# DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS

- **Citation:** [2020] 10 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 2020-04-29
- **Bench:** Uday Umesh Lalit, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dinesh-kumar-gupta-and-others-v-high-court-of-judicature-of-rajasthan-others-34476
- **Pages:** 82

## Headnote

Rajasthan Judicial Service Rules, 2010 - rr.3, 5-8, 15-32,
42, 47, 57; Schedule I, II, VII - Effect of 2010 Rules - Cadre of
District Judges in State of Rajasthan - Promotees, Direct Recruits
and candidates selected through Limited Competitive Examination
(LCE) - Appointments and seniority - Objection to - Report
dtd.15.03.19 by five judge Committee of High Court - Held: Judicial
officers promoted on ad-hoc basis as Additional District and
Sessions Judges to man Fast Track Courts in the State and
substantively appointed to the Cadre of District Judge are entitled
to seniority from the date when substantive appointment is made
and not from the date of initial ad-hoc appointment or promotion -
Further, selection process initiated under Notification dated
31.03.2011 is not in continuation of the earlier selection of 2010 -
Report dated 15.03.2019 correctly concluded the same - Candidates
selected through LCE and Direct Recruitment vide Order dated
15.07.2013 cannot be clubbed with 47 Judicial Officers manning
Fast Track Courts who were promoted to the Cadre of District Judge
in substantive capacity on 21.04.2010 and cannot be placed in
accordance with Cyclic Order provided in Schedule VII - The 47
Judicial Officers were rightly placed en-bloc senior to all the
candidates selected pursuant to Notification dtd. 31.03.2011 - Inter
se placement of candidates selected through LCE be based on merit
and not on seniority in the erstwhile cadre - Seniority list issued in
terms of Report dtd.15.03.2019 stands modified only to the said
extent - Rajasthan Higher Judicial Service Rules, 1969 - rr.3, 6-9,
22-24; Schedule I - Rajasthan Civil Courts Ordinance, 1950 -
Constitution of India - Arts.233, 234, 309 - Service Law.
Service Law - Rajasthan Higher Judicial Service - Judicial
Officers granted ad-hoc promotions u/1969 Rules to man Fast Track
Courts - Service rendered if to be considered for seniority - Held:
[2020] 10 S.C.R. 497
497
A
B
C
D
E
F
G
H
498
SUPREME COURT REPORTS
[2020] 10 S.C.R.
Service rendered by such Judicial Officers as Fast Track Court
Judges on ad-hoc basis cannot be taken into account while
reckoning seniority after they were granted promotion on substantive
basis - Rajasthan Higher Judicial Service Rules, 1969.
Disposing of the writ petitions, the Court
HELD: 1.1 Following questions arise for consideration:-
(A) Whether the judicial officers promoted on ad-hoc basis
as Additional District and Sessions Judges to man the Fast Track
Courts in the State and who were substantively appointed to the
Cadre of the District Judge, are entitled to seniority from the
date of their initial ad-hoc promotion?
(B) Whether the selection process initiated in terms of the
Notification dated 31.03.2011 can be said to be in continuation of
the process initiated under Notification dated 15.04.2010?
(C) Whether the substantive promotion granted to the 47
Judicial Officers must be taken to be part of the same selection
process pursuant to the Notification dated 31.03.2011 and whether
the 47 Judicial Officers could be placed en-bloc senior to the
candidates selected in said selection process initiated pursuant
to the Notification dated 31.03.2011, without applying the Cyclic
Order in terms of Rajasthan Judicial Service Rules, 2010?
(D) Whether the inter se placement of candidates selected
to the Cadre of District Judge in the State through Limited
Competitive Examination, in the seniority list must be based on
their merit in said examination or should it be based on their
initial seniority in the erstwhile cadre?
(E) Whether the Report dated 15.03.2019 and the
consequential Final Seniority List, otherwise calls for any
modification or correction? [Para 38][554-E-H; 555-A-B]
1.2 The decisions in Debabrata Dash, and V. Venkata Prasad
were in the context where serving Judicial Officers were granted
ad-hoc promotions as Fast Track Court Judges, while in C. Yamin
the members of the Bar were appointed as Fast Track Court
Judges and these decisions t

## Text

_Characters 0–39,807 of 187,140. This is a partial read: ask again with offset=39807 for what follows._

A
B
C
D
E
F
G
H
497
DINESH KUMAR GUPTA AND OTHERS
v.
HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS
(Writ Petition (Civil) No. 936 of 2018)
APRIL 29, 2020
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Rajasthan Judicial Service Rules, 2010 - rr.3, 5-8, 15-32,
42, 47, 57; Schedule I, II, VII - Effect of 2010 Rules - Cadre of
District Judges in State of Rajasthan - Promotees, Direct Recruits
and candidates selected through Limited Competitive Examination
(LCE) - Appointments and seniority - Objection to - Report
dtd.15.03.19 by five judge Committee of High Court - Held: Judicial
officers promoted on ad-hoc basis as Additional District and
Sessions Judges to man Fast Track Courts in the State and
substantively appointed to the Cadre of District Judge are entitled
to seniority from the date when substantive appointment is made
and not from the date of initial ad-hoc appointment or promotion -
Further, selection process initiated under Notification dated
31.03.2011 is not in continuation of the earlier selection of 2010 -
Report dated 15.03.2019 correctly concluded the same - Candidates
selected through LCE and Direct Recruitment vide Order dated
15.07.2013 cannot be clubbed with 47 Judicial Officers manning
Fast Track Courts who were promoted to the Cadre of District Judge
in substantive capacity on 21.04.2010 and cannot be placed in
accordance with Cyclic Order provided in Schedule VII - The 47
Judicial Officers were rightly placed en-bloc senior to all the
candidates selected pursuant to Notification dtd. 31.03.2011 - Inter
se placement of candidates selected through LCE be based on merit
and not on seniority in the erstwhile cadre - Seniority list issued in
terms of Report dtd.15.03.2019 stands modified only to the said
extent - Rajasthan Higher Judicial Service Rules, 1969 - rr.3, 6-9,
22-24; Schedule I - Rajasthan Civil Courts Ordinance, 1950 -
Constitution of India - Arts.233, 234, 309 - Service Law.
Service Law - Rajasthan Higher Judicial Service - Judicial
Officers granted ad-hoc promotions u/1969 Rules to man Fast Track
Courts - Service rendered if to be considered for seniority - Held:
[2020] 10 S.C.R. 497
497
A
B
C
D
E
F
G
H
498
SUPREME COURT REPORTS
[2020] 10 S.C.R.
Service rendered by such Judicial Officers as Fast Track Court
Judges on ad-hoc basis cannot be taken into account while
reckoning seniority after they were granted promotion on substantive
basis - Rajasthan Higher Judicial Service Rules, 1969.
Disposing of the writ petitions, the Court
HELD: 1.1 Following questions arise for consideration:-
(A) Whether the judicial officers promoted on ad-hoc basis
as Additional District and Sessions Judges to man the Fast Track
Courts in the State and who were substantively appointed to the
Cadre of the District Judge, are entitled to seniority from the
date of their initial ad-hoc promotion?
(B) Whether the selection process initiated in terms of the
Notification dated 31.03.2011 can be said to be in continuation of
the process initiated under Notification dated 15.04.2010?
(C) Whether the substantive promotion granted to the 47
Judicial Officers must be taken to be part of the same selection
process pursuant to the Notification dated 31.03.2011 and whether
the 47 Judicial Officers could be placed en-bloc senior to the
candidates selected in said selection process initiated pursuant
to the Notification dated 31.03.2011, without applying the Cyclic
Order in terms of Rajasthan Judicial Service Rules, 2010?
(D) Whether the inter se placement of candidates selected
to the Cadre of District Judge in the State through Limited
Competitive Examination, in the seniority list must be based on
their merit in said examination or should it be based on their
initial seniority in the erstwhile cadre?
(E) Whether the Report dated 15.03.2019 and the
consequential Final Seniority List, otherwise calls for any
modification or correction? [Para 38][554-E-H; 555-A-B]
1.2 The decisions in Debabrata Dash, and V. Venkata Prasad
were in the context where serving Judicial Officers were granted
ad-hoc promotions as Fast Track Court Judges, while in C. Yamin
the members of the Bar were appointed as Fast Track Court
Judges and these decisions thus completely conclude the issue.
As has been held in said decisions, the reckonable date has to be
A
B
C
D
E
F
G
H
499
the date when substantive appointment is made and not from the
date of the initial ad-hoc appointment or promotion. Question
(A) is, therefore, answered in the negative. [Para 39]
Debabrata Dash and Another v. Jatindra Prasad Das
and Others (2013) 3 SCC 658 : [2013] 2 SCR 331; V.
Venkata Prasad and Others v. High Court of A.P. and
Other (2016) 11 SCC 656 : [2016] 3 SCR 834; Kum C.
Yamini v. The State of Andhra Pradesh (2019) 10
SCALE 834 : [2019] 10 SCR 595 - relied on.
1.3 As regards Question No.(B), it is relevant to note that
the Notification dated 15.04.2010 had invited application for filling
up 36 vacancies by Direct Recruitments and 22 vacancies by
Promotion through LCE. This was preceded by determination of
vacancies through Notification dated 31.03.2010. After the
process initiated in terms of said Notification dated 15.04.2010
was cancelled, a fresh determination of the vacancies was
undertaken and the Notification dated 31.03.2011 now found
vacancies for Direct Recruitments, for Promotion through LCE
and for Regular Promotion at 37, 32 and 24 respectively. Thus,
the vacancies which became available post the Notification dated
15.04.2010 were also taken into account. The Report dated
15.03.2019 shows that some of the selected candidates in the
process pursuant to the Notification dated 31.03.2011 had not
even participated in the earlier process of 2010. In the premises,
if the submission that the process initiated under the Notification
dated 31.03.2011 must be held to be in continuation of the earlier
selection of 2010 is accepted, it would amount to conferring undue
advantages upon persons who either had not participated in the
process of 2010 or who were not even eligible in 2010. The Report
dated 15.03.2019, therefore, correctly appreciated the fact
situation on record and concluded that it would not be in
continuation of the earlier process. [Para 40][562-D-G]
1.4 As regards Question No.(C), it must be noted that as
on the date when 2010 Rules (Rule 57 thereof repealed 1969
Rules and made provisions for saving certain actions) came into
effect, the Additional District and Sessions Judges manning the
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS
A
B
C
D
E
F
G
H
500
SUPREME COURT REPORTS
[2020] 10 S.C.R.
Fast Track Courts had rendered service in ad-hoc capacity for
almost 07 years. The question whether they be granted promotion
on Regular Basis was subject matter of consideration of the High
Court. The Report of the Committee of Judges given in 2008
had advised that they be granted Regular Promotion and the
matter was getting deferred at the level of the Full Court. It was
at this stage that 2010 Rules became effective from 18.01.2010.
Even thereafter, the Notification dated 31.03.2010 had published
the vacancy situation only in respect of Direct Recruitment and
Promotion through LCE. It was obviously so, as the issue
regarding grant of Regular Promotion on substantive basis to
those Fast Track Court Judges was simultaneously under
consideration and on 21.04.2010 a formal Order was passed
promoting the 47 Judicial Officers on substantive basis to the
Cadre of District Judge. The grant of promotion to the 47 Judicial
Officers and selection process pursuant to the Notification dated
15.04.2010 were not part of the same process and were completely
independent. None of the 47 Judicial Officers had the occasion
to compete in the LCE that was undertaken in terms of the
Notification dated 15.04.2010. It is possible to say that the last of
the 47 Judicial Officers could as well have been the first in the
list of successful candidates through LCE and thus could possibly
have been entitled to better placement. In any case, the process
initiated pursuant to the Notification dated 15.04.2010 was
cancelled for administrative reasons and the appointments in
respect of process pursuant to the Notification dated 31.03.2011
could be effected only in the year 2013, i.e. more than 03 years
after the 47 Judicial Officers were granted substantive
appointment to the Cadre of District Judge. Further, if grant of
promotion to the 47 Judicial Officers is taken to be the part of
the same process, some of the Direct Recruits may not even be
having eligibility in the year 2010 and yet may be placed above
some of the 47 Judicial Officers. In the circumstances, the
assessment made by the High Court in its Report dated
15.03.2019 is without any infirmity. The substantive promotion
granted to the 47 Judicial Officers cannot be taken to be part of
the same selection process where Direct Recruits and candidates
through LCE were appointed to the Cadre of District Judge on
15.07.2013. If the substantive appointment of the 47 Judicial
A
B
C
D
E
F
G
H
501
Officers to the Cadre of District Judge is separate and distinct
from the selection process through which appointment were made
after three years on 15.07.2017, there would be no question or
occasion to apply the Cyclic Order (provided in Schedule VII to
2010 Rules). It is not the contention of anyone that appointment
of the 47 Judicial Officers on the relevant date was either beyond
the quota meant for Regular Promotion or that there was any
serious infirmity in the process or that any of the candidates was
completely ineligible. Since there was a difference of more than
03 years between these two modes of selection, the Report dated
15.03.2019 rightly concluded that the Cyclic Order ought not to
get attracted. It is true that the Cyclic Order and the quota for
different streams ensure equitable treatment for three sources.
However, the application of the Cyclic Order must depend upon
the fact situations. It was precisely for this reason that the
expression "as far as possible" has been used in the Rule. Other
things being equal, certainly the quotas for different streams and
the Cyclic Order must be adhered to. However, if such adherence
itself is going to cause incongruous situation and inflict incalculable
harm, insistence upon applicability of the Cyclic Order in such
cases may not be appropriate. The candidates selected through
LCE and Direct Recruitment vide Order dated 15.07.2013 cannot
claim to be clubbed with the 47 Judicial Officers promoted in
substantive capacity on 21.04.2010 and cannot claim appropriate
placement in accordance with the Cyclic Order. The 47 Judicial
Officers were rightly placed en-bloc senior to all the candidates
selected through the process initiated pursuant to the
Notification dated 31.03.2011. Writ Petition (Civil) Nos.936 of
2018 and 967 are, therefore, dismissed. [Paras 1, 41, 41.4][562H; 563-A-H; 564-A-D; 574-F-G]
State of M.P. v. Narmada Bachao Andolan and Another
(2011) 7 SCC 639 : [2011] 6 SCR 443 - relied on.
1.5 While considering Question (D), it is relevant to notice
the emphasis placed by this Court in All India Judges Association
while directing that 25 per cent of the posts in the cadre of the
District Judge be filled through LCE. It was stated in paragraph
27 that there should be an incentive amongst relatively junior
and other officers to improve and to compete with each other so
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS
A
B
C
D
E
F
G
H
502
SUPREME COURT REPORTS
[2020] 10 S.C.R.
as to excel and get accelerated promotion. In paragraph 28 the
relevant direction again stressed that 25 per cent quota for
promotion through LCE be "strictly on the basis of merit." Rule
31(2) of 2010 Rules (Rule 31 deals with source of recruitment)
also uses the expression "strictly on the basis of merit" while
dealing with posts to be filled in through LCE. The merit is to be
assessed in terms of the scheme laid down in the relevant
Schedule. After considering various parameters stated in said
Schedule, the successful candidates are selected on the basis of
merit. The list of successful candidates becomes the basis for
final selection subject to qualifying parameters such as suitability,
medical fitness etc. However, placing reliance on Rule 47(4) (the
issue of seniority is dealt with by Rule 47), the Committee in its
Report dated 15.03.2019 held that the inter se seniority of persons
promoted to the District Judge Cadre in the same year ought to
be the same as it was in the posts held by them at the time of
promotion. If the list is to be drawn up according to merit, it is
possible that the last person in the list of selectees may be the
senior most and going by the Report of the Committee, if all the
selectees are promoted in the same year such last person may as
well be at the top of the list of promotees through LCE. In that
event, the seniority shall become the governing criteria and the
excellence on part of a comparatively junior candidate may recede
in the background. Instead of giving incentive to comparatively
junior and other officers, the entire examination process will stand
reduced to a mere qualifying examination rather than a
competitive examination affording opportunity to meritorious
candidates. The criteria shall then become seniority subject to
passing the LCE. The direction issued in All India Judges
Association to afford an incentive to meritorious candidates
regardless of their seniority would not thus be carried out. The
general principle appearing in Rule 47(4) must, therefore, give
way to the special dispensation in Rule 31(2) of 2010 Rules. The
High Court in its Report dated 15.03.2019 completely failed to
appreciate the true character of LCE and reservation of certain
quota for that category. The Court, therefore, accepts the
submissions made for the petitioners in Writ Petition (Civil)
No.498 of 2018 and Diary No.13252 of 2019 and while answering
Question (D) it is declared that the inter se placement of the
A
B
C
D
E
F
G
H
503
candidates selected through LCE must be based on merit and
not on the basis of the seniority in the erstwhile cadre. Said Writ
Petitions are allowed to that extent. [Paras 42][574-H; 575-A-H;
576-A]
All India Judges Association v. Union of India and
Others (2002) 4 SCC 247 : [2002] 2 SCR 712 - relied
on.
1.6 It is true that as on the date when 2010 Rules came
into effect, there were 83 Fast Track Courts functioning in the
State and appropriate mention to that effect was made in Part A of
Schedule II to 2010 Rules. It is also correct to say that the adhoc promotions granted to the concerned Judicial Officers were
under 1969 Rules. But such promotions were on ad-hoc basis to
man the Fast Track Courts and the law on the point is now well
settled that the service rendered by such Judicial Officers as
Fast Track Court Judges on ad-hoc basis cannot be taken into
account while reckoning seniority after such Judicial Officers were
granted promotion on substantive basis and that their seniority
has to be reckoned only from the date of their substantive
appointment to the cadre of District Judge. Said 1969 Rules do
not in any way confer any right which would be inconsistent with
the law so laid down by this Court. The further submission that
four Judicial Officers out of the 47 Judicial Officers were also
appointed on the same day along with the petitioners in Writ
Petition (Civil) No.464 of 2019 also has no merit. The grant of
promotion on substantive basis to said four Judicial Officers does
not by itself entitle said petitioners to any similar treatment. The
issue of grant of promotion on substantive basis may depend upon
various issues including suitability of the concerned candidate
and availability of posts. The record also shows that after grant of
promotion on substantive basis to the 47 Judicial Officers, there
were no vacancies for Regular Promotion which is why the
selection process undertaken in the year 2010 did not earmark
any vacancies for Regular Promotions and it was only in the year
2011, when adequate vacancies for said category became available,
that the Notification dated 31.03.2011 contemplated filling up of
certain vacancies by Regulation Promotion. The petitioners in
Writ Petition (Civil) No.464 of 2019 participated in the process
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS
A
B
C
D
E
F
G
H
504
SUPREME COURT REPORTS
[2020] 10 S.C.R.
initiated pursuant to said Notification dated 31.03.2011. Some of
them also appeared in LCE and availed of the opportunity to stake
their claim. Their regular promotions to the Cadre of District
Judge must, therefore, be taken only as a result of selection
process initiated in terms of the Notification dated 31.03.2011
which culminated in the Order dated 15.07.2013. In the
circumstances, their substantive appointment to said cadre has
to be reckoned from 15.07.2013 and not with any anterior effect.
Once the Regular Promotion was part of the same process along
with other streams, namely, through Direct Recruitment and LCE,
the Cyclic Order had to be applied and said petitioners cannot be
given en-bloc placement above the candidates selected through
Direct Recruitment and LCE in the same process of selection.
Therefore, there is no merit in Writ Petition (Civil) No. 464 of
2019 and said Writ Petition is dismissed. The petitioners in Writ
Petition (Civil) No.899 of 2019 and other connected matters came
to be appointed on ad-hoc basis to man the Fast Track Courts
after 2010 Rules came into effect. Even if their services were
continued after abolition of Fast Track Courts, that by itself would
not confer any right on them. They came to be substantively
promoted to the Cadre of District Judge only vide Order dated
05.02.2016. For the reasons stated hereinabove, their entitlement
on substantive basis has to be reckoned only from 05.02.2016
and not from any earlier date. Writ Petition (Civil) No.899 of 2019
and other connected matters are, therefore, dismissed. Thus,
while answering Question (E), it is concluded that the Report
dated 15.03.2019 does not call for any modification, except to
the extent dealt with in answer to Question (D). [Para 43][576B-H; 577-A-E]
1.7 The seniority list issued in terms of Report dated
15.03.2019 shall stand modified only to the extent that appropriate
placement to the candidates selected through LCE be given on
the basis of their merit in the examination and not on the basis of
their seniority in the erstwhile cadre. Except to the said extent,
the Report dated 15.03.2019 does not call for any modification or
clarification. [Para 44][577-G-H; 578-A]
All India Judges' Association v. Union of India and
others (1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206;
A
B
C
D
E
F
G
H
505
All India Judges' Association and others v. Union of
India and others (1993) 4 SCC 288 : [1993] 1 Suppl.
SCR 749; All India Judges Association and Others v.
Union of India and others (2002) 4 SCC 274; Brij
Mohan Lal v. Union of India and others (2002) 5 SCC
1 : [2002] 3 SCR 810; Malik Mazhar Sultan and
another v. U.P. Public Service Commission and others
(2006) 9 SCC 507 : [2006] 3 SCR 689; Malik Mazhar
Sultan and another v. U.P. Public Service Commission
and others (2008) 17 SCC 703; All India Judges'
Association v. Union of India and others (2010) 15 SCC
170; Rajasthan Judicial Service Officers' Association
v. State of Rajasthan and Another (2009) 14 SCC 656:
[2009] 10 SCR 814; High Court of Judicature For
Rajasthan v. Veena Verma and another (2009) 14 SCC
734 : [2009] 10 SCR 795; Brij Mohan Lal v. Union of
India and Others (2012) 6 SCC 502 : [2012] 5 SCR
305; Union of India and Others v. N. R. Parmar and
Others (2012) 13 SCC 340 : [2012] 13 SCR 555; Direct
Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900;
Rudra Kumar Sain & Ors. v. Union of India & Ors.
(2008) 8 SCC 25; Hon'ble Punjab and Haryana High
Court v. State of Punjab and others (2019) 12 SCC
496 : [2018] 13 SCR 91; K. Meghachandra Singh and
Ors. v. Ningam Siro and Others (2019) SCC Online SC
1494 : [2019] 16 SCR 651 - referred to.
Case law Reference
[2002] 2 SCR 712
relied on
Para 1
[1991] 2 Suppl. SCR 206
referred to
Para 2.1
[1993] 1 Suppl. SCR 749
referred to
Para 2.1
(2002) 4 SCC 274
referred to
Para 2.1
[2002] 3 SCR 810
referred to
Para 2.3
[2006] 3 SCR 689
referred to
Para 2.4
(2008) 17 SCC 703
referred to
Para 2.5
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS
A
B
C
D
E
F
G
H
506
SUPREME COURT REPORTS
[2020] 10 S.C.R.
(2010) 5 SCC 170
referred to
Para 2.6
[2009] 10 SCR 814
referred to
Para 10
[2009] 10 SCR 795
referred to
Para 11
[2012] 5 SCR 305
referred to
Para 21
[2013] 2 SCR 331
relied on
Para 31
[2016] 3 SCR 834
relied on
Para 31
[2019] 10 SCR 595
relied on
Para 31
[2012] 13 SCR 555
referred to
Para 31
[1990] 2 SCR 900
referred to
Para 39
(2008) 8 SCC 25
referred to
Para 39
[2011] 6 SCR 443
relied on
Para 41
[2018] 13 SCR 91
referred to
Para 41.1
[2019] 16 SCR 651
referred to
Para 41.2
CIVIL ORIGINAL JURISDICTION: Writ Petiton (Civil) No. 936
of 2018.
Under Article 32 of the Consitution of India
With
W.P. (C) No. 967/2018, 1471/2018, 498/2019, 464/2019, 899/2019,
897/2019, 895/2019, 1008/2019 and Diary No. 13252/2019.
Vijay Hansaria, Sanjay R. Hegde, V.K. Shukla, P.S. Patwalia,
Nidhesh Gupta, Ms. Vibha Datta Makhija, Dr. Manish Singhvi,
R. Balasubramanian, Sr. Advs., Avnish Pandey, Ms. Sneha Kalita, Gopal
Jha, Abhinav Mukerji, Siddharth Garg, Ms. Bihu Sharma, Purnima
Krishna, Samarth Khanna, Rishabh Sancheti, Ms. Padma Priya, Anchit
Bhandari, Mohd. Shahrukh Ali, For Mr. K. Paari Vendhan, John Mathew,
Ms. Vriti Gujral, Ms.Pallavi Singh, Ms. Jasneet Kaur, Rishi Matoliya,
H.D. Thanvi, Praveen Gaur, Ms.Priyanshi Aggarwal, Ms. Aadya Mishra,
D.K. Devesh, Satyendra Kumar, Shailja Nanda Mishra, Harsha Vinoy,
Arpit Parkash, Milind Kumar, Annam D. N. Rao, A. Venkatesh, Rahul
Sharma, Ms. Sangeetha M.R., Ms. Ananya Khandelwal, Ms. Avni
Sharma, Ms. Prerna Singh, Guntur Pramod Kumar, Ms. Supriya Juneja,
Ms. Mridula Ray Bhardwaj, Ms. Sriparna Chatterjee, Ms. Sakshi Kakkar,
A
B
C
D
E
F
G
H
507
S.S. Dahiya, R. C. Kaushik, Ms. Sangeeta Gaur, K. Parameshwar, M.V.
Mukunda, Avadh Bihari Kaushik, Devashish Maharishi, Adarsh Upadhyay,
Dr. Harsh V. Surana, Rohit K. Singh, Karthik S.D., Sachin Sharma,
Sunil Samdaria, Sanchit Garga, P.D. Sharma, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These Writ Petitions broadly fall in following three categories:-
A] Writ Petition (Civil) No. 936 of 2018 filed by four petitioners,
prays for appropriate directions that after the promulgation of
Rajasthan Judicial Service Rules, 2010 ("2010 Rules", for short),
all appointments ought to be in conformity with 2010 Rules and
allocation of seniority must be in accordance with the Cyclic Order
provided in Schedule VII to 2010 Rules. In terms of 2010 Rules,
posts in the cadre of District Judges in the Higher Judicial Service
in State of Rajasthan were required to be filled up in accordance
with quota of 50% for Promotees, 25% for Direct Recruits and
25% by way of Limited Competitive Examination ("LCE", for
short) in keeping with law laid down by this Court in All India
Judges Association vs. Union of India and Others1. This Writ
Petition filed by candidates who were successful in LCE prays
that they be allocated seniority in terms of the Cyclic Order in
Schedule VII. In this group fall Writ Petition (Civil) No.498 of
2019*and Writ Petition Diary No.13252 of 2019 which pray that
the inter se seniority between candidates who were successful in
LCE must be determined on the basis of their merit in LCE and
not by their erstwhile seniority.
B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37
Direct Recruits challenging the Provisional Seniority List dated
16.08.2017 with regard to the cadre of District Judges in the Higher
Judicial Service in the State, on the ground that the appointments
made after 2010 Rules had come into effect, ought to be in
accordance with the Cyclic Order; and the inter se seniority and
placement of Direct Recruits and Promotees, promoted after 2010
1(2002) 4 SCC 247
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS
A
B
C
D
E
F
G
H
508
SUPREME COURT REPORTS
[2020] 10 S.C.R.
Rules had come into effect must be in accordance with 2010
Rules.
C] Writ Petition (Civil) No.1471 of 2018 has been filed by
Rajasthan Judicial Service Officers Association ("the Association",
for short) seeking benefit of ad-hoc/officiating service put in by
Promotees who were promoted on ad-hoc basis as Fast Track
Court Judges and also prays for re-determination of vacancies of
Direct Recruits submitting that the vacancies earmarked for Direct
Recruits were in excess of their quota. Writ Petition (C) Nos.464
of 2019, 895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018
are filed by Judicial Officers seeking similar benefit in respect of
ad-hoc/officiating service as Fast Track Court Judges in the State
and pray that such candidates be placed above the Direct Recruits
in the cadre of District Judges in the State.
2. Since the issues involved in all these matters pertain to
appointments to and allocation of seniority in respect of, the cadre of
District Judges in the State of Rajasthan and regarding effect of 2010
Rules, the petitions were heard together. Before we deal with the factual
aspects, it would be necessary to consider certain decisions of this Court
touching upon the establishment of Fast Track Courts as well as the
concept of promotion through LCE and the respective quotas for
candidates coming from three different streams in the Higher Judicial
Service in various States.
2.1. In All India Judges' Associationv. Union of India and
others2, the issues with regard to the working conditions of the members
of the subordinate judiciary throughout the country came up for
consideration. Number of directions were issued by this Court. However,
review petitions were filed by Union of India seeking certain
modifications/clarifications. These review petitions were disposed of by
this Court while issuing further directions in All India Judges'
Association and others v. Union of India and others3. In pursuance
of said directions, First National Judicial Pay Commission under the
Chairmanship of Mr. Justice K.J. Shetty (former Judge of this Court)
was constituted on 21.03.1996. The terms of reference were thereafter
modified on 16.12.1997 and the Commission was also empowered to
consider and grant interim relief. By Report dated 31.01.1998 some
2 (1992) 1 SCC 119
3 (1993) 4 SCC 288
A
B
C
D
E
F
G
H
509
interim relief was granted by Justice Shetty Commission. After due
deliberations Justice Shetty Commission submitted a Report on 11.11.1999
and all the States/ Union Territories were directed by this Court4 to send
their responses to Union of India so that all the issues could be deliberated
upon and dealt with.4
2.2 After considering all the submissions, this Court in its decision
dated 21.03.2002 in All India Judges' Association and others v. Union
of India and others1 passed some directions. We are presently concerned
with the observations made in paragraphs 24 to 29 in which reference
was made to the 85th Report of the Standing Committee of Parliament
recommending that there should be increase in the number of Judges.
Said Committee had noted the Judges to Population ratio and in tune
with 120th Report of the Law Commission, recommendations were made
to increase the Judges' strength to 50 Judges per 10 lakh people in the
first instance. Recommendations made by Justice Shetty Commission
were also considered and recruitment to the Higher Judicial Service in
the cadre of District Judges was also subject-matter of directions.
Paragraphs 27 to 29 are quoted for ready reference:
"27. Another question which falls for consideration is the method
of recruitment to the posts in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. At the present
moment, there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
subordinate judiciary is the foundation of the edifice of the judicial
system. It is, therefore, imperative, like any other foundation, that
it should become as strong as possible. The weight on the judicial
system essentially rests on the subordinate judiciary. While we
have accepted the recommendation of the Shetty Commission
which will result in the increase in the pay scales of the subordinate
judiciary, it is at the same time necessary that the judicial officers,
hard-working as they are, become more efficient. It is imperative
that they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty
Commission has recommended the establishment of a Judicial
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum standard,
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
4 (2002) 4 SCC 274
A
B
C
D
E
F
G
H
510
SUPREME COURT REPORTS
[2020] 10 S.C.R.
objectively adjudged, for officers who are to enter the Higher
Judicial Service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
to the Higher Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
calibre of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per cent
appointment by promotion and 25 per cent by direct recruitment
to the Higher Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned: 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion on the basis
of principle of merit-cum-seniority. For this purpose, the High
Courts should devise and evolve a test in order to ascertain and
examine the legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be not less than
five years. The High Courts will have to frame a rule in this regard.
(emphasis supplied)
28. As a result of the aforesaid, to recapitulate, we direct that
recruitment to the Higher Judicial Service i.e. the cadre of District
Judges will be:
(1) (a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cumseniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Civil Judges
A
B
C
D
E
F
G
H
511
(Senior Division) having not less than five years' qualifying
service; and
(c) 25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the
written and viva voce test conducted by respective High
Courts.
(2) Appropriate rules shall be framed as above by the High Courts
as early as possible.
29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher Judicial
Service in regard to their seniority in service. For over three
decades a large number of cases have been instituted in order to
decide the relative seniority from the officers recruited from the
two different sources, namely, promotees and direct recruits. As
a result of the decision today, there will, in a way, be three ways
of recruitment to the Higher Judicial Service. The quota for
promotion which we have prescribed is 50 per cent by following
the principle "merit-cum-seniority", 25 per cent strictly on merit
by limited departmental competitive examination and 25 per cent
by direct recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned, is where a
roster system is followed. For example, there is, as per the rules
of the Central Government, a 40-point roster which has been
prescribed which deals with the quotas for Scheduled Castes and
Scheduled Tribes. Hardly, if ever, there has been a litigation
amongst the members of the service after their recruitment as
per the quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited. When
roster system is followed, there is no question of any dispute arising.
The 40-point roster has been considered and approved by this
Court in R.K. Sabharwal v. State of Punjab5. One of the methods
of avoiding any litigation and bringing about certainty in this regard
is by specifying quotas in relation to posts and not in relation to the
vacancies. This is the basic principle on the basis of which the 40point roster works. We direct the High Courts to suitably amend
5 (1995) 2 SCC 745
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
512
SUPREME COURT REPORTS
[2020] 10 S.C.R.
and promulgate seniority rules on the basis of the roster principle
as approved by this Court in R.K. Sabharwal case as early as
possible. We hope that as a result thereof there would be no further
dispute in the fixation of seniority. 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."
2.3. Soon thereafter, in its decision rendered on 06.05.2002 in
Brij Mohan Lal v. Union of India and others6 this Court had an occasion
to consider the issue relating to Fast Track Courts. The 11th Finance
Commission had allocated Rs.502.90 crores for the purpose of setting
up 1734 courts in various States to deal with long pending cases,
particularly sessions cases. On the basis of said recommendations a
note was prepared by the Department of Justice, Government of India
to set up Fast Track Courts. Challenges were raised in some High
Courts to the constitution of such Fast Track Courts and the matters
were dealt by this Court in Transfer Petitions.
After considering rival
submissions, directions were issued in para 10 and for the present purposes
direction Nos.1 to 8, 14 and 18 are relevant:-
"10. Keeping in view the laudable objectives with which the Fast
Track Courts Scheme has been conceived and introduced, we
feel the following directions, for the present, would be sufficient
to take care of initial teething problems highlighted by the parties:
Directions by the Court
1. The first preference for appointment of judges of the
Fast Track Courts is to be given by ad-hoc promotions from
amongst eligible judicial officers. While giving such promotion,
the High Court shall follow the procedures in force in the matter
of promotion to such posts in Superior/Higher Judicial Services.
2. The second preference in appointments to Fast Track
Courts shall be given to retired judges who have good service
records with no adverse comments in their ACRs, so far as judicial
6 (2002) 5 SCC 1
A
B
C
D
E
F
G
H
513
acumen, reputation regarding honesty, integrity and character are
concerned. Those who were not given the benefit of two years'
extension of the age of superannuation, shall not be considered
for appointment. It should be ensured that they satisfy the
conditions laid down in Articles 233(2) and 309 of the Constitution.
The High Court concerned shall take a decision with regard to
the minimum-maximum age of eligibility to ensure that they are
physically fit for the work in Fast Track Courts.
3. No judicial officer who was dismissed or removed or
compulsorily retired or made to seek retirement shall be considered
for appointment under the Scheme. Judicial officers who have
sought voluntary retirement after initiation of departmental
proceedings/inquiry shall not be considered for appointment.
4. The third preference shall be given to members of the
Bar for direct appointment in these courts. They should be
preferably in the age group of 35-45 years, so that they could
aspire to continue against the regular posts if the Fast Track Courts
cease to function. The question of their continuance in service
shall be reviewed periodically by the High Court based on their
performance. They may be absorbed in regular vacancies, if
subsequent recruitment takes place and their performance in the
Fast Track Courts is found satisfactory. For the initial selection,
the High Court shall adopt such methods of selection as are
normally followed for selection of members of the Bar as direct
recruits to the Superior/Higher Judicial Services.
5. Overall preference for appointment in Fast Track Courts
shall be given to eligible officers who are on the verge of retirement
subject to they being physically fit.
6. The recommendation for selection shall be made by a
committee of at least three Judges of the High Court, constituted
by the Chief Justice of the High Court concerned in this regard.
The final decision in the matter shall be taken by the Full Court of
the High Court.
7. After ad-hoc promotion of judicial officers to the Fast
Track Courts, the consequential vacancies shall be filled up
immediately by organizing a special recruitment drive. Steps should
be taken in advance to initiate process for selection to fill up these
DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF
JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
514
SUPREME COURT REPORTS
[2020] 10 S.C.R.
vacancies much before the judicial officers are promoted to the
Fast Track Courts, so that vacancies may not be generated at the
lower levels of the subordinate judiciary. The High Court and the
State Government concerned shall take prompt steps to fill up the
consequential as well as existing vacancies in the subordinate courts
on priority basis. The State Government concerned shall take
necessary decisions within a month from the receipt of the
recommendations made by the High Court.
8. Priority shall be given by the Fast Track Courts for
disposal of those sessions cases which are pending for the longest
period of time, and/or those involving undertrials. Similar shall be
the approach for civil cases i.e. old cases shall be given priority.
9. ......
10......
11.....
12 .....
13 .....
14. No right will be conferred on judicial officers in service
for claiming any regular promotion on the basis of his/her
appointment on ad-hoc basis under the Scheme. The service
rendered in Fast Track Courts will be deemed as service rendered
in the parent cadre.