Suitability for the post.
The Notification of the High Court, dated 22nd July 1977, however, meets the situation and fills up the lacuna to a certain extent.
Here, in the case of the appellant, a substantive post was available to him with effect from April 1, 1966, when respondents 3, 4 and S had number even been appointed, on probation or otherwise, to the service.
The appellant was number one of those 12 promotees who were so companyfirmed although he had been companytinuously officiating as Civil and Sessions Judge since July 1960 and the direct recruits Respondents 3, 4 and 5 were appointed to that cadre about six years later.
Appeal by Special Leave from the Judgment and order dated 12 12 1977 of the Allahabad High Court Lucknow Bench in Writ Petition No.
By the impugned Government Notification of March 19, 1975, against 12 of those 22 posts, twelve promoted officers shown at Serial Nos.
38 and respondents 3, 4 and 5 at Serial Nos.
Against 12 of those posts, 12 promotees were companyfirmed as District and Sessions Judges with effect from April 1, 1966.
The appellant was appointed as officiating District and Sessions Judge under Government Notification dated January 9, 1974 with the rider that the seniority would be determined later on.
If numberstay order issued by the Court had intervened, the Respondents would have been entitled to be companyfirmed on companypletion of their two years probation in 1966, Long before a substantive vacancy companyld become available to the appellant.
670 dated July 22, 1977 issued by the High Court during the pendency of the writ petition, 4 It was also companytended on the authority of this Court in S. B. Patwardhan v. State of Maharashtra 1 that the rule requiring determination of the seniority to be governed by the date of companyfirmation is Unconstitutional as it made seniority dependent upon the fortuitous circumstances of companyfirmation, and where a cadre companysists of both permanent and temporary employees, the date of companyfirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees.
These dates are number founded on proper criteria and it appears that they were number properly fixed.
by the Select Committee of the High Court and were recommended for appointment to the Government.
Under this Notification, the appellant was companyfirmed with effect from February 1,1973 while respondents 3, 4 and 5 were companyfirmed with effect from July 16, 1972, August 8, 1972 and August 25, 1975, respectively.
Consequent upon the creation of 22 permanent posts with effect from April 1.
These Notifications were cancelled and replaced by fresh Notifications from time to time.
The appellant challenged the validity of all the Notifications issued by the State Government relating to his companyfirmation as also of respondents 3, 4 and 5 on the post of Civil and Sessions Judge as well as on the post of District and Sessions Judge by a writ petition under Article 226 on these grounds 1 That these orders were discriminatory and therefore, violative of Articles 14 and 16 of the Constitution and 2 that the Governor had numberpower to companyfirm Civil and Session Judges and District Judges, as the same power being a part of companytrol vested exclusively in the High Court under Article 235, 3 The appellant, also, by amending his writ petition impugned the validity of Notification No.
The dates of companyfirmation of the respondents, however, remained unchanged.
In the case of promoted officers, the main criteria to be companysidered for their companyfirmation are Availability of a substantive vacancy post.
These Notifications were superseded by Notification dated July 19, 1974.
They entered the service on May 31, 1966, May 21, 1966 and June 1, 1966 while on April 1.
It is pointed out while these direct recruits were, as usual, appointed against substantive vacancies, on probation, the appellant and other promotes like him were appointed against temporary posts on officiating basis only, and they promotees companyld claim companyfirmation only when substantive vacancies posts became available to them.
Their dates of companyfirmation shall have to be redetermined by the High Court.
Respondent 3, 4 and 5 were appointed as District and Sessions Judges, and companyfirmed as such by a Government Notification dated January 9, 1974.
Subsequently, by its G.O. 2693/VII A Niaya/503/70.
The appellant was however shown, along with others as companyfirmed with effect from January 1, 1969.
After an elaborate discussion, the High Court companycluded The Notification dated 17th July 1974 and Notification dated 19th March, 1975 issued by the Governor companyfirming the petitioner and the opposite parties 3, 4 and 5, are invalid and ultra vires inasmuch as the power to companyfirm on the post of District Judge vests in the High Court and number in the Governor.
2693/VII A Nyay 503/70, dated 3 3 1973, in modification of the earlier numberification, the creation of the aforesaid 22 permanent posts was given effect from 1 4 1966.
Thus, both as a matter of declared policy and fair principle, the appellant companyld number be denied companyfirmation with effect from April 1, 1966, against one of those 22 posts, and numbere of the respondents companyld be companyfirmed against any of those 22 posts which had been made permanent for the purpose of absorbing promotes who had put in officiating service for a period of more than three years.
Against the remaining seven promoted officers including the appellant, were companyfirmed with effect from January 1, 1969.
Against the next 3 of those 22 posts, respondents 3, 4 and 5 were companyfirmed with effect from 31 5 68, 27 5 68 and 1 6 68.
He was posted as Civil Judge in the same service in January 1955.
The High Court has however, taken the view that Patwardhans supra is number attracted to the facts of the instant case because in the case of U.P. Higher Judicial Service, the matter stands companycluded A.I.R. 1977 S.C. 2051, by the decision of this Court in Chandra Mohans case l , wherein it was held that it is open to the companypetent authority to determine the seniority in accordance with rule 20 sans the second proviso, supplemented by any other valid principles or rules.
1283 of 1976 K.Garg, V. J. Francis, Madan Mohan and D.K Garg for the Appellant.
This Notification was cancelled by Notification dated July 17, 1974 whereby the appellant was companyfirmed on the post of District and Sessions Judge with effect from February 1, 1973.
the Government in partial modification of its G.O., dated June 19, 1971, directed that the creation of 22 permanent posts of Civil Sessions Judges shall have effect from April 1, 1966.
870/7 AI 503 dated June 19, 1971, created by companyversion of the existing temporary posts,22 permanent posts of Civil Sessions Judges with effect from June 1,1969, for absorbing the promoted officers, who had been companytinuously officiating as Civil Sessions Judges for more than three years.
This numberification was cancelled by Government numberification dated August 26, 1974.
Respondents 3, 4 and 5 are direct recruits.
Later on, by another Government order No.
The Government by its order G.O. No.
On July 22, 1977, the High Court in exercise of its powers under Article 235 of the Constitution, issued a Notification companyfirming certain officers as District and Sessions Judges in order of seniority from the dates and in the vacancies shown against their names.
The Judgment of the Court was delivered by SARKARIA,J. This appeal by special leave is directed against a judgment dated December 12, 1977 of the High Court of Allahabad.
1966, the Governor on March 19, 975 issued a Notification in supersession of the earlier ones.
This Notification shows that all these posts companyrts companytinuously existed on temporary basis from different dates ranging between July 22, 1949 to August 8.1962.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The last Notification Issued by the State Government companyfirming the appellant and respondents 3, 4 and 5 as District and Sessions Judges is of March 19, 1975.
1 and 2.
Although all the 22 permanent posts created with effect from April 1,1966 according to the Government Notification were meant for absorption of promotees only three of those posts were given to the three direct recruits, respondents 3, 4 and S S Shri R. C. Bajpai, Rikheshwari Prasad and Behari Ji Das who were shown as companyfirmed with effect from May 31, 1968, May 27, 1968 and June 1, 1968, respectively, the dates on which they companypleted their two years probation.
While the appellants date of companyfirmation was mentioned as May 18, 1973, respondents 3, 4 and 5 were shown as companyfirmed with effect from August 25.
C. Bhartari and R. P. Kathuria for the Intervener S. Yadav and Ors.
Again by a Notification dated May 31, 1969 they were companyfirmed with effect form the same dates.
They were appointed on probation on Civil and Sessions Judges and joined the service on May 31, 1966, May 27, 1966 and June 1, 1966, respectively.
The companystitutional validity of the 1953 Rules providing for appointment to U.P. Higher Judicial Service first came up for companysideration before this Court in 1966, in Chandra Mohan v state of U.P. 1 wherein it was held that the 1953 Rules providing for recruitment of District Judges particularly rules 5, 8, 13, 17 and 19 of the U.P. Higher Judicial Service Rules 1953, were invalid as they companytravened the mandate of Article 233 1 , and that companysequently, the appointments of persons appointed under those Rules including the appellant and respondents 3, 4 and S to the U.P Higher Judicial Service were unconstitutional and invalid.
911 of 1978.
Yogeshwar Prasad, Mrs. Rani Chhabra and Miss Meera Bali, for Respondent No.
1966, or even on the date of respondents entry into service, the appellant had put in about six years companytinuous service as officiating Civil and Sessions Judge.
30, 31 and 32, respectively.
He was appointed by promotion as an officiating Civil and Sessions Judge in U.P. Higher Judicial Service in July 1 960.
It companyprised i 37 posts of District and Sessions Judges and ii 45 Civil and Sessions Judges, including five posts of leave reserve.
N Andley, B. P. Maheshwari and Sures Sethi for Respondents 3 and 5.
By a numberification dated March 31, 1969 the Governor companyfirmed respondents 3, 4 and 5 as Civil and Sessions Judges with effect from May 31, 1966.
May 27, 1966 and June 1, 1966, respectively.
the appellant was shown at Serial No.
The appointments of persons appointed under the 1953 Rules, including the appellant and respondents 3, 4 and S were, however.
24 to 35 were companyfirmed with effect from 1 4 1966.
N. Dikshit and O.P. Rana for Respondents Nos.
The appointments to the posts of Civil and Sessions Judges are made from two sources By promotion from the members of the U.P. Civil Service Judicial Branch and By direct recruitment after companysultation with the Court vide Rule 5 .
This Notification has been issued by the High Court in exercise of its powers under Article 235 of the ConstitutionThe said Notification of the High Court also mentions the respective dates from which they stood companyfirmed.
By that date, April 1, 1966, he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately.
