No Acts & Articles mentioned in this case
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.936 OF 2018
Dinesh Kumar Gupta and others …Petitioners
Versus
High Court of Judicature of Rajasthan others …Respondent
WITH
WRIT PETITION (CIVIL) NO.967 OF 2018
WITH
WRIT PETITION (CIVIL) NO.1471 OF 2018
WITH
WRIT PETITION (CIVIL) NO.498 OF 2019
WITH
WRIT PETITION (CIVIL) NO.464 OF 2019
WITH
WRIT PETITION (CIVIL) NO. OF 2020
(D.NO.13252/2019)
WITH
WRIT PETITION (CIVIL) NO.899 OF 2019
WITH
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
2
WRIT PETITION (CIVIL) NO.897 OF 2019
WITH
WRIT PETITION (CIVIL) NO.895 OF 2019
AND
WRIT PETITION (CIVIL) NO.1008 OF 2019
J U D G M E N T
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 of Rajasthan Judicial Service Rules, 2010 (“2010
Rules”, for short), all appointments ought to be in conformity with
2010 Rules and allocation of seniority must be in accordance with
the Cyclic Order provided in Schedule VII to 2010 Rules. In terms
of 2010 Rules, posts in the cadre of District Judges in the Higher
Judicial Service in State of Rajasthan were required to be filled up in
accordance with quota of 50% for Promotees, 25% for Direct
Recruits and 25% by way of Limited Competitive Examination
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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(“LCE”, for short) in keeping with law laid down by this Court in
All India Judges Association vs. Union of India and Others
1
.
This Writ Petition filed by candidates who were successful in LCE
prays that they be allocated seniority in terms of the Cyclic Order in
Schedule VII. In this group fall Writ Petition (Civil) No.498 of 2018
and Writ Petition Diary No.13252 of 2019 which pray that the inter
se seniority between candidates who were successful in LCE must
be determined on the basis of their merit in LCE and not by their
erstwhile seniority.
B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37
Direct Recruits challenging the Provisional Seniority List dated
16.08.2017 with regard to the cadre of District Judges in the Higher
Judicial Service in the State, on the ground that the appointments
made after 2010 Rules had come into effect, ought to be in
accordance with the Cyclic Order; and the inter se seniority and
placement of Direct Recruits and Promotees, promoted after 2010
Rules had come into effect must be in accordance with 2010 Rules.
C] Writ Petition (Civil) No.1471 of 2018 has been filed by
Rajasthan Judicial Service Officers Association (“the Association”,
1 (2002) 4 SCC 247
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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for short) seeking benefit of ad-hoc/officiating service put in by
Promotees who were promoted on ad-hoc basis as Fast Track Court
Judges and also prays for re-determination of vacancies of Direct
Recruits submitting that the vacancies earmarked for Direct Recruits
were in excess of their quota. Writ Petition (C) Nos.464 of 2019,
895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018 are filed by
Judicial Officers seeking similar benefit in respect of ad-
hoc/officiating service as Fast Track Court Judges in the State and
pray that such candidates be placed above the Direct Recruits in the
cadre of District Judges in the State.
2. Since the issues involved in all these matters pertain to
appointments to and allocation of seniority in respect of, the cadre of
District Judges in the State of Rajasthan and regarding effect of 2010
Rules, the petitions were heard together. Before we deal with the factual
aspects, it would be necessary to consider certain decisions of this Court
touching upon the establishment of Fast Track Courts as well as the
concept of promotion through LCE and the respective quotas for
candidates coming from three different streams in the Higher Judicial
Service in various States.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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2.1.In All India Judges’ Association
v. Union of India and others
2
,
the issues with regard to the working conditions of the members of the
subordinate judiciary throughout the country came up for consideration.
Number of directions were issued by this Court. However, review
petitions were filed by Union of India seeking certain
modifications/clarifications. These review petitions were disposed of by
this Court while issuing further directions in All India Judges’
Association and others v. Union of India and others
3
. In pursuance of
said directions, First National Judicial Pay Commission under the
Chairmanship of Mr. Justice K.J. Shetty (former Judge of this Court) was
constituted on 21.03.1996. The terms of reference were thereafter
modified on 16.12.1997 and the Commission was also empowered to
consider and grant interim relief. By Report dated 31.01.1998 some
interim relief was granted by Justice Shetty Commission. After due
deliberations Justice Shetty Commission submitted a Report on
11.11.1999 and all the States/ Union Territories were directed by this
Court
4
to send their responses to Union of India so that all the issues could
be deliberated upon and dealt with.
4
2 (1992) 1 SCC 119
3 (1993) 4 SCC 288
4 (2002) 4 SCC 274
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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2.2After considering all the submissions, this Court in its decision
dated 21.03.2002 in All India Judges’ Association and others v. Union of
India and others
1
passed some directions. We are presently concerned
with the observations made in paragraphs 24 to 29 in which reference was
made to the 85
th
Report of the Standing Committee of Parliament
recommending that there should be increase in the number of Judges.
Said Committee had noted the Judges to Population ratio and in tune with
120
th
Report of the Law Commission, recommendations were made to
increase the Judges’ strength to 50 Judges per 10 lakh people in the first
instance. Recommendations made by Justice Shetty Commission were
also considered and recruitment to the Higher Judicial Service in the 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 method of recruitment to the posts in the cadre of
Higher Judicial Service i.e. District Judges and
Additional District Judges. At the present moment,
there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst
the members of the Subordinate Judicial Service and
by direct recruitment. The subordinate judiciary is the
foundation of the edifice of the judicial system. It is,
therefore, imperative, like any other foundation, that it
should become as strong as possible. The weight on
the judicial system essentially rests on the subordinate
judiciary. While we have accepted the
recommendation of the Shetty Commission which
will result in the increase in the pay scales of the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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7
subordinate judiciary, it is at the same time necessary
that the judicial officers, hard-working as they are,
become more efficient. It is imperative that they keep
abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the
Shetty Commission has recommended the
establishment of a Judicial Academy, which is very
necessary. At the same time, we are of the opinion
that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the
Higher Judicial Service as Additional District Judges
and District Judges. While we agree with the Shetty
Commission that the recruitment to the Higher
Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the
process of recruitment is to be by a competitive
examination, both written and viva voce, we are of the
opinion that there should be an objective method of
testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service.
Furthermore, there should also be an incentive
amongst the relatively junior and other officers to
improve and to compete with each other so as to excel
and get quicker promotion. In this way, we expect that
the calibre of the members of the Higher Judicial
Service will further improve. In order to achieve this,
while the ratio of 75 per cent appointment by
promotion and 25 per cent by direct recruitment to the
Higher Judicial Service is maintained, we are,
however, of the opinion that there should be two
methods as far as appointment by promotion is
concerned: 50 per cent of the total posts in the Higher
Judicial Service must be filled by promotion on the
basis of principle of merit-cum-seniority. For this
purpose, the High Courts should devise and evolve a
test in order to ascertain and examine the legal
knowledge of those candidates and to assess their
continued efficiency with adequate knowledge of
case-law. The remaining 25 per cent of the posts in
the service shall be filled by promotion strictly on the
basis of merit through the limited departmental
competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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not less than five years. The High Courts will have to
frame a rule in this regard.
(emphasis
supplied)
28. As a result of the aforesaid, to recapitulate, we
direct that recruitment to the Higher Judicial Service
i.e. the cadre of District Judges will be:
(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 merit through limited competitive examination
of Civil Judges (Senior Division) having not less
than five years’ qualifying service; and
(c) 25 per cent of the posts shall be filled by
direct recruitment from amongst the eligible
advocates on the basis of the written and viva
voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the
High Courts as early as possible.
29. Experience has shown that there has been a
constant discontentment amongst the members of the
Higher Judicial Service in regard to their seniority in
service. For over three decades a large number of
cases have been instituted in order to decide the
relative seniority from the officers recruited from the
two different sources, namely, promotees and direct
recruits. As a result of the decision today, there will,
in a way, be three ways of recruitment to the Higher
Judicial Service. The quota for promotion which we
have prescribed is 50 per cent by following the
principle “merit-cum-seniority”, 25 per cent strictly
on merit by limited departmental competitive
examination and 25 per cent by direct recruitment.
Experience has also shown that the least amount of
litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned, is
where a roster system is followed. For example, there
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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9
is, as per the rules of the Central Government, a 40-
point roster which has been prescribed which deals
with the quotas for Scheduled Castes and Scheduled
Tribes. Hardly, if ever, there has been a litigation
amongst the members of the service after their
recruitment as per the quotas, the seniority is fixed by
the roster points and irrespective of the fact as to
when a person is recruited. When roster system is
followed, there is no question of any dispute arising.
The 40-point roster has been considered and approved
by this Court in R.K. Sabharwal v. State of Punjab
5
.
One of the methods of avoiding any litigation and
bringing about certainty in this regard is by specifying
quotas in relation to posts and not in relation to the
vacancies. This is the basic principle on the basis of
which the 40-point roster works. We direct the High
Courts to suitably amend and promulgate seniority
rules on the basis of the roster principle as approved
by this Court in R.K. Sabharwal case as early as
possible. We hope that as a result thereof there would
be no further dispute in the fixation of seniority. It is
obvious that this system can only apply prospectively
except where under the relevant rules seniority is to
be determined on the basis of quota and rotational
system. The existing relative seniority of the members
of the Higher Judicial Service has to be protected but
the roster has to be evolved for the future. Appropriate
rules and methods will be adopted by the High Courts
and approved by the States, wherever necessary by
31-3-2003.”
2.3.Soon thereafter, in its decision rendered on 06.05.2002 in Brij
Mohan Lal v. Union of India and others
6
this Court had an occasion to
consider the issue relating to Fast Track Courts. The 11
th
Finance
Commission had allocated Rs.502.90 crores for the purpose of setting up
5 (1995) 2 SCC 745
6 (2002) 5 SCC 1
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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1734 courts in various States to deal with long pending cases, particularly
sessions cases. On the basis of said recommendations a note was prepared
by the Department of Justice, Government of India to set up Fast Track
Courts. Challenges were raised in some High Courts to the constitution of
such Fast Track Courts and the matters were dealt by this Court in
Transfer Petitions. After considering rival submissions, directions were
issued in para 10 and for the present purposes direction Nos.1 to 8, 14 and
18 are relevant:-
“10. Keeping in view the laudable objectives with
which the Fast Track Courts Scheme has been
conceived and introduced, we feel the following
directions, for the present, would be sufficient to take
care of initial teething problems highlighted by the
parties:
Directions by the Court
1. The first preference for appointment of judges
of the Fast Track Courts is to be given by ad-hoc
promotions from amongst eligible judicial officers.
While giving such promotion, the High Court shall
follow the procedures in force in the matter of
promotion to such posts in Superior/Higher Judicial
Services.
2. The second preference in appointments to Fast
Track Courts shall be given to retired judges who
have good service records with no adverse comments
in their ACRs, so far as judicial acumen, reputation
regarding honesty, integrity and character are
concerned. Those who were not given the benefit of
two years’ extension of the age of superannuation,
shall not be considered for appointment. It should be
ensured that they satisfy the conditions laid down in
Articles 233(2) and 309 of the Constitution. The High
Court concerned shall take a decision with regard to
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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the minimum-maximum age of eligibility to ensure
that they are physically fit for the work in Fast Track
Courts.
3. No judicial officer who was dismissed or
removed or compulsorily retired or made to seek
retirement shall be considered for appointment under
the Scheme. Judicial officers who have sought
voluntary retirement after initiation of departmental
proceedings/inquiry shall not be considered for
appointment.
4. The third preference shall be given to members
of the Bar for direct appointment in these courts. They
should be preferably in the age group of 35-45 years,
so that they could aspire to continue against the
regular posts if the Fast Track Courts cease to
function. The question of their continuance in service
shall be reviewed periodically by the High Court
based on their performance. They may be absorbed in
regular vacancies, if subsequent recruitment takes
place and their performance in the Fast Track Courts
is found satisfactory. For the initial selection, the High
Court shall adopt such methods of selection as are
normally followed for selection of members of the
Bar as direct recruits to the Superior/Higher Judicial
Services.
5. Overall preference for appointment in Fast
Track Courts shall be given to eligible officers who
are on the verge of retirement subject to they being
physically fit.
6. The recommendation for selection shall be
made by a committee of at least three Judges of the
High Court, constituted by the Chief Justice of the
High Court concerned in this regard. The final
decision in the matter shall be taken by the Full Court
of the High Court.
7. After ad-hoc promotion of judicial officers to
the Fast Track Courts, the consequential vacancies
shall be filled up immediately by organizing a special
recruitment drive. Steps should be taken in advance to
initiate process for selection to fill up these vacancies
much before the judicial officers are promoted to the
Fast Track Courts, so that vacancies may not be
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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generated at the lower levels of the subordinate
judiciary. The High Court and the State Government
concerned shall take prompt steps to fill up the
consequential as well as existing vacancies in the
subordinate courts on priority basis. The State
Government concerned shall take necessary decisions
within a month from the receipt of the
recommendations made by the High Court.
8. Priority shall be given by the Fast Track Courts
for disposal of those sessions cases which are pending
for the longest period of time, and/or those involving
undertrials. Similar shall be the approach for civil
cases i.e. old cases shall be given priority.
9. …...
10…...
11…..
12 …..
13 …..
14. No right will be conferred on judicial officers
in service for claiming any regular promotion on the
basis of his/her appointment on ad-hoc basis under the
Scheme. The service rendered in Fast Track Courts
will be deemed as service rendered in the parent
cadre. In case any judicial officer is promoted to
higher grade in the parent cadre during his tenure in
Fast Track Courts, the service rendered in Fast Track
Courts will be deemed to be service in such higher
grade.
15…..
16….
17….
18. The High Court and the State Government
shall ensure that there exists no vacancy so far as the
Fast Track Courts are concerned, and necessary steps
in that regard shall be taken within three months from
today. In other words, steps should be taken to set up
all the Fast Track Courts within the stipulated time.”
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
13
2.4. Thereafter in Malik Mazhar Sultan and another v. U.P. Public
Service Commission and others
7
the issues regarding timely declaration
of vacancies in judicial service and timely appointments were considered
by this Court as under:
“23. It is absolutely necessary to evolve a mechanism
to speedily determine 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 for fixed time schedule so that
the system works automatically and there is no delay
in filling up of vacancies. The dates for taking these
steps can be provided for on the pattern similar to
filling of vacancies in some other services or filling of
seats for admission in medical colleges. The schedule
appended to the regulations governing medical
admissions sets out a time schedule for every step to
be strictly adhered to every year. The exception can be
provided for where sufficient number of vacancies do
not occur in a given year. The adherence to strict time
schedule can ensure timely filling of vacancies. All
the State Governments, the Union Territories and/or
the High Courts are directed to provide for time
schedule for the aforesaid purposes so that every year
vacancies that may occur are timely filled. All the
State Governments, the Union Territories and the
High Courts are directed to file within three months
details of the time schedule so fixed and date from
which the time schedule so fixed would be
operational.”
2.5.After the disposal of the appeals in Malik Mazhar Sultan and
others v. U.P. Public Service Commission
7
suggestions were made by
7 (2006) 9 SCC 507
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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14
some of the State Governments and written submissions were also filed
by the learned Amicus Curiae. In its order dated 04.01.2017
8
, this Court
issued further directions and prescribed timelines. From paragraph 7
onwards directions were issued for filling up vacancies in various cadres
including 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 earlier with
regard to 25% quota for Limited Departmental Competitive Examination
were modified by this court as under:
“6. Having regard to various strategies available, we
are of the considered view that suitable amendment is
to be made for this 25% quota of limited departmental
competitive examination. We are also of the view,
with the past experience, that it is desirable that 25%
quota be reduced to 10%. We feel so as the required
result, which was sought to be achieved by this
process could not be achieved, thus it calls for
modification.
7. Thus, we direct that henceforth only 10% of the
cadre strength of District Judges be filled up by
limited departmental competitive examination with
those candidates who have qualified service of five
years as Civil Judge (Senior Division). Every year
vacancies are to be ascertained and the process of
selection shall be taken care of by the High Courts. If
any of the post is not filled up under 10% quota, the
same shall be filled up by regular promotion. In some
of the High Courts, process of selection of these 25%
8 (2008) 17 SCC 703.
9 (2010) 15 SCC 170
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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15
quota by holding limited departmental competitive
examination is in progress, such process can be
continued and the unfilled seats, if meritorious
candidates are available, should be filled up. But if for
some reason the seats are not filled up, they may be
filled up by regular promotion and apply the usual
mode of promotion process. Thus we pass the
following order.
8. Hereinafter, there shall be 25% of seats for direct
recruitment from the Bar, 65% of seats are to be filled
up by regular promotion of Civil Judge (Senior
Division) and 10% seats are to be filled up by limited
departmental competitive examination. If candidates
are not available for 10% seats, or are not able to
qualify in the examination then vacant posts are to be
filled up by regular promotion in accordance with the
Service Rules applicable.
9. All the High Courts are hereby directed to take
steps to see that existing Service Rules be amended
positively with effect from 1-1-2011. If the Rules are
not suitably amended, this order shall prevail and
further recruitment from 1-1-2011 shall be continued
accordingly as directed by us. The time schedule
prescribed in the order dated 4-1-2007 (in Malik
Mazhar Sultan case
8
) shall be strictly adhered to for
the purpose of selection. All the vacancies are to be
filled up in that particular year and there shall not be
any carry forward of the unfilled posts.”
3. In the State of Rajasthan, the matters relating to Constitution of
Courts and Jurisdiction of Courts were dealt with by the Rajasthan Civil
Courts Ordinance, 1950 which consolidated and amended the law relating
to Civil Courts in the State. Clause 6 of said Ordinance dealt with Classes
of Courts; Clause 8 dealt with Power to fix number of District Judges
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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while Clause 10 dealt with the appointment of Additional Judges. In
exercise of powers conferred by Article 233 and the Proviso to Article 309
of the Constitution of India, the Governor of Rajasthan made the Rajasthan
Higher Judicial Service Rules, 1969 (“1969 Rules”, for short) in
consultation with the High Court
10
in respect of the Rajasthan Higher
Judicial Service for making appointments, postings and promotions to the
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 matter prescribed by clause (ii) of rule
8;
(d)“District Judge” includes Additional
District Judge, Sessions Judge and
Additional Sessions Judge;
… … …
(f) “Member of the Service” means a person
appointed in a substantive capacity to a
post in the service;
… … …
(h) “Service” means the Rajasthan Higher
Judicial Service”
10 The High Court of Judicature for Rajasthan
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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3.1.Part-II and Part-III of 1969 Rules dealt with topics ‘Cadre’ and
‘Principles and Procedure of Recruitment and Promotion’. Rules 6 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 the same have been passed under sub-rule
(2), be as specified in Schedule I.
(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 any appointment to the service in
abeyance for such time as he deems fit, without
thereby entitling any person to compensation.
7. Principles and procedure to be followed.- For the
purpose of recruitment to the service, the following
principles and procedure of recruitment and
promotion laid down by the Court shall be followed.
8. Sources of Recruitment.- Recruitment to the
service shall be made –
(i) by promotion from amongst the members
of the Rajasthan Judicial Service; or
(ii)by direct recruitment from the advocates
who have practiced in the Court or Courts
subordinate thereto for a period of not less than
seven years.
9. Appointment to the service.- (1) Subject to the
provisions of these rules, appointment of persons to
the service shall be made by the Governor on the
recommendation of the Court made from time to time;
provided that the number of persons appointed to the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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service by direct recruitment shall at no time exceed
one third of the total strength of the service.
(2) Subject to the provisions of sub-rule (1), after
every three persons appointed by promotion, the
fourth person shall, as far as possible, be appointed by
direct recruitment. If a suitable person is not
available for appointment by direct recruitment, the
post may be filled by promotion from amongst the
members of the Rajasthan Judicial Service.”
3.2.Rules 22 and 23 in Part-III dealt with ‘Temporary or officiating
appointment’ and ‘Appointments to posts in the selection grade’ as under:-
“22. Temporary or officiating appointment.- On the
occurrence of temporary or permanent vacancies the
Court shall recommend the Governor the names of the
candidates from amongst the persons who are eligible
for appointment to the service by promotion under
clause (i) of rule 8, for temporary or officiating
appointment.
23. Appointments to posts in the selection Grade.-
Appointments to the posts in the selection grade of the
service shall be made by the Governor in consultation
with the Court on the 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 the order of substantive
appointment in a permanent vacancy including
appointment on probation under rule 25:
Provided that a promoted officer who may have been
allowed to officiate continuously against a permanent
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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vacancy in the cadre from a date, prior to the date of
appointment of a direct recruit, shall, if he is
subsequently selected and substantively appointed in
the service, take his seniority in the cadre over such
direct recruit:
Provided further that the seniority of candidates
appointed to the service shall in the case of the
appointment of more persons than one to the service
by an order of the same date, follow the order in
which their names have been recommended by the
Court.”
Schedule-I to 1969 Rules dealt with ‘Strength of Service’, which
was stated to be 89 in the post of District & Sessions Judge and Additional
District Sessions Judge, which over a period of time got raised to 150.
4. However, appointments in excess of the strength indicated in
Schedule I to 1969 Rules, were made on various occasions. By
Notification dated 31.03.2001 issued under the provisions of the
Ordinance and under Rule 6(2) of 1969 Rules, 40 Additional District and
Sessions Courts were set up in the State for Fast Track disposal of cases
pending before the District Judges. By Notification dated 12.07.2002, 13
more Additional District and Sessions Courts were set up under the
aforesaid provisions of the Ordinance and 1969 Rules for Fast Track
disposal of cases pending before the District Courts. Further, 30
Additional District and Sessions Courts were again set up on 17.04.2003
in pursuance of aforesaid powers for Fast Track disposal of cases pending
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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before the District Judges. Thus 83 Courts were created between
31.03.2001 and 17.04.2003 which are commonly known as Fast Track
Courts and officers from the cadre of Senior Civil Judges were promoted
under Rule 22 of 1969 Rules to man these Fast Track Courts.
It may be mentioned that though the decision of this Court in Brij
Mohan Lal
6
had indicated three sources from which the candidates could
be appointed to man the Fast Track Courts, in the State of Rajasthan
candidates were drawn only from one source namely through ad-
hoc/officiating promotions to the persons from the feeder cadre viz.
Senior Civil Judges Cadre. There was no appointment of any retired
Judge or by way of recruitment from the Bar.
5. By Order dated 07.05.2003 issued in compliance of directions of
this Court in All India Judges Association and others versus Union of
India and Others
1
and in accordance with the recommendation of First
National Judicial Pay Commission, 71 posts were acknowledged to be in
“Selection Scale” while 29 posts were found to be in “Super Time Scale”
in the Higher Judicial Service for the year 2002-2003.
6. On 20.10.2003, a Notification was issued by the High Court
notifying 19 vacansies for Direct Recruitment to the Higher Judicial
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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21
Service. Out of these 19 vacancies, 11 were shown as current vacancies
while 8 were shown as backlog vacancies. A challenge was raised in this
Court by way of Writ Petition (Civil) No.576 of 2003 by the Association
submitting inter alia that there were no vacancies for Direct Recruits and
as such the Notification dated 20.10.2003 was invalid. It was also
submitted that as on the date, 220 officers were functioning in the cadre of
District Judges and Additional District Judges.
7. On 13.12.2004, 22 Judicial Officers from the cadre of Senior Civil
Judge were promoted as Additional District and Sessions Judges (Fast
Track).
8. The matters concerning regular promotion to be granted to the
level of District Judge including whether those who were promoted as
Additional District and Sessions Judge (Fast Track) under Rule 22 of 1969
Rules were being considered by the High Court. A report of a Committee
constituted to consider said issues was submitted on 23.08.2008. The
matter was then placed before the Full Court on 29.11.2008 and thereafter
the matter stood deferred to 13.02.2009, 31.10.2009 and to 23.03.2010
successively.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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9. By order dated 11.01.2008, some Judicial Officers, including the
petitioners in Writ Petition (Civil) No.464 of 2019, were promoted as
Additional District and Sessions Judges on Ad-hoc basis to man the Fast
Track Courts. The order stated as under:-
“On the recommendation of Rajasthan High Court,
H.E. the Governor of State of Rajasthan is pleased to
appoint/promote the following 37 officers in the cadre
of R.H.J.S. as Additional District and Sessioins
Judges on purely ad-hoc basis to man the temporary
Fast Track Courts”.
9.1A consequential order was thereafter passed on 11.03.2008
directing transfer/posting of said Judicial Officers in the rank of
Additional District and Sessions Judges (Fast Track).
9.2In terms of the decision of Full Court in its Meeting dated
29.11.2008, the period of probation of 34 out of said 37 Judicial Officers
appointed by Order dated 11.01.2008 was extended till further orders.
10.On 07.07.2009, the challenge raised by the Association in Writ
Petition (Civil) No.576 of 2003 was decided by this Court vide its decision
in Rajasthan Judicial Service Officers’ Association v. State of Rajasthan
and Another
11
. It was observed by this Court that the sanctioned strength
in terms of 1969 Rules was only 150 and as against 25% posts which could
11 (2009) 14 SCC 656
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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be filled up by Direct Recruitment, 41 Direct Recruits were already
working in the Higher Judicial Service. It was, therefore, concluded that
there was no substantive vacancy available for Direct Recruits. The
petition was allowed and the Notification dated 20.10.2003 was set aside.
The relevant observations of this Court were as under:-
“8. According to the petitioner, the total cadre
strength of RHJS is 150 and there are already 41
direct recruits working in RHJS. Since the total cadre
strength is 150 and since 25% of the posts were
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 in RHJS. The petitioner
also submitted that if 19 vacancies should be treated
as 25% of the direct recruitment then there must be at
least 57 fresh appointments in RHJS by promotion,
but that has not been done.
… … …
11. In our opinion, as held by us in Veena Verma case,
the cadre strength is only 150 and not 240 because the
strength of the service is as per Rule 6(2) of the
Rajasthan Higher Judicial Service Rules as mentioned
in Schedule I to the Rules. Until and unless the
Schedule is amended in accordance with Rule 6(2) the
strength of the service cannot be varied, as held by us
in Veena Verma case
12
. As yet, we are told, no order
has been passed under Rule 6(2).
12. We have also perused the counter-affidavit filed
by the State of Rajasthan and also the rejoinder-
affidavit filed in the case. It is stated in Para 3 of the
rejoinder-affidavit that the impugned notification is in
violation of the stay order dated 28-9-2000 in Special
Leave Petition No. 9346 of 1999, staying the
operation of the order dated 30-4-1999 in DB (C) Spl.
Application No. 410 of 1998. It is stated in Para 6 of
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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the rejoinder-affidavit that there are as on date 220
officers functioning in the cadre of District Judges
and Additional District Judges and as such there are
no existing vacancies.
13. In our opinion, this writ petition has to be allowed.
In view of our decision in Veena Verma case
12
it has
to be held that under the existing Rule the strength of
the service of RHJS is 150 and since there are 41
direct recruits already working, there is no substantive
vacancy. Hence the impugned notification is illegal
and deserves to be quashed. The writ petition is
allowed and the impugned notification is quashed.
However, we make it clear that it is open to the State
Government in consultation with the High Court to
amend Schedule I to the Rules in accordance with
Rule 6(2) and thereby vary the strength of the service.
14. The petitioner has filed this writ petition seeking a
direction to the respondents to complete the selection
process initiated under Notification No. Estt.
(RJS)/118/2003 dated 20-10-2003. As we have
quashed the said notification in WP (C) No. 576 of
2003, this writ petition [WP (C) No. 275 of 2007] is
dismissed as having become infructuous.”
11.On the same day, a decision was rendered by this Court in High
Court of Judicature For Rajasthan v. Veena Verma and another
12
, which
inter alia considered whether Notification dated 21.12.1996 inviting
applications for 11 posts in the Higher Judicial Service in the State of
Rajasthan by Direct Recruitment was valid. It was observed that 11 posts
were not available for Direct Recruitment. While dealing with the
challenge, it was observed,
12 (2009) 14 SCC 734
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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“33. It may be mentioned that posts can be created
dehors the cadre of a service, and these are known as
ex cadre posts. The posts created without a specific
order under Rule 6(2) are ex cadre posts. Hence in our
opinion the temporary or permanent vacancies or
posts created beyond the number of posts in Schedule
I without a specific order under Rule 6(2) varying
Schedule I to the Rules are only ex cadre posts, and
can only be filled in by promotees, and not by direct
recruitment.
34. It may be noted that Rule 9(2) uses the words “as
far as possible”. In our opinion, this means that there
is no hard-and-fast rule that after every three persons
appointed by promotion, the fourth person has to be
appointed by direct recruitment. In our opinion, the
Division Bench of the High Court has given a wrong
interpretation of Rule 9(2) of the Rules by observing:
“it does not give a licence to the
respondents to refuse to appoint every
fourth person by direct recruitment on the
ground that it was not possible for any other
reason than the maintenance of the 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 of the High Court as is evident from
the words “as far as possible” in Rule 9(2). These
words give a discretion to the authorities, and the
Court cannot interfere with this discretion, unless it is
palpably arbitrary.
[Emphasis supplied]
35. In our opinion, the Division Bench of the High
Court erred in law in holding that for the purpose of
direct recruitment the temporary or permanent posts
created outside the cadre without amending Schedule
I were also to be included while calculating the
strength of the Service. The Division Bench also erred
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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26
in holding that whenever posts are created, the
strength of the Service is deemed to have been
automatically increased although there is no order
under Rule 6(2) in this connection amending Schedule
I. In our opinion, there has to be a specific order under
Rule 6(2) amending Schedule I otherwise it cannot be
said that the strength of the cadre has been increased.
Hence, in our opinion, the temporary or permanent
posts created outside the cadre cannot be taken into
consideration for determining the strength of the
cadre.”
12. On 18.01.2010, in exercise of the powers conferred by Articles 233
and 234 read with proviso to Article 309 of the Constitution of India, the
Governor of Rajasthan in consultation with the Rajasthan Public Service
Commission and the High Court made Rules for regulating recruitment to
the posts in, and the conditions and other matters related to the service of
persons appointed to the Rajasthan Judicial Service. The Rules are called
Rajasthan Judicial Service Rules, 2010 (“2010 Rules”, 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) of
Rule 3 as under:
“Rule 3: Definitions
(b)“Cadre” means the cadre of District Judge, Senior
Civil Judge and Civil Judge as provided under Rule 5
of Part-II of these Rules;
(c) “Cadre Post” means any post specified in
Schedule-I;
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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(g)“Member of the Service” means a person
appointed substantively to a post in the service under
the provisions of these Rules; and
(l) “Substantive appointment” means an appointment
made under the provisions of these rules to a
substantive vacancy after due selection by any of the
methods of recruitment prescribed under these Rules
and includes an appointment on probation followed
by confirmation on completion of the probation
period.”
12.2Part-II of 2010 Rules deals with “Cadre” and Rule 5 stipulates
that on and from the date of commencement of the Rules, the Rajasthan
Judicial Service shall stand re-constituted and re-designated into
following three cadres:
(A) District Judges
(B)Senior Civil Judge, and
(C)Civil Judge.
Rule 6 deals with “Strength of the Service” and is to the following
effect.
“(1) The Strength of the Service in each cadre and
number of other posts shall be determined by the
Government from time to time, in consultation with
the Court and the existing posts in each cadre in the
service shall be as specified in Schedule-I.
(2) The strength of other posts manned by the
members of the service shall be as specified in
Schedule-II unless any order varying the same is
issued under sub-rule(1):
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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Provided that the State Government may, in
consultation with the Court, create any permanent or
temporary post from time to time as may be
considered necessary and may abolish any such post
or posts in the like manner without thereby conferring
any right on any person for any type of claim.”
12.3.Part-III of 2010 Rules deals with subject “General Conditions”
and Rules 7, 8 and 15 are as under :-
“7. Determination of vacancies: (1) subject to the
provisions of these rules, the Court shall determine
and notify the actual number of existing and expected
vacancies in each cadre as per the time schedule
specified in Schedule-III.
(2) Where the vacancies in the cadre are to be filled in
by a single method, the vacancies so determined shall
be filled by that method.
(3) Where the vacancies in the cadre are to be filled in
by more than one method, the apportionment of
vacancies determined under sub-rule (1), to each such
method shall be done maintaining the prescribed
percentage for the particular method taking into
account consideration the overall number of posts
already filled in:
Provided that the apportionment for filling up
vacancies in the cadre of District Judge, shall be made
in a cyclic order of respective quota of each category,
i.e. Promotee on the basis of merit-cum-seniority,
Promotee on the basis of Limited Competitive
Examination and the Direct Recruitee.
8. Examination:- For filling up of vacancies in the
cadre of District Judge and Civil Judge, examination
shall be conducted by the Recruiting Authority as per
the time Schedule specified in Schedule III.
… … …
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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15. Temporary or officiating appointments:- On
occurrence of temporary or permanent vacancy, in the
cadre of District Judge or the Senior Civil Judge, as
the case may be, not taken into consideration at the
time of determining the vacancies under Rule 7 and if
in the opinion of the Court such vacancy is to be filled
in immediately, the Court shall recommend to the
Appointing Authority the names of the persons
eligible for appointment maximum for a period of one
year and such appointment shall not confer any rights
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 cadre
of Senior Civil Judge” are dealt with in Rules 16 to 30 of sub-Parts A and
B, while “Recruitment to the cadre of District Judge” is dealt with under
sub-Part C. Rule 31 deals with source of recruitment, as under:-
“31. Source of recruitment: (1) Fifty percent posts in
the cadre of District Judge shall be filled in by
promotion from amongst Senior Civil Judges on the
basis of merit-cum-seniority subject to passing of
suitability test as provided under Schedule-IV.
(2) Twenty five percent posts in the cadre of District
Judge shall be filled in by promotion from Senior
Civil Judges strictly on the basis of merit through
limited competitive examination conducted by the
Court.
(3) Twenty Five percent posts in the cadre of District
Judge shall be filled in by direct recruitment from
amongst the eligible Advocates on the basis of written
examination and interview conducted by the Court.
(4) For the purpose of proper maintenance and
determination of seniority of persons appointed
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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through the aforesaid sources, a roster for filling of
vacancies based on quota of vacancies reserved here-
in-above, as given in Schedule-VII shall be
maintained. This roster shall operate prospectively.”
12.5.Thereafter the relevant subjects are dealt with under three sub-
heads named as (I) Promotion, (II) Direct Recruitment and (III)
Appointment. Rule 32 dealing with the “Recruitment by Promotion” is
as under:
“32. Recruitment by promotion:- (1) Fifty percent
posts in the Cadre of District Judge shall be filled in
by promotion from amongst Senior Civil Judges
recommended by the Court, on the basis of merit-
cum-seniority, subject to passing of suitability test as
provided in Schedule-VI.
Explanation: “Qualifying the eligibility test shall not
affect the inter-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 Examination conducted by the
Court in accordance with the scheme of the
examination prescribed under Schedule-VIII.
(3) A Senior Civil Judge who has completed actual
five years service as on the first day of January
preceding the last date fixed for the receipt of the
applications shall be eligible for appearing in the
Limited Competitive Examination for promotion to
the Cadre of District Judge.
(4) For the purpose of Limited Competitive
Examination, applications shall be invited by the
Court from all eligible Senior Civil Judges in such
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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manner and in such form as may be specified by the
Court.
(5) Candidates who have obtained minimum 50%
marks in the Limited Competitive Examination shall
be eligible for interview by a Committee consisting of
Chief Justice, Administrative Judge and two other
Judges nominated by the Chief Justice. The
Committee taking into consideration the performance
at examination, the service record and the
performance at the interview shall assess the
suitability and recommend the names of the offices
for promotion.”
12.6Part-D deals with “Probation”, “Confirmation” and “Seniority”.
Sub-heading dealing with “Appointment” deals with issue of combined
Select List as under:
“42. Combined Select List: The Court shall prepare a
combined select list putting the names of candidates
in cyclic as provided in Schedule-VII from the lit
prepared under sub-rule (1) and (5) of Rules 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:
(1)Seniority in the service in the cadre of Civil Judge
shall be determined from the date of the order of
substantive appointment to the service:
Provided that the seniority of candidates appointed
to the service shall, in the case of appointment of
more persons than one follow the order in which
they have been placed in the list prepared by the
Recruiting Authority under Rule 24 of these Rules.
(2) Inter-se seniority of persons promoted to the
Senior Civil Judge cadre in the same year shall be
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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the same as it was in the post held by them at the
time of promotion.
(3)Seniority of persons appointed to the Service
in the District Judge cadre by direct recruitment
shall be determined from the date of the order of
substantive appointment in the cadre.
Provided that the seniority of direct recruitee to
the cadre, in the case of appointment of more
persons than one by an order of the same
selection, shall follow the order in which they
have been placed in the list prepared by the Court
under rule 41.
(4) Inter-se seniority of persons promoted to the
District Judge cadre in the same year shall be the
same as it was in the post held by them at the time
of promotion.
(5)The seniority of direct recruitee vis-a-vis the
promote appointed to the cadre of District Judge
shall be determined in the order of their names
placed in the combined select list prepared under
Rule 42:
Provided that the persons promoted under Rule
15 shall not be given seniority over the direct
recruitee.”
12.8Rule 57 repealed 1969 Rules and made provisions for saving
certain actions as under:
“57. Repeal and savings: The Rajasthan Highter
Judicial Service Rules, 1969 and the Rajasthan
Judicial Service Rules, 1955, as amended from time
to time, are hereby repealed:
Provided that such repeal shall not affect any
order made, action taken, effects and consequences of
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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anything done or suffered there under or any right,
privilege, obligation or liability already 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) of the
Rules deals with topic “Cadre Strength of the Service” and Part A deals
with “District Judge Cadre” which enumerates various designations in
said cadre aggregating to 223 and earmarks 10% reserve for leave,
training, deputation etc.; thus taking the grand total to 245. Parts B and
C of this Schedule deal with “Senior Civil Judge Cadre” and “Civil
Judge Cadre” and set out the strength at 222 and 329 respectively.
12.10Schedule II which is referable to Rule 6(2) of 2010 Rules deals
with topic “Strength of the Service”. Part-A thereof enumerates various
designations and the appropriate strength for the concerned posts in
“District Judge Cadre”, in which 102 posts are mentioned including 83
“Additional District Judges (Fast Tracks)”. In the same Schedule, Parts
B and C deal with “Senior Civil Judge Cadre” and “Civil Judge Cadre”
respectively and the strength noted against said two parts is 7 and 4
respectively.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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12.11 Schedule VII which is referable to Rule 31(4) sets out the Roster
for “filling up vacancies in the District Judge Cadre by direct recruitment
and by promotion.” First four points in the Roster are as under:
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 Court
notifying 58 vacancies to be filled in the cadre of District Judge. Out of 58
vacancies so notified, 36 vacancies were to be filled by the Direct
Recruitment from the Bar while remaining 22 vacancies were to be filled
by promotion through LCE as provided in Rules 7, 8, 32(1) and 40(1)
along with Schedule-II to 2010 Rules. In this recruitment, no provision
was made for 50% promotion quota meant for Promotees. Thereafter, a
Notification was issued on 15.04.2010 inviting applications from Senior
Civil Judges who had completed five years of actual service for being
considered for 22 posts in the cadre of the District Judge to be filled by
LCE and for filling up 36 vacancies through Direct Recruitment.
13 The pattern was thereafter modified vide Notification dated 31.08.2012 although the ratio
between three sources was kept intact.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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14. In Malik Mazhar Sultan and others v. U.P. Public Service
Commission
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 was as
under:-
“2. It is submitted that in compliance of the
directions of Hon’ble Court dated 21.03.2002 passed
in All India Judges Association Vs. UOI & Ors. (AIR
2002 SC 1752 +2002 (4) SCC 247), new Rules for
State Judicial Service, namely “Rajasthan State
Judicial Service Rules 2003” (hereinafter referred to
as draft Rules of 2003) were being framed, wherein
provision of various modes of Recruitment/Promotion
as approved and directed by this Hon’ble Court had
been incorporated.
3. In the draft Rules, 2003 a time bound schedule for
recruitment of the Judicial Officers was also provided,
which was more or less on the same lines as directed
by the Hon’ble Court in this matter. However, there
was variation between dates specified in the calendar
provided in Schedule-III of the draft Rules of 2003
and time schedule prescribed by the Hon’ble Court.
As such, the time schedule prescribed by the Hon’ble
Court could be implemented only after amending the
Draft Rules, 2003 and due promulgation of the same.
Amendment in the Draft Rules of 2003 would have
further required, approval of the Full Court of the
High Court and consultation with the Rajasthan
Public Service Commission resulting in further delay
in due promulgation of the Draft Rules of 2003.
Therefore, an application dated 11.07.2008 for
direction and modification was preferred by the
Rajasthan High Court before the Hon’ble Court and it
was prayed that the Hon’ble Court may be pleased:-
(a) to allow the application and permit the
applicant/Rajasthan High Court to follow the calendar
as annexed in Schedule-III of the draft of Rules, 2003
after due promulgation thereof; and
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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(b) to grant exemption to the applicant from
implementing the time Schedule as prescribed by the
Hon’ble Court vide it’s order dated 04.01.2007 till
draft Rules 2003 are finalized and duly promulgated.
This application for directions and modification was
registered as I.A. No.39. Copy of the same is annexed
herewith and marked as Annexure-R1.
4. It is submitted that while I.A. No.39 preferred by
the Rajasthan High Court was pending consideration,
in pursuance of order dated 24.07.2008 passed by this
Hon’ble Court, a factual report on behalf of Rajasthan
High Court with regard to filling of vacancies in
subordinate judiciary in the format prescribed by the
Hon’ble Court was filed by the answering respondent
through an affidavit dated 27.08.2008. True copy of
the same is annexed herewith and marked as
ANNEXURE-R-2.
5. It is submitted that while considering the factual
report with regard to filling of vacancies in
subordinate judiciary filed by the Rajasthan 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 the Rajasthan High Court.
6. It is submitted that meanwhile the Draft Rules
2003, incorporating the time schedule prescribed by
the Hon’ble Court and other necessary amendments
were renamed as “Rajasthan Judicial Service Rules,
2010” (hereinafter to be referred as Rules, 2010) and
the same have been duly promulgated and come into
force w.e.f. the date of its publication in Rajasthan
Gazette i.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 Rajasthan Higher Judicial Service and 33
vacancies in the cadre of Civil Judge (Sr. Division).
8.It is submitted that a report dated 23.08.2008 of a
Committee of Hon’ble Judges, constituted by the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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Hon’ble Chief Justice to consider the matter regarding
promotions in the cadre of District Judge on the post
of Additional District & Sessions Judge (regular),
Additional District & Sessions Judge (Fast Track) and
from the post of Civil Judge (Jr. Division) to the post
of Civil Judge (Sr. Division), recommending
promotions in these cadres was placed before 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, the report of the Hon’ble Committee could
not be approved by the Full Court. However, Hon’ble
Full Court in its meeting held on 31.10.2009 approved
the report of the Hon’ble Committee dated 23.08.2008
to the extent of making promotion of 33 officers from
the post of Civil Judge (Jr. Division) to the post of
Civil Judge (Sr. Division). Consequently, 33 officers
have been promoted from the post of Civil Judge (Jr.
Division) to that of Civil Judge (Sr. Division) vide
order dated 30.11.2009. Copy of order dated
30.11.2009 is annexed herewith and marked as
ANNEXURE-R/3.
9.It is submitted that the report dated 23.08.2008 of
the Hon’ble Committee regarding grant of promotions
to the post of Additional District & Sessions Judge
(regular) and Additional District & Sessions Judge
(Fast Track) was again placed for consideration before
the Hon’ble Full Court in its meeting held on
20.03.2010. Whereupon it was Resolved that the
report requires reconsideration by the Promotion
Committee after considering the service record for
subsequent period also and the report of the
Promotion Committee be placed before the Hon’ble
Full Court by circulation. Pursuant to the Full
Court Resolution, Hon’ble Committee convened its
meeting on 05-06.04.2010 and submitted its report,
suggesting amendment in Rule 15 of the Rajasthan
Judicial Service Rules, 2010. This report of the
Hon’ble Committee was placed before the Hon’ble
Full Court in its meeting held on 10.04.2010
whereupon it was Resolved to defer the matter
regarding amendment in Rule 15 of Rajasthan Judicial
Service Rules, 2010 and also Resolved to again
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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38
request the Committee to reconsider the matter
regarding promotion as per Full Court Resolution
dated 20.03.2010. It is submitted that pursuant to the
aforesaid Resolution the meeting of Hon’ble
Committee has been fixed on 12.04.2010 and
13.04.2010.
10.It is submitted that after the judgment dated
07.07.2009 rendered 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 Court in Writ Petition Civil No.576/2003
RJS Officers Asson. Vs. State of Rajasthan & Ors.
the matter of determination of vacancies for direct
recruitment in Rajasthan Higher Judicial Service was
placed before the Hon’ble Full Court vide Circulation
Case No.10/2009 on 18.07.2009 and on account of
different opinion of Hon’ble Judges, on 16.09.2009
the Hon’ble Chief Justice directed to put up the file
later. In the meanwhile, Rajasthan Judicial Service
Rules, 2010 came into force w.e.f. 19.01.2010.
Therefore, the matter regarding consideration of
vacancies in each cadre under the Rules of 2010 was
considered by the Hon’ble Full Court in its meeting
held on 24.01.2010 and the same was resolved to be
deferred. The matter was again placed before the
Hon’ble Full Court in its meeting held on 20.03.2010
and as per Rajasthan Judicial Service Rules, 2010, the
category wise vacancy in the District Judge Cadre
upto 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 the
Committee with respect to promotion of Additional District and Sessions
Judges, including those who were manning Fast Track Courts, was taken
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
39
up by the Full Court on 23.03.2010. In March-April 2010, the Report of
the Committee and records of the services rendered by all the concerned
candidates were considered by the High Court and substantive absorption
of those who were promoted to Fast Track Court and promotion of some
candidates to the cadre of District Judge on substantive basis was approved
by the Full Court.
16. On 21.04.2010 a formal Order was issued by the State Government in
view of the recommendation made by the High Court in its Resolution
dated 12/13.04.2010 promoting 47 Judicial Officers who were manning
Fast Track Courts to the level of Additional District Judges in accordance
with the recommendation made by the Committee in its Report dated
23.08.2008 (“the 47 Judicial Officers”, for short). It must be noted that the
47 Judicial Officers were not intimated by the High Court that they could
appear at LCE to be conducted in pursuance of the Notification dated
15.04.2010. The Order recited as under:-
“On the recommendation of Rajasthan High Court,
H.E. the Government of State of Rajasthan is pleased
to appoint/promote the following 47 officers as
Additional District and Sessions Judges in the District
Judge Cadre.”
On the same day i.e. on 21.04.2010 another Order was issued
promoting 49 Senior Civil Judges, including the petitioner in Writ Petition
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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(Civil) No.1008 of 2019, as Additional District and Sessions Judges on ad-
hoc basis to man the Fast Track Courts.
17.The candidates who had applied in pursuance of the Notification
dated 15.04.2010 appeared at the written examination held on 30.06.2010
and the successful candidates were then called for interview. However, by
communication dated 04.09.2010 interviews were postponed sine die.
Later, by Notification dated 22.09.2010 which was issued in pursuance of
the Resolution of the Full Court, the entire examination process for
recruitment by Direct Recruitment and through LCE was directed to be
held afresh.
18.A Notification was issued on 31.03.2011 renotifying the number of
vacancies available for Direct Recruitment and for promotion through
LCE. Said Notification was as under:-
“RAJASTHAN HIGH COURT JODHPUR
NOTIFICATION
As per the determination of vacancies for the current
year & the strength of District Judge cadre being 245,
the vacancies in the District Judge cadre as hereby
notified as under:-
Vacancies for Direct Recruitment -37
Vacancies for promotion by Limited
Competitive Examination -22
Vacancies for promotion -24
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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In case the cadre strength is revised to 255, the
vacancies would be as under:-
Vacancies for Direct Recruitment -39
Vacancies for promotion by Limited
Competitive Examination -22
Vacancies for promotion -33”
18.1. On the same day i.e. on 31.03.2011 two Orders were passed by the
High Court; one abolishing 40 Fast Track Courts while the other directed
continuation of the others “on ad-hoc basis as against the available vacant
posts” till the matter was considered for regular promotion. The Order
stated:-
“Consequent upon abolition of 40 ADJ (FT) Courts
vide Government 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
vacant posts till the matter is considered for regular
promotion in accordance with Rules and are
transferred/ posted as mentioned below. The officers
shown at S.No.40 to 53 are also transferred / posted as
mentioned below:-….”
19. A Bench of three Judges of this Court after noting its earlier
Judgment in All India Judges’ Association vs. Union of India and
Others
1
modified certain directions contained therein by its Order dated
20.04.2010
9
. The relevant paragraphs have already been quoated in
paragraph 2.6 hereinabove.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
42
20.On 10.06.2011, appropriate amendments were effected in 2010
Rules to fix the quota for Promotees at 65% in accordance with the
aforesaid Order dated 20.04.2010
9
issued by this Court and raising the
cadre strength of District Judges from 245 to 255.
21.In Brij Mohan Lal v. Union of India and Others
14
, this Court inter
alia dealt with two Transferred Cases, one arising from Writ Petition filed
in the High Court of Punjab and Haryana seeking directions to stop the
scheme and policy of appointment of retired District and Sessions Judges
as Ad-hoc Judges of the Fast Track Courts and the other filed in the High
Court of Andhra Pradesh seeking declaration that constitution of Fast
Track Courts was unconstitutional and consequently be set aside. This
Court considered the entire scheme as well as the relevant provisions in
various States and considered diverse submissions. One of the questions
raised by this Court was:-
“Whether any of the appointees to the post of ad
hoc Judges under the FTC Scheme have a right to the
post in the context of the facts of the present case?”
21.1 Thereafter, the letters of appointment issued to various appointees
including those from the State of Rajasthan were considered and while
14 (2012) 6 SCC 502
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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dealing with the issue of regularization of service rendered by the Judicial
Officers’ manning Fast Track Courts, it was observed:-
“172. The prayer for regularisation of service and
absorption of the petitioner appointees against the
vacancies appearing in the regular cadre has been
made not only in cases involving the case of the State
of Orissa, but even in other States. Absorption in
service is not a right. Regularisation also is not a
statutory or a legal right enforceable by the persons
appointed under different rules to different posts.
Regularisation shall depend upon the facts and
circumstances of a given case as well as the relevant
rules applicable to such class of persons.”
21.2 In so far as the State of Rajasthan is concerned, it was observed:-
“177. In the case of State of Rajasthan, it is the
judicial officers from the cadre of Civil Judge, Senior
Division, who were promoted as FTC Judges. They
have continued to hold those posts for a considerable
period. According to these petitioners, they were
promoted to the Higher Judicial Services as per the
Rules and, therefore, keeping in view the order of this
Court in Madhumita Das
15
as well as the very essence
of the FTC Scheme, they should be absorbed as
members of the regular cadre of Higher Judicial
Services of the State of Rajasthan. The State
Government had issued a directive that they should
undertake the limited competitive examination for
their regular promotion/absorption in the higher cadre.
These officers questioned the correctness of this
directive on the ground that they were promoted as
Additional Sessions Judges (FTC) under the Rules
and, therefore, there was no question of any further
requirement for them to take any written examination
after the long years of service that they have already
put in in the Higher Judicial Services.
15 (2008) 6 SCC 731
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
44
178. The Rajasthan Judicial Service Rules, 2010
are in force for appointment to the Higher Judicial
Services of the State. The judgment of this Court in
All India Judges’ Assn. (3) case
1
as well as the
relevant Rules contemplate that a person who is to be
directly appointed to the Higher Judicial Services has
to undergo a written examination and appear in an
interview before he can be appointed to the said
cadre. As far as appointment by promotion is
concerned, the promotion can be made by two
different modes i.e. on the basis of seniority-cum-
merit or through out-of-turn promotion wherein any
Civil Judge, Senior Division who has put in five years
of service is required to take a competitive
examination and then to the extent of 25% of the
vacancies available, such Judges would be promoted
to the Higher Judicial Services.
179. It was admitted before us by the learned
counsel appearing for the petitioners that these
officers who were promoted as ad hoc FTC Judges
had not taken any written competitive examination
before their promotion to this post under the Higher
Judicial Services. In other words, they were promoted
on ad hoc basis depending on the availability of
vacancy in FTCs. Once the Rules required a particular
procedure to be adopted for promotion to the regular
posts of the Higher Judicial Services, then the
competent authority can effect the promotion only by
that process and none other. In view of the admitted
fact that these officers have not taken any written
examination, we see no reason as to how the
challenge made by these judicial officers to the
directive issued by the State Government for
undertaking of written examination may be sustained.
Thus, the relief prayed for cannot be granted in its
entirety.”
21.3 Finally, following directions were issued in paragraph 207:-
“207. Without any intent to interfere with the
policy decision taken by the Governments, but
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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unmistakably, to protect the guarantees of Article 21
of the Constitution, to improve the justice delivery
system and fortify the independence of judiciary,
while ensuring attainment of constitutional goals as
well as to do complete justice to the lis before us, in
terms of Article 142 of the Constitution, we pass the
following orders and directions:
207.1. Being a policy decision which has already
taken effect, we decline to strike down the policy
decision of the Union of India vide Letter dated 14-9-
2010 not to finance the FTC Scheme beyond 31-3-
2011.
207.2. All the States which have taken a policy
decision to continue the FTC Scheme beyond 31-3-
2011 shall adhere to the respective dates as
announced, for example in the cases of States of
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 a policy decision on whether or not to continue
the FTC Scheme as a permanent feature of
administration of justice in the respective States are
free to take such a decision.
207.4. It is directed that all the States, henceforth,
shall not take a decision to continue the FTC Scheme
on ad hoc and temporary basis. The States are at
liberty to decide but only with regard either to bring
the FTC Scheme to an end or to continue the same as
a permanent feature in the State.
207.5. The Union of India and the State
Governments shall reallocate and utilise the funds
apportioned by the 13th Finance Commission and/or
make provisions for such additional funds to ensure
regularisation of the FTC Judges in the manner
indicated and/or for creation of additional courts as
directed in this judgment.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
46
207.6. All the decisions taken and
recommendations made at the Chief Justices and
Chief Ministers’ Conference shall be placed before
the Cabinet of the Centre or the State, as the case may
be, which alone shall have the authority to finally
accept, modify or decline the implementation of such
decisions and, that too, upon objective consideration
and for valid reasons. Let the minutes of the
Conference of 2009, at least now, be placed before the
Cabinet within three months from the date of
pronouncement of this judgment for its information
and appropriate action.
207.7. No decision, recommendation or proposal
made by the Chief Justices and Chief Ministers’
Conference shall be rejected or declined or varied at
any bureaucratic level, in the hierarchy of the
Governments, whether in the State or the Centre.
207.8. We hereby direct that it shall be for the
Central Government to provide funds for carrying out
the directions contained in this judgment and, if
necessary, by reallocation of funds already allocated
under the 13th Finance Commission for judiciary. We
further direct that for creation of additional 10% posts
of the existing cadre, the burden shall be equally
shared by the Centre and the State Governments and
funds be provided without any undue delay so that the
courts can be established as per the schedule directed
in this judgment.
207.9. All the persons who have been appointed
by way of direct recruitment from the Bar as Judges
to preside over FTCs under the FTC Scheme shall be
entitled to be appointed to the regular cadre of the
Higher Judicial Services of the respective States only
in the following manner:
(a) The direct recruits to FTCs who opt for
regularisation shall take a written examination to
be conducted by the High Courts of the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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respective States for determining their suitability
for absorption in the regular cadre of Additional
District Judges.
(b) Thereafter, they shall be subjected to
an interview by a Selection Committee consisting
of the Chief Justice and four seniormost Judges
of that High Court.
(c) There shall be 150 marks for the
written examination and 100 marks for the
interview. The qualifying marks shall be 40%
aggregate for general candidates and 35% for
SC/ST/OBC candidates. The examination and
interview shall be held in accordance with the
relevant Rules enacted by the States for direct
appointment to Higher Judicial Services.
(d) Each of the appointees shall be entitled
to one mark per year of service in the FTCs,
which shall form part of the interview marks.
(e) Needless to point out that this
examination and interview should be conducted
by the respective High Courts keeping in mind
that all these applicants have put in a number of
years as FTC Judges and have served the country
by administering justice in accordance with law.
The written examination and interview module,
should, thus, be framed keeping in mind the
peculiar facts and circumstances of these cases.
(f) The candidates who qualify the written
examination and obtain consolidated percentage
as aforeindicated shall be appointed to the post of
Additional District Judge in the regular cadre of
the State.
(g) If, for any reason, vacancies are not
available in the regular cadre, we hereby direct
the State Governments to create such additional
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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vacancies as may be necessary keeping in view
the number of candidates selected.
(h) All sitting and/or former FTC Judges
who were directly appointed from the Bar and are
desirous of taking the examination and interview
for regular appointment shall be given age
relaxation. No application shall be rejected on the
ground of age of the applicant being in excess of
the prescribed age.
207.10. The members of the Bar who have directly
been appointed but whose services were either
dispensed with or terminated on the ground of
doubtful integrity, unsatisfactory work or against
whom, on any other ground, disciplinary action had
been taken, shall not be eligible to the benefits stated
in para 207.9 of the judgment.
207.11. Keeping in view the need of the hour and
the constitutional mandate to provide fair and
expeditious trial to all litigants and the citizens of the
country, we direct the respective States and the
Central Government to create 10% of the total regular
cadre of the State as additional posts within three
months from today and take up the process for filling
such additional vacancies as per the Higher Judicial
Service and Judicial Services Rules of that State,
immediately thereafter.
207.12. These directions, of course, are in addition
to and not in derogation of the recommendations that
may be made by the Law Commission of India and
any other order which may be passed by the courts of
competent jurisdiction, in other such matters.
207.13. The candidates from any State, who were
promoted as FTC Judges from the post of Civil Judge,
Senior Division having requisite experience in
service, shall be entitled to be absorbed and remain
promoted to the Higher Judicial Services of that State
subject to:
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
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(a) Such promotion, when effected against
the 25% quota for out-of-turn promotion on
merit, in accordance with the judgment of this
Court in All India Judges’ Assn. (3)
1
, by taking
and being selected through the requisite
examination, as contemplated for out-of-turn
promotion.
(b) If the appointee has the requisite
seniority and is entitled to promotion against 25%
quota for promotion by seniority-cum-merit, he
shall be promoted on his own turn to the 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 that they have already
put in a number of years in service in the Higher
Judicial Services and, of course, with reference to
their performance.
(d) All other appointees in this category, in
the event of discontinuation of the FTC Scheme,
would revert to their respective posts in the
appropriate cadre.”
22. In the selection process undertaken pursuant to the Notification
dated 31.03.2011 for filling up vacancies through Direct Recruitment, LCE
and Promotion, only 9 candidates could clear LCE against 22 vacancies
meant for that category. This number got reduced to 8 as the candidature of
one of the successful candidates was not accepted. Resultantly, the unfilled
vacancies meant for LCE were added to the quota for Promotees and by
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
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Government Order dated 15.07.2013 appropriate Appointment Orders were
issued. The text of the Order was as under:-
“In exercise of the powers conferred by Article 233(1)
of the Constitution of India read with Rule 43 of the
Rajasthan Judicial Service Rules, 2010, the Governor
of the State of Rajasthan on the recommendation of
the Rajasthan High Court is pleased to appoint the
following persons recruited by promotion, limited
competitive examination and direct recruitment to the
Rajasthan Judicial Service in the District Judge Cadre
in the pay scale of Rs.51550-1230-58930-1380-63070
[District Judge (Entry Level)] with such allowances as
are admissible as per rules and their pay shall be fixed
as per rules. The persons appointed by direct
recruitment shall be placed on probation for a period
of two years from the date of assuming charge of their
office as per Rule 44 of the Rajasthan Judicial Service
Rules, 2010:…”
Thereafter, the names of 87 candidates were mentioned and the
names of 8 successful candidates in LCE were at Sr. Nos. 10, 19, 30, 39,
50 59, 65 and 68.
23. In the meantime, by Notification dated 31.03.2013 issued by the
High Court, 58 vacancies were determined for the years 2012-13 and
2013-14 in the cadre of District Judge. This Notification also stated that in
case the cadre strength was revised to 362, the vacancies in the cadre of
District Judge would be 165. On 14.09.2013, the strength of District Judge
cadre was revised to 372. By Notification dated 01.04.2014 issued by the
High Court, 204 vacancies were determined in the cadre of District Judge
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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for the years 2012-13, 2013-14 and 2014-15. The relevant portion of the
Notification dated 01.04.2014 was as under:-
“In suppression of earlier notification No.Estt.
(RJS)/06/2014 dated 15.01.2014, as per schedule I of
RJS rules 2010, the determination of 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
Vacancies 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 of vacancies) are not assigned to any
category for the present. However, these will be given
as per roaster to the particular category wherein any
vacancy(ies) on account of death elevation, dismissal
etc. will arise.”
24. On 21.04.2014, 56 Senior Civil Judges were promoted as
Additional District and Sessions Judges on Ad-hoc basis. The Order recited
as under.
“On the recommendation of Rajasthan High Court,
H.E. the Governor of State of Rajasthan is pleased to
appoint the following 56 officers purely on ad-hoc
basis as Additional District and Sessions Judge in the
District Judge cadre under Rule 15 of the Rajasthan
Judicial Service Rules, 2010:-”
The names of concerned 56 Judicial Officers were thereafter
mentioned in the Order.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
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25. On 15.12.2014 a final seniority list of all the Judicial Officers who
were then in service and appointed under the provisions of 1969 Rules
prior to 2008 (from Serial Nos.1 to 205) was published. This seniority list
is not under challenge and is accepted to be correct by all the concerned.
26. A Notification was issued on 31.03.2015 by the High Court
determining cumulative vacancies in the cadre of District Judge for the
years 2012-13, 2013-14, 2014-15 and 2015-16 as under:-
“In supersession of earlier Notification No.Estt.
(RJS)/33/2014 dated 01.04.2014, as per Schedule-1 of
RJS Rules, 2010, the cumulative vacancies in District
judge cadre for the years 2012-13, 2-13-14, 2014-15
& 2015-16 are hereby determined and notified as
under:-
As per cadre strength 372
Total Vacancies = 207+21 228
Vacancies for Direct Recruitment 44
Vacancies for promotion by Limited
Competitive Examination 29
Vacancies for promotion 134
*Note:- 21 future vacancies (against 10% of the total
Number of vacancies) are not assigned to any
category for the present. However, these will be given
as per roster to the particular category wherein any
vacancy (ies) on account of death elevation, dismissal
etc. will arise.”
26.1 Pursuant to the selection undertaken thereafter by Order dated
05.02.2016, 175 candidates were appointed to the cadre of District Judge,
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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which included recruitment through Promotion, LCE and Direct
Recruitment, . The Order stated :-
“i. This Select List in cyclic order has been
prepared of the candidates being recommended
for appointment while leaving one post unfilled
for a candidate Shri. Akhilesh Kumar selected
through Direct Recruitment. However, it is
notified that this list shall remain subject to
revision after receipt of complete verification
report from State Government with regard to Shri
Akhilesh Kumar and on his being recommended
by the Court for appointment, he shall occupy the
roster point in the cyclic order as he would have
occupied if included in the original list as per his
position in order or merit.
ii. This Select List in cyclic order has been
prepared of the candidates being recommended
for appointment while leaving eight posts unfilled
for eight Sr. Civil Judges, failing in the zone of
consideration for promotion on merit-cum-
seniority basis as their consideration has been
deferred due to pendency of departmental
enquiries against them. However, it is notified that
this list shall remain subject to revision after
outcome of the departmental enquiries with regard
to the said eight Sr. Civil Judges and on their
being recommended by the court for promotion;
they shall occupy the roster point in the cycle
order as they would have occupied if included in
the original list as per their position in order of
interese seniority in their feeder cadre.”
26.2.The petitioners in Writ Petition (Civil) No.895 of 2019, Writ
Petition (Civil) No.897 of 2019 and Writ Petition (Civil) No.899 of 2019
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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were promoted to the cadre of District Judge by aforesaid order dated
05.02.2016.
27. Thereafter, a Provisional Seniority List was issued vide
communication dated 16.08.2017 as regards Judicial Officers from Serial
Nos. 206 onwards. The communication recited as under:-
“TENTATIVE DETERMINATION OF SENIORITY
OF THE OFFICERS OF DISTRICT JUDGE
CADRE.
****
Final Seniority List of the officers of District Judge
Cadre upto Shri Nagendra Pal Bhandari was
published on 15.12.2014.
After taking into consideration, the representations
received from the officers of different categories and
all relevant provisions, the tentative/provisional
seniority list of the officers of District Judge Cadre
next to Shri Nagendra Pal Bhandari is
reckoned/proposed:”
The names of all the concerned candidates were mentioned in the
Provisional Seniority List. The candidates, who were successful in LCE
were given the original order of Seniority in the feeder cadre without
giving them any benefit for having successfully cleared the LCE. Further
the 47 Judicial Officers promoted on 21.04.2010 were en-bloc placed
above all the appointees pursuant to selection undertaken in 2011.
28. In August 2018, Writ Petition Nos.936 of 2018 and 967 of 2018
namely Writ Petitions in Categories A and B referred to in Para 1
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
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hereinabove were filed in this Court submitting inter alia that post the
coming into effect of 2010 Rules, all the appointments in the categories of
selection through LCE and Direct Recruitment had to be in conformity
with 2010 Rules and in tune with the Cyclic Order; that placement of the
47 Judicial Officers whose Appointment Orders were issued after the
process was undertaken in the year 2010 for selection of candidates
through 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 14.12.2018 the
learned counsel for the High Court submitted that the objections to the
Provisional Lists were pending consideration with the High Court.
Therefore, at his request the petitions were adjourned. Thereafter, the
entire matter was considered by the High Court and by its Report dated
15.03.2019 all the objections raised by the concerned candidates were dealt
with. The report was thereafter placed on record. On 18.07.2019 when said
Writ Petitions and all other connected matters were taken up, it was
highlighted that the 47 Judicial Officers were not promoted in conformity
with Rule 32(1) of 2010 Rules, and, in any case, the principle of Cyclic
Order, in terms of Rule 42, was also not complied with and yet they were
placed at Serial Nos.206 to 250. Since the 47 Judicial Officers were not
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
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parties to the present proceedings, notice was issued to them by Order
dated 18.07.2019.
30. In the meantime, the Report of the Committee of five Judges of the
High Court under the Chairmanship of the Chief Justice of the High Court
which had considered all the representations was placed on record. The
Committee had framed following four questions for its consideration in
said Report dated 15.03.2019:-
(1)Whether the officers, who were promoted
on the post of Additional District Judge
(Fast Track) on ad-hoc basis under Rule 22
of the Rules of 1969, can claim seniority
from the date of such ad-hoc promotion in
view of the first proviso to Rule 24 of the
Rules of 1969, by virtue of saving clause
in Rule 57 of the Rules of 2010, which
were enforced on 19.01.2010?
(2)Whether the process of selection for direct
recruitment against 36 posts determined in
the year 2010-11 should be taken to have
commenced from 15.04.2010 when initial
advertisement for recruitment was issued
or from 19.07.2011 when fresh
advertisement was issued after earlier
process was cancelled with the decision of
the High Court to hold the process of
recruitment afresh?
(3)Whether seniority of officers of the same
batch promoted to the District Judge cadre
in the Limited Competitive Examination
quota, should be prepared on the basis of
their inter-se placement in the merit list of
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
57
such examination under Rule 32(2) or
should be, in view of Rule 47(4) of the
Rules of 2010, the same as it was in Senior
Civil Judge cadre?
(4)Whether seniority of the officers promoted
to the District Judge cadre in view of Rule
31(4), is required to be fixed in cyclic
order as per roster given in Schedule V to
Rules of 2010 with adherence to quota-
rota rule and what bearing in the facts of
the case, the opening words “As far as
possible” in Rule 42 of the Rules, would
have on determination of seniority?
30.1 Before dealing with the aforesaid four questions, the scope of the
matter was dealt with as under:-
“The Rajasthan High Court notified the
provisional seniority list of the officers of the
District Judge cadre next to Shri Nagendra Pal
Singh Bhandari on 16.08.2017, inviting
objections thereto. This seniority list started
from Shri N.S. Dhaddha at serial no.206 and
continued upto Shri Mohammad Arif at serial
no.519. Recruitment to District Judge cadre is
made by three methods – 65% by promotion,
10% by Limited Competitive Examination (for
short, ‘LCE), both from amongst the Senior
Civil Judges and 25% by direct recruitment from
the members of the Bar. The officers from all
the three streams submitted their written
objections to the provisional seniority list.
Meeting of the Committee was convened under
the Chairmanship of the Chief Justice in the
Committee Hall of the High Court premises at
Jodhpur on 06.01.2019. Their oral submissions
were also heard in support of the written
objections already submitted.
… … …
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
58
We may at the outset make it clear that we do
not wish to unsettle the seniority position which
has attained finality insofar as final seniority list
dated 15.12.2014 is concerned, because no one
from any of the three streams of recruitment has
ever challenged the same before any forum
known to law. However, at the same time, we
wish to make it clear at this stage itself that
while deciding the objections as to correctness
of the provisional seniority list dated
16.08.2017, we may not agree and may deviate
from the principles on which the conclusions of
the earlier seniority committee in its report are
founded.”
30.2 With regard to first question the conclusion arrived at by the
Committee was as under:-
“In view of the position of law discussed above,
we are not persuaded to countenance the
submission that the promotes against the posts
outside the cadre should be taken to have been
promoted from the date of their ad hoc
promotion either in the fast track courts or any
other court, for the purpose of grant of seniority
with reference to proviso to Rule 24 even though
their regular promotion has actually taken place
after the Rules of 1969 were repealed and the
Rules of 2010 were promulgated on 19.01.2010.
We also cannot uphold the argument that any
right stood crystalized in favour of such
promotes by reason of prescription made in
proviso to Rule 24 and such right, by virtue of
the savings clause under Rule 57 of the Rules of
2010, would remain protected so as to entitle
them to claim seniority from the date of initial
promotion on ad hoc basis even if their regular
promotion has taken place later than the
promulgation of the Rules of 2010. We are not
examining the correctness of the order granting
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
59
selection scale to certain officers by counting the
ad hoc service towards requisite period of five
years, but that cannot justify giving the benefit
of seniority on the basis of ad hoc promotion in
view of the interpretation of the extant rules we
have taken in the light of settled proposition of
law. In our considered view, all those who were
promoted on ad hoc basis earlier under the Rules
of 1969, prior to promulgation of the Rules of
2010, can be given seniority only from the date
of their substantive appointment, upon regular
promotion, which took place after the Rules of
2010 came into force with effect from
19.01.2010. There is therefore no legal
justification for en-bloc placement of such
officers in the provisional seniority list on the
basis of revision of cadre strength, when
temporary/permanent posts included in the cadre
with increase of its strength from 150 to 245 and
every time later when the cadre strength was
revised from 246 to 255, 256 to 265 and 266 to
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 of recruitment was initially notified vide
advertisement dated 15.04.2010, but the entire
selection process both by direct recruitment as
well by promotion through LCE was abandoned
pursuant to decision of the Full Court, which is
evident from the order of the Registrar General
of the Rajasthan High Court dated 22.09.2010,
whereby it was decided that recruitment process
shall be initiated afresh. New process of
selection/recruitment was started in both these
categories by notification dated 19.07.2011. Out
of 41 candidates, who were selected in the year
2013 by way of direct recruitment pursuant to
the said notification, there are at least 15 such
candidates, whose names did not find place
either in the eligibility list or rejection list, as per
the information furnished by the Examination
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
60
Cell of the High Court. These names are – (1)
Shri Malkhan Singh, (2) Shri Ram Suresh
Prasad, (3) Shri Manchha Ram Suthar, (4) Shri
Keshav Kaushik, (5) Shri Dinesh Tyagi, (6) Shri
Hariom Sharma Attri, (7) Shri Arun Kumar
Beriwal, (8) Shri Hukam Singh Rajpurohit, (9)
Ms. Shivani Singh, (10) Shri Mashroor Alam
Khan, (11) Ramesh Prashad Choudhary, (12)
Ms. Meenakshi Sharma, (13) Ms. Anu
Aggarwal, (14) Shri Kishan Chand, and (15)
Shri Satish Kumar. This proves that either they
were not eligible, or even if eligible, they did not
apply in response to the earlier notification for
recruitment dated 15.04.2010. We are therefore
not inclined to uphold the claim of direct recruits
that they should be conferred the benefit of
seniority from the year 2010. In any event, the
direct recruits cannot claim seniority earlier than
initiation of fresh process of selection pursuant
to notification dated 19.07.2011 during the year
2011-12. The result of this would be that these
direct recruits would not be entitled to claim
seniority over at least those 47 officers, who
were promoted on regular basis vide order dated
21.04.2010 in the year 2010-11 after the Rules
of 2010 came into force. The direct recruits
cannot therefore claim seniority above those
officers, who were promoted on 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 promoted through LCE should by virtue of
Rule 32(2) be considered as the benchmark for
promotion, inter-se seniority amongst them in
the feeder cadre being maintained by
prescription of Rule 47(4), subject to the
exception that if an officer by regular method of
promotion is able to otherwise secure promotion
in the same year in the regular line on his turn
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
61
and on that basis he gets a higher placement in
the seniority, regardless of his selection in the
LCE, he should not be put to a disadvantageous
position and allowed to retain his position in the
seniority based on his regular promotion. In
other words, such officer would be entitled to
retain seniority, either on the basis of LCE or on
the basis of regular promotion, whichever is
more beneficial to him.”
30.5 Finally, while dealing with fourth question, the Committee took
into account that there was no actual recruitment in the years 2012-13,
2013-14 and 2014-15 and the recruitment process commenced by the
Notification dated 26.04.2015 was with regard to vacancies of all four
years i.e. 2012-13, 2013-14, 2014-15 and 2015-16. In the circumstances, it
was concluded:-
“As far as the period subsequent to the roster order
dated 15.07.2013 is concerned, the determination of
vacancies was made every year fairly regularly as
noticed above, but actual recruitment from none of the
three modes could take place in any one of the years
2012-13, 2013-14 and 2014-15. Finally again the
recruitment process commenced by notification dated
26.04.2015 in the year 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 the officers
were in between allowed to continue on the post of
Additional District & Sessions Judge on ad hoc basis,
they cannot in view of the afore-discussed provisions
of the Rules claim seniority on that basis. The
vacancies of all these four years having been
determined as those of the year 2015-16, all the
appointments, by direct recruitment, LCE or regular
promotion, should be deemed to belong to the year
2015-16.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
62
…. …. …
Perusal of the provisional seniority list shows that all
56 officers starting from Shri Satish Kumar Vyas
(S.No.369) upto Shri Jai Prakash Narain Purohit
(S.No.423), promoted on ad hoc basis vide order
dated 21.04.2014 as Additional District Judge in the
DJ cadre under Rule 15 of the Rules of 2010, have
been wrongly assigned higher seniority. Thereafter, 26
officers starting from Shri Paras Kumar Jain
(S.No.4224) upto Shri Jagendra Kumar Agarwal
(S.No.450), all promoted on ad hoc basis by order
dated 21.04.2015 also have been wrongly assigned
higher seniority in the provisional seniority list. The
next slot of officers starting from Shri Ashok Kumar
Agarwal (S.No.451) onwards though have been
promoted on regular basis by order dated 05.02.2016,
but they have been all placed en-bloc senior to those
who were selected against direct recruitment quota.
Surprisingly, the cadre strength was initially increased
with the enforcement of the Rules of 2010 on
19.01.2010, but the High Court administration has
applied the same analogy of revision of cadre strength
even on three subsequent occasions for placing all the
officers appointed on ad hoc basis en-bloc in the
seniority above those directly recruited. Some of the
officers, who though got regular promotion vide order
dated 05.02.2016, deviating from the roster point
indicated in the order of promotion dated 05.02.2016,
have been placed en-bloc above the officers of direct
recruitment and LCE quota by wrongly applying the
proviso to Rule 24 as if this repealed Rule would
perpetually survive by mere reason of ad hoc
promotions, for each succeeding year. Grant of benefit
of seniority to officers promoted on ad hoc basis was
thus contrary to the provisions contained in Rule 15
and 47(4).
Taking all the aforementioned circumstances into
account, we are inclined to hold that each of the years
2012-13, 2013-14, 2014-15 for the purpose of
operating the roster system should be treated as zero
recruitment year and that the recruitment against
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
63
combined 207 vacancies determined for these years
and the year 2015-16, should be taken as the
vacancies of the year 2015-16 so as to make the Rule
42 of the Rules of 2010 workable, which begins with
the phraseology “As far as possible”, a select list as
provided in Schedule-V shall be prepared by the High
Court. Such select list in the cyclic order as per the
roster point was earlier prepared by order dated
15.07.2013 and also when the next regular selections
took place vide order dated 05.02.2016 but this was
not truly reflected in the seniority list. All the officers
promoted on regular basis by order dated 05.02.2016
should be taken to have been substantively appointed
from that date only. If this view is taken, no prejudice
would be caused to any class of the officers as none of
them would compete for promotion/appointment in
their respective category in previous three years.
Vacancies of all these three years having been clubbed
with the vacancies of the year 2015-16 to be
determined as the vacancies of that year, each one 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.936 of
2018, and Mr. P.S. Patwalia and Mr. Nidhesh Gupta, learned Senior
Advocates for the petitioners in Writ Petition (Civil) No.967 of 2018
submitted that in terms of the provisions of 2010 Rules, any appointments
made after said Rules came into effect, had to be in conformity with the
principles therein and in accordance with the percentages for three
different sources set out therein. It was submitted that before 2010 Rules
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
64
came into effect, the strength of the cadre of District Judge in the State
was 150 and it got raised to 245 only after 2010 Rules came into effect.
Relying on the decisions of this Court in Debabrata Dash and Another v.
Jatindra Prasad Das and Others
16
, V. Venkata Prasad and Others v.
High Court of A.P. and Other
17
and in Kum C. Yamini v. The State of
Andhra Pradesh
18
, it was submitted that no service rendered on ad-hoc
basis as Fast Track Court Judges could be counted and that the rights
of such candidates to be considered for promotion arose only after
2010 Rules and that since the Notification dated 31.03.2010
notified vacancies to be filled up by Direct Recruitment and
through LCE, the High Court could not have promoted the 47 Judicial
Officers by Order dated 21.04.2010 so as to adversely affect the chances
and status of the petitioners. It was submitted that the entire exercise must
be taken to be one single package under which appointments through all
three sources could be undertaken after the vacancies became available by
enhancement of cadre strength; and that the entire exercise undertaken
after issuance of the Notification on 31.03.2011 was nothing but
continuation of what was contemplated by the Notification dated
15.04.2010. It was, therefore, submitted that the vacancies which were
16 (2013) 3 SCC 658
17 (2016) 11 SCC 656
18 (2019) 10 SCALE 834 = 2019(8 ) JT 365
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
65
subject matter of Notification dated 31.03.2011 and the posting of the 47
Judicial Officers pursuant to Order dated 21.04.2010 must be considered
as part of the same process. Resultantly, the placement of the concerned
candidates ought to be governed by the Cyclic Order enumerated in
Schedule VII to 2010 Rules. Reliance was placed on the decision of this
Court in Union of India and Others v. N. R. Parmar and Others
19
.
Mr. Nikhil Singhvi, learned Advocate for the petitioners in Writ
Petition (Civil) Diary No.13252 of 2019 added another dimension in
respect of LCE candidates. It was submitted that in keeping with the
directions issued by this Court in para 28 in All India Judges’
Association
1
the promotions through LCE must be “strictly on the basis of
merit” and that Rule 31(2) of 2010 Rules translates the same principle
and, therefore, the ranking of the candidates who had cleared LCE must
be in accordance with merit and not in accordance with their inter se
seniority in the erstwhile cadre.
32. On the other hand, Mr. R. Balasubramanian, learned Senior
Advocate and Ms. Prerna Singh, learned Advocate appearing for the 47
candidates submitted that said candidates were promoted well before the
19 (2012) 13 SCC 340
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
66
initiation of selection process initiated pursuant to the Notification dated
31.03.2011; that said Notification was not in continuation of the process
initiated in 2010; that number of candidates who were selected in the
selection process pursuant to the Notification dated 31.03.2011 had not
even participated in the process initiated in 2010 and the Committee of the
High Court in its Report dated 15.03.2019 rightly answered Question
No.2 in the negative. In their submission, the issue of regular promotion
of those who were manning the Fast Track Court on ad-hoc basis was
always under consideration right from 23.08.2008 when a Committee of
the High Court had made its recommendations. In the process, the case of
the 47 candidates stood on a completely different footing and the
Committee of the High Court in its Report dated 15.03.2019 rightly
acknowledged their entitlement.
33. Mr. Vijay Hansaria, learned Senior Advocate appearing for the
petitioners in Writ Petition (Civil) No.464 of 2019 submitted that all these
petitioners were appointed on ad-hoc basis as Fast Track Court Judges in
the year 2008 and as a matter of fact, 4 Judicial Officers who were also
appointed along with these petitioners in the year 2008 were part of the list
of the 47 candidates at Serial Nos.44 to 47 whereas these petitioners were
not included in said list. These Petitioners, therefore, pray that the order
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
67
dated 15.03.2019 be set aside to the extent it deprived said petitioners of
their rightful due and they be given seniority from their initial appointment
as Judges of the Fast Track Court that is from 11.01.2008 or, at least, above
all LCE candidates and Direct Recruits as was given to the 47 candidates.
It was further submitted that out of 83 Fast Track Courts which were
mentioned in Part A of Schedule II to 2010 Rules, 40 Courts were
abolished on 31.03.2011 and the petitioners were continued as Additional
District Judges against vacant regular posts vide Order dated 31.03.2011.
However, their substantive promotion to the Cadre of District Judge was
made on 15.07.2013 along with the Direct Recruits and candidates through
LCE. It was submitted that their initial appointments being under 1969
Rules and the fact that they were occupying posts indicated in Part A of
Schedule II as stated above, their case would be covered by Rule 57 of
2010 Rules. It was however accepted that some of the petitioners had
participated in the LCE around that time.
34. Mr. Neeraj Jain, learned Senior Advocate for the Association in
Writ Petition (Civil) No.1471 of 2018 submitted that as acknowledged in
the decision of this Court in Rajasthan Judicial Service Officers
Association
11
there were 41 Direct Recruits in the Cadre of District Judges
in the year 2009 and as such it was incorrect to assess the vacancies for
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
68
Direct Recruits in the Notifications dated 15.04.2010 and 31.03.20111 at
the level of 36 and 37 respectively. In his submission the allocation of
vacancies to Direct Recruits was in excess of their entitlement.
35. Mr. V.K. Shukla, learned Senior Advocate appeared for the
petitioners in Writ Petition (Civil) No.899 of 2019, who were promoted on
ad-hoc basis as Additional District and Sessions Judges to man the Fast
Track Courts on 21.04.2010 i.e. after 2010 Rules had come into force and
who were substantively promoted to the Cadre of District Judge by Order
dated 05.02.2016. It was submitted that their services at the level of
Additional District and Sessions Judge were continued even after
abolition of Fast Track Courts and thus said petitioners ought to be given
the benefit of past service and be conferred appropriate seniority.
36. Dr. Sumant Bhardwaj, learned Advocate appeared for the
petitioner in Writ Petition (Civil) No.1008 of 2019, where the petitioner
stands on similar footing as in Writ Petition (Civil) No.899 of 2019, in
that the ad-hoc promotion to the Cadre of District Judge was granted in
the year 2012.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
69
37. Dr. Manish Singhvi, and Mr. Sanjay Hegde, learned Senior
Advocates appearing for the State and the High Court respectively
supported the actions taken by the High Court on the administrative side.
38. In the backdrop of the facts and circumstances on record and the
submissions of all the learned Counsel, following questions arise for our
consideration:-
(A) Whether the judicial officers promoted on ad-hoc basis as
Additional District and Sessions Judges to man the Fast Track Courts in
the State and who were substantively appointed to the Cadre of the
District Judge, are entitled to seniority from the date of their initial ad-hoc
promotion?
(B) Whether the selection process initiated in terms of the Notification
dated 31.03.2011 can be said to be in continuation of the process initiated
under Notification dated 15.04.2010?
(C)Whether the substantive promotion granted to the 47 Judicial
Officers must be taken to be part of the same selection process pursuant to
the Notification dated 31.03.2011 and whether the 47 Judicial Officers
could be placed en-bloc senior to the candidates selected in said selection
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
70
process initiated pursuant to the Notification dated 31.03.2011, without
applying the Cyclic Order in terms of 2010 Rules?
(D) Whether the inter se placement of candidates selected to the Cadre
of District Judge in the State through Limited Competitive Examination,
in the seniority list must be based on their merit in said examination or
should it be based on their initial seniority in the erstwhile cadre?
(E) Whether the Report dated 15.03.2019 and the consequential Final
Seniority List, otherwise calls for any modification or correction?
39.As regards question No. (A), the law on the point is well settled
and though learned Counsel advanced submissions based on various
decisions of this Court and the principles emanating therefrom, the
following decisions in the context of ad-hoc appointments as Additional
District 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 Das and
Others
16
, a Bench of three Judges of this Court considered the case
wherein respondent No.1 was initially appointed as Additional District
Judge (Fast Track Court) on ad-hoc basis and later his service was
regularized in the Senior Branch Cadre in Orrisa Superior Judicial Service.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
71
His claim that service rendered as Judge of the Fast Track Court ought to
be reckoned for seniority was accepted by the Orissa High Court. This
Court, however, set aside the decision of the High Court. The question that
came up for consideration was posed in para 28 as under:-
“28. The crucial question that arises for
consideration in this appeal is:
whether promotion of the writ petitioner as an ad
hoc Additional District Judge vide Notification dated
5-1-2002 to the Senior Branch of the Superior Judicial
Service for being posted in the Fast Track Court
established out of the Eleventh Finance Commission
recommendations can be said to be an appointment in
the Senior Branch Cadre of Superior Judicial Service?
The fate of the appeal depends upon the answer to
this question. If the answer to this question is found in
the affirmative, the appeal must fail. On the other
hand, the appeal must succeed if the answer is in the
negative.”
This Court thereafter considered the effect of 2001 Rules which
were made to regulate the recruitment of Judicial Officers in the State to
man Fast Track Courts on ad-hoc basis. Para 35 considered the effect of
the Rules as under:-
“35. As noted earlier, 72 posts of ad hoc Additional
District Judges were created under the 2001 Rules to
meet its objectives. These posts were not part of cadre
strength of Senior Branch Service in the 1963 Rules
nor by creation of these posts under the 2001 Rules,
the cadre strength of the Senior Branch of service got
increased. The writ petitioner’s promotion as an ad
hoc Additional District Judge vide Notification dated
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
72
5-1-2002 pursuant to which he joined the post of ad
hoc Additional District Judge, Bargarh on 26-4-2002
is traceable wholly and squarely to the 2001 Rules.
Merely because the writ petitioner was adjudged
suitable on the touchstone of the 1963 Rules, we are
afraid, it cannot be said that he was given
appointment to the post of ad hoc Additional District
Judge under the 1963 Rules. As noted above, there
was no vacancy to be filled by promotion in the cadre
strength of Senior Branch of the 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 Mohan Lal
6
were also considered as under:-
41. A five-Judge Bench of this Court in Direct
Recruit Class II Engg. Officers’ Assn.
20
was
concerned with a question of seniority in service
between the direct recruits and promotees amongst
Deputy Engineers in the State of Maharashtra. This
Court considered previous decisions of this Court,
including S.B. Patwardhan v. State of Maharashtra
22
and Baleshwar Dass v. State of U.P.
23
and in para 47
of the Report summed up the legal position. Clauses
(A), (B) and (C) of para 47 are relevant for the present
purpose which read as follows: (Direct Recruit Class
II Engg. Officers’ Assn.
20
, SCC p. 745, para 47)
“(A) Once an incumbent is appointed to a
post according to rule, his seniority has to be
counted from the date of his appointment and
not according to the date of his confirmation.
The corollary of the above rule is that where the
initial appointment is only ad hoc and not
according to rules and made as a stopgap
20 (1990) 2 SCC 715
21 (2008) 8 SCC 25
22 (1977) 3 SCC 399
23 (1980) 4 SCC 226
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
73
arrangement, the officiation in such post cannot be
taken into account for considering the seniority.
(B) If the initial appointment is not made by
following the procedure laid down by the rules but
the appointee continues in the post uninterruptedly
till the regularisation of his service in accordance
with the rules, the period of officiating service will
be counted.
(C) When appointments are made from more
than one source, it is permissible to fix the ratio
for recruitment from the different sources, and if
rules are framed in this regard they must ordinarily
be followed strictly.”
The essence of direction in Clause (A) is that the
seniority of an appointee has to be counted from the
date of his appointment and not according to the date
of his confirmation once a recruitee is appointed to a
post according to the rules. In other words, where
initial appointment is only ad hoc and not according
to the rules and made as a stopgap arrangement, the
officiation in such post cannot be taken into account
for considering the seniority. The writ petitioner’s
appointment as an ad hoc Additional District Judge is
not traceable to the 1963 Rules. The simple reason
leading to this consequence is that there was no
vacancy available which was to be filled up by
promotion on that date in the Superior Judicial
Service (Senior Branch).
42. In Rudra Kumar Sain
21
a five-Judge Bench of
this Court was again concerned with the inter se
seniority between the promotees and direct recruits in
the Delhi Higher Judicial Service. The contention was
whether the guidelines and directions given by this
Court in O.P. Singla
24
have been followed or not. The
Court considered the 3 terms “ad hoc”, “stopgap” and
“fortuitous” in the context of the service jurisprudence
24 (1984) 4 SCC 450
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
74
and in para 20 of the Report held as under: (Rudra
Kumar Sain case
21
, SCC p. 45)
“20. In service jurisprudence, a person who
possesses the requisite qualification for being
appointed to a particular post and then he is
appointed with the approval and consultation of
the appropriate authority and continues in the post
for a fairly long period, then such an appointment
cannot be held to be ‘stopgap or fortuitous or
purely ad hoc’. In this view of the matter, the
reasoning and basis on which the appointment of
the promotees in the Delhi Higher Judicial Service
in the case in hand was held by the High Court to
be ‘fortuitous/ad hoc/stopgap’ are wholly
erroneous and, therefore, exclusion of those
appointees to have their continuous length of
service for seniority is erroneous.”
The Division Bench in the impugned order
25
has
quoted the above paragraph from Rudra Kumar
Sain
21
but applied it wrongly.
43. In Brij Mohan Lal (1)
6
a three-Judge Bench of
this Court, inter alia, considered the Fast Track Courts
Scheme. In para 10 of the judgment, this Court gave
various directions. Direction 14 in that paragraph is
relevant which can be paraphrased as follows: (SCC
p. 10)
(i) No right will be conferred on judicial
officers in service for claiming any regular
promotion on the basis of his/her appointment
on ad hoc basis under the Scheme.
(ii) The service rendered in the Fast Track
Courts will be deemed as service rendered in the
parent cadre.
25 Jatindra Prasad Das v. State of Orissa, WP (C) No.21449 of 2011, decided on
15-11-2011 (Ori)
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
75
(iii) In case any judicial officer is promoted
to higher grade in the parent cadre during his
tenure in Fast Track Courts, the service rendered
in Fast Track Courts will be deemed to be
service in such higher grade.
44. The learned Senior Counsel for the writ
petitioner heavily relied upon the third part of
Direction 14. As a matter of fact, this part has been
relied upon in the impugned judgment
1
as well. It is
submitted on behalf of the writ petitioner that on
promotion to the Senior Branch Cadre of Superior
Judicial Service during his tenure in the Fast Track
Courts, the writ petitioner is entitled to the counting
of the service rendered by him in the Fast Track Court
as a service in Superior Judicial Service (Senior
Branch). The submission overlooks the first two parts
of Direction 14, one, no right will be conferred in
judicial service for claiming any regular promotion on
the basis of his/her appointment on ad hoc basis under
the scheme; and two, the service rendered in Fast
Track Courts will be deemed as service rendered in
the parent cadre. In our opinion, until the vacancy
occurred in the cadre of Superior Judicial Service
(Senior Branch) which was to be filled up by
promotion, the service rendered by the writ petitioner
in the Fast Track Court cannot be deemed to be
service rendered in the Superior Judicial Service
(Senior Branch). Rather until then, he continued to be
a member of the parent cadre i.e. Superior Judicial
Service (Junior Branch). The third part of Direction
14, in our view, does not deserve to be read in a
manner that overrides the 1963 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 case which
arose in almost identical fact situation. The claim of the concerned
Judicial Officer for reckoning the service rendered as Additional District
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
76
Judge (Fast Track Courts) on ad-hoc basis was rejected. Reliance was
placed on the decision of this Court in Debabrata Dash
19
and the ratio in
that decision was followed.
(C) In Kum C. Yamini v. The State of Andhra Pradesh
18
a bench of
three Judges of this Court considered the issue where the candidates from
the Bar were appointed on ad-hoc basis and after their consideration, claim
was raised to reckon their seniority from the date of initial ad-hoc
appointment. The relevant observations are :-
“12. While rejecting the claim for their absorption and
challenge to the notification issued for the recruitment in
the regular cadre posts, certain directions were issued in
Brij Mohan Lal (2) (supra) for considering the claims of ad
hoc judges appointed to Fast Track Courts into regular
cadre posts. Following the directions only, the second
respondent has issued notification inviting applications for
appointments to the regular cadre of District Judges and
appellants and others responded to such notification and
totally 12 of them were selected for regular vacancies. In
the appointment order dated 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 of two years and after the
declaration of successful probation and nearly after four
years of appointment, the present claim is made claiming
seniority from the date of their initial appointment, as ad
hoc District Judges.
13. The claim of the appellants that they were appointed as
ad hoc District Judges by following the procedure which is
similar to the procedure for appointments to the sanctioned
posts in the regular cadre, is no ground to accede to their
request to reckon their seniority in the permanent cadre of
District Judges, from their initial appointment as the
District Judges for the Fast Track Courts. The appointments
which came to be made for selecting District Judges for
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
77
Fast Track Courts sanctioned under the 11th Finance
Scheme are totally different and distinct, compared to
appointments which are to be made for regular vacant posts
of District Judges covered under A.P. Higher Judicial
Service. If a person is not appointed to any post in the
cadre, such person cannot claim any seniority over the
persons who are appointed in vacant posts in the cadre. The
Fast Track Courts which were sanctioned initially for five
years from the grants of 11th Finance Commission, were
continued in some States beyond such period with the
assistance, from States and such Fast Track Courts were
discontinued in some other States. Merely on the ground
that they were selected by following the same procedure
akin to that of regular selections, is no ground to consider
their claim for grant of seniority from the date of initial
appointment. When their claim for
regularisation/absorption and challenge to notification
issued in the year 2004 for making selections to the vacant
regular posts of District Judges is rejected by the High
Court and confirmed by this Court, we are of the view that
the appellants have no basis to claim seniority from the date
of initial appointment. In any event, having applied in
response to the notification issued by the High Court in the
year 2013 after availing the benefit of appointment, it is not
open to the appellants to question the conditions imposed in
the order which is in conformity with rules. Undisputedly,
appellant was appointed as ad hoc District Judges to
preside over the Fast Track Courts only. Initially when she
was not appointed to a post or category of posts, forming
part of cadre strength in such category, appellant cannot
claim any seniority over the persons regularly appointed in
the category of posts forming part of cadre strength. There
is yet another ground to reject the claim of the appellant.
Though the appellant claims seniority over the persons who
are appointed in regular vacant posts forming part of cadre
strength 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 party in person, in the case of Rudra Kumar Sain
& Ors. v. Union of India & Ors. (supra). In the aforesaid
case, issue relates to claim of seniority between direct
recruits and promotees. Learned senior counsel Sri
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
78
Venkataramani, has also relied on the judgments of this
Court in the case of Brij Mohan Lal (1) v. Union of India &
Ors. (supra); in the case of Debabrata Dash & Anr. v.
Jatindra Prasad Das & Ors. (supra); in the case of V.
Venkata Prasad & Ors. v. High Court of Andhra Pradesh &
Ors. (supra) and in the case of Brij Mohan Lal (2) v. Union
of India & Ors. (supra). We have looked into the judgments
referred above by the learned senior counsel Sri
Venkataramani and the party in person. Having regard to
issue involved in the present appeals, we are of the view
that the ratio decided in the aforesaid cases would not
render any assistance in support of their claim in these
cases. The claim of seniority will depend upon several
factors, nature of appointment, rules as per which the
appointments are made and when appointments are made,
were such appointments to the cadre posts or not etc. When
the appellants were not appointed to any regular posts in
the A.P. Judicial Service, appellants cannot claim seniority
based on their ad hoc appointments to preside over Fast
Track Courts. We are of the view that the ratio decided in
the said judgments relied on by the appellants would not
render any assistance in support of their case.
15. On the other hand, the judgment in the case of V.
Venkata Prasad & Ors. v. High Court of Andhra Pradesh &
Ors. (supra), this Court has, in clear terms, while
considering A.P. State Higher Judicial Service Special
Rules for Ad Hoc Appointments, 2001 held that such
appointments in respect of Fast Track Courts are ad hoc in
nature and no right accrues to such appointees. The
aforesaid view of this Court clearly supports the case of the
respondents. Paragraph 25 of the said case which is
relevant for the purpose of these cases reads as under : “25.
From the aforesaid two authorities, it is quite clear that the
appointments in respect of Fast Track Courts are ad hoc in
nature and no right is to accrue to such recruits
promoted/posted on ad hoc basis from the lower judiciary
for the regular promotion on the basis of such appointment.
It has been categorically stated that FTC Judges were
appointed under a separate set of rules than the rules
governing the regular appointment in the State Higher
Judicial Services.”
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
79
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
the members
of the Bar were appointed as Fast Track Court Judges and these decisions
thus completely conclude the issue. As has been held in said decisions, the
reckonable date has to be the date when substantive appointment is made
and not from the date of the initial ad-hoc appointment or promotion.
Question (A) is, therefore, answered in the negative.
40. As regards Question No.(B), it is relevant to note that the
Notification dated 15.04.2010 had invited application for filling up 36
vacancies by Direct Recruitments and 22 vacancies by Promotion through
LCE. This was preceded by determination of vacancies through
Notification dated 31.03.2010. After the process initiated in terms of said
Notification dated 15.04.2010 was cancelled, a fresh determination of the
vacancies was undertaken and the Notification dated 31.03.2011 now
found vacancies for Direct Recruitments, for Promotion through LCE and
for Regular Promotion at 37, 32 and 24 respectively. Thus, the vacancies
which became available post the Notification dated 15.04.2010 were also
taken into account. The Report dated 15.03.2019 shows that some of the
selected candidates in the process pursuant to the Notification dated
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
80
31.03.2011 had not even participated in the earlier process of 2010. In the
premises, if the submission that the process initiated under the Notification
dated 31.03.2011 must be held to be in continuation of the earlier selection
of 2010 is accepted, it would amount to conferring undue advantages upon
persons who either had not participated in the process of 2010 or who were
not even eligible in 2010. The Report dated 15.03.2019, therefore,
correctly appreciated the fact situation on record and concluded that it
would not be in continuation of the earlier process.
41. As regards Question No.(C), it must be noted that as on the date
when 2010 Rules came into effect, the Additional District and Sessions
Judges manning the Fast Track Courts had rendered service in ad-hoc
capacity for almost 07 years. The question whether they be granted
promotion on Regular Basis was subject matter of consideration of the
High Court. The Report of the Committee of Judges given in 2008 had
advised that they be granted Regular Promotion and the matter was getting
deferred at the level of the Full Court. It was at this stage that 2010 Rules
became effective from 18.01.2010. Even thereafter, the Notification dated
31.03.2010 had published the vacancy situation only in respect of Direct
Recruitment and Promotion through LCE. It was obviously so, as the issue
regarding grant of Regular Promotion on substantive basis to those Fast
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
81
Track Court Judges was simultaneously under consideration and on
21.04.2010 a formal Order was passed promoting the 47 Judicial Officers
on substantive basis to the Cadre of District Judge. The grant of promotion
to the 47 Judicial Officers and selection process pursuant to the
Notification dated 15.04.2010 were not part of the same process and were
completely independent. None of the 47 Judicial Officers had the occasion
to compete in the LCE that was undertaken in terms of the Notification
dated 15.04.2010. It is possible to say that the last of the 47 Judicial
Officers could as well have been the first in the list of successful
candidates through LCE and thus could possibly have been entitled to
better placement. In any case, the process initiated pursuant to the
Notification dated 15.04.2010 was cancelled for administrative reasons and
the appointments in respect of process pursuant to the Notification dated
31.03.2011 could be effected only in the year 2013, i.e. more than 03 years
after the 47 Judicial Officers were granted substantive appointment to the
Cadre of District Judge. Further, if grant of promotion to the 47 Judicial
Officers is taken to be the part of the same process, some of the Direct
Recruits may not even be having eligibility in the year 2010 and yet may
be placed above some of the 47 Judicial Officers. In the circumstances, the
assessment made by the High Court in its Report dated 15.03.2019 is
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
82
without any infirmity and we have no hesitation in concluding that the
substantive promotion granted to the 47 Judicial Officers cannot be taken
to be part of the same selection process where Direct Recruits and
candidates through LCE were appointed to the Cadre of District Judge on
15.07.2013.
If the substantive appointment of the 47 Judicial Officers to the Cadre
of District Judge is separate and distinct from the selection process through
which appointment were made after three years on 15.07.2017, there
would be no question or occasion to apply the Cyclic Order. It is not the
contention of anyone that appointment of the 47 Judicial Officers on the
relevant date was either beyond the quota meant for Regular Promotion or
that there was any serious infirmity in the process or that any of the
candidates was completely ineligible. Since there was a difference of more
than 03 years between these two modes of selection, the Report dated
15.03.2019 rightly concluded that the Cyclic Order ought not to get
attracted.
It is true that the Cyclic Order and the quota for different streams
ensure equitable treatment for three sources. However, the application of
the Cyclic Order must depend upon the fact situations. It was precisely for
this reason that the expression “as far as possible” has been used in the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
83
Rule. Other things being equal, certainly the quotas for different streams
and the Cyclic Order must be adhered to. However, if such adherence itself
is going to cause incongruous situation and inflict incalculable harm,
insistence upon applicability of the Cyclic Order in such cases may not be
appropriate. The expression “as far as possible” was, therefore, relied
upon by this Court in Para 34 of its decision in Veena Verma
12
. It would
also be instructive to refer to a decision of this Court 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,
clothing the authority concerned with powers to meet
special situations where the normal process of
resolution cannot flow smoothly. The aforesaid phrase
can be interpreted as not being prohibitory in nature.
The said words rather connote a discretion vested in
the prescribed authority. It is thus discretion and not
compulsion. There is no hard-and-fast rule in this
regard as these words give a discretion to the
authority concerned. Once the authority exercises its
discretion, the court should not interfere with the said
discretion/decision unless it is found to be palpably
arbitrary. (Vide Iridium India Telecom Ltd. v.
Motorola Inc.
27
and High Court of Judicature for
Rajasthan v. Veena Verma
12
.) Thus, it is evident that
this phrase simply means that the principles are to be
observed unless it is not possible to follow the same
in the particular circumstances of a case.”
26 (2011) 7 SCC 639
27 (2005) 2 SCC 145
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
84
41.1.We must at this stage deal with submissions based on the decision
of this Court in N.R. Parmar
19
. In that case a Bench of two Judges of this
Court while considering O.N. dated 20.12.1999 and 02.02.2000 had
concluded as under:-
“31.2. It is not necessary, that the direct recruits
for vacancies of a particular recruitment year, should
join within the recruitment year (during which the
vacancies had arisen) itself. As such, the date of
joining would not be a relevant factor for determining
seniority of direct recruits. It would suffice if action
has been initiated for direct recruit vacancies, within
the recruitment year in which the vacancies had
become available. This is so, because delay in
administrative action, it was felt, could not deprive an
individual of his due seniority. As such, initiation of
action for recruitment within the recruitment year
would be sufficient to assign seniority to the
appointees concerned in terms of the “rotation of
quotas” principle, so as to arrange them with other
appointees (from the alternative source), for vacancies
of the same recruitment year.
…
34.1. If the process of recruitment has been
initiated during the recruitment year (in which the
vacancies have arisen) itself, even if the examination
for the said recruitment is held in a subsequent year,
and the result is declared in a year later (than the one
in which the examination was held), and the selected
candidates joined in a further later year (than the one
in which the result was declared), the selected
candidates will be entitled to be assigned seniority,
with reference to the recruitment year (in which the
requisition of vacancies was made). The logic and
reasoning for the aforesaid conclusion (expressed in
the ON dated 2-2-2000) is, if the process of direct
recruitment is initiated in the recruitment year itself,
the selected candidate(s) cannot be blamed for the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
85
administrative delay, in completing the process of
selection.”
Relying on the aforementioned observations, it was submitted that
the candidates selected through Direct Recruitment and LCE on
15.07.2013 could not be prejudiced if the High Court on the administrative
side had segregated the issue of promotion of the 47 Judicial Officers on
one hand and the selection through Direct Recruitment and LCE on the
other; 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 by
another Bench of two Judges of this Court in Hon’ble Punjab and
Haryana High Court v. State of Punjab and others
28
. In that case, the
recruitment from three different sources to the cadre of District Judge was
done on three different dates but in the same year. Paragraphs 50 to 53 of
said decision may be extracted as under:-
50. At this juncture, one of the submissions, which
has been emphatically pressed by the learned Counsel
for the promotees is that for determination of
seniority, continuous length of service is
determinative. The direct recruits and out of turn
promotees, who were 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
28 (2019) 12 SCC 496
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
86
refer to a judgment of this Court in Union of India and
Ors. v. N.R. Parmar and Ors. (2012) 13 SCC 340, the
issue in the said case was also an issue of
determination of seniority between direct recruits vis-
à-vis promotees and quota and rota principles. This
Court had occasion to consider the office
memorandum issued by the Government dated
22.12.1959. Noticing Para 6 of above office
memorandum following was stated in Para 23 of the
judgment:
23. The General Principles for determining seniority
in the Central Services are shown to have been laid
down in an annexure to an Office Memorandum dated
22-12-1959 issued by the Government of India,
Ministry of Home Affairs (hereinafter referred to as
"the OM dated 22-12-1959"). Para 6 of the annexure,
referred to above, laid down the manner of
determining inter se seniority between direct recruits
and promotees. Para 6 is being extracted hereunder:
6. Relative seniority of direct recruits and
promotees.--The relative seniority of direct
recruits and of promotees shall be determined
according to the rotation of vacancies between
direct recruits and promotees which shall be
based on the quotas of vacancies reserved for
direct recruitment and promotion respectively in
the Department Rules.
It is apparent from the above extract of the OM
dated 22-12-1959, that the "quota" between
promotees and direct recruits was to be read into the
seniority rule. The OM also provided for a definite
rotation of seniority points ("rota") between
promotees and direct recruits. The rotation provided
for was founded on the concept of rotation of quotas
between promo-tees and direct recruits. It is therefore
apparent, that under the OM dated 22-12-1959 inter se
seniority between the promotees and direct recruits
was based on the "quota" and "rota" principle. The
same has been meaningfully described as "rotation of
quotas" in some of these instruments.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
87
51. There was further office memorandum on
07.02.1986 to take care of situation where it was
decided that in future, while the principle of rotation
of quotas will still be followed for determining the
inter-se seniority of direct recruits and promotees, the
present practice of keeping vacant slots for being
filled up by direct recruits of later years, thereby
giving them unintended seniority over promotees who
were already in position, would be dispensed with.
This Court noticed office memorandum dated
07.02.1986 and observed that "when direct recruits or
promotees become available through later
examinations or selections", it clearly mean that the
situation contemplated is one where, there has been an
earlier examination or selection, and is then followed
by a "later" examination or selection.
52. In the above context, this Court laid down
following in Paragraph 31.2 that "it is not necessary,
that the direct recruits of a particular recruitment year,
should join within the recruitment year itself". It was
held that date of joining would not be a relevant factor
for determining seniority of direct recruits. In
paragraph 31.2 and 34.1 following has been laid
down:
31.2. It is not necessary, that the direct recruits for
vacancies of a particular recruitment year, should
join within the recruitment year (during which the
vacancies had arisen) itself. As such, the date of
joining would not be a relevant factor for
determining seniority of direct recruits. It would
suffice if action has been initiated for direct
recruit vacancies, within the recruitment year in
which the vacancies had become available. This
is so, because delay in administrative action, it
was felt, could not deprive an individual of his
due seniority. As such, initiation of action for
recruitment within the recruitment year would be
sufficient to assign seniority to the appointees
concerned in terms of the "rotation of quotas"
principle, so as to arrange them with other
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
88
appointees (from the alternative source), for
vacancies of the same recruitment year.
34.1. If the process of recruitment has been
initiated during the recruitment year (in which the
vacancies have arisen) itself, even if the
examination for the said recruitment is held in a
subsequent year, and the result is declared in a
year later (than the one in which the examination
was held), and the selected candidates joined in a
further later year (than the one in which the result
was declared), the selected candidates will be
entitled to be assigned seniority, with reference to
the recruitment year (in which the requisition of
vacancies was made). The logic and reasoning for
the aforesaid conclusion (expressed in the ON
dated 2-2-2000) is, if the process of direct
recruitment is initiated in the recruitment year
itself, the selected candidate(s) cannot be blamed
for the administrative delay, in completing the
process of selection.
53. In the present case, process for all the three
streams was completed in the year 2008 and all the
officers of three streams had joined in the same year.
The submission that quota rota Rule was broken or
seniority will be affected because of joining of one
category of officers earlier cannot be accepted. It is
also relevant to notice that purpose of statutory Rules
and laying down a procedure for recruitment was to
achieve the certainty. Officers belonging to different
streams have to be confidant that they shall be
recruited under their quota and get seniority as per
their quota and roster. In event, the seniority is to be
fixed with date of joining of particular stream, it will
lead to uncertainty and making seniority depending on
administrative authorities, which is neither in the
interest of service nor serve the cause of justice. We,
thus, conclude that roster is fully applicable for
determination of seniority. Officers of different
streams selected in a particular year even though they
were allowed to join the post on different dates shall
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
89
not affect their inter se seniority, which is to be
decided on the basis of roster.”
41.2It must, however, be stated that the decision in N.K. Parmar
19
has
since then been overruled by a Bench of three Judges of this Court in K.
Meghachandra Singh and Ors. vs. Ningam Siro and Others
29
. The
relevant paragraphs of said decision are as under:
5. Before the Writ Court, the promotees contended
that they entered the MPS Grade II Cadre on
01.03.2007 whereas the private Respondent Nos. 3 to
33 were appointed subsequently (on 14.08.2007 and
24.11.2007 respectively) and, therefore, they should
be regarded as senior to the direct recruits.
6. The direct recruits on the other hand claimed
seniority over the promotees by contending that
seniority has to be decided in accordance with the
year of the vacancy and not by the fortuitous date on
which, the appointment could be finalized for the
direct recruits.
…
13. It was also made clear that the promotees will
naturally have seniority over the Appellants as they
had entered the cadre of MPS Grade II, before the
Writ Appellants were borne in the cadre.
…
17. The Senior Counsel cites Union of India and Ors.
v. N.R. Parmar, (2012)13 SCC 340, to argue that
when action was initiated for filling up the 2005
vacancies, the administrative delay in finalization of
the recruitment leading to delayed appointment
should not deprive the individual of his due seniority.
By referring to the rotation of quota principle, the
counsel argues that initiation of action for recruitment
29 (2019) SCC Online SC 1494
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
90
in the year of the vacancy would be sufficient, to
assign seniority from that year.
…
20. Representing the Respondents/promotees, the
learned Senior Counsel, Shri Jaideep Gupta refers to
the MPS Rules, 1965 to argue that the provisions of
the Rules make it abundantly clear that inter-se
seniority in the cadre of MPS Grade-III is to be
determined by the order in which appointments are
made to the service. The counsel pointedly refers to
Rules 28 (i) where it is specified that the .......
seniority in the service shall be determined by the
order in which appointments are made to the
service....... He also refers to the later part of Rule
28(iii), where again it is specified that the "seniority
of the officer...... shall be counted from the date,
he/she is appointed to the service............ . The
provisions in Rule 16(iii) are pressed home by Mr.
Gupta to argue that only when the person is
appointed, he shall be deemed to have been appointed
to the service from the date of encadrement.
21. The judgment in N.R. Parmar (Supra) is read with
equal emphasis by Mr. Gupta to firstly point out that
this case does not lay down the correct law in
determination of seniority. The counsel highlights the
incongruity in a situation where a person who entered
service later will claim seniority above those who
joined service at an earlier point of time. The
applicability of the ratio in N.R. Parmar (Supra) to the
litigants in the present case is also questioned by 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, with different
Service Rules, will not apply to the present case.
…
29. Before proceeding to deal with the contention of
the Appellants' Counsel vis-à-vis the judgment in
N.R. Parmar (Supra), it is necessary to observe that
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
91
the Law is fairly well settled in a series of cases, that a
person is disentitled to claim seniority from a date he
was not borne in service. For example, in J.C. Patnaik
(Supra)
30
the Court considered the question whether
the year in which the vacancy accrues can have any
bearing for the purpose of determining the seniority
irrespective of the fact when the person is actually
recruited. The Court observed that there could be time
lag between the year when the vacancy accrues and
the year when the final recruitment is made. Referring
to the word "recruited" occurring in the Orissa Service
of Engineers Rules, 1941 the Supreme Court held in
J.C. Patnaik (Supra) that person cannot be said to
have been recruited to the service only on the basis of
initiation of process of recruitment but he is borne in
the post only when, formal appointment order is
issued.
30. The above ratio in J.C. Patnaik (Supra) is
followed by this Court in several subsequent cases. It
would however be appropriate to make specific
reference considering the seniority dispute in
reference to the Arunachal Pradesh Rules which are
pari 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 the view that seniority
is to be reckoned not from the date when vacancy
arose but from the date on which the appointment is
made to the post. The Court particularly held that
retrospective seniority should not be granted from a
day when an employee is not even borne in the cadre
so as to adversely impact those who were validly
appointed in the meantime.
31. We may also benefit by referring to the Judgment
in State of Uttar Pradesh and Ors. v. Ashok Kumar
Srivastava and Anr. (2014) 14 SCC 720. This
judgment is significant since this is rendered after the
N.R. Parmar (Supra) decision. Here the Court
approved the ratio in Pawan Pratap Singh and Ors. v.
Reevan Singh and Ors. (2011) 3 SCC 267, and
30 (1998) 4 SCC 456
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
92
concurred with the view that seniority should not be
reckoned retrospectively unless it is so expressly
provided by the relevant service Rules. The Supreme
Court held that seniority cannot be given for an
employee who is yet to be borne in the cadre and by
doing so it may adversely affect the employees who
have been appointed validly in the meantime. 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 drawn inspiration from the recent authority in
Pawan Pratap Singh v. Reevan Singh where the
Court after referring to earlier authorities in the
field has culled out certain principles out of
which the following being the relevant are
produced below:
45. (ii) Inter se seniority in a particular service
has to be determined as per the service rules.
The date of entry in a particular service or the
date of substantive appointment is the safest
criterion for fixing seniority inter se between
one officer or the other or between one group of
officers and the other recruited from different
sources. Any departure therefrom in the
statutory rules, executive instructions or
otherwise must be consistent with the
requirements of Articles 14 and 16 of the
Constitution.
.....................
45. (iv) The seniority cannot be reckoned from
the date of occurrence of the vacancy and cannot
be given retrospectively unless it is so expressly
provided by the relevant service rules. It is so
because seniority cannot be given on
retrospective basis when an employee has not
even been borne in the cadre and by doing so it
may adversely affect the employees who have
been appointed validly in the meantime.
…
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
93
34. In the above context, it is also necessary to refer to
the relevant advertisement issued in 2005 for direct
recruitment which allowed the aspirants to apply even
if, their result in the qualification examination is
awaited. Even more intriguing and significant is the
relaxation that those proposing to appear in the
qualifying examination are also allowed to respond to
the advertisement. If such be the nature of the process
initiated (in the year 2005) for making direct
recruitment, we can easily visualize a situation where,
in the event of granting seniority from the stage of
commencing the process, a person when eventually
appointed, would get seniority from a date even
before obtaining the qualification, for holding the
post.
…
38. When we carefully read the judgment in N.R.
Parmar (Supra), it appears to us that the referred OMs
(dated 07.02.1986 and 03.07.1986) were not properly
construed in the judgment. Contrary to the eventual
finding, the said two OMs had made it clear that
seniority of the direct recruits be declared only from
the date of appointment and not from the date of
initiation of recruitment process. But surprisingly, the
judgment while referring to the illustration given in
the OM in fact overlooks the effect of the said
illustration. According to us, the illustration extracted
in the N.R. Parmar (Supra) itself, makes it clear that
the vacancies which were intended for direct
recruitment in a particular year (1986) which were
filled in the next year (1987) could be taken into
consideration only in the subsequent year's seniority
list but not in the seniority list of 1986. In fact, this
was indicated in the two OMs dated 07.02.1986 and
03.07.1986 and that is why the Government issued the
subsequent OM on 03.03.2008 by way of clarification
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 candidate cannot be blamed for
administrative delay and the gap between initiation of
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
94
process and appointment. Such observation is
fallacious in as much as none can be identified as
being a selected candidate on the date when the
process of recruitment had commenced. On that day, a
body of persons aspiring to be appointed to the
vacancy intended for direct recruits was not in
existence. The persons who might respond to an
advertisement cannot have any service-related rights,
not to talk of right to have their seniority counted
from the date of the advertisement. In other words,
only on completion of the process, the Applicant
morphs into a selected candidate and, therefore,
unnecessary observation was made in N.R. Parmar
(Supra) to the effect that the selected candidate cannot
be blamed for the administrative delay. In the same
context, we may usefully refer to the ratio in
Shankarsan Dash v. Union of India (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 Central Government employees cannot in our
opinion, automatically apply to the Manipur State
Police Officers, governed by the MPS Rules, 1965.
We also feel that N.R. Parmar (Supra) had incorrectly
distinguished the long-standing seniority
determination principles propounded in, inter-alia,
J.C. Patnaik (Supra), Suraj Prakash Gupta and Ors. v.
State of J&K and Ors. (2000) 7 SCC 561 and Pawan
Pratap Singh and Ors. v. Reevan Singh and Ors.
(Supra). These three judgments and several others
with like enunciation on the law for determination of
seniority makes it abundantly clear that under Service
Jurisprudence, seniority cannot be claimed from a
date when the incumbent is yet to be borne in the
cadre. In our considered opinion, the law on the issue
is correctly declared in J.C. Patnaik (Supra) and
consequently we disapprove the norms on assessment
of inter-se seniority, suggested in N.R. Parmar
(Supra). Accordingly, the decision in N.R. Parmar is
overruled. However, it is made clear that this decision
will not affect the inter-se seniority already based on
N.R. Parmar and the same is protected. This decision
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
95
will apply prospectively except where seniority is to
be fixed under the relevant Rules from the date of
vacancy/the date of advertisement.
41. As noted earlier, the Learned Single Judge based
his judgment on two propositions but the Division
Bench was of the view that result would be the same
merely on the basis of one of the two propositions
and, therefore, it was unnecessary to pronounce upon
the other proposition. Such an approach cannot
therefore be described as a conflict (as has been
suggested), between the two judgments. Both
Benches were absolutely consistent in their
conclusion that promotees would have to be given
seniority over direct recruits. It cannot therefore be
argued that by some convoluted reasoning, it is
possible to come to the conclusion that the orders
passed by the two Courts would result in
diametrically opposite situation namely, that direct
recruits would have to be given seniority over
promotees.”
41.3 The facts noted in paragraph 5 of the decision in Meghachandra
Singh
29
show that the promotees entered the relevant grade in March 2007
whereas the direct recruits were appointed in August 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 in the cadre.
41.4 In the premises, the conclusion is inescapable that the candidates
selected through LCE and Direct Recruitment vide Order dated
15.07.2013 cannot claim to be clubbed with the 47 Judicial Officers
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
96
promoted in substantive capacity on 21.04.2010 and cannot claim
appropriate placement in accordance with the Cyclic Order. We
accordingly answer Question (C) and find that the 47 Judicial Officers
were rightly placed en-bloc senior to all the candidates selected through
the process initiated pursuant to the Notification dated 31.03.2011.
Writ Petition (Civil) Nos.936 of 2018 and 967 are, therefore, dismissed.
42. While considering Question (D), it is relevant to notice the
emphasis placed by this Court in All India Judges Association
1
while
directing that 25 per cent of the posts in the cadre of the District Judge be
filled through LCE. It was stated in paragraph 27 that there should be an
incentive amongst relatively junior and other officers to improve and to
compete with each other so as to excel and get accelerated promotion. In
paragraph 28 the relevant direction again stressed that 25 per cent quota
for promotion through LCE be “strictly on the basis of merit.”
Rule 31(2) of 2010 Rules also uses the expression “strictly on the
basis of merit” while dealing with posts to be filled in through LCE. The
merit is to be assessed in terms of the scheme laid down in the relevant
Schedule. After considering various parameters stated in said Schedule,
the successful candidates are selected on the basis of merit. The list of
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
97
successful candidates becomes the basis for final selection subject to
qualifying parameters such as suitability, medical fitness etc.
However, placing reliance on Rule 47(4), the Committee in its
Report dated 15.03.2019 held that the inter se seniority of persons
promoted to the District Judge Cadre in the same year ought to be the
same as it was in the posts held by them at the time of promotion.
If the list is to be drawn up according to merit, it is possible that
the last person in the list of selectees may be the senior most and going by
the Report of the Committee, if all the selectees are promoted in the same
year such last person may as well be at the top of the list of promotees
through LCE. In that event, the seniority shall become the governing
criteria and the excellence on part of a comparatively junior candidate
may recede in the background. Instead of giving incentive to
comparatively junior and other officers, the entire examination process
will stand reduced to a mere qualifying examination rather than a
competitive examination affording opportunity to meritorious candidates.
The criteria shall then become seniority subject to passing the LCE.
The direction issued in All India Judges Association
1
to afford an
incentive to meritorious candidates regardless of their seniority would not
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
98
thus be carried out. The general principle appearing in Rule 47(4) must,
therefore, give way to the special dispensation in Rule 31(2) of 2010
Rules.
In our view, the High Court in its Report dated 15.03.2019
completely failed to appreciate the true character of LCE and reservation
of certain quota for that category.
We, therefore, accept the submissions made by the learned
Advocate for the petitioners in Writ Petition (Civil) No.498 of 2018 and
Diary No.13252 of 2019 and while answering Question (D) declare that
the inter se placement of the candidates selected through LCE must be
based on merit and not on the basis of the seniority in the erstwhile cadre.
Said Writ Petitions are allowed to that extent.
43. We now deal with the submissions advanced in Writ Petition
(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 appropriate
mention 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 the concerned
Judicial Officers were under 1969 Rules. But such promotions were on
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
99
ad-hoc basis to man the Fast Track Courts and the law on the point is now
well settled that the service rendered by such Judicial Officers as Fast
Track Court Judges on ad-hoc basis cannot be taken into account while
reckoning seniority after such Judicial Officers were granted promotion
on substantive basis and that their seniority has to be reckoned only from
the date of their substantive appointment to the cadre of District Judge.
Said 1969 Rules do not in any way confer any right which would be
inconsistent with the law so laid down by this Court.
The further submission that four Judicial Officers out of the 47
Judicial Officers were also appointed on the same day along with the
petitioners in Writ Petition (Civil) No.464 of 2019 also has no merit. The
grant of promotion on substantive basis to said four Judicial Officers does
not by itself entitle said petitioners to any similar treatment. The issue of
grant of promotion on substantive basis may depend upon various issues
including suitability of the concerned candidate and availability of posts.
The record also shows that after grant of promotion on substantive basis
to the 47 Judicial Officers, there were no vacancies for Regular Promotion
which is why the selection process undertaken in the year 2010 did not
earmark any vacancies for Regular Promotions and it was only in the year
2011, when adequate vacancies for said category became available, that
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
100
the Notification dated 31.03.2011 contemplated filling up of certain
vacancies by Regulation Promotion.
The petitioners in Writ Petition (Civil) No.464 of 2019
participated in the process initiated pursuant to said Notification dated
31.03.2011. Some of them also appeared in LCE and availed of the
opportunity to stake their claim. Their regular promotions to the Cadre of
District Judge must, therefore, be taken only as a result of selection
process initiated in terms of the Notification dated 31.03.2011 which
culminated in the Order dated 15.07.2013. In the circumstances, their
substantive appointment to said cadre has to be reckoned from 15.07.2013
and not with any anterior effect.
Once the Regular Promotion was part of the same process along
with other streams, namely, through Direct Recruitment and LCE, the
Cyclic Order had to be applied and said petitioners cannot be given en-
bloc placement above the candidates selected through Direct Recruitment
and LCE in the same process of selection.
We, therefore, see no merit in Writ Petition (Civil) No. 464 of
2019 and said Writ Petition is dismissed.
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
101
The petitioners in Writ Petition (Civil) No.899 of 2019 and other
connected matters came to be appointed on ad-hoc basis to man the Fast
Track Courts after 2010 Rules came into effect. Even if their services
were continued after abolition of Fast Track Courts, that by itself would
not confer any right on them. They came to be substantively promoted to
the Cadre of District Judge only vide Order dated 05.02.2016. For the
reasons stated hereinabove, their entitlement on substantive basis has to be
reckoned only from 05.02.2016 and not from any earlier date. Writ
Petition (Civil) No.899 of 2019 and other connected matters are,
therefore, dismissed. Thus, while answering Question (E), we conclude
that 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 2018 and Writ Petition (Civil)
_______ of 2020 [D. No.13252 of 2019] are allowed to the extent
indicated above.
(b) Consequently, the seniority list issued in terms of Report dated
15.03.2019 shall stand modified only to the extent that appropriate
placement to the candidates selected through LCE be given on the
Writ Petition (Civil) No.936 of 2018 etc etc.
Dinesh Kumar Gupta & Ors. v. Hon. High Court for Judicature of Rajasthan and
Anr.
102
basis of their merit in the examination and not on the basis of their
seniority in the erstwhile cadre. Let the appropriate changes be
made within four weeks of this Judgment.
(c) Except to the extent indicated in direction (b) above, the
Report dated 15.03.2019 does not call for any modification or
clarification.
(d) All other writ petitions are dismissed.
……………………….J.
[Uday Umesh Lalit]
……………………….J.
[Vineet Saran]
New Delhi;
April 29, 2020.
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