IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 27.08.2008
CORAM
THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR. JUSTICE V.DHANAPALAN
W.P. NO. 32025 OF 2007
R. Mohan Doss .. Petitioner
- Vs -
1. High Court of Judicature at Madras
rep. by its Registrar General
Chennai 600 104.
2. Deleted
3. Deleted
4. Selvi R.Mala
5. P.Ramakrishnan
6. Tmt. Aruna Jagadeesan
7. G.M.Akbar Ali
8. T.Mathivanan
9. A.Ratnavelu
10. A.J.Murugananthan
11. A.Arumugasamy
12. Selvi K.B.K.Vasuki
13. P.Devadass
14. R.Karuppiah
15. A.S.Kannan
16.M.Mohamed Essath Ali
17. A.Selvadoss
18. S.F.akbar
19. M.Chinnapandi
20. N.Retnaraj
21. M.Vijayaraghavan
22. K.Ramakrishnan .. Respondents
(RR-2 & 3 deleted vide order
of the Court dated27.06.2008)
Writ Petition filed for the issuance of a writ of certiorarified mandamus calling for the records of the 1st respondent in ROC No.13712 of 2003 and B1 dated 20th Sept., 2005, quash the same and consequently direct the 1st respondent to fix the seniority of the petitioner within the substantive vacancies of 60 District Judges as on 3.12.1999 by applying the ratio laid down in the schedule to Rule 5 of the Rules and above respondents 2 to 22 as stated therein.
For Petitioner : Mr. Vijay Narayan, SC, for
Mr. Karthik
For Respondents : Mr. P.K.Rajagopal for R-1
Mr. N.R.Chandran, SC, for
M/s.V.G.Suresh Kumar for RR-4 to 8 & R-18
Mr. R.Gandhi, SC, for
Mr. R.G.Narendhiran for R-12
Mr. M.Palani for R-10
Mr. V.T.Gopalan, SC, for
M/s. M.Jegadeesan for R-14
Mr. A.K.Kumarasamy for R-15
Mr. M.R.Sivakumar for RR-20 & 21
Mr. N.G.R.Prasad for
M/s.Row & Reddy for R-13
Mr. Abdu Kumar Rajarathinam for R-16
Mr. R.Singaravelan for R-11
No Appearance for RR-9, 17 & 19
ORDER
S.J.MUKHOPADHAYA, J.
This writ petition has been preferred by a member of the Tamil Nadu State Judicial Service (cadre of District Judge) against order in ROC No.13712 of 2003 and B1 dated 20th Sept., 2005 with further prayer to direct the 1st respondent, High Court of Judicature at Madras to fix his seniority within the substantive vacancies of 60 District Judges as on 3rd Dec., 1999, by following the ratio laid down in Schedule to Rule 5 and above 4th to 22nd respondents.
2. The brief facts of the case is that a notification was issued on 8th Nov., 1990, calling for applications from advocates and pleaders having seven years of experience for direct recruitment to the posts of District Judge 2nd Grade. As per the existing rules, known as “The Tamil Nadu State Higher Judicial Service Rules, 1982”, the service comprised of 2 categories, namely, —
i) Category I — District & Sessions Judge 1st Grade
ii) Category II — District & Sessions Judge – 2nd Grade
As regards appointment to Category-II, District & Sessions Judge – 2nd Grade, the rules stipulated that the post could be filled up either by recruitment by transfer from category of subordinate Judges of the Tamil Nadu State Judicial Service (i.e., ‘by promotion’) or by direct recruitment, provided that nor more than 10 posts shall be filled up or reserved for direct recruitment.
3. On 8th Nov., 1990, when advertisement was issued for direct recruitment, 8 directly recruited District Judges 2nd Grade, were already working. Therefore, 2 posts were advertised. It followed by a subsequent notification dated 25th March, 1991, calling for further application for appointment as District Judge 2nd Grade by direct recruitment from eligible Scheduled Caste/Scheduled Tribe candidates. The said notification was challenged before this Court in W.P. No.6464/95. When the matter was pending, new rules, namely, the ‘Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 1995’, came into force from 18th May, 1995. As per the 1995 rules, the cadre consisted of District Judge/Addl. District Judge/Chief Judicial Magistrate. Under the said Rules, 1995, two sources of recruitment were prescribed :-
a) By Direct Recruitment ; and
b) By Promotion on the basis of seniority-cum-merit from Civil Judge (Sr. Division).
A ratio of 1:5 between the direct recruit and promotee was fixed. Due to the pendency of writ petition, W.P. No.6464/95, no recruitment could be made pursuant to 1990/1991 advertisement. The writ petition, W.P. No.6464/95 was allowed by this Court on 18th March, 1996, which directed to issue a fresh notification calling for further applications against the two vacancies, one for ‘Open Category’ (1 unreserved post) and the other for ‘Other Backward Category’ (1 reserved post).
4. In the meantime, the post of Chief Judicial Magistrate/Chief Metropolitan Magistrate having included in the cadre of District Judge, 21 such posts of Chief Judicial Magistrate/Chief Metropolitan Magistrate were upgraded on 21st April, 1995. Subsequently, in accordance with the decision of the High Court in W.P. No.6464/95, another notification was issued on 2nd June, 1997, calling for further application for appointment to the post of District Judge (Entry Level) (earlier known as District Judge – 2nd Grade Category II). Immediately thereafter, another writ petition, W.P. No.13076/97 was filed by one M.Krishnaswamy for direction on the State Government and High Court to make appointment to the vacancies in the post of District Judge in the ratio of 1:5 as between direct recruits and promotees. The said writ petition was dismissed on 9th Sept., 1999. Having noticed that the notification was issued inviting application for filling up two posts of District Judge 2nd Grade, by direct recruitment, and in the order of rotation, one vacancy was to be filled up from the candidate belonging to ‘Backward Category’ and one from ‘Open Category’, this Court refused to grant relief and dismissed the writ petition. Pursuant to the advertisement dated 8th Nov., 1990, 25th March, 1991 and 2nd June, 1997, two posts were filled up by direct recruitment vide G.O. Ms. No.1577 dated 1st Nov., 1999. By the said notification, the petitioner and one Mrs.S.Vimala were appointed by direct recruitment as District Judges (Entry Level previously known as District Judge – 2nd Grade Category II).
5. In the meantime, by two different notifications, a number of Civil Judges (Sr. Division) were promoted to the cadre of District Judges from the dates on which they were to take charge as such. By G.O. Ms. 375 dated 27th March, 1997, the 4th to 8th respondent along with others were promoted. By another G.O. Ms. No.1537 dated 6th Dec., 1997, 9th to 22nd respondents were promoted as District Judge along with others. Many of them having retired from service or having elevated as Hon’ble Judge of this Court, they are not parties to the writ petition.
6. From the fact aforesaid it will be evident that the respondents were promoted more than 1 year 9 months to 2 = years prior to the direct recruitment of the petitioner.
7. According to the learned senior counsel for the petitioner, in the year 1997, the cadre strength of District Judges was 89 in total. Except the 2 posts of direct recruits, all other posts had already been filled up, including 8 direct recruit District Judges. It was submitted that the contesting 4th to 22nd respondents were excess to the strength of promotee quota.
According to the learned senior counsel for the respondents, the appointment of the petitioner and another was made pursuant to the 1982 rule. Referring to the dates of events, it was submitted that the process of selection was started in 1990-91 for filling up two posts by direct recruitment, but it could not be filled up because of litigation (writ petitions). This Court, in W.P. No.13076/97, refused to grant relief to fill-up the post by direct recruitment and promotion at the ratio of 1:5 as per 1995 rules, and ordered to fill-up only two posts of District Judge 2nd Grade, as per 1982 rules. It was submitted that the appointment of petitioner and another having made pursuant to 1982 rules, the quota fixed under 1995 rules is not applicable. As per 1982 rules, there was no quota fixed, but only 10 posts were fixed for direct recruits. The contention of the petitioner that the promotees are excess to the quota was refuted.
8. Learned senior counsel for the petitioner referred to the order of appointment of direct recruits, G.O. Ms. No.1577 dated 1st Nov., 1999, wherein it is mentioned that the petitioner and another, advocates, are appointed as District Judges u/r 5 (2) of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 1995. It was highlighted to show that the petitioner was appointed pursuant to 1995 rules.
This was contested by learned senior counsel for the respondents on the ground that mere citation of rule will not make the appointment pursuant to 1995 rules, as 2 posts were filled up by direct recruitment as per the fixed strength of 1982 rules. According to the respondents, the process of selection having started in 1991, the 1982 rules, as was in vogue, is applicable, which is also evident from the order of this Court in W.P. No.13076/97. They also relied on Supreme Court decision in V.Rangaiah Vs J.Sreenivasa Rao(AIR 1983 SC 852) and P.Mahendran Vs State of Karnataka (AIR 1990 SC 405) in support of their contention, wherein Supreme court held that the old vacancy to be filled up on the basis of old rule and not amended rules, particularly when process of selection started and if amended rule is not given retrospective effect.
9. We have heard the learned counsel for the parties and noted their rival contentions.
10. In the present case, we are not concerned with the appointment of either the petitioner or the contesting respondents, i.e., whether they were appointed pursuant to 1982 rules or pursuant to 1995 rules. Admittedly, the respondents were promoted between March and December, 1997 and the petitioner and another were appointed by direct recruitment in Nov., 1999. Promotion and direct recruitment of both the contesting respondents and petitioner having made after 1995, for determination of seniority, the rule of 1995 will be applicable, though their appointment may have been made pursuant to one or other rule. All those who have been appointed subsequent to 1995 rules, irrespective of their source of recruitment, pursuant to one or other rules, their seniority would be determined under the rules in force at the time of appointment and not those in force at the time of occurrence of vacancy. In this connection, one may refer to Supreme Court decision in Union of India Vs S.S.Uppal (1996 (2) SCC 168).
11. The question whether a person has been appointed excess to the quota and what effect it would have in the matter of determination of seniority fell for consideration before Supreme court in the case of D.Ganeshrao Patnaik Vs State of Jharkhand (2005 (8) SCC 454). That case relates to appointment in the Bihar Superior Judicial Service. Inspite of rule and specific prohibition made by High Court to fill-up quota of direct recruit by promotees, certain promotions were made to the post of District Judge (Addl. District Judge) in the post falling within the direct recruits quota. In the said case, while the Supreme Court held that such appointment (by promotion) are not fortuitous appointment, taking into consideration the relevant fact, held that such appointment (by promotion) against direct recruit quota would not confer seniority over direct recruits of the same year.
12. In the present case, as it is alleged that there were altogether 89 posts in the cadre of District Judge (Entry Level earlier known as District Judge Category II), and that except 2 posts, which were to be filled up by direct recruitment, all posts were filled up, and such statement was denied by the 1st respondent, Madras High Court, the details of strength of cadre, working strength, etc., were called for by this Court. Pursuant to this Court’s order, the High Court produced a chart showing details of the strength of the cadre of District Judge (Entry Level), including the working strength as in 1997-98, to find out whether 4th to 22nd respondents were excess to their promotee quota.
From the data as produced, the following fact emerges :-
There were vacancies existing against promotee quota,in between 1st July, 1996 and 1st July 1999, as shown hereunder :-
S. No.
As on
Cadre Strength
Working Strength
No. of Direct Recruits
No. of Promotees
1
01.07.1996
89
89
8
81
2
01.08.1997
96
84
7
77
3
01.07.1998
104
100
7
93
4
01.07.1999
106
88
7
81
The posts which were created or fell vacant in between 1st July, 1996 and 1st July, 1999, were as follows :-
S. No.
Cadre Strength as on
Previous Year cadre Strength
Constitution of new Courts/sanction of new posts/existing courts/posts abolished
G.O.s under which Courts constituted
Courts functioning with effect from
Cadre Strength of District Judges
1
01.07.1996
As per Annual List 89
Deputation 1
—
88 Vacant Courts - 2 ------ 90 ------ ---- ---- ---- ---- 90 As on 01.07.1996 2 01.07.1997 90 6 Courts (From 01.07.1996 to 30.06.1997) 1) G.O. Ms.562, Home Dept. dt. 17.4.1997 2) G.O. Ms.995 Home Dept. dt. 4.7.1995 3.5.1997 (3 Courts) June 1997 (3 Courts) 96 As on 01.07.1997 S. No. Cadre Strength as on Previous Year cadre Strength Constitution of new Courts/sanction of new posts/existing courts/posts abolished G.O.s under which Courts constituted Courts functioning with effect from Cadre Strength of District Judges 1 01.07.1998 96 8 Courts (From 01.07.1997 to 30.06.1998) 1) G.O. Ms. No.436, Home Dept. dt. 18.3.1997 2) G.O. Ms. No.1572, Home Dept. Dated 29.10.1997 3) Chairman Taxation Appellate Tribunal, Corpn. Of Chennai (DJ cadre) 4) G.O. Ms. No.1320 dt. 5.9.1995 5) G.O. Ms. No.1914, Home Dept., dated 26.12.1996 19.01.1998 (4 Courts) 19.01.1998 (1 Court) 19.01.1998 (1 Post) 05.03.1998 (1 Court) 09.03.1998 (1 Court) 104 (As on 01.07.1998) 2 01.07.1997 104 2 Courts (From 01.07.1998 to 30.06.1999) G.O. Ms. No.1015, Home Dept. dated 30.07.1998 27.04.1999 106 (As on 1.7.1999)
It will be evident from 1982 rules that the post of Chief Judicial Magistrate was not in the cadre of District Judge Category II. After 1995 rules came into force on 18th May, 1995, apart from post of District Judge/Addl. District Judge, the post of Chief Judicial Magistrate were also included in the said cadre. For the said reason, 21 posts of Chief Judicial Magistrates were upgraded as Addl. District Judge-cum-Chief Judicial Magistrate vide G.O. Ms. No.599, Home (Courts-IA) Dept., dated 21st April, 1995.
13. Learned counsel for the petitioner submitted that the upgraded post of Addl. District Judge-cum-Chief Judicial Magistrate should not be counted in the said case as subsequently they were downgraded. But from the statement made in the affidavit it appears that pursuant to judgment of Hon’ble Supreme Court dated 21st March, 2003 in W.P. (C) No.1022/89, commonly known as All India Judges Association Case (2002 (4) SCC 247), the post of Chief Judicial Magistrates were brought under the cadre of Civil Judge (Sr. Division), which was reflected in the rule framed in 2007. Therefore, it will be evident that the 21 posts of Chief Judicial Magistrate in the cadre of Addl. District Judge-cum-Chief Judicial Magistrate were available at the time of promotion of 4th to 22nd respondents and posts have been downgraded much after in 2002, pursuant to which the contesting respondents have not been downgraded.
14. The High Court has also filed another chart showing the details of vacancies occurred due to elevation or retirement or dismissal of one or other officer between 1st July, 1996 and 31st Dec., 2000 in support of the chart of cadre strength and working strength and vacancies as existing in one or other year. From the said chart, it is clear that 24 persons retired or dismissed or expired or elevated as High Court Judge or took voluntary retirement between 1st July, 1996 and 1st July, 1997. Similarly, 8 persons retired or expired between 1st July, 1997 to 1st July, 1998 and against the aforesaid vacancies, 4th to 22nd respondents and others were promoted.
15. Having regard to the facts brought to the notice of the Court by the High Court that 4th to 22nd respondents were promoted against existing vacancies of promotee quota, the objection raised by the petitioner cannot be accepted nor the petitioner can derive advantage of Supreme Court decision in Ganeshrao Patnaik’s case (supra). Further, 4th to 22nd respondents having been promoted much prior to the petitioner, we hold that the petitioner has been rightly shown junior and his prayer has been rightly rejected by impugned order dated 20th Sept., 2005. We find no merit in this case. The writ petition is accordingly dismissed, but there shall be no order as to costs.
GLN
To
The Registrar General
High Court,
Madras