DINESH KUMAR GUPTA AND OTHERS versus HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS on 29 April 2020

[2020] 10 S.C.R. 497

DINESH KUMAR GUPTA AND OTHERS

v.

HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS(Writ Petition (Civil) No. 936 of 2018)

APRIL 29, 2020

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Rajasthan Judicial Service Rules, 2010 – rr.3, 5-8, 15-32,42, 47, 57; Schedule I, II, VII – Effect of 2010 Rules – Cadre ofDistrict Judges in State of Rajasthan – Promotees, Direct Recruitsand candidates selected through Limited Competitive Examination(LCE) – Appointments and seniority – Objection to – Reportdtd.15.03.19 by five judge Committee of High Court – Held: Judicialofficers promoted on ad-hoc basis as Additional District andSessions Judges to man Fast Track Courts in the State andsubstantively appointed to the Cadre of District Judge are entitledto seniority from the date when substantive appointment is madeand not from the date of initial ad-hoc appointment or promotion –Further, selection process initiated under Notification dated31.03.2011 is not in continuation of the earlier selection of 2010 –Report dated 15.03.2019 correctly concluded the same – Candidatesselected through LCE and Direct Recruitment vide Order dated15.07.2013 cannot be clubbed with 47 Judicial Officers manningFast Track Courts who were promoted to the Cadre of District Judgein substantive capacity on 21.04.2010 and cannot be placed inaccordance with Cyclic Order provided in Schedule VII – The 47Judicial Officers were rightly placed en-bloc senior to all thecandidates selected pursuant to Notification dtd. 31.03.2011 – Interse placement of candidates selected through LCE be based on meritand not on seniority in the erstwhile cadre – Seniority list issued interms of Report dtd.15.03.2019 stands modified only to the saidextent – Rajasthan Higher Judicial Service Rules, 1969 – rr.3, 6-9,22-24; Schedule I – Rajasthan Civil Courts Ordinance, 1950 –Constitution of India – Arts.233, 234, 309 – Service Law.

Service Law – Rajasthan Higher Judicial Service – JudicialOfficers granted ad-hoc promotions u/1969 Rules to man Fast TrackCourts – Service rendered if to be considered for seniority – Held:

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AService rendered by such Judicial Officers as Fast Track CourtJudges on ad-hoc basis cannot be taken into account whilereckoning seniority after they were granted promotion on substantivebasis – Rajasthan Higher Judicial Service Rules, 1969.

Disposing of the writ petitions, the CourtB

HELD: 1.1 Following questions arise for consideration:- (A) Whether the judicial officers promoted on ad-hoc basisas Additional District and Sessions Judges to man the Fast TrackCourts in the State and who were substantively appointed to theCadre of the District Judge, are entitled to seniority from theCdate of their initial ad-hoc promotion?

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

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

(D) Whether the inter se placement of candidates selectedto the Cadre of District Judge in the State through LimitedCompetitive Examination, in the seniority list must be based ontheir merit in said examination or should it be based on theirFinitial seniority in the erstwhile cadre?

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

1.2 The decisions in Debabrata Dash, and V. Venkata PrasadGwere in the context where serving Judicial Officers were grantedad-hoc promotions as Fast Track Court Judges, while in C. Yaminthe members of the Bar were appointed as Fast Track CourtJudges and these decisions thus completely conclude the issue.As has been held in said decisions, the reckonable date has to beH

the date when substantive appointment is made and not from thedate of the initial ad-hoc appointment or promotion. Question(A) is, therefore, answered in the negative. [Para 39]

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

1.3 As regards Question No.(B), it is relevant to note thatthe Notification dated 15.04.2010 had invited application for fillingup 36 vacancies by Direct Recruitments and 22 vacancies byPromotion through LCE. This was preceded by determination ofvacancies through Notification dated 31.03.2010. After theprocess initiated in terms of said Notification dated 15.04.2010was cancelled, a fresh determination of the vacancies wasundertaken and the Notification dated 31.03.2011 now foundvacancies for Direct Recruitments, for Promotion through LCEand for Regular Promotion at 37, 32 and 24 respectively. Thus,the vacancies which became available post the Notification dated15.04.2010 were also taken into account. The Report dated15.03.2019 shows that some of the selected candidates in theprocess pursuant to the Notification dated 31.03.2011 had noteven participated in the earlier process of 2010. In the premises,if the submission that the process initiated under the Notificationdated 31.03.2011 must be held to be in continuation of the earlierselection of 2010 is accepted, it would amount to conferring undueadvantages upon persons who either had not participated in theprocess of 2010 or who were not even eligible in 2010. The Reportdated 15.03.2019, therefore, correctly appreciated the factsituation on record and concluded that it would not be incontinuation of the earlier process. [Para 40][562-D-G]

1.4 As regards Question No.(C), it must be noted that ason the date when 2010 Rules (Rule 57 thereof repealed 1969Rules and made provisions for saving certain actions) came intoeffect, the Additional District and Sessions Judges manning the A

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AFast Track Courts had rendered service in ad-hoc capacity foralmost 07 years. The question whether they be granted promotionon Regular Basis was subject matter of consideration of the HighCourt. The Report of the Committee of Judges given in 2008had advised that they be granted Regular Promotion and thematter was getting deferred at the level of the Full Court. It wasBat this stage that 2010 Rules became effective from 18.01.2010.Even thereafter, the Notification dated 31.03.2010 had publishedthe vacancy situation only in respect of Direct Recruitment andPromotion through LCE. It was obviously so, as the issueregarding grant of Regular Promotion on substantive basis toCthose Fast Track Court Judges was simultaneously underconsideration and on 21.04.2010 a formal Order was passedpromoting the 47 Judicial Officers on substantive basis to theCadre of District Judge. The grant of promotion to the 47 JudicialOfficers and selection process pursuant to the Notification dated15.04.2010 were not part of the same process and were completelyDindependent. None of the 47 Judicial Officers had the occasionto compete in the LCE that was undertaken in terms of theNotification dated 15.04.2010. It is possible to say that the last ofthe 47 Judicial Officers could as well have been the first in thelist of successful candidates through LCE and thus could possiblyEhave been entitled to better placement. In any case, the processinitiated pursuant to the Notification dated 15.04.2010 wascancelled for administrative reasons and the appointments inrespect of process pursuant to the Notification dated 31.03.2011could be effected only in the year 2013, i.e. more than 03 yearsafter the 47 Judicial Officers were granted substantiveFappointment to the Cadre of District Judge. Further, if grant ofpromotion to the 47 Judicial Officers is taken to be the part ofthe same process, some of the Direct Recruits may not even behaving eligibility in the year 2010 and yet may be placed abovesome of the 47 Judicial Officers. In the circumstances, theGassessment made by the High Court in its Report dated15.03.2019 is without any infirmity. The substantive promotiongranted to the 47 Judicial Officers cannot be taken to be part ofthe same selection process where Direct Recruits and candidatesthrough LCE were appointed to the Cadre of District Judge on15.07.2013. If the substantive appointment of the 47 JudicialH

Officers to the Cadre of District Judge is separate and distinctfrom the selection process through which appointment were madeafter three years on 15.07.2017, there would be no question oroccasion to apply the Cyclic Order (provided in Schedule VII to2010 Rules). It is not the contention of anyone that appointmentof the 47 Judicial Officers on the relevant date was either beyondthe quota meant for Regular Promotion or that there was anyserious infirmity in the process or that any of the candidates wascompletely ineligible. Since there was a difference of more than03 years between these two modes of selection, the Report dated15.03.2019 rightly concluded that the Cyclic Order ought not toget attracted. It is true that the Cyclic Order and the quota fordifferent streams ensure equitable treatment for three sources.However, the application of the Cyclic Order must depend uponthe fact situations. It was precisely for this reason that theexpression “as far as possible” has been used in the Rule. Otherthings being equal, certainly the quotas for different streams andthe Cyclic Order must be adhered to. However, if such adherenceitself is going to cause incongruous situation and inflict incalculableharm, insistence upon applicability of the Cyclic Order in suchcases may not be appropriate. The candidates selected throughLCE and Direct Recruitment vide Order dated 15.07.2013 cannotclaim to be clubbed with the 47 Judicial Officers promoted insubstantive capacity on 21.04.2010 and cannot claim appropriateplacement in accordance with the Cyclic Order. The 47 JudicialOfficers were rightly placed en-bloc senior to all the candidatesselected through the process initiated pursuant to theNotification dated 31.03.2011. Writ Petition (Civil) Nos.936 of2018 and 967 are, therefore, dismissed. [Paras 1, 41, 41.4][562-H; 563-A-H; 564-A-D; 574-F-G]

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

1.5 While considering Question (D), it is relevant to noticethe emphasis placed by this Court in All India Judges Associationwhile directing that 25 per cent of the posts in the cadre of theDistrict Judge be filled through LCE. It was stated in paragraph27 that there should be an incentive amongst relatively juniorand other officers to improve and to compete with each other so AB

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Aas to excel and get accelerated promotion. In paragraph 28 therelevant direction again stressed that 25 per cent quota forpromotion through LCE be “strictly on the basis of merit.” Rule31(2) of 2010 Rules (Rule 31 deals with source of recruitment)also uses the expression “strictly on the basis of merit” whiledealing with posts to be filled in through LCE. The merit is to beBassessed in terms of the scheme laid down in the relevantSchedule. After considering various parameters stated in saidSchedule, the successful candidates are selected on the basis ofmerit. The list of successful candidates becomes the basis forfinal selection subject to qualifying parameters such as suitability,Cmedical fitness etc. However, placing reliance on Rule 47(4) (theissue of seniority is dealt with by Rule 47), the Committee in itsReport dated 15.03.2019 held that the inter se seniority of personspromoted to the District Judge Cadre in the same year ought tobe the same as it was in the posts held by them at the time ofpromotion. If the list is to be drawn up according to merit, it isDpossible that the last person in the list of selectees may be thesenior most and going by the Report of the Committee, if all theselectees are promoted in the same year such last person may aswell be at the top of the list of promotees through LCE. In thatevent, the seniority shall become the governing criteria and theEexcellence on part of a comparatively junior candidate may recedein the background. Instead of giving incentive to comparativelyjunior and other officers, the entire examination process will standreduced to a mere qualifying examination rather than acompetitive examination affording opportunity to meritoriouscandidates. The criteria shall then become seniority subject toFpassing the LCE. The direction issued in All India JudgesAssociation to afford an incentive to meritorious candidatesregardless of their seniority would not thus be carried out. Thegeneral principle appearing in Rule 47(4) must, therefore, giveway to the special dispensation in Rule 31(2) of 2010 Rules. TheGHigh Court in its Report dated 15.03.2019 completely failed toappreciate the true character of LCE and reservation of certainquota for that category. The Court, therefore, accepts thesubmissions made for the petitioners in Writ Petition (Civil)No.498 of 2018 and Diary No.13252 of 2019 and while answeringQuestion (D) it is declared that the inter se placement of theH

candidates selected through LCE must be based on merit andnot on the basis of the seniority in the erstwhile cadre. Said WritPetitions are allowed to that extent. [Paras 42][574-H; 575-A-H;576-A]

All India Judges Association v. Union of India andOthers (2002) 4 SCC 247 : [2002] 2 SCR 712 – reliedon.

1.6 It is true that as on the date when 2010 Rules cameinto effect, there were 83 Fast Track Courts functioning in theState and appropriate mention to that effect was made in Part A ofSchedule II to 2010 Rules. It is also correct to say that the ad-hoc promotions granted to the concerned Judicial Officers wereunder 1969 Rules. But such promotions were on ad-hoc basis toman the Fast Track Courts and the law on the point is now wellsettled that the service rendered by such Judicial Officers asFast Track Court Judges on ad-hoc basis cannot be taken intoaccount while reckoning seniority after such Judicial Officers weregranted promotion on substantive basis and that their seniorityhas to be reckoned only from the date of their substantiveappointment to the cadre of District Judge. Said 1969 Rules donot in any way confer any right which would be inconsistent withthe law so laid down by this Court. The further submission thatfour Judicial Officers out of the 47 Judicial Officers were alsoappointed on the same day along with the petitioners in WritPetition (Civil) No.464 of 2019 also has no merit. The grant ofpromotion on substantive basis to said four Judicial Officers doesnot by itself entitle said petitioners to any similar treatment. Theissue of grant of promotion on substantive basis may depend uponvarious issues including suitability of the concerned candidateand availability of posts. The record also shows that after grant ofpromotion on substantive basis to the 47 Judicial Officers, therewere no vacancies for Regular Promotion which is why theselection process undertaken in the year 2010 did not earmarkany vacancies for Regular Promotions and it was only in the year2011, when adequate vacancies for said category became available,that the Notification dated 31.03.2011 contemplated filling up ofcertain vacancies by Regulation Promotion. The petitioners inWrit Petition (Civil) No.464 of 2019 participated in the process A

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Ainitiated pursuant to said Notification dated 31.03.2011. Some ofthem also appeared in LCE and availed of the opportunity to staketheir claim. Their regular promotions to the Cadre of DistrictJudge must, therefore, be taken only as a result of selectionprocess initiated in terms of the Notification dated 31.03.2011which culminated in the Order dated 15.07.2013. In theBcircumstances, their substantive appointment to said cadre hasto be reckoned from 15.07.2013 and not with any anterior effect.Once the Regular Promotion was part of the same process alongwith other streams, namely, through Direct Recruitment and LCE,the Cyclic Order had to be applied and said petitioners cannot beCgiven en-bloc placement above the candidates selected throughDirect Recruitment and LCE in the same process of selection.Therefore, there is no merit in Writ Petition (Civil) No. 464 of2019 and said Writ Petition is dismissed. The petitioners in WritPetition (Civil) No.899 of 2019 and other connected matters came to be appointed on ad-hoc basis to man the Fast Track CourtsDafter 2010 Rules came into effect. Even if their services werecontinued after abolition of Fast Track Courts, that by itself wouldnot confer any right on them. They came to be substantivelypromoted to the Cadre of District Judge only vide Order dated05.02.2016. For the reasons stated hereinabove, their entitlementEon substantive basis has to be reckoned only from 05.02.2016and not from any earlier date. Writ Petition (Civil) No.899 of 2019and other connected matters are, therefore, dismissed. Thus,while answering Question (E), it is concluded that the Reportdated 15.03.2019 does not call for any modification, except tothe extent dealt with in answer to Question (D). [Para 43][576-FB-H; 577-A-E]

1.7 The seniority list issued in terms of Report dated15.03.2019 shall stand modified only to the extent that appropriateplacement to the candidates selected through LCE be given onthe basis of their merit in the examination and not on the basis ofGtheir seniority in the erstwhile cadre. Except to the said extent,the Report dated 15.03.2019 does not call for any modification orclarification. [Para 44][577-G-H; 578-A]

All India Judges’ Association v. Union of India andothers (1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206;H

DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OFJUDICATURE OF RAJASTHAN OTHERS

All India Judges’ Association and others v. Union ofIndia and others (1993) 4 SCC 288 : [1993] 1 Suppl.SCR 749; All India Judges Association and Others v.Union of India and others (2002) 4 SCC 274; BrijMohan Lal v. Union of India and others (2002) 5 SCC1 : [2002] 3 SCR 810; Malik Mazhar Sultan andanother v. U.P. Public Service Commission and others(2006) 9 SCC 507 : [2006] 3 SCR 689; Malik MazharSultan and another v. U.P. Public Service Commissionand others (2008) 17 SCC 703; All India Judges’Association v. Union of India and others (2010) 15 SCC170; Rajasthan Judicial Service Officers’ Associationv. State of Rajasthan and Another (2009) 14 SCC 656:[2009] 10 SCR 814; High Court of Judicature ForRajasthan v. Veena Verma and another (2009) 14 SCC734 : [2009] 10 SCR 795; Brij Mohan Lal v. Union ofIndia and Others (2012) 6 SCC 502 : [2012] 5 SCR305; Union of India and Others v. N. R. Parmar andOthers (2012) 13 SCC 340 : [2012] 13 SCR 555; DirectRecruit Class II Engg. Officers’ Assn. v. State ofMaharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900;Rudra Kumar Sain & Ors. v. Union of India & Ors.(2008) 8 SCC 25; Hon’ble Punjab and Haryana HighCourt v. State of Punjab and others (2019) 12 SCC496 : [2018] 13 SCR 91; K. Meghachandra Singh andOrs. v. Ningam Siro and Others (2019) SCC Online SC1494 : [2019] 16 SCR 651 – referred to.

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[2020] 10 S.C.R.

Under Article 32 of the Consitution of IndiaEWithW.P. (C) No. 967/2018, 1471/2018, 498/2019, 464/2019, 899/2019,897/2019, 895/2019, 1008/2019 and Diary No. 13252/2019.

Vijay Hansaria, Sanjay R. Hegde, V.K. Shukla, P.S. Patwalia,FNidhesh Gupta, Ms. Vibha Datta Makhija, Dr. Manish Singhvi,R. Balasubramanian, Sr. Advs., Avnish Pandey, Ms. Sneha Kalita, GopalJha, Abhinav Mukerji, Siddharth Garg, Ms. Bihu Sharma, PurnimaKrishna, Samarth Khanna, Rishabh Sancheti, Ms. Padma Priya, AnchitBhandari, Mohd. Shahrukh Ali, For Mr. K. Paari Vendhan, John Mathew,Ms. Vriti Gujral, Ms.Pallavi Singh, Ms. Jasneet Kaur, Rishi Matoliya,GH.D. Thanvi, Praveen Gaur, Ms.Priyanshi Aggarwal, Ms. Aadya Mishra,D.K. Devesh, Satyendra Kumar, Shailja Nanda Mishra, Harsha Vinoy,Arpit Parkash, Milind Kumar, Annam D. N. Rao, A. Venkatesh, RahulSharma, Ms. Sangeetha M.R., Ms. Ananya Khandelwal, Ms. AvniSharma, Ms. Prerna Singh, Guntur Pramod Kumar, Ms. Supriya Juneja,HMs. Mridula Ray Bhardwaj, Ms. Sriparna Chatterjee, Ms. Sakshi Kakkar, S.S. Dahiya, R. C. Kaushik, Ms. Sangeeta Gaur, K. Parameshwar, M.V.Mukunda, Avadh Bihari Kaushik, Devashish Maharishi, Adarsh Upadhyay,Dr. Harsh V. Surana, Rohit K. Singh, Karthik S.D., Sachin Sharma,Sunil Samdaria, Sanchit Garga, P.D. Sharma, Advs. for the appearingparties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. These Writ Petitions broadly fall in following three categories:-

A] Writ Petition (Civil) No. 936 of 2018 filed by four petitioners,prays for appropriate directions that after the promulgation ofRajasthan Judicial Service Rules, 2010 (“2010 Rules”, for short),all appointments ought to be in conformity with 2010 Rules andallocation of seniority must be in accordance with the Cyclic Orderprovided in Schedule VII to 2010 Rules. In terms of 2010 Rules,posts in the cadre of District Judges in the Higher Judicial Servicein State of Rajasthan were required to be filled up in accordancewith quota of 50% for Promotees, 25% for Direct Recruits and25% by way of Limited Competitive Examination (“LCE”, forshort) in keeping with law laid down by this Court in All IndiaJudges Association vs. Union of India and Others[1]. This WritPetition filed by candidates who were successful in LCE praysthat they be allocated seniority in terms of the Cyclic Order inSchedule VII. In this group fall Writ Petition (Civil) No.498 of2019[*]and Writ Petition Diary No.13252 of 2019 which pray thatthe inter se seniority between candidates who were successful inLCE must be determined on the basis of their merit in LCE andnot by their erstwhile seniority.

B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37Direct Recruits challenging the Provisional Seniority List dated16.08.2017 with regard to the cadre of District Judges in the HigherJudicial Service in the State, on the ground that the appointmentsmade after 2010 Rules had come into effect, ought to be inaccordance with the Cyclic Order; and the inter se seniority andplacement of Direct Recruits and Promotees, promoted after 2010

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ARules had come into effect must be in accordance with 2010Rules.

C] Writ Petition (Civil) No.1471 of 2018 has been filed byRajasthan Judicial Service Officers Association (“the Association”,for short) seeking benefit of ad-hoc/officiating service put in byBPromotees who were promoted on ad-hoc basis as Fast TrackCourt Judges and also prays for re-determination of vacancies ofDirect Recruits submitting that the vacancies earmarked for DirectRecruits were in excess of their quota. Writ Petition (C) Nos.464of 2019, 895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018are filed by Judicial Officers seeking similar benefit in respect ofCad-hoc/officiating service as Fast Track Court Judges in the Stateand pray that such candidates be placed above the Direct Recruitsin the cadre of District Judges in the State.

2. Since the issues involved in all these matters pertain toappointments to and allocation of seniority in respect of, the cadre ofDDistrict Judges in the State of Rajasthan and regarding effect of 2010Rules, the petitions were heard together. Before we deal with the factualaspects, it would be necessary to consider certain decisions of this Courttouching upon the establishment of Fast Track Courts as well as theconcept of promotion through LCE and the respective quotas forEcandidates coming from three different streams in the Higher JudicialService in various States.

2.1. In All India Judges’ Associationv. Union of India andothers[2], the issues with regard to the working conditions of the membersof the subordinate judiciary throughout the country came up forFconsideration. Number of directions were issued by this Court. However,review petitions were filed by Union of India seeking certainmodifications/clarifications. These review petitions were disposed of bythis Court while issuing further directions in All India Judges’Association and others v. Union of India and others[3]. In pursuanceof said directions, First National Judicial Pay Commission under theGChairmanship of Mr. Justice K.J. Shetty (former Judge of this Court)was constituted on 21.03.1996. The terms of reference were thereaftermodified on 16.12.1997 and the Commission was also empowered toconsider and grant interim relief. By Report dated 31.01.1998 some 2 (1992) 1 SCC 119H3 (1993) 4 SCC 288

interim relief was granted by Justice Shetty Commission. After duedeliberations Justice Shetty Commission submitted a Report on 11.11.1999and all the States/ Union Territories were directed by this Court[4] to sendtheir responses to Union of India so that all the issues could be deliberatedupon and dealt with.[4]

2.2 After considering all the submissions, this Court in its decisiondated 21.03.2002 in All India Judges’ Association and others v. Unionof India and others[1 ]passed some directions. We are presently concernedwith the observations made in paragraphs 24 to 29 in which referencewas made to the 85[th] Report of the Standing Committee of Parliamentrecommending that there should be increase in the number of Judges.Said Committee had noted the Judges to Population ratio and in tunewith 120[th] Report of the Law Commission, recommendations were madeto increase the Judges’ strength to 50 Judges per 10 lakh people in thefirst instance. Recommendations made by Justice Shetty Commissionwere also considered and recruitment to the Higher Judicial Service inthe cadre of District Judges was also subject-matter of directions.Paragraphs 27 to 29 are quoted for ready reference:

“27. Another question which falls for consideration is the methodof recruitment to the posts in the cadre of Higher Judicial Servicei.e. District Judges and Additional District Judges. At the presentmoment, there are two sources for recruitment to the HigherJudicial Service, namely, by promotion from amongst the membersof the Subordinate Judicial Service and by direct recruitment. Thesubordinate judiciary is the foundation of the edifice of the judicialsystem. It is, therefore, imperative, like any other foundation, thatit should become as strong as possible. The weight on the judicialsystem essentially rests on the subordinate judiciary. While wehave accepted the recommendation of the Shetty Commissionwhich will result in the increase in the pay scales of the subordinatejudiciary, it is at the same time necessary that the judicial officers,hard-working as they are, become more efficient. It is imperativethat they keep abreast of knowledge of law and the latestpronouncements, and it is for this reason that the ShettyCommission has recommended the establishment of a JudicialAcademy, which is very necessary. At the same time, we are ofthe opinion that there has to be certain minimum standard, A

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Aobjectively 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 writtenBand 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 toCexcel and get quicker promotion. In this way, we expect that thecalibre 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 appointmentDby promotion is concerned: 50 per cent of the total posts in theHigher Judicial Service must be filled by promotion on the basisof principle of merit-cum-seniority. For this purpose, the HighCourts should devise and evolve a test in order to ascertain andexamine the legal knowledge of those candidates and to assessEtheir continued efficiency with adequate knowledge of case-law.The remaining 25 per cent of the posts in the service shall befilled by promotion 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 this regard.

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(emphasis supplied)

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

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(1) (a) 50 per cent by promotion from amongst the Civil Judges(Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of meritthrough limited competitive examination of Civil Judges H

(Senior Division) having not less than five years’ qualifyingservice; and

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

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

29. Experience has shown that there has been a constantdiscontentment amongst the members of the Higher JudicialService in regard to their seniority in service. For over threedecades a large number of cases have been instituted in order todecide the relative seniority from the officers recruited from thetwo different sources, namely, promotees and direct recruits. Asa result of the decision today, there will, in a way, be three waysof recruitment to the Higher Judicial Service. The quota forpromotion which we have prescribed is 50 per cent by followingthe principle “merit-cum-seniority”, 25 per cent strictly on meritby limited departmental competitive examination and 25 per centby direct recruitment. Experience has also shown that the leastamount of litigation in the country, where quota system inrecruitment exists, insofar as seniority is concerned, is where aroster system is followed. For example, there is, as per the rulesof the Central Government, a 40-point roster which has beenprescribed which deals with the quotas for Scheduled Castes andScheduled Tribes. Hardly, if ever, there has been a litigationamongst the members of the service after their recruitment asper the quotas, the seniority is fixed by the roster points andirrespective of the fact as to when a person is recruited. Whenroster system is followed, there is no question of any dispute arising.The 40-point roster has been considered and approved by thisCourt in R.K. Sabharwal v. State of Punjab[5]. One of the methodsof avoiding any litigation and bringing about certainty in this regardis by specifying quotas in relation to posts and not in relation to thevacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend A

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Aand promulgate seniority rules on the basis of the roster principleas approved by this Court in R.K. Sabharwal case as early aspossible. We hope that as a result thereof there would be no furtherdispute in the fixation of seniority. It is obvious that this systemcan only apply prospectively except where under the relevantrules seniority is to be determined on the basis of quota andBrotational system. The existing relative seniority of the membersof the Higher Judicial Service has to be protected but the rosterhas to be evolved for the future. Appropriate rules and methodswill be adopted by the High Courts and approved by the States,wherever necessary by 31-3-2003.”

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2.3. Soon thereafter, in its decision rendered on 06.05.2002 inBrij Mohan Lal v. Union of India and others[6] this Court had an occasionto consider the issue relating to Fast Track Courts. The 11[th] FinanceCommission had allocated Rs.502.90 crores for the purpose of settingup 1734 courts in various States to deal with long pending cases,Dparticularly sessions cases. On the basis of said recommendations a note was prepared by the Department of Justice, Government of Indiato set up Fast Track Courts. Challenges were raised in some HighCourts to the constitution of such Fast Track Courts and the matterswere dealt by this Court in Transfer Petitions.After considering rivalsubmissions, directions were issued in para 10 and for the present purposesEdirection Nos.1 to 8, 14 and 18 are relevant:- “10. Keeping in view the laudable objectives with which the FastTrack Courts Scheme has been conceived and introduced, wefeel the following directions, for the present, would be sufficientto take care of initial teething problems highlighted by the parties:

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Directions by the Court

1. The first preference for appointment of judges of theFast Track Courts is to be given by ad-hoc promotions fromamongst eligible judicial officers. While giving such promotion,Gthe High Court shall follow the procedures in force in the matterof promotion to such posts in Superior/Higher Judicial Services.

2. The second preference in appointments to Fast TrackCourts shall be given to retired judges who have good servicerecords with no adverse comments in their ACRs, so far as judicial H6 (2002) 5 SCC 1

acumen, reputation regarding honesty, integrity and character areconcerned. Those who were not given the benefit of two years’extension of the age of superannuation, shall not be consideredfor appointment. It should be ensured that they satisfy theconditions laid down in Articles 233(2) and 309 of the Constitution.The High Court concerned shall take a decision with regard tothe minimum-maximum age of eligibility to ensure that they arephysically fit for the work in Fast Track Courts.

3. No judicial officer who was dismissed or removed orcompulsorily retired or made to seek retirement shall be consideredfor appointment under the Scheme. Judicial officers who havesought voluntary retirement after initiation of departmentalproceedings/inquiry shall not be considered for appointment.

4. The third preference shall be given to members of theBar for direct appointment in these courts. They should bepreferably in the age group of 35-45 years, so that they couldaspire to continue against the regular posts if the Fast Track Courtscease to function. The question of their continuance in serviceshall be reviewed periodically by the High Court based on theirperformance. They may be absorbed in regular vacancies, ifsubsequent recruitment takes place and their performance in theFast Track Courts is found satisfactory. For the initial selection,the High Court shall adopt such methods of selection as arenormally followed for selection of members of the Bar as directrecruits to the Superior/Higher Judicial Services.

5. Overall preference for appointment in Fast Track Courtsshall be given to eligible officers who are on the verge of retirementsubject to they being physically fit.

6. The recommendation for selection shall be made by acommittee of at least three Judges of the High Court, constitutedby the Chief Justice of the High Court concerned in this regard.The final decision in the matter shall be taken by the Full Court ofthe High Court.

7. After ad-hoc promotion of judicial officers to the FastTrack Courts, the consequential vacancies shall be filled upimmediately by organizing a special recruitment drive. Steps shouldbe taken in advance to initiate process for selection to fill up these ABC

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Avacancies much before the judicial officers are promoted to theFast Track Courts, so that vacancies may not be generated at thelower levels of the subordinate judiciary. The High Court and theState Government concerned shall take prompt steps to fill up theconsequential as well as existing vacancies in the subordinate courtson priority basis. The State Government concerned shall takeBnecessary decisions within a month from the receipt of therecommendations made by the High Court.

8. Priority shall be given by the Fast Track Courts fordisposal of those sessions cases which are pending for the longestperiod of time, and/or those involving undertrials. Similar shall beCthe approach for civil cases i.e. old cases shall be given priority.

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14. No right will be conferred on judicial officers in servicefor claiming any regular promotion on the basis of his/herappointment on ad-hoc basis under the Scheme. The servicerendered in Fast Track Courts will be deemed as service renderedin the parent cadre. In case any judicial officer is promoted tohigher grade in the parent cadre during his tenure in Fast TrackCourts, the service rendered in Fast Track Courts will be deemedto be service in such higher grade.

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18. The High Court and the State Government shall ensurethat there exists no vacancy so far as the Fast Track Courts areconcerned, and necessary steps in that regard shall be taken withinthree months from today. In other words, steps should be taken toset up all the Fast Track Courts within the stipulated time.”

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2.4. Thereafter in Malik Mazhar Sultan and another v. U.P.Public Service Commission and others[7] the issues regarding timelydeclaration of vacancies in judicial service and timely appointments wereconsidered by this Court as under:

“23. It is absolutely necessary to evolve a mechanism to speedilydetermine and fill vacancies of judges at all levels. For this purpose,timely steps are required to be taken for determination of vacancies,issue of advertisement, conducting examinations, interviews,declaration of the final results and issue of orders of appointments.For all these and other steps, if any, it is necessary to provide forfixed time schedule so that the system works automatically andthere is no delay in filling up of vacancies. The dates for takingthese steps can be provided for on the pattern similar to filling ofvacancies in some other services or filling of seats for admissionin medical colleges. The schedule appended to the regulationsgoverning medical admissions sets out a time schedule for everystep to be strictly adhered to every year. The exception can beprovided for where sufficient number of vacancies do not occurin a given year. The adherence to strict time schedule can ensuretimely filling of vacancies. All the State Governments, the UnionTerritories and/or the High Courts are directed to provide for timeschedule for the aforesaid purposes so that every year vacanciesthat may occur are timely filled. All the State Governments, theUnion Territories and the High Courts are directed to file withinthree months details of the time schedule so fixed and date fromwhich the time schedule so fixed would be operational.”

2.5. After the disposal of the appeals in Malik Mazhar Sultanand others v. U.P. Public Service Commission[7 ]suggestions were madeby some of the State Governments and written submissions were alsofiled by the learned Amicus Curiae. In its order dated 04.01.2017[8], thisCourt issued further directions and prescribed timelines. From paragraph7 onwards directions were issued for filling up vacancies in various cadresincluding the cadre of District Judges.

2.6. By order dated 20.04.2010 passed in All India Judges’Association v. Union of India and others[9] directions issued earlier7 (2006) 9 SCC 5078 (2008) 17 SCC 703.9 (2010) 15 SCC 170

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“6. Having regard to various strategies available, we are of theconsidered view that suitable amendment is to be made for this25% quota of limited departmental competitive examination. Weare also of the view, with the past experience, that it is desirablethat 25% quota be reduced to 10%. We feel so as the requiredresult, which was sought to be achieved by this process could notbe achieved, thus it calls for modification.

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7. Thus, we direct that henceforth only 10% of the cadre strengthof District Judges be filled up by limited departmental competitiveexamination with those candidates who have qualified service offive years as Civil Judge (Senior Division). Every year vacanciesare to be ascertained and the process of selection shall be takencare of by the High Courts. If any of the post is not filled up under10% quota, the same shall be filled up by regular promotion. Insome of the High Courts, process of selection of these 25% quotaby holding limited departmental competitive examination is inprogress, such process can be continued and the unfilled seats, ifmeritorious candidates are available, should be filled up. But if forsome reason the seats are not filled up, they may be filled up byregular promotion and apply the usual mode of promotion process.Thus we pass the following order.

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8. Hereinafter, there shall be 25% of seats for direct recruitmentfrom the Bar, 65% of seats are to be filled up by regular promotionof Civil Judge (Senior Division) and 10% seats are to be filled upby limited departmental competitive examination. If candidatesare not available for 10% seats, or are not able to qualify in theexamination then vacant posts are to be filled up by regularpromotion in accordance with the Service Rules applicable.

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9. All the High Courts are hereby directed to take steps to seethat existing Service Rules be amended positively with effect from1-1-2011. If the Rules are not suitably amended, this order shallprevail and further recruitment from 1-1-2011 shall be continuedaccordingly as directed by us. The time schedule prescribed inthe order dated 4-1-2007 (in Malik Mazhar Sultan case[8]) shallbe strictly adhered to for the purpose of selection. All the vacancies G

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are to be filled up in that particular year and there shall not be anycarry forward of the unfilled posts.”

3. In the State of Rajasthan, the matters relating to Constitution ofCourts and Jurisdiction of Courts were dealt with by the Rajasthan CivilCourts Ordinance, 1950 which consolidated and amended the law relatingto Civil Courts in the State. Clause 6 of said Ordinance dealt with Classesof Courts; Clause 8 dealt with Power to fix number of District Judgeswhile Clause 10 dealt with the appointment of Additional Judges. Inexercise of powers conferred by Article 233 and the Proviso to Article309 of the Constitution of India, the Governor of Rajasthan made theRajasthan Higher Judicial Service Rules, 1969 (“1969 Rules”, for short)in consultation with the High Court[10] in respect of the Rajasthan HigherJudicial Service for making appointments, postings and promotions tothe cadre of District Judges, and to provide for other ancillary matters.

The expressions ‘Direct Recruitment’, ‘District Judge’,‘Member of the Service’ and ‘Service’ were defined in Rule 3 as under:- “(c) “Direct recruitment” means recruitment in the matterprescribed by clause (ii) of rule 8; (d)“District Judge” includes Additional District Judge, SessionsJudge and Additional Sessions Judge; … … …

(f) “Member of the Service” means a person appointed in asubstantive capacity to a post in the service; … … …

(h) “Service” means the Rajasthan Higher Judicial Service”

3.1. Part-II and Part-III of 1969 Rules dealt with topics ‘Cadre’and ‘Principles and Procedure of Recruitment and Promotion’. Rules6 to 9 under said Parts-II and III were as under:- “6. Strength of the Service.-

(1) The strength of the Service shall, until orders varying thesame have been passed under sub-rule (2), be as specified inSchedule I.

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(2) The strength of the service may be varied by the Governor,from time to time, in consultation with the Court.

(3) Notwithstanding anything contained in sub-rule (1) and (2),the Governor may, in consultation with the Court, hold anyappointment to the service in abeyance for such time as hedeems fit, without thereby entitling any person to compensation.

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7. Principles and procedure to be followed.- For the purposeof recruitment to the service, the following principles and procedureof recruitment and promotion laid down by the Court shall befollowed.

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8. Sources of Recruitment.- Recruitment to the service shallbe made –

(i) by promotion from amongst the members of the RajasthanJudicial Service; or

(ii) by direct recruitment from the advocates who havepracticed in the Court or Courts subordinate thereto for a periodof not less than seven years.

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9. Appointment to the service.- (1) Subject to the provisionsof these rules, appointment of persons to the service shall be madeby the Governor on the recommendation of the Court made fromEtime to time; provided that the number of persons appointed to theservice by direct recruitment shall at no time exceed one third ofthe total strength of the service.

(2) Subject to the provisions of sub-rule (1), after every threepersons appointed by promotion, the fourth person shall, as far asFpossible, be appointed by direct recruitment. If a suitable personis not available for appointment by direct recruitment, the postmay be filled by promotion from amongst the members of theRajasthan Judicial Service.”

3.2. Rules 22 and 23 in Part-III dealt with ‘Temporary orofficiating appointment’ and ‘Appointments to posts in the selectiongrade’ as under:- G

“22. Temporary or officiating appointment.- On theoccurrence of temporary or permanent vacancies the Court shallrecommend the Governor the names of the candidates from H

amongst the persons who are eligible for appointment to the serviceby promotion under clause (i) of rule 8, for temporary or officiatingappointment.

23. Appointments to posts in the selection Grade.-Appointments to the posts in the selection grade of the serviceshall be made by the Governor in consultation with the Court onthe basis of merit.”

3.3. Part IV of 1969 Rules dealt with ‘Seniority’, ‘Probation’and ‘Confirmation’. Rule 24 dealt with issue of Seniority was as under:- “24. Seniority.- Subject to the other provisions of these rules,seniority in the service shall be determined by the date of theorder of substantive appointment in a permanent vacancy includingappointment on probation under rule 25:

Provided that a promoted officer who may have been allowed toofficiate continuously against a permanent vacancy in the cadrefrom a date, prior to the date of appointment of a direct recruit,shall, if he is subsequently selected and substantively appointed inthe service, take his seniority in the cadre over such direct recruit:

Provided further that the seniority of candidates appointed to theservice shall in the case of the appointment of more persons thanone to the service by an order of the same date, follow the orderin which their names have been recommended by the Court.”

Schedule-I to 1969 Rules dealt with ‘Strength of Service’, whichwas stated to be 89 in the post of District & Sessions Judge and AdditionalDistrict Sessions Judge, which over a period of time got raised to 150.

4. However, appointments in excess of the strength indicated inSchedule I to 1969 Rules, were made on various occasions. By Notificationdated 31.03.2001 issued under the provisions of the Ordinance and underRule 6(2) of 1969 Rules, 40 Additional District and Sessions Courts wereset up in the State for Fast Track disposal of cases pending before theDistrict Judges. By Notification dated 12.07.2002, 13 more AdditionalDistrict and Sessions Courts were set up under the aforesaid provisionsof the Ordinance and 1969 Rules for Fast Track disposal of cases pendingbefore the District Courts. Further, 30 Additional District and SessionsCourts were again set up on 17.04.2003 in pursuance of aforesaid powersfor Fast Track disposal of cases pending before the District Judges.

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AThus 83 Courts were created between 31.03.2001 and 17.04.2003 whichare commonly known as Fast Track Courts and officers from the cadreof Senior Civil Judges were promoted under Rule 22 of 1969 Rules toman these Fast Track Courts.

It may be mentioned that though the decision of this Court in BrijBMohan Lal[6] had indicated three sources from which the candidatescould be appointed to man the Fast Track Courts, in the State of Rajasthancandidates were drawn only from one source namely through ad-hoc/officiating promotions to the persons from the feeder cadre viz. SeniorCivil Judges Cadre. There was no appointment of any retired Judge orby way of recruitment from the Bar.C

5. By Order dated 07.05.2003 issued in compliance of directionsof this Court in All India Judges Association and others versus Unionof India and Others[1] and in accordance with the recommendation ofFirst National Judicial Pay Commission, 71 posts were acknowledged tobe in “Selection Scale” while 29 posts were found to be in “Super TimeDScale” in the Higher Judicial Service for the year 2002-2003.

6. On 20.10.2003, a Notification was issued by the High Courtnotifying 19 vacansies for Direct Recruitment to the Higher JudicialService. Out of these 19 vacancies, 11 were shown as current vacancieswhile 8 were shown as backlog vacancies. A challenge was raised inEthis Court by way of Writ Petition (Civil) No.576 of 2003 by theAssociation submitting inter alia that there were no vacancies for DirectRecruits and as such the Notification dated 20.10.2003 was invalid. Itwas also submitted that as on the date, 220 officers were functioning inthe cadre of District Judges and Additional District Judges.F7. On 13.12.2004, 22 Judicial Officers from the cadre of SeniorCivil Judge were promoted as Additional District and Sessions Judges(Fast Track).

8. The matters concerning regular promotion to be granted to thelevel of District Judge including whether those who were promoted asGAdditional District and Sessions Judge (Fast Track) under Rule 22 of1969 Rules were being considered by the High Court. A report of aCommittee constituted to consider said issues was submitted on23.08.2008. The matter was then placed before the Full Court on29.11.2008 and thereafter the matter stood deferred to 13.02.2009,31.10.2009 and to 20.03.2010** successively.H

9. By order dated 11.01.2008, some Judicial Officers, includingthe petitioners in Writ Petition (Civil) No.464 of 2019, were promoted asAdditional District and Sessions Judges on Ad-hoc basis to man the FastTrack Courts. The order stated as under:- “On the recommendation of Rajasthan High Court, H.E. theGovernor of State of Rajasthan is pleased to appoint/promote thefollowing 37 officers in the cadre of R.H.J.S. as Additional Districtand Sessioins Judges on purely ad-hoc basis to man the temporaryFast Track Courts”.

9.1 A consequential order was thereafter passed on 11.03.2008directing transfer/posting of said Judicial Officers in the rank of AdditionalDistrict and Sessions Judges (Fast Track).

9.2 In terms of the decision of Full Court in its Meeting dated29.11.2008, the period of probation of 34 out of said 37 Judicial Officersappointed by Order dated 11.01.2008 was extended till further orders.

10. On 07.07.2009, the challenge raised by the Association in WritPetition (Civil) No.576 of 2003 was decided by this Court vide its decisionin Rajasthan Judicial Service Officers’ Association v. State ofRajasthan and Another[11]. It was observed by this Court that thesanctioned strength in terms of 1969 Rules was only 150 and as against25% posts which could be filled up by Direct Recruitment, 41 DirectRecruits were already working in the Higher Judicial Service. It was,therefore, concluded that there was no substantive vacancy availablefor Direct Recruits. The petition was allowed and the Notification dated20.10.2003 was set aside. The relevant observations of this Court wereas under:- “8. According to the petitioner, the total cadre strength of RHJSis 150 and there are already 41 direct recruits working in RHJS.Since the total cadre strength is 150 and since 25% of the postswere directed by the High Court to be filled in by direct recruitment,there were no vacant posts available for direct recruits since 25%of 150 is 37, while 41 direct recruits were already working inRHJS. The petitioner also submitted that if 19 vacancies shouldbe treated as 25% of the direct recruitment then there must be atleast 57 fresh appointments in RHJS by promotion, but that hasnot been done.

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A11. In our opinion, as held by us in Veena Verma case, the cadrestrength is only 150 and not 240 because the strength of the serviceis as per Rule 6(2) of the Rajasthan Higher Judicial Service Rulesas mentioned in Schedule I to the Rules. Until and unless theSchedule is amended in accordance with Rule 6(2) the strengthof the service cannot be varied, as held by us in Veena VermaBcase[12]. As yet, we are told, no order has been passed under Rule6(2).

12. We have also perused the counter-affidavit filed by the Stateof Rajasthan and also the rejoinder-affidavit filed in the case. It isstated in Para 3 of the rejoinder-affidavit that the impugnedCnotification is in violation of the stay order dated 28-9-2000 inSpecial Leave Petition No. 9346 of 1999, staying the operation ofthe order dated 30-4-1999 in DB (C) Spl. Application No. 410 of1998. It is stated in Para 6 of the rejoinder-affidavit that there areas on date 220 officers functioning in the cadre of District JudgesDand Additional District Judges and as such there are no existingvacancies.

13. In our opinion, this writ petition has to be allowed. In view ofour decision in Veena Verma case[12] it has to be held that underthe existing Rule the strength of the service of RHJS is 150 andsince there are 41 direct recruits already working, there is noEsubstantive vacancy. Hence the impugned notification is illegaland deserves to be quashed. The writ petition is allowed and theimpugned notification is quashed. However, we make it clear thatit is open to the State Government in consultation with the HighCourt to amend Schedule I to the Rules in accordance with RuleF6(2) and thereby vary the strength of the service.

14. The petitioner has filed this writ petition seeking a direction tothe respondents to complete the selection process initiated underNotification No. Estt.(RJS)/118/2003 dated 20-10-2003. As wehave quashed the said notification in WP (C) No. 576 of 2003,Gthis writ petition [WP (C) No. 275 of 2007] is dismissed as havingbecome infructuous.”

11. On the same day, a decision was rendered by this Court inHigh Court of Judicature For Rajasthan v. Veena Verma andanother[12], which inter alia considered whether Notification dated

21.12.1996 inviting applications for 11 posts in the Higher Judicial Servicein the State of Rajasthan by Direct Recruitment was valid. It wasobserved that 11 posts were not available for Direct Recruitment. Whiledealing with the challenge, it was observed, “33. It may be mentioned that posts can be created dehors thecadre of a service, and these are known as ex cadre posts. Theposts created without a specific order under Rule 6(2) are excadre posts. Hence in our opinion the temporary or permanentvacancies or posts created beyond the number of posts in ScheduleI without a specific order under Rule 6(2) varying Schedule I tothe Rules are only ex cadre posts, and can only be filled in bypromotees, and not by direct recruitment.

34. It may be noted that Rule 9(2) uses the words “as far aspossible”. In our opinion, this means that there is no hard-and-fastrule that after every three persons appointed by promotion, thefourth person has to be appointed by direct recruitment.In ouropinion, the Division Bench of the High Court has given a wronginterpretation of Rule 9(2) of the Rules by observing:

“it does not give a licence to the respondents to refuse to appointevery fourth person by direct recruitment on the ground that itwas not possible for any other reason than the maintenance ofthe limit of one-third of the total strength imposed by sub-rule(1) of Rule 9 on direct recruitment”.

In our opinion this is a wrong view taken by the Division Bench ofthe High Court as is evident from the words “as far as possible”in Rule 9(2). These words give a discretion to the authorities, andthe Court cannot interfere with this discretion, unless it is palpablyarbitrary.

[Emphasis supplied]

35. In our opinion, the Division Bench of the High Court erred inlaw in holding that for the purpose of direct recruitment thetemporary or permanent posts created outside the cadre withoutamending Schedule I were also to be included while calculatingthe strength of the Service. The Division Bench also erred inholding that whenever posts are created, the strength of the Serviceis deemed to have been automatically increased although there isno order under Rule 6(2) in this connection amending Schedule I.

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12. On 18.01.2010, in exercise of the powers conferred by Articles233 and 234 read with proviso to Article 309 of the Constitution of India,the Governor of Rajasthan in consultation with the Rajasthan PublicService Commission and the High Court made Rules for regulatingrecruitment to the posts in, and the conditions and other matters relatedCto the service of persons appointed to the Rajasthan Judicial Service.The Rules are called Rajasthan Judicial Service Rules, 2010 (“2010Rules”, for short).

12.1 The terms, “Cadre”, “Cadre Post”, “Member of the Service”and “Substantive appointment” are defined in clauses (b), (c), (g) and (l)Dof Rule 3 as under:

“Rule 3: Definitions

(b) “Cadre” means the cadre of District Judge, Senior Civil Judgeand Civil Judge as provided under Rule 5 of Part-II of these Rules;

(c) “Cadre Post” means any post specified in Schedule-I;

E(g) “Member of the Service” means a person appointedsubstantively to a post in the service under the provisions of theseRules; and

(l) “Substantive appointment” means an appointment made underthe provisions of these rules to a substantive vacancy after dueFselection by any of the methods of recruitment prescribed underthese Rules and includes an appointment on probation followedby confirmation on completion of the probation period.”

12.2 Part-II of 2010 Rules deals with “Cadre” and Rule 5 stipulatesthat on and from the date of commencement of the Rules, the RajasthanGJudicial Service shall stand re-constituted and re-designated into followingthree cadres:

(A) District Judges

(B) Senior Civil Judge, and

(C) Civil Judge.

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Rule 6 deals with “Strength of the Service” and is to the followingeffect.

“(1) The Strength of the Service in each cadre and number ofother posts shall be determined by the Government from time totime, in consultation with the Court and the existing posts in eachcadre in the service shall be as specified in Schedule-I.

(2) The strength of other posts manned by the members of theservice shall be as specified in Schedule-II unless any order varyingthe same is issued under sub-rule(1):

Provided that the State Government may, in consultationwith the Court, create any permanent or temporary post fromtime to time as may be considered necessary and may abolishany such post or posts in the like manner without thereby conferringany right on any person for any type of claim.”

12.3. Part-III of 2010 Rules deals with subject “GeneralConditions” and Rules 7, 8 and 15 are as under :- “7. Determination of vacancies: (1) subject to the provisions ofthese rules, the Court shall determine and notify the actual numberof existing and expected vacancies in each cadre as per the timeschedule specified in Schedule-III.

(2) Where the vacancies in the cadre are to be filled in by a singlemethod, the vacancies so determined shall be filled by that method.

(3) Where the vacancies in the cadre are to be filled in by morethan one method, the apportionment of vacancies determined undersub-rule (1), to each such method shall be done maintaining theprescribed percentage for the particular method taking into accountconsideration the overall number of posts already filled in:

Provided that the apportionment for filling up vacancies in thecadre of District Judge, shall be made in a cyclic order of respectivequota of each category, i.e. Promotee on the basis of merit-cum-seniority, Promotee on the basis of Limited CompetitiveExamination and the Direct Recruitee.

8. Examination:- For filling up of vacancies in the cadre of DistrictJudge and Civil Judge, examination shall be conducted by theRecruiting Authority as per the time Schedule specified in ScheduleIII.

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A15. Temporary or officiating appointments:- On occurrenceof temporary or permanent vacancy, in the cadre of District Judgeor the Senior Civil Judge, as the case may be, not taken intoconsideration at the time of determining the vacancies under Rule7 and if in the opinion of the Court such vacancy is to be filled inimmediately, the Court shall recommend to the Appointing AuthorityBthe names of the persons eligible for appointment maximum for aperiod of one year and such appointment shall not confer anyrights upon the person so appointed.”

12.4. Part IV deals with “Methods of Recruitment” under which“Recruitment to the cadre of Civil Judge” and “Recruitment to the cadreCof Senior Civil Judge” are dealt with in Rules 16 to 30 of sub-Parts Aand B, while “Recruitment to the cadre of District Judge” is dealt withunder sub-Part C. Rule 31 deals with source of recruitment, as under:- “31. Source of recruitment: (1) Fifty percent posts in the cadreof District Judge shall be filled in by promotion from amongstDSenior Civil Judges on the basis of merit-cum-seniority subject topassing of suitability test as provided under Schedule-IV.

(2) Twenty five percent posts in the cadre of District Judge shallbe filled in by promotion from Senior Civil Judges strictly on thebasis of merit through limited competitive examination conductedEby the Court.

(3) Twenty Five percent posts in the cadre of District Judge shallbe filled in by direct recruitment from amongst the eligibleAdvocates on the basis of written examination and interviewconducted by the Court.F(4) For the purpose of proper maintenance and determination ofseniority of persons appointed through the aforesaid sources, aroster for filling of vacancies based on quota of vacancies reservedhere-in-above, as given in Schedule-VII shall be maintained. Thisroster shall operate prospectively.”G12.5. Thereafter the relevant subjects are dealt with under threesub-heads named as (I) Promotion, (II) Direct Recruitment and (III)Appointment. Rule 32 dealing with the “Recruitment by Promotion” isas under:

“32. Recruitment by promotion:- (1) Fifty percent posts in theHCadre of District Judge shall be filled in by promotion from amongst

Senior Civil Judges recommended by the Court, on the basis ofmerit-cum-seniority, subject to passing of suitability test as providedin Schedule-VI.

Explanation: “Qualifying the eligibility test shall not affect theinter-se-seniority of the officers in the Cadre of Senior Civil Judge.

(2) The recruitment in the cadre of District Judges under sub-rule(2) of rule 31 shall be made by a Limited Competitive Examinationconducted by the Court in accordance with the scheme of theexamination prescribed under Schedule-VIII.

(3) A Senior Civil Judge who has completed actual five yearsservice as on the first day of January preceding the last date fixedfor the receipt of the applications shall be eligible for appearing inthe Limited Competitive Examination for promotion to the Cadreof District Judge.

(4) For the purpose of Limited Competitive Examination,applications shall be invited by the Court from all eligible SeniorCivil Judges in such manner and in such form as may be specifiedby the Court.

(5) Candidates who have obtained minimum 50% marks in theLimited Competitive Examination shall be eligible for interviewby a Committee consisting of Chief Justice, Administrative Judgeand two other Judges nominated by the Chief Justice. TheCommittee taking into consideration the performance atexamination, the service record and the performance at theinterview shall assess the suitability and recommend the namesof the offices for promotion.”

12.6 Part-D deals with “Probation”, “Confirmation” and“Seniority”. Sub-heading dealing with “Appointment” deals with issueof combined Select List as under:

“42. Combined Select List: The Court shall prepare a combinedselect list putting the names of candidates in cyclic as provided inSchedule-VII from the lit prepared under sub-rule (1) and (5) ofRules 32 and 41 and send it to the Appointing Authority.”

12.7 The issue of seniority is dealt with by Rule 47 as under:

“47. Seniority: Subject to the other provisions of these Rules:

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A(1) Seniority in the service in the cadre of Civil Judge shall bedetermined from the date of the order of substantiveappointment to the service:

Provided that the seniority of candidates appointed to theservice shall, in the case of appointment of more personsBthan one follow the order in which they have been placed inthe list prepared by the Recruiting Authority under Rule 24of these Rules.

(2) Inter-se seniority of persons promoted to the Senior CivilJudge cadre in the same year shall be the same as it was inCthe post held by them at the time of promotion.

(3) Seniority of persons appointed to the Service in the DistrictJudge cadre by direct recruitment shall be determined fromthe date of the order of substantive appointment in the cadre.

Provided that the seniority of direct recruitee to the cadre, inDthe case of appointment of more persons than one by anorder of the same selection, shall follow the order in whichthey have been placed in the list prepared by the Court underrule 41.

(4) Inter-se seniority of persons promoted to the District JudgeEcadre in the same year shall be the same as it was in the postheld by them at the time of promotion.

(5) The seniority of direct recruitee vis-a-vis the promoteappointed to the cadre of District Judge shall be determinedin the order of their names placed in the combined select listFprepared under Rule 42:

Provided that the persons promoted under Rule 15 shall notbe given seniority over the direct recruitee.”

12.8 Rule 57 repealed 1969 Rules and made provisions for savingcertain actions as under:G

“57. Repeal and savings: The Rajasthan Highter Judicial ServiceRules, 1969 and the Rajasthan Judicial Service Rules, 1955, asamended from time to time, are hereby repealed:

Provided that such repeal shall not affect any order made,Haction taken, effects and consequences of anything done or suffered there under or any right, privilege, obligation or liabilityalready acquired, accrued or incurred there under, or enquiry,verification, or proceedings in respect thereof made.”

12.9 Schedule I which is referable to Rule 3(c) and Rule 6(1) ofthe Rules deals with topic “Cadre Strength of the Service” and Part Adeals with “District Judge Cadre” which enumerates various designationsin said cadre aggregating to 223 and earmarks 10% reserve for leave,training, deputation etc.; thus taking the grand total to 245. Parts B andC of this Schedule deal with “Senior Civil Judge Cadre” and “Civil JudgeCadre” and set out the strength at 222 and 329 respectively.

12.10 Schedule II which is referable to Rule 6(2) of 2010 Rulesdeals with topic “Strength of the Service”. Part-A thereof enumeratesvarious designations and the appropriate strength for the concerned postsin “District Judge Cadre”, in which 102 posts are mentioned including 83“Additional District Judges (Fast Tracks)”. In the same Schedule, PartsB and C deal with “Senior Civil Judge Cadre” and “Civil Judge Cadre”respectively and the strength noted against said two parts is 7 and 4respectively.

12.11 Schedule VII which is referable to Rule 31(4) sets out theRoster for “filling up vacancies in the District Judge Cadre by directrecruitment and by promotion.” First four points in the Roster are asunder:

1. By promotion-merit-cum-seniority

2. By promotion-merit-cum-seniority

3. By promotion-Limited Competitive Examination

4. By direct recruitment.

Said pattern is then followed in succession[13].

13. On 31.03.2010 a Notification was issued by the High Courtnotifying 58 vacancies to be filled in the cadre of District Judge. Out of58 vacancies so notified, 36 vacancies were to be filled by the DirectRecruitment from the Bar while remaining 22 vacancies were to befilled by promotion through LCE as provided in Rules 7, 8, 32(1) and40(1) along with Schedule-II to 2010 Rules. In this recruitment, no

13 The pattern was thereafter modified vide Notification dated 31.08.2012 althoughthe ratio between three sources was kept intact.

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Aprovision was made for 50% promotion quota meant for Promotees.Thereafter, a Notification was issued on 15.04.2010 inviting applicationsfrom Senior Civil Judges who had completed five years of actual servicefor being considered for 22 posts in the cadre of the District Judge to befilled by LCE and for filling up 36 vacancies through Direct Recruitment.

B14. In Malik Mazhar Sultan and others v. U.P. Public ServiceCommission[7], an affidavit was filed on behalf of the High Court in I.A.No. 73 of 2009. The stand taken by the High Court in said affidavit wasas under:- “2. It is submitted that in compliance of the directions of Hon’bleCCourt dated 21.03.2002 passed in All India Judges AssociationVs. UOI & Ors. (AIR 2002 SC 1752 +2002 (4) SCC 247), newRules for State Judicial Service, namely “Rajasthan State JudicialService Rules 2003” (hereinafter referred to as draft Rules of2003) were being framed, wherein provision of various modes ofRecruitment/Promotion as approved and directed by this Hon’bleDCourt had been incorporated.

3. In the draft Rules, 2003 a time bound schedule for recruitmentof the Judicial Officers was also provided, which was more orless on the same lines as directed by the Hon’ble Court in thismatter. However, there was variation between dates specified inEthe calendar provided in Schedule-III of the draft Rules of 2003and time schedule prescribed by the Hon’ble Court. As such, thetime schedule prescribed by the Hon’ble Court could beimplemented only after amending the Draft Rules, 2003 and duepromulgation of the same. Amendment in the Draft Rules of 2003Fwould have further required, approval of the Full Court of theHigh Court and consultation with the Rajasthan Public ServiceCommission resulting in further delay in due promulgation of theDraft Rules of 2003. Therefore, an application dated 11.07.2008for direction and modification was preferred by the RajasthanHigh Court before the Hon’ble Court and it was prayed that theGHon’ble Court may be pleased:- (a) to allow the application and permit the applicant/RajasthanHigh Court to follow the calendar as annexed in Schedule-III ofthe draft of Rules, 2003 after due promulgation thereof; and H

(b) to grant exemption to the applicant from implementing thetime Schedule as prescribed by the Hon’ble Court vide it’s orderdated 04.01.2007 till draft Rules 2003 are finalized and dulypromulgated.

This application for directions and modification was registered asI.A. No.39. Copy of the same is annexed herewith and markedas Annexure-R1.

4. It is submitted that while I.A. No.39 preferred by the RajasthanHigh Court was pending consideration, in pursuance of order dated24.07.2008 passed by this Hon’ble Court, a factual report on behalfof Rajasthan High Court with regard to filling of vacancies insubordinate judiciary in the format prescribed by the Hon’ble Courtwas filed by the answering respondent through an affidavit dated27.08.2008. True copy of the same is annexed herewith and markedas ANNEXURE-R-2.

5. It is submitted that while considering the factual report withregard to filling of vacancies in subordinate judiciary filed by theRajasthan High Court through the affidavit dated 27.08.2008(Annexure-R-2), the Hon’ble Court vide its order dated 23.09.2008(Annexure-A-1) dismissed the I.A. No.39 preferred by theRajasthan High Court.

6. It is submitted that meanwhile the Draft Rules 2003,incorporating the time schedule prescribed by the Hon’ble Courtand other necessary amendments were renamed as “RajasthanJudicial Service Rules, 2010” (hereinafter to be referred as Rules,2010) and the same have been duly promulgated and come intoforce w.e.f. the date of its publication in Rajasthan Gazettei.e.19.01.2010.

7. It is submitted that: on the date of submission of the IA i.e.10.10.2009, there were 75 vacancies in the cadre of RajasthanHigher Judicial Service and 33 vacancies in the cadre of CivilJudge (Sr. Division).

8. It is submitted that a report dated 23.08.2008 of a Committeeof Hon’ble Judges, constituted by the Hon’ble Chief Justice toconsider the matter regarding promotions in the cadre of DistrictJudge on the post of Additional District & Sessions Judge (regular),Additional District & Sessions Judge (Fast Track) and from the A

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post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr.Division), recommending promotions in these cadres was placedbefore the Hon’ble Full Court in its meeting held on 29.11.2008,13.02.2009 and 31.10.2009 but due to difference of opinion, thereport of the Hon’ble Committee could not be approved by theFull Court. However, Hon’ble Full Court in its meeting held on31.10.2009 approved the report of the Hon’ble Committee dated23.08.2008 to the extent of making promotion of 33 officers fromthe post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr.Division). Consequently, 33 officers have been promoted fromthe post of Civil Judge (Jr. Division) to that of Civil Judge (Sr.Division) vide order dated 30.11.2009. Copy of order dated30.11.2009 is annexed herewith and marked as ANNEXURE-R/3.

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9. It is submitted that the report dated 23.08.2008 of the Hon’bleCommittee regarding grant of promotions to the post of AdditionalDDistrict & Sessions Judge (regular) and Additional District &Sessions Judge (Fast Track) was again placed for considerationbefore the Hon’ble Full Court in its meeting held on 20.03.2010.Whereupon it was Resolved that the report requiresreconsideration by the Promotion Committee after consideringthe service record for subsequent period also and the report ofEthe Promotion Committee be placed before the Hon’ble FullCourt by circulation. Pursuant to the Full Court Resolution,Hon’ble Committee convened its meeting on 05-06.04.2010 andsubmitted its report, suggesting amendment in Rule 15 of theRajasthan Judicial Service Rules, 2010. This report of the Hon’bleFCommittee was placed before the Hon’ble Full Court in its meetingheld on 10.04.2010 whereupon it was Resolved to defer the matterregarding amendment in Rule 15 of Rajasthan Judicial ServiceRules, 2010 and also Resolved to again request the Committee toreconsider the matter regarding promotion as per Full CourtResolution dated 20.03.2010. It is submitted that pursuant to theGaforesaid Resolution the meeting of Hon’ble Committee has beenfixed on 12.04.2010 and 13.04.2010.

D

10. It is submitted that after the judgment dated 07.07.2009rendered by the Hon’ble Supreme Court in Civil Appeal No.5699/2000 High Court of Judicature for Rajasthan vs. Veena Verma &Ors. and the judgment of the same date rendered by the Hon’ble H

Court in Writ Petition Civil No.576/2003 RJS Officers Asson. Vs.State of Rajasthan & Ors. the matter of determination of vacanciesfor direct recruitment in Rajasthan Higher Judicial Service wasplaced before the Hon’ble Full Court vide Circulation Case No.10/2009 on 18.07.2009 and on account of different opinion of Hon’bleJudges, on 16.09.2009 the Hon’ble Chief Justice directed to putup the file later. In the meanwhile, Rajasthan Judicial Service Rules,2010 came into force w.e.f. 19.01.2010. Therefore, the matterregarding consideration of vacancies in each cadre under the Rulesof 2010 was considered by the Hon’ble Full Court in its meetingheld on 24.01.2010 and the same was resolved to be deferred.The matter was again placed before the Hon’ble Full Court in itsmeeting held on 20.03.2010 and as per Rajasthan Judicial ServiceRules, 2010, the category wise vacancy in the District Judge Cadreupto 31.03.2011 has been resolved to be determined as under –

(a) By promoting - 49

(b) By limited competitive examination- 22

(c) By direct recruitment- 36

”… … …

15. The matter in respect of consideration of the Report of theCommittee with respect to promotion of Additional District and SessionsJudges, including those who were manning Fast Track Courts, was takenup by the Full Court on 20.03.2010**[.] In March-April 2010, the Reportof the Committee and records of the services rendered by all theconcerned candidates were considered by the High Court and substantiveabsorption of those who were promoted to Fast Track Court andpromotion of some candidates to the cadre of District Judge on substantivebasis was approved by the Full Court.

16. On 21.04.2010 a formal Order was issued by the StateGovernment in view of the recommendation made by the High Court inits Resolution dated 12/13.04.2010 promoting 47 Judicial Officers whowere manning Fast Track Courts to the level of Additional District Judgesin accordance with the recommendation made by the Committee in itsReport dated 23.08.2008 (“the 47 Judicial Officers”, for short). It mustbe noted that the 47 Judicial Officers were not intimated by the HighCourt that they could appear at LCE to be conducted in pursuance ofthe Notification dated 15.04.2010. The Order recited as under:- AB

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534SUPREME COURT REPORTS

A“On the recommendation of Rajasthan High Court, H.E. theGovernment of State of Rajasthan is pleased to appoint/promotethe following 47 officers as Additional District and Sessions Judgesin the District Judge Cadre.”

On the same day i.e. on 21.04.2010 another Order was issuedBpromoting 49 Senior Civil Judges, including the petitioner in Writ Petition(Civil) No.1008 of 2019, as Additional District and Sessions Judges onad-hoc basis to man the Fast Track Courts.

17. The candidates who had applied in pursuance of theNotification dated 15.04.2010 appeared at the written examination heldCon 30.06.2010 and the successful candidates were then called forinterview. However, by communication dated 04.09.2010 interviews werepostponed sine die. Later, by Notification dated 22.09.2010 which wasissued in pursuance of the Resolution of the Full Court, the entireexamination process for recruitment by Direct Recruitment and throughLCE was directed to be held afresh.D

18. A Notification was issued on 31.03.2011 renotifying the numberof vacancies available for Direct Recruitment and for promotion throughLCE. Said Notification was as under:- “RAJASTHAN HIGH COURT JODHPUR

ENOTIFICATION

As per the determination of vacancies for the current year & thestrength of District Judge cadre being 245, the vacancies in theDistrict Judge cadre as hereby notified as under:- H

Competitive Examination -22Vacancies for promotion -33"

18.1. On the same day i.e. on 31.03.2011 two Orders were passedby the High Court; one abolishing 40 Fast Track Courts while the otherdirected continuation of the others “on ad-hoc basis as against the availablevacant posts” till the matter was considered for regular promotion. TheOrder stated:- “Consequent upon abolition of 40 ADJ (FT) Courts videGovernment Notification No.F.10(4) Nyay/98/Part dt. 31.3.2011,the following officers shown at SI. No.01 to 39 working as ADJ(FT) are continued on ad hoc basis as against the available vacantposts till the matter is considered for regular promotion inaccordance with Rules and are transferred/ posted as mentionedbelow. The officers shown at S.No.40 to 53 are alsotransferred / posted as mentioned below:-….”

19. A Bench of three Judges of this Court after noting its earlierJudgment in All India Judges’ Association vs. Union of India andOthers[1] modified certain directions contained therein by its Order dated20.04.2010[9]. The relevant paragraphs have already been quoated inparagraph 2.6 hereinabove.

20. On 10.06.2011, appropriate amendments were effected in 2010Rules to fix the quota for Promotees at 65% in accordance with theaforesaid Order dated 20.04.2010[9] issued by this Court and raising thecadre strength of District Judges from 245 to 255.

21. In Brij Mohan Lal v. Union of India and Others[14], thisCourt inter alia dealt with two Transferred Cases, one arising fromWrit Petition filed in the High Court of Punjab and Haryana seekingdirections to stop the scheme and policy of appointment of retired Districtand Sessions Judges as Ad-hoc Judges of the Fast Track Courts and theother filed in the High Court of Andhra Pradesh seeking declaration thatconstitution of Fast Track Courts was unconstitutional and consequentlybe set aside. This Court considered the entire scheme as well as therelevant provisions in various States and considered diverse submissions.One of the questions raised by this Court was:- A

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A“Whether any of the appointees to the post of ad hocJudges under the FTC Scheme have a right to the post in thecontext of the facts of the present case?”

21.1 Thereafter, the letters of appointment issued to variousappointees including those from the State of Rajasthan were consideredBand while dealing with the issue of regularization of service rendered bythe Judicial Officers’ manning Fast Track Courts, it was observed:- “172. The prayer for regularisation of service and absorptionof the petitioner appointees against the vacancies appearing inthe regular cadre has been made not only in cases involving theCcase of the State of Orissa, but even in other States. Absorptionin service is not a right. Regularisation also is not a statutory or alegal right enforceable by the persons appointed under differentrules to different posts. Regularisation shall depend upon the factsand circumstances of a given case as well as the relevant rulesapplicable to such class of persons.”D

21.2 In so far as the State of Rajasthan is concerned, it wasobserved:-

21.2 In so far as the State of Rajasthan is concerned, it wasobserved:- “177. In the case of State of Rajasthan, it is the judicialofficers from the cadre of Civil Judge, Senior Division, who wereEpromoted as FTC Judges. They have continued to hold those postsfor a considerable period. According to these petitioners, theywere promoted to the Higher Judicial Services as per the Rulesand, therefore, keeping in view the order of this Court inMadhumita Das[15] as well as the very essence of the FTC Scheme,they should be absorbed as members of the regular cadre of HigherFJudicial Services of the State of Rajasthan. The State Governmenthad issued a directive that they should undertake the limitedcompetitive examination for their regular promotion/absorption inthe higher cadre. These officers questioned the correctness ofthis directive on the ground that they were promoted as AdditionalGSessions Judges (FTC) under the Rules and, therefore, there wasno question of any further requirement for them to take any writtenexamination after the long years of service that they have alreadyput in in the Higher Judicial Services.

178. The Rajasthan Judicial Service Rules, 2010 are in forcefor appointment to the Higher Judicial Services of the State. Thejudgment of this Court in All India Judges’ Assn. (3) case[1] aswell as the relevant Rules contemplate that a person who is to bedirectly appointed to the Higher Judicial Services has to undergoa written examination and appear in an interview before he canbe appointed to the said cadre. As far as appointment by promotionis concerned, the promotion can be made by two different modesi.e. on the basis of seniority-cum-merit or through out-of-turnpromotion wherein any Civil Judge, Senior Division who has putin five years of service is required to take a competitiveexamination and then to the extent of 25% of the vacanciesavailable, such Judges would be promoted to the Higher JudicialServices.

179. It was admitted before us by the learned counselappearing for the petitioners that these officers who were promotedas ad hoc FTC Judges had not taken any written competitiveexamination before their promotion to this post under the HigherJudicial Services. In other words, they were promoted on ad hocbasis depending on the availability of vacancy in FTCs. Once theRules required a particular procedure to be adopted for promotionto the regular posts of the Higher Judicial Services, then thecompetent authority can effect the promotion only by that processand none other. In view of the admitted fact that these officershave not taken any written examination, we see no reason as tohow the challenge made by these judicial officers to the directiveissued by the State Government for undertaking of writtenexamination may be sustained. Thus, the relief prayed for cannotbe granted in its entirety.”

21.3 Finally, following directions were issued in paragraph 207:- “207. Without any intent to interfere with the policy decisiontaken by the Governments, but unmistakably, to protect theguarantees of Article 21 of the Constitution, to improve the justicedelivery system and fortify the independence of judiciary, whileensuring attainment of constitutional goals as well as to do completejustice to the lis before us, in terms of Article 142 of the Constitution,we pass the following orders and directions:

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207.1. Being a policy decision which has already takeneffect, we decline to strike down the policy decision of the Unionof India vide Letter dated 14-9-2010 not to finance the FTC Schemebeyond 31-3-2011.

207.2. All the States which have taken a policy decision tocontinue the FTC Scheme beyond 31-3-2011 shall adhere to therespective dates as announced, for example in the cases of Statesof Orissa (March 2013), Haryana (March 2016), Andhra Pradesh(March 2012) and Rajasthan (February 2013).

207.3. The States which are in the process of taking apolicy decision on whether or not to continue the FTC Scheme asa permanent feature of administration of justice in the respectiveStates are free to take such a decision.

207.4. It is directed that all the States, henceforth, shall nottake a decision to continue the FTC Scheme on ad hoc andtemporary basis. The States are at liberty to decide but only withregard either to bring the FTC Scheme to an end or to continuethe same as a permanent feature in the State.

207.5. The Union of India and the State Governments shallreallocate and utilise the funds apportioned by the 13th FinanceCommission and/or make provisions for such additional funds toensure regularisation of the FTC Judges in the manner indicatedand/or for creation of additional courts as directed in this judgment.

207.6. All the decisions taken and recommendations madeat the Chief Justices and Chief Ministers’ Conference shall beplaced before the Cabinet of the Centre or the State, as the casemay be, which alone shall have the authority to finally accept,modify or decline the implementation of such decisions and, thattoo, upon objective consideration and for valid reasons. Let theminutes of the Conference of 2009, at least now, be placed beforethe Cabinet within three months from the date of pronouncementof this judgment for its information and appropriate action.

207.7. No decision, recommendation or proposal made bythe Chief Justices and Chief Ministers’ Conference shall be rejectedor declined or varied at any bureaucratic level, in the hierarchy ofthe Governments, whether in the State or the Centre.

207.8. We hereby direct that it shall be for the CentralGovernment to provide funds for carrying out the directionscontained in this judgment and, if necessary, by reallocation offunds already allocated under the 13th Finance Commission forjudiciary. We further direct that for creation of additional 10%posts of the existing cadre, the burden shall be equally shared bythe Centre and the State Governments and funds be providedwithout any undue delay so that the courts can be established asper the schedule directed in this judgment.

207.9. All the persons who have been appointed by way ofdirect recruitment from the Bar as Judges to preside over FTCsunder the FTC Scheme shall be entitled to be appointed to theregular cadre of the Higher Judicial Services of the respectiveStates only in the following manner:

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

(b) Thereafter, they shall be subjected to an interviewby a Selection Committee consisting of the Chief Justice andfour senior most Judges of that High Court.

(c) There shall be 150 marks for the written examinationand 100 marks for the interview. The qualifying marks shall be40% aggregate for general candidates and 35% for SC/ST/OBC candidates. The examination and interview shall be heldin accordance with the relevant Rules enacted by the Statesfor direct appointment to Higher Judicial Services.

(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 andinterview should be conducted by the respective High Courtskeeping in mind that all these applicants have put in a numberof years 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.

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(f) The candidates who qualify the written examinationand obtain consolidated percentage as aforeindicated shall beappointed to the post of Additional District Judge in the regularcadre 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 necessary keepingin view the number of candidates selected.

(h) All sitting and/or former FTC Judges who weredirectly appointed from the Bar and are desirous of taking theexamination and interview for regular appointment shall be givenage relaxation. No application shall be rejected on the groundof age of the applicant being in excess of the prescribed age.

207.10. The members of the Bar who have directly beenappointed but whose services were either dispensed with orterminated on the ground of doubtful integrity, unsatisfactory workor against whom, on any other ground, disciplinary action hadbeen taken, shall not be eligible to the benefits stated in para 207.9of the judgment.

207.11. Keeping in view the need of the hour and theconstitutional mandate to provide fair and expeditious trial to alllitigants and the citizens of the country, we direct the respectiveStates and the Central Government to create 10% of the totalregular cadre of the State as additional posts within three monthsfrom today and take up the process for filling such additionalvacancies as per the Higher Judicial Service and Judicial ServicesRules of that State, immediately thereafter.

207.12. These directions, of course, are in addition to andnot in derogation of the recommendations that may be made bythe Law Commission of India and any other order which may bepassed by the courts of competent jurisdiction, in other suchmatters.

207.13. The candidates from any State, who were promotedas FTC Judges from the post of Civil Judge, Senior Division havingrequisite experience in service, shall be entitled to be absorbedand remain promoted to the Higher Judicial Services of that Statesubject to:

(a) Such promotion, when effected against the 25%quota for out-of-turn promotion on merit, in accordance withthe judgment of this Court in All India Judges’ Assn. (3)[ 1], bytaking and being selected through the requisite examination, ascontemplated 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 tothe 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 to theirperformance.

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

22. In the selection process undertaken pursuant to the Notificationdated 31.03.2011 for filling up vacancies through Direct Recruitment,LCE and Promotion, only 9 candidates could clear LCE against 22vacancies meant for that category. This number got reduced to 8 as thecandidature of one of the successful candidates was not accepted.Resultantly, the unfilled vacancies meant for LCE were added to thequota for Promotees and by Government Order dated 15.07.2013appropriate Appointment Orders were issued. The text of the Orderwas as under:- “In exercise of the powers conferred by Article 233(1) of theConstitution of India read with Rule 43 of the Rajasthan JudicialService Rules, 2010, the Governor of the State of Rajasthan onthe recommendation of the Rajasthan High Court is pleased toappoint the following persons recruited by promotion, limitedcompetitive examination and direct recruitment to the RajasthanJudicial Service in the District Judge Cadre in the pay scale ofRs.51550-1230-58930-1380-63070 [District Judge (Entry Level)]with such allowances as are admissible as per rules and their payshall be fixed as per rules. The persons appointed by directrecruitment shall be placed on probation for a period of two years A

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Afrom the date of assuming charge of their office as per Rule 44 ofthe Rajasthan Judicial Service Rules, 2010:…”

Thereafter, the names of 87 candidates were mentioned and thenames of 8 successful candidates in LCE were at Sr. Nos. 10, 19, 30,39, 50 59, 65 and 68.B

23. In the meantime, by Notification dated 31.03.2013 issued bythe High Court, 58 vacancies were determined for the years 2012-13and 2013-14 in the cadre of District Judge. This Notification also statedthat in case the cadre strength was revised to 362, the vacancies in thecadre of District Judge would be 165. On 14.09.2013, the strength ofCDistrict Judge cadre was revised to 372. By Notification dated 01.04.2014issued by the High Court, 204 vacancies were determined in the cadreof District Judge for the years 2012-13, 2013-14 and 2014-15. Therelevant portion of the Notification dated 01.04.2014 was as under:- “In suppression of earlier notification No.Estt.(RJS)/06/2014 datedD15.01.2014, as per schedule I of RJS rules 2010, the determinationof vacancies in District Judge Cadre for the year 2012-2013, 2013-14 and 2014-15 is hereby notified as under:- As per cadre strength – 372

Total vacancies – 186 + 18* = 204

EVacancies for district recruitment – 41

Vacancies for promotion by limited competitive examination – 29

Vacancies for promotion – 116

*Note:- 18 future vacancies (against 10% of the total Number ofFvacancies) are not assigned to any category for the present.However, these will be given as per roaster to the particularcategory wherein any vacancy(ies) on account of death elevation,dismissal etc. will arise.”

24. On 21.04.2014, 56 Senior Civil Judges were promoted asGAdditional District and Sessions Judges on Ad-hoc basis. The Orderrecited as under.

“On the recommendation of Rajasthan High Court, H.E. theGovernor of State of Rajasthan is pleased to appoint the following56 officers purely on ad-hoc basis as Additional District and H

Sessions Judge in the District Judge cadre under Rule 15 of theRajasthan Judicial Service Rules, 2010:-”

The names of concerned 56 Judicial Officers were thereaftermentioned in the Order.

25. On 15.12.2014 a final seniority list of all the Judicial Officerswho were then in service and appointed under the provisions of 1969Rules prior to 2008 (from Serial Nos.1 to 205) was published. Thisseniority list is not under challenge and is accepted to be correct by allthe concerned.

26. A Notification was issued on 31.03.2015 by the High Courtdetermining cumulative vacancies in the cadre of District Judge for theyears 2012-13, 2013-14, 2014-15 and 2015-16 as under:- “In supersession of earlier Notification No.Estt.(RJS)/33/2014dated 01.04.2014, as per Schedule-1 of RJS Rules, 2010, thecumulative vacancies in District judge cadre for the years 2012-13, 2-13-14, 2014-15 & 2015-16 are hereby determined andnotified as under:- As per cadre strength372Total Vacancies = 207+21228Vacancies for Direct Recruitment 44

*Note:- 21 future vacancies (against 10% of the total Number ofvacancies) are not assigned to any category for the present.However, these will be given as per roster to the particular categorywherein any vacancy (ies) on account of death elevation, dismissaletc. will arise.”

26.1 Pursuant to the selection undertaken thereafter by Orderdated 05.02.2016, 175 candidates were appointed to the cadre of DistrictJudge, which included recruitment through Promotion, LCE and DirectRecruitment, . The Order stated :- “i. This Select List in cyclic order has been prepared of thecandidates being recommended for appointment while leaving one A

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Apost unfilled for a candidate Shri. Akhilesh Kumar selected throughDirect Recruitment. However, it is notified that this list shall remainsubject to revision after receipt of complete verification reportfrom State Government with regard to Shri Akhilesh Kumar andon his being recommended by the Court for appointment, he shalloccupy the roster point in the cyclic order as he would haveBoccupied if included in the original list as per his position in orderor merit.

ii. This Select List in cyclic order has been prepared of thecandidates being recommended for appointment while leaving eightposts unfilled for eight Sr. Civil Judges, failing in the zone ofCconsideration for promotion on merit-cum-seniority basis as theirconsideration has been deferred due to pendency of departmentalenquiries against them. However, it is notified that this list shallremain subject to revision after outcome of the departmentalenquiries with regard to the said eight Sr. Civil Judges and on theirDbeing recommended by the court for promotion; they shall occupythe roster point in the cycle order as they would have occupied ifincluded in the original list as per their position in order of intereseseniority in their feeder cadre.”

26.2. The petitioners in Writ Petition (Civil) No.895 of 2019, WritEPetition (Civil) No.897 of 2019 and Writ Petition (Civil) No.899 of 2019were promoted to the cadre of District Judge by aforesaid order dated05.02.2016.

27. Thereafter, a Provisional Seniority List was issued videcommunication dated 16.08.2017 as regards Judicial Officers from Serial Nos. 206 onwards. The communication recited as under:-F

“TENTATIVE DETERMINATION OF SENIORITY OF THEOFFICERS OF DISTRICT JUDGE CADRE.

****

Final Seniority List of the officers of District Judge Cadre uptoGShri Nagendra Pal Bhandari was published on 15.12.2014.

After taking into consideration, the representations received fromthe officers of different categories and all relevant provisions, thetentative/provisional seniority list of the officers of District JudgeCadre next to Shri Nagendra Pal Bhandari is reckoned/proposed:”H

The names of all the concerned candidates were mentioned inthe Provisional Seniority List. The candidates, who were successful inLCE were given the original order of Seniority in the feeder cadre withoutgiving them any benefit for having successfully cleared the LCE. Furtherthe 47 Judicial Officers promoted on 21.04.2010 were en-bloc placedabove all the appointees pursuant to selection undertaken in 2011.

28. In August 2018, Writ Petition Nos.936 of 2018 and 967 of2018 namely Writ Petitions in Categories A and B referred to in Para 1hereinabove were filed in this Court submitting inter alia that post thecoming into effect of 2010 Rules, all the appointments in the categoriesof selection through LCE and Direct Recruitment had to be in conformitywith 2010 Rules and in tune with the Cyclic Order; that placement ofthe 47 Judicial Officers whose Appointment Orders were issued afterthe process was undertaken in the year 2010 for selection of candidatesthrough LCE and Direct Recruitment, was not correct.

29. Notice was issued by this Court in aforesaid Writ Petition(Civil) Nos.936 of 2018 and 967 of 2018 on 20.09.2018. On 14.12.2018the learned counsel for the High Court submitted that the objections tothe Provisional Lists were pending consideration with the High Court.Therefore, at his request the petitions were adjourned. Thereafter, theentire matter was considered by the High Court and by its Report dated15.03.2019 all the objections raised by the concerned candidates weredealt with. The report was thereafter placed on record. On 18.07.2019when said Writ Petitions and all other connected matters were taken up,it was highlighted that the 47 Judicial Officers were not promoted inconformity with Rule 32(1) of 2010 Rules, and, in any case, the principleof Cyclic Order, in terms of Rule 42, was also not complied with and yetthey were placed at Serial Nos.206 to 250. Since the 47 Judicial Officerswere not parties to the present proceedings, notice was issued to themby Order dated 18.07.2019.

30. In the meantime, the Report of the Committee of five Judgesof the High Court under the Chairmanship of the Chief Justice of theHigh Court which had considered all the representations was placed onrecord. The Committee had framed following four questions for itsconsideration in said Report dated 15.03.2019:-

(1) Whether the officers, who were promoted on the post ofAdditional District Judge (Fast Track) on ad-hoc basis under AB

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Rule 22 of the Rules of 1969, can claim seniority from thedate of such ad-hoc promotion in view of the first proviso toRule 24 of the Rules of 1969, by virtue of saving clause inRule 57 of the Rules of 2010, which were enforced on19.01.2010?

B(2) Whether the process of selection for direct recruitmentagainst 36 posts determined in the year 2010-11 should betaken to have commenced from 15.04.2010 when initialadvertisement for recruitment was issued or from 19.07.2011when fresh advertisement was issued after earlier processwas cancelled with the decision of the High Court to hold theCprocess of recruitment afresh?

(3) Whether seniority of officers of the same batch promoted tothe District Judge cadre in the Limited CompetitiveExamination quota, should be prepared on the basis of theirinter-se placement in the merit list of such examination underDRule 32(2) or should be, in view of Rule 47(4) of the Rules of2010, the same as it was in Senior Civil Judge cadre?

(4) Whether seniority of the officers promoted to the DistrictJudge cadre in view of Rule 31(4), is required to be fixed incyclic order as per roster given in Schedule V to Rules ofE2010 with adherence to quota-rota rule and what bearing inthe facts of the case, the opening words “As far as possible”in Rule 42 of the Rules, would have on determination ofseniority?

30.1 Before dealing with the aforesaid four questions, the scopeFof the matter was dealt with as under:- “The Rajasthan High Court notified the provisional seniority listof the officers of the District Judge cadre next to Shri NagendraPal Singh Bhandari on 16.08.2017, inviting objections thereto. Thisseniority list started from Shri N.S. Dhaddha at serial no.206 andGcontinued upto Shri Mohammad Arif at serial no.519. Recruitmentto District Judge cadre is made by three methods – 65% bypromotion, 10% by Limited Competitive Examination (for short,‘LCE), both from amongst the Senior Civil Judges and 25% bydirect recruitment from the members of the Bar. The officersfrom all the three streams submitted their written objections to H

the provisional seniority list. Meeting of the Committee wasconvened under the Chairmanship of the Chief Justice in theCommittee Hall of the High Court premises at Jodhpur on06.01.2019. Their oral submissions were also heard in support ofthe written objections already submitted.

… … …

We may at the outset make it clear that we do not wish to unsettlethe seniority position which has attained finality insofar as finalseniority list dated 15.12.2014 is concerned, because no one fromany of the three streams of recruitment has ever challenged thesame before any forum known to law. However, at the sametime, we wish to make it clear at this stage itself that while decidingthe objections as to correctness of the provisional seniority listdated 16.08.2017, we may not agree and may deviate from theprinciples on which the conclusions of the earlier senioritycommittee in its report are founded.”

30.2 With regard to first question the conclusion arrived at by theCommittee was as under:- “In view of the position of law discussed above, we are notpersuaded to countenance the submission that the promotes againstthe posts outside the cadre should be taken to have been promotedfrom the date of their ad hoc promotion either in the fast trackcourts or any other court, for the purpose of grant of senioritywith reference to proviso to Rule 24 even though their regularpromotion has actually taken place after the Rules of 1969 wererepealed and the Rules of 2010 were promulgated on 19.01.2010.We also cannot uphold the argument that any right stood crystalizedin favour of such promotes by reason of prescription made inproviso to Rule 24 and such right, by virtue of the savings clauseunder Rule 57 of the Rules of 2010, would remain protected so asto entitle them to claim seniority from the date of initial promotionon ad hoc basis even if their regular promotion has taken placelater than the promulgation of the Rules of 2010. We are notexamining the correctness of the order granting selection scale tocertain officers by counting the ad hoc service towards requisiteperiod of five years, but that cannot justify giving the benefit ofseniority on the basis of ad hoc promotion in view of theinterpretation of the extant rules we have taken in the light of A

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settled proposition of law. In our considered view, all those whowere promoted on ad hoc basis earlier under the Rules of 1969,prior to promulgation of the Rules of 2010, can be given seniorityonly from the date of their substantive appointment, upon regularpromotion, which took place after the Rules of 2010 came intoforce with effect from 19.01.2010. There is therefore no legaljustification for en-bloc placement of such officers in the provisionalseniority list on the basis of revision of cadre strength, whentemporary/permanent posts included in the cadre with increaseof its strength from 150 to 245 and every time later when thecadre strength was revised from 246 to 255, 256 to 265 and 266to 372 respectively.”

30.3 With regard to second question the conclusion was as under:- “In the case at hand, it should be noted that the process ofrecruitment was initially notified vide advertisement dated15.04.2010, but the entire selection process both by directrecruitment as well by promotion through LCE was abandonedpursuant to decision of the Full Court, which is evident from theorder of the Registrar General of the Rajasthan High Court dated22.09.2010, whereby it was decided that recruitment process shallbe initiated afresh. New process of selection/recruitment wasstarted in both these categories by notification dated 19.07.2011.Out of 41 candidates, who were selected in the year 2013 by wayof direct recruitment pursuant to the said notification, there are atleast 15 such candidates, whose names did not find place either inthe eligibility list or rejection list, as per the information furnishedby the Examination Cell of the High Court. These names are –(1) Shri Malkhan Singh, (2) Shri Ram Suresh Prasad, (3) ShriManchha Ram Suthar, (4) Shri Keshav Kaushik, (5) Shri DineshTyagi, (6) Shri Hariom Sharma Attri, (7) Shri Arun Kumar Beriwal,(8) Shri Hukam Singh Rajpurohit, (9) Ms. Shivani Singh, (10) ShriMashroor Alam Khan, (11) Ramesh Prashad Choudhary, (12)Ms. Meenakshi Sharma, (13) Ms. Anu Aggarwal, (14) Shri KishanChand, and (15) Shri Satish Kumar. This proves that either theywere not eligible, or even if eligible, they did not apply in responseto the earlier notification for recruitment dated 15.04.2010. Weare therefore not inclined to uphold the claim of direct recruitsthat they should be conferred the benefit of seniority from the

year 2010. In any event, the direct recruits cannot claim seniorityearlier than initiation of fresh process of selection pursuant tonotification dated 19.07.2011 during the year 2011-12. The resultof this would be that these direct recruits would not be entitled toclaim seniority over at least those 47 officers, who were promotedon regular basis vide order dated 21.04.2010 in the year 2010-11after the Rules of 2010 came into force. The direct recruits cannottherefore claim seniority above those officers, who were promotedon regular basis soon after promulgation of the Rules of 2010,when they were not even borne on the cadre.”

(emphasis supplied)

30.4 While dealing with third question the Committee concluded:- “…We are therefore of the view that merit of those promotedthrough LCE should by virtue of Rule 32(2) be considered as thebenchmark for promotion, inter-se seniority amongst them in thefeeder cadre being maintained by prescription of Rule 47(4), subjectto the exception that if an officer by regular method of promotionis able to otherwise secure promotion in the same year in theregular line on his turn and on that basis he gets a higher placementin the seniority, regardless of his selection in the LCE, he shouldnot be put to a disadvantageous position and allowed to retain hisposition in the seniority based on his regular promotion. In otherwords, such officer would be entitled to retain seniority, either onthe basis of LCE or on the basis of regular promotion, whicheveris more beneficial to him.”

30.5 Finally, while dealing with fourth question, the Committeetook into account that there was no actual recruitment in the years 2012-13, 2013-14 and 2014-15 and the recruitment process commenced bythe Notification dated 26.04.2015 was with regard to vacancies of allfour years i.e. 2012-13, 2013-14, 2014-15 and 2015-16. In thecircumstances, it was concluded:- “As far as the period subsequent to the roster order dated15.07.2013 is concerned, the determination of vacancies was madeevery year fairly regularly as noticed above, but actual recruitmentfrom none of the three modes could take place in any one of theyears 2012-13, 2013-14 and 2014-15. Finally again the recruitmentprocess commenced by notification dated 26.04.2015 in the year A

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2015-16. Since the vacancies of all four years, viz., 2012-13, 2013-14, 2014-15 and 2015-16, were combined, even if some of theofficers were in between allowed to continue on the post ofAdditional District & Sessions Judge on ad hoc basis, they cannotin view of the afore-discussed provisions of the Rules claimseniority on that basis. The vacancies of all these four years havingbeen determined as those of the year 2015-16, all the appointments,by direct recruitment, LCE or regular promotion, should be deemedto belong to the year 2015-16.

…. …. …

Perusal of the provisional seniority list shows that all 56 officersstarting from Shri Satish Kumar Vyas (S.No.369) upto Shri JaiPrakash Narain Purohit (S.No.423), promoted on ad hoc basisvide order dated 21.04.2014 as Additional District Judge in the DJcadre under Rule 15 of the Rules of 2010, have been wronglyassigned higher seniority. Thereafter, 26 officers starting fromShri Paras Kumar Jain (S.No.424*) upto Shri Jagendra KumarAgarwal (S.No.450), all promoted on ad hoc basis by order dated21.04.2015 also have been wrongly assigned higher seniority inthe provisional seniority list. The next slot of officers starting fromShri Ashok Kumar Agarwal (S.No.451) onwards though have beenpromoted on regular basis by order dated 05.02.2016, but theyhave been all placed en-bloc senior to those who were selectedagainst direct recruitment quota. Surprisingly, the cadre strengthwas initially increased with the enforcement of the Rules of 2010on 19.01.2010, but the High Court administration has applied thesame analogy of revision of cadre strength even on threesubsequent occasions for placing all the officers appointed on adhoc basis en-bloc in the seniority above those directly recruited.Some of the officers, who though got regular promotion vide orderdated 05.02.2016, deviating from the roster point indicated in theorder of promotion dated 05.02.2016, have been placed en-blocabove the officers of direct recruitment and LCE quota by wronglyapplying the proviso to Rule 24 as if this repealed Rule wouldperpetually survive by mere reason of ad hoc promotions, for eachsucceeding year. Grant of benefit of seniority to officers promotedon ad hoc basis was thus contrary to the provisions contained inRule 15 and 47(4).

Taking all the aforementioned circumstances into account, weare inclined to hold that each of the years 2012-13, 2013-14, 2014-15 for the purpose of operating the roster system should be treatedas zero recruitment year and that the recruitment against combined207 vacancies determined for these years and the year 2015-16,should be taken as the vacancies of the year 2015-16 so as tomake the Rule 42 of the Rules of 2010 workable, which beginswith the phraseology “As far as possible”, a select list as providedin Schedule-V shall be prepared by the High Court. Such selectlist in the cyclic order as per the roster point was earlier preparedby order dated 15.07.2013 and also when the next regular selectionstook place vide order dated 05.02.2016 but this was not trulyreflected in the seniority list. All the officers promoted on regularbasis by order dated 05.02.2016 should be taken to have beensubstantively appointed from that date only. If this view is taken,no prejudice would be caused to any class of the officers as noneof them would compete for promotion/appointment in theirrespective category in previous three years. Vacancies of allthese three years having been clubbed with the vacancies of theyear 2015-16 to be determined as the vacancies of that year, eachone of them has had opportunity to compete with his fellow officers/candidates for substantive appointment by way of promotion/LCE/direct-recruitment, to the DJ cadre together.”

31. Mr. Ranjit Kumar, learned Senior Advocate and Mr. A.D.N.Rao, learned Advocate for the petitioners in Writ Petition (Civil) No.936of 2018, and Mr. P.S. Patwalia and Mr. Nitesh Gupta, learned SeniorAdvocates for the petitioners in Writ Petition (Civil) No.967 of 2018submitted that in terms of the provisions of 2010 Rules, any appointmentsmade after said Rules came into effect, had to be in conformity with theprinciples therein and in accordance with the percentages for threedifferent sources set out therein. It was submitted that before 2010Rules came into effect, the strength of the cadre of District Judge in theState was 150 and it got raised to 245 only after 2010 Rules came intoeffect. Relying on the decisions of this Court in Debabrata Dash andAnother v. Jatindra Prasad Das and Others[16], V.Venkata Prasadand Others v. High Court of A.P. and Other[17]and in Kum C. Yamini 16 (2013) 3 SCC 658

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Av. The State of Andhra Pradesh[18], it was submitted that no servicerendered on ad-hoc basis as Fast Track Court Judges could be countedand that the rights of such candidates to be considered for promotionarose only after 2010 Rules and that since the Notification dated31.03.2010 notified vacancies to be filled up by Direct Recruitmentand through LCE, the High Court could not have promoted the 47 JudicialBOfficers by Order dated 21.04.2010 so as to adversely affect the chancesand status of the petitioners. It was submitted that the entire exercisemust be taken to be one single package under which appointments throughall three sources could be undertaken after the vacancies becameavailable by enhancement of cadre strength; and that the entire exerciseCundertaken after issuance of the Notification on 31.03.2011 was nothingbut continuation of what was contemplated by the Notification dated15.04.2010. It was, therefore, submitted that the vacancies which weresubject matter of Notification dated 31.03.2011 and the posting of the 47Judicial Officers pursuant to Order dated 21.04.2010 must be consideredas part of the same process. Resultantly, the placement of the concernedDcandidates ought to be governed by the Cyclic Order enumerated inSchedule VII to 2010 Rules. Reliance was placed on the decision of thisCourt in Union of India and Others v. N. R. Parmar and Others[19].Mr. Nikhil Singhvi, learned Advocate for the petitioners in WritPetition (Civil) Diary No.13252 of 2019 added another dimension inErespect of LCE candidates. It was submitted that in keeping with thedirections issued by this Court in para 28 in All India Judges’Association[1] the promotions through LCE must be “strictly on the basisof merit” and that Rule 31(2) of 2010 Rules translates the same principleand, therefore, the ranking of the candidates who had cleared LCE mustFbe in accordance with merit and not in accordance with their inter seseniority in the erstwhile cadre.

32. On the other hand, Mr. R. Balasubramanian, learned SeniorAdvocate and Ms. Prerna Singh, learned Advocate appearing for the 47candidates submitted that said candidates were promoted well beforeGthe initiation of selection process initiated pursuant to the Notificationdated 31.03.2011; that said Notification was not in continuation of theprocess initiated in 2010; that number of candidates who were selectedin the selection process pursuant to the Notification dated 31.03.2011

18 (2019) 10 SCALE 834 = 2019(8) JT 365H19 (2012) 13 SCC 340

had not even participated in the process initiated in 2010 and theCommittee of the High Court in its Report dated 15.03.2019 rightlyanswered Question No.2 in the negative. In their submission, the issueof regular promotion of those who were manning the Fast Track Courton ad-hoc basis was always under consideration right from 23.08.2008when a Committee of the High Court had made its recommendations. Inthe process, the case of the 47 candidates stood on a completely differentfooting and the Committee of the High Court in its Report dated15.03.2019 rightly acknowledged their entitlement.

33. Mr. Vijay Hansaria, learned Senior Advocate appearing forthe petitioners in Writ Petition (Civil) No.464 of 2019 submitted that allthese petitioners were appointed on ad-hoc basis as Fast Track CourtJudges in the year 2008 and as a matter of fact, 4 Judicial Officers whowere also appointed along with these petitioners in the year 2008 werepart of the list of the 47 candidates at Serial Nos.44 to 47 whereas thesepetitioners were not included in said list. These Petitioners, therefore,pray that the order dated 15.03.2019 be set aside to the extent it deprivedsaid petitioners of their rightful due and they be given seniority fromtheir initial appointment as Judges of the Fast Track Court that is from11.01.2008 or, at least, above all LCE candidates and Direct Recruits aswas given to the 47 candidates. It was further submitted that out of 83Fast Track Courts which were mentioned in Part A of Schedule II to2010 Rules, 40 Courts were abolished on 31.03.2011 and the petitionerswere continued as Additional District Judges against vacant regular postsvide Order dated 31.03.2011. However, their substantive promotion tothe Cadre of District Judge was made on 15.07.2013 along with theDirect Recruits and candidates through LCE. It was submitted that theirinitial appointments being under 1969 Rules and the fact that they wereoccupying posts indicated in Part A of Schedule II as stated above, theircase would be covered by Rule 57 of 2010 Rules. It was howeveraccepted that some of the petitioners had participated in the LCE aroundthat time.

34. Mr. Neeraj Jain, learned Senior Advocate for the Associationin Writ Petition (Civil) No.1471 of 2018 submitted that as acknowledgedin the decision of this Court in Rajasthan Judicial Service OfficersAssociation[11] there were 41 Direct Recruits in the Cadre of DistrictJudges in the year 2009 and as such it was incorrect to assess thevacancies for Direct Recruits in the Notifications dated 15.04.2010 and AB

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A31.03.20111 at the level of 36 and 37 respectively. In his submission theallocation of vacancies to Direct Recruits was in excess of theirentitlement.

35. Mr. V.K. Shukla, learned Senior Advocate appeared for thepetitioners in Writ Petition (Civil) No.899 of 2019, who were promotedBon ad-hoc basis as Additional District and Sessions Judges to man theFast Track Courts on 21.04.2010 i.e. after 2010 Rules had come intoforce and who were substantively promoted to the Cadre of DistrictJudge by Order dated 05.02.2016. It was submitted that their services atthe level of Additional District and Sessions Judge were continued evenafter abolition of Fast Track Courts and thus said petitioners ought to beCgiven the benefit of past service and be conferred appropriate seniority.

36. Dr. Sumant Bhardwaj, learned Advocate appeared for thepetitioner in Writ Petition (Civil) No.1008 of 2019, where the petitionerstands on similar footing as in Writ Petition (Civil) No.899 of 2019, inthat the ad-hoc promotion to the Cadre of District Judge was granted inDthe year 2012.

37. Dr. Manish Singhvi, and Mr. Sanjay Hegde, learned SeniorAdvocates appearing for the State and the High Court respectivelysupported the actions taken by the High Court on the administrativeside.E

38. In the backdrop of the facts and circumstances on record andthe submissions of all the learned Counsel, following questions arise forour consideration:- (A) Whether the judicial officers promoted on ad-hoc basis asFAdditional District and Sessions Judges to man the Fast Track Courts inthe State and who were substantively appointed to the Cadre of theDistrict Judge, are entitled to seniority from the date of their initial ad-hoc promotion?

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

(C) Whether the substantive promotion granted to the 47 JudicialOfficers must be taken to be part of the same selection process pursuantto the Notification dated 31.03.2011 and whether the 47 Judicial Officerscould be placed en-bloc senior to the candidates selected in said selectionH

process initiated pursuant to the Notification dated 31.03.2011, withoutapplying the Cyclic Order in terms of 2010 Rules?

(D) Whether the inter se placement of candidates selected to theCadre of District Judge in the State through Limited CompetitiveExamination, in the seniority list must be based on their merit in saidexamination or should it be based on their initial seniority in the erstwhilecadre?

(E) Whether the Report dated 15.03.2019 and the consequentialFinal Seniority List, otherwise calls for any modification or correction?

39. As regards question No. (A), the law on the point is wellsettled and though learned Counsel advanced submissions based onvarious decisions of this Court and the principles emanating therefrom,the following decisions in the context of ad-hoc appointments as AdditionalDistrict and Sessions Judges to man Fast Track Courts in the country,are sufficient to address the issue.

(A) In Debabrata Dash and Another v. Jatindra Prasad Dasand Others[16], a Bench of three Judges of this Court considered thecase wherein respondent No.1 was initially appointed as AdditionalDistrict Judge (Fast Track Court) on ad-hoc basis and later his servicewas regularized in the Senior Branch Cadre in Orrisa Superior JudicialService. His claim that service rendered as Judge of the Fast TrackCourt ought to be reckoned for seniority was accepted by the OrissaHigh Court. This Court, however, set aside the decision of the HighCourt. The question that came up for consideration was posed in para28 as under:- “28. The crucial question that arises for consideration inthis appeal is:

whether promotion of the writ petitioner as an ad hocAdditional District Judge vide Notification dated 5-1-2002 to theSenior Branch of the Superior Judicial Service for being posted inthe Fast Track Court established out of the Eleventh FinanceCommission recommendations can be said to be an appointmentin the Senior Branch Cadre of Superior Judicial Service?

The fate of the appeal depends upon the answer to thisquestion. If the answer to this question is found in the affirmative,the appeal must fail. On the other hand, the appeal must succeedif the answer is in the negative.”

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This Court thereafter considered the effect of 2001 Rules whichwere made to regulate the recruitment of Judicial Officers in the Stateto man Fast Track Courts on ad-hoc basis. Para 35 considered the effectof the Rules as under:-

“35. As noted earlier, 72 posts of ad hoc Additional District JudgesBwere created under the 2001 Rules to meet its objectives. Theseposts were not part of cadre strength of Senior Branch Service inthe 1963 Rules nor by creation of these posts under the 2001Rules, the cadre strength of the Senior Branch of service gotincreased. The writ petitioner’s promotion as an ad hoc AdditionalDistrict Judge vide Notification dated 5-1-2002 pursuant to whichChe joined the post of ad hoc Additional District Judge, Bargarh on26-4-2002 is traceable wholly and squarely to the 2001 Rules.Merely because the writ petitioner was adjudged suitable on thetouchstone of the 1963 Rules, we are afraid, it cannot be said thathe was given appointment to the post of ad hoc Additional DistrictDJudge under the 1963 Rules. As noted above, there was no vacancyto be filled by promotion in the cadre strength of Senior Branch ofthe service under the 1963 Rules on that date.”

The decisions of this Court in Direct Recruit Class II Engg.Officers’ Assn.[20] and Rudra Kumar Sain[21] as well as in Brij MohanLal[6] were also considered as under:-E

41. A five-Judge Bench of this Court in Direct RecruitClass II Engg. Officers’ Assn.[20] was concerned with a questionof seniority in service between the direct recruits and promoteesamongst Deputy Engineers in the State of Maharashtra. This Courtconsidered previous decisions of this Court, including S.B.FPatwardhan v. State of Maharashtra[22] and Baleshwar Dass v.State of U.P.[23] and in para 47 of the Report summed up the legalposition. Clauses (A), (B) and (C) of para 47 are relevant for thepresent purpose which read as follows: (Direct Recruit Class IIEngg. Officers’ Assn.[20], SCC p. 745, para 47)

“(A) Once an incumbent is appointed to a post accordingto rule, his seniority has to be counted from the date of hisappointment and not according to the date of his confirmation.20 (1990) 2 SCC 71521 (2008) 8 SCC 25

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The corollary of the above rule is that where the initial appointmentis only ad hoc and not according to rules and made as a stop gaparrangement, the officiation in such post cannot be taken intoaccount for considering the seniority.

(B) If the initial appointment is not made by followingthe procedure laid down by the rules but the appointee continuesin the post uninterruptedly till the regularisation of his servicein accordance with the rules, the period of officiating servicewill be counted.

(C) When appointments are made from more than onesource, it is permissible to fix the ratio for recruitment from thedifferent sources, and if rules are framed in this regard theymust ordinarily be followed strictly.”

The essence of direction in Clause (A) is that the seniority of anappointee has to be counted from the date of his appointment andnot according to the date of his confirmation once a recruitee isappointed to a post according to the rules. In other words, whereinitial appointment is only ad hoc and not according to the rulesand made as a stopgap arrangement, the officiation in such postcannot be taken into account for considering the seniority. Thewrit petitioner’s appointment as an ad hoc Additional District Judgeis not traceable to the 1963 Rules. The simple reason leading tothis consequence is that there was no vacancy available whichwas to be filled up by promotion on that date in the Superior JudicialService (Senior Branch).

42. In Rudra Kumar Sain[21] a five-Judge Bench of this Courtwas again concerned with the inter se seniority between the promoteesand direct recruits in the Delhi Higher Judicial Service. The contentionwas whether the guidelines and directions given by this Court inO. P. Singla[24 ]have been followed or not. The Court considered the 3terms “ad hoc”, “stopgap” and “fortuitous” in the context of the servicejurisprudence and in para 20 of the Report held as under: (Rudra KumarSain case[21], SCC p. 45)

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and then he is appointed with the approval and consultation ofthe appropriate authority and continues in the post for a fairlylong period, then such an appointment cannot be held to be‘stopgap or fortuitous or purely ad hoc’. In this view of thematter, the reasoning and basis on which the appointment ofthe promotees in the Delhi Higher Judicial Service in the casein hand was held by the High Court to be ‘fortuitous/ad hoc/stopgap’ are wholly erroneous and, therefore, exclusion of thoseappointees to have their continuous length of service forseniority is erroneous.”

The Division Bench in the impugned order[25] has quoted the aboveparagraph from Rudra Kumar Sain[21] but applied it wrongly.

43. In Brij Mohan Lal (1)[6] a three-Judge Bench of thisCourt, inter alia, considered the Fast Track Courts Scheme. Inpara 10 of the judgment, this Court gave various directions.Direction 14 in that paragraph is relevant which can beparaphrased as follows: (SCC p. 10)

(i) No right will be conferred on judicial officers in servicefor claiming any regular promotion on the basis of his/herappointment on ad hoc basis under the Scheme.

(ii) The service rendered in the Fast Track Courts willbe deemed as service rendered in the parent cadre.

(iii) In case any judicial officer is promoted to highergrade in the parent cadre during his tenure in Fast Track Courts,the service rendered in Fast Track Courts will be deemed tobe service in such higher grade.

44. The learned Senior Counsel for the writ petitionerheavily relied upon the third part of Direction 14. As a matter offact, this part has been relied upon in the impugned judgment[1]aswell. It is submitted on behalf of the writ petitioner that on promotionto the Senior Branch Cadre of Superior Judicial Service duringhis tenure in the Fast Track Courts, the writ petitioner is entitledto the counting of the service rendered by him in the Fast TrackCourt as a service in Superior Judicial Service (Senior Branch).

25 Jatindra Prasad Das v. State of Orissa, WP(C) No.21449 of 2011, decided onH15-11-2011 (Ori)

The submission overlooks the first two parts of Direction 14, one,no right will be conferred in judicial service for claiming any regularpromotion on the basis of his/her appointment on ad hoc basisunder the scheme; and two, the service rendered in Fast TrackCourts will be deemed as service rendered in the parent cadre. Inour opinion, until the vacancy occurred in the cadre of SuperiorJudicial Service (Senior Branch) which was to be filled up bypromotion, the service rendered by the writ petitioner in the FastTrack Court cannot be deemed to be service rendered in theSuperior Judicial Service (Senior Branch). Rather until then, hecontinued to be a member of the parent cadre i.e. Superior JudicialService (Junior Branch). The third part of Direction 14, in ourview, does not deserve to be read in a manner that overrides the1963 Rules.”

(B) In V. Venkata Prasad and Others v. High Court of A.P.and Others[17], a Bench of two Judges of this Court considered the casewhich arose in almost identical fact situation. The claim of the concernedJudicial Officer for reckoning the service rendered as Additional DistrictJudge (Fast Track Courts) on ad-hoc basis was rejected. Reliance wasplaced on the decision of this Court in Debabrata Dash[19 ]and the ratioin that decision was followed.

(C) In Kum C. Yamini v. The State of Andhra Pradesh[18 ]abench of three Judges of this Court considered the issue where thecandidates from the Bar were appointed on ad-hoc basis and after theirconsideration, claim was raised to reckon their seniority from the date ofinitial ad-hoc appointment. The relevant observations are :- “12. While rejecting the claim for their absorption and challengeto the notification issued for the recruitment in the regular cadreposts, certain directions were issued in Brij Mohan Lal (2) (supra)for considering the claims of ad hoc judges appointed to Fast TrackCourts into regular cadre posts. Following the directions only, thesecond respondent has issued notification inviting applications forappointments to the regular cadre of District Judges and appellantsand others responded to such notification and totally 12 of themwere selected for regular vacancies. In the appointment orderdated 02.07.2013 in G.O.MS. No.68 issued by Law (LA & J-SC.F) Department, they were put on probation for a period oftwo years and after the declaration of successful probation and AB

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nearly after four years of appointment, the present claim is madeclaiming seniority from the date of their initial appointment, as adhoc District Judges.

13. The claim of the appellants that they were appointed as adhoc District Judges by following the procedure which is similar toBthe procedure for appointments to the sanctioned posts in theregular cadre, is no ground to accede to their request to reckontheir seniority in the permanent cadre of District Judges, fromtheir initial appointment as the District Judges for the Fast TrackCourts. The appointments which came to be made for selectingDistrict Judges for Fast Track Courts sanctioned under the 11thCFinance Scheme are totally different and distinct, compared toappointments which are to be made for regular vacant posts ofDistrict Judges covered under A.P. Higher Judicial Service. If aperson is not appointed to any post in the cadre, such person cannotclaim any seniority over the persons who are appointed in vacantDposts in the cadre. The Fast Track Courts which were sanctionedinitially for five years from the grants of 11th Finance Commission,were continued in some States beyond such period with theassistance, from States and such Fast Track Courts werediscontinued in some other States. Merely on the ground that theywere selected by following the same procedure akin to that ofEregular selections, is no ground to consider their claim for grant ofseniority from the date of initial appointment. When their claimfor regularisation/absorption and challenge to notification issuedin the year 2004 for making selections to the vacant regular postsof District Judges is rejected by the High Court and confirmed byFthis Court, we are of the view that the appellants have no basis toclaim seniority from the date of initial appointment. In any event,having applied in response to the notification issued by the HighCourt in the year 2013 after availing the benefit of appointment, itis not open to the appellants to question the conditions imposed inthe order which is in conformity with rules. Undisputedly, appellantGwas appointed as ad hoc District Judges to preside over the FastTrack Courts only. Initially when she was not appointed to a postor category of posts, forming part of cadre strength in suchcategory, appellant cannot claim any seniority over the personsregularly appointed in the category of posts forming part of cadreHstrength. There is yet another ground to reject the claim of the D

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appellant. Though the appellant claims seniority over the personswho are appointed in regular vacant posts forming part of cadrestrength but they are not even made parties. On this ground also,the claim of the appellants deserves rejection.

14. We have perused the judgment relied on by the appellant partyin person, in the case of Rudra Kumar Sain & Ors. v. Union ofIndia & Ors. (supra). In the aforesaid case, issue relates to claimof seniority between direct recruits and promotees. Learned seniorcounsel Sri Venkataramani, has also relied on the judgments ofthis Court in the case of Brij Mohan Lal (1) v. Union of India &Ors. (supra); in the case of Debabrata Dash & Anr. v. JatindraPrasad Das & Ors. (supra); in the case of V. Venkata Prasad &Ors. v. High Court of Andhra Pradesh & Ors. (supra) and in thecase of Brij Mohan Lal (2) v. Union of India & Ors. (supra). Wehave looked into the judgments referred above by the learnedsenior counsel Sri Venkataramani and the party in person. Havingregard to issue involved in the present appeals, we are of theview that the ratio decided in the aforesaid cases would not renderany assistance in support of their claim in these cases. The claimof seniority will depend upon several factors, nature ofappointment, rules as per which the appointments are made andwhen appointments are made, were such appointments to thecadre posts or not etc. When the appellants were not appointed toany regular posts in the A.P. Judicial Service, appellants cannotclaim seniority based on their ad hoc appointments to preside overFast Track Courts. We are of the view that the ratio decided inthe said judgments relied on by the appellants would not renderany assistance in support of their case.

15. On the other hand, the judgment in the case of V. VenkataPrasad & Ors. v. High Court of Andhra Pradesh & Ors. (supra),this Court has, in clear terms, while considering A.P. State HigherJudicial Service Special Rules for Ad Hoc Appointments, 2001held that such appointments in respect of Fast Track Courts aread hoc in nature and no right accrues to such appointees. Theaforesaid view of this Court clearly supports the case of therespondents. Paragraph 25 of the said case which is relevant forthe purpose of these cases reads as under : “25. From the aforesaidtwo authorities, it is quite clear that the appointments in respect of A

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AFast Track Courts are ad hoc in nature and no right is to accrue tosuch recruits promoted/posted on ad hoc basis from the lowerjudiciary for the regular promotion on the basis of such appointment.It has been categorically stated that FTC Judges were appointedunder a separate set of rules than the rules governing the regularappointment in the State Higher Judicial Services.”B

The decisions in Debabrata Dash[16], and V. Venkata Prasad[17]were in the context where serving Judicial Officers were granted ad-hoc promotions as Fast Track Court Judges, while in C. Yamini[18 ]themembers of the Bar were appointed as Fast Track Court Judges andthese decisions thus completely conclude the issue. As has been held inCsaid decisions, the reckonable date has to be the date when substantiveappointment is made and not from the date of the initial ad-hocappointment or promotion. Question (A) is, therefore, answered in thenegative.

40. As regards Question No.(B), it is relevant to note that theDNotification dated 15.04.2010 had invited application for filling up 36vacancies by Direct Recruitments and 22 vacancies by Promotionthrough LCE. This was preceded by determination of vacancies throughNotification dated 31.03.2010. After the process initiated in terms ofsaid Notification dated 15.04.2010 was cancelled, a fresh determinationEof the vacancies was undertaken and the Notification dated 31.03.2011now found vacancies for Direct Recruitments, for Promotion throughLCE and for Regular Promotion at 37, 32 and 24 respectively. Thus, thevacancies which became available post the Notification dated 15.04.2010were also taken into account. The Report dated 15.03.2019 shows thatsome of the selected candidates in the process pursuant to the NotificationFdated 31.03.2011 had not even participated in the earlier process of 2010.In the premises, if the submission that the process initiated under theNotification dated 31.03.2011 must be held to be in continuation of theearlier selection of 2010 is accepted, it would amount to conferring undueadvantages upon persons who either had not participated in the processGof 2010 or who were not even eligible in 2010. The Report dated15.03.2019, therefore, correctly appreciated the fact situation on recordand concluded that it would not be in continuation of the earlier process.

41. As regards Question No.(C), it must be noted that as on thedate when 2010 Rules came into effect, the Additional District andHSessions Judges manning the Fast Track Courts had rendered service in ad-hoc capacity for almost 07 years. The question whether they begranted promotion on Regular Basis was subject matter of considerationof the High Court. The Report of the Committee of Judges given in 2008had advised that they be granted Regular Promotion and the matter wasgetting deferred at the level of the Full Court. It was at this stage that2010 Rules became effective from 18.01.2010. Even thereafter, theNotification dated 31.03.2010 had published the vacancy situation onlyin respect of Direct Recruitment and Promotion through LCE. It wasobviously so, as the issue regarding grant of Regular Promotion onsubstantive basis to those Fast Track Court Judges was simultaneouslyunder consideration and on 21.04.2010 a formal Order was passedpromoting the 47 Judicial Officers on substantive basis to the Cadre ofDistrict Judge. The grant of promotion to the 47 Judicial Officers andselection process pursuant to the Notification dated 15.04.2010 werenot part of the same process and were completely independent. None ofthe 47 Judicial Officers had the occasion to compete in the LCE thatwas undertaken in terms of the Notification dated 15.04.2010. It is possibleto say that the last of the 47 Judicial Officers could as well have beenthe first in the list of successful candidates through LCE and thus couldpossibly have been entitled to better placement. In any case, the processinitiated pursuant to the Notification dated 15.04.2010 was cancelled foradministrative reasons and the appointments in respect of processpursuant to the Notification dated 31.03.2011 could be effected only inthe year 2013, i.e. more than 03 years after the 47 Judicial Officerswere granted substantive appointment to the Cadre of District Judge.Further, if grant of promotion to the 47 Judicial Officers is taken to bethe part of the same process, some of the Direct Recruits may not evenbe having eligibility in the year 2010 and yet may be placed above someof the 47 Judicial Officers. In the circumstances, the assessment madeby the High Court in its Report dated 15.03.2019 is without any infirmityand we have no hesitation in concluding that the substantive promotiongranted to the 47 Judicial Officers cannot be taken to be part of thesame selection process where Direct Recruits and candidates throughLCE were appointed to the Cadre of District Judge on 15.07.2013.

If the substantive appointment of the 47 Judicial Officers to theCadre of District Judge is separate and distinct from the selection processthrough which appointment were made after three years on 15.07.2017,there would be no question or occasion to apply the Cyclic Order. It isnot the contention of anyone that appointment of the 47 Judicial Officers AB

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Aon the relevant date was either beyond the quota meant for RegularPromotion or that there was any serious infirmity in the process or thatany of the candidates was completely ineligible. Since there was adifference of more than 03 years between these two modes of selection,the Report dated 15.03.2019 rightly concluded that the Cyclic Orderought not to get attracted.B

It is true that the Cyclic Order and the quota for different streamsensure equitable treatment for three sources. However, the applicationof the Cyclic Order must depend upon the fact situations. It was preciselyfor this reason that the expression “as far as possible” has been used inthe Rule. Other things being equal, certainly the quotas for differentCstreams and the Cyclic Order must be adhered to. However, if suchadherence itself is going to cause incongruous situation and inflictincalculable harm, insistence upon applicability of the Cyclic Order insuch cases may not be appropriate. The expression “as far as possible”was, therefore, relied upon by this Court in Para 34 of its decision inDVeena Verma[12]. It would also be instructive to refer to a decision of thisCourt in State of M.P. v. Narmada Bachao Andolan and Another[26],where the expression “as far as possible” was explained:- ““As far as possible”

38. The aforesaid phrase provides for flexibility, clothingEthe authority concerned with powers to meet special situationswhere the normal process of resolution cannot flow smoothly.The aforesaid phrase can be interpreted as not being prohibitoryin nature. The said words rather connote a discretion vested inthe prescribed authority. It is thus discretion and not compulsion.FThere is no hard-and-fast rule in this regard as these words givea discretion to the authority concerned. Once the authorityexercises its discretion, the court should not interfere with thesaid discretion/decision unless it is found to be palpably arbitrary.(Vide Iridium India Telecom Ltd. v. Motorola Inc.[27] and HighCourt of Judicature for Rajasthan v. Veena Verma[12].) Thus, itGis evident that this phrase simply means that the principles are tobe observed unless it is not possible to follow the same in theparticular circumstances of a case.”

26 (2011) 7 SCC 639H27 (2005) 2 SCC 145

41.1. We must at this stage deal with submissions based on thedecision of this Court in N.R. Parmar[19]. In that case a Bench of twoJudges of this Court while considering O.N. dated 20.12.1999 and02.02.2000 had concluded as under:- “31.2. It is not necessary, that the direct recruits forvacancies of a particular recruitment year, should join within therecruitment year (during which the vacancies had arisen) itself.As such, the date of joining would not be a relevant factor fordetermining seniority of direct recruits. It would suffice if actionhas been initiated for direct recruit vacancies, within the recruitmentyear in which the vacancies had become available. This is so,because delay in administrative action, it was felt, could not deprivean individual 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 otherappointees (from the alternative source), for vacancies of the samerecruitment year.

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34.1. If the process of recruitment has been initiated duringthe recruitment year (in which the vacancies have arisen) itself,even if the examination for the said recruitment is held in asubsequent year, and the result is declared in a year later (thanthe one in which the examination was held), and the selectedcandidates joined in a further later year (than the one in which theresult was declared), the selected candidates will be entitled to beassigned seniority, with reference to the recruitment year (in whichthe requisition of vacancies was made). The logic and reasoningfor the 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.”

Relying on the aforementioned observations, it was submitted thatthe candidates selected through Direct Recruitment and LCE on15.07.2013 could not be prejudiced if the High Court on the administrativeside had segregated the issue of promotion of the 47 Judicial Officers onone hand and the selection through Direct Recruitment and LCE on the A

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Aother; and the time lag of three years between the appointments would,therefore, be of no consequence.

The decision in N.R. Parmar[19] was thereafter relied upon byanother Bench of two Judges of this Court in Hon’ble Punjab andHaryana High Court v. State of Punjab and others[28]. In that case,Bthe recruitment from three different sources to the cadre of DistrictJudge was done on three different dates but in the same year. Paragraphs50 to 53 of said decision may be extracted as under:-

50. At this juncture, one of the submissions, which has beenemphatically pressed by the learned Counsel for the promotees isCthat for determination of seniority, continuous length of service isdeterminative. The direct recruits and out of turn promotees, whowere not even born in the cadre when promotees were promoted,they have to take seniority after the promotees. In this reference,it is useful to refer to a judgment of this Court in Union of Indiaand Ors. v. N.R. Parmar and Ors. (2012) 13 SCC 340, the issueDin the said case was also an issue of determination of senioritybetween direct recruits vis-à-vis promotees and quota and rotaprinciples. This Court had occasion to consider the officememorandum issued by the Government dated 22.12.1959.Noticing Para 6 of above office memorandum following was statedEin 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 anOffice Memorandum dated 22-12-1959 issued by the Governmentof India, Ministry of Home Affairs (hereinafter referred to asF“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:

6. Relative seniority of direct recruits and promotees.—TheGrelative seniority of direct recruits and of promotees shall bedetermined according to the rotation of vacancies betweendirect recruits and promotees which shall be based on the quotasof vacancies reserved for direct recruitment and promotionrespectively in the Department Rules.

H28 (2019) 12 SCC 496

It is apparent from the above extract of the OM dated 22-12-1959, that the “quota” between promotees and direct recruitswas to 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 promo-tees 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 theprinciple of rotation of quotas will still be followed for determiningthe inter-se seniority of direct recruits and promotees, the presentpractice of keeping vacant slots for being filled up by direct recruitsof later years, thereby giving them unintended seniority overpromotees who were already in position, would be dispensed with.This Court noticed office memorandum dated 07.02.1986 andobserved that “when direct recruits or promotees become availablethrough later examinations or selections”, it clearly mean that thesituation contemplated is one where, there has been an earlierexamination or selection, and is then followed by a “later”examination or selection.

52. In the above context, this Court laid down following inParagraph 31.2 that “it is not necessary, that the direct recruits ofa particular recruitment year, should join within the recruitmentyear itself”. It was held that date of joining would not be a relevantfactor for determining seniority of direct recruits. In paragraph31.2 and 34.1 following has been laid down:

31.2. It is not necessary, that the direct recruits for vacanciesof a particular recruitment year, should join within therecruitment year (during which the vacancies had arisen) itself.As such, the date of joining would not be a relevant factor fordetermining seniority of direct recruits. It would suffice if actionhas been initiated for direct recruit vacancies, within therecruitment year in which the vacancies had become available.This is so, because delay in administrative action, it was felt, AB

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could not deprive an individual of his due seniority. As such,initiation of action for recruitment within the recruitment yearwould be sufficient to assign seniority to the appointeesconcerned in terms of the “rotation of quotas” principle, so asto arrange them with other appointees (from the alternativesource), for vacancies of the same recruitment year.

34.1. If the process of recruitment has been initiated duringthe recruitment year (in which the vacancies have arisen) itself,even if the examination for the said recruitment is held in asubsequent year, and the result is declared in a year later (thanthe one in which the examination was held), and the selectedcandidates joined in a further later year (than the one in whichthe result was declared), the selected candidates will be entitledto be assigned seniority, with reference to the recruitment year(in which the requisition of vacancies was made). The logicand reasoning for the aforesaid conclusion (expressed in theON dated 2-2-2000) is, if the process of direct recruitment isinitiated in the recruitment year itself, the selected candidate(s)cannot be blamed for the administrative delay, in completingthe process of selection.

53. In the present case, process for all the three streams wascompleted in the year 2008 and all the officers of three streamshad joined in the same year. The submission that quota rota Rulewas broken or seniority will be affected because of joining of onecategory of officers earlier cannot be accepted. It is also relevantto notice that 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 event, the seniority is to be fixed with date of joiningof particular stream, it will lead to uncertainty and making senioritydepending on administrative authorities, which is neither in theinterest of service nor serve the cause of justice. We, thus, concludethat roster is fully applicable for determination of seniority. Officersof different streams selected in a particular year even thoughthey were allowed to join the post on different dates shall notaffect their inter se seniority, which is to be decided on the basisof roster.”

41.2 It must, however, be stated that the decision in N.R*.Parmar[19] has since then been overruled by a Bench of three Judges ofthis Court in K. Meghachandra Singh and Ors. vs. Ningam Siro andOthers[29]. The relevant paragraphs of said decision are as under:

5. Before the Writ Court, the promotees contended that theyentered the MPS Grade II Cadre on 01.03.2007 whereas theprivate Respondent Nos. 3 to 33 were appointed subsequently(on 14.08.2007 and 24.11.2007 respectively) and, therefore, theyshould be regarded as senior to the direct recruits.

6. The direct recruits on the other hand claimed seniority over thepromotees by contending that seniority has to be decided inaccordance with the year of the vacancy and not by the fortuitousdate on which, the appointment could be finalized for the directrecruits.

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13. It was also made clear that the promotees will naturally haveseniority over the Appellants as they had entered the cadre ofMPS Grade II, before the Writ Appellants were borne in the cadre.

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17. The Senior Counsel cites Union of India and Ors. v. N.R.Parmar, (2012)13 SCC 340, to argue that when action was initiatedfor filling up the 2005 vacancies, the administrative delay infinalization of the recruitment leading to delayed appointmentshould not deprive the individual of his due seniority. By referringto the rotation of quota principle, the counsel argues that initiationof action for recruitment in the year of the vacancy would besufficient, to assign seniority from that year.

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20. Representing the Respondents/promotees, the learned SeniorCounsel, Shri Jaideep Gupta refers to the MPS Rules, 1965 toargue that the provisions of the Rules make it abundantly clearthat inter-se seniority in the cadre of MPS Grade-III is to bedetermined by the order in which appointments are made to theservice. The counsel pointedly refers to Rules 28 (i) where it is A

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specified that the ....... seniority in the service shall be determinedby the order in which appointments are made to the service.......He also refers to the later part of Rule 28(iii), where again it isspecified that the “seniority of the officer...... shall be countedfrom the date, he/she is appointed to the service............ . Theprovisions in Rule 16(iii) are pressed home by Mr. Gupta to arguethat only when the person is appointed, he shall be deemed tohave been appointed to the service from the date of encadrement.

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21. The judgment in N.R. Parmar (Supra) is read with equalemphasis by Mr. Gupta to firstly point out that this case does notlay down the correct law in determination of seniority. The counselhighlights the incongruity in a situation where a person who enteredservice later will claim seniority above those who joined serviceat an earlier point of time. The applicability of the ratio in N.R.Parmar (Supra) to the litigants in the present case is also questionedby Mr. Gupta by pointing out that the provisions of MPS Rules,1965 applicable for the officers in the Manipur Police Officers,was not the subject of consideration in N.R. Parmar (Supra), and,therefore, the said ratio relatable to Income Tax Inspectors, withdifferent Service Rules, will not apply to the present case.

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29. Before proceeding to deal with the contention of the Appellants’Counsel vis-à-vis the judgment in N.R. Parmar (Supra), it isnecessary to observe that the Law is fairly well settled in a seriesof cases, that a person is disentitled to claim seniority from a datehe was not borne in service. For example, in J.C. Patnaik (Supra)[30]Fthe Court considered the question whether the year in which thevacancy accrues can have any bearing for the purpose ofdetermining the seniority irrespective of the fact when the personis actually recruited. The Court observed that there could be timelag between the year when the vacancy accrues and the yearwhen the final recruitment is made. Referring to the wordG“recruited” occurring in the Orissa Service of Engineers Rules,1941 the Supreme Court held in J.C. Patnaik (Supra) that personcannot be said to have been recruited to the service only on thebasis of initiation of process of recruitment but he is borne in thepost only when, formal appointment order is issued.

H30 (1998) 4 SCC 456

30. The above ratio in J.C. Patnaik (Supra) is followed by thisCourt in several subsequent cases. It would however beappropriate to make specific reference considering the senioritydispute in reference to the Arunachal Pradesh Rules which arepari materia to the MPS Rules, 1965, (vide (2007) 15 SCC 406-Nani Sha and Ors. v. State of Arunachal Pradesh and Ors.).Having regard to the similar provisions, the Court approved theview that seniority is to be reckoned not from the date whenvacancy arose but from the date on which the appointment ismade to the post. The Court particularly held that retrospectiveseniority should not be granted from a day when an employee isnot even borne in the cadre so as to adversely impact those whowere validly appointed in the meantime.

31. We may also benefit by referring to the Judgment in State ofUttar Pradesh and Ors. v. Ashok Kumar Srivastava and Anr.(2014) 14 SCC 720. This judgment is significant since this isrendered after the N.R. Parmar (Supra) decision. Here the Courtapproved the ratio in Pawan Pratap Singh and Ors. v. ReevanSingh and Ors. (2011) 3 SCC 267, and concurred with the viewthat seniority should not be reckoned retrospectively unless it isso expressly provided by the relevant service Rules. The SupremeCourt held that seniority cannot be given for an employee who isyet to be borne in the cadre and by doing so it may adverselyaffect the employees who have been appointed validly in themeantime. The law so declared in Ashok Kumar Srivastava (supra)being the one appealing to us, is profitably extracted as follows:

24. The learned Senior Counsel for the Appellants has drawninspiration from the recent authority in Pawan Pratap Singh v.Reevan Singh where the Court after referring to earlierauthorities in the field has culled out certain principles out ofwhich the following being the relevant are produced below:

45. (ii) Inter se seniority in a particular service has to bedetermined as per the service rules. The date of entry in aparticular service or the date of substantive appointment is thesafest criterion for fixing seniority inter se between one officeror the other or between one group of officers and the otherrecruited from different sources. Any departure therefrom inthe statutory rules, executive instructions or otherwise must ABCD

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be consistent with the requirements of Articles 14 and 16 ofthe Constitution.

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45. (iv) The seniority cannot be reckoned from the date ofoccurrence of the vacancy and cannot be given retrospectivelyunless it is so expressly provided by the relevant service rules.It is so because seniority cannot be given on retrospective basiswhen an employee has not even been borne in the cadre andby doing so it may adversely affect the employees who havebeen appointed validly in the meantime.

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34. In the above context, it is also necessary to refer to the relevantadvertisement issued in 2005 for direct recruitment which allowedthe aspirants to apply even if, their result in the qualificationexamination is awaited. Even more intriguing and significant isthe relaxation that those proposing to appear in the qualifyingexamination are also allowed to respond to the advertisement. Ifsuch be the nature of the process initiated (in the year 2005) formaking direct recruitment, we can easily visualize a situation where,in the event of granting seniority from the stage of commencingthe process, a person when eventually appointed, would getseniority from a date even before obtaining the qualification, forholding the post.

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38. When we carefully read the judgment in N.R. Parmar (Supra),it appears to us that the referred OMs (dated 07.02.1986 and03.07.1986) were not properly construed in the judgment. Contraryto the eventual finding, the said two OMs had made it clear thatseniority of the direct recruits be declared only from the date ofappointment and not from the date of initiation of recruitmentprocess. But surprisingly, the judgment while referring to theillustration given in the OM in fact overlooks the effect of the saidillustration. According to us, the illustration extracted in the N.R.Parmar (Supra) itself, makes it clear that the vacancies whichwere intended for direct recruitment in a particular year (1986)which were filled in the next year (1987) could be taken intoconsideration only in the subsequent year’s seniority list but not in the seniority list of 1986. In fact, this was indicated in the twoOMs dated 07.02.1986 and 03.07.1986 and that is why theGovernment issued the subsequent OM on 03.03.2008 by way ofclarification of the two earlier OMs.

39. At this stage, we must also emphasize that the Court in N.R.Parmar (Supra) need not have observed that the selected candidatecannot be blamed for administrative delay and the gap betweeninitiation of process and appointment. Such observation is fallaciousin as much as none can be identified as being a selected candidateon the date when the process of recruitment had commenced.On that day, a body of persons aspiring to be appointed to thevacancy intended for direct recruits was not in existence. Thepersons who might respond to an advertisement cannot have anyservice-related rights, not to talk of right to have their senioritycounted from the date of the advertisement. In other words, onlyon completion of the process, the Applicant morphs into a selectedcandidate and, therefore, unnecessary observation was made inN.R. Parmar (Supra) to the effect that the selected candidatecannot be blamed for the administrative delay. In the same context,we may usefully refer to the ratio in Shankarsan Dash v. Union ofIndia (1991) 3 SCC 47, where it was held even upon empanelment,an appointee does not acquire any right.

40. The Judgment in N.R. Parmar (Supra) relating to the CentralGovernment employees cannot in our opinion, automatically applyto the Manipur State Police Officers, governed by the MPS Rules,1965. We also feel that N.R. Parmar (Supra) had incorrectlydistinguished the long-standing seniority determination principlespropounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Guptaand Ors. v. State of J&K and Ors. (2000) 7 SCC 561 and PawanPratap Singh and Ors. v. Reevan Singh and Ors. (Supra). Thesethree judgments and several others with like enunciation on thelaw for determination of seniority makes it abundantly clear thatunder Service Jurisprudence, seniority cannot be claimed from adate when the incumbent is yet to be borne in the cadre. In ourconsidered opinion, the law on the issue is correctly declared inJ.C. Patnaik (Supra) and consequently we disapprove the normson assessment of inter-se seniority, suggested in N.R. Parmar(Supra). Accordingly, the decision in N.R. Parmar is overruled.

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AHowever, it is made clear that this decision will not affect theinter-se seniority already based on N.R. Parmar and the same isprotected. This decision will apply prospectively except whereseniority is to be fixed under the relevant Rules from the date ofvacancy/the date of advertisement.

B41. As noted earlier, the Learned Single Judge based his judgmenton two propositions but the Division Bench was of the view thatresult would be the same merely on the basis of one of the twopropositions and, therefore, it was unnecessary to pronounce uponthe other proposition. Such an approach cannot therefore bedescribed as a conflict (as has been suggested), between the twoCjudgments. Both Benches were absolutely consistent in theirconclusion that promotees would have to be given seniority overdirect recruits. It cannot therefore be argued that by someconvoluted reasoning, it is possible to come to the conclusion thatthe orders passed by the two Courts would result in diametricallyDopposite situation namely, that direct recruits would have to begiven seniority over promotees.”

41.3 The facts noted in paragraph 5 of the decision inMeghachandra Singh[29] show that the promotees entered the relevantgrade in March 2007 whereas the direct recruits were appointed inEAugust and November 2007. While overruling the decision in Parmar[19]it was also observed in paragraph 40 that in Service Jurisprudence,seniority cannot be claimed where the incumbent is yet to be borne inthe cadre.

41.4 In the premises, the conclusion is inescapable that theFcandidates selected through LCE and Direct Recruitment vide Orderdated 15.07.2013 cannot claim to be clubbed with the 47 Judicial Officerspromoted in substantive capacity on 21.04.2010 and cannot claimappropriate placement in accordance with the Cyclic Order. Weaccordingly answer Question (C) and find that the 47 Judicial Officerswere rightly placed en-bloc senior to all the candidates selected throughGthe process initiated pursuant to the Notification dated 31.03.2011. WritPetition (Civil) Nos.936 of 2018 and 967 are, therefore, dismissed.

42. While considering Question (D), it is relevant to notice theemphasis placed by this Court in All India Judges Association[1] whiledirecting that 25 per cent of the posts in the cadre of the District JudgeHbe filled through LCE. It was stated in paragraph 27 that there should be an incentive amongst relatively junior and other officers to improveand to compete with each other so as to excel and get acceleratedpromotion. In paragraph 28 the relevant direction again stressed that 25per cent quota for promotion through LCE be “strictly on the basis ofmerit.”

Rule 31(2) of 2010 Rules also uses the expression “strictly on thebasis of merit” while dealing with posts to be filled in through LCE. Themerit is to be assessed in terms of the scheme laid down in the relevantSchedule. After considering various parameters stated in said Schedule,the successful candidates are selected on the basis of merit. The list ofsuccessful candidates becomes the basis for final selection subject toqualifying parameters such as suitability, medical fitness etc.

However, placing reliance on Rule 47(4), the Committee in itsReport dated 15.03.2019 held that the inter se seniority of personspromoted to the District Judge Cadre in the same year ought to be thesame as it was in the posts held by them at the time of promotion.

If the list is to be drawn up according to merit, it is possible thatthe last person in the list of selectees may be the senior most and goingby the Report of the Committee, if all the selectees are promoted in thesame year such last person may as well be at the top of the list ofpromotees through LCE. In that event, the seniority shall become thegoverning criteria and the excellence on part of a comparatively juniorcandidate may recede in the background. Instead of giving incentive tocomparatively junior and other officers, the entire examination processwill stand reduced to a mere qualifying examination rather than acompetitive examination affording opportunity to meritorious candidates.The criteria shall then become seniority subject to passing the LCE.

The direction issued in All India Judges Association[1] to affordan incentive to meritorious candidates regardless of their seniority wouldnot thus be carried out. The general principle appearing in Rule 47(4)must, therefore, give way to the special dispensation in Rule 31(2) of2010 Rules.

In our view, the High Court in its Report dated 15.03.2019completely failed to appreciate the true character of LCE and reservationof certain quota for that category.

We, therefore, accept the submissions made by the learnedAdvocate for the petitioners in Writ Petition (Civil) No.498 of 2019* and A

BC

D

E

F

G

H

ADiary No.13252 of 2019 and while answering Question (D) declare thatthe inter se placement of the candidates selected through LCE must bebased on merit and not on the basis of the seniority in the erstwhilecadre. Said Writ Petitions are allowed to that extent.

43. We now deal with the submissions advanced in Writ PetitionB(Civil) Nos.464 of 2019 and 899 of 2019 and other similar matters.

It is true that as on the date when 2010 Rules came into effect,there were 83 Fast Track Courts functioning in the State and appropriatemention to that effect was made in Part A of Schedule II to 2010 Rules.It is also correct to say that the ad-hoc promotions granted to theCconcerned Judicial Officers were under 1969 Rules. But such promotionswere on ad-hoc basis to man the Fast Track Courts and the law on thepoint is now well settled that the service rendered by such JudicialOfficers as Fast Track Court Judges on ad-hoc basis cannot be takeninto account while reckoning seniority after such Judicial Officers weregranted promotion on substantive basis and that their seniority has to beDreckoned only from the date of their substantive appointment to the cadreof District Judge. Said 1969 Rules do not in any way confer any rightwhich would be inconsistent with the law so laid down by this Court.

The further submission that four Judicial Officers out of the 47Judicial Officers were also appointed on the same day along with theEpetitioners in Writ Petition (Civil) No.464 of 2019 also has no merit. Thegrant of promotion on substantive basis to said four Judicial Officersdoes not by itself entitle said petitioners to any similar treatment. Theissue of grant of promotion on substantive basis may depend upon variousissues including suitability of the concerned candidate and availability ofFposts. The record also shows that after grant of promotion on substantivebasis to the 47 Judicial Officers, there were no vacancies for RegularPromotion which is why the selection process undertaken in the year2010 did not earmark any vacancies for Regular Promotions and it wasonly in the year 2011, when adequate vacancies for said category becameavailable, that the Notification dated 31.03.2011 contemplated filling upGof certain vacancies by Regulation Promotion.

The petitioners in Writ Petition (Civil) No.464 of 2019 participatedin the process initiated pursuant to said Notification dated 31.03.2011.Some of them also appeared in LCE and availed of the opportunity tostake their claim. Their regular promotions to the Cadre of District JudgeH

must, therefore, be taken only as a result of selection process initiated interms of the Notification dated 31.03.2011 which culminated in the Orderdated 15.07.2013. In the circumstances, their substantive appointmentto said cadre has to be reckoned from 15.07.2013 and not with anyanterior effect.

Once the Regular Promotion was part of the same process alongwith other streams, namely, through Direct Recruitment and LCE, theCyclic Order had to be applied and said petitioners cannot be given en-bloc placement above the candidates selected through Direct Recruitmentand LCE in the same process of selection.

We, therefore, see no merit in Writ Petition (Civil) No. 464 of2019 and said Writ Petition is dismissed.

The petitioners in Writ Petition (Civil) No.899 of 2019 and otherconnected matters came to be appointed on ad-hoc basis to man theFast Track Courts after 2010 Rules came into effect. Even if theirservices were continued after abolition of Fast Track Courts, that byitself would not confer any right on them. They came to be substantivelypromoted to the Cadre of District Judge only vide Order dated 05.02.2016.For the reasons stated hereinabove, their entitlement on substantive basishas to be reckoned only from 05.02.2016 and not from any earlier date.Writ Petition (Civil) No.899 of 2019 and other connected matters are,therefore, dismissed. Thus, while answering Question (E), we concludethat the Report dated 15.03.2019 does not call for any modification,except to the extent dealt with in answer to Question (D).

44. Concluding thus, we direct:-

(a) Writ Petition (Civil) No.498 of 2019* and Writ Petition (Civil)_______ of 2020 [D. No.13252 of 2019] are allowed to theextent indicated above.

(b) Consequently, the seniority list issued in terms of Reportdated 15.03.2019 shall stand modified only to the extent thatappropriate placement to the candidates selected through LCEbe given on the basis of their merit in the examination and noton the basis of their seniority in the erstwhile cadre. Let theappropriate changes be made within four weeks of thisJudgment.

A

B

CDE

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G

H

578SUPREME COURT REPORTS[2020] 10 S.C.R.

A(c) Except to the extent indicated in direction (b) above, theReport dated 15.03.2019 does not call for any modification orclarification.

(d) All other writ petitions are dismissed.

B

Divya Pandey

Writ Petitions disposed of.

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D

E

F

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H