2016 (4) TMI 1425 - SC - Indian Laws

Seeking direction to the respondents to create cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 1.7.1996 - HELD THAT - It is pointed out that the Himachal Pradesh Judicial Officers (Pay, Allowances and Conditions of Service) Act, 2003 (hereinafter referred to as 'the Act of 2003') and Himachal Pradesh Judicial Service Rules, 2004 (hereinafter referred to as 'the Rules of 2004') have already come into force. Section 1(3) of the Act of 2003 states that the Act should be deemed to have come into force on 1st day of July, 1996. The cadre of Civil Judge (Senior Division) was constituted from 20th March, 2004. As per Rule 3 of the Rules of 2004 the following categorization in the cadre of Civil Judge (Senior Division) and Civil Judge (Junior Division) has been formulated. However, sub-Rule (2) of Rule 1 of the Rules of 2004 states that the Rules shall come into force from the date of publication in the Official Gazette and the Gazette Publication was on 20th March, 2004. In the light of the said prescription made in the Rules after the categorization was made under Rule 3(3), the grievance of the applicant has now surfaced. The grievance of the applicant, as rightly pointed out by Mr. Patil, learned senior counsel, based on their prescription contained in Section 3 of the Act of 2003 read along with Section 4, even if the categorization came to be made under the Rules of 2004, the same should have been given effect rto retrospectively, in consonance with the specific provisions contained in the referred Sections 3 and 4 of the Act of 2003 - the prescription under sub-Rule (2) of Rule 1 of the Rules of 2004 and the Gazette Publication dated 20.3.2004 cannot supersede the specific provision contained in Section 3 and 4 of the Act of 2003, more so, when the Act of 2003 was deemed to have come into force with effect from 1st day of July, 1996. Thus, the first prayer of the petitioner merits acceptance and the same is granted and the respondents are directed to create cadre of Civil Judge (Junior Division) and Civil Judge (Senior Division), as prescribed under the Rules of 2004, and give effect to the same on and from 1.7.1996 with all consequential benefits accrued to those officers who hold the respective cadre post as from that day. Seeking direction to the respondents to follow post based roster in appointments to the cadre of District Judges with effect from 31.3.2003 - HELD THAT - It is required to ascertain as to how the 34 point roster for the three different channel are to be worked out. The High Court is, therefore, directed to apply Rule-13 which prescribes as to how seniority to be drawn by applying the said Rules, ascertain the roster point for the three different categories of promotees and direct recruits and carry out the said exercise from 31.3.2003. The High Court is directed to place the said Report after carrying out the said exercise, to pass further orders. We only direct the High Court to carry out the said exercise within a period of two months - List on 14.7.2016.

Summary

Issues Involved:
1. Impleadment and Notice
2. Compliance with G.O. 86 by States and High Courts
3. Withdrawal of Application
4. Impleadment and Filing of Reply Affidavit
5. Creation of Cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division)
6. Post-Based Roster for Appointments to the Cadre of District Judges

Detailed Analysis:

1. Impleadment and Notice:
The court allowed the impleadment applications (IA No. 335, 336, and 339) and issued notices. The respective Standing Counsel for the respondent-States, Union of India, and the High Courts accepted and waived formal notice.

2. Compliance with G.O. 86 by States and High Courts:
The court directed counsel appearing for various States and High Courts to get instructions for passing necessary orders in tune with G.O. 86 dated 19th July 2013, issued by the State of Andhra Pradesh in compliance with the court's order dated 8th October 2012. The matter was listed for 12th May 2016.

3. Withdrawal of Application:
The application (IA No. 341) was dismissed as withdrawn to move the High Court.

4. Impleadment and Filing of Reply Affidavit:
Applications for impleadment (IA Nos. 337 and 338) were allowed, and four weeks' time was granted for filing reply affidavits. The matter was listed for 14th July 2016.

5. Creation of Cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division):
The applicant sought a direction to the respondents to create cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 1.7.1996. The court noted that the Himachal Pradesh Judicial Officers (Pay, Allowances and Conditions of Service) Act, 2003 (the Act of 2003) and Himachal Pradesh Judicial Service Rules, 2004 (the Rules of 2004) had already come into force. Section 1(3) of the Act of 2003 deemed the Act to have come into force on 1st July 1996. Sections 3 and 4 of the Act of 2003 provided for the pay scales and conditions of service with retrospective effect. The court was convinced that the categorization under the Rules of 2004 should have been given effect retrospectively from 1st July 1996, in line with Sections 3 and 4 of the Act of 2003. The court granted the first prayer of the petitioner, directing the respondents to create the cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) from 1.7.1996 with all consequential benefits.

6. Post-Based Roster for Appointments to the Cadre of District Judges:
The second prayer was for a direction to the respondents to follow a "post-based roster" in appointments to the cadre of District Judges from 31.3.2003. The court referred to paragraph 49 of the judgment in All India Judges' Association and Others v. Union of India and Others (2002) 4 SCC 247, which directed the adoption of appropriate rules and methods by the High Courts and States by 31.3.2003. The court noted that the High Court had drawn a 34-point roster and notified the relevant rules, including Rule 13, which specified the method for determining seniority. The court directed the High Court to apply Rule 13 to ascertain the roster points for the three different categories of promotees and direct recruits from 31.3.2003 and to place the report before the court within two months. The matter was listed for 14th July 2016 for further orders on its implementation.

Conclusion:
The court addressed multiple issues, including the creation of judicial cadres with retrospective effect and the implementation of a post-based roster for District Judges, directing compliance and further action by the High Courts and States as per the specified timelines.