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TMI Blog2002 (2) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges would reckon their seniority from the date of their promotion. In the writ petition that had been filed, Smt. U.R. Joshi, a direct recruit District Judge had been arrayed as respondent No. 3 in her individual capacity as well as representative of the direct recruit nominated District Judges. She however appeared in her individual capacity alone and amongst the direct recruits, she was the senior-most. When the case had appeared before the Court on 16.1.2002, and even though a statement was made by the counsel appearing for the promotee-petitioners that individual notices to each of the direct recruit had been offered, even though they had not been arrayed as parties, an application for being impleaded as party respondents had been made by several such direct recruits and the prayer for impleadment has been allowed and time had been granted to the impleaded direct recruits respondents to file counter affidavit within ten days from that date. The impleaded direct recruits have filed their counter affidavit and were represented by Shri M.L. Verma, the learned senior counsel. Respondent No. 3, the senior-most direct recruit District Judge was represented by Shri Bhimrao N. Naik. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment to the post of District Judges could be made by the Governor by promotion in consultation with the High Court of persons, who have served as Assistant Judges and from the Members of the Bar, on recommendation of the High Court, who have practised as Advocates or pleaders for not less than seven years. Thus, the cadre of District Judge could be filled up either by promotion of the Assistant Judges or by direct recruitment from the Bar. Under the Amended Rules of 1987, there existed two grades of the District Judges viz. the District Judges and Selection Grade District Judges. In accordance with Rule 5(2)(ii) of 1987 Rules, appointment to the post of District Judges could be made by the Governor by promotion from the Members of the Junior Branch, who had ordinarily served as Additional District Judges and by way of direct recruitment on the recommendation of the High Court from the members of the Bar who have practised as Advocates or pleaders for not less than seven years in the High Court or Courts subordinate thereto. In case of direct recruits, a further stipulation was that direct recruits would be first appointed to work as Additional District Judge for a period of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and those by appointment from members of the Bar under sub-clause (b) of clause (ii) shall be 50:50. It would thus be seen that under the Rule as it now stands, appointment from members of the Bar is made under sub- clause [c] and not under sub-clause [b] as indicated above and promotion is made under sub-clause [b] and not under sub-clause [a] as indicated above. The entire confusion is because of the fact that while draft rules suggested an addition of a clause as clause [c], the final rule altered the same and the additional clause was made clause [a]. The seniority in the cadre of District Judges with which we are actually concerned in the present case is governed by clause [c] of Rule 5(2) and the same is extracted herein below: [c] Seniority in the cadre of District Judges in case of persons appointment under sub-clauses (a) and (b) of clause (ii) shall be determined on the basis of their dates of appointment to work as District Judges. If a literal interpretation of the seniority rules is to be given, then it must be held that there is no rule for seniority of the District Judges, who are appointed by nomination on the recommendation of the High Court from amongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Judges: Provided that, if more than one person is so appointed to work as District Judge on the date, seniority inter se as between them shall be in the order fixed by the High Court. In course of hearing, to our query, the counsel appearing for the High Court, on instructions, submitted that there is not a single person in the cadre of District Judge, who has come by way of transfer from the Judges in the City Civil and Sessions Court, who had been recruited from the Bar and only one person who had come, had gone back. Mr. Nageshwara Rao, appearing for the promotees, contended that the administrative decision of the High Court, determining inter se seniority between the promotees and direct recruits has been made on the basis of the Judgment of this Court in Balasaheb Vishnu Chavan vs. State of Maharashtra and Ors., 1984(2) S.C.C. 675, in which case, the provisions of the Recruitment Rules, as it stood prior to its amendment in 1987 was under consideration. At that point of time, there was no rule for determination of inter se seniority between the direct recruits and promotees, which was brought about by amendment of 1987 and has also been retained under the 1992 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who have practised for not less than seven years, would be entitled to reckon his seniority in the cadre of District Judge only when he is appointed to work as a District Judge and not the initial period of probation for two years when he is appointed to work as an Additional District Judge. Mr. M.L. Verma, the learned senior counsel, appearing for the direct recruits as well as Mr. Bhimrao N. Naik, appearing for respondent No. 3, however contended that the seniority rule as provided in Rule 5[2][c] does not deal with the seniority in the cadre of District Judge and those members, who are directly recruited from the Bar on the recommendation of the High Court, after being selected and the aforesaid rule of seniority is intended for determining inter se seniority between the promotees and those who are appointed as District Judge by transfer from the Judges in the City Civil and Sessions Court. According to Mr. Verma, even the prescription of ratio of 50:50 in Rule 5(2)(b) is between the transferee District Judges and the promotee District Judges and not between the direct recruit District Judges and promotee District Judges. The learned counsel urged that in the cadre of Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government. We, therefore, direct that appropriate amendment of Rule 5(2) of the Recruitment Rules be made at an early date. Notwithstanding the confusion which writ large in the provisions, as stated earlier, we have no manner of doubt that the seniority of the direct recruit District Judges in the cadre would reckon only from the date, they are appointed to work as District Judge. The expression to work as both in Rule 5(2)(iii)(a) and Rule 5[2][c] must carry the same connotation. If under Rule 5(2)(iii)(a), direct recruit cannot be appointed as a District Judge unless he is first appointed to work as Additional District Judge for a period of two years, it is difficult for us to comprehend that while interpreting the same expression to work as District Judge in Rule 5[2][c] can be given a meaning that it would reckon from the date of appointment, as has been done by the Bombay High Court in its administrative decision. In other words, a conjoint reading of the provisions, providing for appointment as District Judge from amongst the members of the Bar by nomination on the recommendation of the High Court as well as the embargo on such appointment, as provided in Rule 5(2)( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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