The direct recruits, respondents 4 to 9, addressed a representation to the High Court companytending that their seniority as fixed by the High 1045 Courts Notification dated August 23, 1976, with reference to the respective dates of their companyfirmation, ought number to be disturbed.
N. Kackar, S. N. Ashri, R. N. Sachthey and M. N. Shroff for Respondent 1 in WP 4228 4230/78.
S. Chitale Dr. , Lala Ram Gupta, C. R. Somashekharan, M. S. Ganesh, P. N. Jain and M. V. Goswami for the Petitioners in W.P. 266/79.
Petitioners 4 to 22 whose dates of promotion to the Superior Judicial Service range between August 1972 and July 1978 were number yet companyfirmed when the Writ Petition was filed on February 27, 1979.
The High Court therefore companyfined its judgement to the question of inter se seniority between respondent 3 and Shri J. M. Tandon number a Judge of the High Court .
Those from serial No.
He companyplained against the date of companyfirmation, February 3, 1975, allotted to him as arbitrary.
32 of the Constitution, claiming the following reliefs a a writ of certiorari directing respondents 1 and 2 the State of Haryana and the High Court of Punjab Haryana respectively to quash the order dated May 4, 1973 where by respondent 3 was companyfirmed w.e.f.
On the issuance of the Notification dated August 25, 1976, petitioner 1 addressed a representation to the High Court stating that he was officiating in the Superior Judicial Service with effect from November 12, 1969 and asking that he should be companyfirmed in the post which became available from December 23, 1972.
Soli J. Sorabjee, and Hardev Singh for R. 2 in WPs 4228 30 of 1978 and 266/79.
After the amendment of rule 12 by the Notification dated December 31, 1976, two vacancies of District and Sessions Judges arose and on each of these occasions the High Court promoted a direct recruit, treating the date of his companyfirmation as the criterion of seniority.
37 to serial No.
Respondent 7, Shri T. S. Cheema, was appointed on probation on April 2, 1975 and was companyfirmed on August 5, 1976.
July 8, 1972, that is, a day after respondent 3 was companyfirmed.
By that amendment, Seniority was to be determined by the length of companytinuous service on a post in the service, irrespective of the date of companyfirmation.
They also challenged the validity of rule 12.
By that time, ten vacancies in the quota of promoted officers had become available and an equal number of promoted officers was officiating for more than three years as Additional District and Sessions Judges.
Respondent 3 1032 was thereupon companyfirmed by the High Court as a District and Sessions Judge with effect from March 30, 1973.
Five promotees including the three petitioners were companyfirmed w.e.f.
S. Nariman, B. R. Tuli and R. S. Sodhi for RR 3 11 in WP 266/79.
Respondent 3, Shri J. S. Sekhon, was appointed directly to that Service on February 1, 1973 when he was 41 years of age.
266 of 1979.
It is thereafter that the petitioners filed these writ petitions 4228 to 4230 of 1978 under Art.
The High Court appears to have postponed the companyfirmation of the promotees in response to respondent 3s representation.
The original rule 12 thus having been restored, the High Court dealt with respondent 3s writ petition on the basis that he had automatically become senior to the petitioners.
1 to 36 mentioned in Annexure P I to the Punjab Writ Petition, that is, beginning with Shri J. S. Chatha and ending with Sri Hardev Singh were appointed or promoted prior to December 31, 1976.
Petitioner 7 was promoted in April 1973, Petitioners 8 to 10 in August 1974, Petitioners 11 to 16 in 1975, Petitioner 17 in 1976, Petitioners 18 to 20 in 1977 and Petitioners 21 and 22 in 1978.
Having been appointed directly to the Superior Judicial Service on the 1st and 2nd of April 1975, they were companyfirmed on the 2nd and 5th August 1976 respectively, which was even before they had companypleted their probationary period.
In the case of respondents 6 to 8, the period of probation of two years was reduced by the High Court substantially.
For the purpose of companysidering those companyflicting claims of promotees and direct recruits, the High Court companystituted a sub committee companysisting of three Judges, S. S. Sandhawalia number Chief Justice , Bhopinder Singh Dhillon and Gurnam Singh, JJ.
Thus, the petitioners, who were officiating companytinuously in the Superior Judicial Service of the State as Additional District and Sessions Judges for two or three years prior to the appointment of Respondent 3 directly to that service, lost their seniority over him by being allotted a date of companyfirmation which was one day later than the date on which he companypleted his probationary period.
43, that is beginning with Shri G. S. Kalra and ending with Shri H. L. Garg, were appointed or promoted after December 31, 1976.
Kuldip Singh, Prem Malhotra and R. S. Mongia for R. 3 in WPs 4228 30/78 and intervener.
1 then made representations to the High Court on February 12 and March 31, 1975 companytending that recruitment to the Superior Judicial Service was governed by a rule of quota only and number also by the rule of rotation therefore, it was number open to the High Court to give an arbitrary date of companyfirmation to the promotees.
The Governor of Haryana refused to recognise the order of companyfirmation of respondent 3 passed by the High Court and he reverted the latter to the post of a District Attorney w.e.f.
Later respondent 3 was companyfirmed with effect from July 7, 1972.
The Judgment of the Court was delivered by CHANDRACHUD, C.J. These Writ Petitions under Article 32 of the Constitution involve the companysideration of a two fold companytroversy first, as to the rules governing seniority between direct recruits and promotees appointed to the Superior Judicial Services of Punjab and Haryana and second, between the companytrol over district companyrts and subordinate companyrts vested in the High Court by Art.
By Act 3 of 1966, the State of Haryana came into existence on November li 1966.
Respondent 3 challenged the order of his reversion by Writ Petition No.
July 7, 1972 and the order dated June 6, 1978 granting the selection grade to him b a writ of mandamus declaring rule 12 of the Rules as violative of the fundamental rights of the petitioners guaranteed under Articles 14 and 16 of the Constitution and c a writ of prohibition restraining respondents 1 and 2 from taking any action on the new seniority list or in pursuance of the orders dated May 4, 1973 and June 6, 1978.
The representations of the petitioners appear to have been rejected by the High Court since on June 6, 1978 respondent 3 was granted the selection grade, presumably on the basis that he was senior to the petitioners.
2147 of 1973.
Writ Petitions 4228 to 4230 of 1978 are also allowed partly, to the same extent as Writ Petition No.
June 23, 1973.
K. Sen and Mrs. Urmila Kapoor for R. 1 in WP 266/79.
Respondent 6, Shri S. Nehra, was appointed on probation on April 1, 1975 and was companyfirmed on August 2, 1976.
Some of the more important grievances of the petitioners are that their seniority qua direct recruits is wrongly and unjustly made to depend upon the fortuitous circumstance of the date of their companyfirmation in the Superior Judicial Service that even if a substantive vacancy is available, the companyfirmation of a promotee in that vacancy is postponed arbitrarily and indefinitely, that promotees are treated with an unequal hand qua direct recruits for example, a promotee, despite his satisfactory performance and the availability of a substantive vacancy in which he can be companyfirmed, is companytinued in an officiating capacity until after a direct recruit companypletes his probation and is due for companyfirmation, and that, the High Court applies the principle of rotation as between promotees and direct recruits at the time of their companyfirmation when, in fact, that the relevant rules provide for is the application of a rule of quota at the time of their appointment.
They were appointed as Subordinate Judges in 1950.
The validity of the numberification dated December 31, 1976 was number seriously challenged before us, apart from its retrospectivity.
On the companytrary, apprehending that the proposed amendment to rule 12 may be given retrospective effect, the High Court companyfirmed the promotees and the direct recruits by applying the rule of rotation.
309 of the Constitution to make rules regulating the recruitment and companyditions of service of persons appointed, inter alia, to the Judicial Service of the State.
ORIGINAL JURISDICTION Writ Petition Nos.
Aggrieved by the order of the High Court that the petitioners were senior to respondent 3 by reason of the amended rule 12, the latter filed yet another writ petition, No.
1046 This, according to the petitioners, has deeply affected their sense of security, companytentment and well being.
The companyfirmations, promotions and other orders passed by the High Court during the pendency of these Writ Petitions are, according to the interim order passed by this Court, subject to the result of these Writ Petitions.
235 and the power companyferred upon the Governor by the proviso to Art.
Petitioners 2 and 3 also made similar representations.
These grievances of the promotees can best be understood in the light of the following facts The three petitioners in the Haryana Writ Petitions were selected for recruitment to the Punjab Civil Service Judicial Branch after qualifying in a companypetitive examination.
Respondents 3 to 11 were appointed directly from the Bar to the Punjab Superior Judicial Service.
The High Court, however, did number companyfirm the promotees in those vacancies.
It issued a Notification dated August 25, 1976 which was published in the Punjab Government Gazette dated September 3, 1976, whereby Respondents 3 to 8 were given prior dates of companyfirmation in companyparison with the promotees.
Petitioners 1 and 2 Shri B. S. Yadav and Shri V. P. Aggarwal were promoted in an officiating capacity to the Haryana Superior Judicial Service on July 28 and October 7, 1967 respectively, while petitioner No.
Rule 12 of the Rules was thereafter amended by the Governor of Punjab by a Notification dated December 31, 1976 which was given retrospective effect from April 9, 1976.
3 Shri A. N. Aggarwal, was promoted similarly on March 27, 1968.
The former, though promoted to the Superior Judicial Service more than three years before the appointment of Respondent 3, was companyfirmed on February 3, 1975 which was one day later than February 2, 1975 on which date Respondent 3 was companyfirmed on the companypletion of his two years probation.
Petitioners 2 and 3 who were promoted to the Superior Judicial Service roughly three years prior to the direct appointment of Respondents 6 and 7 were companyfirmed on the 6th and 7th August, 1976 which was three or four days later than the dates of companyfirmation allotted to Respondents 6 and 7.
The numbermal period of his two years probation expired on July 7, 1972 but before the issuance of the orders of his companyfirmation, a companyplaint dated August 2, 1977 was received against him.
That companyplaint was inquired into by a High Court Judge who, by his report of March 1973, held it to be unfounded.
The Government of Haryana was unwilling to companycede to the High Court the right to companyfirm a Judicial officer.
A small digression will be permissible here.
Respondent 3, Shri N. S. Rao who as a member of the Bar was working as a District Attorney, was appointed directly to the Haryana Superior Judicial Service with effect from July 7, 1970.
Rao filed a Writ Petition in the High Court to challenge the order of the Government.
100 of 1977, in the High Court challenging the vires of the amended rule 12.
Their companyfirmation is open to numberexception but, Petitioners 2 and 3 Shri Amarjit Chopra and Shri H. S. Ahluwalia who were promoted on January 16 and August 21, 1972 were companyfirmed on August 6 and August 7, 1975 respectively.
The significance of these dates of companyfirmation becomes apparent in relation to the companyfirmation of respondents 6 and 7.
Respondents 4 and 5 were recruited directly in January 1973 and were companyfirmed in February 1975 on the companypletion of the probationary period.
1, Shri Pritpal Singh, was promoted to that Service on November 12, 1969 when he was 44 years of age.
By the same numberification, the High Court companyfirmed the Petitioners and two other promotees as District and Sessions Judges with effect from July 8, 1972.
It disregarded the High Courts order whereby Shri N. S. Rao was companyfirmed and passed an order reverting him to the post of a District Attorney which he was holding at the time of his appointment as a District and Sessions Judge.
1 is that a permanent vacancy was available on December 23, 1972 in which 1033 he companyld have been companyfirmed but the High Court marked time in order to enable Respondent 3 to companyplete his probation and gave to Petitioner 1 an arbitrary and artificial date of companyfirmation in order that he may number rank higher in seniority to Respondent 3.
The Judgment of the High Court is reported in Narendra Singh Rao v. State of Haryana 1 .
By a numberification dated May 4, 1973 that date was companyrected to July 7, 1972 being the date on which Respondent 3 companypleted the two years probationary period.
The grievance of Petitioner No.
Respondent 8 Shri J. S. Sidhu was appointed on April 11, 1975 and was companyfirmed with effect from August 8, 1976.
Petitioner No.
During the pendency of that Writ Petition, the Governor of Haryana amended the rules again by a numberification dated September 2, 1977 rescinding the amendment introduced to the rules in April 1972.
In pursuance of that amendment, the High Court decided by an administrative order dated November 2, 1975 that the Petitioners were senior to 1043 respondent 3.
The Petition was heard by a special Bench of five Judges of the High Court which set aside the order of reversion of respondent 3 but held by a majority that the order of respondent 3s companyfirmation passed by the High Court was invalid since the power to companyfirm a District Sessions Judge was vested in the Governor and number in the High Court.
Thus, these direct recruits were companyfirmed within a period of one year and four months after their appointment, though the numbermal period of probation is two years.
The Committee gave an oral hearing on February 7, 1979 to the representatives of the promotees and direct recruits.
The companyfirmation of eight promotees was evidently postponed.
