{"id":31079,"date":"1998-09-02T00:00:00","date_gmt":"1998-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/baij-nath-sharma-vs-honble-rajasthan-high-court-at-on-2-september-1998"},"modified":"2017-05-13T08:11:56","modified_gmt":"2017-05-13T02:41:56","slug":"baij-nath-sharma-vs-honble-rajasthan-high-court-at-on-2-september-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/baij-nath-sharma-vs-honble-rajasthan-high-court-at-on-2-september-1998","title":{"rendered":"Baij Nath Sharma vs Hon’Ble Rajasthan High Court At … on 2 September, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Baij Nath Sharma vs Hon’Ble Rajasthan High Court At … on 2 September, 1998<\/div>\n
Author: D.P.Wadhwa<\/div>\n
Bench: A.S. Anand, D.P. Wadhwa<\/div>\n
           PETITIONER:\nBAIJ NATH SHARMA\n\n\tVs.\n\nRESPONDENT:\nHON'BLE RAJASTHAN HIGH COURT AT JODHPUR AND ANOTHER\n\nDATE OF JUDGMENT:\t02\/09\/1998\n\nBENCH:\nA.S. ANAND, D.P. WADHWA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nD.P.Wadhwa,J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     The appellant,  who  was  a  member  of  the  Rajasthan
\nJudicial Service  (for short  ‘RJS’), is  aggrieved  by\t the
\njudgment dated\tSeptember 17  1997 of  the Division Bench of
\nthe Rajasthan  High Court  dismissing his writ petition (CWP
\nNo. 3455\/97),  wherein he had prayed in effect that his case
\nfor promotion  to the Rajasthan Higher Judicial Service (for
\nshort ‘RHJS’)  be considered from the date when the posts in
\nthe RHJS fell vacant.\n<\/p>\n
     By the  time the  appellant filed\tthe writ petition he
\nhad already  superannuated on  May 31,\t1996. Prior  to\t his
\nretirement, posts in the RHJS were    available\t   in\t the
\npromotional quota  for promotion  of the  appellant. He\t had
\nearlier filed  writ petition  (CWP No.\t1544\/96) in the High
\nCourt seeking his promotion. This earlier writ petition came
\nup for\tadmission before  the High Court on May 27, 1996 and
\nthe following order was passed:-\n<\/p>\n
     “27.5.96: Hon’ble Mr. M.G. Mukherji
\n     Actg.  CJ.\t  Hon’ble  Mr.\tBhagwati
\n     Prasad J.\n<\/p><\/blockquote>\n
     Issue notice  returnable four weeks
\n     after the\tsummer holidays.  Notice
\n     be given  ‘dasti’\tto  the\t learned
\n     advocate.\n<\/p><\/blockquote>\n
\t  We direct that even though the
\n     writ petitioner retires on 31.5.96,
\n     his  case\t is  to\t  be  considered
\n     alongwith the  other  officers  for
\n     the purpose  of  promotion\t to  the
\n     Rajasthan Higher  Judicial Service,
\n     and in  case such\ta  promotion  is
\n     accorded to him nationally his case
\n     would be sympathetically considered
\n     with appropriate directions, as may
\n     be deemed fit and proper.”<\/p><\/blockquote>\n
     That writ\tpetition was  withdrawn by  the appellant on
\nJanuary 8,  1997. Liberty  was, however,  granted to  him to
\nfile a\tfresh writ petition if any occasion arose. The order
\ndismissing the writ petition as withdrawn is as under:-
\n“8.1.97: Hon’ble Mr. M.G. Mukherji CJ.\n<\/p>\n
\t Hon’ble Mr. Bhagwati Prasad J.\n<\/p>\n
     The petitioner  expresses desire to
\n     withdraw\t the\twrit\tpetition
\n     application with  liberty\tto  file
\n     representation\t   in\t     the
\n     Administrative forum.\n<\/p>\n
     He is granted liberty to file fresh
\n     writ   application\t   if\toccasion
\n     arises.\n<\/p>\n
     The writ  application dismissed  as
\n     withdrawn.”\n<\/p>\n
     Subsequent\t writ\tpetition  (CWP\t No.  3455\/97)\t was
\ndismissed in  limine with  the following  order which is now
\nimpugned:-\n<\/p>\n
“17.9.97:\n<\/p>\n
     HON’BLE MR. M.G. MUKHERJI, C.J.
\n     HON’BLE MR. BHAGWATI PRASAD,J.
\n     Mr. H.N. Calla for the petitioner.
\n     We are  of\t the  opinion  that  the
\n     present writ  application is barred
\n     by the  principles of res judicata.
\n     The representation\t as submitted by
\n     the writ  petitioner was considered
\n     by the  Full  Court  and  the  Full
\n     Court in  its Wisdom  rejected  the
\n     same. It  is further contended that
\n     the  Full\tCourt  did  not\t pass  a
\n     speaking\t  order\t     on\t     his
\n     representation. We\t are constrained
\n     to\t hold\tthat  the   matter   was
\n     discussed in the Full Court and the
\n     ultimate decision\twas communicated
\n     to the  writ petitioner.  We do not
\n     think that\t there is  any force  in
\n     this writ\tapplication.  Till  such
\n     time the petitioner retired none of
\n     his  juniors   was\t considered  for
\n     promotion or was given promotion to
\n     the   Rajasthan   Higher\tJudicial
\n     Service. It may be a very sad state
\n     of\t affairs   that\t  he   was   not
\n     considered for  promotion\ttill  he
\n     retired but  that does not make out
\n     any case for interference.\n<\/p><\/blockquote>\n
     The   writ\t   application\t  stands\n     dismissed.\"\n<\/pre>\n
     This order is being challenged by the appellant in this
\nappeal.<\/p><\/blockquote>\n
     The appellant  joined RJS\t on  January 2, 1979. He was
\nconfirmed in  the post\tof Munsif-cum-Judicial magistrate by
\norder dated  December 31,  1980. He  was promoted  as  Civil
\nJudge  (Senior\t Division)-cum-Additional   Chief   Judicial
\nMagistrate on  February 13,  1992 and  by order dated August
\n17,  1993  appellant  was  granted  selection  scale  w.e.f.
\nAugust, 1992.  He retired  on May 31, 1996. After withdrawal
\nof  his\t writ  petition\t (CWP  No.  1544\/96)  the  appellant
\nrepresented on\tJanuary 29, 1997 that his case for promotion
\nto RHJS\t be considered and he be given notional promotion in
\nview of\t the observations  made on  May\t 27,  1996  in\twrit
\npetition. This\trepresentation did  not find favour with the
\nHigh Court  and was rejected by resolution of the Full Court
\ndated  July   3,  1997,\t which\t  was  communicated  to\t the
\nappellant. This\t led the  appellant to\tfile the second writ
\npetition (CWP  No.  3455\/97),  which  as  noted\t above,\t was
\nrejected on  two grounds,  namely,  (1)\t it  was  barred  by
\nprinciple of res judicata and (2) till the appellant retired
\nfrom  service\tnone  of  his  juniors\twas  considered\t for
\npromotion or even promoted to RHJS.\n<\/p>\n
     We do  not think  that High  Court was right in holding
\nthat the  second writ  petition (CWP No. 3455\/97) was barred
\nby  principle\tof  res\t  judicata.   Appellant\t  made\t his
\nrepresentations on  the basis  of observations\tmade by\t the
\nHigh Court  on May  27, 1996  in his  earlier writ petition.
\nWhen this  writ petition  came up  for\thearing\t again,\t the
\nappellant had  retired. He,  therefore,\t withdrew  the\twrit
\npetition. Liberty  was granted\tto him\tto file another writ
\npetition, “if occasion arises”. This certainly does not mean
\nthat fresh  writ petition could be filed only if fresh cause
\nof action arose. In any case fresh cause of action did arise
\nwhen representations  of the  appellant were rejected by the
\nHigh Court  and his  case for  promotion  to  RHJS  was\t not
\nconsidered for\tgiving him  notional promotion. However, our
\nholding\t that\tsecond\twrit  petition\twas  not  barred  by
\nprinciple of res judicata does not help the appellant as his
\nwrit petition  was also\t dismissed on  merit. There  is some
\ncontroversy if\tgrant of  selection grade  to the  appellant
\nwould give  him seniority  over those  officers\t who  though
\nsenior in  the\tseniority  list\t of  RJS  were\tnot  granted
\nselection grade.  Admittedly seniority\tlist was never under
\nchallenge. This\t controversy is,  however, not\tmaterial for
\nour purposes inasmuch as it is not disputed that on the date
\nwhen the  appellant  retired  from  service,  posts  in\t the
\npromotional quota  were available  and the  appellant  could
\nhave been considered for promotion to RHJS in that quota. He
\nwas not\t so considered\tbecause the  High Court\t had taken a
\ndecision by  resolution of  the Full Court dated February 9,
\n1996  not   to\tmake   further\tpromotions   from  RJS\ttill
\nrecruitment from  the bar to RHJS was made. The appellant in
\nhis first writ petition had challenged the resolution of the
\nFull Court not to make promotions to the cadre of RHJS\ttill
\nappointments from  the bar were made. This resolution of the
\nFull Court  he certainly  could not  challenge in the second
\nwrit petition. High Court in its counter affidavit has given
\njustification as  to why  it took  decision not\t to make any
\npromotion to  the cadre\t of RHJS though at the relevant time
\n21 posts  of Additional\t District and  Sessions Judges\twere
\nVacant to  be filled  in by promotion and direct recruitment
\nin the ratio of 3:1 as per Rule 9(2) of the Rajasthan Higher
\nJudicial Service  Rules, 1969.\tThis is\t how the  High Court
\njustified its decision:-\n<\/p>\n
     “The Full Court in its meeting held
\n     on\t  9.2.96    resolved   that   no
\n     promotion\tshall\t  be  made  till
\n     direct  recruitment  is  made.  The
\n     decision to  this effect  was taken
\n     by Full  Court keeping  in view the
\n     inequitable operation  of quota 3:1
\n     which has\tto be maintained between
\n     promotees and  direct  recruits  to
\n     the R.H.J.S.  which was  not  being
\n     done. While  vacancy in  the direct
\n     recruits\t quota\t   were\t   being
\n     determined\t  on\tthe   basis   of
\n     sanctioned strength  of the  cadre,
\n     the promotional  quota strength  of
\n     the cadre,\t the  promotional  quota
\n     was being\toperated on the basis of
\n     the  recruitment.\t There\twere  89
\n     sanctioned posts but factually more
\n     than 200  officers were  working on
\n     the R.H.J.S.  posts. The  posts  in
\n     excess of\t89 were\t being manned by
\n     temporary\/ ad  hoc\t promotees  from
\n     R.H.J.S.\tonly\tand    therefore
\n     factually the  proportion of direct
\n     recruits has  gone\t down  abysmall.
\n     The  embargo   on\tpromotions   was
\n     therefore,\t imposed   by  the  Full
\n     Court to  stop  further  inequality
\n     and imbalance  in\tthe  proportions
\n     between  the   two\t  quotas   which
\n     created  problems\t in  determining
\n     interse seniority\tin  R.H.J.S.  on
\n     the  basis\t  of  Rota-quota   rule.
\n     Therefore, the  Full Court took the
\n     decision\tnot   to   promote   the
\n     officers  from   R.J.S.  cadre   to
\n     R.H.J.S.  cadre   till  the  direct
\n     recruitment is made keeping in view
\n     the inequitable  operation of Rota-
\n     quota rule.  The resolution  passed
\n     by the  Full Court\t in its\t meeting
\n     held on  9.2.96 did not require any
\n     interference of  his excellency the
\n     Governor. Therefore  it is wrong to
\n     contend that  the Full Court has no
\n     wrong  to\tcontend\t that  the  Full
\n     Court has\tno authority to stop the
\n     promotions by way of recruitment to
\n     the  R.H.J.S.   to\t  maintain   the
\n     proportional   representation   and
\n     interse  seniority\t between  direct
\n     recruits and promotees.”<\/p><\/blockquote>\n
     The appellant  could certainly  have a grievance if any
\nof his juniors had been given promotion from a date prior to
\nhis superannuation.  It is  not the  case  there.  From\t the
\npromotional  quota,   four  promotions\twere  made  only  on
\nDecember 30,  1996 i.e.,  after the  appellant had  retired.
\nThose promoted\twere given  promotions from  the  dates\t the
\norders of  their promotions  were issued  and not  from\t the
\ndates the posts had fallen vacant. It is also the contention
\nof the\tHigh  Court  that  these  four\tofficers,  who\twere
\npromoted to  RHJS, were\t senior to  the appellant as per the
\nseniority list.\t The question  which falls for consideration
\nis very\t narrow and that is if under the Rules applicable to
\nthe appellant promotion was to be given to him from the date
\nthe post  fell vacant  or  from\t the  date  when  order\t for
\npromotion is  made. We\thave not  been shown  any rule which
\ncould help  the\t appellant.  No\t officer  in  RJS  has\tbeen
\npromoted to  RHJS prior to May 31, 1996 who is junior to the
\nappellant. Further decision by Rajasthan High Court has been
\ntaken to  restore the  imbalance between the direct recruits
\nand the\t promotees which,  of course,  as  noted  above,  is
\nbeyond challenge.\n<\/p>\n
     In union  of India and others vs. K.K.Vadera and others
\n(AIR 1990  SC 442)  this Court\twith  reference\t to  Defence
\nResearch and  Development Service  Rules,  1970,  held\tthat
\npromotion would\t be effective from the date of the order and
\nnot from  the date when promotional posts were created. Rule
\n8 of  those Rules  did not  specify any\t date from which the
\npromotion would be effective. This Court said as under:-\n<\/p>\n
     “There is\tno  statutory  provision
\n     that the  promotion to  the post of
\n     Scientist ‘B’  should  take  effect
\n     from 1st  July  of\t the  year  that
\n     rightly or wrongly, for some reason
\n     or\t other,\t  the  promotions   were
\n     granted from  1st July,  but we  do
\n     not find  any  justifying\tTribunal
\n     that the  promotions of  the should
\n     be with effect from the date of the
\n     creation\tof   these   promotional
\n     posts. We do not know of any law or
\n     nay rule under which a promotion is
\n     to be  effective from  the date  of
\n     creation of  the promotional  post.
\n     After a  post falls  vacant for any
\n     reason whatsoever,\t a promotion  to
\n     that post\tshould be  from the date
\n     the promotion  is granted\tand  not
\n     from the  date on\twhich such  post
\n     falls    vacant.\t  In\tcreated,
\n     promotions to  those posts\t can  be
\n     granted only  after the  Assessment
\n     Board  has\t  met\tand   made   its
\n     recommendations   for    promotions
\n     being granted.  If on the contrary,
\n     promotions are  directed to  become
\n     effective\tfrom  the  date\t of  the
\n     creation of  additional posts, then
\n     it would  have the effect of giving
\n     promotions\t   even\t   before    the
\n     Assessment\t Board\t has   met   and
\n     assessed  the  suitability\t of  the
\n     candidates for  promotion.\t In  the
\n     circumstances, it\tis difficult  to
\n     sustain   the   judgment\tof   the
\n     Tribunal.<\/p><\/blockquote>\n
     It is  regrettable because\t of the inaction on the part
\nof the\tHigh Court  that recruitment  from bar\tcould not be
\nmade in\t time which  created an imbalance in the service and
\nultimately it  were the\t appellant  and\t officers  similarly
\nplaced who  suffered. After  having put\t in  long  years  of
\nservice it  is the  seniority and promotion which an officer
\nlooks forward  to. He  expects he  is given due promotion in
\ntime. Non  promotion may be an incidence of any service. But
\nhere the  appellant  has  been\tdeprived  of  his  promotion
\nwithout any  fault of  his. High Court said that it might be
\nsad state  of affairs that the name of the appellant was not
\nconsidered for\tpromotion till\the retired.  High Court\t may
\nfeel anguish  but it  gives no\tcomfort to the appellant. At
\nleast for future such an unfortunate thing should not happen
\nto any\tother officer similarly situated. This malaise which
\nabysmally afflicts  any service\t when there  is\t recruitment
\nfrom  different\t sources  when\tthere  is  recruitment\tfrom
\ndifferent sources crops up in the one form or the other with
\ngreat disadvantage  of one or the other. But then service is
\nnot constituted\t merely for  the benefit  of the officers in
\nthe service  but with  a certain  purpose in view and in the
\npresent case  for dispensing justice to the public at large.
\nit is  not at  all advisable  to keep  any post in judiciary
\nvacant for  days when  the courts  are burdened with arrears
\nand litigants  are the\tones who  suffer. We expect the High
\nCourts to  be vigilant\tand to\tfill up\t the posts in direct
\nquota in  time and if the bar quota cannot be filled for any
\nreason fro  no fault of the promotee officers their case for
\npromotion should  not be kept pending till some of them even
\nsuperannuate. When  the process\t for  recruitment  from\t Bar
\nbegins and  it is  expected that posts for direct quota will
\nbe  filled  up\tsoon,  during  the  intervening\t period\t the
\nofficers in  the subordinate  service can  be given  ad\t hoc
\npromotions without  their  right  to  claim  seniority\tover
\ndirect recruits,  who may  join later.\tFunctioning  of\t the
\ncourts must not stop.\n<\/p>\n
     With these observations we would dismiss the appeal and
\nleave the parties to bear their won costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Baij Nath Sharma vs Hon’Ble Rajasthan High Court At … on 2 September, 1998 Author: D.P.Wadhwa Bench: A.S. Anand, D.P. Wadhwa 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-31079","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBaij Nath Sharma vs Hon'Ble Rajasthan High Court At ... on 2 September, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/baij-nath-sharma-vs-honble-rajasthan-high-court-at-on-2-september-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Baij Nath Sharma vs Hon'Ble Rajasthan High Court At ... on 2 September, 1998 - 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