PETITIONER: S. ASHOK KUMAR Vs. RESPONDENT: STATE OF T. N. DATE OF JUDGMENT17/09/1993 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SINGH N.P. (J) CITATION: 1994 SCC Supl. (2) 631 ACT: HEADNOTE: JUDGMENT:
ORDER
1. Leave granted.
2. Heard the learned counsel on either side. The
appellants are direct recruits to the substantive vacancies
in the permanent cadre of District and Sessions Judge Grade
11 of Tamil Nadu State Higher Judicial Service. The
appointment to the post in category 2 shall be made by the
Governor either_by recruitment by transfer from the category
of Subordinate Judges in Tamil Nadu State Judicial Service
or by direct recruitment, “[p]rovided that not more than ten
posts shall be filled or reserved to be filled by direct
recruitment”. On the appellants’ recruitment by the High
Court and appointment by the Governor, they started
discharging their duties as District and Sessions Judges
from November 16, 1987 and they were put on probation with
effect from that date. Though they have admittedly
completed 14 months of probation as prescribed under the
rule, their services were not confirmed. They, therefore,
filed a writ petition in the High Court seeking direction
for declaration of the completion of their probation and
confirmation to the substantive posts. Yet the High Court
held that unless inter se seniority is determined between
them and the contesting respondents, the Subordinate Judges
promoted as District and Sessions Judges, Grade 11 from the
cadre of the T.N. Judicial Service, the writ cannot be
issued. So the High Court dismissed the writ petition.
Thus this appeal by special leave from the judgment in Writ
Petition No. 356 of 1990, dated September 10, 1991.
3. Shri Parasaran, the learned senior counsel for the
appellants has contended that the High Court has committed
serious error in not giving the direction for the
appellants’ confirmation to the substantive posts; inter se
seniority between the appellants and the contesting
respondents would flow from that direction. He contended
that the State Government had fixed 31 posts of District and
Sessions fudges out of which 18 are for the District and
Sessions
+ Arising out of SLP (C) No. 1158 of 1992
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Judges, Grade I and II posts are for District and Sessions
Judges, Grade II. In the seniority list published by the
Government of the cadre of District and Sessions Judges,
Grade 11 placement of 28 to 33 have been kept blank which
meant that they are reserved for the appellants. The High
Court admitted of their appointment to substantive vacancies
and successful completion of their probation. Irrespective
of the fact that the contesting respondents were promoted
earlier in point of time, the appellants are entitled to be
fixed in the vacancies kept reserved for them in the
placement of Nos. 28 to 33. In that regard, he contended
that once the appellants have been appointed substantively
by direct recruitment, they should rank senior to the
officiating promotees and therefore the High Court has
committed serious illegality in not giving the direction in
that behalf. Having given our anxious consideration to the
contention raised, we find that on the basis of the rule
position, it is difficult to accept the contention. The
language couched in Rule 2(b) of the T.N. State Higher
Judicial Service Rules, 1982 would make the matter clear
that appointment to category 2 of the District and Sessions
Judges is from two sources, namely, recruitment by transfer
from the category of Subordinate Judges in Tamil Nadu State
Judicial Service or by direct recruitment. While making a
recruitment, the proviso limits its operation that out of
the cadre not more than 10 posts shall be filled or shall be
reserved to be filled by the direct recruits. It does not
indicate that this is meant to be up to a maximum of 1/3rd
posts of the cadre. Had the percentage of the posts been
linked with the total cadre strength, certainly the direct
recruits are entitled to occupy 1/3rd of the posts from the
date of their officiation and get seniority from the date of
their appointment, subject to successful completion of
probation irrespective of the fact whether the promotees
have been continuously officiating as District and Sessions
Judges prior to the appointment of the appellant in excess
of their quota. Their earlier promotion and continuous
officiation would not enure to their advantage and they will
be pushed down, giving place to the direct recruits within
the quota reserved for them. Unfortunately, Rule 2(b) does
not prescribe any quota. It would mean that at no point of
time the direct recruits would exceed 10 in number.
Undoubtedly the object of direct recruitment is to infuse
young blood into service to accelerate efficiency and
members of the bar opt for selection by direct recruitment
with an object to get elevation as High Court Judges. To
achieve the purpose the language of the rule should be
different.
4. To find the placement of the appellants as District and
Sessions Judges, Grade II, Rule 7(b) to be applied for
fixing the inter se seniority of the appellants and
promotees from the respective dates from which direct
recruits and the promotees have been continuously
officiating in the posts of District and Sessions Judges,
Grade 11. Rule 7(b) says that:
“The seniority of person appointed to the post
of District and Sessions Judge, Second Grade
shall be determined by the date from which he
was continuously on duty in the category of
District and Sessions Judge, Second Grade:
Provided that the seniority of a person
appointed to the post of District and Sessions
Judge,. Second Grade, by recruitment by
transfer from the Tamil Nadu State Judicial
Service, shall be fixed by the Government on
the recommendation of the High Court.”
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As per Rule 7(b) the point of time i.e. the date from which
the direct recruit as well as promotee District and Sessions
Judges are continuously officiating is relevant and
material.
5. The High Court is requested to recommend to the
Government to fix inter se seniority after declaring
completion of the probation of the appellants. Inter se
seniority shall be determined in terms of Rule 7(b) of the
Special Rules within a period of four months from the date
of the receipt of this judgment.
6. The appeal is accordingly disposed of. No costs.
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