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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 10874/2016 (arising out of S.L.P.(Civil) No.9883/2009)

Srikant Roy & Ors.       …..Appellants

Vs.

State of Jharkhand & Ors.      …..Respondents

WITH W.P.(C) No.300/2013, W.P.(C)No.27/2014 & W.P.(C)No.325/2014

J U D G M E N T

A.M.KHANWILKAR, J.

Leave granted.

2. This common judgment will dispose all the four petitions.

3. The leading Civil Appeal arising out of Special Leave Petition

(Civil)  No.9883/2009,  is  directed  against  the  judgment  of  the

Division Bench of the High Court of Jharkhand at Ranchi in W.P.(S)

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No.4159/2008 dated 29th August 2008. By the said Writ Petition,

the writ petitioners (respondents 4 to 11 herein) had challenged the

selection process  for  filling  up  of  34 posts  of  Additional  District

Judges through Limited Competitive Examination scheduled on 31st

August 2008; and also 18 posts of Additional District Judges from

the promotee officers on the basis of merit-cum-seniority scheduled

on  23rd August  2008.  The  writ  petitioners  (respondents  4  to  11

herein) were appointed purely against temporary and ex-cadre posts

on ad-hoc basis, as Presiding Officer, Fast Track Courts in the rank

of Additional District & Sessions Judge in the year 2002. According

to  the  said writ  petitioners,  the  impugned selection process  was

improper and not in conformity with the mandate of the amended

Rules requiring ratio of 50:25:25 - by promotion from amongst the

Sub-Judges on the basis of merit-cum-seniority and passing of a

suitability test; by promotion (by way of selection) strictly on the

basis  of  merit  through  a  Limited  Competitive  Examination  of

Sub-Judges  having  not  less  than  5 years  service;  and by  direct

recruitment from the Bar on the basis of written test and viva-voce

conducted by the High Court, respectively. The said writ petitioners

asserted that if the impugned selection process was allowed to be

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taken forward, it would be in breach of the relevant Recruitment

Rules and also infringe the mandate of adhering to the roster as per

Rule 8 of the amended Rules. The main contention of the said writ

petitioners  was that  the  High Court  was erroneously  linking  the

ratio of posts to fill up the vacancies by giving retrospective effect to

the amended Rules, which has come into force w.e.f. 20th August

2004. The challenge before the High Court in the writ petition, as

has been noted in the opening para 1 of the impugned judgment

was  limited  to  the  quota  assigned  for  the  Limited  Competitive

Examination  from  amongst  the  (Subordinate  Judge/Civil  Judge

(Senior  Division)  scheduled to be held on 31st August 2008. The

High Court in paragraph 4 of the impugned judgment has noted

that the challenge is only to the extent of 42 posts of Additional

District Judges which had to be filled up by following the roster

system  in  the  ratio  of  25:25.  Those  posts  were  required  to  be

bifurcated  equally  between  the  promotees  from  the  rank  of

Subordinate  Judges  by  conducting  Limited  Competitive

Examination and direct recruits from the Bar in the ratio of 25:25.

In  paragraph  10  onwards  of  the  impugned  judgment,  the  High

Court  upheld  the  plea  of  the  said  writ  petitioners  and  issued

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directions to the High Court to fill up the vacancies, as directed.

The relevant portion of the impugned judgment reads thus:

“10.  Having  heard  the  counsel  for  the  parties  at some length in the light of the explanation in regard to the bifurcation of the posts as per roster system to be followed in pursuance to the Jharkhand Superior Judicial Service Rules, which was amended in view of the directions of the Supreme Court, we are of the view  that  50%  of  the  posts  having  already  been filled  up  by  the  promotes  on  the  basis  of  the merit-cum-seniority due to which 41 posts were filled up, the left over 42 posts have to be bifurcated into 25% and 25% meaning thereby 21 posts will have to be assigned to be filled up by promotion from the Subordinate Judges/Civil Judge (Senior Division) on the  basis  of  Limited  Competitive  Examination  and left  over  21  posts  which  constitute  25%  of  the available posts will have to be filled up by the direct recruits as that is the clear mandate of the Supreme Court  in  the  case  referred  to  hereinbefore  in pursuance to which the Jharkhand Superior Judicial Service  Rules,  was  also  amended  in  2001  and became  effective  in  2004.  In  fact,  the  petitioners have informed this Court that the respondents have not only invited the applications for all the 42 posts to  be  filled  up  by  the  Subordinate  Judges  on  the basis of Limited Competitive Examination, but even the posts that might be available in the year 2009 have also been included in the advertisement, which is clearly not in consonance with the direction of the Supreme  Court  and  is  also  contrary  to  the Jharkhand Superior Judicial Service Rules, 2001.

11. Hence, this court is left which no option, than to set  aside  the  examination  process,  which  is scheduled  to  be  held  on  31.08.2008  and  further direct the respondents to bifurcate the left over posts into  the  ratio  of  half  and  half,  i.e.  25%  and  25% equally and thereafter issued a fresh advertisement for filling up 21 posts by the Subordinate Judges on the  basis  of  Limited  Competitive  Examination  and

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the rest 21 posts will have to be filled up by direct recruits  for  which  exercise  will  have  to  be undertaken in future by the respondents.

12. As no other point has been pressed in this writ petition and the only dispute that has been raised is in record to bifurcation of posts contrary to the roster principle,  referred  hereinbefore,  and  the  same having  been  found  to  be  correct,  the  notification issued  on  the  internet  for  filling  up  the  posts  of Additional District Judges is quashed and set aside. Consequently, the process of examination to be held on  31.8.2008  is  also  set  aside.  The  writ  petition, accordingly, is allowed, but without any order as to costs.”

4. The appellants, who were working as Subordinate Judges at

the  relevant  time  and  were  otherwise  eligible  to  appear  in  the

Limited  Competitive  Examination  for  filling  up  the  notified

vacancies  by  way  of  promotion,  have  approached  this  Court  to

question the aforesaid decision.

5. The  cognate  Writ  Petitions  involve  overlapping  issues.  The

petitioners  in  these  Writ  Petitions,  however,  participated  in  the

selection  process  of  2010  commenced  on  the  basis  of  an

advertisement No. 1/2010 for the post of Additional District Judge

from  the  Bar.  These  petitioners  did  not  succeed  in  getting

appointed, as the first 8 candidates in the merit list exhausted the 8

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vacancies notified for the relevant period. The said writ petitioners

were,  however,  placed  at  serial  No.9  onwards  in  the  merit  list.

According to these petitioners, some more posts were available for

direct  recruits  from  the  Bar.  That  contention,  essentially,  is

dependent on the outcome of  Civil  Appeal  arising out  of  Special

Leave Petition (Civil) No.9883/2009 wherein the selection process of

2008 is the subject matter. According to these writ petitioners, the

High Court had failed to notify the correct number of vacancies for

2010. The correct number of vacancies in 2010 to be filled up by

direct recruitment ought to be 13. Indeed, the writ petitioners have

made their own assumption to arrive at this number of vacancies,

as is spelt out from the averments in the Writ Petition.

6. The  Registrar  General  of  the  High  Court  has  filed  reply

affidavits. The stand of the High Court (Administration Side) was

that  no  vacancy  for  direct  recruit  from  the  Bar  existed  as  on

20.04.2008. It is stated that in the year 2008, the actual vacancy as

on 30th April,  2008 and anticipated vacancy till  31st March 2009

were notified on the official  Website of  the High Court.  The said

Notification reads thus:

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“Actual  and anticipated Vacancy in the cadre of  Jharkhand Superior Judicial Service

Actual Vacancy as on 30.04.2008 Anticipated Vacancy  till 31.03.2009

By  Promotion from  Sub-Judges on  basis  of merit-cum-seniori ty

Promotion (by way of  Selection) through  limited competitive examination

By  promotion from  Sub-Judges on  basis  of merit-cum-seniori ty

            18              34              11

Note:  In  the  event  of  issuance  of  notification  by  the  State Government regarding induction of 10 Adhoc A.D.Js.  of the Fast Track Courts in the Jharkhand Superior Judicial Service on regular basis, in view of the recommendation of the Court made vide letter  Nos.6949/Apptt.  Dated 3rd November  2007 and 2819/Apptt. Dated 11.04.2008, the actual vacancies as on 30.04.2009 in the Promotee Quota shall be reduced to 08.”

After initiation of the impugned selection process for 2008, a Writ

Petition  No.4159/2008  was  filed  in  the  High  Court  in  which

directions were issued to the High Court to fill up 21 vacancies out

of 42 vacancies by promotion of Subordinate Judges on the basis of

Limited Competitive Examination and the rest of 21 vacancies by

direct  recruitment.  The  matter  was,  therefore,  referred  to  the

selection  committee.  In  the  meantime,  however,  the  Judicial

Officers challenged the decision of the High Court by way of present

S.L.P. (Civil) No. 9883/2009 in which interim stay of operation of

the directions issued by the High Court was granted on 9th April,

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2009. The said interim order was later modified on 24th September

2010, in the following terms:

“List alongwith the batch of T.C.22 of 2001.

Since  the  matter  has  been  pending  at  the  stage  of advertisement of 2008, we modify the order passed by the  previous  Bench  dated  9.4.2009  by  directing  the process,  pursuant  to  the  advertisement  of  2008,  to continue pending the hearing and final disposal of this Special  Leave Petition.  However,  on completion of  the exercise, vacancies will not be filled till further orders.”

Pursuant to the modification of  the interim order,  the High

Court completed the selection process of filling up of the notified

vacancies of 2008 by way of promotion. On a further application

filed, this Court on 5th August 2011 permitted the High Court to

make appointments concerning the said selection process of 2008.

The said order reads thus:

“In  modification  of  our  order  dated  24th September  2010,  the  High  Court  is  free  to  make appointments subject to the result  of the special leave petition.

The  Interlocutory  Application  is,  accordingly, allowed.”   

Pursuant to the liberty given by this Court,  the High Court

submitted  recommendations  to  the  State  Government  for

promotion  of  31  Officers  of  Sub-Judge  Cadre  as  per  the

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advertisement issued in 2008 to fill up the vacancies in terms of

Rule  4(b)  and  4(c).  The  High  Court  submitted  another

recommendation to the State Government for promotion of 17 more

Officers.  

7. It is then asserted by the High Court that when the selection

process  of  2008  was  commenced  and  completed,  there  was  no

vacancy for direct recruit quota. The affidavit also refers to the fact

that 8 vacancies of direct quota were notified in the year 2010 vide

High Court memorandum dated 4th November 2010 for the relevant

period, which reads thus:

“Actual  vacancies  in  the  Jharkhand  Superior  Judicial Service accrued during the period from 18.07.2008 till date  

By  Promotion from  Sub-Judges on  basis  of merit-cum-seniori ty

Promotion  (by way  of  Selection) through  limited competitive Examination  

By  direct recruitment  from Bar   

Total Vacancies  

28 08 or 09 07 or 08 44

Memo  7671/Apptt.  Dated  Ranchi  the  4th November, 2010

Copy forwarded to Scientist (D), N.I.C., Jharkhand High Court Ranchi.

He is requested to put the   aforesaid vacancies in the  official  website  of  the  Jharkhand  High  Court, Ranchi.”

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The  High  Court  with  a  view  to  fill  up  those  vacancies,

commenced the process vide advertisement No.01/2010. Pursuant

to the said advertisement, the writ petitioners in the connected writ

petitions  appeared  in  the  preliminary  examination  held  on  29th

September 2011 and the main examination held on 27th November

2011  along  with  other  candidates.  Only  32  candidates  could

qualify the main examination, who were called for viva-voce held on

3rd February 2012.  Out of  those candidates,  only  15 candidates

including  the  writ  petitioners  in  the  connected  writ  petitions

successfully  qualified  all  the  three  rounds.  However,  as  per  the

merit wise rank of successful candidates, the names of the said

writ  petitioners  were  placed  at  lower  position.  Thus,  the  first  8

meritorious candidates were recommended for appointment against

the vacant posts to be filled by the process of direct recruitment. It

is  also  mentioned  in  the  affidavit  that  the  appointment  of  the

candidates  made  against  the  selection  process  for  2008,  the

candidates were made aware that their appointment was subject to

the final decision of this Court in SLP (Civil) No. 9883/2009.  

8. It is asserted by the High Court that the writ petitioners in

connected  writ  petitions,  who  participated  in  the  subsequent

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selection  process  cannot  get  any  advantage  qua  the  selection

process  of  2008.  For,  they  participated  in  the  selection  process

commenced on the basis of advertisement No.1 of 2010. Similarly,

they cannot claim any relief in respect of fresh vacancy which was

notified in the year 2012, vide Notification dated 22nd March, 2012.

That notification reads thus:

“  JHARKHAND HIGH COURT, RANCHI NOTIFICATION

No. 102/A. The Vacancies of the Jharkhand Superior Judicial Service including the future vacancies till 31.12.2012 are hereby notified in the following manner:-

By  promotion  from Civil  Judge  (Sr. Division)  on  the basis  of merit-cum-seniority (65%)-  under  Rule 4(b) of Rules, 2001

Promotion  (by  way  of selection)  through limited  competitive Examination  (10%)- under Rule 4(c) of Rules, 2001

By  direct  recruitment from Bar (25%)- under Rule  4(a)  of  Rules, 2001

57+7=64 Nil 5 (+8*) It  is  made  clear  that  appointment  over  the  aforesaid  69 notified vacancies will also be subject to final decision of the Hon’ble Supreme Court in the Special Leave to Appeal (Civil) No. 9883/2009.

Also, all the earlier advertised vacancies are hereby recalled and restructured in the above manner.

*Note:-  The  recommendation  for  filling  up  of  08 vacancies of Direct Recruit Quota has already been made to the State Government for issuance of necessary Notification vide Letter No. 1959/Apptt. Dated 10.02.2012 and thus the vacancy under this Quota till 31.12.2012 remains 05(five).

Dated: 22nd March, 2012

By Order,    Registrar General”

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The vacancy position as on 31st December 2012 was revised

and  duly  notified  vide  Notification  dated  19th September  2012,

which reads thus:

         “JHARKHAND HIGH COURT, RANCHI

NOTIFICATION

No.275/A The Vacancies position of the Jharkhand Superior Judicial Service till 31.12.2012 as notified vide Notification No.102/A dated 22nd March 2012 is revised and notified in the following manner:-

By promotion from Civil Judge  (Sr.Division)  on the  basis  of merit-cum-seniority (65%) – under Rule 4 (b) of rules, 2001

Promotion  (by  way  of selection)  through limited  competitive examination (10%)-under Rule 4(c) of rules, 2001

By  direct  recruitment from  Bar  (25%)-  under Rule 4(a) of rules 2001

             68*              Nil               08

It  is  made  clear  that  appointment  over  the  aforesaid  notified vacancies will  subject  to final  decision of  the Hon’ble Supreme Court in the Special Leave to Appeal (Civil) No.9883/2009.

Note: In the event of the issuance of Notification by the State Govt. regarding  Promotion  of  28  Officers  of  the  rank  of  Civil  Judge (Sr.Division) in the Jharkhand Superior Judicial Service in view of recommendation of the Court as made vide letter no.9593/Apptt. Dated 17th July 2012, the actual vacancy as on 31.12.2012 under this quota [i.e. under Rule 4(b)] shall be reduced to 40.

By Order Sd/-

Registrar General

Dated: 19th September, 2012”

9. It  is  stated  that  the  vacancy  position  as  on 31st December

2012 was notified on the basis of the sanctioned strength of 174 at

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the relevant time. That sanctioned strength was later on increased

to 191 on creation of 17 permanent posts of Superior Officers @

10% of existing strength. In paragraph 20 of the reply affidavit, the

vacancy position as calculated on the basis of amended Rules (as

amended on 14th December 2011) has been mentioned as follows:  

Sanctioned strength

By  promotion  from Civil Judge(Sr.Div.)on  the basis  of merit-cum-seniority  (65%)-Rule 4(b)

Promotion  (by way  of  selection through  limited competitive examination (10%)-Rule 4(C)

By  direct recruitment  from Bar

(25%)-Rule 4(a)

Sanctioned Strength-191

        124          19          48

Present working strength-124

         68       20(-1*)          36

Present vacancies

    56-1*=55 (*excess adjusted)

        Nil           12

10. It is then stated that pursuant to the decision of this Court in

Civil  Appeal  Nos.6647-6649/2012  (filed  by  officers  posted  as

Additional District Judges, Fast Track Courts), vide letter dated 20th

February 2013 the State Government was requested to create 13

permanent posts to accommodate the 22 appellants in the said Civil

Appeals on condition that in the event of non qualifying of any of

the appellants in the selection process to be conducted in terms of

the direction given by this  Court  in the said decision,  the equal

number of such created posts of District Judge will be abolished.

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After  due  consideration,  the  vacancy  position  of  the  Jharkhand

Superior Judicial Service was notified vide Notification dated 22nd

February 2013 which reads thus:

“HIGH COURT OF JHARKHAND, RANCHI NOTIFICATION

No.45/A. The Vacancies position of the Jharkhand Superior Judicial Service as notified earlier vide Notification No.275/A dated 19th September, 2012 is hereby recalled and further revised till date in the following manner:-

By promotion from Civil Judge (Sr.Division)on the basis  of merit-cum-seniority (65%)-under Rule 4(b) of rules,2001

Promotion  (by  way  of selection)  through limited  competitive examination (10%)-under Rule 4(c) of Rules, 2001

By  direct  recruitment from  Bar  (25%)-under Rule 4(a) of rules, 2001

            55            Nil        22*+03^=25

It  is  made  clear  that  appointment  over  the  aforesaid notified vacancies will be subject to final decision of the Hon’ble Supreme Court in the Special Leave Petition(Civil) No.9883/2009.

Note:-  1*  22  Vacancies  for  the  appellants  of  Civil  Appeal Nos.6647,6648 & 6649 of 2012.

2.^03 Vacancies for Direct Recruitment from Bar.

3. Taking into account the 13 posts likely to be created from the end of the State Government.

By Order Sd/-A.K.Choudhnary Registrar General I/C

Dated: 22nd February, 2013

Memo No.1644/Apptt.Dated Ranchi, the 22nd February, 2013

 Copy  forwarded  to  the  I/c  NIC  Cell,  High  Court  of Jharkhand, Ranchi for uploading the above notification in the official website of the Jharkhand High Court, Ranchi immediately.

Sd/-22.02.2013               Registrar General I/c”

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11. It is also pointed out that the Standing Committee of the High Court vide

minutes dated 18th February 2014 assessed the vacancy position as on 20th

February 2014 as under:

Sl.No. Sanctioned Strength

Working Strength as on 20.02.2014

Vacancy  as on 20.02.2014

  1 By  promotion  from  Civil Judge 9Sr.Division)  on the basis  of merit-cum-seniority (65%)-under  Rule  4(b)  of rules, 2001

    134       60       74* (74-4*)=70

2 Promotion(by  way  of selection)through  limited competitive examination(10%)-under Rule 4(c) of Rules, 2001  

   21      17       4

3 By direct  recruitment from Bar  (25%)-under  Rule  4(a) of Rules,2001

     51        55  Excess 4* ((excess may  be adjusted)

In other affidavits filed on behalf of the High Court by the Registrar

General, the above factual position has been reiterated.

12. We have heard the learned counsel for the parties at length.

The leading appeal concerns the selection process commenced in

2008. The High Court has set aside the said selection process on

the finding that 50% of the posts have already been filled up by the

promotees on the basis of merit-cum-seniority and as a result of

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which the left over 42 vacancies should be filled by promotion from

the subordinate Judge/Civil Judge (Senior Division) on the basis of

Limited Competitive Examination and by the direct recruits in equal

proportion.  There can be no difficulty in accepting the argument

that the amended Rules providing for the ratio to be maintained

between the promotees and direct recruits became effective on 20th

August  2004 and  had  prospective  application.  Thus,  the  factual

position as obtained on 20th August 2004 would become relevant.

13.  Rules  4  and  5  read  with  Rule  8,  as  it  existed  prior  to  the

amendment of 20.08.2004 read thus:

“Rule  -4:  -  Appointment  to  the  service-  Appointment  to  the service, which shall in the first instance ordinarily be to the post of additional district judge, shall be made by the governor, in consultation with High Court:-

(a)  By  direct  recruitment  of  persons  as recommended by the High Court for such appointment under  clause  (2)  of  Article  233  of  the  Constitution  of India; and (b)  By promotion on merit-cum-seniority basis from amongst the officers belonging to the Jharkhand service provided that where the merit of the officers is equal in all  respects,  seniority  shall  prevail  and  be  given weightage.

Rule-5: Of the total posts in the cadre of the service 67% shall be filled in by promotion and 33% by direct recruitment:

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Provided  that  the  State  Government  may,  in consultation  with  the  High  Court,  from  time  to  time deviate  from  the  aforesaid  percentage  in  either direction.

Rule 8:- 8. Seniority:

(a) Seniority  inter  se  of  direct  recruits  shall  be determined  in  accordance  with  the  dates  of  their respective appointments to the service. (b) Seniority  inter  se  of  promoted  officers  shall  be determined on the basis of their seniority as existing in the Jharkhand Judicial service immediately prior to his appointment under these rules. (c)  If  at  any  time  more  than  one  direct  recruit  is appointed in the service, the inter se seniority of such appointees will  be determined in accordance with the order of merit as obtaining in the select list at the time of his appointment.  (d)  Seniority  of  direct  recruits  vis-à-vis  promoted officers shall be determined with reference to the dates on which his appointments actually are made: Provided,  however,  when  a  direct  recruit  and  a promoted officer are appointed on the same date, the promoted officer shall rank senior to the direct recruit.”

14. Resultantly, appointments made prior to 2004 were governed

by  the  Rules  as  applicable  at  the  relevant  time.   As  per  that

dispensation, the direct recruits quota was 33% of the total posts.

That was obviously in excess of 25% now specified in the amended

Rules (as amended on 20.08.2004 pursuant to the decision of this

Court).  Notably,  the State  of  Jharkhand had filed an affidavit  in

C.A.No.1867/2006 before this Court in which it  has been stated

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that no vacancy against 25% quota for direct recruitment existed in

the State of Jharkhand at that time. This affidavit was filed on 26 th

August 2008 after the amended Rules were notified and came into

force w.e.f. 20th August 2004. Thus, notification for filling up of 34

posts  of  Additional  District  Judge  through  Limited  Competitive

Examination from amongst the members of Jharkhand Subordinate

Judges having more than 5 years of experience and 18 posts from

merit-cum-seniority basis amongst the Civil Judge (Senior Division),

was issued in 2008 on the basis that no vacancy against the posts

of direct recruit quota was available.  That stand is reiterated even

now in the affidavit filed by the High Court. The High Court in the

impugned  judgment  has  committed  manifest  error  in  not

considering these relevant facts about the vacant posts for direct

recruits as on 20.08.2004 - before recording a finding against the

High Court and the State Government and to reject their stand that

no vacancy against the quota of direct recruit was available as on

30.04.2008.  

15. Indeed,  the  High  Court  in  the  impugned  judgment  has

adverted  to  the  decision  of  this  Court  in  All  India  Judges’

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Association  &  Ors.  Vs  Union  of  India  &  Ors.1  which  has

enunciated the principle of roster and the ratio to be followed for

the post of Additional District Judge.  Indisputably, pursuant to the

decision of this Court the Rules were amended, which came into

effect  from 20th August 2004. In paragraph 27 to 29 of the said

decision,  this  Court  has  considered  the  question  regarding  the

method of recruitment to the post in the cadre of Higher Judicial

Service  i.e.  District  Judges  and  Additional  District  Judges.  The

same reads thus:

 “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, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with

1 (2002) 4 SCC 247

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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.

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-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.

(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

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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 Punjab  3  . 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 40-point roster works. We direct the High Courts  to  suitably  amend  and  promulgate  seniority  rules  on  the basis  of  the  roster  principle  as  approved  by  this  Court  in  R.K. Sabharwal case3 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.”

(emphasis supplied)

16. Once  it  is  found  that  no  post  against  the  quota  of  direct

recruitment was available as on 30th April, 2008, no fault can be

found with the selection process commenced by the High Court for

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appointment in the cadre of Jharkhand Superior Judicial Service by

promotion  on  the  basis  of  merit  through  Limited  Competitive

Examination.  The  High  Court  in  the  impugned  judgment  has

glossed over  the effect  of  filling up the vacancies in the  ratio  of

25:25,  which inevitably  will  exceed the  quota  of  posts  for  direct

recruits as on 30.04.2008. That would disturb the roster point and

is impermissible in terms of Rule 8 as amended. The notification

dated 20.08.2004 amending Rule 5 and 8 reads thus:  

“Government of Jharkhand Department of Personnel, Administrative Reforms and

Rajbhasha NOTIFICATION

Ranchi Date 20.08.2004 No.  6/Estab  Jud  610/2001  Perso.  4544/after  repealing existing  Rule  5   7   8   (d)  of  Jharkhand  Superior  Judicial Services (recruitment, Appointment and conditions of Services) Rules  2001  of  Departmental  Notification  No.  1246  dated 08.05.2001, Rule 5 and 8(d) are substituted as follows:-

Rule 5: Of the total post in the cadre of service. (i) 50% shall be filled by promotion from amongst the Sub Judges  on  the  basis  of  merit-cum-seniority  and  passing  a suitability test as may from time to time be prescribed by the High Court.

(ii) 25% shall be filled in by promotion (by way of selection) strictly  on  the  basis  of  merit  through  a  limited  competitive examination  of  Sub  Judges  having  not  less  than  5  years service and also having due regard to his service record in the past.

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(iii) 25% shall be filled in by direct recruitment from the Bar on  the  basis  of  test  and  viva-voce  conducted  by  the  High Court.  

8(d)  The  following  roster  shall  be  maintained  after appointment/promotion  to  fix  the  seniority  of  the  direct recruits  vis-à-vis  promote  officer.   The  roster  shall  be  as follows for every unit of 100 posts.

(i) For promote officers from the service- 1,2,5,6,9,10,13,14,17,18,21,22,25,26,29,30,33,34,37,38,41,4 2,45,46,49,50,53,54,57,58,61,62,65,66,69,70,73,74,77,78,81 ,82,85,86,89,90,93,94,97,98. (ii) For  promote  officers  form  the  limited  competitive examination of Sub Judge, 3,7,11,15,19,23,27,31,35,39,43,47,51,55,63,67,71,75,79,83, 87,91,95,99. (iii) For direct recruits- 4,8,12,16,20,24,28,32,36,40,44,48,52,56,60,64,68,72,76,80, 88,92,96,100.

By order of Governor (Shri Nitya Shankar Mukhopaddya)

Deputy Secretary of State

No.  6/Estab Jud 610/2001 Perso.  4544/after  Ranchi  Date 20.08.2004

Copy to- Superintendent, Government press, Doranda Ranchi, with request that be published in next edition of Jharkhand official Gazette.

Deputy Secretary of Govt,”

17. The position as it  stood as on 30th April  2008, is  stated in

paragraph  4  of  the  affidavit  filed  by  the  High  Court  dated  30th

March, 2016, which reads thus:

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“That  it  is  stated  that  as  on  30.04.2008,  the  sanctioned strength of the Jharkhand Superior Judicial Service was 145 and working strength was 93, which is shown herein below:-

 By Promotion from Sub-Judges  on  the basis  of merit-cum-seniority (50%)

Promotion (By way of selection)  through limited  competitive Examination (25%)

By  direct  recruitment from Bar (25%)

Sanctioned Strength - 145 73 36 36

Working strength = 93 55 00 38

Vacancies = 52 18 36-2=34 02 (surplus)

18. Considering the fact that no vacancy existed in the quota of

direct  recruit  as  on  30th August  2008,  the  writ  petitioners

(respondents 4 to 11 in the leading appeal), who could participate in

the  selection  process  for  direct  recruit  alone  and not  by  way of

promotion through Limited Competitive Examination, had no locus

to challenge the selection process of 2008.  

19. The High Court has overlooked the distinction between “post”

and “vacancy”. If the requisite posts were already exhausted by the

direct recruits against the earmarked quota for direct recruitment,

merely because some vacancies occur, it would not be open to the

aspiring candidates against the direct recruit quota to challenge the

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selection process commenced for the in service judicial officers by

promotion  through  Limited  Competitive  Examination.  The  cadre

strength is always measured by the number of posts comprising the

cadre.   The right  to  be  considered  for  appointment  can only  be

claimed in respect of a post in the given cadre. The percentage of

quota has to be worked out in relation to number of posts which

form the cadre and has no relevance to the vacancy that  would

occur. This aspect has been glossed over by the High Court in the

impugned judgment.  Suffice it to observe that as no post for direct

recruits existed as on 30th April, 2008, the challenge to the selection

process  to  fill  up  the  vacancy  by  promotion  through  Limited

Competitive Examination, at the instance of aspiring candidates by

direct recruitment cannot be countenanced. The Writ Petition filed

by  such  aspiring  candidates  (WP(S)  No.  4159/2008),  therefore,

ought to have been dismissed by the High Court.

20. Having said this, it must follow that the selection process of

2008 which has been completed pursuant to the liberty given by

this Court by way of interim order is proper and has become final.

On this finding, the challenge in the companion Writ Petitions to

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the selection process commenced for the year 2010 does not merit

interference.  In that,  the  vacancy position as on the  date  of  the

notification  (i.e.  4th November,  2010),  for  commencing  selection

process in 2010, were only upto 8 vacancies for appointment by

direct recruitment from the Bar. None of the writ petitioners before

this Court claim to be within the first 8 merit list candidates. The

petitioners  were  placed  at  serial  No.9  onwards.  The  first  8

candidates having been appointed, the selection process for 2010

would get exhausted and considered as complete.  Merely because

the names of the writ petitioners appear in the selection list, they do

not  acquire  any  indefeasible  right  in  getting  appointed.  The

vacancies  have  to  be  filled  up  in  conformity  with  the  extant

Regulations.  The  selection  process  in  which  the  writ  petitioners

participated, was commenced on the basis of the stated notification

for 8 notified vacancies and appointments have been made of the

meritorious candidates. That selection process must be treated as

having  come  to  an  end.  The  fact  that  the  notifications  for

subsequent  selection process (commenced after  2010),  issued by

the  High Court  notifying different  or  higher  number of  posts  for

direct recruitment, can be of  no avail  to the selection process of

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2010. That changed position is ascribable to subsequent period on

the basis of availability of posts for direct recruits. Not for selection

process of 2010. Similarly, the fact that one candidate amongst the

appointed  eight  candidates  after  due  selection  subsequently

resigned, no right can accrue to the Writ Petitioner(s) on completion

of the selection process of 2010. Reliance placed on Rule 21 which

requires  preparation  of  select  list  and  to  notify  the  same  or  to

remain valid for one year from the date of  being notified, is also

inapposite. That is not a Rule mandating preparation of a wait list

of the selected candidates. No express provision for retaining the

select list as wait list for one year has been brought to our notice.

On the other hand, the effect of Rule 22 is that once the names of

candidates  from the  notified  select  list  are  recommended  to  the

Government  proportionate  to  the  vacancies  available  for

appointment; and recommended candidates are so appointed or on

expiry of one year from notifying the select list whichever is earlier,

the select list would become ineffective qua the subject selection

process. For, that selection process is concluded.  None of the writ

petitioners can, therefore, succeed in getting the relief claimed by

them.

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21. The decision in the case of Rakhi Ray & Ors. Vs. High Court

of Delhi and Ors.2  will be of no avail to the writ petitioners and

would instead support the view we have already taken. The writ

petitioners  cannot  be  heard  to  claim  relief  on  the  basis  of  the

subsequent  selection  process  commenced  pursuant  to  the

notification  dated  22nd February  2013.  The  High  Court  was  not

expected  to  fill  the  vacancies  over  and  above  the  vacancies

advertised for selection process of 2010. Moreover, since the writ

petitioners have participated in the earlier selection process of 2010

and not in the subsequent selection process conducted on the basis

of  Notification dated 22nd February 2013 for  the year 2012, they

cannot be given any relief.  

22. Considering the above, the Civil Appeal must succeed and is

allowed. The impugned judgment and order of  the High Court of

Jharkhand at  Ranchi  in  WP(S)  No.4159/2008 dated 29th August

2008 is set aside and consequently the WP(S) No.4159/2008 stands

dismissed.  Even  the  three  connected  Writ  Petitions  bearing

Nos.300/2013,27/2014 and 325/2014 deserve to be dismissed and

2 (2010) 2 SCC 637

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are dismissed.   Accompanying,  I.As are disposed of  in the same

terms.  

23. We order accordingly. No order as to costs.

………………………..CJI. (T.S.Thakur)

…………………………..J. (A.M.Khanwilkar)

……………………………J. (Dr.D.Y.Chandrachud)

New Delhi, Dated:  16th November, 2016