ORDER
1. Heard all the parties and with their consent this writ petition is being disposed off at the stage of admission. By order dated 12.12.2002 the Hon’ble Patna High Court through its Registrar General (Respondent No. 12) was deleted on the agreement of the parties that the same is not a necessary party in view of the statements made in paragraph 26 of the Counter Affidavit filed by the Jharkhand High Court to the effect that it is in possession of all the materials required for adjudication of this case.
2. The Petitioners (hereinafter referred to as the Direct Recruits) have filed this Writ Application for quashing the order dated 29.08.2002 (Annexure 7) issued by the Jharkhand High Court in its administrative side whereby and whereunder the Respondent Nos. 4 to 11 (hereinafter referred to as the Promotees) have been placed above the direct recruits in the seniority list.
3. The main ground taken is that these direct recruits were declared senior by the Patna High Court after hearing both the sides by its order dated 04.09.1996 (Annexure 3) and ever since then, the Petitioners all along continued to rank senior to the promotees. They have further stated that the direct recruits were also promoted to the post of Additional District Judges by the Jharkhand High Court prior to the promotees. Their further case is that the promotee Respondent Nos. 4, 5, 8, 9 and 11 have already filed a Writ Petition at Patna bearing No. CWJC No. 11620 of 1996 where the disputes relating to inter se seniority between the direct recruits and the promotees in subjudice and whatever Judgment is passed by that Court would be binding even upon the Jharkhand High Court in terms of Section 34(4) of the Bihar Reorganisation Act, 2001 (hereinafter referred to as the Reorganisation Act). The direct recruits have further submitted that the Jharkhand High Court has taken the impugned decision on 29.08.2002 by Annexure 7 without approval of the Central Government which is a mandatory requirement in terms of the proviso appended to Section 73 of the Reorganisation Act and consequently the same cannot be sustained in Law. It also has the effect of prempting the Judgment that might be passed by the Patna High Court in the aforementioned Writ Application.
4. The arguments to the effect that the matter is subjudice before another High Court shall not prempt this Court from hearing this matter. There is a specific statement made at paragraph 8 of the Counter Affidavit filed on behalf of the promotee Respondent Nos. 4 to 31 to the effect that they have filed application before the Patna High Court withdrawing themselves from the aforesaid Writ in view of the creation of a separate State of Jharkhand. Moreover, admittedly under the provisional cadre bifurcation, the direct recruits and the promotees have been allocated the State of Jharkhand and therefore, it cannot be deemed that the Patna High Court shall continue to retain its jurisdiction either on the administrative side or on the judicial side to entertain matters in relation to officers serving and working within the territory of Jharkhand specially after such allocation as a result of the coming into force of the Reorganisation Act. Additionally, even if no order has been passed on the aforesaid petition filed by the promotees withdrawing themselves from the aforesaid Writ Petition at Patna High Court or the same comes to be rejected by the said Hon’ble Court, even then the Jharkhand High Court cannot be said to be stripped of its jurisdiction for the reasons stated herein. Moreover, at least the promotees have made their intentions clear of not pursuing the said Writ Petition on their behalf of Patna High Court. After coming into force of the Reorganisation Act and upon allocation of their services to this State, the Jharkhand High Court assumes all Constitutional and Legal powers with respect to Judicial Officers working under its supervision and control. This view further finds support upon a plain reading of Articles 233, 235 read with Article 214 of the Constitution of India. As per the provisions of Article 214, the High Court of Jharkhand has already been constituted by reason of Section 25 as a totally separate and independent High Court for the State of Jharkhand. In that view of the matter, the argument of the Writ Petitioner to the effect that this High Court cannot hear the matter does not appeal to us and it is accordingly not accepted.
5. In view of the reasoning given above, the order dated 29.08.2002, cannot be termed to be a review of the order dated 04.09.1996 passed by the Patna High Court. For the same reason, the order passed in the administrative side by this Court on 29.08.2002 (Annexure 7) must, therefore, be always deemed to be an independent order in exercise of the powers relating to appointment, posting and promotion of District Judges and Subordinate Officers of the Subordinate Judiciary working in the State of Jharkhand. The Jharkhand High Court in its full Court meeting after duly considering the materials on record and after giving full opportunity of hearing to the direct recruits as well as the promotees took the impugned decision. The Jharkhand High Court constituted a Committee of two Hon’ble Judges to look into the matter relating to the representations filed by some promotee officers for declaring them senior to the direct recruits. The said Committee after considering all the aspects of the matter recommended for declaring the promotes senior to the Petitioners. However, by order of the Patna High Court dated 04.09.1996, it was decided that the 32 directly recruited Additional District and Sessions Judges would be treated senior to the 23 appointment by promotion of the same date (i.e. the Respondents). In that view of the matter the said Committee was of the view that it would be desirable to hear the direct recruits of 30th April, 1991 before alteration and finalisation of the seniority. Accordingly, a fresh Committee of two other Judges was constituted and after giving personal hearing to the direct recruits as will as promotee officers, and examining the matter threadbare, the said Committee recommended that the promotee officers should rank senior to the direct recruits. The Jharkhand High Court in its full Court meeting after considering the entire matter accepted the Report of the Committee and took the impugned decision.
6. The other argument of Mr. Sharan that the seniority list of the Patna High Court had already attained finality and the review is barred by laches, cannot be accepted in view of the fact that the promotees challenged that order by filing the aforesaid Writ Petition in Patna High Court in the year 1996 itself. After reorganization of the State and upon allocation of cadre provisionally, some of the promotees made representation before the Jharkhand High Court as aforesaid.
7. Mr. Sharan also argued that in view of Section 34(4) of the Reorganisation Act, the Patna High Court shall have and the Jharkhand High Court shall not have jurisdiction to entertain, hear or dispose off application for review and other proceedings. Therefore he submitted that the Patna High Court retains jurisdiction by virtue of Sub Section (3) and the order of the Patna High Court shall have effect as an order made by the Jharkhand High Court. After carefully perusing the other relevant Sections of part IV of the Reorganisaton Act, we are of the view the Section 34 of the Reorganisation Act will be attracted in relation to the Judicial proceeding and not with regard to the orders passed on the administrative side. Section 36 of the Reorganisation Act makes it clear that proceedings shall be deemed to be pending in a Court until that Court has disposed off all issues between the parties. Section 37 of the Reorganisation Act clearly provides that nothing in Part IV shall affect the application to the High Court of Jharkhand any provisions of Constitution. Therefore, it is clear that Section 34 of Reorganisation Act is meant for the judicial proceedings only. As already noticed above, the Jharkhand High Court was competent to take an independent decision after the services of direct recruits and the promotees were allocated to the State of Jharkhand.
8. No doubt the Jharkhand High Court acted pursuant to the aforesaid decision of the Patna High Court which existed prior to the impugned decision. But by that itself, the argument that the direct recruits have acquired an accrued right, cannot be accepted.
9. The argument that the impugned order of the Jharkhand High Court amounts to varying the conditions of service applicable immediately before the appointed day without the previous approval of the Central Government is also not acceptable to us in view of the fact that the Jharkhand High Court has only decided a dispute with regard to interse seniority between the direct recruits and the promotees in this case and has neither framed any fresh Rules nor varied any conditions of service. Moreover, the said Section 73 of the Reorganisation Act cannot be construed in such a manner that it will amount to frustrating the Constitutional provisions referred to above, i.e. Articles 233, 235 read with Article 214 of the Constitution of India.
10. It was submitted on behalf of the direct recruits that the impugned order of Jharkhand High Court is contrary to the judicial pronouncements of the Patna High Court in the cases reported in AIR 1989 Pat 276 (K.P. Verma v. The State of Bihar) and 1992 (1) PLJR 547 (Madan Mohan Slngh v. The State of Bihar).
11. From 1979, there was no appointment of direct recruits and therefore, in K.P. Verma’s case (supra), the Patna High Court, while holding the Rules to be constitutionally valid, directed the State Government to make the appointments from the quota of direct recruits. Pursuant to the said Judgment, the State Government appointed 32 officers from the selected lest of direct recruits. Some of the candidates from serial number 33 onwards namely Madan Mohan Singh and others approached the Patna High Court and claimed their appointments on the ground that the cadre will include the temporary sanctioned post also. The Patna High Court in the case of Madan Mohan Singh (supra) held that the cadre will include permanent and temporary sanctioned posts and therefore, directed the State Government to appoint the said Petitioners of that case. The State Government challenged the said decision before the Hon’ble Supreme Court. The Supreme Court in its Judgment reported in 1994 (1) PLJR 82 (SC) decided that fresh appointments should be made by fresh advertisements and not on the said selection list from which the said 32 candidates were appointed. The Supreme Court did not agree with the contention of the said candidates that the direct recruits should have their share of the quota in respect of temporary vacancies also as the temporary vacancies arose subsequently and in view of the fact that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up other vacancies.
12. We have carefully gone through the aforesaid judgments rendered in the case of K.P. Verma and Madan Mohan Singh (supra) and we do not find that these cases support the contention of the direct recruits regarding following of Quota Rule, in the facts and circumstances of these cases. It is equally misconceived to say that the appointment of promotees being in excess of quota cannot confer seniority. The relevant Rules applicable in relation to Judicial Officers is known as The Bihar Superior Judicial Service Rules, 1951 (hereinafter referred to as the Rules). Rule 6 of the said Rules provides interalia that out of the posts in the cadre of service, two-thirds shall be filled up by promotion and one-third by direct recruitment. The proviso to Rule 6 clearly stipulates that the State Government may in consultation with the High Court deviate from the said proportion in either direction. The Rules having already been held to be Constitutionally valid, the argument that the appointment of the promotees was in excess of the quota cannot therefore be accepted. The Rule is not inflexible. It can be deviated as per the Rules stated above. Moreover, it is held that Rule 6 is inflexible, it may lead to serious consequences and therefore, the framers of the Rule rightly made the Rule flexible.
13. It was argued on behalf of the direct recruits that their appointments came into effect immediately on the promulgation of the Notification on 30th April, 1991 whereas the promotion of the promotees which was also made by Notification dated 30th April, 1991 was contingent and dependent upon their giving an undertaking to the effect that the said promotion will abide by the decision of CWJC 945 of 1991 i.e. Madan Mohan Singh’s case. It is further argued that the promotees took charge after giving such undertaking and on subsequent dates and therefore they are juniors to the direct recruits. This argument is wholly misconceived in as much as firstly the said condition was incorporated in terms of the interim order dated 25.04.1991 passed in the said case of Madan Mohan Singh and secondly, it cannot be expected that the promotees will immediately rush and join their respective promoted posts unless other procedural requirements are complied with including clearance from the respective authorities. They had to wait till the movement orders were issued by the Patna High Court and it was not expected of them that they would irresponsibly relinquish their posts which they were holding and the promoted posts leaving their preceding assignments in peril.
14. The other argument to the effect that by Annexure 1, the appointees became Additional District Judges with instantaneous effect and that the promotees became such Judges on completion of formalities mentioned in the Notification and would therefore, rank junior, is also not acceptable. In this context, the provisions of Rule 16 of the said Rule are worth taking note of. Rule 16 (e) clearly stipulates that the seniority of direct recruits vis-a-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 the posts outside the cadre on identical time scale of pay and of equal status and responsibility or in the posts of high scale of pay and of higher responsibility in or* outside the cadre. However, the proviso appended to the aforesaid Rules reads thus :–“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.”
15. Thus, the entire contention of the Petitioners in the manner stated above becomes wholly irrelevant in face of the proviso appended to Rule 16 (e).
16. To crown it all Rule 15 of the said Rules makes it mandatory upon a direct recruit to be on probation for a period of one year and creates an embargo that he shall not be confirmed unless found suitable. Rule 15 (2) is specific on the point that promoted officers appointed against substantive vacancies in the cadre shall forthwith be confirmed in service. Thus, the Petitioners being direct recruits were to wait for one year for confirmation as Additional District Judges whereas the Respondents who were promotes were automatically confirmed from the date of issuance of the Notification of the promotion. ‘Ere at this stage, the language of Annexure 2 (i.e. the Notification of promotion of the Respondents) assumes all the more significance because the language used therein clearly refers to the fact that by the notification promotions are being given (….. Apar Jila ewam Satra Nyayadhish ki koti mey pronatti detey huey…… Padasthapit kiya jata hai). The language used in Annexure 1 (i.e. the Notification of Appointment of the direct recruits) indicates that their recognition of the status of Additional District Judges would be from the date of assumption of charge (Padbhar Grahan Karne Ki Tithi Se). Moreover, as per Rule 15 (1) (a), a probationary cannot be allowed to rank senior over a confirmed officer whose confirmation as per Rule 15 (2) is “forthwith”.
17. It would also be worth pointing out that the condition incorporated in the Notification of promotion of the Respondents was not to frustrate the Provision of Rule 15 (2) but it was only to comply with the interim directions made in Madan Mohan Singh’s case. The Notifications of both the Petitioners and the Respondents were issued on 30.04.1991 when Madan Mohan Singh’s case was pending. That case was finally decided on 16.12.1991 but nothing was said or commented upon in respect of the appointments or promotions made pursuant to the interim order. This Court therefore, holds that notwithstanding the conditions incorporated in the Notifications of promotion of the promotees, the provisions of Rule 15 (2) shall override the said conditions. In other words the promotions will be deemed to have been confirmed forthwith on and from the date of issuance of the notification.
18. The said Notifications of the promotees dated 30th April, 1991 will also be deemed to have been issued by the Governor in due consultation with the High Court after taking into consideration all the existing Rules regarding appointment arid promotions including all other relevant criteria. In fact, another interesting facet of this case is that from a plain reading of both the notifications, it is absolutely clear that the Government was very much conscious that the promotees would be senior to the direct recruits and, therefore, they first issued Annexure 2 from Notifications Nos. 6127 to 6151 with regard to the promotee Respondents and thereafter the other Notification (Annexure 1) relating to direct recruits was issued and which began from Notification Nos 6152 and ended with 6183.
19. Much reliance has been placed on the Counter Affidavit filed on behalf of the Fatna High Court in CWJC No. 11620 of 1996 to the effect that though the decision of CWJC No. 945 of 1991 (Madan Mohan Slngh’s Case) went in favour of the direct recruits, harsh steps of cancellation of their promotions of the promotees was not taken but they were allowed to continue treating them as promote against subsequent quota of promotee. We do not understand as to how the decision of CWJC No. 945 of 1991 went in favour of direct recruits. Moreover, the said affidavit is beyond an extension of the order actually passed by the Standing Committee of the Patna High Court. In these circumstances, we are not inclined to give much credence to the arguments of the learned counsel for the Petitioners to the effect that harsh step of cancellation of promotion of the promotees was not taken and that they were allowed to continue against subsequent quota. We are also not impressed by the arguments of the learned counsel for the Petitioners which he made on the basis of arguments of the learned counsel for the Petitioners which he made on the basis of paragraph 9 of the Counter affidavit of the Patna High Court filed in CWJC No. 11620 of 1996 (Annexure 4) to the effect that the decision of Madan Mohan Singh’s case (CWJC No. 945 of 1991) had gone in favour of the direct recruits. We have already noticed that this case travelled up to the Hon’ble Supreme Court of India. Accordingly, it cannot be said that the promotions were either stop-gap or fortuitous, as was vehemently argued by the learned counsel for the Petitioners.
For all the reasons mentioned above, we are satisfied that the Writ Petition has no merit and the same is therefore dismissed accordingly. There will however be no order as to costs. The interim Order passed on 03.10.2002 is vacated.
