# HON'BLE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH v. STATE OF PUNJAB AND ORS

- **Citation:** [2018] 13 S.C.R. 91
- **Court:** Supreme Court of India
- **Decided:** 2018-10-03
- **Case number:** Civil Appeal Nos. 5518-5523 of 2017
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hon-ble-punjab-and-haryana-high-court-at-chandigarh-v-state-of-punjab-and-ors-32546
- **Pages:** 48

## Headnote

Service Law:
Inter-se seniority - Between three streams of Superior Judicial
Service i.e. promotees, direct recruits and out of turn promotees -
In the seniority list promotee officers were placed at serial Nos. 1 to
14; at serial Nos. 15 and 16 were direct recruits; out of turn promotees
at serial Nos. 17 to 24 and at serial Nos. 25 to 35 were direct recruits
- Writ petition by direct recruits and out of turn promotees
challenging the seniority list - High Court allowing the petitions
held that the promotees were in excess of quota and hence should
be treated as ad hoc and placed at the bottom of seniority list and
directed to re-cast the seniority list - On appeal, held: Prior to
amendment of Service Rules of 1963 in 2004, 75% of the cadre was
required to be filled up by promotees and 25% by direct recruits -
After the amendment in 2004, promotion quota was fixed as 50%,
25% for out of turn promotees (by departmental examination) and
25% for direct recruits - The amendment of Service Rules in 2004
was as a result of direction in *All India Judges' Association case -
The judgment in the case being prospective, the ratio of officers as
existing before unamended Rules cannot be adversely affected -
Determination of quota which existed prior to and subsequent to
amended Rules have to be treated differently - Determination of
seniority as brought in place by 2007 Rules, cannot be implemented
so as to defeat any existing right - Promotition of officers u/r. 7(3)(a)
of Service Rules was in accordance with the service Rules and their
promotion canot be treated ad hoc nor they can be pushed to the
bottom of seniority list - Out of turn promotion quota having been
culled out only as per judgment in *All India Judges' Association
case, the said quota will come into existence propectively - Therefore,
out of turn promotees cannot claim 25% quota from day one - Thus
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there is no patent error in calculation of the vacancies - Recruitment
made from three different streams cannot be faulted - Supreme Court
in *All India Judges' Association case had directed for adopting
roster system - Quota was throughout present in 1963 Rules, which
has been amplified in 2007 Rules - The purpose and object of r. 7
of 2007 Rules r/w Appendix-B is clear that roster is to be followed
for determination of seniority - Therefore, roster is applicable in
determining the seniority - All the Fast Track Court Judges who
were taken into regular cadre in different streams have been rightly
placed in seniority list - The seniority positition of the officers of
the three streams is determined as per the roster as indicated in
Appendix-B - Punjab Superior Judicial Service Rules, 1963 - r. 8
- Punjab Superior Judicial Service Rules, 2007 - rr. 7(3)(a),(b)
and (c); 7(4),8,12(3) and Appendix B.
Allowing the appeals, the Court
HELD: 1.1 From 28.01.1991, Rule 8 of Punjab Superior
Judicial Service Rules, 1963 was amended providing for threefourth of the cadre to be filled up by promotee officers and onefourth by direct recruits. The above position continues till Rules
were amended in 2004 under the direction of this court in *All
India Judges' Association case. For the first time by amending
Punjab Superior Judicial Service Rules on 15.01.2004, the
promotion quota under Rule 8 was fixed as 50 per cent, 25 per
cent for limited departmental competitive examination and as
far as for direct recruits, earlier 25 per cent was maintained.
[Paras 39 and 40][116-H; 117-A-B]
1.2 The cadre strength as on 13.09.2007 was 89, which was
increased on 10.11.2007 to 107. After the amendment of Rules
on 15.01.2004, promotion of 10 officers were made. The cadre
strength before 2004 was 88. Thus, in the year 2004, when the
cadre strength was 88, 75 per cent posts were to be manned by
promotees under merit-cum-seniority, i.e. 66 were to be manned
by promotee offi

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HON'BLE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
 v.
 STATE OF PUNJAB AND ORS.
(Civil Appeal Nos. 5518-5523 of 2017)
OCTOBER 03, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service Law:
Inter-se seniority - Between three streams of Superior Judicial
Service i.e. promotees, direct recruits and out of turn promotees -
In the seniority list promotee officers were placed at serial Nos. 1 to
14; at serial Nos. 15 and 16 were direct recruits; out of turn promotees
at serial Nos. 17 to 24 and at serial Nos. 25 to 35 were direct recruits
- Writ petition by direct recruits and out of turn promotees
challenging the seniority list - High Court allowing the petitions
held that the promotees were in excess of quota and hence should
be treated as ad hoc and placed at the bottom of seniority list and
directed to re-cast the seniority list - On appeal, held: Prior to
amendment of Service Rules of 1963 in 2004, 75% of the cadre was
required to be filled up by promotees and 25% by direct recruits -
After the amendment in 2004, promotion quota was fixed as 50%,
25% for out of turn promotees (by departmental examination) and
25% for direct recruits - The amendment of Service Rules in 2004
was as a result of direction in *All India Judges' Association case -
The judgment in the case being prospective, the ratio of officers as
existing before unamended Rules cannot be adversely affected -
Determination of quota which existed prior to and subsequent to
amended Rules have to be treated differently - Determination of
seniority as brought in place by 2007 Rules, cannot be implemented
so as to defeat any existing right - Promotition of officers u/r. 7(3)(a)
of Service Rules was in accordance with the service Rules and their
promotion canot be treated ad hoc nor they can be pushed to the
bottom of seniority list - Out of turn promotion quota having been
culled out only as per judgment in *All India Judges' Association
case, the said quota will come into existence propectively - Therefore,
out of turn promotees cannot claim 25% quota from day one - Thus
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there is no patent error in calculation of the vacancies - Recruitment
made from three different streams cannot be faulted - Supreme Court
in *All India Judges' Association case had directed for adopting
roster system - Quota was throughout present in 1963 Rules, which
has been amplified in 2007 Rules - The purpose and object of r. 7
of 2007 Rules r/w Appendix-B is clear that roster is to be followed
for determination of seniority - Therefore, roster is applicable in
determining the seniority - All the Fast Track Court Judges who
were taken into regular cadre in different streams have been rightly
placed in seniority list - The seniority positition of the officers of
the three streams is determined as per the roster as indicated in
Appendix-B - Punjab Superior Judicial Service Rules, 1963 - r. 8
- Punjab Superior Judicial Service Rules, 2007 - rr. 7(3)(a),(b)
and (c); 7(4),8,12(3) and Appendix B.
Allowing the appeals, the Court
HELD: 1.1 From 28.01.1991, Rule 8 of Punjab Superior
Judicial Service Rules, 1963 was amended providing for threefourth of the cadre to be filled up by promotee officers and onefourth by direct recruits. The above position continues till Rules
were amended in 2004 under the direction of this court in *All
India Judges' Association case. For the first time by amending
Punjab Superior Judicial Service Rules on 15.01.2004, the
promotion quota under Rule 8 was fixed as 50 per cent, 25 per
cent for limited departmental competitive examination and as
far as for direct recruits, earlier 25 per cent was maintained.
[Paras 39 and 40][116-H; 117-A-B]
1.2 The cadre strength as on 13.09.2007 was 89, which was
increased on 10.11.2007 to 107. After the amendment of Rules
on 15.01.2004, promotion of 10 officers were made. The cadre
strength before 2004 was 88. Thus, in the year 2004, when the
cadre strength was 88, 75 per cent posts were to be manned by
promotees under merit-cum-seniority, i.e. 66 were to be manned
by promotee officers. The judgment in *All India Judges'
Association case being prospective, the ratio of officers as existing
before unamended Rules can not be adversely affected. A
promotee before the amendment of Rules, 2004, who was well
within their quota, suddenly cannot go out of their quota and
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become an excess merely on the strength of amendment of Rules,
which are prospective in nature. For determining the quota, the
cadre strength, which existed prior to amended rules and
subsequent to the amended rules have to be treated differently.
[Para 40][117-D-F]
1.3 The out of turn promotion quota having been culled out
only as per the judgment in *All India Judges' Association case,
which was required in the Rules by the State, the said quota will
come into existence only prospectively. An out of turn promotee
cannot claim that they should be given 25 per cent posts of the
cadre strength right from day one. It is true that quota has to be
determined on the basis of cadre strength but determination of
the cadre strength has to be made taking into consideration that
rules amended w.e.f. 15.01.2004 were prospective in nature
and cannot impair or affect any right, which accrued to the
member of judicial service prior to the amendment of the Rules.
[Para 40][118-B-D]
1.4 Rule 2007 having been brought in place to give effect
to the judgment in *All India Judges' Association case, while
interpreting the Rules 2007 the direction issued by this court
have to be kept in mind and the rules cannot be interpreted in a
manner so as to violate the directions issued by this Court in the
above judgment. [Para 70 (4)][135-C]
1.5 Thus, there is no patent error in the calculation of the
vacancy by the High court in the administrative side and
consequently the recruitment made from three different streams
was well within such determination and cannot be faulted. The
promotion of officers under Rule 7(3)(a) was in accordance with
the rules and there is no question of treating the promotion to be
ad hoc promotion nor they can be pushed to the bottom of
seniority. The new set of rules, the new scheme of recruitment,
new rules of determination of seniority as brought in place by
2007 Rules, its implementation has to be done with care so as
not to defeat any existing right. Mechanical application of the
Rules, which may result to unjust result has to be avoided to
advance the scheme of the new Rules and the object which were
delineated in *All India Judges' Association case. While allocating
posts to be filled by different streams, cadre strength, officers of
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particular stream in position, quota of each stream has to be kept
in mind. The vacancies existing for recruitment in particular year
has not to be mechanically divided at the ratio of 50, 25 and 25
per cent. [Para 41][118-D-G]
*All India Judges' Association and others v. Union of
India and others, (2002) 4 SCC 247 : [2002] 2 SCR 712
Srikant Roy and Others v. State of Jharkhand and
Others (2017) 1 SCC 457 : [2016] 11 SCR 58 - relied
on.
2.1 Rota and quota in service jurisprudence is a well known
concept, which finds reflected in large number of service rules of
different services. Quota between promotees and directs were
throughout present in 1963 Rules, which has been further
amplified in 2007 Rules. [Para 43][119-C-D]
2.2 The object as incapsulated by this Court in *All India
Judges' Association case in carrying recruitment by roster was
with the object of eliminating disputes pertaining to determination
of seniority. The purpose and object of Rule 7 of Rules, 2007
read with Appendix-B is clear that the roster is to be followed for
determination of the seniority. The Rule 7(4) and Appendix-B
has to be read in a manner so as to advance the object of the
Rules. When this court directed for adopting roster system for
determining seniority, Rules, 2007 cannot be interpreted in
a manner which may violate the direction of this Court.
Article 141 of the Constitution provides that law declared by the
Supreme Court shall be binding on all courts and authorities.
[Para 45][121-A-C]
2.3 There is nothing in the 2007 Rules which may indicate
that there is any provision contrary to determination of seniority
by roster. Mere fact that said rules are not explicit or make it
expressly clear that seniority is to be determined on the basis of
roster is not conclusive. [Para 48][123-G]
2.4 The purpose of statutory rules and laying down a
procedure for recruitment was to achieve the certainty. Officers
belonging to different streams have to be confidant that they shall
be recruited under their quota and get seniority as per their quota
and roster. In the event, the seniority is to be fixed with date of
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joining of particular stream, it will lead to uncertainty and making
seniority depending on administrative authorities, which is
neither in the interest of service nor serve the cause of justice.
[Para 53][126-F-G]
2.5 Roster is fully applicable for determination of seniority.
Officers of different streams selected in a particular year even
though they were allowed to join the post on different dates shall
not affect their inter se seniority, which is to be decided on the
basis of roster. [Para 53][126-G-H]
2.6 The High Court even though accepted the principle
that roster is applicable in the seniority but in the operative portion
of the judgment did not issue any direction to re-cast the seniority
as per the roster given in the Appendix-B which is an apparent
error committed by the High Court. [Para 70 (3)][135-B]
2.7 Rule 7(4) read with Appendix-B has to be read in the
light of direction in *All India Judges Association case and
harmonious construction of the rule clearly indicates that roster
which has been expressly made applicable for filling the post of
all the three streams shall be applicable while determining the
seniority. The seniority list dated 24.12.2015 is to be set aside.
[Para 70 (5) and 71][135-D-E]
O.P. Singla and Another v. Union of India and Others
(1984) 4 SCC 450 : [1985] 1 SCR 351; Union of India
and Others v. N.R. Parmar and Others (2012) 13 SCC
340 : [2012] 13 SCR 555 - relied on.
3.1 The promotion order issued by the Government of
Punjab on the recommendations of the High Court promoting
fifteen officers under 50% quota under Rule 7(3)(a) also contained
six officers who were working on ad-hoc basis in Fast Track
Courts. Similarly, appointment order promoting eight judicial
officers under quota for out of turn promotion, included one officer
who was working on ad-hoc basis in Fast Track Court. The
tentative seniority list indicates that two officers who were at
Sl.No.15 and at Sl.No.16, were shown as direct recruits having
been absorbed from Fast Track Courts against the quota of direct
recruits under Rule 7(3)(c). These officers were recruited as Fast
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Track Court Judges directly from the Bar. In the tentative
seniority list, the name of promotee officers who had earlier been
working as Fast Track Court Judges have been shown as per
their seniority in lower cadre. [Para 54][127-B-D]
3.2 The two officers (who were appointed as direct recruits)
were appointed to Punjab Superior Judicial Service by Order
dated 24.06.2008. In the tentative seniority list, they were placed
at serial Nos. 15 and 16 i.e. above the direct recruits. The
tentative seniority list was prepared by the committee on the
basis of continuous length of service. It was probably due to that
reason that serial Nos. 15 and 16, direct recruits were shown
above the out of turn promotees and direct recruits. The above
two officers who were taken on the regular Cadre of Additional
District Judge, after written test and viva-voce test which is almost
the same procedure which has been subsequently laid down by
this Court in **Brij Mohan Lal case. The above two officers having
been included in direct recruitment quota, they have to be clubbed
along with the direct recruits. The objection of direct recruits
that they cannot be included in the quota meant for direct recruits
since they have not undergone the same written test and vivavoce, which has been undertaken by the direct recruits, thus,
cannot be accepted. [Para 61][131-B-E]
3.3 Rule 12(3) provides that "the inter-se-seniority of the
direct appointee shall be on the basis of merit as is determined
by the High Court." The inter-se-seniority as contemplated by
Rule 12(3) obviously means inter-se-seniority reflected in the
same examination. The two officers from the Fast Track Court
having not taken the same examination, Rule 12(3) is not
technically applicable while judging inter-se-seniority of these two
officers and other direct recruits. [Para 63][132-A-B]
3.4 The two officers having been working as Additional
District Judges in the Fast Track Court and they having been
appointed in the regular cadre although in the same recruitment
year, their placement above other direct recruits is justified.
However, these two officers will be grouped along with direct
recruits and shall occupy position number 1 and 2 in the direct
recruits. [Para 63][132-C]
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3.5 The Fast Track Court Judge who was selected by out
of turn promotion, was appointed as Fast Track Court Judge
consequent to promotion of fifteen officers under Rule 7(3)(a).
The appointment and selection committee along with proposing
fifteen promotions under Rule 7(3)(a) has also proposed seven
officers to man the Fast Track Courts in which the officer was
included. He thus occupied the Fast Track Court judge post in
the year 2008 itself and participated in the limited departmental
competitive examination and secured sixth position on merit.
Among the out of turn promotees he has been placed at sixth
place. [Para 64][132-D-F]
3.6 There is no denial that the fast track court Judge who
was out of turn promotee has been regularly promoted under
Rule 7(3)(b) and continues his substantive promotion. When the
roster is applicable, the seniority has to be fixed by the roster
point. As per Rule 12(2) the inter-se-seniority of the out of turn
promoted officers shall be "in the order of merit as is determined
by the High Court". Thus, seniority position of the officer among
the out of turn promotees has to be in accordance with the merit.
His position among the out of turn promotees has thus rightly
been shown at serial No.6 with which no infirmity can be found.
[Para 67][133-G-H; 134-A]
3.7 All the Fast Track Court judges who were taken into
the regular cadre in different streams have been rightly placed in
the seniority list amongst their stream to which no exception can
be taken. [Para 67][134-A]
**Brij Mohan Lal v. Union of India and others (2012)
6 SCC 502 : [2012] 5 SCR 305- relied on.
4. Already period of three years has elapsed when the
tentative seniority list was published. Finalisation of seniority as
early as possible is essential and necessary for administration of
justice. There is no dispute regarding inter-se-seniority of the
promotees under Rule 7(3)(a) and issue pertaining to inter-seseniority of out of turn promotees and direct recruits have already
been finalized. Only exercise which is to be undertaken is to place
officers of three streams in accordance with the roster as indicated
in Appendix-B. The seniority position of the officers of three
steams is determined as per the roster. [Para 71 (a) and (b)]
[135-F-H]
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5. *** In All India Judges Association quota of 25 percent
for out of turn promotees has been reduced as 10 percent w.e.f.
01.01.2011. The present seniority dispute being related to
recruitment held in 2008, the reduction in quota may not be
relevant in the present case. [Para 72][138-C-D]
***All India Judges Association and Ors. v. Union of
India and Ors. (2010) 15 SCC 170 - referred to.
Case Law Reference
[2002] 2 SCR 712
relied on
Para 10
(2010) 15 SCC 170
referred to
Para 11
[2016] 11 SCR 58
relied on
Para 38
[1985] 1 SCR 351
relied on
Para 45
[2012] 13 SCR 555
relied on
Para 50
[2012] 5 SCR 305
relied on
Para 58
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 55185523 of 2017.
From the Judgment and Order dated 03.03.2017 of the High Court
of Punjab and Haryana at Chandigarh in Civil Writ Petition Nos.1056,
1057, 1209, 1983, 2335, 21544 of 2016
WITH
Civil Appeal Nos. 5513/2017, 5525/2017, 5509/2017, 5510/2017,
5515-5517/2017, 5528-5529/2017, 10176/2018, 10185-10187/2018.
Raju Ramachandran, Ajit Sinha, K. V. Viswanathan, Dushyant
Dave, P. S. Patwalia, Nidhesh Gupta, Sr. Advs., Ashok Mathur, Abhishek
Kaushik, Raghav Pandey, Vaibhav Niti, Prateek Gupta, E. C. Agrawala,
Tarjit Singh, Suhaas Ratna Joshi, Ashok K. Mahajan, S. L. Aneja,
Subhasish Bhowmick, T. V. S. Raghavendra Sreyas, Ms. Gayatir Gulati,
Ms. Sneh Dhillon, Ms. Harshika Verma, Mrs. Natasha Dalmia, Puneet
Varshney, Ms. Pallavi Singh, Ms.Vriti Gujral, Jagjit Singh Chhabra,
S. K. Pabbi, Ms. Priyanka Garg, Ajay Kumar Singh, Karan Bharihoke,
Ms. Anusha Nagarajan, Ms. Navkiran Bolay, Karan Dewan, Ms. Aditi
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Gupta, Ms. Uttara Babbar, Ashok Mathur, Shankar Divate, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Delay condoned. Leave granted.
2. These appeals have been filed challenging the judgment dated
03.03.2017 of Division Bench of the High Court of Punjab and Haryana
at Chandigarh allowing the Writ Petition No.1056 of 2016 and other
connected writ petitions.
3. The questions which have arisen for determination in this batch
of appeals relate to inter se seniority dispute between three streams of
Punjab Superior Judicial Service, i.e.,
(i) the officers promoted on the basis of merit-cum-seniority under
50% quota (hereinafter referred to as "promotees");
(ii) the direct recruits under 25% quota (hereinafter referred to as
"direct recruits"); and
(iii) officers promoted on the basis of limited departmental
competitive examination under 25% quota (as it then existed) (hereinafter
referred to as "out of turn promotees").
4. The members of Punjab Superior Judicial Service had filed
writ petition in the High court challenging the seniority list dated
24.12.2007 issued by the High Court determining the inter se seniority of
the members of the Punjab Superior Judicial Service.
5. The judgment of the Division Bench of the High Court has
been questioned by Punjab and Haryana High Court at Chandigarh,
members of Punjab Superior Judicial Service who were direct recruits
and Superior Judicial Officers who are promotees under 50% quota.
Civil Appeals on behalf of Kanwaljit Singh Bajwa and others and Jitender
Kaur are the appeals filed by direct recruits and other appeals are the
appeals filed by the promotee officers under 50% quota.
6. C.A.Nos.5518-5523 of 2017 filed by the High Court are being
treated as leading appeals, reference of pleadings of which appeals shall
be sufficient to decide this batch of appeals.
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Background Facts
7. The Higher Judicial Service of the State of Punjab was governed
by a set of Rules, namely, Punjab Superior Judicial Service Rules, 1963.
Rule 8, as it existed initially, provided that of the total number of cadreposts, two-third shall be manned by promotee officers and one-third by
direct recruits.
8. Rule 12 dealt with seniority which provided that the seniority,
inter se, of the substantive members of the Service, whether direct recruits
or promotee officers, shall be determined with reference to the respective
dates of their confirmation. On 31.12.1976 Rule 12 was amended
providing that seniority, inter se, of the members of the Service, shall be
determined by the length of continuous service on a post in the Service
irrespective of the date of confirmation.
9. On 28.01.1991, Rule 8(2) was amended providing that of the
total number of cadre posts, three-fourth shall be manned by promotee
Officers and one-fourth by direct recruits.
10. This Court in All India Judges' Association and others vs.
Union of India and others, 2002 (4) SCC 247, on 21.03.2002, after
considering Justice Shetty Commission's report had issued various
directions regarding recruitment to the Higher Judicial Service in the
cadre of District Judges. The directions were issued by this Court
directing that recruitment to the Higher Judicial Service i.e. the cadre of
District Judges shall be from three streams i.e.:
"(1)(a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cum-seniority
and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through
limited competitive examination of Civil Judges (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. "
11. This Court further directed that appropriate rules shall be framed
by the High Courts as early as possible in compliance of the aforesaid
directions. The Punjab Superior Judicial Service (First Amendment) Rules,
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2004 were notified on 15.01.2004 in compliance of judgment of this Court
in All India Judges' Association case (supra). It appears that
amendment made in Rules on 15.01.2004 did not fully serve the purpose
nor fully complied with this Court's directions made in All India Judges'
Association(supra), hence, a new set of rules was framed, namely, the
Punjab Superior Judicial Service Rules, 2007 which were published in
the Gazette on 03.09.2007. The cadre strength of Punjab Superior Judicial
Service before 2007 comprised of 88 posts. The High Court on
14.10.2004 had made 10 promotions as per unamended Rules on 10
vacancies which were existing since prior to amendment of Rules on
15.01.2004. On 31.08.2007, total cadre strength was 89, which was
increased to 107 as on 11.10.2007. The process for recruitment of direct
recruits under Rule 7(3)(c) of Rules, 2007 was initiated on 02.02.2008
with the publication of advertisement. The promotions under 50% quota
on the basis of merit-cum-seniority was affected on 18.02.2008. The
competitive test for limited departmental competitive examination was
held on 18.05.2008 for which process was initiated on 23.04.2008 by
issuance of letter via e-mail. Full Court on 25.07.2008 approved the
recommendations both for direct recruitment and out of turn promotion,
by two separate letters i.e. letter No.628 dated 29.07.2008 the
recommendation of direct recruitment and by letter No.629 dated
29.07.2008 recommendation for out of turn promotion were sent to the
Government. The appointment letters in reference to limited competitive
examination were received earlier than those of direct recruits. On
14.08.2008, Governor of Punjab issued Office Order whereby eight
Officers were promoted under out of turn quota, posting with regard to
whom was issued on 22.10.2008. The Governor of Punjab had issued
letter for direct recruits on 28.11.2008 with regard to whom posting order
dated 08.12.2008 was issued. Fifteen Officers were promoted under
50% quota, eight Officers were promoted under out of turn promotion
quota 25%. Twelve direct recruits were appointed vide order dated
08.12.2008. The process of recruitment of all the three streams was
thus completed in the same year and Officers of the three streams joined
their respective posts in the year 2008 itself although on different dates.
The promotees got joining first followed by out of turn promotees and
lastly by direct recruits. This Court in All India Judges Association
and Ors. vs. Union of India and Ors., 2010 (15) SCC 170, reduced
the out of turn promotion quota from 25% to 10% which was to take
effect from 01.01.2011. The High Court initiated the process of fixation
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of inter se seniority of the officers of two streams in the year 2014. A
tentative seniority list was prepared and circulated by the Registrar of
the High Court on 25.09.2014 to the members of Superior Judicial Service.
Various objections to the list were filed including the objections by direct
recruits as well as officers promoted under the out of turn quota. The
Judges' Committee submitted a report after considering the objections
recommending that tentative seniority list determined does not require
any modification or alteration and the same may be finalised. The report
of the Committee was accepted by Full Court on 22.12.2015. A
notification dated 24.12.2015 was issued publishing the inter se seniority
of the members of Punjab Superior Judicial Service, promoted, appointed,
absorbed in the year 2008. From serial Nos.1 to 14 in the list were the
promotee Officers, from serial Nos.15 and 16 were direct recruits, from
serial Nos.17 to 24 were promotee officers through limited departmental
examination and from serial Nos.25 to 35 were direct recruits.
12. Writ Petition No.1056 of 2016, was filed by Kanwaljit Singh
Bajwa and two others praying for following reliefs:
i) To issue an appropriate writ, order or direction especially a writ
in the nature of certiorari for quashing the impugned Seniority
List dated 24.12.2015 (Annexure P-1) issued by respondent No.2;
ii) To issue a writ of Mandamus or any other suitable writ, order
or direction, directing the respondent No.1 and 2 to redraw and
reframe seniority list by showing the petitioners over and above
the respondent Nos.3 to 5;
iii) To say the operation of the impugned seniority list 24.12.2015(P1) and stay the further promotion of the respondents in furtherance
of the impugned seniority list;
iv) To any other writ, order or direction which this Hon'ble Court
deem fit and proper keeping in view the peculiar facts and
circumstances of the present case, in the interest of justice;
v) To dispense with the issuance of advance notices to the
respondents;
vi) Exempt the petitioner from filing the certified & typed copies
for the Annexures;
vii) Award costs of the writ petition in favour of the petitioner and
against the respondents."
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13. Writ Petition No.1209 of 2016 was filed by Jatinder Kaur,
direct recruit, challenging the seniority list dated 24.12.2015. Similarly
Writ Petition No.1057 of 2016 was filed by Jatinder Pal Singh Khurmi
and others challenging the seniority list. Writ Petition No.2335 of 2016
was filed by Virinder Aggarwal & another, who were out of turn
promotees. They also challenged the seniority list dated 24.12.2015. Their
prayers in the writ petition were to the following effect:
 "i) Issue an appropriate writ, order or direction in the nature
of certiorari quashing the Tentative Seniority List dated 25.09.2014
(AnnexureP-1), the Report dated 11.08.2015 (Annexure P-4) and
the decision of the Full Court dated 22.12.2015 (Annexure P-5)
and consequently directing the official respondents to frame a
fresh seniority list of the Officers belonging to the Punjab Superior
Judicial Service having been appointed in the year 2008 in
accordance with law and specially by implementing the roster
and for the grant of all consequential benefits flowing therefrom
viz. continuity of service, antedated promotions, arrears of pay,
interest thereon etc.;
ii) issue any other appropriate writ, order or direction, which this
Hon'ble Court may deem fit and proper in the peculiar facts and
circumstances of the case;
iii) exempt the petitioners from service of the advance notices
upon the respondents;
iv) exempting the petitioners from filing the certified copies of the
annexures;
v) costs of the petition be awarded to the petitioner."
14. Another Writ Petition No.1983 of 2016 was filed by Munish
Singal and two others who were direct recruits challenging seniority list
dated 24.12.2015. In the writ petitions affected parties were impleaded.
The High Court through Registrar filed written statement in Writ Petition
No.1056 of 2016. Promotees also filed their written statement in Writ
Petition No.1056 of 2016. The Division Bench heard the parties. All the
writ petitions were decided by a common judgment. The Division Bench
of the High Court in its judgment had noticed the submission of the
parties, the report of the Committee. In paragraph 102 of the judgment
the High Court has observed that the Committee had framed eight issues.
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The eight issues framed by the Committee as noticed in paragraph 102
are as follows:
"(1) Whether the promotions dated 19.02.2008 made under Rule
7(3)(a) are liable to be termed as irregular or 'ad-hoc', and if so,
to what effect ?
(2) Whether the posts meant for the 'out-of-turn promotion' under
Rule 7(3)(b) which remained unfilled as no competitive
examination took place from the year 2004 to 2008, can be included
in 'promotion quota' under Rule 7(3)(a), and if not, to which quota
such posts shall stand diverted ?
(3) Whether promotions made on 19.2.2008 under Rule 7(3)(a)
were in excess to the 'promotion quota', and if so, what is the
effect on seniority of such excess promotions?
(4) Whether promoted officers irrespective of Rule 7(3)(a) or (b)
are entitled to the 'weightage' of their service rendered in PCS
(Judicial Branch) towards seniority in Superior Judicial Service in
view of second proviso to Rule 23 of 2007 Rules ?
(5) Whether the direct recruits under Rule 7(3)(c) could be assigned
seniority from the date their names were recommended by the
High Court fro appointment ?
(6) Whether officers absorbed from Fast Track Courts are liable
to be treated as 'ex gratia appointees', and if so, what is the effect
in law and what would be their 'deemed date of appointment'?
(7) Whether Roster (Appendix 'B') can be read into and applied
to the Rule of seniority ?
(8) Whether Mr. Arunvir Vashista is entitled to be absorbed as
ADJ w.e.f. 24.6.2008 or he be placed at Sr.No.1 amongst the
out-of-turn promotees in view of para 146(13) of the judgment in
Brij Mohan Lal-II ?"
15. The Division Bench further noticed that in the writ petition
arguments were addressed relating to Issue Nos.1,2,3,5 and 7. The High
Court held that promotees were in excess, hence, promotions made shall
be treated in excess of quota and they shall take seniority on the date
post is available in their quota. The High Court further held that the date
of recommendation of direct recruits cannot be treated the date for the
purpose of seniority. On applicability of roster in determination of seniority,
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the High Court categorically held that roster shall be applicable in
determining the seniority as per Rules, 2007. The vacancies under Rule
7(1)(b) shall shift to Rule 7(1)(a) only with effect from 01.01.2011. The
writ petitions were allowed and operative portion of judgment is contained
in paragraph 208 which is to the following effect:
"208. For the reasons mentioned above, the writ petitions are
allowed. The impugned seniority list dated 24.12.2015 is set aside.
It is held that:
(i) promotion of officers under Rule 7(3)(a) [Regular promotion]
of the 2007 Punjab Rules is held to be beyond quota, hence, ad
hoc. They will not be entitled to get benefit of that service for
the purpose of seniority;
(ii) direct recruits shall not be entitled to be considered as
members of the cadre from the date of their recommendation
by the High Court to the State, for appointment;
(iii) as a consequence, the officers promoted under Rule 7(3)(a)
of the 2007 Punjab Rules shall be placed at the bottom of the
seniority after the direct recruits.
The seniority list be re-cast accordingly."
16. Aggrieved by the judgment of the Division Bench of the High
Court, the High Court has filed Civil Appeal Nos.5518-23 of 2017.
17. Civil Appeals of Kanwaljit Singh Bajwa and others and Civil
Appeal of Jatinder Kaur, two Civil Appeals by direct recruits, other Civil
Appeals have been filed by promotee Officers whose promotions were
treated to be ad hoc and are directed to be placed at the bottom of the
seniority. Out of turn promotees had not challenged the judgment, since,
the judgment of the High court was substantially in their favour.
SUBMISSIONS
18. Shri Raju Ramachandran and Shri Ajit Sinha, learned senior
counsel have appeared for the High Court. Shri Dushyant Dave and
Shri K.V. Viswanathan, learned senior counsel have appeared for
promotees. Shri P.S. Patwalia, learned senior counsel, has appeared for
out of turn promotees. Shri Nidhesh Gupta, learned senior counsel has
appeared for direct recruits. In addition, we have also heard several
counsel in this batch of appeals appearing for different parties.
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19. Shri Raju Ramachandran, learned senior counsel appearing
for the High Court submits that seniority list prepared by the High Court
pursuant to the acceptance of Judges' Committee Report by Full Court
was in accordance with Rules, 2007 and promotees had first joined the
post and when the promotees joined post of District Judge cadre, neither
direct recruits nor out of turn promotees were born in the cadre.
20. Shri Dushyant Dave, learned senior counsel appearing for
regular promotees submits that they have completed five years of service
in the year 2000 but neither any Rules were framed nor any examination
was held. When the quota is to be followed due to the judgment of this
Court, the promotees cannot be pushed down. No examination was held
for effecting promotion under Rule 7(3)(b) hence promotees under Rule
7(3)(a) were entitled to have the quota meant for Rule 7(3)(b), continuous
officiation in service is the Rule to be followed for determination of
seniority, Full Court and Administrative Committee has taken correct
view of the matter. The officers desirous to compete, ought to have
approached the High court praying that examination to be held. The
High Court did not hold any suitability test for promotion of the officers
under Rule 7(3)(a) for which promotees cannot be made to suffer. The
challenge to promotion cannot be allowed to be raised at the time of
determination of seniority. The roster provided in Appendix B to the
Rules, 2007 is only for the purpose of recruitment and has no application
for determination of seniority. Had the competitive examination for out
of turn promotees held in February, 2008, promotees would have also
appeared and would have succeeded in the examination. The appointment
having not made in time, quota rule is broken down. The promotees
having been promoted on regular basis even if they are in excess of
quota, their services have to be considered, the appointment of promotees
is not an ad hoc appointment, hence, entire service rendered by promotees
is to be reckoned for seniority.
21. Shri K.V. Viswanathan submits that assumption that promotees
are in excess of their quota is not correct. Rules, 2004 and roster
introduced by Rules, 2007 has to be prospective. Computation has to be
on 43 vacancies which were existing vacancies and not cadre strength
of 107. In accordance with 43 vacancies the quota for promotees will be
22, out of turn promotees will be 10 and direct recruits will be 11. The
roster has no application for determination for seniority. Assuming that
Appendix B applies, it is for quota and since examination has not been
held in time the quota has broken down.
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22. Shri P.S. Patwalia appearing for out of turn promotees submits
that whole argument made by the promotees is misconceived. The
diversion of quota under Rule 7(3)(b) to 7(3)(a) shall take place only
when test is held and no suitable candidate is available for appointment
under Rule 7(3)(b). The quota applied to the post in service. The High
Court has wrongly applied the quota to the vacancies. 25% quota was
introduced as incentive to improve meritorious officers. On date of
selection, 53 were promotees who were in excess to their quota, 14
were filled by direct recruits and there were no vacancies for the regular
promotees. There being no conscious decision of diversion of quota under
Rule 7(3)(b) to 7(3)(a), no benefit can be claimed by the promotees.
The clubbing of vacancies under Rule 7(3)(a) and 7(3)(b) is not
permissible. The out of turn promotees have never challenged the merit
promotion.
23. Shri Patwalia submits that roster is not applicable to the
seniority. When the quota is worked out in the cadre strength there is no
vacancy under Rule 7(3)(a) but 15 promotions have been affected. Their
promotion is not in accordance with law. Whether they would have taken
test or not is realm of conjecture, if we construe Rule 23 of Rules, 2007
and Punjab Civil Services (Conditions of Service) Rules, 1994
harmoniously the seniority has to be on the strength of length of service.
Referring to Haryana Service Rules, Shri Patwalia contends that in
Haryana Service Rules roster has been made as part of seniority whereas
in Punjab Service Rules it is not so. He submits that the High Court has
made very equitable decision which needs no interference.
24. Shri Nidhesh Gupta appearing for direct recruits submits that
this Court in All India Judges' Association case (supra) has introduced
roster in seniority for the purposes to minimise inter se dispute of seniority
in the Higher Judicial Service. The judgment of this Court in All India
Judges' Association case has to be given effect by the High Court.
Rules, 2007 has to be interpreted in the light of the judgment of this
Court in All India Judges' Association case, which directions resulted
in Amendment Rules, 2004 and Rules, 2007. Out of turn promotees in
their writ petitions have prayed for applying the roster for determination
of seniority. The High Court although in the body of judgment held that
roster is applicable in seniority but in operative portion the said conclusion
is not reflected which had rendered the judgment of the High Court
erroneous. The roster having been accepted as applicable for purposes
of seniority, seniority list has to be drawn as per roster. It is submitted
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that process of recruitment initiated on 2nd February, 2008 whereas
promotions and out of turn promotions were held thereafter. It is
submitted that recommendations sent to the Government on the same
day but appointment letter for direct recruits were received later which
will have no effect on the seniority that is the direct recruits which have
to be made as per the roster. Rule 7(4) read with Appendix B of Rules,
2007 makes it clear that appointment has to be made as per roster which
clearly means that seniority will follow the appointment. In the writ petition
filed before the High Court, out of turn promotees have categorically
taken stand that roster is relevant for the purpose of seniority. The out of
turn promotees cannot be allowed to take contrary stand before this
Hon'ble Court.