JUDGMENT
A.S. Anand, C.J.
1. This Writ Appeal is directed against the judgment of a learned single Judge in W.P. No. 1357 of 1989, which was dismissed on 5.10.1989. With a view to appreciate the controversy regarding the seniority of the District Munsifs-cum-Judicial Magistrates, it would be relevant to have a short perspective of the historical background.
2. The posts of Judicial First Class Magistrates and Judicial Second Class Magistrates formed part of the Tamil Nadu State Magisterial Service and the posts of District Munsifs were comprised in the Tamil Nadu State Judicial Service. After the coming into force of the Code of Criminal Procedure, 1973, the posts of Sub Magistrates and Additional First Class Magistrates were re-designated as Judicial Second Class Magistrates and Judicial First Class Magistrates. On 31.1.1976, the Government of Tamil Nadu issued directions to the effect that the posts of Judicial Second Class Magistrates be upgraded as Judicial First Class Magistrates and that the upgraded posts should also be integrated with the cadre of District Munsifs to form one cadre under the Tamil Nadu State Judicial Service. It was also directed that the District Munsifs should be re-designated as District Munsifs-cum-Judicial Magistrates. These administrative decisions of the Government necessitated amendments to the Tamil Nadu State Judicial Service Rules for which proposals were invited to formulate the principles on which such integration could be implemented. There was a great deal of exchange of correspondence in the process of consulting and ascertaining the views of the High Court and the Tamil Nadu Public Service Commission. After the process of consultation, the impugned Government Order, G.O.Ms. No. 2196, Home (Courts-I) Department, dated 6.10.1988 was issued in exercise of the powers conferred under Article 234 and the proviso to Article 309 of the Constitution of India. The grievance of the appellants relates to Clause 7 to the Government Order by which the third proviso was added to Rule 20 of the Tamil Nadu State Judicial Service Rules, which shall be referred to in the later part of this judgment.
3. The appellants were originally working in various Government Departments. When applications were invited for filling up the vacancies in the posts of Sub-Magistrates, they, amongst others applied and were appointed against the then existing vacancies in the posts of Sub-Magistrates. Subsequently, they were appointed as Judicial Second Class Magistrates on various dates between the period 7.4.1967 and 23.6.1978. Later on, the appellants were appointed temporarily as District Munsifs with effect from various dates during the period 13.11.1978and 1.11.1980. This process had to be adopted because we find that for a considerable length of time, there was no selection and appointments made to the posts of District Munsifs. The Draft Rules which had been prepared as already noticed, whilein the process of finalisation, contained a provision to the effect that all temporary Judicial Officers, viz., temporary Judicial Second Class Magistrates, temporary Judicial First Class Magistrates and temporary District Munsifs, shall apply to the Tamil Nadu Public Service Commission for regular selection and in the event they were not so selected by the Public Service Commission, they would revert back to their parent departments. On coming to know of this move, the Tamil Nadu Magisterial Service Association, made representations to the Government requesting that the services of the members of the Association be regularised without insisting upon their going through the process of selection by the Tamil Nadu Public Service Commission. On 20.8.1981, the Government appears to have decided that all temporary Judicial Officers should be regularised as Judicial Second Class Magistrates and that they need not appear before the Tamil Nadu Public Service Commission for regular selection. The proportion in which such officers were to be regularised for appointment was also indicated by the Government. It was at this stage that the Chair, man of the Tamil Nadu Bar Council filed W.P. No. ll604 of 1981 V. Ragayyah v. State of Tamil Nadu by Chief Secretary to Government and Anr. and on 20.1.1982, orders of injunction restraining the Government from regularising the temporary services of the Judicial Second Class Magistrates was obtained until further orders. With this Judicial Order from the High Court, the process of regularisation of the temporary Judicial Officers could not be proceeded any further. Two more writ petitions were also filed in the High court, being W.P. Nos. 3053, and 3294 of 1984, which inter alia sought a direction to fill up all vacancies in the posts of Magistrates and District Munsifs only in accordance with the Rules. By an order dated 10.5.1985, the writ petitions were allowed and directions were issued to make regular appointments through the process of selection by the Tamil Nadu Public Service Commission within four months and to put an end to the temporary arrangement. While the order of the court dated 10.5.1985 and the scheme of integration were pending implementation, it transpired that certain proceedings were initiated in the Supreme Court of India by W.P. No. 12541 of 1985 and W.P. No. 128 of 1986. The Advocates Association, High Court, Madras and another v. State of Tamil Nadu and Ors. W.A. No. 251 of 1986, Tamil Nadu Magisterial Sendee Association by the President v. The Government of Tamil Nadu by Commissioner and Secretary, Home Department and two Ors. which was pending on the file of this Court against the earlier order of the learned single Judge, was also ordered to be transferred to the Supreme Court. Both the Writ petitions and the writ appeal were disposed of by the apex Court by order dated 5.8.1986. It would be relevant at this stage to notice the portion of that order which has a serious bearing on the matter in controversy in this writ appeal, The relevant portion of the order of the Supreme Court reads:
We find from the record that the High Court at a full court meeting held on 30th April, 1986, passed the following resolution:
‘In so far as the suggestions mad in the letter. of Mr. Govind Swaminathan are concerned, the High Court is agreeable only for regularisation of such of the Judicial Magistrates of the Second Class as are found fit on a proper scrutiny by a Committee of Judges. This regularisation will only be in the cadre of Judicial Magistrates of the Second Class. The High Court is not prepared to accept the suggestion that Judicial Magistrates of the Second Class who are officiating either as Judicial First Class Magistrates or as District Munsifs should be regularised as Judicial First Class Magistrates or District Munsifs, as the case may be. The regularisation will be within the limits of the ratio prescribed by the Recruitment rules. The Government be also informed that such an arrangement has been agreed to between the Chief Justice and the Chief Minister and the High Court will implement the same. The Magistrates’ Association has given to the Chief Justice in writing a letter that they are prepared to have the officers screened by a Committee of Judges and such of those who are not found fit be sent back.’
Since the arrangement set out in this resolution is agreed to between the Chief Justice and the Chief Minister and the High Court has agreed to implement the same, we would direct that the cases of temporary Judicial Magistrates Second Class, shall be scrutinised by a Committee consisting of two or more learned Judges of the High Court and after scrutiny and assessment of their merits, ability and integrity by the committee, the High Court will decide how many of them should be regularised as Judicial Magistrates, Second Class. This regularisation will be within the limists of the ratio prescribed by the recruitment rules. The seniority of those who are regularised will be fixed by the High Court in accordance with the quota prescribed by the rules; in other words, seniority will be fixed with effect from the respective dates on which each of them would have been regularly appointed, having regard to the quota rule. The temporary Judicial Magistrates, Second Class will be regularised as aforesaid only in the cadre of Judicial Magistrates, Second Class and not as Judicial Magistrate, First Class or District Munsifs, even if they have been promoted as such. They will, however, be entitled to be considered for promotion in accordance with the rules regulating promotions. They will also be entitled to compete for the posts of District Munsifs. We hope and trust that the question of regularisation will be taken up by the High Court at an early date, so that those who are to be regularised, are assured of their position.
4. After the order was made by the apex Court, it appears that the parlies again approached the Court and on 14.11.1986, the Supreme Court passed further orders in the following terms:
We directed by our order dated 5th August, 1986, that the cases of temporary Judicial Magistrates, 2nd Class shall be scrutinised by a Committee consisting of two or more Judges of the High Court and after scrutiny and assessment of their merits, ability and integrity by the Committee, the High Court will decide how many of them should be regularised as Judicial Magistrates, 2nd Class. This regularisation will be within the limits of the ratio prescribed by the recruitment rules. We also directed that the temporary Judicial Magistrates, 2nd Class, will be regularised only in the cadre of Judicial Magistrates, 2nd Class and not as Judicial Magistrates, 1st Class or District Munsifs even if they have been promoted as such and that they will be entitled to be considered for promotion to the post of District Munsifs. We are informed by the Registrar of the High Court that the High Court has constituted a Committee of three Judges for scrutinising the cases of temporary Judicial Magistrates, 2nd Class, as provided in our order and that this particular task is expected to be completed within four months. Since we have directed that the temporary Judicial Magistrates, 2nd Class, after scrutiny and assessment of their merits, ability and integrity etc. should be regularised within the limits of the ratio prescribed by the recruitment rules, it is obvious that the regularisation of temporary Judicial Magistrates, 2nd Class who are found fit by the High Court should be made in accordance with the quota prescribed by the recruitment rules and if they cannot be regularised within their quota in a particular year in which they have been appointed, they would have to be pushed down in order that they may be absorbed within their quota in the subsequent years, if it is found that out of the temporary, Judicial Officers, 2nd Class, who are found fit, any of them cannot be regularised within their quota by 31st March, 1987. (We are specifying this date on the basis that the High Court requires a period of four months to complete the scrutiny). We would suggest that such temporary Judicial Magistrates, 2nd Class, may be continued on supernumerary posts to be created by the State Government and they may continue in such supernumerary posts until such time as they are absorbed within their quota in the following years. But on no account should the quota be breached or violated in any manner whatsoever.
5. In obedience to the directions of the Supreme Court supra and the findings of the screening Committee of this High Court, the Government thereupon regularised the temporary services of the Judicial Officers in question as Judicial Second Class Magistrates in two batches, vide G.O.Ms. No. 1053, Home, dated 10.5.1988, and G.O.Ms. No. 1269,Home, dated 2.6.1988, whereby 182 and 34 temporary Judicial Officers respectively were regularised.
6. The Tamil Nadu Public Service Commission in order to fill up certain vacancies in the posts of District Munsifs, started the selection process and pursuant to the said selection, ordered the appointment of 56 District Munsifs on 26.3.1986 and 128 District Munsifs on 21.9.1988. It was at this stage that the Government passed the impugned Government order introducing an amendment to the Tamil Nadu State Judicial Service Rules, providing for the manner of integration and fixation of inter se seniority of the members of the integrated service. The amendments were to come into force with effect from 6.10.1988. The Developments which we have noticed hereinabove in the historical perspective, reveal that at this stage the Tamil Nadu State Judicial Service consisted of three categories of Classes of District Munsifs: (1) Those who were regularly appointed through the Tamil Nadu Public Service Commission on 26.3.1986 and 21.9.1988; (2) Those who were selected and appointed by the Tamil Nadu Public Service Commission from out of the regularised Judicial Second Class Magistrates; and (3) those who became District Munsifs on 6.10.1988 consequent upon the principle of integration.
7. When the process of selection was undertaken by the Tamil Nadu Public Service Commission, some of the appellants also took their chance for selection for the regular appointment as District Munsifs and appeared before the Public Service Commission, but they were not selected.
8. The impugned Government Order, G.O.Ms. No. 2196 had introduced several amendments to the Tamil Nadu State Judicial Service Rules besides rescinding the Tamil Nadu Stale Magisterial Service Rules. The amendment against which grievance has been projected by the appellants, both before the learned single Judge as well as before us, is the third proviso which was added to Rule 20 by Clause 7 of the said Government Order. The said proviso dealing with the principle of fixation of inter se seniority reads as follows:
To Rule 20, after the second proviso, the following proviso shall be added, namely: ‘provided also that as on the date of coming into force of this proviso, all regular Judicial Magistrates of the First Class shall be placed according to their existing seniority below the order of seniority of the regular District Munsifs and below them, all permanent Judicial Magistrates of the Second Class shall be placed according to their existing seniority and below them all the Judicial Magistrates of Second Class whose services have been regularised before the 31st January, 1976, shall be placed according to their existing seniority. All the Judicial Second Class Magistrates whose services have been regularised during the year 1988 shall be placed below those Judicial Second Class Magistrates whose services were regularised prior to 31.1.1976 according to their existing seniority;
9. The learned single Judge, while dismissing W.P. No. 1357 of 1989 by the order dated 5.10.1989, impugned in this writ appeal, inter alia held that the integrated cadre of District Munsifs-cum-Judicial Magistrates statutorily came into force only with effect from 6.10.1988 and, therefore, the earlier decision taken on 31.1.1976 could not have the effect of overriding the then existing rules by which the Judicial Magistrates and District Munsifs were governed. It was also held that the writ petitioners and persons like them, who were members of the Magisterial service and not that of the cadre of District Munsifs in the Tamil Nadu State Judicial Service, belonged to an inferior service till it was upgraded and integrated and, therefore, their services as Magistrates or temporary District Munsifs could not be counted in their favour for fixing their inter se seniority to the prejudice of the seniority of the regularly appointed District Munsifs, who had been directly recruited by the Tamil Nadu Public Service Commission. The learned single Judge further found that the earlier decision of the Government reflected in G.O.Ms No. 202, Home, dated 31.1.1976, was merely an administrative decision and that it did not have the effect of either amending or superseding, or abrogating the statutory rules governing the members of the respective services. The learned single Judge finally opined that the principles laid down in the third proviso to Rule 20 of the Rules, as amended, for the fixation of inter se seniority of the integrated category of District Munsifs was not violative of any of the Constitutional provisions, including Articles 14 and 16 of the Constitution of India. The findings of the learned single Judge are under challenge in this writ appeal.
10. Appearing for the appellants, Mr. G. Subramaniam, learned Counsel, argued firstly that the temporary services rendered by the appellants as District Munsifs must be taken into consideration for fixing their inter se seniority and that the direct recruits could not claim any preferential treatment over the promotees already holding the post even though the quota reserved for filling up the posts by direct recruitment had not been exhausted before the promotees were so appointed. Secondly, it was argued that the principle of determining seniority on the basis of length of service in the particular category alone ought to have been taken into account and the appellants could not be pushed down in the matter of seniority. Learned Counsel went on to submit that the appellants who had been holding the posts of District Munsifs for long periods could not be denied the benefit of their service merely because they had chosen to appear before the Tamil Nadu Public Service Commission for proper selection and had not been so selected. Argued, Mr. Subramaniam, that the appellants had appeared before the Tamil Nadu Public Service Commission in terms of “directions of the High Court.” Though conceding that the challenge to the impugned proviso had not been made on the basis of conflict with any provisions of the Act or the Constitution of India, learned Counsel submitted that since it worked hardship in so far as the appellants are concerned, it should be declared to be unconstitutional and struck down.
11. In response to the arguments of the learned Counsel for the appellants, Mr. R. Krishnamurthy, learned senior counsel who appeared for some of the contesting respondents, who had got themselves impleaded as party respondents to the above appeal, argued that having regard to the statutory rules in force at the relevant point of time as well as the orders of the Supreme Court in the matter of regularisation of the services of the persons like the appellants they were not entitled either on facts or in law to claim any right of seniority based on the services rendered by them on account of their temporary promotions as District Munsifs. Learned Counsel for the respondents submitted that the seniority of the appellants would have to be determined with reference to the date of their regular appointment to service as District Munsifs, or the date of the integration, as the case may be, and that no allowance could be given to the appellants in respect of the services rendered by them prior to those dates. Mr. Krishnamurthy vehemently argued that the appellants and several others like them were not even qualified for regular appointment as Magistrates on the date of their appointment and that they could be appointed only because ad hoc or temporary appointments outside the Rules of regular appointments were made and that could not confer any benefit on them over the regularly appointed direct recruits. Mr. Krishnamurthy then went on to submit that the scheme of integration does not have the effect of regularising an irregular service, but that it was meant to upgrade and provide for the appointment to a higher service from the date on which the statutory effect was given to the same. It was then urged that the appellants and persons similarly placed, who chose to appear before the Tamil Nadu Public Service Commission in view of the orders of the Supreme Court and took their chance for regular selection by competing with the regular recruits and failed to get selected, could not be permitted to resile from the legality of the principle of seniority introduced by the third proviso to Rule 20. It was urged that the findings recorded by the learned single Judge in the face of the earlier order of the Supreme Court were unexceptionable and that the Writ Appeal had no merit whatsoever.
12. We have given our anxious consideration to the respective contentions raised at the Bar and we shall refer to some of the judgments relied upon by the learned Counsel for the parties in support of their respective submissions in the subsequent part of this judgment at the appropriate place.
13. So far as the factual position is concerned, as noticed earlier, several persons who were working in various Government Departments came to be appointed temporarily as Sub-Magistrates and during the year 1974, the posts of Sub-Magistrates and Additional First Class Magistrates were redesignated as Judicial Second Class Magistrates and Judicial First Class Magistrates in view of the change in the nomenclature effected by the Code of Criminal Procedure, 1973. These Judicial Second Class Magistrates were not made regular or permanent members, since most of them had been appointed not in accordance with the recruitment rules but outside the rules. Such persons were also given further promotion, once again temporarily, by invoking the powers for making emergency appointments in relaxation of certain rules by invoking the powers under Rule 11(3) of the Tamil Nadu State Judicial Service Rules. Rule 11(3) of the said Rules provides:
11(3)(i): Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in the category of District Munsifs and to avoid undue delay in making such appointment in accordance with these rules, the Governor may temporarily appoint a person by transfer from among the categories mentioned in Sub-rule (1) of Rule 4 in consultation with the High Court, otherwise than in accordance with these rules:
Provided that such temporary appointment shall be made only if the candidate possesses the qualifications prescribed-in Rule 12(b). (ii) A person appointed under Clause (1) shall be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under these rules and the person appointed shall not be regarded as a probationer in the post or be entitled by reason only of such appointment to any preferential claim to future appointments thereto. The services of a person appointed under Clause (1) shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned.
Sub-rule (4) of Rule 11 reads as follows:
(4) If a person having been appointed temporarily under Sub-Rules (1), (2) or (3) above as a Subordinate Judge or a District Munsif, as the case may be, is subsequently appointed regularly as a Subordinate Judge or a District Munsif, as the case may be in accordance with these rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine. He shall also be eligible to draw increments in the time-scale of pay applicable to him from the date of commencement of his probation but shall not be entitled to arrears of pay unless otherwise ordered by the High Court.
14. The above quoted rules provide for temporary appointments of District Munsifs under various circumstances and the rules categorically declare that such temporary appointees shall neither be regarded as probationers nor entitled to any preferential claims when selections for regular appointments are made, or even for further promotions.
15. So far as the regular appointments to the posts of District Munsifs are concerned, Rule 7 of the said Rules provides that all first appointments shall be made by the Governor from the list of approved candidates, subject to the rule of reservation. Rule 5 lays down that She Tamil Nadu Public Service Commission shall prepare a list of persons considered fit for appointment as District Munsifs in accordance with the rules are regulations, after holding such examination, if any, as the Governor may think necessary. It is not a matter in dispute that the requirements of these rules were not adhered to and that selection of District Munsifs was made by the High Court on the administrative side from out of the temporary Judicial Magistrates, pending regular appointments in accordance with the rules, During the course of arguments, a sample copy of the order of one such appointment, made G.O.Ms. No. 2502, Home, dated 4.10.1980, we produced before us for perusal, which, by itself, disclosed that the appointment was made in relaxation of certain rules by virtue of Rule 11(3)(i)(supra). Paragraph 5 of the sample copy of the order itself conditioned, apart from the rules, that the appointment “shall be purely temporary conferring on them no claim or lien while regular selection is made through the Tamil Nadu PublicService Commission.” Such appointees, therefore, were apprised of their status and they were alive to the situation that unless and until they get selected by the process of selection by the Tamil Nadu Public Service Commission for regular appointment, they were only temporary appointees with no rights of probation even in the posts they were made to serve. The question of regularisation was in challenge before this court, as already noticed, from 1981 onwards and when the matter was clearly sub judice and later on orders came to be passed by this Court and the Supreme Court of India, which have been referred to earlier, no rights could be traced or claimed upon by such temporary appointees based on the temporary service rendered by them pending determination by the Court and that too, without reference to the direction contained in the order of this Court as well as that of the Supreme Court of India (supra). Since during 1981 and immediately thereafter when the Government was contemplating regularising the temporary services of such appointees and writ petitions had been filed to restrain the Government from regularising the temporary services of the Judicial Second Class Magistrates and all the District Munsifs not regularly appointed, this court, in its order, indicated the considerations which had to be taken into account before regularising the services which power the Government, indeed, possesses. A specific direction had been given by the court to put an end to the method of temporary appointments and make selections to the posts of District Munsifs within four months, whereafter the matter was taken to the Supreme Court and the directions, as already noticed hereinabove, were given by the Supreme Court in its order dated 5.8.1986. The directions of the Supreme Court, noticed supra, not only provided the manner for the scrutiny to be held by the Committee of learned Judges of the High Court, but also the ratio and the manner of fixation of the seniority. The Supreme Court expressly directed that the seniority of such persons would be fixed with effect from the respective dates on which each of them would be regularly appointed having regard to the quota rules. The Supreme Court also directed that the temporary Judicial Magistrates, Second Class, would be regularised as per the directions, only in the cadre of Judicial Magistrates, second class and not as Judicial Magistrates, First Class or District Munsifs, even if they had been promoted as such. Of course, it was held that they would be entitled to be considered for promotion in accordance with the rules regulating promotions and would be entitled to compete for selection to the posts of District Munsifs. On 9.12.1986., the Supreme Court further directed that in respect of such of those who were found fit for regularisation but could not be regularised immediately for want of sufficient posts as per the quota due, necessary supernumerary posts be created for accommodating the Judicial Second Class Magistrates. The service association of the Appellants had been participating in all the proceedings and had been heard before the orders had been passed. While the Tamil Nadu Public Service Commission was considering the question of selection, pending regularisation of the Judicial Second Class Magistrates, some of the temporary Judicial Second Class Magistrates were not permitted to appear before the Public Service Commission for regular selection as District Munsifs, which led to the filing of certain writ petition in this Court and the Government thereupon took a decision that even the temporary Judicial Officers would be allowed to appear before the Tamil Nadu Public Service Commission for regular selection as District Munsifs, by relaxing the relevant rules governing regularisation which was under consideration at that time. It was in those circumstances that cases of such of the eligible Judicial Magistrates who had given their willingness for consideration for appointment as District Munsifs by transfer as well as candidates from all the eligible feeder categories, including the Judicial Magistrates awaiting regularisation or already recognised, were forwarded to the Tamil Nadu Public Service Commission and in consultation with the Public Service Commission, the High Court informed such candidates that they could be interviewed in connection with the selection of District Munsifs for recruitment by transfer and they may present themselves for interview. It was not a direction given by the High Court to the appellants to appear, but an indulgence shown that in the event they wanted to appear for the interview for participating in the process of selection of District Munsifs, they could also appear. It is in this manner that all the appellants appeared before the Tamil Nadu Public Service Commission along with other eligible candidates and out of the 18 appellants before us, as many as 11 even got selected and had their ranks assigned to them along with the other selected candidates. 7 of the appellants failed to get selected. It therefore follows that the temporary Judicial Magistrates under orders of the Supreme Court and in terms of the selection by the screening Committee of the High Court, actually regularised only during 1988 as Judicial Second Class Magistrates in the Tamil Nadu State Magisterial service with liberty to appear before the Tamil Nadu Public Service Commission for selection for appointment by transfer as District Munsifs, in the Tamil Nadu State Judicial Service, pending implementation of the Scheme of integration which ultimately was brought into force and given statutory effect with effect from 6.10.1988. Such of the Judicial Magistrates who, for some reason or the other, did not either appear before the Tamil Nadu Public Service Commission, or after appearance, were not selected, came to be designated as District Munsifs-cum-Judicial Magistrates only on account of the upgradation and. re-designation of their posts with effect from 6.10.1988.
16. Rule 20 of the Tamil Nadu State Judicial Service Rules provides for relevant criteria and basis for determination of the seniority of the? members of the State Judicial Service. The said rule provides that the seniority of a person in the category of a service shall, unless he has been reduced to a lower rank as a punishment, be determined by the ranking assigned to him in the list drawn by the Tamil Nadu Public Service Commission or the appointing authority as the case may be, subject to the rule of reservation and that the date of commencement of his probation would be from the date on which he joined duty irrespective of his ranking in the list. The emphasis in the rule is upon the ranking assigned in the list prepared by the Tamil Nadu Public Service Commission and neither upon the date of appointment, nor upon the formal order of joining. There are, indeed, three stages involved in a person’s service, viz., (a) selection for appointment; (b) appointment; and (c) posting and actual joining in service. Rule 20 of the Rules provides for the ranking assigned by the selecting authority in the select list of candidates to be the criteria. Rule 20, as already noticed and which provides generally the principles with reference to which the inter se seniority of the members of the State Judicial Service has to be reckoned, contained certain deviations in the form of two provisos to meet certain special situations. The rule-making authority, obviously, in its wisdom, thought it fit and necessary to provide for certain principles to determine the inter se seniority of the members of the State Judicial Service, after the integration was implemented with effect from 6.10.1988 and thereby rationalise the method and norms governing fixation of seniority having regard to the peculiar situation arising out of the integration and to meet the exigency of service prevailing in the service. It was in this view of the matter that the third proviso to Rule 20 (Supra), which is the bone of contention, came to be introduced. The third proviso lays down the principle for fixing the inter se seniority of the Judicial Officers in the integrated service as on 6.10.1988. According to it, (a) all the regular Judicial Magistrates of the first Class shall be placed according to their existing seniority, below the order of seniority of the regular District Munsifs; (b) below them, all permanent Judicial Magistrates of the Second Class shall be placed according to their existing seniority; (c) below them, all Judicial Magistrates of the Second Class, whose services have been regularised before 31st January, 1976, shall be placed according to their existing seniority; and (d) all Judicial Second Class Magistrates, whose services have been regularised during the year 1988, shall be placed below those of the Judicial Second Class Magistrates, whose services were regularised prior to 31.1.1976 according to their existing seniority. The category referred to in principle (d), to which only the challenge has been confined by the appellants in the appeal before us, comprises within it the persons like the appellants who were regularised as Judicial Second Class Magistrates pursuant to the approval by the screening and scrutiny Committee. It may be stated that such of those Magistrates who appeared before the Tamil Nadu Public Service Commission for selection for appointment as District Munsifs and got selected and appointed prior to 6.10.1988 as District Munsifs in the Tamil Nadu State Judicial Service will have their seniority determined as per the ranking assigned by the Tamil Nadu Public Service Commission and as regards District Munsifs as on 6.10.1988. It is only those Judicial Second Class Magistrates who either did not undergo such selection or underwent such selection process, but were not selected on consideration of merit and became members of the integrated service only on being upgraded and re-designated as District Munsif-cum-Judicial Magistrates who will fall within the category of persons governed by principle (d), We are informed at the Bar that though all the 18 appellants who became regularised as Judicial Second Class Magistrates during the year 1988, appeared for selection to the post of District Munsif in the then existing Tamil Nadu State Judicial Service, only appellants 2,3,4,7,8, 9, 11, 12, 14, 17 and 18 got selected as District Munsifs and were appointed as such prior to 6.10.1988 while the others could be designated as District Munsif-cum-Judicial Magistrates only on the basis of the integration with effect from 6.10.1988, irrespective of the positions they held as on the said-date. Thus, it is the category (d) envisaged in the impugned proviso which has its direct impact on such of those Judicial Second Class Magistrates who became regularised as such during the year 1988 and either did not appear before the Tamil Nadu Public Service Commission for selection as District Munsifs or appeared and could not be selected and become District Munsif-cum-Judicial Magistrates solely on account of the implementation of the policy of integration with effect from 6.10.1988. As against them, the position of the respondents to this appeal is that apart from respondents 1 and 2 who were already on record, three respondents came to be included on their request as party respondents 3 to 5 to the appeal. On the said respondents, who were so impleaded, the third respondent is a member of the Bar who was appointed and was working as Assistant Public Prosecutor-Grade I and who later appeared for selection through the Tamil Nadu Public Service Commission against the substantive vacancy to the post of District Munsif in the year 1988 and got selected and was appointed as such. The fourth respondent, who was a practising member of the Bar in the mofussil and on being selected directly to the post of District Munsif through the Tamil Nadu Public Service Commission, got appointed as such in the year 1988. The fifth respondent, who was working as Judicial Second Class Magistrate at Salem, was selected through the Tamil Nadu Public Service Commission for appointment as District Munsif in the year 1988. He is one among those category of appellants, whose services were regularised as Judicial Second Class Magistrates during the year 1988 and who appeared before the Tamil Nadu Public Service Commission and got selected as District Munsif prior to 6.10.1988.
17. It would also not be out of place to note here that the State Government, in its counter filed before us, stated that the temporary services would be considered and dealt with and orders would be passed under Rule 11(4) of the Tamil Nadu State Judicial Service Rules.
18. Coming now to the decisions cited by the learned Counsel for the appellants in support of the submission that the temporary services rendered by the appellants as District Munsifs should be taken into consideration while fixing the inter se seniority of the members of the integrated service and the direct recruits cannot claim any preferential treatment over the promotee’s already holding the post even if the quota reserved for the direct recruits had not been exhausted before the promotees were appointed, in other words implying that the seniority should be determined on the basis of length of service in that particular category alone irrespective of the manner in which they came to join the service, nor should the non-selection of some of the appellants by the Tamil Nadu Public Service Commission be put against them. The first judgment relied on in this behalf is the one reported in A. Janardhana v. Union of India, . Reliance was placed on paragraph 38 of the judgment in which the apex court held that a direct recruit, who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or non-statutory rules, should not be permitted by any principle of seniority to score a march over a promotee because that will be arbitrary and violative of Articles 14 and 16 of the Constitution of India. This opinion of the court was rendered in the context of excessive operation of the quota earmarked for direct recruits and promotees in considering the claims of promotees who were otherwise regularly, properly and validly promoted and appointed to service and, therefore, is of no assistance to the appellants. The second judgment that was relied upon is in Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra , wherein the Constitution Bench of the apex Court opined that if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will have to be counted. Once again, the apex court came to render the above opinion in the context of the claim of the promotees appointed in excess of the prescribed quota under the rules, though temporarily, after following the procedure prescribed for regular promotions including consultation with the Public Service Commission. That, therefore, has no application to the present case.
19. The third judgment on which reliance was placed is Narendar Chadha v. Union of India , wherein a Bench of two learned Judges of the apex court opined that even in respect of an irregular appointment where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation, it may be unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all. The decision turned on the peculiar facts of the case and once again was rendered in the context of over-utilisation of the quota ear-marked for various feeder categories, though after following the procedure prescribed for regular promotions. It is relevant to note that in the instant case, apart from the stipulations contained in the orders of temporary appointment as District Munsifs and Rule 11(3) of the Rules, the matter was sub jtidice from 1981 onwards and culminated in the order of the Supreme Court, referred to supra, and therecould be no comparison of the same to the case under consideration before us.
20. The decision in Delhi W.S. and Section Disposal Committee v. R.K. Kashyap and Union of India v. Ansusekhar Guin A.I.R. 1989 S.C. 377, were next relied upon. The first of the cases was the one which concerned the regularisation of service by the Departmental Promotion Committee or the Public Service Commission of ad hoc appointments and of taking into account such regularised service in the matter of fixing seniority. Their Lordships specifically laid down that if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy and the question of taking into account of such service will be subject to the said specific provisions in the Rules or executive orders containing the principles of seniority. The second of the cases referred to lays down that where the mode of determining the inter se seniority was not prescribed by service rules, the seniority was not prescribed by service rules, the seniority can be fixed by counting the continuous length of service. Except laying down certain general principles of law, the decision rendered therein has no direct relevance to the case under consirteration before us.
21. The decision in K.S. Vora v. State of Gujarat A.I.R. 1987 S.C. 2348, only laid down that rules of eniority are matters for the employer to frame and even though prospects of promotion in sic were likely to be prejudiced by introduction f a new set of rules to regulate seniority, if the sic were made bona fide and to meet exigencies of the service, no entertainable grievance could sic made and we do not see how any assistance can sic derived from that judgment in the instant case, “he decision in A.K. Jain v. Union of India 1988 S.C.C. (L. & S.) 222, is a case where the Supreme Court observed that the petitioners before that court having failed to get regularised in accorlance with the prescribed rules and regulations or regular appointments, their services had to be leterminated and as such there had been sic any arbitrary nor illegal action on the part if the respondents, nor any violation of the undamental rights guaranteed under Articles 14 and 6 in passing the order. However, having regard sic the peculiar facts and circumstances of the case, sic directions were given in the matter of sic of those who were sought to be sic by regular selected candidates. This case, thus, decided the question of law against the petitioners in that case, but gave certain directions sic avoid displacement from service of persons who had worked for a considerable length of sic and rendered jobless. The said decision cannot be said to lay down any proposition which may lend support to the claim of the appellants in he present case. The decision of a Division Bench of this Court reported in Alagarsamy v. director of School Education (1988) 2 M.L.J. 60, was one which turned upon the peculiar facts and circumstances of the case wherein by drawing sic artificial and arbitrary classification, based sic a particular date which had no bearing to the object in issue was found to result in immediate discrimination violative of Articles 14 and 16 of the Constitution of India. The case is clearly distinguishable.
22. A careful analysis of the aforesaid decisions sic upon by the appellants go to show that the sic laid down therein has neither any relevance sic application to the context or facts or situation under consideration before us in this appeal. Most of the Judgments, referred to above, were rendered in the context of mere overutilisation of the prescribed quota in favour of the promo tees who were regularly promoted after observing the procedure prescribed therefor under the rules. The Judgments, however, indisputably declare the fundamental principles of law, recognising the power and authority of the employer to frame rules of seniority as well as the position that if such rules regulating seniority are framed to meet the exigency of service, no entertainable grievance can be made on the same and that the seniority has to be determined subject to such rules only and the general principle of length of service in a particular grade is subject to the specific rules or orders, if any, to the contrary. In the instant case there are specific rules on the subject, i.e., Rule 20 and the third proviso introduced thereto. The Principles underlying the third proviso, in our opinion, was necessitated and designed to meet the extraordinary circumstances prevailing in the particular service in question and in the context of integration of the Magisterial service and the State Judicial Service, arising out of the exigencies of the situation. We, therefore, do not find any unreasonableness or arbitrariness in the formula enshrined in the third proviso to Rule 20. As a matter of fact, in the absence of such a stipulation, it would have led to an anomalous situation of the members belonging to different streams altogether being treated at par for purposes of inter se seniority, which has always been frowned upon by judicial pronouncements to which we shall make a reference hereinafter. The principles of seniority enshrined in the third proviso can neither be said to be unreasonable, nor irrelevant or arbitrary. We shall now take up for our consideration the judgments relied upon by the learned Counsel for the respondents.
23. Learned Counsel for the respondents relied upon a decision reported in Masood Akthar Khan v. State of Madhya Pradesh , wherein the apex court held that if the initial appointment is not made according to the rules, subsequent regularisation of service of an employee does not entitle him to the benefit of intervening service for seniority. In arriving at the said conclusion, their Lordships have placed reliance upon the decision of the Constitution Bench of that Court reported in Direct Recruit Class 11 Engineering Officers’ Association v. State of Maharashtra A.I.R. 1990 S.C. 1667, D.N. Agrawal v. State of M.P. and Union of India v. Ansusekhar Guin .
24. Besides, there are some other decisions which, v in our opinion, are not only relevant to resolve the controversy under examination but also fortify the view that we have expressed in some earlier paragraphs of this judgment. We shall briefly refer to them.
25. In State of U.P. v. Rafiquddin , it has been held that seniority in the service has to be determined on the basis of the year of the competitive examination irrespective of the date of appointment and the inter se seniority of candidates recruited to the service has to be determined on the basis of their ranking in the merit list. In M. Nirmala v. State of A.P. , it has been held as follows:
In our view, the claim of the petitioner is untenable. The petitioners were not appointed on a regular basis, but by way of stop-gap arrangements to be replaced by the appointment of qualified candidates. The petitioners failed to avail themselves of the opportunity of qualifying themselves for regular appointments by appearing at the special qualifying test held in 1976, although they were eligible for the test. The Government Order being G.O.Ms. No. 647, dated September 14, 1979, on which much reliance has been placed by Mr.Potti, learned Counsel appearing on behalf of the petitioners, does not support their claim of seniority from the respective dates of their appointments after April, 1974. Under the said G.O.Ms. No. 647, the services of the employees belonging to Group IV services would be regularised from the date of last regular appointment in that category or from the date of temporary appointment, whichever is later and subject to the decision of the Andhra Pradesh Administrative Tribunal. The Andhra Pradesh Administrative Tribunal, as stated already, held that the appointments of the Public Service Commission candidates are, therefore, the last regular appointments as contemplated by G.O.Ms. No. 647. In view of the said decision of the Andhra Pradesh Administrative Tribunal and the directions contained in G.O.Ms. No. 647, the services of the petitioners will be regularised subsequent to the respective dates of appointments of the respondents Nos.18 to 108 or the other employees in Group IV services, who were appointed pursuant to their being successful in the special qualifying test held by the Public Service Commission in 1976.
26. In Shitala Prasad v. State of U.P , the apex Court, in determining the governing principles for determining inter se seniority, held in paragraph 9 of the judgment thus:
An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularised by the appointing authority as A result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularisa-tion, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the court will not overturn the determination unless it would be unfair not to do so. In any view of the matter the appellant who did not belong to the stream of regularly (he was allowed to teach only in an irregular and unauthorized manner) and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.
27. In a decision reported in P. Mariyappan v. The Government of Tamil Nadu 1985 Writ L.R. 349, a Division Bench of this Court had an occasion to consider the question of fixation ofinter se seniority among the regularly appointed candidates and candidates originally temporarily appointed under Rule 39(a) of the General Rules whose appointments were subsequently regularised with retrospective effect so as to affect adversely the rights of seniority of those directly recruited and regularly appointed candidates. The Division Bench in the said decision, held as follows:
Undoubtedly rules under Article 309 of the Constitution of India can be made with retrospective effect. Making the rules retrospective in operation and making appointments in accordance with such rules are two different things. The power to make rules is a legislative power and, therefore, can be exercised retrospectively. When in the light of such rules some appointments are being made with retrospective effect, it is purely an administrative act, if it prejudicially affects vested rights of other Government employees, then to that extent such administrative act will become unfair and arbitrary. It is this that has happened in the present case. When the rules were given retrospective effect and a proviso was introduced to the effect that the qualification of possessing a degree with Statistics, Mathematics and Economics shall not be insisted upon in the case of Supervisors and Junior Assistants who entered service in the Department of Statistics prior to 18.11.1968, that did not have the effect of enabling the State Government to make appointments retrospectively to the prejudice of those who were already appointed in clear vacancies through the Public Service Commission. The effect of the amended rules and the introduction of the proviso was that those of the Junior Assistants and Supervisors who were promoted temporarily by the order dated 4th September, 1971, and who were not qualified originally merely became qualified for being considered for appointment. Becoming qualified for being considered for appointment cannot be equated with getting a right to be appointed retrospectively with effect from the date on which all temporary appointments were made. 77 of the vacancies having been filled by direct recruitment and these 77 vacancies being the first available vacancies, any appointment made even in accordance with the new rule would have effect only after 1.2.1974. The Director of Statistics was, therefore, clearly not entitled to give seniority to the persons whose appointments have been regularised so as to adversely affect the vested rights of the directly recruited persons who hold the posts in a substantive capacity. They could not have, therefore, become junior to those whose appointments were regularised merely because by way of temporary arrangements they were appointed on 4th September, 1971, under Rule 39(a) of the General Rules. We are, therefore, of the considered view that the Director of Statistics was clearly in error in making the seniority list relying upon the amended Rules dated 14th October, 1978, so as to give the originally temporary appointed persons seniority over the directly recruited persons. Accordingly to this limited extent we quash the seniority list and direct the State Government not to disturb seniority of the appellant and the other persons who have been appointed directly and the benefits of regularisation would be given to those persons only after the date of appointment of the directly recruited Assistant Statistical Investigators. The appeal is therefore allowed.
28. A Division Bench of this Court in yet another decision reported in Secretary to Government of TamibNadu v. Sriramachandran, 1987 Writ L.R. 222, has held that the seniority of a person has to be determined by the rank obtained by him in the list of approved candidates drawn by the Tamil Nadu Public Service Commission or other appointing authority and the Government has to accept the ranking given by the TamilNadu Public Service Commission and cannot interfere with the same. It has been also held therein that the appointing authority cannot pass an administrative order and nullify the ranking so done by retrospectively re-designating a Supervisor as Junior Engineer so as to confer upon him a higher rank. Once again this question came up for consideration before a Division Bench of this Court, the decision of which has been reported in G. Ramachandran v. Government of Tamil Nadu 1986 Writ L.R. 183, wherein the Division Bench held that an order of regularisation of a temporary appointment cannot affect the seniority or promotions of candidates made in accordance with the recruitment rules and that an administrative order purporting to regularise the temporary appointment on an earlier day cannot give him the benefit of appointment and seniority from such earlier date.
29. On a review of the judgments, referred to above, coupled with consideration of the provisions of the various rules (supra) and our discussion, the conclusion becomes irresistible that the third proviso to Rule 20 only declares what should otherwise be an obvious and inevitable consequence of the various cadres and categories existing or forming the service immediately prior to and on and after the integration effected with effect from 6.10.1988. Though the grievance of the appellants is not justified but even assuming, without accepting that hardship would be caused to the appellants, it cannot be overlooked that in service jurisprudence questions of rationalisation and integration are of a complicated administrative nature where, in doing broad and substantial justice, some may have to suffer, but that, by no stretch of imagination, can provide justification to the Courts for interference in exercise of the jurisdiction under Article 226 of the Constitution of India. So long as there is absence of arbitrariness and irrationality, “the Court has to adopt a hands-off policy”. To quote the counsel of the apex Court:
The ‘B’ wing members complain that they have reallysuffered by being denied what issue to them on account of length of service all these years after 1970. The boot is in the other teg, they lament. Probably, the injustice of the past, when suddenly set right by the equity of the present, puts on a molested mien and the eneficiaries of the status quo cry for help. against injustice to them. The law, as an instrument of social justice, takes a longer look to neutralize the sins of history. Be that as it may, judicial power cannot rush in where even administrative feet fear to tread.
Vide: Tamil Nadu Educational Department Ministerialand General Sub-services Association v. State of Tamil Nadu . The fact that there could be an alternative principle or policy to meet a particular situation has been held to be a matter for the State and not for the Court. Once we have come to the conclusion that the third proviso to Rule 20 of the Rules is reasonable, rational and just, the plea of alleged violation of Articles 14 and 16 of the Constitution of India has to necessarily fail.
30. In the instant case, in devising a formula, the rule-making authority, in bona fide exercise of its powers, thought fit to take into account various peculiar situations prevailing in the service, viz., (a) the nature of appointment of both classes of Judicial Magistrates (originally, Sub Magistrates and Additional First Class Magistrates, subsequently designated as Judicial Magistrates, of Second Class as well as First Class); (b) the nature of promotions given to them to meet certain situations and to act temporarily as members of the State Judicial Service; (c) the orders of this Court and of the Supreme Court regarding the manner and the stage or posts in which alone such appointees could be regularised; (d) the need for their getting selected through the regular process of selection prescribed by the rules governing the State Judicial Service; and (e) the actual participation and availing of such an opportunity by some of the temporary appointees in view of the indulgence of the Supreme Court and taking their chance for being selected by competing with others in the process of selection by the Tamil Nadu Public Service Commission and the principles underlying the upgradation and re-designation of the posts of Magistrates in the Tamil Nadu State Magisterial Service into that of District Munsif-cum-Judicial Magistrates in the Tamil Nadu State Judicial Service on and with effect from 6.10.1988. It was to meet these special and peculiar circumstances that the third proviso to Rule 20 of the Rules was introduced and that amendment, in view of what we have said earlier, can neither be said to be unreasonable, arbitrary, irrational, discriminatory nor even based upon irrelevant or extraneous considerations. In our opinion the impugned proviso is not only rational and reasonable but has been prescribed after proper application of mind while taking into account the peculiar situations and exigencies of service in the matter of determining the inter se seniority of members and the circumstances arising out of the integrated class or category in the Tamil Nadu State Judicial Service on and with effect from 6.10.1988. No hostile or invidious discrimination flows from the implementation of the principles enshrined in the third proviso to Rule 20 and the plea of the alleged violation of Articles 14 and 16 of the Constitution of India is, therefore, not only bereft of substance and merit but is meaningless, too. Having regard to the orders of the Supreme Court on the subject and the regularisation of the services of the appellants and persons similarly placed in terms of those directions as Judicial Second Class Magistrates only, availing of the opportunity open to them by offering themselves as candidates and participating in the regular selection process for appointment by transfer as District Munsifs according to the relevant rules, the appellants are even otherwise, both in law and on facts, precluded from questioning the fixation of seniority of those who were regularly selected by the Tamil Nadu Public Service Commission. There is neither any logic nor any sense in the submission that such of the appellants who were selected by the Tamil Nadu Public Service Commission should rank senior to the others directly recruited. That the Courts will not interfere with the ranking given by the Tamil Nadu Public Service Commission in the select list and that the seniority of theselectees would be governed by the rankinggiven by the Public Service Commission is too well established a principle and the argument, as noticed hereinabove, completely ignores that established principle. Again, the appellants could not retrace their steps in the face of the directions of the apex Court and contend to the contra that their earlier ad hoc or temporary officiation should also be taken into account for the purpose of reckoning the inter se seniority. The argument sought to be advanced on the basis of the averments contained in the counter affidavit filed by the State Government that in such of the cases where the temporarily appointed District Munsifs came to be selected by the Tamil Nadu Public Service Commission and were subsequently regularised, their cases would be considered under Rule 11(4) for regularisation of their services by relaxation of rules does not advance the case of the appellants in so far as the fixation of inter se seniority is concerned. Regularisation under Rule 11(4) has a limited object, scope and purpose and it cannot confer upon the appellants or entitle them to any higher rights when considered with the rights of other members of the service and that too, to the detriment and prejudice of the rights and claims of those other candidates selected and appointed to posts and services in accordance with the rules governing the service. The principle relating to the actual determination of inter se seniority is not a matter of unilateral concern of an individual or a group of individuals, ignoring the rights of others belonging to the said service. Both this Court as well as the apex Court, as already noticed, categorically laid down that persons regularly appointed in accordance with the rules and those appointed outside or in relaxation of certain rules belonged to different or distinct classes or streamsor categories and, therefore, there cannot be any comparison between them or justification or scope for fixing inter se seniority among them, treating them to be equals or as belonging to a single unit or class. The mere fact that their services may be regularised or even regularised in respect of some of them from such earlier dates of their temporary officiation under Rule 11(4) of the Rules is an irrelevant and extraneous consideration in so far as fixation of inter se seniority of the members of the service forming the integrated service is concerned. The inter se seniority shall have to be determined only by applying the principles contained in the third proviso to Rule 20 of the Rules which we have already held to be constitutionally valid, logically sound, reasonable and otherwise unassailable. Retrospective conferment of a benefit by an administrative order, it is now well settled, cannot be considered sufficient to. confer a benefit or right upon those persons in the matter of fixation of inter se seniority to the detriment of the other members of the service who, under relevant rules, have a secured and specified place and ranking of their own determined by the Tamil Nadu Public Service Commission, which alone would be the determinative factor in relation to the fixation of inter se seniority amongst the members constituting the service as a whole. Such an administrative act cannot affect the vested rights of other employees and if it does so, to that extent, the administrative act would be unfair and arbitrary.
31. Thus, in view of the aforesaid discussion and the failure of the submissions made on behalf of the appellants the inescapable conclusion is that the judgment of the learned single Judge does not warrant any interference whatsoever. The writ appeal consequently fails and is dismissed but, in the circumstances, there will be no order as to costs.