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TMI Blog1980 (11) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petitions 4228 to 4230 of 1978 are filed by three-Judicial Officers of the State of Haryana who are promotees, that is to say, who were promoted to the Superior Judicial Service of the State from the Haryana Civil Service (Judicial Branch). Respondents 1 and 2 to those Writ Petitions are the State of Haryana and the High Court of Punjab and Haryana respectively. Respondent 3, Shri N.S. Rao, is a direct recruit, having been appointed from the Bar to the Haryana Superior Judicial Service. Writ Petition 266 of 1979 is filed by twenty-two promotees, that is to say, those who were promoted to the Punjab Superior Judicial Service from the Punjab Civil Service (Judicial Branch). Respondents 1 and 2 to that petition are the State of Punjab and the High Court of Punjab and Haryana respectively. Respondents 3 to 11 were appointed directly from the Bar to the Punjab Superior Judicial Service. 3. 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 confirmation in the Superior Judicial Service, that even if a substantive vacancy is available, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 confirmation which was one day later than the date on which he completed his probationary period. 5. (A small digression will be permissible here. The Government of Haryana was unwilling to concede to the High Court the right to confirm a Judicial officer. It disregarded the High Court's order whereby Shri N.S. Rao was confirmed 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. Rao filed a Writ Petition in the High Court to challenge the order of the Government. The High Court set aside his reversion on certain other grounds but it held by a majority (N.S. Rao v. State of Haryana, ILR (1974) Punj 121 (FB)) that the power to confirm a direct recruit vested in the Governor and not in the High Court. A Constitution Bench of this Court re versed the view of the High Court and held by a unanimous judgment (High Court of Punjab and Haryana v. State of Haryana [1975]3SCR365 , that the power to confirm a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly three years prior to the direct appointment of Respondents 6 and 7 were con firmed on the 6th and 7th August, 1976 which was three or four days later than the dates of confirmation allotted to Respondents 6 and 7. Petitioners 4 to 22 whose dates of promotion to the Superior Judicial Service range between August 1972 and July 1978 were not yet confirmed when the Writ Petition was filed on February 27, 1979. 8. Do the rules which apply to the members of the Superior Judicial Services of Punjab and Haryana warrant this course of action and how far are the rules valid ? For deciding these questions we must necessarily have a look at the relevant rules. 9. The recruitment to the Punjab Superior Judicial Service and the other conditions of service of the members thereof are regulated by the "Punjab Superior Judicial Service Rules, 1963" as amended from time to time. These rules were originally framed by the Governor of Punjab in consultation with the Punjab High Court, in exercise of the powers conferred on the Governor by the proviso to Article 309 of the Constitution. By that proviso, the Governor has the power to make rules regulating the recruitment and the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitable for appointment in all other respects. Rule 10: Probation (1) Direct recruits to the Service shall remain on probation for a period of two years, which may be so extended by the Governor in consultation with the High Court, as not to exceed a total period of three years; (2) On the completion of the period of probation the Governor may, in consultation with the High Court, confirm a direct recruit on a cadre-post with effect from a date not earlier than the date on which he completes the period of probation; (3) If the work or conduct of a direct recruit has, in the opinion of the Governor, not been satisfactory he may, at any time, during the period of probation or the extended period of probation, if any, in consultation with the High Court, and without assigning any reason, dispense with the services of such direct recruits. Rule 11: Reversion of promoted officers If the work of a promoted officer officiating on a cadre-post has, in the opinion of the Governor, not been satisfactory, he may, at any time during the period of officiation, in consultation with the High Court, (i) revert him to his substantive post; or (ii) deal with him in such other manner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 309 of the Constitution and all other powers enabling him in this behalf, made the "Punjab Superior Judicial Service (Second Amendment)1 Rules. 1976" in consultation with the High Court of Punjab and Haryana. These rules were given retrospective effect from April 9, 1976. Rule 2(2) of the 1963 Rules defined a 'cadre post' to mean a permanent post in the ser vice. Clause 2 of the Second Amendment Rules substituted the following Sub-rule (2) in Rule 2 for the original sub-rule: 2(2) 'Cadre post' means a permanent or temporary post in the service". Rule 12 of the 1963 Pules provided that the seniority, inter se, of the substantive members of the Service, whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation. Clause 3 of the Second Amendment Rules substituted the following rule for the original Rule 12: 12. Seniority: The seniority, inter se, of the members of the service, shall be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation; Provided that in the case of two members appointed on the same date, their seniorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an undertaking not to have more than two children, shall be allowed to join the Service. On September 2, 1977 the Governor in the exercise of his constitutional and other powers further amended the 1963 Rules with retrospective effect from April 1, 1970. The definition of 'cadre post' in Rule 2(2) was once again amended to mean "a permanent post in the Service". Similarly, Rule 8(2) Was amended for the purpose of restoring the quota between promotees and direct recruits. Once again, two-third of the cadre posts were to be manned by promoted officers and one-third by direct recruits. Rule 12, which deals with seniority, was also amended so as to restore the original position' by providing that the seniority of members of the Service will be determined with reference to the dates of confirmation. In short, the Haryana First Amendment Rules, 1977, which were given retrospective effect from April 1, 1970, superseded the amendments made by the Haryana First Amendment Rules, 1972 and restored the position as it obtained originally under the 1963 Rules, in regard to the definition of 'cadre post', the quota between promotees and direct recruits and the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended on December 31, 1976 with retrospective effect from April 9, 1976, seniority is determined by the length of continuous service on, a post irrespective of the date of confirmation. In Haryana. Rule 12 as it stood originally was revived with effect from April 1, 1970 with the result, that seniority of judicial officers in the Superior Judicial Service is determined with reference to the dates of confirmation. The High Court has to deal with one set of officers under its control on the basis that the date of confirmation is the correct criterion of seniority and with another set of officers, also under its control, on the basis that the length of continuous officiation in a post is the true test of seniority. Whatever decision the High Court takes or is driven to take administratively in the matter of seniority of judicial officers becomes a bone of contention between the promotees and direct recruits. Sometimes, the administrative decision satisfies neither the one class nor the other, leading to a triangular controversy. The frequent amendments to the rules which are often given a long retrospective effect, as long as seven years, makes the High Court's administrative ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated September 2, 1977. There was a change in the Government which evidently led to a change in the rules, as if service rules are a plaything in the hands of the Government. This only shows how essential it is for the Governors, though not as a constitutional requirement, to consult the High Court before framing rules under the proviso to Article 309 of the Constitution. Consultation, be it said, is not to be equated with the for mal process of asking the High Court what opinion it holds on a particular issue. Consultation is a meaningful prelude to the proposed action, where by the High Court is afforded an opportunity to discuss the matter under consideration and to meet the Government's or Governor's reasons for the proposed action. In the instant case, the High Court could have made an effort to persuade one or the other Governor to see its point of view: or else, it could at least have impressed upon the two Governors the imperative need to adopt an identical pattern of rules for the two States which are blessed with a common High Court. 20. Little wonder then that the Superior Judicial Service of the two States was thrown into a state of turmoil and uncertainty. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the ratio of 2:1 between the promotees and direct recruits had to be maintain ed at all stages, that is to say, not only at the time of appointment but at the time of confirmation also. The High Court appears to have postponed the confirmation of the promotees in response to respondent 3's representation. Later respondent 3 was confirmed with effect from July 7, 1972. Five promotees including the three petitioners were confirmed w. e. f. July 8,1972, that is. a day after respondent 3 was confirmed. The Governor of Haryana refused to recognise the order of confirmation of respondent 3 passed by the High Court and he reverted the latter to the post of a District Attorney w. e. f. June 23, 1973. Respondent 3 challenged the order of his reversion by Writ Petition No. 2147 of 1973. 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 3's confirmation passed by the High Court was invalid since the power to confirm a District & Sessions Judge was vested in the Governor and not in the High Court. The judgment of the High Court is reported in Naren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 3 was Reported in AIR 1978 Punj & Har 234 granted the selection grade, presumably on the basis that he was senior to the petitioners. It is thereafter that the petitioners filed these writ petitions (4228 to 42.30 of 1978) under Article 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 whereby respondent 3 was confirmed w. e. f. 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. 25. This is the genesis of the controversy between the promotees and direct recruits in Haryana. In Punjab, matters were in no better shape, though it must be said to the credit of its Governor that no amendment was made with an evil eye on any individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Service with effect from November 12, 1969 and asking that he should be confirmed in the post which became available from December 23, 1972. He complained against the date of confirmation, February 3, 1975 allotted to him as arbitrary. 27. Rule 12 of the Rules was there after amended by the Governor . of Punjab by a Notification dated December 31, 1976 which was given retrospective effect from April 9, 1976. By that amendment, seniority was to be determined by the length of continuous service on a post in the service, irrespective of the date of confirmation. The direct recruits, respondents 4 to 9, addressed a representation to the High Court contending that their seniority as fixed by the High Court's Notification dated August 25, 1976, with reference to the respective dates of their confirmation, ought not to be disturbed. They also challenged the validity of Rule 12. 28. For the purpose of considering those conflicting claims of promotees and direct recruits, the High Court constituted a sub-committee consisting of three Judges, S.S. Sandhawalia (now Chief Justice), Bhopinder Singh Dhillon and Gurnam Singh, JJ. The Committee gave an oral hearing on February 7, 1978 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the Governor of Punjab on December 31, 1976 in the definition of 'cadre post' by appointing direct recruits to temporary posts in the Superior Judicial Service. It however ignored the other amendment effected by the same Notification, namely, amendment to Rule 12, under which continuous officiation is the test of seniority. 32. Being aggrieved by the Gradation List prepared by the High Court, the promotees in Punjab have filed Writ Petition 266 of 1979 in this Court claiming the following reliefs: (i) an appropriate writ or direction quashing the impugned notification dated 25th August 1976; (ii) a writ of mandamus directing the High Court to discharge its constitutional obligation to redetermine the seniority inter se of all the members of the Punjab Superior Judicial Service in accordance with the provisions of Rule 12, as amended by the notification dated December 31, 1976 and to make corrections in the Gradation and Distribution Lists, accordingly; (iii) an appropriate writ, directing the State Government and the High Court to confirm the petitioners with effect from the dates that the vacancies arose and became available in their quota without applying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State Governments by making rules without even reference or consultation with the High Court. Such a position would be utterly anomalous and wholly destructive of the exclusive control over the district courts and courts subordinate thereto vested in the High Court by Article 235. It appears to be well settled both on principle and precedents that the power of determining the seniority of the members of the service cannot possibly be vested in an authority other than the High Court. For example, it cannot on the existing provisions be vested in the Governor or the State Government. Therefore, it appears to us that what the State Government cannot do directly, it cannot be allowed to do indirectly by framing rules even by the exercise of executive power vested in it by virtue of Article 309 and without even consulting or informing the High Court. It is, however, well settled that Article 309 is subject to the other provisions of the Constitution. Therefore, the control over the subordinate judiciary vested in the High Court by Article 235 must necessarily override Article 309 wherever the two happen to conflict at all. Consequently, if seniority is exclusively within the ambit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case to act administratively in violation of the purported promulgation of statutory rules on the point. There is thus no choice but to place the matter squarely for a binding and authoritative decision on the judicial side forthwith. The High Court inevitably is the guardian of the independence and integrity of the subordinate judicial service, whose control is constitutionally vested in it. As an institution, it is fundamentally interested in the maintenance of these traits. We are of the view that it would be invidious to push a private litigant or any one of the affected members of the judicial service to a court of law to seek the necessary decision. This burden. therefore, must also be carried by the High Court. We would consequently recommend that the Registrar be directed to immediately initiate necessary proceedings under Article 226 of the Constitution of India on behalf of the High Court. Once it is settled that the determination of seniority of the members of the Superior Judicial Service vests exclusively in the High Court, then there is no manner of doubt that such control inevitably implies the power of framing rules to make the exercise of such control fea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any such Act. Article 235 reads thus: 235. The control over district courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service pre scribed under such law. 37. It is urged by Shri V. M. Tarkunde who appears on behalf of the promotees in Haryana that if the two parts of Article 235 are read together, it will be obvious that the control which the High Court is entitled to exercise over District Courts and courts subordinate thereto does not include the power to make rules regulating the conditions of service of judicial officers. According to the learned Counsel, the power which the Constitution has conferred on the Governor by the proviso to Article 309 is a legislative and not an executive power; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at hardly any High Court has framed rules of its own for deter mining the seniority of its judicial officers. Even the High Court of Punjab and Haryana, which disputes the right of the Governor so to frame rules, has not made any rules of its own to occupy that field. All this, which is stark history, cannot be dismissed by saying that the absence of a precedent is no authority for holding that what has not been challenged is lawful. It is true that the novelty of a contention cannot be its infirmity and indeed law would have remained static and stagnant if it had not been allowed to grow from case to case. But the point of the matter is that there has been no unconcerned acquiescence by High Courts and Judicial Officers in rules framed by the GovernOrs. In Haryana itself, respondent 3, Shri N.S. Rao, challenged the Governor's power to override the. order of his confirmation which was passed by the High Court. And he won. Whenever there was the semblance of a justification for doing so, either one or the other party motivated by personal interest or out of the broader consideration that the High Court's con trolling jurisdiction must remain inviolate has challenged the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f control will be subject to the conditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the legislature regulating his conditions of ser vice. 2. Article 235 does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers attached to district courts and the courts subordinate thereto. Whenever it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated so in express terms. See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2) 148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2). Out of this fasciculus of Articles, the provisions contained in Articles 225, 227(2) and (3) and 229(1) and (2) bear relevance on the question, because these Articles confer power on the High Court to frame rules for certain specific purposes. Article 229(2)' wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruitment and conditions of service of judicial officers as an infringement of that independence. The mere power to pass such a law is not violative of the control vested in the High Court over the State judiciary. 44. It is in this context that the proviso to Article 309 assumes relevance and importance. The State legislature has the power to pass laws regulating the recruitment and conditions of service of judicial officers of the State. But it was necessary to make a suitable pro vision enabling the exercise of that power until the passing of the law by the legislature on that subject. The Constitution furnishes by its provisions ample evidence that it abhors a vacuum. It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power not exercising that power. The proviso to Article 309 provides, in so far as material, that until the State legislature passes a law on the particular subject, it shall be competent to the Governor of the State to make rules regulating the recruitment and the conditions of ser vice of the judicial officers of the State. The Governor thus steps in when the legislature does not act. The power, exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State, has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State. The power of the legislature or of the Governor thus to legislate is subject to all other provisions of the Constitution like, for ex ample. Articles 14 and 18. The question raised before us is primarily one of the location of the power, not of its ex tent. The second part of Article 235 recognises the legislative power to pro vide for recruitment and the conditions of service of the judicial officers of the State. The substantive provision of Article 309, including its proviso, fixes the location of the power. The opening words of Article 309 limit the amplitude of that power. 47. We entertain no doubt that seniority is a condition of service and an important one at that. The control vested in the High Court by the first part of Article 235 is therefore subject to any law regulating seniority as envisaged by the second part of that article. The power to make such law. is vested by Article 309 in the legislature, and until it acts, in the Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules of recruitment can Provide for a period of probation, the question whether a particular judicial officer has satisfactorily completed his probation or not is a matter which is exclusively in the domain of the High Court to decide. That explains partly why in High Court of Punjab & Haryana v. State of Haryana, [1975]3SCR365 this Court held that the power to con firm a judicial officer is vested in the High Court and not in the Governor. 49. The error of the High Court's point of view, like the error of the report dated May 2, 1978 of its Sub-Committee, consists in the assumption that the Governor, while acting in the exercise of power conferred by the proviso to Article 309, exercises an executive function. That is why it felt so greatly exercised that the independence of the judiciary was being eroded. That independence has to be preserved at all costs but, as constitutional realists, we cannot deprive the legislature or the Governor of their legitimate legislative powers under Article 309. That power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead, for example, to the violation of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make rules of seniority of the District and Sessions Judges. 53. That takes us to the second question which is, whether the rotation method devised by the High Court in applying the relevant service rules in the matter of confirmation and consequent fixation of seniority of the petitioner vis-a-vis the direct recruits suffers from any legal or constitutional infirmity. The main thrust of the argument of the promotees, who have filed the two sets of Writ Petitions before us, is that the method of rotation applied by the High Court at the time of confirmation is violative of their fundamental rights under Articles 14 and 16 of the Constitution. In the Punjab Writ Petition, the petitioners have taken an alternative plea that their seniority should be fixed in accordance with the amendment made by the Governor of Punjab by the Notification dated December 31, 1976, effective from April 9, 1976. By that amendment, length of continuous service in a cadre irrespective of the date of confirmation is the governing criterion of seniority. In so far as the power of the Governor to amend the rules is concerned, that question must be deemed to have been set at rest by the preceding part of ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment the inter se seniority of the members of the Service is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation. 58. It may be recalled that in High Court of Punjab and Haryana v. State of Haryana, [1975]3SCR365 it was held by this Court that Rule 10, in so far as it confers the power of confirmation on the Governor, is bad because the power of confirmation is a part of the control of the High Court which is vested in it by Article 235 of the Constitution. Therefore, the High Court alone had the power to confirm a District & Sessions Judge. As a result of that judgment, respondent 3 came back into the service as a confirmed District & Sessions Judge. 59. It is necessary to bear in mind that the only provision of which the validity was assailed by respondent 3 in the aforesaid case was the one contain ed in Rule 10(2) which conferred a right on the Governor to confirm a direct recruit. No challenge was made therein to that part of Sub-rule (2) which re quires that the confirmation shall be made from a date not earlier than the date on which the direct recruit satisfactorily completes his period of probation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been further elaborated in Annexure II to his written submissions. These Annexures show, and that is not disputed, that the direct recruits have been as signed a date of confirmation which is a day or so earlier than the date of confirmation allotted to the promotees. Our attention is also drawn to the relevant order passed by the High Court in the case of Haryana officers where by the date of confirmation allotted to the direct recruit Shri N.S. Rao, is only one day prior to the dates of confirmation allotted to the three promotees, even though the latter were officiating for a much longer period in the Superior Judicial Service than respondent 3. The promotees have assailed both the legality and propriety of the High Court's Notification dated August 25, 1976, under which eight direct recruits and eight promotees in Punjab were confirmed by applying the method of rotation, and the direct recruits were confirmed with effect from dates which are a little earlier than the dates assigned to the promotees. The grievance of the promotees is accentual ed by the circumstance that respondents 6 to 8 had not even completed their normal period of probation and yet they were confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. When recruitment to the Superior Judicial Service is from two sources, it be comes imperative to ensure proper blending of the members of the service and it is for that reason that the quota rule (whenever, direct recruits are avail able) has to be applied even at the time of confirmation. It will not be in the interest of the service if it were other wise since, according to the High Court, if direct recruits are confirmed and as signed seniority in a block, that will adversely affect the chances of further promotion of the promotees assigned seniority below them. Direct recruits when recruited are much younger than' the promotees, when promoted. It is for this reason that, wherever possible, the High Court claims to have assigned seniority to direct recruits by interposing two promotees between two direct recruits. Promotees, on the other hand, have been confirmed and assigned seniority one after the other, in numbers exceeding two, when there were no direct recruits. In order to explain and justify its point of view, the High Court has annexed four annexures to its written brief, Annexures 'A' to 'D'. Annexure 'A' shows seniority of the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They also challenge the notification issued by the Governor of Punjab on December 31. 1976 on the ground that it was given retrospective effect from April 9, 1976 arbitrarily, with a view only to superseding the notification of seniority issued by the High Court on August 25, 1966. It is contended by them, in the alternative that if the period of their probation has to be weighed against the period of officiation of the promotees, it should be reckoned from the date on which the promotee officer begins to officiate against a permanent vacancy available in his quota. 65. In the light of these contentions, the question for determination is whether the method of confirmation adopted by the High Court by the rotation of promotees and direct recruits in the ratio of 2:1 is justified on a proper interpretation of the relevant rules. Is the operation of Rule 8 confined to the stage of initial recruitment to the Service by promotion and by direct appointment ? Or, can that rule be superimposed on Rules 30 and 12 so as to justify its application at the stage of confirmation also ? These are the questions which are posed for our consideration. 66. Rule 8, as its very heading shows, provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore contrary to the basic constitutional concepts governing judicial service. 68. This apart, the application of Rota system at the stage of confirmation is beset with practical difficulties. For example, if vacancies in the quota of direct recruits cannot be filled for 2 or 3 years for the not uncommon reason that direct recruits are not available, and during that period several vacancies occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the confirmation of such promotees against vacant posts in their quota, until the direct recruits are appointed and become eligible for confirmation on completing the prescribed period of probation, be justified on any reasonable ground? Is it proper and fair to defer the confirmation of the promotees merely because direct, recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation ? This, precisely, is what the High Court has done by the impugned notification dated 25-8-1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition that when ever Service Rules provide for quota, the rule of rota must be read into the rule of quota. We are not laying down that the rules of quota and rota cannot co-exist. Service Rules may so provide or they may yield to such an interpretation. In that event, their validity may have to be tested in the total setting of facts. Therefore, whether the quota system has to be observed not only at the stage of initial recruitment but also at the stage of confirmation is not a matter of abstract law but will depend on the wording of the rules and the scheme of the rules under consideration. Any dogmatic assertion, one way or the other, is wrong to make. On a review of these authorities, all that we would like to say is that on a proper interpretation of the rules governing the Pun jab and Haryana Superior Judicial Ser vice, the rule of rota cannot be read into the rule of' quota. In other words. the ratio of 2: 1 shall have to be applied at the stage of recruitment but cannot, on the language of the relevant rules, be applied at the stage of confirmation, 72. In our opinion, therefore, the High Court was not justified in applying the rule of rotation at the time of confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one, promotees cannot be confirmed even if vacancies are available within their quota in which they can be confirmed. We are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of 2/3rd, whether or not l/3rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of l/3rd, whether or not 2/3rd of the vacancies are occupied by confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits. The fairness which Articles 14 and 16 postulates is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are exceptional circumstances attaching to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily completed his probation of two years. The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure. 76. The amended Rule 12, as in force in Punjab, lays down the length of continuous service in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the Governor on December 31, 1976 and was given retrospective effect 'from April 9, 1976. Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. No such nexus is shown in the present case on behalf of the State Government. On the contrary, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seniority of the members of the Superior Judicial Service will be determined with reference to the dates of confirmation, without applying the rule of rotation. 78. We must express our concern at the manner in which the Rules of the Superior Judicial Service have been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In Punjab, the High Court was never consulted on the question whether the amendments made on December 31, 1976 should be given retrospective effect and, if so, from what data The amendments were made despite the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. A long retrospective effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospective effect from April 1, 1970 and that amendment had to be effectively superseded. We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of the Superior Judiciary and that the Rules will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the rule of rotation: (i) The petitioners, if they are otherwise fit for confirmation, shall be confirmed with effect from the dates on which vacancies became available to them in the quota of promotees; (ii) Respondents 3 to 11 shall be confirmed against vacancies falling within the quota of direct recruits, with effect from dates on which they successfully completed their two years' probation. Since, the normal period of probation cannot be reduced unless the High Court is satisfied in each individual case that there are "exceptional circumstances" justifying the reduction of that period and since the High Court had not given such reasons while reducing the probationary period of some of the respondents, respondents 3 to 11 will be confirmed as stated above without reducing the period of their probation. (b) The High Court will re-draw the inter se seniority- (i) of such of the petitioners and respondents as were promoted or appointed to the Superior Judicial Service prior to December 31, 1976, on the basis of the respective dates of confirmation allotted to them in compliance with the aforesaid direction (a); and (ii) of such of the petitioners, resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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