# B. L. GOEL v. STATE OF U.P. & ORS

- **Citation:** [1979] 2 S.C.R. 82
- **Court:** Supreme Court of India
- **Decided:** 1978-10-17
- **Bench:** Y. V. CllANDRACHUD, R. S. Sarkar!.~, N. L. Untwal!A, 0. Ch!Nnappa Reddy, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-l-goel-v-state-of-u-p-ors-7645
- **Pages:** 12

## Headnote

U.P. Higher Judicial Service Rules, 1953-Rules 20 and 23-Appelfant a
pron1otee to post of District Judge-Govern1nent created posts of District Judges
for absorption of promotees-Three direct recruits confirmed as Dl5trict Judges
against these vacancie~-Appellani not confirn1ed-iVotifications declaring confir1nations-J/ alidity of.
Under the U.P. Higher Judicial Service Rules, 1953 appointments to the
posts of Civil and Sessions Judges were made by promotion from the rnen1bers
of the U.P. Civil Service (Judicial Branch) and by direct recruitment. Rule ZU
of the Rules dealing with seniority provided that :>eniority in each of the two--
classes of posts shall be determined by the date of confirmation in that c~ass
of post.
Rule 23 provided that a probaitioner shall be confirmed in his .:ippu1ntD
ment at the end of his period of probation if the Governor was satisfied that
he was fit for confirmation.
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The appellant who was appointed as a Civil Judge in 1955, was promoted'
as officiating Civil and Sessions Judge in July. 1960.
Respondents 3 to 5 \\ho
were direct recruits to the post of Civil a,nd Sessions Judges joined service in
May/June, 1966.
For the purpose of absorbing the promoted officers the Government converted 22 temporary po5ts into permanent posts of Civil and Sessions Judges with
effect from April 1, 1966. Three out of those posts were given to the thn:e
respondents, who were direct recruits, and they were confirmed in the posts
with effect from May/June, 1968. In twelve other posts, twelve promotecs
Vv'cre confirmed with effect from April l, 1966. but the appellant was not so.
confirmed though he had been continuously officiating as a Civil and Sc~sions
Judge since July, 1960. He was confirmed as Civil and Sessions Judge with
e1Iect from January 1, 1969.
He was eventually confirmed in the post ot
District and Sessions Judge with effect from February I, 1973.
The three respondents were later appointed as District and Sessions Judges.
By a Notification dated March 19, 1975, they were confirmed in those po3ts
with effect from July/August, 1972. The Notification dated July 22, 1977 issued'
by the High Court. showed the !three respondents at serial Nos. 30, 31 and
32 of the list and the appellant <lit No. 38 and the dates of confirmation were
shown as August 25. 1972 in respect of three respondents and lvfarch 18. 1973
rn respect of the appellant.
The High Court allowed the appellant's writ petition and quashed the Notifications dated March 19. 1975 and July 22, l9i ! in.c;ofa.r as they related t<>
the dates of confirmation of the appellant and the respondents. The High Court
on the administrative side was directed to redetermine the dates Of their confirmation as District and Sessions Judges and their inter-se seniority i11 acccrd@lce
with Rule 20.
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B. L, GOEL V. u. P. (Sarkaria, /.)
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In appeal, it was, inter alia, contended on hehalf of the appellant that the
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22 permanent posts having been created with effect from 1-4-1966 for permanent
ab;orption of promotees who had been officia<ting prior to that date for a period
of more than three years, (Respondents 3 to 5 who were not even in service
on that date, could not be absorbed against any of those vacancies, and the
ap Jellant who had put in nearly six years of service in th~ Cadre on_ the date
when the three respondents were appointed, could not be denied confirmation
wi1h effect from April I, 1966; that apart from greater length of service, the
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appellant has an excellant, unblemished record of s~rvke; and in the circwn·
stances, the confirmation of the appellant with effect from a date later than
thc.se assigned to Respondents 3, 4 and 5 is unfair, arbitrary and discrin1inatory.
Allov.ling the appeal,
l-IELD : The main criteria lo be considered for confirmation of officers
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offci<:1ting in the Higher Judicial Service of the Stati.:: are :
(i) Availability of a substantive vacancy/post.
(ii) Suitability fo; the post. [92CJ
lle ·e, a substantive

## Text

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82
B. L. GOEL
v.
STATE OF U.P. & ORS.
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October 17, 1978
[Y. V. CllANDRACHUD, C.J., R. S. SARKAR!.~, N. L. UNTWAL!A,
0. CH!NNAPPA REDDY AND A. P. SEN, JJ.]
U.P. Higher Judicial Service Rules, 1953-Rules 20 and 23-Appelfant a
pron1otee to post of District Judge-Govern1nent created posts of District Judges
for absorption of promotees-Three direct recruits confirmed as Dl5trict Judges
against these vacancie~-Appellani not confirn1ed-iVotifications declaring confir1nations-J/ alidity of.
Under the U.P. Higher Judicial Service Rules, 1953 appointments to the
posts of Civil and Sessions Judges were made by promotion from the rnen1bers
of the U.P. Civil Service (Judicial Branch) and by direct recruitment. Rule ZU
of the Rules dealing with seniority provided that :>eniority in each of the two--
classes of posts shall be determined by the date of confirmation in that c~ass
of post.
Rule 23 provided that a probaitioner shall be confirmed in his .:ippu1ntD
ment at the end of his period of probation if the Governor was satisfied that
he was fit for confirmation.
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The appellant who was appointed as a Civil Judge in 1955, was promoted'
as officiating Civil and Sessions Judge in July. 1960.
Respondents 3 to 5 \\ho
were direct recruits to the post of Civil a,nd Sessions Judges joined service in
May/June, 1966.
For the purpose of absorbing the promoted officers the Government converted 22 temporary po5ts into permanent posts of Civil and Sessions Judges with
effect from April 1, 1966. Three out of those posts were given to the thn:e
respondents, who were direct recruits, and they were confirmed in the posts
with effect from May/June, 1968. In twelve other posts, twelve promotecs
Vv'cre confirmed with effect from April l, 1966. but the appellant was not so.
confirmed though he had been continuously officiating as a Civil and Sc~sions
Judge since July, 1960. He was confirmed as Civil and Sessions Judge with
e1Iect from January 1, 1969.
He was eventually confirmed in the post ot
District and Sessions Judge with effect from February I, 1973.
The three respondents were later appointed as District and Sessions Judges.
By a Notification dated March 19, 1975, they were confirmed in those po3ts
with effect from July/August, 1972. The Notification dated July 22, 1977 issued'
by the High Court. showed the !three respondents at serial Nos. 30, 31 and
32 of the list and the appellant <lit No. 38 and the dates of confirmation were
shown as August 25. 1972 in respect of three respondents and lvfarch 18. 1973
rn respect of the appellant.
The High Court allowed the appellant's writ petition and quashed the Notifications dated March 19. 1975 and July 22, l9i ! in.c;ofa.r as they related t<>
the dates of confirmation of the appellant and the respondents. The High Court
on the administrative side was directed to redetermine the dates Of their confirmation as District and Sessions Judges and their inter-se seniority i11 acccrd@lce
with Rule 20.
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B. L, GOEL V. u. P. (Sarkaria, /.)
83
In appeal, it was, inter alia, contended on hehalf of the appellant that the
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22 permanent posts having been created with effect from 1-4-1966 for permanent
ab;orption of promotees who had been officia<ting prior to that date for a period
of more than three years, (Respondents 3 to 5 who were not even in service
on that date, could not be absorbed against any of those vacancies, and the
ap Jellant who had put in nearly six years of service in th~ Cadre on_ the date
when the three respondents were appointed, could not be denied confirmation
wi1h effect from April I, 1966; that apart from greater length of service, the
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appellant has an excellant, unblemished record of s~rvke; and in the circwn·
stances, the confirmation of the appellant with effect from a date later than
thc.se assigned to Respondents 3, 4 and 5 is unfair, arbitrary and discrin1inatory.
Allov.ling the appeal,
l-IELD : The main criteria lo be considered for confirmation of officers
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offci<:1ting in the Higher Judicial Service of the Stati.:: are :
(i) Availability of a substantive vacancy/post.
(ii) Suitability fo; the post. [92CJ
lle ·e, a substantive post of Civil and Sessions Judge was available to the appellan: from April 1, 1966, when Respondents 3, 4 and 5 had not even been
aprointed to the service in any capacity.
By April 1, 1966, the appellant had
put in service as officiating <;ivil and Sessions Judge for a period exceeding
5 ) ears and 9 months.
There is nothing on record to suggest that by or on
April 1, 1966. he was not suitable for confirmation as Civil and Session~ Judge,
or later, as District and Sessioes Judge when a post in that grade became
ava:lable to him. In the circumstances, the impugned Notification dated March
19, 1975 issued by the Government, inasmuch as it did not acc.ord to the appellant the same treatment which had been meted out to twelve other promoted
officers who were confirmed with effect from April l, 1966, is not ba-sed on
any intelligible differentia or reasoaable principle,
and as
such, cannot be
sustained. The same comments apply
mutatis mutandis
to
the
in1pugned
Notification, dated July 22, 1977, issued by the High Court.
Once it is found
that the Notification dated March 19, 1975 cannot be susta.ined, the foundation
for fixing the dates of confirmation and determining relative seniority of District
and Sessions Judges \Vil] also crumble. [92D-G]
The entire matter therefore, reqlltres reconsideration by the High Court in
the exercise of its powers under 'Article 235 of the Constitution. [93A1
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Civ1L APPHLATE JURISDICTION: Civil Appeal No. 911 of 1978.
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App:al by Special Leave from the Judgment and Order dated
12-12-1977 of the Allahabad High Court (Lucknow Bench) in Writ
Petition No. 1283 of 1976 .
R. K. Garg, V. I. Francis, Madan Mohan and D. K. Garg for the
Appellant.
G. N. Dikshit and 0. P. Rana for Respondents Nos. 1 and 2.
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SUPREME COURT REPORTS
[ 1979] 2 s.c.R.
S. N. Andley, B. P. Maheshwari and Sures Sethi for Respondents
3 and 5.
Yogeshwar Prasad, Mrs. Rani Chhabra and Miss Meera Bali, for
Respondent No. 4.
P. C. Bhartari and R. P. Kathuria for the Intervener (B. S. Yadav
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and Ors.)
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The Judgment of the Court was delivered by
SARKARJA, J.-This appeal by special leave is directed against a
judgment dated December 12, 1977 of the High Court of Allahabad.
The appellant herein, Shri B. L. Goel, is a District and Sessions
Judge and as such a Member of U.P. Higher Judicial Ser\.ice.
The
sanctioned permanent strength of the Higher Judicial S>ervice was 82.
It comprised (i) 37 posts of District and Sessions Judges and (ii) 45
Civil and Sessions Judges, including five posts of leave reserve.
The
service includes substantive posts as well as temporary
posts.
The
appointments to the posts of Civil and Sr'..ssions Judges are made from
two sources :
(a) By promotion from the members of the U.P. Civii Service
(Judicial Branch) ; and
(b) By direct recruitment after consultation with the Court
(vidc Rule 5).
Under Rules 13 and 17 of the U.P. High•"r Judicial Service 1953 (hereinafter referred to as the 1953 Rules) waiting lists were to be pr.:pared
of the persons found fit for promotion or appointment to the higher
s•ervice.
Rnle 19 provided that the Governor shall, on receipt from
the Court of the waiting lists prepared under Rules 13 and 17, make
appointment to the service on the occurrence of substantive vacancies.
Para 2 of Rule 19 provid•od that the Governor could make appointments in temporary or officiating vacancies of the persons who were
eligible for appointment by promotion and whose names were borne
on the waiting list on force prepared nnder Ru:e 13. Rule 21 fixed
the period of probation for direct recruit\; at two years. Rule 22 provided that the probation could be extended for a specific period. On
satisfactory completion of his period of probation, a direct recruit was
entitled to be confirmed. No period of probation was fixed in the case
of promotees.
Ruic 20, which is being impugned, originally, ran as
follows :
"20. Seniority.-Subjeet to the provisions of rule 31,
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seniority in each of the two classes of posts in the Services
shall be determined by the date of confirmation in that class
of post;
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B. L. GOEL V. u. P. (Sarkaria, !.)
85
Provided that if in any class of the post, two or more
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persons are confirmed on the same date, their seniority will
be determined according. to the order in which their confirmation has been notified;
Provided further that in the case of direct recruits, their
inter se seniority will oo fixed in the same order in which their
names appear in the list prepared by the Selection Committee
under rule 17 ."
Rule 23 dealt with confirmation. It provided :
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"23. Confirmation.-(!) A probationer shall be confirmed in his appointment at the end of his period of probation
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or at the end of the extended period of probation, if the
GoV'~rnor, after consultation with the Court, is satisfied that
he is fit for confirmation.
(2) All confirmations under this rule shall be notified in the
the Official Gazette."
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The appefont was appointed to the U.P. Civil Service (Judicial
Branch) on Septemlnr 13, 1948 on the basis of a competitive examination held by th' U.P. Pnblic Service Commission.
He was posted
as Civil Judge in the same serviee in January 1955. He was appointed
by promotion as an officiating Civil and Sessions Judge in U.P. Higlrcr
Judicial Service in July 1960.
Respondents 3, 4 and 5 are direct
recruits.
They were appointed on probation on Civil and Sessions
Judges and joined the s·orvice on May 31, 1966, May 27, 1966 and
June 1, 1966, respectively.
The constitutional validity of the 1953 Rules providing for appoint·
ment to U.P. Higher Judicial Service first came up for consid•,ration
before this Court in 1966, in Chandra Mohan'" State of U.P.,('j wherein it was held that the 1953 Rules providing for recruitment of District
Judges, particularly rules 5, 8, 13, 17 and 19 of th., U.P. Higher
Judicial Service Rules 1953, were invalid as they contravened the mandate of Article 233(1), and that consequently, the appointments of
persons appointed under those Rules including the appe!lant and respondents 3, 4 and 5 to the U.P. Higher Judicial Service were unconstitutional and invalid. The appointments of persons appointed under
the 1953 Rules, including the appellant and respondents 3, 4 and 5
were, however, validated by the Constitution (Twentieth Amendment)
Act, 1964, which inserted Article 233A in the Constitution.
(1) A.T.R. 1966 S.C. 1987.
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SUPREME COURT REPORTS
[1979] 2 s.c.R.
By a notification dated March 31, 1969 the Governor confirmed
respondents 3, 4 and 5 as Civil and Sessions Judges with effect from
May .•I, 1966. May 27, 1966 and June 1, 1966, re>pectively. Again
by a Notification dated May 31, 1969 they were C•Jnfirmed with e!Iect
fro.m the same dates.
These Notifications w<re superseded by Notificat10n ,dated July 19, 197 4.
The dates of confirmation of the respondents, however, remained unchanged.
This notification was cancelled
by Government notification dated August '.!6, 1974.
The Government by its Order (G.O. No. 870/7-AI-503) dated
June 19, 1971, created by conversion of the e.xisting temporary posts,
22 permanent posts of Civil & Sessions Judges with effect from June 1,
1969, for absorbing the promoted officers, who had been continuously
officiating as Civil & Sessions Judges for more than three ) ears.
Subsequently, by its G.O. 2693/VII-A-Niaya/503/70, the Government in partial modification of its G.O., dated June J 9, 1971, directed
that the cr~tion of 22 permanent posts of Civil & Sessions Judges
shall have effect from April 1, 1966.
This Notification shows that
all these posts/courts continuously existed on temporary basis from
different dates ranging between July 22, 1949 to August 8. 1962.
Consequent upon the cr~tion of 22 permanent posts with effect
from April 1. 1966, the Governor on March 19, 1975, issued a Notification in supersession of the earlier ones.
Although all the 22 permanent posts created with effect from April
1, 1966 according to the Government Notification were meant for
absorption of promotees only three of those posts were given to the
three direct recruits, respondents 3, 4 and 5 (S,'Shri R. C. Bajpai,
Rikheshwari Prasad and Behari Ji Das) who were shown as confirmed
with effect fmm May 31, 1968, May 27, 1968 and June 1. 1968,
respectively. tlie dates on which they completed their two years' probation.
Against 12 of those posts, 12 promotces were confirmed as
District dnd Sessions Judges with effect from April 1, 1966. The
appellant was not one of those 12 promotces who were so confirmed
althou~h he ha<l been continuously officiating &s Civil and Sessions
Judge since July 1960 and the direct recruits/Respondents 3, 4 and 5
were appointed to that cadre about six years later.
The appellant was
however. shown. alongwith others as confirmed with effect from January 1, 1969.
The appellant was appointed as officiating District and Sessions
Judge under Government Notification dated January 9, 1974 with the
rider that the seniority would be determined later on. Th.is Notification was cancelled by Notification dated July 17, 1974 whereby the
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B. L. GOEL V. U. P. (Sarkaria, J.)
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appeilant was confirmed on the post of District and Sessions Jmtge
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with effect from February 1, 1973.
RespondeTJts 3, 4 and 5 were appointed as District and Sessions
Judges, and confirmed as such by a Gocernment Notification dated
January 9, 1974. These Notifications were cancelled and replaced by
fresh Notifications from time to time.
The last Notification issued by
the State Government confirming the appellant and respondents 3, 4
and 5 as District and Sessions Judges is of March 19, 1975. Under
this Notification, the appellant was confirmed with effect from February l, l 973, while respondents 3, 4 and 5 were confirmed with effect
from July 16, 197.!, August 8, 1972 and August 25, 1975, respectively,
On July 22, 1977, the High Court in exercise of its powers under
Article 235 of the Constitution, issued a Notification confmmng certain
otlicers as District and Sessions Judges in order of seniority from the
dates and in the vacancies shown against their names.
The appellant
was shown at Serial No. 38 and respondents 3, 4 and 5 at Serial Nos.
30, 31 and 32, respectively.
While the appellant's date of confirmation was memioned as May 18, 1973, respondents 3, 4 and 5 were
shown as confirmed with effect from August 25, l 9n.
The appellant challenged the validity of all the Notifications issued
by the State Government relating to his confirmation
as
also
of
respondents 3, 4 and 5 on the post of Civil and Sessions Judge as well
as on the post of District and Sessions Judge by a writ petition under
Article 226 on these grounds : (1) That lhese orders were discriminatory and therefore, violative of Articles 14 and 16 of the Constitution;
and (2) that the Governor had no power to confirm Civil and Sessions
Judges and District Judges, as the same power being a part of 'control'
vested exclusively in the High Court under Article 235, (3) The
appellant, also, (by amending his writ petition) impugned the validity
of Notification No. 670 dated July 22, 1977 issued by the High Court
during the pendency of the writ petition, ( 4) It was also contended
on the authority of this Court in S. B. Patwardhan v. State of
Maharashtra(') that the rule requiring determination of the seniority
to be governed by the date of confirmation is unconstitutional as it
made seniority dependent npon the fortuitous circumstances of contirmation, and where a cadre consists of both permanent and temporary
employees, the date of confirmation cannot be an intelligible criterion
for determining seniority as between direct recruits and promotees.
The High Court has however, taken the view that Patwardhan's
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case (supra) is not attracted to the facts of the inst:mt case because in
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the case of U.P. Higher Judicial Service, l11e matter stands concluded
(l) A.I.R. 1977 S.C. 2051.
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
by the decision of this Conrt in Chandra Mohan's case('), wherein
it was he;d that it is open to the competent authority to determine the
seniority in accordance with rule 20 sans the second proviso, supplemented by any other valid principles or rules. After an elaborate discussion, the High Court concluded :
'The Notification dated 17th
July 1974 and Notification dated 19th March, 1975 issued by the
Governor confirming the petitioner and the opposite parties 3, 4 and 5,
are invalid and ultra-vires inasmuch as the power to confirm on the
post of District Judge vests in the High Court and not in the Governor.
The Notification of the High Court, dated 22nd July 1977, however,
meets the situation and fills up the lacuna to a certain extent.
This
Notification has been issued by the High Court in exercise of its powers.
undeF Article 235 of the Constitution .... Tue said Notification of the
High Court also mentions the respective dates from which they stood
confirmed.
These dates are not founded on proper criteria and it
appears that they were not prop.:rly fixed.
Hence, that part of the.
said Notification of the High Court cannot be snstained. Their dates
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of confirmation shall have to be redetermined by the High Court."
In the result, the High Court partly allowed the writ petition and
quashed the aforesaid Notifications dated July 17, 1974 and July 22,
1977 so far as they relate to the dates of confirmation of the petitioner
and the opposite parties 3, 4 and 5.
A direction was given to the
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High Court in its administrative side, to redetermine the dates of their
confirmation as District & Sessions Judges and their imer-se seniority
"in accordance with rule 20 sans the second proviso of tho U.P. Higher
Judicial SerVice Rules, 1953, supplemented by any other valid princip:es
or rules".
Th•c main contentions raised by Shri R. K. Garg, appearing on b>
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half af the appellant, are :
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(1) Rules 20 and 23 of the 1953 Rules, which make determination of seniority wholly dependent upon the fortuitous circumstance of
confirmation offend Articles 14 and 15 of the Constitution.
(It is
snbmitted that earlier in Civil Appeal 1703 of 1969 decided on April
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19, 1976, he was ob:iged to give up the plea because fundamental rights
were then under suspension and the broader protection of Article 14
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was not available to him). Reliance has been pl~ced on Patwardhan's
case (ibid).
(2) (a) In the impugned Notifications, dates of confirmations have
been fixed arbitrarily in a manner. which unduly
favours the direct
recruits (respondents 3, 4 and 5) and singles out the appellant pro-
(l) A.J.R. 1976 S.C. 1482.
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B. L. GOEL V. u. P. (Sarkaria, J.)
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motee for unfavourable treatment, notwithstanding the fact that he was
promoted as Civil and Sessions Judge about 6 years prior to the recruitment of Respondents 3, 4 and 5 to the same cadre, and had also been
promoted to the senior grade of the Service as District and Sessions
Judge, one year prior to the promotion of these respondents to that
grade.
The High Court has not properly construed the observation in this
Court's decision dated April 19, 1976 in C.A. 1703 of 1969, to the
eJfoct, that the seniority was to be determined "in accordance with rule
20 sans the second proviso of the U.P. Higher Judicial Service Rules,
1953, supplemented by any other valid principles or rules". In that
observation the indication was clear that the confirmations were not to
be arbitrarily made but in accordance with valid and fair criteria which
would ensure that its consequences did not offend Articles 14 and 16.
One of these criteria would be the length of continuous service in the
cadre of the Higher Judicial Service. Indeed, new Rules of 1975 adopt
this as the governing critzria for fixation of inter se seniority in the
service.
According to Mr. Garg, this criterion, based as it was on a
principle of fairplay, could be validly imported into the truncated Rule
20 of 1953 Rules, in accordance with the broad observation of this
Court in its decision in C.A. 1703 of 19.69.
(b) In any case, the Government had while creating 22 permanent
posts with effect from April, 1966, (by conversion of the existing temporary posts hdd by promotees into permanent ones) as per Notifications (G.O. No. 870/7-AI-503 and G.O. No. 2093/VII-A-Niaya/
503/70) declared it as a matter of policy that all these posts are being
created for permanent absorption of promotees who have been continuously working against temporary posts in an officiating capacity for
mom than three years.
Respondents 3, 4 and 5 had not even been
appointed (on probation) to the service on April 1, 1966. They entered the service on May 31, 1966, May 21, 1966 and June 1, 1966;
while on April !, 1966, or even on the date of respondents' entry into
service, the appellant had put in about six years' continuous service
as officiating Civil and Sessions Judge.
Thus, both as a matter of
declared policy and fair principle, the appellant could not be denied
confirmation with effect from April 1, 1966, against one of those 22
posts, and none of the respondents could be confirmed against any of
those 22 posts which had been made permanent for the purpose of
absorbing promotees who had put in officiating service for a period of
more than three years.
Stress has been laid on the fact that apart
from greater length of service, the appellant has an excellent, unblemisw-d record of service. In the circumstances, therefore, the confir7-817SCI/78
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
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mation of the appellant with effect from a date larer than those assigned
to Respondents 3, 4 and 5 is unfair, arbitrary, and discriminatory.
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As against tills, Shri Andley, Learned Counsel for Respondents
3, 4 and 5 submits that lhe Respondents should be deemed to have
been appointed to the service in 1964, when they were selected for
appointm~nt to the service by the Select Committee of the High Court
and were recommended for appointment to the Government.
The
Respondents, it is submitted, would have been appointed to th•o Service
and joined it in 1964, but for the fact that Chander Mohan etc. in the
writ proceedingi; obtained an interim order from the Court, restraining
the Gowrmnent from giving effect to their appointments, and it was
only on the vacation of that "stay" order in 1966, the respondents
could join duty, which they did in May and June 1966. The delay
in joining the service being not due to any fault on the part of the
Respondents, for 'the purpose of confirmation and determination of
seniority, it would be but fair to take the date of their appointment as
the date on which they were selected by the Selection Committee in
1964 for recruitment to the Service. If no stay order issued by the
Court had intervened, the Respondents would have been entitled to be
confirmed on completion of their two years' probation in 1966, 101ig
before a substantive vacancy could become available to the appellant.
It is pointed out while these direct recruits were, as usual, appointed
against substantive vacancies, on probation, the appellant and other
promot>ees like him were appointed against temporary posts on officiating basis only, and they (promotees) could claim confirmation only
when substantive vacancies/posts became available to them.
It is
further argued that the intendment of Rule 8 di the 1953 Ru:•es was
that 25 per cent of the vacancies in U.P. Higher Judicial Service should
be filled by direct recruitment, and this, according to the learned Counsel implies that confirmation of direct recruits and pro.motees at any
given time should also be made in the ratio of I : 3 by rotation. It is
urged that when the matter is considered from this angle, the en bloc
confirmation of 12 promotees with effect from April 1, 1966 foUowed
by the confirmation of the three direct recruits (respondents 3, 4 and
5) with ellP..,ct from May 30, 1968, May 27, 1968 and June 1968, was
neither improper, nor arbitrary.
Learned Counsel further maintains
that equities are wholly on the side of respondents 3, 4 and 5 who are
not younger than the appellant, and this should also be taken into
account as a factor in their favour.
The last but Juke-warm contention of Shri Andley is that it is not
.clearly borne out by the record that the 22 temporary posts, converted
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11. L. GOEL v. u. P. (Sarkaria, J.)
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into permanent ones with effect from April 1, 1966, were created for
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the purpose of absorbing the promotees only .
We do not think it necessary to decide the question with regard to
the constitutional validity of Rules 20 and 23, because this appeal can
be dis posed of on the second ground urged by Shri Garg.
Before
dealing with that contention, it is necessary to have a clear picture of
its factual premises.
There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960, while Respondents 3, 4 and 5 joined the service as Civil and Sessions Judges on
probation, about six years later in May/ June, 1966. We are unable
to accept Sbri Andley's argument that the date of the Respondents'
entry into service should be assumed as the date in 1964, when the
Selection Committee selected them for
appointment. There is no
warrant for importing such a fiction. The stark fact remains that respondents 3, 4 and 5 joined the service in May/June, 1966.
It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about
one year prior to the respondents' promotion to that grade. It is further
clear from the record (vide Paragraph 6(g) of the affidavit of Shri
Radhika Raman, Under Secretary to the Government of Uttar Pradesh:
Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5
filed in the High Court as also the copies of the Notifications filed by
the appellant in this Court) that the State Government crea~d (by
conversion of the existing temporary posts/courts) 22 permanent pools/
courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503,
dated 19-6-1971 with effect from 1-1-69.
Later on,
by
another
Government Order No. 2693/VII/A-Nyay/503/70, dated 3-3-1973,
in modification of the earlier notification, the creation of the aforesaid
22 permanent posts was given effect from 1-4-1966. By the impugned
Government Notification of March 19, 1975, against 12 of those 22
posts, twelve promoted officers shown at Serial Nos. 24 to 35 were
confirmed with eJfoct from 1-4-1966. Against the next 3 of those 22
posts, respondents 3, 4 and 5 were confirmed with effect from 31-5-68,
27-5-68 and 1-6-68. Against the remaining seven promoted officers
including the appellant, were confirmed with effect from January 1,
1969. The first proviso to Rule 8 of 1953 Rules which provided for
a quota of 25% for direct recrnitment and 75% for promotion, was
specifically declared void by this Court in Chandra
Mohan's
case
decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc.
B
c
D
E
F
G
H
92
SUPREME COURT REPORTS
(1979] 2 S.C.R.
A
After considering the entire material on record and hearing the
B
c
D
K
F
G
Counsel for the parties, including Shri Dikshit appearing for the State,
we are unable to appreciate, why the appellant like 12 other promoted
officers, was not confirmed with effect from April 1, 1966, when he
was continuously working as officiating Civil and Sessions Jud~ from
July, 1960.
In the case of promoted officers, the main criteria to be considered
for their confirmation are :
(i) Availability of a substantive vacancy/post.
(ii) Suitability for the post.
Here, in the case of the appellant, a substantive post was available
to him with effect from April 1, 1966, when respondents 3, 4 and 5
had not even bee11 appointed, on probation or otherwise, to the servioe.
By that date, April 1, 1966, he had put in service as officiating Civil
and Sessions Judge for a period of 5 years and 9 months approximately.
There is nothing on record to suggest that by or on April 1, 1966, he
was not found suitable for confirmation.
Why was he, then, not
accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were
coli.firmed with effect from April 1, 1966.
Shri Dikshit has not been
ab:e to satisfy us that in not allocating 1-4-66 to the appellant as the
date of his confirmation, the Government were acting according to any
intelligible differentia or reasonable principle.
Nor is any a principle
justifying a differential treatment to the appellant in the matter of
fixing the date of his confirmation, discernible from tho impugned Notification dated March 19, 1975, itself.
We are therefore, of opinion that this Government Notification
dated March 19, 1975 cannot, as it stands, be sustaiw.,d and ne<cds
reconsideration.
'The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court.
Moreover,
once it is found that the Notification dated March 19, 1975 cannot be
sustained, the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble.
H
Accordingly we allow this appeal, set aside the impugned Notifications dated March 19, 1975 and July 22, 1977 in so far as they fix
the dates of confirmation of the appellant vis-a-vis Respondents 3, 4
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1
ll. L. GOEL v. u. P. (Sarkaria, J.)
93
and 5, both in the junior and senior grade of the U.P. Higher Judicial
A
Service. The High Court shall consider the ma:tter afresh and refix
and readjust, in the exercise of its powers under Article 235 of the Constitution, the dates o1 the confirmation of the appellant and the said
respondents, at first, in the grade of Civil and Sessions Judges, and
th~n in the grade of District and Sessions Judges, in accordance with
law.
There will be no order as to costs in this Court.
B
P.B.R.
Appeal allowed.
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