# B. S. YADAV AND OTHERS ETC v. STATI": OF HARYANA AND OTHERS ETC

- **Citation:** [1981] 1 S.C.R. 1024
- **Court:** Supreme Court of India
- **Decided:** 1980-11-05
- **Case number:** Writ Petition Nos. 4228-4230 of 1978
- **Bench:** Y. V. Chandrachud, P. N. Bhagwati, V. R. Krishna !Yer, V. D. Tulzapurkar, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-s-yadav-and-others-etc-v-stati-of-haryana-and-others-etc-8230
- **Pages:** 49

## Headnote

Constitution of India, 1950-Articles 235 and 309, proviso-scope ofGovemor, . if could make rules regulating
conditz'ons of service of judicial
officers-If could retrospectively amend the rules-deteqnina!ion of inter se
seniority of judicial officers and declaring that an officer has satisfactorily completed the period
of probation,
Governor if competent
to do·--period of
probation if could be reduct•d in individual cases without exceptional circumstances iustifying reduction.
Rule of rotation, if could be read into rule of quota of direct recruits and
promotees-vacant post for promotee, if could be filled by confirmation of a
direct recruit and vice versa ..
Exercising power under the proviso to Art. 309 of the Constitution (which
empowers the Governor to make rules regulating the recruitmeot and conditions of service of persons appointed to services and posts [n connection with
the affairs of the State) the Governor of Punjab, in consultation with the
Punjab High Court, framed the Punjab Superior Judicial Service Rules, 1963.
The rules provide for the direct recruitment as well as appointment by promotion from the Punjab Civil Service (Judicial branch}.
Under rule 8(2), tw;:ithird of the total number of cadre posts have to be
manned by promoted
officers and one-third by direct recruits.
Under rule 10(1) direct recruits have
to remain on probation for two years provided that the Government may,
in exceptional circumstance.s, redu'ce the period of probation in con>ultation
with the High Court. The period of probation of an officer can be extended
by the Governor beyond the period of two years in consultation with the
High Court but not so as to exceed a total period of three years. Rule 10(2)
empowers the Governor to confirm in consultation with the High Court 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.
Rule 12 (now in force in
Haryana) provides that the seniority of direct recruits and promoted officers
shall be determined with reference to the respective dates of their confirmation.
Under the Punjab Rules as amended retrospectively with effect from Aprff
9, 1976 'cadre post' means a permanent as well as a temporary post in the
service. The inter se seniority of the members of the service is to pe determined by the length of continuous service on a post in the service irrespective
of the date of confirmation.
The three petitioners in the Haryana writ petitions were selected for ~e
cruitment to the Punjab Civil Service (Judicial Branch) in a competitive examination and after the formation of the State of Haryana, they were pmmoted
H
in an officiating capacity to the Haryana Superior Judicial Service in 1967 and
1968.
Respondent No. 3 who was· a direct recruit to the Haryana Superior
Judicial Service was appointed as a District and Sessions Judge on July 7,
B. S. YADAV v. HARYANA
1025
197() and was confirmed in that post on July 7, 1972 on 6-e completion of
A
two year probationary period. 'The three petitioners were confirmed as District
and Sessions Judges with effect from July 8, 1972.
In the case of judicial officers of Punjab, although there were ten vacancies in the quota of promoted officers and an equal number of promoted
officers were officiating fol' more than three years as Additioml District and
Sessions Judges, the High Court did not confirm the promotees in those vacan-.
cies but confirmed the promotees and the direct recruits by applying the rule
of rotation. Six direct rec;ruits were given prior dates of confirmation in comparison with the promotees, as a resnlt of which the confirmation of eight
promotees was postponed.
In the case of some direct recruits confirmation
was given within a period of one year and four months though the period
of probation was two years.
Rule 12 was
amended
retrospectively frpm
April 9, 1976
by which
seniority was to be determined by the length of continuous service on a post
in the service irrespec

## Text

_Characters 0–39,989 of 136,427. This is a partial read: ask again with offset=39989 for what follows._

1024
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B
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B. S. YADAV AND OTHERS ETC.
v.
STATI": OF HARYANA AND OTHERS ETC,
November 5, 1980
[Y. V. CHANDRACHUD, C. J., P. N. BHAGWATI, V. R. KRISHNA !YER,
V. D. TULZAPURKAR AND A. P. SEN, JJ]
Constitution of India, 1950-Articles 235 and 309, proviso-scope ofGovemor, . if could make rules regulating
conditz'ons of service of judicial
officers-If could retrospectively amend the rules-deteqnina!ion of inter se
seniority of judicial officers and declaring that an officer has satisfactorily completed the period
of probation,
Governor if competent
to do·--period of
probation if could be reduct•d in individual cases without exceptional circumstances iustifying reduction.
Rule of rotation, if could be read into rule of quota of direct recruits and
promotees-vacant post for promotee, if could be filled by confirmation of a
direct recruit and vice versa ..
Exercising power under the proviso to Art. 309 of the Constitution (which
empowers the Governor to make rules regulating the recruitmeot and conditions of service of persons appointed to services and posts [n connection with
the affairs of the State) the Governor of Punjab, in consultation with the
Punjab High Court, framed the Punjab Superior Judicial Service Rules, 1963.
The rules provide for the direct recruitment as well as appointment by promotion from the Punjab Civil Service (Judicial branch}.
Under rule 8(2), tw;:ithird of the total number of cadre posts have to be
manned by promoted
officers and one-third by direct recruits.
Under rule 10(1) direct recruits have
to remain on probation for two years provided that the Government may,
in exceptional circumstance.s, redu'ce the period of probation in con>ultation
with the High Court. The period of probation of an officer can be extended
by the Governor beyond the period of two years in consultation with the
High Court but not so as to exceed a total period of three years. Rule 10(2)
empowers the Governor to confirm in consultation with the High Court 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.
Rule 12 (now in force in
Haryana) provides that the seniority of direct recruits and promoted officers
shall be determined with reference to the respective dates of their confirmation.
Under the Punjab Rules as amended retrospectively with effect from Aprff
9, 1976 'cadre post' means a permanent as well as a temporary post in the
service. The inter se seniority of the members of the service is to pe determined by the length of continuous service on a post in the service irrespective
of the date of confirmation.
The three petitioners in the Haryana writ petitions were selected for ~e
cruitment to the Punjab Civil Service (Judicial Branch) in a competitive examination and after the formation of the State of Haryana, they were pmmoted
H
in an officiating capacity to the Haryana Superior Judicial Service in 1967 and
1968.
Respondent No. 3 who was· a direct recruit to the Haryana Superior
Judicial Service was appointed as a District and Sessions Judge on July 7,
B. S. YADAV v. HARYANA
1025
197() and was confirmed in that post on July 7, 1972 on 6-e completion of
A
two year probationary period. 'The three petitioners were confirmed as District
and Sessions Judges with effect from July 8, 1972.
In the case of judicial officers of Punjab, although there were ten vacancies in the quota of promoted officers and an equal number of promoted
officers were officiating fol' more than three years as Additioml District and
Sessions Judges, the High Court did not confirm the promotees in those vacan-.
cies but confirmed the promotees and the direct recruits by applying the rule
of rotation. Six direct rec;ruits were given prior dates of confirmation in comparison with the promotees, as a resnlt of which the confirmation of eight
promotees was postponed.
In the case of some direct recruits confirmation
was given within a period of one year and four months though the period
of probation was two years.
Rule 12 was
amended
retrospectively frpm
April 9, 1976
by which
seniority was to be determined by the length of continuous service on a post
in the service irrespective of the date of confirmation.
.
.
Rejecting the plea of one of the direct recruits that the rules '10t oniy
required the application of a rule of quota at the time of appointment but also
required the application of a rule of rotation at the time of confirmation, the
B
c
High Court held that rules 8 and 12 were independent of each other, that
D
·rotational system could not be implicitly read in the quota rule provided for
by rule 8 and that members of the Superior Judicial Service were entitled to
claim seniority strictly in accordance with the provisions of rule 12.
The
promotees complained that this decision rendered by the High Court in its
judicial capacity was not being followed by the High Court in the· discharge
of its administrative duties and that seniority of the promotees and direct
recruits must be fixed without applying the rule of rotation at the time of
E
confirmation. It was also stated that after the amendment of rule 12 in 1976
although two vacancies of District and Sessions Judges arose on each of
these occasions the High Court promoted a direct recruit treating the date
of his confirmation as the criterion of seniority.
It was. contended on behalf of the promotees in Haryana that the control
which the High Court exercises under Art. 235 over the subordinate judiciary
does not include the power to make rules regulating the condition of service.
of judicial officers but that since the power conferred on the Governor under
the proviso to Art. 309 to make rules is legislative in nature the principle of
independence of judiciary is not in any manner violated when the Governor
makes the rules.
On the other hand it was contended on behalf of the High
Court that the control over the subordinate judiciary vested in the Hi~h Court
by Art. 235 being exclusive in nature, the power to frame rules in regard to
the. seniority of judicial officers must reside in the High Court and not in the
Governor.
It was contended on behalf of the promotees that
th·e
quota
of 2: l
provided for by rule 8 is applicable only at the time of initial recmitment
and that there was no warrant for extending the application of that rule at
the time of confirmation.
Partly allowing the Petitions;
HELD: There is no force in the contention that the Governor has no
power to make rules of seniority of District and Sessions Judges. [1058B]
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1026
SUPREME COURT REPORTS
[1981] 1 S.C.R.
A
B
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On a plain reading of Arts. 235 and 309 of the Constitution it i,; clear
that the power . to frame rules regarding seniority of officers in the .indici"l
service of the State is vested in the Governor and not in the High Court. The
first part of Art. 235 vests the control over District Courts and courts subordinate thereto in the High Court. But the second part of that Article says that
nothing in the article shall be construed as taking away
from any
person
belonging to the judicial service of the State any right of appeal which h~
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 prescribed under such law.
Thus, Art. 235
itself
defines the outer-limits of the High Court's power of control over the District
Courts and courts subordinate thereto.
In the first place, in the exercise of
its control over the District Courts and subordinate courts it is not open to
the High Court to deny to a member of the subordinate judicial service of the
State the right of appeal given to him by the law which regulates the conditions of his service. , Secondly, the High Court cannot, in the exercise of its
power of control, deal with such person otherwise than in ·accordance with
the conditions of his service which are prescribed by such law. [1052C-F]
'
There is no power in the High Court to pass a law though rules made by
the High Court in the ex<>rcise of power conferred upon it in that behalf may
D
have the force of law. Law which the second part of Art. 235 speaks of is
law made by the Legislature.
The clear meaning, therefore, of the secor.d
part of Art. 235 is that the power o~ control vested in the High Court by the
first part will not deprive a judicial officer of the rights conforred upon him
by a law made by the Legislature regulating his conditions of service. [1052G·H]
Article 235 does not. confer upon the High Courts the p0wer to make
E
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 provision or rules
includini; rules relating to conditions of service, the Constitution has stated
so in express terms.
For example the provisions contained in Articles 225,
227(2) & (3) and 229(1) & (2) confer powers on the High· Court to frame rules
F
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for certain specific purposes.
Art. 229(2) which is directly in point provides
that subject to the provisions of any law made by Legislature of the State
the conditions of service of officers of a High Court shall be made by the
High Court.
The framL"fS of the Constitution
would
not have fail.ed
to
incorporate a similar provision in Art. 235 if it was intended that the
High
Courts should have the
powe~ to make rules regulating the conditions of
service of judicial officers in the subordinate judiciary. [1053B-F]
The power of control vested in the High Court by Art. 235 is ellpressly
made subject to the law which the State Legislature may pass for regulating the
recruitment and service conditions of judicial officers of the State. The framers
of the Constitution did not regard the power of the State l.egislature to pass
Jaws regulating the recruitment and conditions of service of judicial >Jfficers
as an infringement of the independence of the judiciary.
The mere powers
to pass such a law is not violative of the control vested in the High Court
over the State judiciary.
[1053H; 1054C]
In order that there. may be no vacuum until the passing of a law by
the Legislature on the subject, the Constitution has made provision
under
the proviso to Art. 309 that until the State Legislature pas§es a law on the
B. S. YADAV v. HARYANA
1027
particular subject, it shall .be competent to the Governor of the State
to
make rules regulating the recruitment and conditions of service .of the judicial
officers of the State. The power exercised by the Governor under the proviso
is thus a power which the Legislature is competent to exercise but has in
fact not yet exercised. It partakes of the characteristics of the legislative, not
executive, power. It is legislative power. [1054D·F]
That the Governor possesses legislative power under the Constitution is
incontrovertible.
Just as under Art. 213 the Governor substitutes tor
the
Legislature because the Legislature is in recess so under the proviso to
Art. 309 he substitutes for the Legislature because the Legislature has not yet
exercised its power to pass an appropriate law on the subject. [1054G and
1055B-C]
It is true that the power conferred by Article 309 is subject to the provisions of the Constitution but it is fallacious for that reason to contend that
the Go.-ernor cannot frame rules regulating the recruitment and conditions of
service of the Judicial Officers of the State.
Firstly, the power of
control
conferred upon High Coiirts by the first part of Article 235 is e"pressly made
sabject, by the second part of that Article, to laws regulating conditions of
secvice of its Judicial Officers.
Secondly, the Governor, in terms equally ·express, is given the power by the proviso to Article 309 to frame mies on the
subject. [1055B-C]
A combined reading of Arts. 235 and 309 will yield the result that though
the control over the subordinate courts is vested in the High Court the appropriate Legislature and until that Legislature acts the Governor 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 Arts. 14 and 16. [1055D-E]
The second part of Art. 235 recognises the legislative power to provide
for recruitment and the conditions of service of the judicial officers
of the
...._
State.
The substantive provision of Art. 309, including its proviso, fixes the
location of the power.
The opening words of Art. 309 limit the amplitude
of that power. [1055F]
Seniority is undoubtedly an important condition of service.
The control
vested in the High Court by the first part of Art. 235 is, therefore. subject to
any law regulating seniority as envisaged by the second part of that article.
:rhe power to make such law is vested by Art. 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, the end product
is law within the meaning of second part of Art. 235.
The Legislatures of
Punjab and Haryana not having passed an Act regulating seniority of the respective State jui:licial officers, the Governors of the two States have the power
to frame rules for that purpose under the proviso to Art. 309 of the Constitution.
Such rules are subject to the provisions of the Constitution and to
the provisions of any Act which the appropriate Legislature may pass on the
subject.
[1055G-H]
The law passed by the Legislature or the rules made by the Governor can
provide for general or abstract rules of seniority leaving it to the High Court
to apply them to each individual case as and when the occasion arises.
The
·power to legislate on seniority being subject tQ all other provisions of the
Constitution cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Art. 2'35.
[1056B·C]
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1028
SUPREME COURT REPORTS
[1981] 1 S.C.R.
A
Though the Legislature: or the Governor has the power to regulate seniority of judicial officers by laying down rules of general· application,
that
power cannot. be exercised in a manner which will lead to interference with
the control vested in the High Court by the first part of Art. 235. In a won~,
the application of law governing seniority must be left to the High
Court.
The determination of seniority of each individual judicial officer is a matter
which indubitably falls within the area of control of the High Court over the
B
district courts and the courts subordinate thereto.
For the same
reason,
though rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has satisfactorily compl:~led his probation or not is a matter which is exclusively in the domain of the High Court
to decide. [1056E-F]
The independence of the judiciary has to be preserved 1t all costs.
But
C
at the same time the Legislature or the Governor cannot be deprived of
their legitimate legislative powers under Art .. 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 to the violation of Arts. 14 or 16
or the pervasive ambit of the first part of Art. 235.
Since the power conferred by Art. 309 is not absolute or untramelled it will be wrong to test the
D
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validity of that power on l:he anvil of its possible abuse. [1057 A-BJ
High Court of Pu11jab and Haryana v. State of Haryana, [1975] 3 SCR 365,
Union of India v. Justice S. H. Sheth, [1978] 1 S.C.R. 423., A. P. High Court v.
Krishnamurthy, [1979] 1 S.C.R. 26 & State of Bihar v. Madan Mohan Prasqd,
[1976] 3 S.C.R. 110, referred to.
Rule 8 as its very heading shows, provides for a distinct condition of service with reference to a specific point of time, namely "recruitment to service".
The language of the rule also indicates tha.t the operation of this rule is confined to the stage of initial recruitment 1to the service either by promotio11 or by
direct appointment from the Bar.
[1063F]
The reservation contemplated by rule 8 is intended to be made at the
stage of initial appointment only by reserving two third of the t;,tal number of
posts in the cadre for promotees and one third for direct recruits.
A post
which falls vacant in the quota of promotees cannot be filed by the confirmation of a direct recruit therein nor indeed can a promotee be confirmed in a
post which is within the quota of direct recruits. [1063H]
If this be the true construction of rule 8 the method of confirmation by
rotation of direct recruits and promotees, regardless of whether the vacancy
assigned to the particular officer falls within the quota of the class to whi.;h
he belongs will be in contravention of that rule. [1064B]
'Appointment' is not a continuous process.
The process of appointment
is complete as soon as a person is initially recruited to the service either by
promotio~ or by direct recmitment and confirmation is not a part of the process
of appointment.
"Recruitment to the service" is a matter which falls within
the power of the Governor under Art. 233 while "confirmation" is a m~.tter of
'control' vesting in the High Court under Art. 235.
The superimposition of
rule 8, which fixes the quota at the stage of recruitment on the rules relating
to confirmation and seniority i,s, therefore, contrary to the basic constitutional
concepts governing judicial service. [1064C-D]
B. S. YADAV v. HARYANA
102 9
The n;[e of rota cannot be read into the rule of quota. In other words
A
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. [l 066Bj
A K. Subraman v. Union of India, [1975] 2 SCR 979, N. K. Chauhan v.
State of Gujarat, [1977] 1 SCR 1037 referred to.
Paramjit Singh Sandhu v. Ram Rakha, [1979] 3 SCR 584 held inapplicable.
The High Court was not justified in applying the rule of rotation at the
time of confirmation of the members of the superior judicial service who were
appointed to that service by promotion and by direct recruitment. In the dis·
charge of jt.s administrative functions the High Court could not have failed to
follow a judgment of its own special bench consisting of five Judges. [1066C-D]
High Court of Punjab and Haryana v . . State of Haryana, [1975] 3 S.C.R.
365, referred to.
On a proper interpretation of the rules, promotees
are entitled to be
confirmed in the vacancies which are available within their quota of two third,
whether or not one third of the vacancies are occupied by confirmed direct
recruits.
Similarly direct recruits are entitled to be confirmed in vacancies
which are available within their quota of one third whether or not two third
of the vacancies are occupied by confirmed promotees. [1067D-El
The fairness which Arts. 14 and 16 postulate 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 not, completes his
period of probation and thereupon becomes eligible for confirmation.
The
adoption of this principle in the matter of confirmation will not, in practice,
give any undue adyantage to the promotees. [10670-E].
Jn so far
as the confirmation of respondents 6, 7 and 8 is concerned, in
tl1e absence of exceptional circumstances justifying the reduction of tl::~ir normal probationary period of two years, the order of the High Court confirming
the three respondents before they were normally due for confirmation cannot
be upheld.
The order is in clear violation of the guarantee of equal opportunity, by the petitioners were prejudiced and must for that reason be set.
aside. [1067G-H]
The power conferred by the proviso to rule 10(1) on the Governor
is
ex-facie bad because such a power directly impinges upon the control vested
in the High Court by Art. 235 of the Constitution. If at all any
authority
could exercise such a power, it is the High Court and not the Governor. The
rules must now be understood to mean that the High Court and not the Governor has the power of confirmation, that the normal period of probation
of
direct recruits is two years and that unless there are exceptional circumstances
in regard 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.
[1068B-E]
As regards the power of the Governor to amend a rule with retrospective
effect, since he exercises a legislative power under proviso to Art. 309, it is
open to him to give retrospective effect to the rules made under that provision.
But the date from which the rules are made to operate must be shown to be~r
5-6 S. C. India/ND/Bl
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.1030
SUPREME COURT REPORTS
[1981] 1 S.C.R.
A
either from the face of the rules or by extrinsic evidence reasonable nexns
with the provisions contained in the rules, especially when the retrospective
effect extends over a
long
period.
In the instant case rnle 12 which was
amended retrospectively frorr\ April 9, 1976 by a notification dated December
31, 1976 is invalid because' no such nexus is shown to exist. [1068F-H]
-""'
ORIGINAL JURISDICTION: Writ Petition Nos. 4228-4230 of 1978
B
and 266 of 1979.
(Under Article 32 of the Constitution)
V. M. Tarkunde, 0. P. Malhotra,
K. N. Bhatt, Vijay Kumar
Verma and R. C. Kathuria for the Petitioners in WPs 4228-4230/78.
_A
C
Y. S. Chitale (Dr.), Lala Ram Gupta, C. R. Somashekharan,
M. S. Ganesh, P. N. Jain and M. V. Goswami for the Petitioners in
W.P. 266/79.
"'(
S. N. Kackar, S. N_ Ashri, R. N. Sachthey and M. N. Shroff for
Respondent 1 in WP 4228-4230/78.
D·
Soli J. Sorabjee, and Hardev Singh for R. 2 in WPs 4228-30 of
E
F
1978 and 266/79.
F. S. Nariman, B. R. Tuli and R. S. Sodhi for RR 3-11 in \VP
266/79.
Kuldip Singh, Prem Malhotra and R. S. Mongia for R. 3 in
WPs 4228-30/78 and intervener.
A. K. Sen and Mrs. Urmila Kapoor for R. 1 in WP 266/79.
_.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-These Writ Petitions under Article 32
of the Constitution involve the consideration of a two-fold controver&y : first, as to the rules governing seniority between direct recruits
and promotees appointed to the Superior Judicial Servrces of Punjab
and Haryana and second, between the control over district courts and
subordinate courts vesited in the High Court by :Art. 235 and the power
conferred upon the Governor by the proviso to Art. 309 of the
Constitution to make rules regulating the recruitment and conditions
of service of persons appointed, inter alia, to the Judicial Service of
the State.
We have two sets of Writ Petitions before us whrch involve
identical pointS' except for one material difference which we will menH1
tion later.
Writ Petitions 4228 to 4230 of 1978 are filed by three
J.udrcial Officers of the State of Haryana who are promotees, that is
to say, who were promoted to the Superior Judicial Service of the State
B. s. YADAV v. HARYANA (Chandrachud, C.J.)
103 i
from the Harvana Civil Service (Judicial Branch). Respondents 1 and
2 to those W;it Petitions are the State of Haryana and the High Court
of Punjab and Haryana respectively. Respondent 3, Slrrr 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 (Judi-
<:ial 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.
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 confirmation of a promotee in that vacancy is postponed arbitrarily and indefiilltely, that promotees are treated with al\
unequal hand qua direct recruits : for example, a promotee, despite
his satisfactory performance and the availability of a substantive
vacancy in which he can be confirmed, rs continued in an officiating
capacity until after a direct recruit completes his probation and is due
for confirmation, and that, the High Court applies the principle of rotation as between promotees and direct recruits at the time of their
confirmation when, in fact, aill that the relevant rules provide for is
the application of a rule of quota at the time o4' their appointment.
These grievances of the promotees can best be understood in the.
light of the following facts : The three petitioners in the
Haryana
Writ Petitions were selected for recruitment to the Punjab Civil Servrce (Judicial Branch) after qualifying in a competitive examination.
They were appointed as Subordinate Judges in 1950. By Act 3 of
1966, the State of Haryana came into existence on
November 1,
1966. Petitioners 1 and 2 -
Shri B. S. Yadav and Shri V. P. Aggar~
wal -
were promoted in an officiating
capacity to the
Haryana
Superior Judicial Service on July 28 and October 7, 1967 respectively, while petitioner No. 3 Shri A. N. f\ggarwal, was promoted similarly
on March 27, 1968. Respondent 3, Shri N. S. Rao who as a member of the Bar was working as a District Attorney, was
appointtid
directly to the Haryana Superior Judicial Service with effect from
luly 7, 1970. The normal period of his two years' probation ;;:xpired
en July 7, 1972 but before the issuance of the orders of his confirmation, a complaint dated August 2, 1972 was received against
him.
That1 complaint was inquired into by a High Court Judge who, by
.his report of March 1973, held it to be unfounded.
Respondent 3
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[1981] 1 S.C.R
was thereupon confirmed by the High Court as a District and Session~
Judge with effect from March 30, 1973.
By a notification dated
May 4, 1973 that date was corrected to July 7, 1972 being the date
on which Respondent 3 completed
the two
years'
probationary
period.
By the same notification, the High Court confirmed the
Petitioners and two other promotees as District and Sessions Judges
with effect from July 8, 1972. Thus, the petitioners, who were officiating continuously in the Superior Judicial Service of the State as
Additional 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 bis probationary period.
(A small digression will be permissible here. The Government
of Haryaua was urlwilling 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 au order reverting
hhn to the post of a District Attorney which he was holding at the
time 0£ 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(l) that the power to confirm a direct recruit vested in the
Governor and not in the High Court. A Constitution Bench of this
Court reversed the view of the High Court and held by a unanimous
judgmeilt
(High Court of Punjab and Haryana v. S~ate of
Haryana)(~), that the power to confirm a District a.nd Sessions Judge
resides in the High Court and not in the Governor).
In the Punjab Writ Petition, the
contesting parties
are
twenty-two promotees who have filed the writ petition and Respondents ::I to 11 who were appointed directly to the Punfiab Superior
Judicial Service. Petitioner No. 1, Shri Pritpal Singh, was promoted
to that Service on November 12, 1969 when he was 44 years of age.
Respondent 3, Shri J. S. Sekhon, was appointed {faectly to that Service on February 1, 1973 when he was 41 years of age. The former,
though promoted to the Superior Judicial Service more than three
years before the appointment of Respondent 3, was confirmed on
February 3, 1975 which was one day later than February 2, 1975
on which date Respondent 3 was confirmed on the completion of hi~
two years' probation..
The grievance of Petitioner No. 1 is that a
permanent vacancy was available on December 23, 1972 in which
(1) ILR 1974 Punjab 121. {F.B.).
(2) [1975] 3 S.C.R. 365.
B. s. YADAV v. HARYANA (Chandrachud, C.J.)
he could have been confirmed but the High Court marked time in
order to enable Responderfr 3 to complete his probation and gave to
Petitioner 1 an arbitrary and artificial date of confirmation in order
). that he may not rank higher in seniority to Respondent 3.
The case of Petitioner 1 in the Punjab Writ Petition is illustrative of the grievance of the other petitioners. Petitioners 2 to 6 were
promoted to the Superior Judicial Service between January 1972 and
August 1972. Petitioner 7 was promoted in ~pril 1973, Petitfoners 8
to 10 in August 1974, Petiti:oners 11 to 16 in 1975, Petitioner 17 in
1976, Petitioners 18 t?j20 in 1977 and Petitioners 21 and 22 in 1978.
Respondents 4 and 5 were recruited directly in January 1973 and were
confirmed in February 1975 on the completion of the probationary
period. Their confirmation is open to no exception but, Petitioners 2
and 3 Shri Amarjit Chopra and Shri H. S. Ahluwalia who were
promoted on January 16 and August 21, 1972 were confirmed on
August 6 and August 7, 1976 respectively. The significance of these
dates of confirmation becomes apparent in relation to the confirmation
of respondents 6 and 7.
Having been appointed directly to the
Superior Judicial Service on the 1st and 2nd of April 1975, they were
confirmed on the 2nd and 5th August 1976 respectively, which was
even before they had completed their probationary
period.
Petitioners 2 and 3 who were promoted to the Superior Judicial Service
roughly three years prior to the direct appointment of Respondents 6
and 7 were confirmed on the 6th and 7th August, 1976 which was
_..
three or four days later than the dates of confirmati:on 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, i979.
Do the rules which apply to the members of the Superior Judicial
Servi:ces of Punjab and Haryana warrant this course of action and how
far are the rules valid? For deciding these questions we must neces•
iarily have a look at the relevant rules.
The recruitment to the Punjab Superior Judicial Service and the
other conditions of service of the members thereof are regulated by
the "Punjab Superior Judi:cial 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 Art. 309 .of the
Constitution._ By that proviso, the Governor has the power to make
rules regulating the recruitment and the conditions of service of per-
~ons appointed to services and posts in connection wi:th the affairs of
the State.
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Rules 2, 4, 8, 9, 10, 11, 12 and 14 of the aforesaid rules which
B
are relevant for the present purposes read as follows in so far as they
are material :
Rule 2 : Definitions.-( 1) 'appointment to the service' means
an appointment to a cadre post, whether on permanent, temporary or officiating basis, or on probation;
(2) 'cadre post' means a permanent post in the Service;
(6) 'memb(:r of the Service' means a person-
(a) who immediately before the c~mmencement of these
::1
rules, holds a cadre post, whether on permanent, tern-
'
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porary or officiating basis, or on probation; or
(b) who is appointed to a cadre post in accordance wi:th the
provisions of these rules;
(7) 'Promoted officer' means a person-
( a) who is not a direct recruit and .is holding a cadre-post
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whether on permanent, temporary or officiating basis or
on probation, immediately before the commencementi of
these rules; or
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(b) who is appointed to the Service by promotion from
Punjab Civil Service (Judicial Branch) ..
Rule 4 : Appointing Authority.-All appointments to the
Service shall be made by the Governor in consultation with the
High Court.
Rule 8 : RecruUment to Service.-( 1) Recruitment to the
Service shall be made-
(i) by promotion from the Punjab Civil Service (Judicial
Branc:h); or
(ii) by drrect recruitment.
(2) of the total number of cadre-posts, two-third shall be
manned by promoted officers and one-third by direct recruits :
Provided that nothing in this sub-rule shall prevent the officiating appointment of a member of the provincial Civil Service
(Judicial Branch) on any post which is to be filled up by direct
'1'
recruitment, till a direct recruit is appointed.
Rule 9 : Appointment of direct recruits.--(1) No person
shall be eligible for direct recruitment unless he--
(i) is not less than 35 yearn and not more than 45 years
of age on the first day of January next following the
year in which his appointment is made;
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B. s. YADAV v. HARYANA (Chandrachud, C.l.)
103_5~
(ii) has been for not less than 7 years an Advocate or a
A
pleader and is recommended by the High Court for such
appointment.
(2) No person who is recommended by the High Comt for
appointment under sub-rule ( 1) shall be appointed unless he is
found physically fit by a Medical Board set up by the- Governor
B
and is also found suitable for appointment in all other respects.
Rule IO : 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, rn consultation with the High Court,-
(i) revert him to his substantive post; or
(ii) deal with him in such other manner as may be wan-anted
by the terms and conditions of hrs substantive appointment.
Rule 12 : Senion'1y.-The seniority, inter se, of the substantive members of the Service, whether direct recruits of promoted
officers, shall be determined with reference to the respective dates
of their confirmation.
Provided that the seniority, inter se, of substantive members
of the Service having the same date of confirmation shall be d1:termined as follows :
(i) in the case of direct recruits the older in age shall be
senior to the younger;
(ii) in the case of promoted officers, in accordance with the
seniority in the Punjab Civil Service (Judicial Brnn.::h)
as it stood rmmediately before their confirmation;
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(iii) in the case of promoted officers and direct recruits, the
older in age shall be senior to the younger.
Rule 14 : Selection Grades.--( 1) The members of the Service
shall be eligible for promotion, permanently or provrsionally, to
the following selection grade posts, carrying scales of pay specified
against them : Two Selection Grade posts in the time scale of
Rs. 1800-100-2000; and Two Selection Grade posts at a fixed
pay of Rs. 2,250.
(2) Promotion to the Selection grade posts shall be made
on merit and suitability in all respects with due regard to seniority
and no member of the Service shall be entitled as of right to such
promotion.
Appendix A to the rules shows that the Punjab Superior Judicial
Service consisted then of 20 posts : One Legal Remembrancer and
Secretary to Government, Punjab, Legislative Department; 15 District
and Sessions Judges; and 4 Additional District and Sessions Judges.
These rules were amended from time to time with or without the
consultation of the High Court. The relevant amendments are these :
On February 3, 1966 the Governor of Punjab, in exercise of the
powers conferred by the proviso to Art. 309 of the Constitution and
all other powers enabling him in thrs behalf, promulgated the "Punjab
Superior Judicial Service: (First Amendment) Rules, 1966". By clause 2
of these rules the following proviso was added to sub-rule (1) of
rule 10 of the 1963 Rules:
"Provided that the Governor may in exceptional circumstances of any case, after consulting the High Court, reduc~ the
period of probation".
On December 31, 1976 the Governor of Punjab, in exercise of
the powers conferred by the proviso to Art. 309 of the Constitution
and all other powers enabling him in thi~ behalf, made the "Punjab
Superior Judicial Service (Second Amendment) .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
service.
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' mearis a permanent ·or temporary post in the
, service".
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B. s. YADAV v. HARYANA (Clumdrachud, C.J.)
1037
Rule 12 of the 1963 Rules provided that the seniority, inter se, of the
A
substantive members of the Service, whether direet recruits or promot-
·ed officers, shall be detern1ined with reference to the respective dates
of their confirmation. Clause 3 of the Second Amendment Rules sub-
·stituted the following rule for the original rule 12 :
"12. Seniority.-The seniority, inter se, of the members of
B
the service, shall be determined by the length _of continuous service on a post in the Service irrespective of the date of confimlation;
·
Provided that in the case of two members appointed on the
same date, their seniority shall be determined as follows :
C
(i) in the case of direct recruits, the older in age shall be
senior to the younger;
(ii) a member recruited by direct appointment shall be
senior to a member recmited ·otherwise ; and
(iii) in the case of members appointed by promotron, seniority shall be determined according to the seniority of
such members in the appointments from which they
were promoted."
This is how the rules stand in so far as the State of Punjab is
·concerned. The State of Haryana came into existence on November 1,
1966 by Act 3 of 1966. The Punjab Superior Judicial Service Rules,
1963, as amended upto November 1966 apply to the State of Haryana
-with the amendments made from time to time by the Governor of
Haryana.
On March 17, 1971 certain formal amendments were made to
the 1963 Rules by the Haryana First Amendment Rules, 1971.