High Court at Chandigarh v. State of Punjab

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

43. Rota and quota in service jurisprudence is well known concept, which finds reflected in large number of service rules of different services. Quota between promotees and directs were throughout present in 1963 Rules, which has been further amplified in 2007 Rules. This Court in All India Judges case (supra) has highlighted the importance and the usefulness of roster system. In Para 29, it was held: “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 is, as per the rules of the Central Government, a 40­point 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 40­point roster has been considered and approved by this Court in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745.”

44. The Rules, 2007 has been amended by direction of this Court in in All India Judges case (supra). Now, coming back to the Rules, 2007, there are two rules, which need to be interpreted to find out real purpose and intent of 2007 Rules. Rule 7 as noted above provides for method of recruitment, sub­rule(3) provides for appointment to the service shall be made 50 per cent by promotion on the basis of merit­cum­seniority, 25 per cent by promotion on the basis of merit through departmental competitive examination of Civil Judges (Senior Division) and 25 percent of posts shall be filled by direct recruitment. Sub­clause (4), which is relevant provides “these posts shall be filled in accordance with the Roster attached as Appendix­B”. Part of Appendix­B, which is relevant for the present case is as follows (only part is quoted):­ “APPENDIX ‘B’ [See sub­rule(4) of rule 7] ROSTER ROSTER INDICATING THE MODE OF RECRUITMENT Serial No. Source Rule

1. Officer Promoted on the basis of seniority­cum­suitability 7(3)(a)

2. Officer promoted on the basis of 7(3)(a)

3. Direct Recruit from the Bar 7(3)(c)

4. Officer promoted through limited competitive examination 7(3)(b)

5. Officer promoted on the basis of 7(3)(a) Xxxxxxxxxxxxxxx

89. Officer promoted on the basis of seniority­cum­suitability. 7(3)(a)

45. Sub­rule (4) uses the phrase “the posts shall be filled”. The word “filled” means appointment on the post. The submission of the learned counsel for the promotees is that sub­rule(4) read with Appendix­B at best can be read that roster is to be followed in recruitment only and not for determination of seniority. When an order for filling up of a post is provided in Appendix­B, the purpose and object is that officers of different streams should hold the posts in the sequence, which is provided in Appendix­B. The recruitment to the different streams consists of different and separate processes, few processes may take lesser time like effecting promotion under Rule 7(3)(a) whereas few processes like direct recruitment under 7(3)(c) takes greater time. For direct recruits, which is an All India Competitive Written Test, large number of candidates participate and evaluation of answer sheets and holding viva­voce takes sufficient time. The object as incapsulated by this Court in All India Judges case (supra) in carrying recruitment by roster was with the object of eliminating disputes pertaining to determination of seniority. The Rule 7(4) and Appendix­B has to be read in a manner so as to advance the object of the Rules. When this court directed for adopting roster system for determining seniority, Rules, 2007 cannot be interpreted in a manner which may violate the direction of this Court. Article 141 of the Constitution provides that law declared by the Supreme Court shall be binding on all courts and authorities. In this reference, it is useful to refer to a Three Judge Bench judgment of this Court in O.P. Singla and Another Vs. Union of India and Others, (1984) 4 SCC 450, this Court had occasion to consider the issue of seniority and promotion in context of temporary promotee, direct recruits quota rules in respect of Delhi Higher Judicial Service Rules, 1970. This Court in Para 17 held that when a Rule or Section is part of integral scheme, it should not be considered or construed in isolation. In paragraph 17, following has been held:­ “17……………However, it is well recognised that, when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to deter­ mine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter­related provision becoming otiose or devoid of meaning. That makes it necessary to call attention to the very next rule, namely, Rule

8. It provides by clause 2 that: “The seniority of direct recruits vis­a­vis promotees shall be determined in the order of rotation of vacancies between the direct re­ cruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available va­ cancy will be filled by a direct recruit and the next two vacancies by promotees and so on.” (emphasis supplied) This provision leaves no doubt that the overall scheme of the rules and the true intendment of the proviso to Rule 7 is that one­third of the substan­ tive posts in the Service must be reserved for direct recruits. Otherwise, there would neither be any occa­ sion nor any justification for rotating vacancies be­ tween direct recruits and promotees. Rule 8(2), which deals with fixation of seniority amongst the members of the Service, provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the proviso prescribes “quotas” and reserves va­ cancies for both categories. The language of the pro­ viso to Rule 7 is certainly not felicitous and is un­ conventional if its intention was to prescribe a quota for direct recruits. But the proviso, as I have stated earlier, must be read along with Rule 8(2) since the two provisions are interrelated. Their com­ bined reading yields but one result, that the proviso prescribes a quota of one­third for direct recruits.”

46. One submission, which was pressed by learned counsel for the promotees as well as by learned counsel appearing for the out of turn promotees was that in 2007 itself, Judicial Service Rules have been framed for Haryana namely, Haryana Superior Judicial Service Rules, 2007, in which Rules, it was expressly provided by Rule 10 of the Rules that inter se seniority of the persons recruited to the service under clause (a), (b) and (c) of Rule 6 shall take his position in the seniority list as shown in roster annexed. Rule 10 of the Haryana Rules is as follows:­ “10. Seniority. (i)(a) The inter se seniority of the members of the Haryana Civil Service (Judicial Branch) promoted in the same batch under rule 6(a) shall be the same as in the Haryana Civil Service (Judicial Branch). (b) Inter se seniority of the member of the Haryana Superior Judicial Service promoted under rule 6(b) shall be in the order of merit determined in the selection process.

(c) Inter se seniority of the direct recruits to the Service under rule 6(c) shall be on the basis of merit determined by the Selection Committee of the High Court at the time of the recruitment.

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

(ii) A person recruited to the Service under clauses

(a), (b) and (c) of rule 6 shall take his position in the seniority list as shown in the roster annexed irrespective of the date on which he actually joins the Service.

(iii) A promoted officer, who is promoted on an ad hoc basis in the vacancy/post against a roster point earmarked for an officer belonging to categories specified in clauses (b) and (c) of rule 6, shall not have any right to the post. He shall not be entitled to add period of his ad hoc service to regular service for the purpose of seniority: Provided that the existing rules shall continue to govern the matters of seniority of the existing members of the Service.”

47. It has been pointed out that both Judicial Service Rules, 2007 of Haryana and Punjab Superior Judicial Rules, 2007 were sent by the High Court in the similar fashion, where Punjab Rules have been published by the Government by changing the proposed rules pertaining to seniority without consultation of the High Court. The High Court in its impugned judgment in Para 181 after noticing the Haryana Rules, 6, 7, 8 and 9 has made following observations:­ “Similar rules were recommended by the High Court to the State of Punjab for notification but changed at its own level without consultation with High Court.”

48. In the present case, we need not enter into the issue as to what was proposed and what changes were made by Government while notifying the rules. The above observation in the impugned judgment clearly indicate that Punjab & Haryana High Court has contemplated to implement the direction of this Court in All India Judges case (supra) and it was clear to the High Court that the appointment of all the three streams as per roster is to also determine the seniority as per the roster. In any view of the matter, there is nothing in the Rules – Punjab Superior Judicial Service Rules, 2007, which may indicate that there is any provision contrary to determination of seniority by roster. Mere fact that said rules are not explicit or makes it expressly clear that seniority is to be determined on the basis of roster is not conclusive. The purpose and object of the Rule 7 of Rules, 2007 read with Appendix­B is clear that the roster is to be followed for determination of the seniority. The High Court in the impugned judgment has considered the issue as to whether roster is applicable in determination of seniority or not. Issue No. 7 as was noticed above, which was framed by the Committee and was also adjudicated by the High Court was “Whether roster (Appendix­B) can be read into and applied to the rule of seniority”. After elaborate discussions, High Court in Para 180 concluded:­ “Hence, this Court is of the opinion that for determination of inter se seniority of officers recruited from three different sources, roster as directed by Hon’ble the Supreme Court shall be applicable. The same forms part of the Rules as Appendix ‘B’ but mentioning roster for recruitment, however, shall be applicable even for determination of seniority.”

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

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 refer to a judgment of this Court in Union of India and Others Vs. N.R. Parmar and Others, (2012) 13 SCC 340, the issue in the said case was also an issue of determination of seniority between direct recruits vis­à­vis 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 22­12­1959 issued by the Government of India, Min­ istry of Home Affairs (hereinafter referred to as “the OM dated 22­12­1959”). Para 6 of the annexure, referred to above, laid down the manner of determin­ ing 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 22­12­1959, 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 di­ rect 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 22­12­1959 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.”

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 inter­se 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 deter­ mining seniority of direct recruits. It would suffice if action has been initiated for direct recruit va­ cancies, within the recruitment year in which the va­ cancies had become available. This is so, because de­ lay in administrative action, it was felt, could not deprive an individual of his due seniority. As such, initiation of action for recruitment within the re­ cruitment year would be sufficient to assign senior­ ity to the appointees concerned in terms of the “ro­ tation 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 initi­ ated during the recruitment year (in which the vacan­ cies 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 se­ lected 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 (ex­ pressed in the ON dated 2­2­2000) 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 not affect their inter se seniority, which is to be decided on the basis of roster. The position of Fast Track Court Judges including in the Select list of all three streams in 2008 recruitment.

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

55. The officers, under out of turn promotions quota, whose names were mentioned at Serial No.17 to 24 under Rule 7(3)(b) were arranged according to their merit as disclosed in limited Departmental Competitive Examination. Two Fast Track Court Judges who were included against available posts in direct recruit quota were shown above the direct recruits. In so far inter­se­seniority amongst the promotee officers promoted under Rule 7(3)(a) is concerned, there is no issue. All have been arranged according to their seniority as required by Rule 12(1). After the circulation of tentative seniority list dated 25.09.2014, objections were filed by direct recruits questioning the placement of Parminder Pal Singh and Sukhdev Singh at Serial No.15 and 16 under the direct quota above other direct recruits.

56. With regard to Parminder Pal Singh and Sukhdev Singh, it was stated by direct recruits that their appointment under Rule 7(3)(c) was not permissible since they were not advocates at the time of selection of Direct recruits and they were not selected on the basis of the written test and viva­voice under which all direct recruit candidates were subjected. It was submitted that absorption of these officers is an ex gratia absorption in service and as such they cannot be treated senior to the direct recruits.

57. One of the out of turn promotee namely, Arunvir Vashista had staked his claim before the committee. It was submitted that he being seniormost officer among the out of turn selected candidates and although he was placed at serial No.6 as per his merit but he being the only officer who already stood promoted as presiding officer of the Fast Track Court on ad­hoc basis, he was entitled to be absorbed and remained promoted to the Superior Judicial Service. Thus, his appointment on regular basis will relate back to his appointment in Fast Track Court in the service.

58. With regard to absorption of Fast Track Court Judges, this Court had elaborately considered the issue in Brij Mohan Lal versus Union of India and others, (2012) 6 SCC 502. Fast Track Courts Judges who were working as direct recruits from the Bar as well as those who were ad­hoc promotees as Fast Track Court Judges had staked their claim for being absorbed on regular cadre. After considering the respective submission, this court in paragraph 207 has issued various directions. Paragraph 207.[9] relates to Fast Track Court Judges who were appointed by way of direct appointment, which is to the following effect: ­ “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 regularization shall take a written examination to be conducted by the High Courts of the 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 senior most 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 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.”

59. With regard to candidates from any state who were promoted as Fast Track Court Judges from the post of Civil Judge, Senior division, following direction were issued in paragraph 207.13: “207.13. The candidates from any State, who were 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: (a) Such promotion, when effected against the 25% quota for out­of­turn promotion on merit, in accordance with the judgment of this Court in All India Judges’ Assn. (3)12, by taking and being selected through the requisite examination, as contemplated for out­of­turn promotion. (b) If the appointee has the requisite seniority and is entitled to promotion against 25% quota for promotion by seniority­cum­merit, 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.”

60. With regard to the candidates Parminder Pal Singh and Sukhdev Singh, Recruitment and Appointment committee has noticed that they were subjected to a written test and viva­voice for finding their suitability to be absorbed in the regular Cadre. In paragraph 9 of the report dated 11.08.2015 of Recruitment/Promotion Committee (Superior Judicial Service) it has noticed that presiding officers of Fast Track Courts for being considered in the regular Cadre, they were subjected to undergo written test examination and viva­voice. Paragraph 9 of the report of the committee is as follows: ­

”

61. The above report was subsequently approved by full court on the basis of which tentative seniority list was issued. The two officers Parminder Pal Singh and Sukhdev Singh were appointed to Punjab Superior Judicial Service by Order dated 24.06.2008. In the tentative seniority list, they were placed at serial no.15 and 16 i.e. above the direct recruits. It is relevant to note that the tentative seniority list was prepared by the committee on the basis of continuous length of service. It was probably due to that reason that serial no. 15 and 16, direct recruits were shown above the out of turn promotees and direct recruits. The above two officers who were taken on the regular Cadre of Additional District Judge, after written test and viva­voce test which is almost the same procedure which has been subsequently laid down by this Court in Brij Mohan Lal case dated 19.04.2012(Supra). The above two officers having been included in direct recruitment quota, they have to be clubbed along with the direct recruits. We have already held that for determining the seniority, the roster is applicable. The objection of direct recruits that they cannot be included in the quota meant for direct recruits since they have not undergone the same written test and viva­voce, which has been undertaken by the direct recruits, thus, cannot be accepted.

62. As per the judgment of this court in Brij Mohan Lal case (Supra), officers from Bar, advocates working as Fast Track Court Judges can be taken under the regular Cadre after they have cleared the written test and viva­voice. The direction of this Court in paragraph 207.9(g) which says that “if for any reason, vacancies are not available in the regular Cadre, we hereby direct the State Government to create such additional vacancies as may be necessary, keeping in view the number of selected candidates”, indicates that Fast Track Court Judges had to be taken into regular cadre if vacancies are there. In the present case, there have been adjustments against two vacancies which were available, hence, they having been taken in the regular Cadre as a direct recruit, has to be accepted. Further, present is not a case where their selection in the regular cadre as Additional District Judge is under challenge. Only issue which is raised is regarding their placement in the seniority list.

63. One more aspect in this context needs to be noted. Rule 12(3) provides that “the inter­se­seniority of the direct appointee shall be on the basis of merit as is determined by the High Court.” The inter­se­seniority as contemplated by Rule 12(3) obviously means inter­se­seniority reflected in the same examination. The two officers from the Fast Track Court having not taken the same examination, Rule 12(3) is not technically applicable while judging inter­se­seniority of these two officers and other direct recruits. However, in view of the directions of this Court in Brij Mohan Lal’s case (Supra) taking these two Fast Track Court officers from Bar in the regular cadre cannot be held faulty. They having been working as Additional District Judges in the Fast Track Court and they having been appointed in the regular cadre although in the same recruitment year, their placement above other direct recruits is justified. However, these two officers will be grouped along with direct recruits and shall occupy position number 1 and 2 in the direct recruits and others will follow thereafter.

64. Now we come to the claim of Shri Arunvir Vashista Fast Track Court Judge who was selected by out of turn promotion. Shri Arunvir Vashista was appointed as Fast Track Court Judge consequent to promotion of fifteen officers under Rule 7(3) (a). The appointment and selection committee along with proposing fifteen promotions under Rule 7(3)(a) has also proposed seven officers to man the Fast Track Courts in which Shri Arunvir Vashista was included. Shri Arunvir Vashista thus occupied the Fast Track Court judge post in the year 2008 itself and participated in the limited departmental competitive examination and secured sixth position on merit. Among the out of turn promotees Shri Arunvir Vashista has been placed at sixth place.

65. Shri Arunvir Vashista in his brief written synopsis does not dispute that seniority is to be fixed by the roster points and irrespective of the fact, as to when a person is recruited. He rightly submits that rules are subsidiary and subservient to the law. He has also placed reliance on order of this Court dated 28.04.2016 passed in W.P.(C) No.1022/1989, All India Judges Association and others versus Union of India and others. The Order of this court dated 28.04.2016, is to the following effect: ­ “The second prayer of the petitioner is for direction to the respondents to follow “post based roster” in appointments to the cadre of District Judges with effect from 31.03.2003. The said prayer is again based on the statement of law as propounded in paragraph 49 of the above referred to decision rendered in All Indian Judges’ Association and Others (Supra). While stating as to in what manner the 40­point roster is to be determined, this Court directed that appropriate Rules and methods should be adopted by the High Courts and approved by the States wherever necessary by 31.03.2003. When this application was moved, initially on behalf of the High Court, learned Standing Counsel took notice and submitted that in the High Court a Committee has been constituted which is deliberating on this issue and, therefore, he will be able to report to this Court in a week’s time. It is now pointed out by Mr.Patil, learned senior counsel for the applicant(s) that the 34 point roster has been drawn by the High Court based on the cadre strength providing for different points applicable to the promotes by way of limited competitive examination as well as for direct recruits in the entry level District/Additional District and Sessions Judge. It is also brought to our notice that appropriate Rules have also been drawn by the High Court which has been notified by the State Government on 16th March, 2004.””

66. The Order of this Court dated 28.04.2006 re­enforces the directions given by this Court in All India Judges’ Case dated 21.03.2002.

67. It was contended on behalf of Shri Arunvir Vashista before the Recruitment and Promotion Committee that although in the merit list of out of turn promotion, he is at serial No. 6 but he being the only officer who was working officer as presiding officer of the Fast Track Court on ad­hoc basis, he is “entitled to be absorbed and remained promoted to the post.” There is no denial that Shri Arunvir Vashista has been regularly promoted under Rule 7(3)(b) and continues his substantive promotion. When the roster is applicable, the seniority has to be fixed by the roster point. As per Rule 12(2) the inter­se­seniority of the out of turn promoted officers shall be “in the order of merit as is determined by the High Court”. Thus, seniority position of Shri Arunvir Vashista among the out of turn promotees has to be in accordance with the merit. His position among the out of turn promotees has thus rightly been shown as serial no.6 with which no infirmity can be found. We thus conclude that all Fast Track Court judges who were taken into the regular cadre in different streams have been rightly placed in the seniority list amongst their stream to which no exception can be taken.

OUR CONCLUSIONS:

68. The tentative seniority list was prepared on the basis of continuous length of service, hence, all promotee officers who had joined on 27th /28th February, 2008 have been shown at serial no.1 to 14. Parminder Pal Singh and Sukhdev Singh, Fast Track Court Judges from Bar who were appointed in regular cadre w.e.f. 01.08.2008 have been shown at serial no.15 and

16. From Serial No.17 to 24 were out of turn promotees in block and thereafter Serial No.25 to 35, direct recruits were placed in block. The final tentative seniority list has been approved by the committee after considering the objections. It is reflected in its report dated 11.08.2015. Full Court approved the report dated 11.08.2015, hence, final seniority list was issued on 24.12.2015. Final seniority list was same as tentative seniority list. The Division Bench of the High Court deciding the writ petitions challenging the seniority list has held: i) roster shall be applicable in determination of ii) fifteen promotees promoted under Rule 7(3)(a) were in excess of their quota. iii) Promotion of fifteen promotees under Rule 7(3) has to be treated as ad­hoc promotion and they shall be placed at the bottom of seniority.

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

70. In view of the foregoing discussion, we come to the following conclusions: ­

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

2) The promotion of fifteen officers cannot be said to be ad­hoc nor they can be directed to be put at the bottom of the seniority list.

3) The High Court even though accepted the principle that roster is applicable in the seniority but in the operative portion of the judgment in paragraph 208 did not issue any direction to re­cast the seniority as per the roster given in the Appendix­B which is an apparent error committed by the High Court.

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

5) Rule 7(4) read with Appendix­B has to be read in the light of direction of this Court in All India’s case and harmonious construction of the rule clearly indicates that roster which has been expressly made applicable for filling the post of all the three streams shall be applicable while determining the seniority. Reliefs: ­

71. In view of foregoing discussion, the seniority list dated 24.12.2015 is to be set aside. After setting aside the seniority list, two courses are open. Firstly, to remit this matter to the High Court again to re­cast the seniority list as per our direction and secondly, to finalize seniority list in this judgment itself. We choose to adopt the second course for two reasons: a) Already period of three years has elapsed when the tentative seniority list was published. Finalisation of seniority as early as possible is essential and necessary for administration of justice. b) There is no dispute regarding inter­se­seniority of the promotees under Rule 7(3)(a) and issue pertaining to inter­se­seniority of out of turn promotees and direct recruits have already been finalized by us. Only exercise which is to be undertaken is to place officers of three streams in accordance with the roster as indicated in Appendix­B. After placing the officers of three streams, the seniority position as per roster comes as follows: S.NO.

NAME RULE

1. Shri Keshav Chander Gupta, Addl.D&SJ (Since retired prematurely) 7(3)(a)

2. Shri Narinder Kumar Gaur, Addl.D&SJ (since retired prematurely w.e.f 07.06.2011) 7(3)(a)

3. Shri Parminder Pal Singh, Addl.D&SJ 7(3)(c)

4. Shri Virinder Aggarwal, Addl.D&SJ 7(3)(b)

5. Shri Kishore Kumar, Addl.D&SJ 7(3)(a)

6. Shri Paramjit Singh, Addl.D&SJ 7(3)(a)

7. Shri Sukhdev Singh, Addl.D&SJ 7(3)(c)

8. Ms. Mandeep Pannu, Addl.D&SJ 7(3)(b)

9. Shri Pritam Singh Dhanona, Addl.D&SJ, (Ex.S.M.) 7(3)(a)

10. Shri Harpal Singh, Addl.D&SJ 7(3)(a)

11. Shri Munish Singhal, Addl.D&SJ 7(3)(c)

12. Shri Ashok Paul Batra, Addl.D&SJ 7(3)(b)

13. Shri Amrinder Singh Grewal, Addl.D&SJ 7(3)(a)

14. Ms. Harpreet Kaur Randhawa, Addl.D&SJ 7(3)(a)

15. Ms. Rupinderjit Chahal, Addl.D&SJ 7(3)(c)

16. Shri Rajinder Agarwal, Addl.D&SJ 7(3)(b)

17. Ms. Ramesh Kumari, Addl.D&SJ 7(3)(a)

18. Shri Jagjit Singh Chohan, Addl.D&SJ (since expired) 7(3)(a)

19. Shri Kamaljit lamba, Addl.D&SJ 7(3)(c)

20. Shri Tarsem Mangla, Addl.D&SJ 7(3)(b)

21. Shri Nirmal Singh, Addl.D&SJ (Since retired prematurely) 7(3)(a)

22. Ms. Sunita Kumari, Addl.D&SJ 7(3)(a)

23. Shri Nirbhow Singh Gill, 7(3)(c) Addl.D&SJ

24. Shri Arunvir Vashista, Addl.D&SJ 7(3)(b)

25. Ms. Asha Condal, Addl.D&SJ 7(3)(a)

26. Shri Kuldeep Kumar Kareer, Addl.D&SJ 7(3)(a)

27. Shri Jatinder Pal Singh Khumi, Addl.D&SJ 7(3)(c)

28. Shri Jasjit Singh Bhinder, Addl.D&SJ 7(3)(b)

29. Dr. Hemant Gopal, Addl.D&SJ 7(3)(c)

30. Shri Surinder Singh Sahni, Addl.D&SJ 7(3)(b)

31. Shri Kanwaljit Singh Bajwa, Addl.D&SJ 7(3)(c)

32. Shri Sumeet Malhotra, Addl.D&SJ 7(3)(c)

33. Shri Arun Gupta, Addl.D&SJ 7(3)(c)

34. Ms. Jatinder Kaur­II, Addl.D&SJ 7(3)(c)

35. Shri Mohd. Gulzar, Addl.D&SJ 7(3)(c)

72. It is further relevant to note that in view of judgment of this Court in (2010) 15 SCC 17o, All India Judges Association, quota of 25 percent for out of turn promotees has been reduced as 10 percent w.e.f. 01.01.2011. The present seniority dispute being related to recruitment held in 2008, the reduction in quota may not be relevant in the present case.

73. In view of foregoing conclusions all appeals are allowed in following manner: ­

1) The Division Bench judgment of the High Court so far as it holds that roster is applicable in the determination of seniority of members of superior judicial service is upheld.

2) The judgment of the Division bench of the High Court holding that fifteen promotees under Rule 7(3)(a) were beyond the quota and shall take position at the bottom of the seniority list is set aside.

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

74. The parties shall bear their own cost ........................... J. ( A.K. SIKRI ) .......................... J. ( ASHOK BHUSHAN ) NEW DELHI, OCTOBER 03, 2018.