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TMI Blog2003 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... SC Category in the competitive exam. Held in 1985-86) (Advertised 3rd time). (iii) Vacancies reserved for ESM : 3 (iv) Vacancies reserved for Backward Classes : 2 A competitive examination was held in December, 1986. By a Memo dated 6.2.1989, the first respondent herein sent requisition for anticipated vacancies upto 31.12.1990; the break up of which is as under: 1. General Category : 2 2. Scheduled Castes : 1 3. Backward Classes : 1 By order dated 27th July, 1989, the Commission recommended 21 names for 28 vacancies, the break up of which is as under: 1. General Category : 11 2. Scheduled Castes : 5 3. Backward Classes : 3 4. Ex-Service men : 2 The result of the said examination for recruitment of the HCS(Judicial) Branch was published in the Haryana Gazette on or about 15.9.1989; from a perusal whereof, it would appear that the appellant herein was placed at serial No. 33 whereas the respondent Nos. 8 to 11 were placed at serial Nos. 14, 15, 16 and 18 respectively. It is not in dispute that on or about 6.2.1989 it was notified that existing and notified vacancies would be increased by 4; as a result whereof a further reservation being one for Scheduled Castes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 5.2.1991 holding: "In terms of the law laid down by the Supreme Court in Neelima Shangla's case, 1986 (4) SCC 268, we direct the State of Haryana to forward the list of 42 candidates, who qualified in the examination (32 general and 10 reserved) held in December, 1988 and the High Court would forthwith enter the names of such number of candidates as would be necessary in terms of Rule 8 of Part- D of the Rules in the Register in order of merit. The names of the candidates of the reserved categories would also be brought on the Register in the same manner . The High Court would then consider to fill up the remaining vacancies and would forward the names of the requisite number of candidates to the State Government for appointment as per Rule 7(1) of Part D of the Rules as Subordinate Judges under Article 234 of the Constitution. While doing so it will be open to the High Court in the interests of higher standard not to recommend the names of all the candidates, who obtained 55 per cent marks and the appointment can be restricted to such number of candidates, who obtained higher percentage than 55 per cent as may be decided by the High Court and agreed to by the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nisha Batra on 7.11.1994. Representations were made by the judicial officers for determination of their inter se seniority in the aforementioned premise and the matter was considered by a Sub-committee appointed by the High Court. The Sub-committee upon giving opportunities of hearing to all parties and/or their lawyers opined that having regard to the consistent practice followed by the High Court that seniority be determined as per merit, the same rule should be made applicable and thus negatived the contention raised on behalf of the appellant and persons similarly situated that inter se seniority be determined on the basis of the respective dates of appointments of the candidates. While arriving at the said decision, the Sub- committee found that the cases of the concerned candidate is similar to that of Neelima Shangla. The said recommendations of the Sub-committee were accepted by the Full Court of the High Court by adopting a resolution in that behalf on or about 17.7.1997. Aggrieved thereby, a writ petition was filed by the appellant herein which by reason of the impugned judgment was dismissed. Before the High Court, only two contentions were raised on behalf of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the Amendment in the Constitution inserting Article 16(4A), the decision of this Court in Ajit Singh & Ors. (II) vs. State of Punjab [1999 (7) SCC 209] must be held to have lost its efficacy. Our attention has also been drawn to the opinion of the Commission that inter se seniority of the officers be determined on the basis of respective dates of appointment. Mr. P.P. Rao, learned senior counsel appearing on behalf of Appellant Nos. 8 to 11, on the other hand, submitted that having regard to the practice prevalent in the Punjab & Haryana High Court inter se seniority has rightly been determined on the basis of result of the examination conducted by the Public Service Commission. The learned counsel would urge that as this Court in Neelima Shangla (supra) while considering the question of appointment of a candidate under the said Rules directed that she be placed in the seniority list of 1984 Batch, there is no reason as to why this Court would deviate from the said principle. Mr. Rao would urge that it is not within the province of the Commission to make recommendations as regards the inter se seniority of the candidates in as much as its function is merely to make recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of candidates belonging to the Scheduled Castes/Tribes and other backward classes, Government will have a right to select in order of merit a candidate who has merely qualified under rule 8, irrespective of the position obtained by him in the examination; Provided further that the selection of candidates belonging to the Scheduled Castes/Tribes and other Backward Classes in the order of merit inter se shall be made against the vacancies reserved for them and in the manner prescribed by Government from time to time." Rules 1 and 8 or Part-D governing appointments read thus: "1. The names of candidates selected by Government for appointment of Subordinate Judges under rules 10 and 11of Part-C shall be entered on the High Court register in the order of their selection." "8. There is no limit to the number of names borne on the High Court register but ordinarily no more names will be included than are estimated to be sufficient for the filling of vacancies which are anticipated to be likely to occur within two years from the date of selection of candidates as a result of an examination." The Rules, therefore, indisputably lay emphasis on merit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n opportunity of showing cause why their seniority should not be fixed at a lower place, in accordance with the order in the combined merit list such opportunity should be duly allowed before refixing seniority." The contesting parties herein had appeared in the same examination. It is also not in dispute that the results of the said examination were published by the Commission on 15.9.1989. The candidate who could be appointed from amongst the said list were for those vancacies which were existing on that date as also likely to occur upto September, 1991. In terms of the Rules, as referred to hereinbefore, their names had to be entered in the register. It was not so done. The right of the candidates who could be appointed in terms of the extant rules was ignored. The interpretation of the Rules came up for consideration of this Court in Neelima Shangla vs. State of Haryana reported in (1986) 4 SCC 268. Having regard to the purport of the said Rules it was held: "The names of the selected candidates are to be entered in a Register maintained by the High Court in the Order of their selection and appointments are to be made from the names entered in the Register in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hangla is one of them. In the view that we have taken of the rules, Miss Neelima Shangla is entitled to be selected for appointment as Subordinate Judge in the Haryana Civil Service (Judicial Branch)." In the aforementioned situation, this Court directed that the names of the petitioner therein be included in the list of 1984 list of candidates. As noticed hereinbefore, a bench of this Court in State of Haryana vs. Rajiv Kumar C.A. Nos. 4426-28 of 1994 as noticed hereinbefore dismissed the special leave petition in respect of Ms. Manisha Batra ( Now Ms. Manisha Chopra) holding that a clear vacancy existed. We may further notice that a Division Bench of the Punjab & Haryana High Court in Kamal Kant & Ors. vs. State of Haryana & Anr. [1991 (3) Recent Services Judgments] arising out of the same advertisement, directed: "In terms of the law laid down by the Supreme Court in Neelima Shangla's case(supra), we direct the State of Haryana to forward the list of 42 candidates who qualified in the examination (32 general and 10 reserved) held in December, 1988 forthwith and the High Court would enter the names of such number of candidates as would be necessary in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fixed at Level 1 are not intended to determine any seniority at Level 1 between general candidates and the reserved candidates. This aspect we shall consider again when we come to Mervyn Continho v. Collector of Customs (1966) 3 SCR 600 lower down. The roster point merely becomes operative whenever a vacancy reserved at Level 2 becomes available. Once such vacancies are all filled, the roster has worked itself out. Thereafter other reserved candidates can be promoted only when a vacancy at the reserved points already filled arises. That was what was decided in R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745." In Ajit Singh (II), the decision of this Court in R.K. Sabharwal case has, thus, been explained. P.S. Ghalaut vs. State of Haryana & Ors. [1995 (5) SCC 625] relied upon by Dr. Chauhan, is a decision rendered by a two Judge bench. In that case Rule 13 of the Rules envisaged that the seniority inter se of members of the service shall be determined by the length of continuous service on any post in the service; provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the constitutional anvil, must also be reasonable to be permissible. In assessing the reasonability one of the factors to be taken into consideration would be whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the National constantly rising to higher levels. In the era of globalisation, where the nation as a whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable go by and certainly not compromised in its entirety. Fundamental duties, though not enforceable by a writ of the Court, yet provide a valuable guide and aid to interpretation of Constitutional and legal issues. In case of doubt or choice, people's wish as manifested through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the Courts." In K.Duraisamy & Anr. vs. State of T.N. & Ors., (2001) 2 SCC 538, this Court held: "The mere use of the word 'reservation' per se does not have the consequence of ipso facto applying the entire mechanism underlying the constitutional concept of a protective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for each source of recruitment is fixed under the rules, the seniority vis--vis of different sources of recruits could legally fixed on basis of roster points. It was in that situation a desire was expressed that quotas be specified in relation to posts as contradistinguished from quota in relation to vacancies. This Court, therefore, directed the High Courts to amend and promulgate seniority rules in the light of the decisions in R.K. Sabharwal (supra). It was clearly laid down: "It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003." The said decision cannot be said to have any application whatsoever in determining inter se seniority as regards vacancies required to be filled up in the years 1989-1991. Reliance by Dr. Chauhan on the decision of this Court in Direct Recruit Class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,383), cited with approval by this Court in Sant Ram Sharma's case, 1968(1) SCR 111 was quoted by the Division Bench: The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organization. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur and when selection for promotion is made on the sole basis of merit, for the merit system ought to apply as specifically in making promotions as in original recruitment. Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Article 300 of the Constitution. Rule 16 contains a categorical declaration that in the past also the seniority of service officers permanently seconded to the R & D Organisation was being reckoned on the basis of their dates of attainment of substantive rank of Major/Sqn. Ldr./Lt. Cdr., subject to any penalty/loss of seniority that an officer might suffer subsequently. The declaration is clearly implied in the opening words "As hithertofore" occurring in Rule 16 of the impugned rules. A statement contained in a statute or statutory rule of the factual background leading up to the enactment has ordinarily to be accepted to be acted upon by the court as wholly correct; nothing clinching has been brought to our notice by the appellant to justify any departure from the said principle. We do not, therefore, find it possible to accept the contention of the appellant that prior to the coming into force of the impugned rule, he had acquired a vested right to have his seniority in the R & D reckoned with reference to the date of his permanent secondment and to have all officers joining the Organisation on subsequent dates ranked only below him. The plea advanced by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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