mangla,7(3)(b)Addl.D&SJ21.Shri Nirmal Singh,7(3)(a)Addl.D&SJ(Since retired prematurely)D22.Ms. Sunita Kumari,7(3)(a)Addl.D&SJ23.Shri Nirbhow Singh Gill,7(3)(c)Addl.D&SJ24.Shri Arunvir Vashista,7(3)(b)EAddl.D&SJ25.Ms. Asha Condal,7(3)(a)Addl.D&SJ26.Shri Kuldeep Kumar Kareer,7(3)(a)Addl.D&SJF27.Shri Jatinder Pal Singh Khumi,7(3)(c)Addl.D&SJ28.Shri Jasjit Singh Bhinder,7(3)(b)Addl.D&SJG29.Dr. Hemant Gopal,7(3)(c)Addl.D&SJ30.Shri Surinder Singh Sahni,7(3)(b)Addl.D&SJ

A

31. Shri Kanwaljit Singh Bajwa, 7(3)(c)Addl.D&SJ32.Shri Sumeet Malhotra, 7(3)(c)Addl.D&SJB33.Shri Arun Gupta, 7(3)(c)Addl.D&SJ34.Ms. Jatinder Kaur-II, 7(3)(c)Addl.D&SJ35.Shri Mohd. Gulzar, 7(3)(c)CAddl.D&SJ

72. It is further relevant to note that in view of judgment of thisCourt in (2010) 15 SCC 170, All India Judges Association, quota of25 percent for out of turn promotees has been reduced as 10 percentw.e.f. 01.01.2011. The present seniority dispute being related toDrecruitment held in 2008, the reduction in quota may not be relevant inthe present case.

73. In view of foregoing conclusions all appeals are allowed infollowing manner: - E1) The Division Bench judgment of the High Court so far as itholds that roster is applicable in the determination of seniority ofmembers of superior judicial service is upheld.

2) The judgment of the Division bench of the High Court holdingthat fifteen promotees under Rule 7(3)(a) were beyond the quotaFand shall take position at the bottom of the seniority list is setaside.

3) The seniority list dated 24.12.2014 is set aside. The list of 35officers arranged as per Roster as indicated above shall be treatedas final Seniority list of the officers recruited in the year 2008.

G74. The parties shall bear their own cost.

Kalpana K. Tripathy

Appeals allowed.

H