PETITIONER: BAIJ NATH SHARMA Vs. RESPONDENT: HON'BLE RAJASTHAN HIGH COURT AT JODHPUR AND ANOTHER DATE OF JUDGMENT: 02/09/1998 BENCH: A.S. ANAND, D.P. WADHWA ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
D.P.Wadhwa,J.
Leave granted.
The appellant, who was a member of the Rajasthan
Judicial Service (for short ‘RJS’), is aggrieved by the
judgment dated September 17 1997 of the Division Bench of
the Rajasthan High Court dismissing his writ petition (CWP
No. 3455/97), wherein he had prayed in effect that his case
for promotion to the Rajasthan Higher Judicial Service (for
short ‘RHJS’) be considered from the date when the posts in
the RHJS fell vacant.
By the time the appellant filed the writ petition he
had already superannuated on May 31, 1996. Prior to his
retirement, posts in the RHJS were available in the
promotional quota for promotion of the appellant. He had
earlier filed writ petition (CWP No. 1544/96) in the High
Court seeking his promotion. This earlier writ petition came
up for admission before the High Court on May 27, 1996 and
the following order was passed:-
“27.5.96: Hon’ble Mr. M.G. Mukherji
Actg. CJ. Hon’ble Mr. Bhagwati
Prasad J.
Issue notice returnable four weeks
after the summer holidays. Notice
be given ‘dasti’ to the learned
advocate.
We direct that even though the
writ petitioner retires on 31.5.96,
his case is to be considered
alongwith the other officers for
the purpose of promotion to the
Rajasthan Higher Judicial Service,
and in case such a promotion is
accorded to him nationally his case
would be sympathetically considered
with appropriate directions, as may
be deemed fit and proper.”
That writ petition was withdrawn by the appellant on
January 8, 1997. Liberty was, however, granted to him to
file a fresh writ petition if any occasion arose. The order
dismissing the writ petition as withdrawn is as under:-
“8.1.97: Hon’ble Mr. M.G. Mukherji CJ.
Hon’ble Mr. Bhagwati Prasad J.
The petitioner expresses desire to
withdraw the writ petition
application with liberty to file
representation in the
Administrative forum.
He is granted liberty to file fresh
writ application if occasion
arises.
The writ application dismissed as
withdrawn.”
Subsequent writ petition (CWP No. 3455/97) was
dismissed in limine with the following order which is now
impugned:-
“17.9.97:
HON’BLE MR. M.G. MUKHERJI, C.J.
HON’BLE MR. BHAGWATI PRASAD,J.
Mr. H.N. Calla for the petitioner.
We are of the opinion that the
present writ application is barred
by the principles of res judicata.
The representation as submitted by
the writ petitioner was considered
by the Full Court and the Full
Court in its Wisdom rejected the
same. It is further contended that
the Full Court did not pass a
speaking order on his
representation. We are constrained
to hold that the matter was
discussed in the Full Court and the
ultimate decision was communicated
to the writ petitioner. We do not
think that there is any force in
this writ application. Till such
time the petitioner retired none of
his juniors was considered for
promotion or was given promotion to
the Rajasthan Higher Judicial
Service. It may be a very sad state
of affairs that he was not
considered for promotion till he
retired but that does not make out
any case for interference.
The writ application stands
dismissed."
This order is being challenged by the appellant in this
appeal.
The appellant joined RJS on January 2, 1979. He was
confirmed in the post of Munsif-cum-Judicial magistrate by
order dated December 31, 1980. He was promoted as Civil
Judge (Senior Division)-cum-Additional Chief Judicial
Magistrate on February 13, 1992 and by order dated August
17, 1993 appellant was granted selection scale w.e.f.
August, 1992. He retired on May 31, 1996. After withdrawal
of his writ petition (CWP No. 1544/96) the appellant
represented on January 29, 1997 that his case for promotion
to RHJS be considered and he be given notional promotion in
view of the observations made on May 27, 1996 in writ
petition. This representation did not find favour with the
High Court and was rejected by resolution of the Full Court
dated July 3, 1997, which was communicated to the
appellant. This led the appellant to file the second writ
petition (CWP No. 3455/97), which as noted above, was
rejected on two grounds, namely, (1) it was barred by
principle of res judicata and (2) till the appellant retired
from service none of his juniors was considered for
promotion or even promoted to RHJS.
We do not think that High Court was right in holding
that the second writ petition (CWP No. 3455/97) was barred
by principle of res judicata. Appellant made his
representations on the basis of observations made by the
High Court on May 27, 1996 in his earlier writ petition.
When this writ petition came up for hearing again, the
appellant had retired. He, therefore, withdrew the writ
petition. Liberty was granted to him to file another writ
petition, “if occasion arises”. This certainly does not mean
that fresh writ petition could be filed only if fresh cause
of action arose. In any case fresh cause of action did arise
when representations of the appellant were rejected by the
High Court and his case for promotion to RHJS was not
considered for giving him notional promotion. However, our
holding that second writ petition was not barred by
principle of res judicata does not help the appellant as his
writ petition was also dismissed on merit. There is some
controversy if grant of selection grade to the appellant
would give him seniority over those officers who though
senior in the seniority list of RJS were not granted
selection grade. Admittedly seniority list was never under
challenge. This controversy is, however, not material for
our purposes inasmuch as it is not disputed that on the date
when the appellant retired from service, posts in the
promotional quota were available and the appellant could
have been considered for promotion to RHJS in that quota. He
was not so considered because the High Court had taken a
decision by resolution of the Full Court dated February 9,
1996 not to make further promotions from RJS till
recruitment from the bar to RHJS was made. The appellant in
his first writ petition had challenged the resolution of the
Full Court not to make promotions to the cadre of RHJS till
appointments from the bar were made. This resolution of the
Full Court he certainly could not challenge in the second
writ petition. High Court in its counter affidavit has given
justification as to why it took decision not to make any
promotion to the cadre of RHJS though at the relevant time
21 posts of Additional District and Sessions Judges were
Vacant to be filled in by promotion and direct recruitment
in the ratio of 3:1 as per Rule 9(2) of the Rajasthan Higher
Judicial Service Rules, 1969. This is how the High Court
justified its decision:-
“The Full Court in its meeting held
on 9.2.96 resolved that no
promotion shall be made till
direct recruitment is made. The
decision to this effect was taken
by Full Court keeping in view the
inequitable operation of quota 3:1
which has to be maintained between
promotees and direct recruits to
the R.H.J.S. which was not being
done. While vacancy in the direct
recruits quota were being
determined on the basis of
sanctioned strength of the cadre,
the promotional quota strength of
the cadre, the promotional quota
was being operated on the basis of
the recruitment. There were 89
sanctioned posts but factually more
than 200 officers were working on
the R.H.J.S. posts. The posts in
excess of 89 were being manned by
temporary/ ad hoc promotees from
R.H.J.S. only and therefore
factually the proportion of direct
recruits has gone down abysmall.
The embargo on promotions was
therefore, imposed by the Full
Court to stop further inequality
and imbalance in the proportions
between the two quotas which
created problems in determining
interse seniority in R.H.J.S. on
the basis of Rota-quota rule.
Therefore, the Full Court took the
decision not to promote the
officers from R.J.S. cadre to
R.H.J.S. cadre till the direct
recruitment is made keeping in view
the inequitable operation of Rota-
quota rule. The resolution passed
by the Full Court in its meeting
held on 9.2.96 did not require any
interference of his excellency the
Governor. Therefore it is wrong to
contend that the Full Court has no
wrong to contend that the Full
Court has no authority to stop the
promotions by way of recruitment to
the R.H.J.S. to maintain the
proportional representation and
interse seniority between direct
recruits and promotees.”
The appellant could certainly have a grievance if any
of his juniors had been given promotion from a date prior to
his superannuation. It is not the case there. From the
promotional quota, four promotions were made only on
December 30, 1996 i.e., after the appellant had retired.
Those promoted were given promotions from the dates the
orders of their promotions were issued and not from the
dates the posts had fallen vacant. It is also the contention
of the High Court that these four officers, who were
promoted to RHJS, were senior to the appellant as per the
seniority list. The question which falls for consideration
is very narrow and that is if under the Rules applicable to
the appellant promotion was to be given to him from the date
the post fell vacant or from the date when order for
promotion is made. We have not been shown any rule which
could help the appellant. No officer in RJS has been
promoted to RHJS prior to May 31, 1996 who is junior to the
appellant. Further decision by Rajasthan High Court has been
taken to restore the imbalance between the direct recruits
and the promotees which, of course, as noted above, is
beyond challenge.
In union of India and others vs. K.K.Vadera and others
(AIR 1990 SC 442) this Court with reference to Defence
Research and Development Service Rules, 1970, held that
promotion would be effective from the date of the order and
not from the date when promotional posts were created. Rule
8 of those Rules did not specify any date from which the
promotion would be effective. This Court said as under:-
“There is no statutory provision
that the promotion to the post of
Scientist ‘B’ should take effect
from 1st July of the year that
rightly or wrongly, for some reason
or other, the promotions were
granted from 1st July, but we do
not find any justifying Tribunal
that the promotions of the should
be with effect from the date of the
creation of these promotional
posts. We do not know of any law or
nay rule under which a promotion is
to be effective from the date of
creation of the promotional post.
After a post falls vacant for any
reason whatsoever, a promotion to
that post should be from the date
the promotion is granted and not
from the date on which such post
falls vacant. In created,
promotions to those posts can be
granted only after the Assessment
Board has met and made its
recommendations for promotions
being granted. If on the contrary,
promotions are directed to become
effective from the date of the
creation of additional posts, then
it would have the effect of giving
promotions even before the
Assessment Board has met and
assessed the suitability of the
candidates for promotion. In the
circumstances, it is difficult to
sustain the judgment of the
Tribunal.
It is regrettable because of the inaction on the part
of the High Court that recruitment from bar could not be
made in time which created an imbalance in the service and
ultimately it were the appellant and officers similarly
placed who suffered. After having put in long years of
service it is the seniority and promotion which an officer
looks forward to. He expects he is given due promotion in
time. Non promotion may be an incidence of any service. But
here the appellant has been deprived of his promotion
without any fault of his. High Court said that it might be
sad state of affairs that the name of the appellant was not
considered for promotion till he retired. High Court may
feel anguish but it gives no comfort to the appellant. At
least for future such an unfortunate thing should not happen
to any other officer similarly situated. This malaise which
abysmally afflicts any service when there is recruitment
from different sources when there is recruitment from
different sources crops up in the one form or the other with
great disadvantage of one or the other. But then service is
not constituted merely for the benefit of the officers in
the service but with a certain purpose in view and in the
present case for dispensing justice to the public at large.
it is not at all advisable to keep any post in judiciary
vacant for days when the courts are burdened with arrears
and litigants are the ones who suffer. We expect the High
Courts to be vigilant and to fill up the posts in direct
quota in time and if the bar quota cannot be filled for any
reason fro no fault of the promotee officers their case for
promotion should not be kept pending till some of them even
superannuate. When the process for recruitment from Bar
begins and it is expected that posts for direct quota will
be filled up soon, during the intervening period the
officers in the subordinate service can be given ad hoc
promotions without their right to claim seniority over
direct recruits, who may join later. Functioning of the
courts must not stop.
With these observations we would dismiss the appeal and
leave the parties to bear their won costs.
