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CASE NO.:

Writ Petition (civil) 516 of 1992

PETITIONER:

ISHWAR CHAND JAIN

Vs.

RESPONDENT:

HIGH COURT OF PUNJAB & HARYANA & ORS

DATE OF JUDGMENT: 10/01/2001

BENCH:

G.B.Pattanaik, U.C.Banerjee, N.S.Hegde

JUDGMENT:

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BANERJEE, J.

Judicial precedents are available in large numbers in

regard to the irksome issue of inter-se seniority between

the direct recruits and promotees. One direct recruit

judicial officer, said to be aggrieved by the issuance of a

Notification dated 13th December, 1990 in the matter of

revision and refixation of the dates of confirmation of

Districts/Additional District and Session Judges in Haryana

Superior Judicial Service has brought this matter before

this Court under Article 32 of the Constitution. On an

analysis of the factual details, it can undoubtedly be said

that the matter itself has a chequered career. The

appellant joined the service on 2nd May, 1983 as a direct

recruit Additional District & Sessions Judge in Judicial

Service on probation for a period of 2 years. The

contextual facts depict that shortly after joining the post

and during the probationary period, the petitioners

services were terminated and in accordance with the existing

Rules, the recommendation for such termination was duly sent

to the State Government but the State Government in its turn

however requested for a further probationary period of one

year. Subsequently however, upon the expiry of the extended

period the petitioners services were terminated and it is

against the termination order, that the petitioner moved

this Court under Article 32 of the Constitution. By an

order dated 26.5.1988 this Court however did set aside the

order of termination and a direction was issued for

reinstatement of the appellant with continuity of service

together with all arrears of salary, allowances and other

benefits and in terms therewith petitioners service was

confirmed with effect from 2nd May, 1986. Subsequent to the

placement of the petitioner as above (i.e. to say from

2.5.1986), the petitioner however, moved an interlocutory

application in the Civil Appeal No.811 of 1988 and this

Court on 11th September, 1990 passed an order to the effect

that the petitioners entitlement for confirmation from 2nd

May, 1985 cannot be doubted and the High Court was not right

in confirming the petitioner with effect from 2nd May, 1986

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and it is on this perspective a further direction was issued

by this Court for confirmation of the petitioner with effect

from 2nd May, 1985 within two months and the same was duly

complied with recording the confirmation as directed. The

petitioner however moved once again this Court, under

Article 32 which is presently under consideration inter alia

for issuance of a Writ of Certiorari for quashing the order

or notification dated 13.12.1990 regarding the placement of

the petitioner in the seniority list. Incidentally, it is

convenient to note at this juncture that the petitioner has

been placed at Sl. No.27 in the seniority list. It is also

convenient to note that whereas the petitioner claims

placement immediately after Sl. No.18 i.e. Shri Krishan

Kant in the pleadings before this Court but there is slight

shift in the stand during the course of hearing since the

petitioner (appearing in person) contended that as a matter

of fact, the placement should have been immediately

after Shri M.K.Bansal at Sl.No.20. Sl.No.19 and before Shri

A.S.Garg who is placed at The second Writ Petition presently

under consideration also contain two other prayers the

first being for issuance of a proper writ striking down Rule

10 (2) regarding the date of confirmation of direct recruits

and portion of Rule 12 regarding fixation of seniority on

the date of confirmation as being violative of Articles 14

and 16 of the Constitution and secondly for issuance of a

Writ of Mandamus directing the Respondent No.1 to refix the

seniority of the petitioner in accordance with the rules

after giving same interpretation which had been given for

the petitioners and respondents in the case of H.L. Randev

& Ors and for appropriate placement of the petitioner being

senior to Respondent No.3 to 9 with all consequential

benefits. As noticed above the petitioner during the course

of hearing withdrew the names of Respondent No.3 Shri M.K.

Bansal as also Respondent No.9 Shri B.L. Gulati and prayed

for striking off the same from the Cause Title of the

petition and in terms therewith this Court directed

withdrawal of the names as prayed for by the petitioner.

The principal grievance thus pertains to placement of

Respondent Nos.4 to 8. It will not be out of context to

note that Respondent Nos.4 to 8 have all retired from the

Judicial Service and the petitioner himself is to retire

shortly. Before proceeding with the matter further, a look

at the prayers of the Interlocutory Application in the

earlier disposed of appeal noted above would be convenient

at this juncture: a) to fully implement the judgment

passed in Civil appeal No.811 of 1988 decided on 26.5.1988.

b) to confirm the petitioner Ishwar Chand Jain at least with@@

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effect from 2.5.1985 and to fix the seniority accordingly.@@

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c) to revise the A.C.R. for the year 1984-85 suitably i.e.

from C (unsatisfactory) to B plus (Good) in the light of

the judgment of this Honble Court. d) to pass such other

further orders as this Honble Court may deem fit and proper

in the circumstances of the case. It is in regard to the

prayer (b) that Shri Mahabir Singh, learned Advocate

appearing for the Respondents contended as a preliminary

issue for consideration that since the petitioner has prayed

for fixation of seniority in earlier Interlocutory

Application, question of further fixation would not arise

and the present application is barred under the doctrine of

res judicata or constructive res judicata or principles

analogous thereto. We are, however, not impressed with the

preliminary objection of the learned Advocate since the

seniority list under challenge in the petition is of 13th

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December, 1990 and the earlier petition was filed on 7th

July, 1990 and the order thereon was passed on 11th

September, 1990. In the premises, question of the challenge

being barred by the doctrine of res judicata or constructive

res judicata or under any principles analogous thereto does

not and cannot arise and as such the preliminary objection

of Mr. Mahabir Singh fails. Turning attention on to the

merits of the matter, be it noted that prior to the

completion of the probationary period the rules stood

amended and Mr. Mahabir Singh, Advocate for the Respondents

contended that it is the earlier rule which ought to be

treated as the governing rule in the matter of placement of

the petitioner in the seniority list and it is on this

score, the petitioner while conceding the factum of the

earlier rule being the governing rule, contended that Rule

10(2) and a portion of Rule 12 however ought to be declared

as invalid since the same is violative of Articles 14 and

16. Rule 10 (2) and Rule 12 as the Rules then stood and

before amendment read as below: Ru le 10. Probation

(1) (2) On the completion of period of probation

the Governor may, in consultation with the High Court

confirm a direct recruit on a cadre post with effect from a

date not earlier than the date on which he completes the

period of probation. 12. Seniority:- The

Seniority-inter-se of the substantive members of the

service, whether direct recruits or promotee officers, shall

be determined with the reference to the respective dates of

their confirmation; (Emphasis supplied)

Provided that the seniority, inter-se of substantive

members of the Service having the same date of confirmation

shall be determined as follows:-

(i) in the case of direct recruits, the older in age

shall be senior to the younger; (ii) in the case of

promotee officers, in accordance with the seniority in the

Punjab Civil Service (Judicial Branch) as it stood

immediately before their confirmation; (iii) in the case of

promotee officers and direct recruits, the older in age

shall be senior to the younger.

The validity of Rule 10(2) also that of emphasised

portion of Rule 12 as above, are under challenge in this

Writ Petition.

In order however to appreciate the submissions made by

the parties and for effective adjudication of the disputes

between the parties it would be convenient to note Rules

2.1, 2.2 and 2.6 at this juncture and the same read as

below:

Rules 2.1 Appointment to the Service means an

appointment to a cadre post, whether on permanent, temporary

or officiating basis or on probation.

Rules 2.2 Cadre post means a permanent post in the

service.

Rules 2.6 Member of the service means a person

a) who, immediately before the commencement of these

rules, holds a cadre post, whether on permanent, temporary

or officiating basis, or on probation or

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b) who is appointed to a cadre post in accordance with

the provisions of these rules;

These rules, however, stood amended as noticed above

and excepting the amendment to Rule 2.2 there is not much of

a change introduced by the amendment to the rules since the

amendments pertain to the alteration of number from earlier

Rule 2.6 to present 2.5. Definition of Cadre post in

terms of Rule 2.2 however has undergone a substantive

change: whereas in the earlier rule Cadre post meant a

permanent post in the service, under the new and existing

Rule. Cadre post means a post whether permanent or

temporary in the service as regards seniority in terms of

Rule 12. The amendment seems to be rather drastic in the

sense that whereas the earlier Rule 12 specifically

provided, that the seniority-inter-se would be dependant

upon reference to the respective dates of their confirmation

for both direct recruits and promotee officers, the

amendment introduced the length of continuous service

instead of dates of confirmation. (Emphasis supplied)

Turning on to the issue of the validity of the rules,

it has been contended by the petitioner that the portion of

Rule 12 of the Rules, which makes the seniority dependant on

the date of the confirmation, is liable to be quashed being

arbitrary and violative of Article 14 of the Constitution.

The petitioner contended that his entitlement for assigning

of seniority should be next to Shri Krishan Kant Agarwal as

the other respondents being respondent Nos.3 to 8 were not

members of the cadre on the date of joining the service by

the petitioner i.e. on 2.5.83 while under the Notifications

Nos.606 and 607 dated 13.12.1990 confirmation of the

petitioner with effect from 2.5.85 and fixation of his

seniority next to Shri RD Aneja and Ors. cannot but be

ascribed to be illegal and void being contrary to the Punjab

Superior Judicial Service Rules (as applicable to Haryana on

2.5.83) and in fact runs contrary to the directions issued

by this Court in the Interlocutory Application No.1A in CA

No.811/88. The petitioner contended that the petitioner is

entitled to be confirmed with effect from 2.5.83 and have

his seniority fixed next to Shri KK Agarwal and the

seniority has to be assigned on the date of promotion/date

of joining service since the appointment of the petitioner

was on a vacant post on 2.5.83 and in the cadre having a

total strength of 27 candidates and having regard to the

ratio between the direct recruits and promotees, the former

were entitled to 9 posts whereas promotees were entitled to

18 posts and since respondent Nos. 3 to 8 do not come

within those 18 promotee officers and Shri KK Agarwal being

placed at Item No.18 in the list of promotee officers there

exists no manner of doubt as to the placement of the

petitioner before respondent Nos. 3 to 8 as promotee

officers. Mr. Mahabir Singh on the other hand contended

that at the time of appointment of the petitioner along with

two others in the Haryana Superior Judicial Service there

were 27 permanent posts in the cadre. According to Rule

8(2) of the Punjab Superior Judicial Service Rules, 1963 (as

applicable to the State of Haryana) in force on the relevant

date, the number of posts to be manned by the direct

recruits were nine. There were only 6 direct recruits in

the service they being (1) Sh. N.S. Rao, (2) Sh. SK Jain,

(3) Sh. R.K. Nehru (4) Shri Surinder Sarup (5) Sh. B.L.

Gulati and (6) Sh. V.M. Jain. At the time of appointment

of the petitioner along with two others in the Haryana

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Superior Judicial Service, only 24 officers (18 promotees

and 6 direct recruits) were working against the permanent 27

cadre posts meaning thereby that 3 permanent posts were

lying vacant. It may also be stated that prior to the

amendment made in Rules 2(2) and 12 of the Punjab Superior

Judicial Service Rules, 1963 (as applicable to the State of

Haryana) with effect from 19.3.1984 only permanent posts

were treated as cadre posts and seniority of members of

Haryana Superior Judicial Service was to be determined with

reference to the respective dates of confirmation.

Incidentally, factors relating to confirmation in service of

the officers of the Haryana Superior Judicial Service stand

settled by the decision of this Court in B.S. Yadav and

Ors. v. State of Haryana and Ors. (AIR 1981 SC 561) and

the directions for confirmation in service of the officers

as contained therein are summarised as below: (i) A member

of the service who had been appointed thereto by promotion

would if he was otherwise fit for confirmation, was to be

confirmed with effect from the date on which vacan cy became

available in the quota of promotees: (ii) a direct recruit

could not be confirmed against a post available in the quota

of direct recruits from a date earlier to the date on which

he had satisfactorily completed his period of probation of

two years. Incidentally, according to the instructions

contained in Haryana Government letter No.6817-2GSI-76/28957

dated 29.10.1976 the policy of the State Government has been

that the temporary posts which have been in existence in the

permanent departments for five years or more and the work of

which is of a continuous nature, would be made permanent by

the Administration Department after obtaining formal

concurrence of the Finance Department. On the wake of the

observations and the directions of the Constitution Bench in

Yadavs case (supra) Sh. IC Jain, the petitioner having

joined Haryana Superior Judicial Service on 2.5.1983, could

not be confirmed earlier to 2.5.1985 i.e. on completion of

two years period of probation. It may also be stated that

the Haryana Government vide their letter dated 24.12.1981

converted one post of District & Sessions Judge with effect

from 24.12.1981 into cadre (permanent) post thereby revising

the cadre strength from 18 to 19 of permanent posts.

Against this post, Sh. R.K. Gupta (since retired) was

confirmed. Similarly the Haryana Government vide their

letter dated 1.6.1982 converted 8 temporary posts into

permanent raising the cadre posts in the service from 19 to

27. Out of these 8 permanent posts, 3 posts were kept

vacant for direct recruits to complete their quota and

against 5 remaining posts S/Sh. O.P. Gupta (since

retired), RC Jain (since expired), I.P. Vasishth, N.K.

Jain and O.P. Gupta-II were confirmed with effect from

1.6.1982 as the records depict. In the meantime Sh. B.S.

Yadav, Sh. O.P.Gupta and Sh. K.L. Wason retired from

Haryana Superior Judicial Service with effect from

31.7.1982, 31.12.1982 and 31.5.1983 respectively and against

these posts S/Sh. Krishan Kant, M.K. Bansal and A.S. Garg

were confirmed. The Haryana Government vide their letter

dated 10.11.1988 converted 1 temporary post of Joint Legal

Remembrancer into permanent one with effect from 1.6.1983

and Sh. M.S. Nagra, was confirmed against this post. The

Haryana Government vide their letter dated 14.11.1983

converted 3 temporary posts into permanent raising the cadre

posts in the service from 28 to 31. Out of these 3

permanent posts, 1 post was kept vacant for direct recruits

to complete their quota and against 2 remaining posts S/Shri

S.B. Ahuja and Gorakh Nath were confirmed with effect from

14.11.1983. One permanent post in the cadre of promotee

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officers became available on the untimely death of Sh. V.K.

Jain (I) on 22.11.1983 and against this permanent post Shr.

R.D. Aneja was confirmed with effect from 22.11.1983. The

petitioner Shri I.C. Jain was confirmed on 2.5.1985 i.e.

on completion of two years period of probation against one

of the permanent posts lying in the quota of direct recruits

with effect from 14.11.1983 in accordance with the

guidelines of this Court, referred to above. Thus, the

petitioner had been given confirmation on the due date.

Incidentally be it noticed that the petitioner on 7th

July, 1990 moved this Court as and by way of an

Interlocutory Application in a disposed of matter being

Civil Appeal No.811 of 1988 decided on 26.5.1988 for an

order to confirm the petitioner at least with effect from

2.5.1985 and to fix the seniority accordingly. The other

prayers are not being taken note of by reason of the fact

that the same are not relevant for the present purpose. In

that Interlocutory Application, however and for the prayer

as noted above, this Court observed having regard to the

earlier decision as below:

In view of the above observation there was no adverse

entry against the petitioner for the year 1984-85. The

petitioner was in normal course entitled to confirmation

with effect from 2.5.1985 as no adverse material was there

against the petitioners work or conduct. But the High

Court has confirmed the petitioner with effect from 2.5.1986

on the premise that the probationary period was extended.

No order of the High Court extending probation has been

placed before us. Since the initial period of two years

probationary period had been completed the petitioner is

entitled to be confirmed with effect from 2.5.1985. The

High Court was not right in confirming the petitioner w.e.f.

2.5.1986. We accordingly, direct the High Court to consider

the appellants case for his confirmation w.e.f. 2.5.1985

within two months and if necessary it may hear the officers

(on administration side) who may be affected by such

decision. The application is accordingly disposed of.

The confirmation thus stands effective from 2nd May,

1985 and not 2nd May, 1986 as was offered. It is in terms@@

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of this order that a Notification dated 13th December, 1990

was published recording the placement of the officers and as

per the date of the confirmation being 2.5.1985 as directed

by this Court, the Petitioner was placed at item No.27, i.e.

immediately after Shri Gorakhnath and Shri Aneja but before

Shri M.C. Agrawal. S/Shri Gorakhnath and Aneja having been

confirmed on 14.11.1983 and 27.11.1983 respectively, cannot,

but be treated as senior. This Court has already dealt with

the issue and it is on the basis of the directions contained

therein that the gradation list has been prepared and we see

no reason to interfere with the same. The contention of

placement immediately after Sh. Krishan Kant at No.19 and

before Shri M.K. Bansal or Sh. AS Garg in our view does

not and cannot arise in the contextual facts having regard

to the decision of this Court as noticed above. It is not

the date of joining which ought to be taken note of but date

of confirmation and in any event since the issue has been

dealt with by this Court once before, question of reopening

of the same would not arise. It is on this score, however,

that Mr. Mahabir Singh contended that the same is barred by

the doctrine of res-judicata: whereas it can not be said to

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be strictly within the ambit of the doctrine but no further

relief can be granted to the petitioner by reason of the

finding of this Court in the absence of which, the decision

of this court in Chandra Kishore Singhs case (L. Chandra

Kishore Singh v. State of Manipur: 1999 (8) SCC 287) could

have had some application, wherein this Court in paragraphs

14 and 15 of the Report (page 303), observed as below:-

14. Seniority itself based upon length of service is

an acquired right of an employee which entitles him to be

considered for further promotion. It is generally regulated

by service rules. Such rules normally provide for

determined seniority with reference to the date of

appointment to the class, category and grade to which the

appointment is made. It is determined only on the basis of

the length of service. Such length of service may be on the

basis of the difference of continuous officiation or on the

basis of the difference of continuous officiation or on the

basis of the difference of substantive appointment in the

cadre or grade or service which may be reckoned from the

date of confirmation on the basis of regularisation.

15. It is now well settled that even in cases of

probation or officiating appointments which are followed by

a confirmation unless a contrary rule is shown, the service

rendered as officiating appointment or on probation cannot

be ignored for reckoning the length of continuous

officiating service for determining the place in the

seniority list. Where the first appointment is made by not

following the prescribed procedure and such appointee is

approved later on, the approval would mean his confirmation

by the authority and shall relate back to the date on which

his appointment was made and the entire service will have to

be computed in reckoning the seniority according to the

length of continuous officiation. In this regard we fortify

our view by the judgment of the Court in G.P. Doval v.

Chief Secretary, Government of U.P. [1984 (4) SCC329]

The probationary period in the matter under

consideration however cannot be considered by reason of the

settlement of the issue as above and also the factum of a

contra service rule Incidentally be it noted that the

original two year probationary period was extended by the

State Government for one year more, by reason wherefor, this

Court on a petition under Article 32 by the Petitioner

redressed the grievance by recording that substantive

placement of the Petitioner ought to be from 2.5.1985 and by

reason of the finding and observation of this Court as

regards substantive appointment neither any continuous

officiation nor any probationary period can be considered to

ascribe seniority to the petitioner herein. The direction

to the High Court by this Court to consider the appellants

case for confirmation with effect from 2.5.1985 answers all

the queries raised in the matter, as such we need not even

delve into the validity of the rules as raised by the

petitioner herein and thus would leave the questions open.

Significantly, petitioners rank and file has been

determined by this Court at his own instance and having

gained the desired objective, we should have thought that

the litigatious spirit would die down or be at its lowest

ebb at least but unfortunately and we say so since we feel

it expedient to record that the spirit continued unabated

and undaunted and resultantly the instant proceeding, which

is, to put it very mildly, a total abuse of the process of

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court. The petitioner herein, has been able to persuade

this Court in the earlier matter to redress his grievances

and even after obtaining the fullest benefit, the demand

still remains to be insatiable, which in our view runs

counter to all known principles of judicial ethics. Before

we part with the judgment and record our conclusion in the

matter we would wish to highlight one aspect of the matter

which needs to be considered with care and caution so far as

the judicial officers are concerned. Judiciary is one of

the three organs of the State and owes constitutional

responsibility. Responsiveness to the needs of a litigant

to have the matter disposed of expeditiously cannot be

decried in any way and in any event is the need of the day.

The petitioner herein has been in the judicial service since

1983 (if that date had to be taken note of) and a long

period of seventeen years has been spent more in the law

courts in ventilating the personal grievance rather than

redressing the grievances of the litigant public. All of us

owe a duty to the public at large and one need not take the

extreme recourse unless placed against a wall. There might

be some grievances here and there or some dissatisfaction

about service conditions but that will not otherwise

authorise a judicial officer to indulge in fanciful

litigations. With these observations we do feel it inclined

to record our opinion in the matter to the effect that the

writ petition has no merit and as such the same stands

dismissed with costs assessed at Rs. 2000/- to be paid to

the Legal Aid Committee of this Court.