PETITIONER:
P.K. DIXIT AND ORS.
Vs.
RESPONDENT:
STATF OF U.P. & ORS.
DATE OF JUDGMENT08/10/1987
BENCH:
OZA, G.L. (J)
BENCH:
OZA, G.L. (J)
PATHAK, R.S. (CJ)
CITATION:
1988 AIR 260 1988 SCR (1) 398
1987 SCC (4) 621 JT 1987 (4) 55
1987 SCALE (2)706
ACT:
Uttar Pradesh Higher Judicial Service Rules, 1975:
Rules 3, 8, 22, 23 and 26 Additional District and Sessions
Judge-Seniority-Determination of-Notification abolishing
post of Civil and Sessions Judge-Effect of-Filling up of
post from officers of Nyayika Sewa-Appointment to the
service on occurrence of substantive vacancies-Oficiating
period-Whether to be considered as period of probation-
Confirmation-To be from the earliest date vacancy available
and not from a date fixed arbitrarily-Seniority to be
counted on the basis of date of confirmation-Promotions made
after coming into force of rules-Principles of seniority
applicable to. to
HEADNOTE:
In May, 1974 the Higher Judicial Service for the State
of UP was constituted, and the post of Civil and Sessions
Judge was abolished. The U.P. State Higher Judicial Service
Rules, 1975 came into force with effect from May 10, 1975.
The petitioners-State Judicial Service Officers-who
were promoted on various dates to the Higher Judicial
Service and posted as Additional District Judges/Civil and
Sessions Judges before 1974, filed writ petitions in this
Court challenging their inter se seniority, vis-a-vis,
direct recruits contending that, on their confirmation, they
were given seniority from a date chosen by the High Court
arbitrarily, instead of from the date of their continuous
officiation, which had resulted in their being placed much
below the officers appointed much later by direct
recruitment, that there was no provision for direct
recruitment to the Higher Judicial Service before the 1975
rules were brought into force and all the existing vacancies
on that date were to be filled by only promotion, and
therefore, the High Court, while confirming and giving the
dates for the purpose of seniority, ought to have prepared a
list of a vacancies existing on the date the rules came into
force and confirmed all those who were officiating as
Additional and District Judges or Civil and Sessions Judges
on that day in all those vacancies. They also contended that
while computing the seniority only three years were counted
whereas they should have been given advantage of continuous
officiation as they were officiating in the posts before the
1975 rules came into existence.
399
The aforesaid petitions were contested by the High
Court contending that as it became necessary to fill in the
temporary posts the formality of examining record and
consideration by a Committee or the Full Court was not done,
and all the petitioners were appointed only on the basis of
seniority and not in accordance with the rules and,
therefore, they could not be treated as appointed on
probation from the date of their officiation and that even
if an officer had been continuously working for more than
three years, still for the purpose of computing seniority
only three years will be counted as per proviso to Rule 26.
Allowing the writ petitions partly,
^
HELD: 1.1 The period of officiation has to be
considered as period of probation and the confirmation has
to be from the date on which earliest a vacancy was
available and the seniority has to be counted on that basis.
[406A]
1.2 Before the U.P. Higher Judicial Service Rules, 1975
were brought into force, there was no rule requiring direct
recruitment and hence all the posts available were to be
filled by promotion. In view of this, and in view of proviso
to Rule 8, all the posts (permanent) available in the Higher
Judicial Service plus thirty one temporary posts existing on
that date, which may become permanent later, should be
filled by promotion from amongst the members of the Nyayika
Sewa. Some of the posts may be occupied by promotees
officers who were given promotions on ad hoc basis and
working on these posts or that the posts may be Lying
vacant. Whatever may be the situation the matter will have
to be gone into afresh by the High Court and all the posts
in the Higher Judicial Service available as on May 10, 1974
plus thirty one posts have to be filled from the officers of
the Nyayika Sewa. [403C, 406E-G]
1.3 In view of Para 3 of the Rules and the Notification
abolishing the posts of Civil and Sessions Judges, all those
officers who were officiating as Civil and Sessions Judges
on 8th May, 1974 automatically became Additional District
and Sessions Judges. What has been contemplated in Rule 20
could not be applied retrospectively for promotions before
1975. What was left was only a consideration of their cases
of confirmation. In doing so, the only thing that could be
kept in view is the date on which a vacancy (permanent) was
available for their confirmation and the seniority of those
officers will have to be reckoned in accordance with the
date of confirmation which will be not the actual date of
confirmation but a date when a post was available, and in so
doing, it will not also be reasonable to fix any date, as
has been done by
400
the High Court arbitrarily on the assumption that
actually when they were promoted they were not promoted
after following the procedure. The only thing that can be
considered will be that if at the time of confirmation an
officer was not found fit naturally he must have been
reverted, and the question of ms seniority in the Higher
Judicial Service, therefore, will not arise. [407G-H, 408B-
E]
So far as the posts available on 10th May, 1974 is
concerned, the High Court will have to look into the matter
afresh and decide the seniority. But after the rules came
into force, the Rules will have to be given effect to.
[408H, 409A]
2.1 In Rule 22 the phrase used is "to make appointment
to the service on the occurrence of substantive vacancies".
The substantive vacancy has not been defined in the Rules.
But the scheme of the rules clearly indicates that there are
permanent posts and temporary posts also which are created
to meet contingency and it may in due course be made
permanent. Therefore, when appointment under Rule 22 is
contemplated in the service of substantive vacancies, it may
be both temporary or permanent. But the vacancy must be in
the cadre. A person could only be confirmed when the
permanent post is available for him. It is clear from cl.
(3) of Rule 22 that appointment to temporary vacancies shall
be made from the Nyayika Sewa and as and when a substantive
vacancies arises the procedure for selection should be
followed and the officers who were appointed to fill in the
temporary post should be considered first and appointed on
probation if found fit. [410D-F, 410H-411A]
2.2 Normally the period of probation shall be two
years. In computing this period of probation, an officer who
has been continuously officiating immediately prior to his
appointment on probation will also be taken into account and
the period of probation in any event shall not exceed three
years. Proviso 2 to Rule 26 provides that in the case of
promotee officers a maximum period of continuous officiation
in the service shall not, for the purpose of determining
seniority, exceed three years immediately preceding the date
of confirmation. This is consistent with the Rule 23 which
provides that total period of probation shall not ordinarily
exceed three years. [412A-B, C-D]
These principles of seniority will apply only to the
promotions made after the rules came into force. The scheme
of the rules is that if a person is appointed to officiate
in the Higher Judicial Service his case for confirmation
will normally be considered within three years and either he
will be confirmed or reverted and the High Court is expected
401
to examine the case of the promotee officer within
three years and decide whether the officer deserves to be
confirmed or reverted. [412E-F]
By laying down that the period of probation shall not
ordinarily exceed three years and that only three years of
continuous officiation will be counted for purposes of
seniority in the case of promotee officers, the rules
contemplate that there will not be an occassion when there
may be a person officiating for more than three years and
his case has not yet been considered for confirmation.
[412G-H]
Ordinarily, if the Rules were brought into force the
appointments to the Higher Judicial Service, either on the
basis of direct recruitment or on the basis of promotion,
must have been in accordance with the Rules and it is
expected that the probation, confirmation and the seniority
must have been looked into by the High Court strictly in
accordance with the Rules. [413A-B]
3. About the appointments on the posts available before
these Rules were brought into force and to fill in temporary
posts, the matter will have to be examined afresh by the
High Court and the posts available on 10th May, 1974 plus
thirty one posts will have to be filled in only by
promotees. Thereafter the High Court should examine the
cases of promotion and direct recruitment, after coming into
force of these Rules, and the vacancies available. After
considering the cases in accordance with these Rules, the
High Court will prepare afresh the seniority list which may
be notified so that if any objections are raised they may be
placed for determination in accordance with the Rules.
[413D-F]
O.P. Singla & Anr. etc. v. Union of India & Ors.,
[1985] 1 SCR 35 l, referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) Nos.11788-
11796 of 1984.
(Under Article 32 of the Constitution of India).
G.L. Sanghi, P.P. Rao, Raja Ram Aggarwal, Ayyam Perumal
and R. Venkatramani for the Petitioners.
S.N. Kacker,. B.D. Aggarwal, M.K. Ramamurthi, P. Gaur,
Jitendra Sharma for the Respondents.
402
Anil Deo Singh, and Mrs. S. Dikshit for the State of
U.P. and Jitendra Sharma for the others.
U.R. Lalit, Suresh Seth, R.D. Upadhyaya and Madan
Sharma for the Intervenor
The Judgment of the Court was delivered by
OZA, J. These writ petitions filed by the petitioners
challenge the inter se seniority of the officers in the
higher judicial service coming from two sources; i) promoted
from the judicial service and ii) others who are directly
recruited from the Bar.
The petitioners are officers of the State Judicial
Service who have been promoted on various dates to the
higher judicial service and posted as Additional District
Judges or some of them were posted as Civil and Sessions
Judges before 1974 as in 1974 the post of Civil and Sessions
Judge has been abolished and the higher judicial service for
the State of Uttar Pradesh was constituted.
According to the petitioners they were promoted to
officiate as Additional District and Sessions Judges on
various dates and they continue to officiate as such, they
were confirmed and on their confirmation they have been
given the seniority not from the date of their continuous
officiation but from some other date chosen by the High
Court arbitrarily. And because of which, they have been put
in the seniority list much below those officers appointed by
direct recruitment and who were appointed much after the
petitioners. According to the petitioners, they were
promoted on various dates shown against their names and they
have also shown the dates on which they were confirmed:
S. Pet. name Date of Date of pro- Date of Date of
No. joining motion & confir- vacancy
PCS (J) continous mation in which
Nyayika officiation confirmed.
Sewa in HJS on
Addl.
distt. &
Sessions
Judge
1. P.K. Dixit 1.3.61 9.9.73 24.1.81 1.10.78
2. A.N. Gupta 1.3.61 22.9.73 24.1.81 1.10.78
403
3. B.K. Srivastava 1.3.61 29.3.74 24.1.81 30.4.79
4. I.S. Mathur 1.4.62 24.5:74 24.1.81 31.7.79
5. Taj Shanker 1.4.62 16.8.76 24.1.81 1.1.80
6. R.N. Sarkar 17.4.61 16.8.76 29.10.83 1.1.80
7. S.P. Agarawal 2.3.63 3.1.77 29.10.83 1.1.80
8. A.K. Srivastava 1.3.63 3.1.77 29.10.83 1.1.80
____________________________________________________________
In this list they have also shown the date of the
vacancy on which they were proposed to be confirmed.
It is also contended on behalf of the petitioners that
in 1975 the present rules for recruitment of the judicial
officers in the higher judicial service came into force.
Before these rules were brought into force, the earlier
rules were declared to be bad and in substances therefore,
before these rules were brought into force, there was no
provision for direct recruitment to the higher judicial
service. It is contended that all the vacancies existing on
the date on which these rules (1975 Rules) came into force
have to be filled in by promotion. And while confirming and
giving the dates for the purposes of seniority, the High
Court ought to have prepared a list of vacancies existing on
the date on which these rules (1975 Rules) came into force
and confirm all those who were officiating as Additional
District and Sessions Judges or Civil and Sessions Judges on
this date in all those vacancies. And if this was done,
these petitioners who were appointed before 1975 could have
been confirmed on those vacancies and in that event they
could not have been confirmed in the vacancies occurring in
1978, 1979 & 1980.
It is not disputed that out of these petitioners first
four were promoted in 1973 and 1974 and on the date on which
these rules came into force, they were already functioning
as Civil and Sessions Judges as the designation of
Additional District Judges was not there.
In the written affidavit filed by the High Court, it is
not disputed that before these rules were brought into
force, all the posts which were available on the date on
which these rules came into force have to be filled in by
promotion as till that date there was no rule requiring
direct recruitment. But unfortunately, the High Court in
their return have not mentioned the exact number of
vacancies existing on that date also the number of officers
who were officiating on that date as Civil and Sessions
Judges or Additional District and Sessions Judges
404
who were entitled to be included in that cadre of higher
judicial service under these rules.
The High Court, it was contended has prepared a
seniority list which has been notified and objections have
been invited. It was therefore directed that list must be
produced in this Court and consequently, the lists have been
produced. The seniority list or the list which have been
produced along with the affidavit filed by Mr. Chaterjee
claiming to be in charge of the litigations of the High
Court, unfortunately do not clearly give the picture. The
list must show the initial date on which officers were
promoted and were posted in the post of Civil and Sessions
Judge or Additional District and Sessions Judge. It also
does not clearly show the date on which the order of
confirmation was issued. And it should have been made clear
that before this date of confirmation, on what date a post
was available for confirmation of the person concerned so
that he should get the seniority if not from the date on
which he was promoted for the first time from the date on
which the post was available for him. It was expected that
these facts clearly should have been stated in the return
filed on behalf of the High Court.
It is not disputed that on the date on which these
rules (1975 Rules) were brought into force, all the posts
available were to Go to the promoted officers and the only
thing that the High Court is expected to do is to find out
how many posts were available on that date and how many
persons were officiating in the higher judicial service or
equivalent posts on that date and their seniority ought to
be fixed on the basis of their promotion to the posts except
where an officer was not found fit or where officer
concerned was reverted back to the judicial posts. The
documents do not disclose that any one of these judicial
officers who were promotees have been reverted. The
documents also do not disclose that at any time the High
Court considered the question of their confirmation and any
one of them was not found fit for confirmation, or that it
was decided to postpone the date of confirmation because the
work of the officer was not upto the mark. The record
produced by the High Court only shows the date from which
these petitioners were promoted and started officiating as
Additional District Judges and the date on which they were
ultimately confirmed. During this period their case was
considered at any time does not appear from the record
produced in this case nor was the contention of the learned
counsel appearing for the High Court. It, therefore, is not
disputed that these petitioners who were promoted before
these rules (1975 Rules) were brought into force were never
found unfit for con
405
firmation and in this view of the matter, therefore, it is
clear that all posts available on the date on which these
new rules were brought into force will have to be filled in
by these promoted officers who were working in the
officiating capacity in the post of higher judicial service
on the date on which these rules were brought into force. So
far as the situation before these rules were brought into
force is concerned even during the course of argument not
much controversy appears to exist as it is clear that the
question of direct recruitment and the quota of the direct
recruits vis-a-vis promotees was not in existence.
It was contended on behalf of the High Court that when
these judicial officers were promoted as it became necessary
to fill in the temporary posts the formality of examining
their record and consideration by a committee or the full
court was not done but were only promoted on the basis of
seniority and therefore from the date from which these
officers started officiating as Additional District and
Sessions Judges, they could not be treated as appointed on
probation. But it is not the case of the High Court that
after such adhoc promotion whenever the High Court (full
court or a committee) examined their cases any one of them
who may have been found not fit for promotion normally would
be reverted back to his original post and if at any time
these officers were not reverted then imaginary date for
probation could not be given on arbitrary basis as
throughout their officiation as Additional District and
Sessions Judges they have been found fit and they were
continuing on these posts. It is also not stated when after
an officer was promoted to fill in the temporary post, his
case was considered for promotion to a substantive post. At
best while confirming and giving seniority the only thing
that could be considered was the availability of a permanent
post and from the date a permanent post was available these
officers had to be confirmed giving them seniority from that
date.
It appears that the stand of the High Court is that as
and when a temporary vacancy was available an officer who
was the seniarmost was promoted as Civil and Sessions Judge
or Additional District and Sessions Judge but it is not the
case of the High Court that afterwards the case of such
promoted officers was considered by a committee or by the
full court after examining the records and this was done at
any time before their cases came up for consideration for
confirmation. It only appears that their cases were
considered for confirmation and at that time some date has
been given from which they were treated to be on probation
and on that basis the seniority has been counted but as
stated earlier in absence of any one of these officers not
having been
406
found fit for promotion this stand taken by the High Court
can not be A justified. The period of officiation has to be
considered as period of probation and the confirmation has
to be from the date on which earliest a vacancy was
available and the seniority has to be counted on that basis.
Unfortunately neither the affidavit filed on behalf on the
High Court nor the list clearly shows the position of these
judicial officers who were promoted long before these new
rules were brought into force in 1975 and what has been
stated above will have to be done afresh so far as the
officers who were promoted before the new rules were brought
into force in 1975.
This also appears to be the intention of the rules when
they were framed in 1975 as is clear from the proviso to
Rule 8. It reads:
“Provided further that the permanent vacancies
existing on May 10, 1974 plus 31 temporary posts
existing on that date, if and when they are
converted into permanent posts, shall be filled by
promotion from amongst the members of the Nyayika
Sewa; and only the remaining vacancies shall be
shared between the three sources under these
rules:
It therefore is clear that even these rules provided that
all the posts (permanent) available in the Higher Judicial
Service existing on May 10, 1974 plus 31 temporary posts
existing on that date which may become permanent later shall
be filled by promotion from amongst the members of the
Nyayika Sewa. It is therefore clear that all the posts in
the Higher Judicial Service, Lying vacant on May 10, 1974
plus thirty one will have to be filled in from the officers
of the Nyayika Sewa. May be that some of these posts may be
occupied by promotee officers who were given promotions on
ad hoc basis and working on those posts or that the posts
may be Lying vacant. Whatever may be the situation on the
basis of what has been discussed above and also as has been
clearly provided in these rules the matter will have to be
gone into by the High Court afresh and fill in all the posts
in the Higher Judicial Service available on May 10, 1974
plus 31 posts from the officers of the Nyayika Sewa.
It appears that the date 10th MAY has been mentioned in
this proviso to Rule 8 because by Notification of May 1974
the Higher Judicial Service was constituted and the posts of
Civil and Sessions Judges were abolished. Paragraph 3 of
these Rules notified on 8th May 1975 about the abolition of
Civil and Sessions Judges is also significant. Para 3 reads
thus:
407
“Creation of posts and confirmation: (1) Upon the
abolition of the cadre of Civil and Sessions
Judges, permanent and temporary posts of
Additional District and Sessions Judges equal in
number of the permanent and temporary posts,
respectively, of Civil and Sessions Judges
existing immediately before the date of
commencement of these rules, shall stand created
with effect from the said date, and the officers
holding the posts of Civil and Sessions Judges
immediately before the said date shall become
Additional District and Sessions Judges and be
designated accordingly. ”
This clearly indicates that those holding the posts either
temporarily or permanently as Civil and Sessions Judges
immediately before this date i.e. 8th May 1974 shall become
Additional District and Sessions Judges and were designated
accordingly. It is therefore clear that the officer who was
officiating as Civil and Sessions Judge on 8th May 1974
automatically became Additional District and Sessions Judge
and therefore it could not be contended that proper
procedure for promotion was not followed but as and when
occasion arose an officer in the Judicial Service was posted
as Civil and Sessions Judge to perform the functions of that
office on the basis of seniority. It was also contended that
when initially an officer in the Judicial Service (Nyayika
Sewa) was posted to perform the functions of Civil and
Sessions Judge, his promotion was not done in accordance
with the Rules and what was suggested was that no Committee
considered their record but on the basis of seniority it was
decided to promote them. This argument appears to have been
based on the Rules of 1975 where for promotion of the
members of the Nyayika Sewa it has been provided that
Selection Committee will examine the record of the eligible
Judicial officers and then shall prepare a list of those who
have been selected for promotion and as and when a vacancy
occurs an officer from this list will be promoted.
Admittedly this what has been contemplated in Rule 20 could
not be applied retrospectively for promotions before 1975
when the Rules were brought into force and it is also not
suggested or brought on record that there was any such
system or practice in the High Court. In fact, nothing has
been brought on record to indicate as to how an officer was
appointed to the post of Civil and Sessions Judge from the
Nyayika Sewa. In this view of the matter also and in view of
the Notification abolishing the posts of Civil and Sessions
Judges dated 8th May 1974 it is apparent that there is no
scope for going back and those who were working as Civil and
Sessions Judges either against temporary or permanent
vacancies either appointed temporarily or
408
permanently became Additional District and Sessions Judges
temporary or permanent as the case may be and therefore
there is no scope for examining their cases now to find out
as to whether they were promoted in accordance with the
procedure prescribed in Rule 20 which was the rule enacted
in 1975. It has therefore to be accepted that all those who
were working as Civil and Sessions Judges on 8th May 1974
automatically became Additional District and Sessions Judges
and what was left was only a consideration of their cases of
confirmation and in so doing in view of the conclusions
arrived at by us and also as has been provided in the
proviso to Rule 8 quoted above all the posts available on
10th May 1974 plus 31 posts (temporary) on that date will
have to be filled in from the cadre of Nyayika Sewa by
promotion. In this view of the matter therefore while
confirming these Judicial officers who were working as Civil
and Sessions Judges and who became Additional District and
Sessions Judges on abolition of the cadre of Civil and
Sessions Judges automatically the only thing that could be
kept in view is the date on which a vacancy (permanent) was
available for their confirmation and the seniority of these
officers will have to be reckoned in accordance with the
date of confirmation which will be not the actual date of
confirmation but a date when a post was available and in so
doing it will not also be reasonable to fix any date as has
been done by the High Court arbitrarily on the basis of the
assumption that initially when they were promoted they were
not promoted after following the precedure. The only thing
that can be considered will be that if at the time of
confirmation an officer was not found fit naturally he must
have been reverted, and the question of his seniority in the
Higher Judicial Service therefore will not arise. Much
reliance was placed on the decision of this Court in o. P.
Singla & Anr. etc. v. Union of India & ors. [1985] 1 SCR
351. So far as the officers promoted before the Rules were
brought into force, this decision also does not carry the
matter further and as regards the interpretation of rules,
although an attempt was made to contend that the Delhi Rules
and the U.P. Rules are similar but it could not be said that
they are identical and therefore also this decision is not
of much help to the case of the petitioners.
It could not be disputed that after these Rules which
are Uttar Pradesh Higher Judicial Service Rules, 1975 came
into force a ratio has been fixed for the direct recruits
and promotees. The petitioners also did not challenge the
ratio nor did they challenge the rules except on the ground
that while computing seniority they should be given the
advantage of the continuous officiation. As discussed above
so far as the posts available on a particular date i.e. 10th
May 1974 is concerned
409
the High Court will have to look into the matter afresh and
decide the seniority in the light of what we have discussed
but after the rules came into force it could not be disputed
that the rules will have to be given effect to. These rules
have provided the mode of promotion & selection and have
also provided the manner in which the seniority will be
computed.
It was contended that the phrase “appointment to the
service” which has been used in Rule 22 should not be
restricted to the substantive vacancies i.e. permanent
vacancies only. As it was contended that the term the
service” in Rule 3 has been defined to mean Uttar Pradesh
Higher Judicial Service and it does not mean only permanent
posts. Rule 22 provides for the manner of appointments from
the direct recruits as well as from the promotees which
reads as under:
“Appointment-(1) Subject to the provisions of sub-
rules (2) and (3), the Governor shall on receipt
from the Court of the lists mentioned in rules 18,
20 and 21 make appointments to the service on the
occurrence of substantive vacancies by taking
candidates from the lists in the order in which
they stand in the respective lists.
(2) Appointments to the service shall be made on
the rotational system, the first vacancy shall be
filled from the list of officers of the Nyayik
Sewa, the second vacancy shall be filled from the
list of direct recruits (and so on), the remaining
vacancies shall thereafter be filled by promotion
from the list of the officers of the Nyayik Sewa:
Provided that for so long as suitable
officers are available from the cadre of the
Judicial Magistrate appointments to the service
shall be made in such a way that the second, fifth
and eighth (and so on), vacancies shall be filled
from the list of Judicial Magistrates.
(3) Appointment for temporary vacancies or in
officiating capacity shall be made by the Governor
in consultation with the Court from amongst the
members of the Nyayik Sewa:
Provided that for so long as suitable
officers are available from the cadre of the
Judicial Magistrates, appointments on temporary
vacancies or in officiating
410
capacity shall be made in consultation with
the Court from amongst the Judicial
Magistrates according to the quota fixed for
that source under these rules:
Provided further that for so long as
such members of the Judicial Service as are
considered suitable for appointments on
temporary vacancies or in officiating
capacity, are not available in sufficient
number, the Governor in consultation with the
Court may fill in not more than 50 per cent
of such vacancies from amongst the officers
of the cadre of Judicial Magistrates.
(4) The appointments shall be made on
rotational system-the first vacancy shall be
filled from the list of officers of the
Nyayik Sewa, the second vacancy shall be
filled from the list of Judicial Magistrates
(and so on).
In Rule 22 the phrase used is “to make appointment to
the Service on the occurrence of substantive vacancies” and
it was contended on the one side that substantive vacancies
does not mean permanent vacancies whereas on the other hand
it was contended that it only means permanent vacancies. The
substantive vacancy has not been defined in the Rules but
proviso to Rule 8 which has been quoted above speaks of
permanent vacancies and temporary posts. In fact the scheme
of the Rules clearly indicates that there are permanent
posts and temporary also which are created to meet
contingency and it may in due course be made permanent. It
therefore could not be doubted that when appointment under
Rule 22 is contemplated in the service of substantive
vacancies, it may be both temporary or permanent but the
vacancy must be in the cadre. It could not be doubted than a
person could only be confirmed when a permanent post is
available for him.
Different procedure is provided for appointment to a
temporary vacancy and to a permanent vacancy. It was
contended that if an officer is promoted to fill in a
temporary post it is done without following the procedure
i.e. selection but there is nothing to indicate as to how
and when such appointments were considered and appointed on
probation in a substantive post. Unfortunately the record
produced by the High Court does not indicate this. What has
been done it appears is that for purpose of seniority a date
has been given and this has been done arbitrarily as there
is no reason as to why the seniority should be counted from
the date alone. What appears from the scheme of the Rules as
provided in clause (3) of Rule 22 is, that appointment to
411
temporary vacancies shall be made only from the Nyayik Sewa
and as and when a substantive vacancy arises and the
procedure for selection is to be followed, the officers who
are appointed to fill in the temporary posts should be
considered first and appointed on probation if found fit,
but it appears that it has not been made clear as to how and
when this was done nor it is clearly stated as to what was
the number of temporary posts created and when those posts
became permanent and in our opinion the High Court will have
to examine the matter in the light of the scheme of the
Rules as discussed above. Probation has been provided in
Rule 23 which reads:
“(1) All persons shall on appointment to the service in
substantive vacancies be placed on probation. The
period of probation shall, in each case, be two years,
provided that the period for which an officer has been
continuously officiating immediately prior to his
appointment may be taken into account for the purpose
of computing the period of probation.
(2) (a) The Court may, in special cases, extend the
period of probation upto a specified date:
Provided that the total period of probation shall
not ordinarily exceed three years.
(b) An order sanctioning such extension of
probation shall specify whether or not such extension
shall count for increment in the time-scale.
(3) If it appears to the court at any time during or at
the end of the period of probation, or extended period
of probation, as the case may be, that a probationer
has not made sufficient use of his opportunities or has
otherwise failed to give satisfaction, it may make
recommendation to the appointing authority whereupon
the appointing authority may revert the probationer to
his substantive post, if any, or if he does not hold a
lien on any post, his services may be dispensed with.
(4) A person whose services are dispensed with or
who is reverted under sub-rule (3) shall not be
entitled to any compensation.
412
This clearly shows that normally the period of probation
shall be 2 years and in computing this period of probation
an officer who has been continuously officiating immediately
prior to his appointment on probation will also be taken
into account for the purpose of computing the period of
probation and it has been further provided that period of
probation in any event shall not exceed three years.
Much controversy was raised about Rule 26 which
provides for fixing the seniority wherein in the proviso it
has been provided:
“Provided that in the case of a promotee the
maximum period of continuous officiation in the
service shall not, for the purpose of determining
seniority exceed three years immediately preceding
the date of confirmation.”
It was contended that in the case of promotees even if he
has been continuously officiating for more than 3 years
still for purpose of computing seniority only 3 years will
be counted according to this proviso. But this appears to be
consistent with Rule 23 where it has been provided that
total period of probation shall not ordinarily exceed 3
years. In. fact the contention raised on behalf of the
petitioners was that they were officiating in the posts
before these rules were brought into force but still for
computing their seniority only 3 years have been counted but
in view of what we have held earlier in respect of posts -:
available before the Rules of 1975 came into force, this
question will not be of any consequence. In fact these
principles of seniority will only apply to the promotions
made after these rules came into force i.e. in 1975 and the
scheme of the Rules appears to be that if a person is
appointed to officiate in the Higher Judicial Service, his
case for confirmation normally will be considered within 3
years and either he will be confirmed or will be reverted
and this scheme of these Rules therefore expect that an
officer who has been promoted his case must be examined by
the High Court within three years and decide whether the
officer deserves to be confirmed or deserves to be reverted
and it is in this view of the matter it appears that in Rule
23 it has been provided that period of probation shall not
ordinarily exceed 3 years. Similarly in Rule 26 while
providing the principles of counting seniority it has been
specifically provided that in case of promotee officers
continuous officiation even if it is for more than 3 years,
only three years will be counted for purpose of seniority.
This itself contemplates that such an occasion shall not
arise when a person may be officiating for more than 3 years
and still his case has not been considered for confirmation.
In fact not much controversy has been placed before us
413
about appointments after the rules came into force. As it is
ordinarily expected that if these Rules were brought into
force the appointments to the Higher Judicial Service either
on the basis of direct recruitment or on the basis of
promotion must have been in accordance with these rules and
it is expected that the probation, confirmation and
seniority must have been looked into by the High Court
strictly in accordance with these rules. It appears that
some amount of controversy has been raised as even after
these rules were brought into force some officers continued
to be officiating and it appears that while fixing seniority
in the provisional list which has been notified by the High
Court, the proviso to Rule 8 which we have quoted above and
the principle that all posts before these rules were brought
into force, will have to be filled in by the promotees, was
not kept in view. Having gone through these Rules it appears
that the contention advanced by the petitioners in respect
of proviso to Rule 26 about seniority does not appear to be
justified. We therefore feel that from the date these Rules
have been brought into force, the High Court must have given
effect to these Rules. But in view of what we have discussed
earlier about the appointments on the posts available before
these Rules were brought into force and to fill in temporary
posts, we feel that the matter will have to be examined
afresh by the High Court. So far as posts available on 10th
May 1974 plus 31 posts are concerned they will have to be
filled in only by promotees as we have discussed earlier and
also in view of proviso to Rule 8 and after doing it examine
the cases of promotion and direct recruitment after the
coming into force of these Rules and the vacancies available
and after considering the cases in accordance with these
Rules the High Court will prepare afresh the seniority list
which may be notified so that if any objections are there.
they may be placed for determination in accordance with the
Rules and in the light of the discussions above. We
therefore allow the petition partly and dispose it of as
stated above. In the circumstances of the case, we direct
that parties shall bear their own costs.
N.P.V. Petitions partly allowed.
414