H.L. RANDEV AND ORS.versusHIGH COURT OF PUNJAB AND HARYANA AND ORS.

             H.L. RANDEV AND ORS.
                                                                             A
                       v.
  HIGH COURT OF PUNJAB AND HARYANA AND ORS.

                         NOVEMBER I, 1990

      [RANGANATH MISHRA, CJ., P.B. SAWANT AND.                               B
                K. RAMASWAMY, JJ.)

      Punjab Superior Judicial Service Rules, 1963: Rules 2(2), 8 and
12-Fixation of seniority-Promotees and direct recruits-Direct
recruits appointed to vacancies in their quota-Their seniority to com-
mence from date of appointment-Not on completion of probation.
                                                                             c
       The appellants in this case were promotees while respondents 2 to
12 were direct recruits, both belonging to the Punjab Superior Judicial
Service. Pursuant to the directions given by this Court in B.S. Yadav's
C2Se (1981) 1 SCR 1024, the High Court prepared a provisional senio-
rity list and invited objections to the same. Since no objections were       D
received, the seniority list was f"malised.

      The appellants filed an application before this Hon'ble Court for
direction to the High Court to fix the seniority correctly as per the
decision in B.S. Yadav's case. This Court rejected the application,
holding that it was wholly misconceived as it purported to challenge the     E
seniority list on the ground that there was non-compliance of the direc-
tions of this Court. This Court gave liberty to the appellants to move the
High Court, and the appellants filed a Writ Petition before the High
Court challenging the seniority list. The High Court dismissed the same
in limine.
                                                                             F
      Aggrieved, the appellants preferred the present appeal contend-
ing inter alia that the seniority of respondents who were appointed prior
to the 1976 amendment to the Punjab Superior Service Rules, 1963,
could have· been determined only from the date of their confirmation;
that the probation of direct recruits being two years, their seniority
would count from the date they complete probation and not from their         G
dates of appointment; that the benefit of continuous efficiatlon under
the amended Rules was denied to the appellants, although they were
also appointed prior to the amendment of the Rules.

      Dismissing the appeal, this Court,
                                                                             H

                                   527
    528           SUPREME COURT REPORTS                 [ 1990) Supp. 2 S.C.R.

          HELD: 1.1 Under the definition of the "cadre post" as per Rule 2
A
    of the Punjab Superior Judicial Service Rules, '1963 prior to its amend-
    ment in 1976, the temporary posts did not form part of the cadre. They
    became part of the cadre only after the amendment. There was a quota
    of recruitment between the promotees and directed recruits. Admit-
    tedly, the appellanis were not appointed in their quota. Hence till the
B   amendment of December 31, 1976, the appellants were not members of
    the service and they were also not appointed to the posts according to
    Rules. The appellants b"came members or the service only after their
    appointment in the cadre posts after 31st December, 1976. Hence, their
    seniority under the amended Rules could not have been counted from
    any date anterior to such appointments. As against this, the respon-
    dent-direct recruits were appointed in the cadre posts according to their
c   quota. Under the amended Rules, therefore, their seniority was rightly
    counted from the date of their appointment: [531G-H; 532A)
              ~                            ..    .
          1.2 The seniority list prepared by the High Court is also not in
    conflict with the direction ·given by .this Conrt. Both .the appellants and
D   respondent-direct recruits were to be coDrmned. with effect from the
    dates on which vacancies became available to them in their respective
    quotas. Although direct recruits completed their probation period
    later, they were from the inception appointed in the vaca8cies which
    were available to them in their quota. [532E~FJ

E      . B.S. Yadav and Ors. etc. v• .State of Haryana and Ors. etc., [1981)
    1 SCR 1024, referred t~.              ·

          2.' The argument that even if the se~iority of the appellants is to
    be reckoned from 1st January, 1977, i.e., the date Immediately after
    coming into operation of the amended Rules, some of the. appellants
F   would have become senior to the direct recruits who were conf"mned
    much .later, '1s. deceptive, for while it   seeksthe application or the
    ame"ded Rules to the appellants, it denies their application to the direct
    recruits. if according to amended Rules, the continuous officiation in
    service is to be counted only from the date of appointment in the cadre
    post, then the direct rec~uits having been appointed in the cadre post,
G   their seniority will have also to be counted from their date of a)tpoint-
    ment. So counted they Will be senior to the appellants. [532C·E]     '

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5190
    of 1990

H         From the Judgment and Order dated 27.5.1988 of the Punjab &
         H.L. RANDEV '" HIGH COURT OF PUNJAB [SAWANT, J.]          529

  Haryana High Court in C.W.P. No. 7013 of 1987.
                                                                           A
        Madhava Reddy, Jay Singh and P.P. Singh for the Appellants.

       Ashok Sen, S.P. Goyal, G.L. Sanghi, Rathin Das, D. Mehta and
  S.K. Mehta for the Respondents.
                                                                           B
        The Judgment of the Court was delivered by

        SA WANT, J. Leave granted.

        2. This is yet another instance of the dispute with regard to
  seniority between promotees and direct recruits. That this should be
  between the members of judicial service only shows 'how intractable
                                                                           c
  and all pervasive the problem is. What is worse, the dispute is raised
  because there is an alleged incorrect implementation by the High
  Court of the decision of this Court in [ 1981] 1 SCR 1024 (known as
  B.S. Yadav case with reference to Haryana Judicial Service and as
  Pritpal Singh case with reference to Punjab Judicial Service).           D

         The dispute falls in a narrow compass. The appellants are pro- .
   motee members of the Punjab Superior Judicial Service governed by
   the Punjab Superior Judicial Service Rules, 1963 (hereinafter referred
   to as the "Rules"), while respondents 2 to 12 are the direct recruits.
   The decision in Pritpal Singh case (supra) was delivered by this Court E
   on November 5, 1980. Pursuant to the directions .given in the said
   decision, the High Court prepared a provisional list of seniority on
   December 22, 1981 and invited objections to the same. Since no objec-
   tions were received, the list was finalised on February 27, 1982. There-
   after, the appellants filed an application being CMP No. 7085 of 1985
   in this Court for direction to the High Court to fix the seniority cor- F
   rectly as per the said decision alleging that it was not done so. This
   Court by its order of February 3, 1987 rejected it holding that it was
   wholly misconceived as it purported to challenge the seniority list on
   the ground that there was non-compliance of the directions given by
   this Court. In the order, this Court also observed that if that was the
   grievance, the appellants remedy was by way of a petition under Arti- G
   cle 226 of the Constitution to the High Court and not by way of the'"·
   said application for direction. The appellants were also given liberty to
   move the High Court if so advised. The appellants thereafter chal-
.. lenged the seniority list before the Punjab & Haryana High Court by a
   writ under Article 226 of the Constitution. The High Court dismissed
   the writ petition in limine and hence the .present appeal by special H
   leave,
    530         SUPREME COURT REPORTS                [ 1990] Supp. 2 S.C.R.

          3. The grievance of the appellants centres round the interpreta-
A
    tion of the directions of this Court in the Pritpal Singh case (supra).
    Those directions were as follows:

                     "(a) The High Court will revise and refix the respec-
               tive dates of confirmation of the petitioners and respon-
B              dents 3 to 11, without applying the rule of rotation;

                      (i) The petitioners, if they are otherwise fit for con-
                      firmation, shall be confirmed with effect from the
                      dates on which vacancies became available to them in
                      the quota of promotees;
c                     (ii) Respondents 3 to I I shall be confirmed
                      against vacancies falling within the quota of direct
                      recruits, with effect from dates on which they success-
                      fully completed their two years probation. Since, the
                      normal priod of probation cannot be reduced unless
D                     the High Court is satisfied in each individual case that
                      there are "exceptional circumstances" justifying the
                      reduction of that period, and since the High Court
                      had not given such reasons while reducing the pro-
                      bationary period of some of the respondents, respon-
                      dents 3 to 11 will be confirmed as stated above with-
E                     out reducing the period of their probation.

               (b) The High Court will re-draw the inter se seniority-

               (i) of such of the petitioners and respondents as were
               promoted or appointed to the Superior Judicial Service
F              prior to December 31, 1976, on the basis of the respective
               dates of confirmation allotted to them in compliance with
               the aforesaid direction (a); and

               (ii) of such of the petitioners, respondents and others who
               were appointed to a post in the service on or after
G              December 31, 1976 in accordance with the amended rule
                12.

                (c) The High Court will review and reconsictm:..promotions
          to the Selection Grade and other allied orders made by it, having
          regard to these directions and the seniority to be fixed on the
H         basis thereof. The High Court will make necessary adjustments
       H.L. RANDEV v. HIGH COURT OF PUNJAB [SAWANT, J.I            531

     and alterations therein, in the light of the action to be taken in
                                                                          A
     compliance with the aforesaid directions (a) and{b) ...... "

      4. To understand the aforesaid directions, it is necessary to state
that prior to their amendment on December 3 l, 1976, the definition of
"cadre post" given in Rule 2(2) of the Rules included only a per-
manent post in the service, and the seniority inter se of substantive 8
members of the service, direct recruits or promotees, was, as per Rule
12 thereof, determined with reference to the respective dates of their
confirmation. By the amendment of December 31, 1976, tl'te definition
of "cadre post" in Rule 2(2) was changed to mean a permanent or a
temporary post, and the rule 12 of seniority was amended to provide
that the seniority of the members of the service shall be determined on C
the basis of length of continuous service on a post in the service '
irrespective of the date of confirmation. One more rule of the Rules,
viz., Rule 8 is necessary to be referred to in the context of the dispute.
That Rule provided for a quota for appointment between promotees
and direct recruits in the proportion of 2 to 1. This rule was untouched
by the amendment.                                                          D

      It was contended by S/Shri Madhava Reddy and P .P. Rao the
learned counsel for the appellants, that in view of the aforesaid direc-
tions given by this Court, the seniority of the respondent-direct
recruits who were appointed to the service prior to December 31,
1976, i.e., the date of the amendment, could have been determined E
only from the date of their confirmation. The period of probation of
the direct recruits being two years, their seniority would begin to run
only from the date of the expiration of their probation. However, the
High Court had given them seniority from the date of their appoint-
ment, under the amended Rules which were not applicable to them.
Yet, the same benefit of continuous officiation under the amended F
Rules was denied to the appellants, although they were also appointed
prior to the amendment of the Rules.

       5. It is not disputed that the appellants were appointed in the
temporary posts, and under the definitign of !.he "cadre post" as per
the unamended Rules, the temporary posts did not form part of the G
cadre. They became part of the cadre only after the amendment. It is
also not disputed that-under the Rules there was a quota of recruit-
ment between the promotees and direct recruits as pointed out above.
It is admitted that the appellants were not appointed· in their quota.
Hence till the amendment of Decemner 31, 1976, the appellants were
not members-of-the service and they were also not appointed to the H

                                                            I
    532             SUPREME COURT REPORTS                 [1990] Supp. 2 S.C.R.

    posts according to Rules. The appellants became members of the'
A
    service only after their appointment in the cadre posts after 3 lst
    December, 1976. Hence, theicseniority under the amended Rules
    could not have been counted from any date anterior to such appoint-
    ments. As against this, the respondent-direct recruits were appointed
    in the cadre posts according to their quota. Unde: the amended Rules,
B   therefore, their seniority was rightly counted from the date of their
    appointment. It is not, therefore, correct to say that while direct
    recruits were given the benefit of amended Rules, the appellants were
    not given the said benefit.
          6. The other contention advanced on behalf of the appellants
    was that even if the seniodty of the appellants and the direct recruits
c   was counted according to the amended Rules, the seniority of the
    appellants should have been reckoned from !st January, 1977, i.e., the
    date immediately after coming into operation of the amended Rules. If
    ii was so counted, some of the appellants would have become senior to
    the direct recruits who were confirmed much later. This argument is
    deceptive for while it seeks the application of the amended Rules to
D   the appellants, it denies their application to the direct recruits. For, as
    stated earlier, if according to amended Rules, the continuous officia-
    tion in service is to be counted only from the date of appointment in
    the cadre post, then the direct recruits having been appinted in the
    cadre post, their seniority will have also to be counted from their date
    of appointment. So counted they will be senior to the appellants.
E
          ·fhe seniority list prepared by the High Court is also not in conf-
    lict with the direction given by this Court particularly (a) (i) and (ii).
    Both the appellants and respondent-direct recruits were to be con-
    firmed with effect from the dates on which vacancies became available
    to them in their respective quotas. Admittedly, although direct
F   recruits completed their probation period later, they were from the
    inception appointed in the vacancies which were availahle to them in
    their quota. Hence, their seniority will commence from those dates.
    The post of the appellants, on the other hand, having become cadre-
    posts for the first time after 3 Ist December, 1976, and their entitle-
    ment to the quota having become due only sometime thereafter, they
G   would rank junior to them.
         7. In the result, we find no merit in this appeal and accordingly
    dismiss iL
          I              .
              In the circumstances of the case there will he no order as to costs.

    G.N.                                                      , Appeal dismissed.