12. PRINCIPLES RELATING TO INTER-SE SENIORITY BETWEEN DIRECT RECRUITS AND PROMOTEES

IN THE CADRE OF DISTRICT JUDGES

12.1 In Service, the ranking of an Officer in the seniority list is determinative of his future career prospects. It is an index to attain one's reasonable aspirations and expectations. It should not, therefore, be kept fluctuating. The fluctuating ranking would seriously tell upon the nerves of the affected Officer. As far as possible, it must be kept certain and free from dispute.

12.2 But unfortunately, in most of the States, the inter-se ranking in the seniority list of direct recruits and promotees in the cadre of District Judges has always been the subject matter of controversy. It has been a vexed question for the High Courts and to the service personnel. It has, in fact, created bad blood with acrimonious debate between the two classes. It has affected even their performance in the administration of justice.

12.3 The Commission considers that in the interest of promoting efficiency in the administration and to bring about harmony amongst the Officers, it is necessary to identify the causes and suggest remedial measures. With this object in mind, the Commission invited the views and com ments from all concerned by specifically framing the following question in its Main Questionnaire:

"Question No.9: LITIGATION ON INTER-SE SENIORITY:

In some States / UTs, there is a lot of litigation between the direct recruits and the promotees on the question of inter-se seniority. Why such litigation has arisen? Please suggest the remedial measures to avoid such litigations."

12.4 The Commission has received a variety of comments and suggestions from the High Courts, State Governments, Judicial Officers' Associations and from some retired Judges. We may refer to them chronologically on State-wise basis with the prevailing Seniority Rule.

ANDHRA PRADESH :

12.5 The High Court informs that some times recruitment from the Bar is delayed for long period and the promotions are made from the judicial service on temporary basis, but continued for long periods. When direct recruitment takes place later, it creates problem in fixing inter-se seniority which leads to litigation between the two groups. Same view has been expressed by Andhra Pradesh Judicial Officers' Association.

12.6 The Relevant Seniority Rule 6 of the Andhra Pradesh Higher Judicial Service Special Rules, 1958 states:

"The seniority of a person appointed to category-II shall be determined with reference to the date from which he was continuously on duty in that Category."

NOTE : Category - I : District and Sessions Judges - Grade I

Category - II : District and Sessions Judges - Grade II

ASSAM & TRIPURA :

12.7 According to High Court, there are litigations on disputes regarding fixation of inter-se seniority between the two classes. But no details of such disputes have been furnished to the Commission.

12.8 The Relevant Seniority Rule 12 of the Assam Judicial Service Rules, 1967 as amended by the (Amendment) Rules, 1995 reads:

"12(1) The seniority, interse of the member of Grade I and II of the service shall be determined by the Governor in consultation with the High Court."

12.9 Similar Rule has been framed by Manipur, Meghalaya and Nagaland.

BIHAR :

12.10 The High Court states that the litigation takes place between direct recruits and promotees due to bulk appointments made from the Bar after a gap of several years. Such bulk recruitment from the Bar created imbalance in the cadre. The seniority is determined from the date of initial appointment. When a large number of appointments are made at one go from one source, such appointees become seniors as a big block marring future prospects of promotees.

12.11 Relevant Seniority Rule 16 of the Bihar Judicial Service Rules, 1951 reads:

x x x x x x x x x

"16(e) Seniority of direct recruits vis--vis promoted officers shall be determined with reference to the date from which they may have been allowed to officiate continuously in posts in the cadre of the service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility in or outside the cadre.

"Provided that when a direct recruit and a promoted officer are appointed on the same date, the promoted officer shall be senior to the direct recruit."

DELHI :

12.12 The High Court of Delhi states that there is litigation between direct recruits and the promotees pending in the Supreme Court and the matter is thus subjudice. By stating so, the High Court has conveniently avoided giving the causes of such disputes and suggesting remedial measures.

12.13 There are three Associations in Delhi Judicial Service:

 

I. DELHI HIGHER JUDICIAL SERVICE ASSOCIATION (REGD.) DELHI:

12.14 This Association appears to have been formed recently. It represents Direct Recruits to the Higher Judicial Service of Delhi.

12.15 On Question No.9, the Association states inter-alia; that the litigation between direct recruits and the promotees has occurred on account of not filling up the posts of direct recruitment in time, while the promotions are made immediately as and when the vacancy occurs. Promotions are also made on an ad hoc basis / temporary basis against the posts earmarked for direct recruitment. The persons who are promoted want to retain their positions to which they have no right. To legitimatize such claims, they indulge in litigation to deny the rights of direct recruits.

12.16 This Association suggests among others, the following remedial measures:

(a) the seniority of officers should be decided immediately without any further delay. It is said that in Delhi the inter-se seniority has not been decided for the last more than 20 years which itself is a cause of dispute.

(b) the recruitment to a post falling vacant should be made as expeditiously as possible and not later than three months.

(c) Accountability should be fixed on a person / authority who has failed to act promptly in the above regard.

II. DELHI HIGHER JUDICIAL SERVICE ASSOCIATION:

12.17 This Association represents promotee Officers.

12.18 To the aforesaid Question No.9, the Association traces the history of certain litigations between the direct recruits and the promotees starting from the writ petition of O.P. Singla's vs. Union of India which was decided by the Supreme Court in 1984 and follow-up action taken by the High Court.

12.19 According to them, problems however continue. Many of the Officers get promotion long after 22 years of service. Recently some Officers got early promotion due to expansion of the cadre of Delhi Higher Judicial Service and not because of any improvement in service conditions. The expansion of the cadre has resulted in induction of more direct recruits of younger age. As long as this system of rota and quota is continued, the rota quota rule can never be worked out satisfactorily. The seniority determined by rotation of quota becomes "meaningless concept" for promotees. The interest of both sections can be protected by applying rota quota rule at the stage of grant of selection grade and elevation to the High Court and not at the stage of induction.

III. DELHI JUDICIAL SERVICE ASSOCIATION (REGD.):

12.20 This Association purports to represent all cadres in the Judicial Service.

12.21 Their response to the Question No.9 is as follows:

The litigation between direct recruits and the promotees in most of the States is as a result of incorrect observance of the service rules by the High Courts as well as by violating the terms of Rules. The Rules too are most harsh, oppressive and unjust as they are based on concepts of administrative or executive class of service, which yield undesirable results in judicial service.

12.22 They suggest that the date of actual appointment to higher post should govern the seniority of judges and giving of seniority from an anterior date when the post was available is extraneous and irrelevant consideration and is in bad faith. The Service Rule which permits and perpetuates such practice should not be followed and be amended. The evil effect of the present Rule is that it makes service judges of long years of experience junior to those judges who are appointed much later and who are much younger in age as well as experience. In fact, such persons who join later on from the Bar, have started their practice and gained experience only by practising before those very judges who are now rendered juniors to them.

12.23 In the alternative, this Association suggests that there should be equal and equitable distribution of all service benefits like selection grades, deputation and elevation to High Courts between direct recruits and promoted judges in the ratio of 1: 2, which will take the rule of rotation to its logical end.

12.24 Their complaint is that even though the post becomes available in the quota, yet the promotions are not given till the recruitment from the Bar is made and this has created great hardship to the promoted judges.

12.25 The Relevant Seniority Rule 8 of the Delhi Higher Judicial Service Rules, 1970 provides:

8(1) xxx xxx xxx

(2) The seniority of direct recruits vis--vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on."

GOA :

12.26 The Judiciary of the State is under the control of the High Court of Bombay.

12.27 The Bombay High Court states that to avoid inter-se seniority disputes (or litigation) between the promotees and the direct recruits, the Commission should formulate clear rules regarding recruitment and promotion.

12.28 The Government of Goa is of the view that there should be a roster between the promotees and direct recruits and first place should go to promotees.

12.29 The Goa Judicial Officers' Association suggests that a roster should be replaced and the date of appointment should be the criteria for fixing the seniority, be it by promotion or by direct recruitment to avoid unnecessary litigation regarding seniority.

GUJARAT :

12.30 High Court has referred to two writ petitions of District Judges pending in the High Court claiming parity of scales with the City Civil Court Judges and another filed by superseded Assistant Judge. But both of them are not concerned with the inter-se seniority of direct recruits and promotees. The City Civil and Sessions Judges and the Gujarat Judicial Service Association however, state that there are petitions pending in the High Court between the direct recruits and the promotees on the question of inter-se seniority. Probably, it has escaped the attention of the High Court.

12.31 The Gujarat Judicial Service Association which represents all Judicial Officers of the State is of the opinion that litigation on inter-se seniority arises because of non-fixation and / or incorrect fixation of seniority by the High Court. According to them, the seniority should start from the date of appointment and not from the date of vacancy arising.

12.32 The State Government suggests for framing of specific rules for fixing inter-se seniority between the direct recruits and the promotees. The Government also favours the fixation of seniority with reference to the date of appointment.

12.33 The Inter-se seniority between the direct recruits and Service promotees in the cadre of District Judges is determined on the basis of the report dated 4-12-1998 submitted by the Committee of Hon'ble Judges, which has been accepted at the Full Court meeting of the High Court held on 21-4-1999 which provides as follows:

"The practice followed is that the promotees and direct recruits get their seniority only when they are posted against the substantive posts of 50% reserved for each category. The service rendered by promotees posted in direct recruitment vacancies, or in posts in excess of the promotees quota will not get seniority."

HARYANA :

12.34 Punjab & Haryana High Court admits that there are litigations between the direct recruits and the promotees even though seniority between the two classes has been fixed according to Rule 12 of the Punjab Superior Judicial Service Rules of 1963.

12.35 The Haryana Civil Judges' Association states that the cause of the dispute between the direct recruits and the promotees lies in the manner of giving the seniority for direct recruits over the promotees. They indicate that promotees should be made senior to the direct recruits.

12.36 The Haryana State Judges' Association is another Association representing the Additional District & Sessions Judges of Haryana. This Association is of the opinion that there is a transparent bias against the promotees in the matter of fixation of seniority.

12.37 The relevant extract of the Rule 12 of the Punjab Superior Judicial Service Rules 1963 provides:

" The seniority inter-se of the members of the service shall be determined by the length of continuous service on a post in the service irrespective of the date of confirmation:

Provided that in the case of two members appointed on the same date, their seniority shall be determined as follows:-

i) In the case of direct recruits, the member older in age shall be senior to the younger;

ii) A member recruited by direct appointment shall be senior to a member recruited otherwise;

iii) In the case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted."

HIMACHAL PRADESH :

12.38 The High Court and State Government say that there is not much litigation between the direct recruits and the promotees on the question of inter-se seniority.

12.39 Shri Ravinder Parkash, Senior Sub-Judge-cum-CJM, Kulu, Himachal Pradesh has set out some reasons for the inter-se seniority disputes. He says the Rules are faulty. The direct recruitment is not made at the appropriate time when the post falls vacant. The principles of rota and quota are causing great hardship. The direct recruits are some times appointed 3-4 years after the ad hoc promotions but they are given seniority over the promotees on the basis of rota quota rule. This practice leaves behind heart burn amongst the Judicial Officers who after rendering service of 15 to 20 hears are made junior to persons who are appointed before 3-4 years. The best method to avoid such litigation, he says, is that the seniority should be fixed only from the date the Officer joining duty.

12.40 The relevant Rule 12 of Himachal Pradesh Higher Judicial Service Rules, 1973 provides:

"The seniority, inter-se, of the substantive members of the service, whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation.

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 promoted officers, in accordance with the seniority in the Himachal Pradesh Judicial Service as it stood immediately before their confirmation;

(iii) in the case of promoted officers and direct recruits, the older in age shall be senior to the younger."

JAMMU & KASHMIR :

12.41 The High Court is of the view that much litigation as to inter-se seniority between the direct recruits and the promotees could be avoided if a specific and comprehensive rule is made.

12.42 J & K Judicial Service Association also shares this view.

12.43 The relevant extract of the Seniority Rule 17 of Jammu & Kashmir Higher Judicial Service Rules, 1983 reads:

"17(2) As between direct recruits and promotees, the seniority shall be determined with reference to the date of their appointment in the cadre; provided where the promotee and direct recruit are appointed on the same date, the promotee shall rank senior to the direct recruit."

KARNATAKA :

12.44 The High Court appears to be more frank in this regard. It is stated that litigation has arisen in view of delay in filling up vacancies arising out of the quota reserved for direct recruits. The High Court suggests that litigation between direct recruits and the promotees on the question of inter-se seniority can be avoided by fixing and counting the seniority from the date of entry into the cadre, i.e. the date of taking charge in the case of promotees and the date of joining duty in the case of direct recruits.

12.45 Karnataka State Judicial officers' Association states that the problem of inter-se seniority has arisen on account of recruiting District Judges who are relatively young. Recruitment is made some times in large numbers at a time thereby blocking the seniority of promotees. According to them, this problem may be remedied by restricting the number of appointments by direct recruitment.

12.46 The State Government identifies the reasons for such litigation. It is due to not adhering to the quota between the direct recruits and the promotees and the process of direct recruitment taking a long time and often taking years. Another reason given by the State Government is that normally promotions are made in excess of the quota and when the excess promotees are pushed down upon direct recruitment, it leads to litigation.

12.47 Justice D.M. Chandrasekhar, Former Chief Justice, High Court of Karnataka and Justice P.P. Bopanna (Rtd.) are for determining the inter-se seniority from the respective dates of appointments to the cadre, whether by promotion or by direct recruitment.

12.48 The relevant extract of the Karnataka Government Servants' (Seniority) Rules, 1957 states:

"Rule 2. Subject to the provisions hereafter contained, the seniority of a person in a particular cadre of service or class of post shall be determined as follows:

(a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post.

 

(b) The seniority inter-se of Officers who are confirmed shall be determined according to dates of confirmation, but where the date of confirmation of any two officers is the same, their relative seniority will be determined by their seniority inter-se while officiating in the same post and if not, by their seniority inter-se in the lower grade.

(c) Seniority inter-se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same, the seniority inter-se in the lower grade shall prevail.

xxx xxx xxx

3. Where officers are recruited to any service or a class of post by promotion and by direct recruitment, the officers directly recruited will take precedence over the promoted officers in case where the date of appointment is the same."

KERALA :

12.49 The High Court of Kerala has not given their comments on Question No.9. The State Government is no better. The State Government is not aware of any litigation regarding the inter-se seniority between the direct recruits and promotees.

12.50 There are two Associations: (1) Kerala Judicial Officers' Association (Registered) and (ii) Kerala Magistrates (Judicial) Association. The reason given by the former is not relevant for our purpose. The latter states that the seniority of direct recruits and of promotees should be determined with reference to the respective dates of appointments of each of such candidates.

12.51 The Rule regarding Seniority provides:

"6. Seniority (1) The seniority of a person appointed either to category (1) or category (2) shall, unless he has been reduced to a lower rank as punishment, be determined with reference to the date of the order of his first appointment to the said category:

Provided that the seniority of a person appointed to category (2) prior to 1st January 1979 shall be determined with reference to the date from which he was appointed to the category otherwise than as a temporary basis, without being subsequently reverted from the post.

(2) If two or more persons are appointed by the very same order either to category (1) or to category (2), their inter-se seniority shall be determined by the serial order in which their names appear in the appointment order."

(Note: Category (1) - Selection Grade District and Sessions

Judge.

Category (2) - District and Sessions Judges (including

Addl.District and Sessions Judge).

MADHYA PRADESH :

12.52 The High Court of Madhya Pradesh appears to have misunderstood the Question No.9. By way of answer to that question, it has simply asked the Commission to refer to Rule 11 of the Madhya Pradesh Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994.

12.53 Madhya Pradesh Judges' Association has also asked the Commission to refer to the said Rule 11. We think one has copied the answers of another.

 

 

12.54 According to the Madhya Pradesh Judicial Officers' Association, the root cause for the litigation between direct recruits and the promotees on the question of inter-se seniority is due to stagnation, frustration and nepotism on the part of the Recruiting authority.

12.55 The State Government has, however, stated that there are clear rules regarding the fixation of inter-se seniority list and, therefore, the problem is not felt in their State.

12.56 Mr. P.V. Namjoshi, Director, Judicial Officers' Training Institute, Jabalpur, appears to be the only person in Madhya Pradesh who has applied his mind carefully to this thorny problem. In his Memorandum to the Commission, he states:

"In Civil Service, whenever a Deputy Collector is promoted as an Officer of the Indian Administrative Service, his inter-se seniority is determined on the basis of total length of service rendered by him and not from the date of his promotion. For example, if he happens to be in the State Civil Service for a continuous period of 21 years, he would get a weightage of seven years over a member directly recruited to the cadre. The same formula should be made applicable mutatis mutandis to the Members of the Higher Judicial Service."

12.57 The relevant extract of the Service Rule regarding Seniority reads:

"11. Seniority: (1) The seniority of a person appointed to a post in Categories (a), (b), (c) and (d) of Rule 3 (1) shall, unless he has been reduced in rank on account of punishment, be determined in accordance with:

(a) the date of continuous officiation in the service in case of officers promoted to category (a).

(b) the date of order of appointment in the case of direct recruits to post in category (a) (i) and

(c) the date of order of promotion to categories (b), (c) and (d) respectively or such date as may be specified in this regard by the High Court;

Provided that where the date of continuous officiation in the case of a member promoted to a post in category (a) (i) and the date of joining the service in the case of direct recruit to the post in the same category, be the same, the promoted officer shall be treated as senior;

Provided, however, that seniority inter-se among the persons promoted by an order of the same date or among direct recruits appointed by an order of the same date shall follow the order in which their names have been recommended by the High Court."

 

Note:

Category (a) (i) -

District Judge in Senior Time Scale.

Category (a) (ii) -

District Judge in Junior Administration Cadre, non- functional.

Category (b) -

District Judge in Selection Grade.

Category (c) -

District Judges in Super Time Scale.

Category (d) -

District Judges in above Super Time Scale.

 

 

MAHARASHTRA :

12.58 The High Court of Bombay requires the Commission to formulate and get enforced concise and clear Rules regarding recruitment and promotions.

12.59 According to the Government of Maharashtra, there is hardly any litigation on inter-se seniority between direct recruits and promotees. However, the Government feels that the solution to such type of litigation "is to specify the date from which the recruited person is appointed comes in the cadre of District Judge."

12.60 Maharashtra State Judicial Service Association feels that a proper representation to promotees would eliminate such litigation.

12.61 Justice A.Y. Sakhare of Bombay High Court states that reason for litigation is discriminatory rules or ambiguity. He suggests that the recruitment rules and service rules must be uniform in all States which will eliminate litigation.

12.62 Justice A.D. Mane and Justice B.B. Vagyani state that by making appropriate clear rules regarding fixation of seniority and promotion, such litigation could be avoided.

12.63 Justice R.J. Kocher states that there should be uniform recruitment rules to avoid litigation about inter-se seniority.

12.64 The relevant extract of Rule 5 (2) (iii) (c) of the Bombay Judicial Service Recruitment Rules, 1956 (as modified upto 30th June 1992) provides:

"Seniority in the cadre of District Judges in case of persons appointed under sub-clauses (a) and (b) of clause (ii) shall be determined on the basis of their dates of appointment to work as District Judges.

Provided that, if more than one person is so appointed to work as District Judge on the same date, seniority inter-se as between them shall be in the order fixed by the High Court."

ORISSA :

12.65 The High Court of Orissa states that litigation regarding seniority could be avoided by regular recruitment and filling up the vacancies without much delay.

12.66 All Orissa Judicial Officers' Association states that the cadre is not hemmed by any litigation between direct recruits and promotees on their inter-se seniority.

12.67 The relevant Rule regarding seniority is as follows:

"17. Seniority of Officers in the service shall be determined in accordance with the dates of substantive appointment to the service;

"Provided that a promoted officer, who may have been allowed to continuously officiate from a date prior to the date of appointment of a direct recruit, shall, if he is subsequently substantively appointed in the service without reversion to his parent service take his seniority in the cadre over such direct recruit."

 

PONDICHERRY :

12.68 This Union Territory has no problem on inter-se seniority because no direct recruitment to the cadre of District Judges has been made so far, although the Rules provide for direct recruitment.

 

 

 

 

PUNJAB :

12.69 According to Punjab & Haryana High Court, Punjab is not lacking in the litigation between the direct recruits and promotees. But seniority as between them is strictly fixed according to Rule 12 of the Punjab Superior Judicial Service Rules, 1963.

12.70 The Punjab Judicial Officers' Association states that litigation between direct recruits and promotees mostly arises on account of interpretation put on the Rules by the High Court while implementing the Rules. Such litigation can be avoided if Service Rules are framed in such a manner that the same are not vague and admit of only one interpretation.

12.71 The Government of Punjab has not replied to the questionnaire.

12.72 The relevant extract of the Service Rules as to Seniority provides:

"12. The seniority, inter-se of the members of the service shall be determined by the length of the service on a post in the service irrespective of the date of confirmation:

Provided that in the case of two members appointed on the same day, their seniority shall be determined as follows:

1. In the case of direct recruits, the older in age shall be

senior to the younger;

2. A member recruited by direct appointment shall be senior

to a member recruited otherwise;

3. In the case of members appointed by promotion, seniority

shall be determined according to the seniority of such

members in the appointments from which they were

promoted;

 

4. In the case of promoted officers and direct recruits, the

older in age shall be senior to the younger."

RAJASTHAN :

12.73 Neither the High Court nor the Judicial Service Officers' Association has understood the question and, therefore, they have not answered properly.

12.74 However, Judicial Service Officers' Association has stated that seniority must be assigned to both the cadres from the date of their promotion / selection.

12.75 The relevant Service Rule provides:

"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 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 High Court."

 

 

SIKKIM :

12.76 According to the High Court of Sikkim, there is no litigation regarding inter-se seniority between direct recruits and promotees. However, they have suggested remedial measures as follows:

(a) Seniority should be fixed from the date of appointment, be it direct or on promotion;

(b) If a direct recruit and a promotee are appointed to a higher post on the same day, the direct recruit be considered as senior to the promotee.

12.77 The relevant extract of the Seniority Rules of Sikkim reads:

"11(1). The Seniority, inter-se, of the members of the service shall be determined by the date of confirmation of a post in the service."

TAMIL NADU :

12.78 The Madras High Court is of opinion that litigation on inter-se seniority could be avoided by making prompt recruitment and ear-marking the vacancy at a particular point of time and taking the date of appointment as the date for fixing the seniority.

12.79 The Tamil Nadu Government states that such litigation could be avoided by making regular recruitment and by fixing seniority as per the ranking in the selection list.

12.80 The Tamil Nadu Judicial Officers' Association, Chennai, have got a novel idea to avoid litigation on inter-se seniority. They suggest that there should be no direct recruitment to the cadre of Civil Judges (Senior Division) and District Judges.

 

12.81 Rule 8 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995 provides:

"8. Seniority. (1) The seniority of a person appointed to the category of District Judge (Super Time Scale) shall be determined by the date of first appointment to that category.

Provided that where the date of the first appointment of two or more District Judges / Additional District Judges / Chief Judicial Magistrates to the category of the District Judge (Super Time Scale) is the same, then the inter-se seniority shall be determined by the rank assigned to them in the list drawn by the High Court.

(2) The seniority of a person appointed to the category of District Judge / Additional District Judge / Chief Judicial Magistrate shall be determined by the date from which he was continuously on duty in the category of District Judge / Additional District Judge / Chief Judicial Magistrate.

Provided that the seniority of a person appointed to the category of District Judge / Additional District Judge / Chief Judicial Magistrates by promotion from category 3 - Civil Judge (Sr. Divn.) - shall be fixed by the Government on the recommendation of the High Court."

UTTAR PRADESH :

12.82 The Allahabad High Court states that after the judgment of the Supreme Court in O.P. Garg's case (AIR 1991 SC 1202), the dispute between the direct recruits and promotees has been settled.

 

12.83 Government of Uttar Pradesh agrees with the High Court.

12.84 U.P. Judicial Services Association says that fixation of inter-se seniority has been the root cause giving rise to endless litigations between the direct recruits and promotees. Some fool-proof formula must be evolved for fixation of such seniority. They suggest the following measures to avoid litigation on seniority, viz.,

"Date of joining or officiation for direct recruits as well as for promotees must be the criteria for determination of their seniority."

12.85 Justice R.K. Mahajan (Rtd.) of the Allahabad High Court admits that there has been a lot of litigation on inter-se seniority between direct recruits and promotees. That is on account of promotion of officers on ad hoc basis against the direct recruit vacancies and the vacancies some times are not filled up for 2 to 3 years or more. The direct recruit is given seniority over the promotee from an anterior date of his recruitment, which leads to frustration amongst the promotees. Some time undertaking is taken from the promotees that they would not claim any seniority but that practice is not a healthy practice. He suggests that no promotion should be made on ad hoc basis, and if made in the public interest, promotees be given seniority from the dates of their joining duty.

12.86 Rule 26 of the U.P. Higher Judicial Service Rules, 1975 provides for seniority as follows:

" 26(1). Except as provided in sub-rule (1), seniority of members of the service shall be determined as follows:

(a) seniority of the officers promoted from the Nyayik Sewa vis--vis the officers recruited from the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits. Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same, the promoted officer shall be treated as senior."

WEST BENGAL :

12.87 The Calcutta High Court states that there is lot of litigation on inter-se seniority. The litigation arises due to arbitrary recruitment and fixation of seniority. Recruitment was made long after promotion in some years. The High Court is of the opinion that if recruitment and promotions are made in time the Rules about seniority are specified and followed judiciously in unambiguous terms, and unbiasedly, the possibility of such litigation could be prevented.

12.88 Government of West Bengal also agrees with the proposal of the High Court. They have reiterated that to avoid such litigation, the Rules of Seniority may be made clear and it should be based on rational and practical basis.

12.89 The West Bengal Judicial Services Association also concurs with the High Court and the State Government. They are of the view that Rules of seniority must be clear and based rationally and practically. It should not be arbitrary and impracticable. Continuous officiation from the date of joining with regard to promotees should be the date for reckoning seniority of the promotees vis--vis direct recruits and not the date of confirmation of the Officers. They suggest that the date of joining to the cadre whether on probation or continuous officiation should be the basis of Seniority.

12.90 They have given one more suggestion. They want the Commission to follow the practice in the All India Services such as IAS and IPS, wherein the promoted Officers would get a weightage of seniority of one year for every three years of completed service in the State Service upto a maximum of nine years. This provision, according to them, is most rational and reasonable.

 

12.91 It may be noted that in West Bengal, direct recruitment of District Judges has been stopped since 1977.

12.92 The relevant extract of the Service Rules reads:

"Rule 3. The seniority of direct recruits and promotees shall be determined according to the date of appointment on probation in the case of direct recruits and according to the date of promotion to a post if the officiation is continuous in the case of promotees:

Provided that the relative seniority of members having the same date of first appointment to a post shall be determined -

(i) in the case of direct recruits, inter-se, with reference to the age of the members concerned;

(ii) in the case of promotees, inter-se, with reference to the position of the members concerned in the gradation list of the West Bengal Civil Service (Judicial);

(iii) in the case of a promotee and a direct recruit, inter-se, with reference to the age of the members concerned."

12.93 Before proceeding further it will be useful to refer to some of the decisions of the Supreme Court on the disputes relating to inter-se seniority between the direct recruits and promotees.

I. S.B. PATWARDHAN v. STATE OF MAHARASHTRA (1977)

3 SCR 775 : (AIR 1977 SC 2051)

12.94 In this case, the Supreme Court has deprecated the practice of preparing the seniority list on the basis of date of confirmation of officials. The Court observed that "confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies."

II. DIRECT RECRUIT CLASS II ENGINEERING OFFICERS' ASSOCIATION v. STATE OF MAHARASHTRA (1990) 2 SCC 715.

12.95 The Supreme Court approved the principles stated in Patwardhan's case and laid down the following propositions for preparing the inter-se seniority between the direct recruits and promotees:

(A) Once an incumbent is appointed to a post according to Recruitment Rules, 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, then the officiation in such post on Ad hoc appointment 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 Recruitment Rules but the appointee continues in the post uninterruptedly till he is regularised in accordance with the Rules, the period of officiating service must be counted for the purpose of determining the seniority.

(C) When appointments to a cadre are made from more than one source, it is permissible to fix the ratio for recruitment from the such different sources, and if Rules are framed in this regard, they must ordinarily be followed strictly.

 

 

III. O.P. GARG v. STATE OF UTTAR PRADESH (AIR 1991 SC 1202).

12.96 This is a second round of litigation regarding seniority in the U.P. Higher Judicial Service. In this case, the Supreme Court observed that if temporary posts form part of the cadre and so long as the temporary posts have independent existence, the appointment against such posts has to be treated as substantive appointment. The seniority of a direct recruit, appointed to the post in service has to be determined from the date of continuous officiation of his service. The seniority of a promotee officer has to be counted on the basis of continuous length of service and not with reference to the date of confirmation.

12.97 When recruitment to the service is from more than one source, the existence of the vacancy either permanent or temporary is the sine qua non for claiming benefit of continuous length of service towards seniority. The period of officiation / service which is not against a substantive vacancy (permanent or temporary) cannot be counted towards seniority.

IV. BHASKAR RAO v. STATE OF ANDHRA PRADESH 1993 SCR (2) 547.

12.98 The Andhra Pradesh Higher Judicial Service Rules case regarding the fixing inter-se seniority between the direct recruits and promotees came up for consideration in this case before the Supreme Court. The promotees were appointed in temporary posts in 1978 and made permanent in 1983. The direct recruits were appointed in 1981. The question presented was whether the service rendered on temporary appointment could be counted for seniority. It was observed by the Court that the service comprises of posts permanent and temporary and if the appointments to such posts were made after following the procedure, the seniority has to be given on the basis of continuous service in temporary posts as well.

V. ASHOK KUMAR v. STATE OF TAMIL NADU 1994 SUPP. (2) SCC 631.

12.99 The Tamil Nadu State Higher Judicial Service Rules, 1982 regarding the determination of inter-se seniority between the direct recruits and the promotees was considered in this case. The direct recruits were not confirmed when vacancies were available and confirmation of promotees was made earlier since they were appointed earlier in point of time.

12.100 The question debated was whether it was proper to confirm the promotees earlier to direct recruits and rank them seniors. The Apex Court observed that there was no particular quota reserved for direct recruits under the Rules. The Rules only provided not more than 10 posts in the cadre shall be filled by direct recruitment. This is not linked to the total cadre strength. Hence the seniority cannot be fixed on the principles of rota. The date from which the direct recruits and promotees are continuously officiating is relevant and material.

VI. STATE OF PUNJAB AND OTHERS v. DR. R.N. BHATNAGAR AND ANOTHER, (1999) 2 SCC 330.

12.101 The Supreme Court was concerned with the Quota-rota rule for recruitment from two sources, namely, promotees and direct recruits. The rule provides for filling vacancies in the cadre by promotees and direct recruits in the ratio of 3 : 1. That Rule was with reference to the recruitment to Punjab Medical College Education Service (Class I) Rules, 1978.

12.102 After reviewing the earlier decisions of the Supreme Court on the working of the Quota-rota rule, the Court observed that for working out such a Rule of recruitment, the vacancies arising in the cadre had to be kept in view and not the posts themselves. Quota-rota rule should be followed for monitoring recruitment from two sources. As the ratio for recruitment is 3 : 1, the first three vacancies in the cadre would go to promotees and the 4th vacancy would go to direct recruit. Similarly, 5th, 6th and 7th were to be filled by promotees and the 8th vacancy would go to a direct recruit. Likewise, 9th, 10th and 11th would go to departmental promotees and the 12th vacancy would go to direct recruit, so on and so forth. That is how the roster points are to be worked out regulating recruitment from two sources, i.e. from promotees and direct recruits.

12.103 Reverting back to the critical response from judicial fraternity on Question No.9, it will be seen that the existing Recruitment Rules and Seniority Rules in most of the States are primary cause of the problems in the first place: Second, the delay in making recruitment from the Bar or making promotions in the service personnel in excess of the quota reserved for them.

12.104 These are intractable problems for which the solution lies according to us in formulating non-discriminatory and unambiguous Rules of Seniority for all the States/UTs.

12.105 The High Courts of Bombay and Calcutta and in particular the Judges of the Bombay High Court, Mr. Justice A.Y. Sakhare, Mr. Justice A.D. Mane, Mr. Justice B.B. Vagyani and Mr. Justice Kochar, have also emphasised that there must be uniform Recruitment Rules and Seniority Rules in all States/UTs and such rules alone could eliminiate the discontentment or litigation amongst the Judicial Officers.

OUR RECOMMENDATION :

12.106 Bearing in mind the aforesaid perspectives, comments and suggestions made by the High Courts, State Governments, Judges and Service Associations, we have made the uniform Rules of Recruitment and Seniority for operation by all the States/UTs.

 

12.107 The Rules of Recruitment, inter alia, provide as follows :

(i) Reservation for direct recruitment from the members of the Bar to the cadre of District Judges should not be more than 25% of the cadre posts. This is a simple rule prescribing the upper limit for direct recruitment without any prescription of rota quota system.

(ii) The age of the candidate must be between 35 and 45 years as on the last date fixed for receipt of the applications and the upper age may be relaxed by 3 years for SC/ST candidates.

(iii) To avoid arbitrariness in the selection and to provide for more transparency, the direct recruitment of District Judges from the members of the Bar shall be by competitive examination consisting of : (a) Written Examination and (b) Viva Voce Examination.

The written examination is about two hours on a subject as may be specified by the High Court and it shall carry maximum of 200 marks.

Candidates who secure not less than 60% marks or the corresponding grade in the written examination shall be eligible for viva voce examination. SC / ST candidates who secure not less than 50% of the marks or the corresponding grade shall be eligible for the viva voce examination.

The viva voce examination shall carry maximum marks of 50.

(iv) The recruitment shall take place bi-annually. However, the vacancy position including 'NIL' vacancy should be notified in the Official Gazette every year.

(v) Selection will be made by the Full Court or by five senior-most Judges of the High Court.

(vi) Rules of Seniority :

Seniority of the Officers appointed by direct recruitment or promotion shall be determined according to the dates on which they report for duty.

Where more than one Officer is promoted to a cadre at the same time, the inter-se seniority of the persons who are promoted shall be determined by their inter-se seniority in the lower cadre.

With regard to direct recruits, the inter-se seniority is determined on the basis of their rankings in the select list.

WEIGHTAGE FOR PROMOTEES :

12.108 According to the feed-back information which we have received, from the High Courts regarding average age of promotees and direct recruits made in the last five years to the cadre of District Judges, the promotees will always be "older" in age to direct recruits. Reason being, the Civil Judges (Sr. Divn.) get promotion as District Judges only at their advanced age while Bar Members are directly recruited at relatively younger age.

 

12.109 Below is the Table depicting that State-wise position :

TABLE

Average age of District Judges at the time of Promotion/Direct Recruitment during the last five years.

Sl.No.

State / UT

Average age of promotee Dist. Judges

Average age of Directly Recruited Dist. Judges

1.

Andhra Pradesh

48

39

2.

Assam

51

38

3.

Bihar

54

41

4.

Delhi

46

40

5.

Gujarat

52

40

6.

Haryana

53

42

7.

Himachal Pradesh

51

43

8.

Jammu & Kashmir

52

38

9.

Karnataka

50

41

10.

Kerala

48

40

11.

Madhya Pradesh

51

42

12.

Maharashtra

49

46

13.

Orissa

53

38

14.

Punjab

55

43

15.

Rajasthan

51

43

16.

Sikkim

46

40

17.

Tamil Nadu

50

37

18.

Tripura

49

42

19.

Uttar Pradesh

50

42

20.

West Bengal

50

(No. D.R. since 1977)

 

 

12.110 It will be seen from the above Table that the average age of promotees would be about 50 years as against the average age of 42 years of the direct recruits. Indeed, the Table shows that in majority of the States, such average age of the promotees would be above 50 years while that of the direct recruits would be less than 42 years.

12.111 This will have an imbalance in the service conditions of promotees and direct recruits and that is the root cause of frustration amongst the promotees. Apart from the imbalance in service, the promotees would be denied of the higher pay scales like Selection Grade, Super Time Scale etc., since it is given on the basis of merit and seniority of the Officers. The promotees will not have any chance to become the Principal District Judges of the Districts, since such posts are generally occupied by senior judges. They would be wholly denied of opportunity to go side by side with the direct recruits in their onward march to reach the High Court. Even if they are elevated to the High Court, they will have hardly three to four years of service. Such a short period is not sufficient to make any worthwhile contribution to the High Court.

12.112 The Commission considers that it is imperative to remove the frustration of promotees resulting from the aforesaid imbalance and the only way which we can think of is to give certain weightage to the promotees for the purpose of determinig their seniority.

12.113 The system of giving weightage is not new to the service jurisprudence. It has been provided to Officers of the State Service when they are selected to the All India Services.

12.114 Reference may be made to the India Administrative Service (Regulation of Seniority) Rules, 1987 as amended by Notification dated 31 December 1997.

12.115 Relevant portion of the said amended Rules provide as follows:

"2. In the Indian Administrative Service (Regulation of Seniority) Rules, 1987 (hereinafter referred to as the Principal Rules), in rule 3, in sub-rule (3), for clauses (ii) and (iii), the following clauses shall be substituted, namely:

'(ii) The year of allotment of a promotee Officer shall be determined with reference to the year in which the meeting of the Committee to make selection, to prepare the select list, on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Civil Service not below the rank of a Deputy Collector or equivalent, up to the 31st day of December of the year immediately before the year in which meeting of the Committee to make selection was held to prepare the select list on the basis of which he was appointed to the Service, in the following manner:

(a) For the service rendered by him up to twenty one years, he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years.

(b) He shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years, referred to in sub-clause (a), subject to a maximum of three years'."

12.116 The weightage is given to the promotees to the IAS cadre taking into consideration the service rendered by them in the State Service. The total service rendered by the Officers is counted. The weightage of one year for every completed 3 years of service subject to a minimum of 4 years and maximum of 10 years is given to such Officers.

12.117 This system is stated to be functioning very satisfactorily without giving any scope for discontentment either to direct recruits or to the promotees in the All India Service, particularly in IAS Cadre.

12.118 The Commission suggests that in fairness and to minimise the age-long discontentment between the promotees and direct recruits, certain weightage be given to promotee District Judges.

12.119 The Commission recommends that promotees be given a weightage of one year for every five years of judicial service rendered by them subject to a maximum of three years.

12.120 The judicial service of Officers for providing weightage is the entire service rendered by them as Judicial Officers right from the entry into Judicial Service up to the date of their promotion to the cadre of District Judges.

12.121 We draw support from the provisions of Article 217 (2) (a) of the Constitution of India, which reads as under:

"217. Appointment and conditions of the office of a Judge of a High Court,-

xxx xxx xxx

(2) A person shall not be qualified for appointed as a Judge of a High Court unless he is a citizen of India and -

(a) has for at least ten years held a judicial office in the territory of India; or (underlining is ours)

(b) xxx xxx xxx

12.122 The meaning and scope of "Judicial Office" has come up for consideration before the Supreme Court in SHRI KUMAR PADMA PRASAD v. UNION OF INDIA AND OTHERS1, in which the Supreme Court observed at p.1225 thus:

"The judicial service under Article 236 ( b) consists of District Judges who preside over the District Courts and the Subordinate judges who man the courts inferior to the District Courts, Subordinate Judges who are members of the judicial service are eligible for appointment as District Judges. It would be logical and consistent with the constitutional scheme to read "judicial office" under Article 217(2)(a) to mean an office within the judicial service of the State. Ordinarily the District Judges who are superior members of the judicial service are considered for appointment as Judges of the High Court but the constitution-makers wanted to hold-out a possibility of elevation as a Judge of the High Court to the Subordinate Judges, so as to infuse amongst them a sense of responsibility and an incentive for maintaining efficiency and it was with that objective that the expression "judicial office" has been used in Article 217(2)(a) of the Constitution. In our view the expression "judicial office" in the said article means an office which is a part of judicial service as defined under Article 236(b) of the Constitution."

12.123 In the light of these principles, we have drafted Judicial Service Rules, 1999 for being adopted by all the High Courts and State Governments. The Draft Rules are annexed to the Chapter captioned as 'DIRECT RECRUITMENT TO THE CADRE OF DISTRICT JUDGES - PROFILE, PROBLEMS AND PROGNOSIS'.


1. AIR 1992 SC 1213.

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