MOHAN DUTT SHARMAversusCHIEF JUSTICE, PUNJAB AND HARYANA HIGH COURT

A                          MOHAN DUTI SHARMA
                                        v.
                CHIEF JUSTICE, PUNJAB AND HARYANA
                            HIGH COURT

                                  JULY 30, 1997
B
            (SUJATA V. MANOHAR AND G.B. PATIANAIK, JJ.)

        Service Law : The Punjab and Haryana High Coult (Conditions of
  Service) Rules : Rules 8,12 and 24: Promotion-Selection on the basis of
C seniority cum merit except where competitive examination is prescribed-Out
  of tum promotion to a specially created post.

          Rule 30-Seniority-To be detennined separately for each cadre of posts.

          Rule 38-l'ower of Chief Justice to relax any rule to avoid undue
-D hardship-Imposition of conditions-Whether violative of High Court
     Rules-Held, imposition of a condition protecting the seniority of other
     officers in the lower cadre in view of the out of tum promotion cannot be
     considered unjust and unreasonable.

 E        The Appellant.joined the Punjab and Haryana High Court as a Clerk
   in 1966. In 1973 he was promoted as Assistant, and Senior A~sistant in
   1979. In 1978, the High Court set up an Internal Audit Cell. The Appellant
   worked In the Internal Audit Cell. The High Court did not have any
   qualified staff who had passed the Accounts Services Examination. In
 F 1981, the appellant was the first official to qualify the SAS examination.
   The appellant made a representation to the Chief Justice that in view of
   his qualification and experience, he should be appointed as Superinten·
   dent for the purpose of conducting audit of accounts. By an office order
   the appellant was appointed as officiating Superintendent Grade-II w.e.f.
   3.2.1982, as a special case, in a newly created post to meet the special
 G requirements of the High Court with the condition that on his promotion
   he will not be deemed to have become senior to those who are otherwise
   senior to him in the general category. In May 1982 appellant made a
   further representation that in view of the nature of his work and respon·
   sibilities he should be promoted as Superintendent Grade I. The appellant
 H was promoted to the post of Superintendent Grade· I with a similar condi·
                                        162
        M.D.SHARMAv. PUNJABANDHARYANAHIGHCOURT                            163

tion. In 1987 the appellant made a representation seeking waiver of the          A
conditions and that he be given seniority from the date of his appointment
as Superintendent Grade·II and as Grade-I on his promotion, which was
rejected. The appellant filed a writ petition which was also dismissed.
Hence this appeal.

        Disposing of the appeal, this Court
                                                                                 B

      HELD : 1. There is no doubt that it was in very special circumstances
that the appellant was given the two promotions, which he would not have
otherwise got. At the same time, if the Chief Justice thought it fit to impose
a condition protecting the seniority of other officers, in the lower cadre in    C
view of this out of turn promotion, that condition cannot be considered as
unjust and unreasonable. [168-E·G]

      2. At the time when the appellant was promoted as Superintendent
Grade-II, the appellant was 95th in the seniority list of the Assistants.        D
Therefore, the condition that on his promotion, he will not be deemed to
have become senior to those officials who are otherwise senior to him in
"the general seniority" would be referable to all those officials who were
senior to the appellant in the seniority list of Assistants. These Assistants
would, as and when promoted as Superintendents Grade· II, rank above
the appellant although the appellant was promoted as Superintendent              E
Grade·lI prior to them. Obviously, the conditions will operate so long as
the appellant remains in the cadre of Superintendent Grade-II.
                                                          [168-G·H; 169-A·B]
      3. The general seniority referred to in the condition imposed at each
step is the general seniority in the cadre which promotion is made to the        F
post in question. The condition so imposed cannot be understood as
continuing for all times in respect of all future promotions of the appellant
made in the normal course by applying the principle of selection. Such an
interpretation would make the condition onerous and also beyond the
powers conferred by Rule 38 of the Punjab & Haryana High Court (Con·             G
ditions of Service) Rules. [169-H; 170-D-E]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 451 of
1988.

        From the Judgment and Order dated 10.12.87 of the Punjab &               H
    164                   SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A Haryana High Court in C.W.P. No. 5932 of 1987.
          R.K. Dhawan, for N.D. Garg for the Appellant.

          Gaurab Banerjee for S.P. Sharma for the Respondent.

B         The Judgment of the Court was delivered by

          MRS. SUJATA V. MANOHAR, J. The appellant joined the services
    of the High Court of Punjab and Haryana as a Clerk in the year 1966. In
    1973 he was promoted as an Assistant. From 1979 he was a Senior
    Assistant within the cadre of Assistants. As Senior Assistant he was entitled
c   to a higher pay-scale. In or around 1978, on account of cases relating to
    defaulcation of funds in the subordinate courts coming to the notice of the
    High Court, it was decided by the Chief Justice and other Judges of the
    High Court that an agency should be created on the establishment of the
    High Court to undertake audit of the subordinate courts. The office of the
D   Accountant General was not in a position to do this work for the High
    Court. It was, therefore, decided that the work of audit both in the High
    Court as well as in the subordinate courts should be done by the High
    Court departmentally by posting some experienced or properly qualified
    officers in charge of the Work. The High Court did not have any qualified
    staff members who had passed the Accounts Services Examination. It,
E   therefore, set up an Internal Audit Cell in 1978 which then consisted of
    two Superintendents Grade II, two Assistants and a Clerk. The appellant
    worked in the Internal Audit Cell from its inception.

          In May 1981 the appellant passed the Subordinate Accounts Services
F   (SAS) Examination held by the Haryana Government Finance Depart-
    ment. According to the appellant officials who have qualified in the SAS
    examination are usually posted as Section officers in the Central Govern-
    ment and as Senior Auditors in the State Governments. Their next avenue
    of promotion is to the post of Accounts Officer. On qualifying in the SAS
G   examination appellant made a representatio11 to the Chief Justice of the
    Punjab and Haryana High Court in which he pointed out that he was the
    first official of the court who had qualified in the SAS examination.
    Keeping in view his qualification and experience, he should be given an
    opportunity to serve as Superintendent for the purpose of conducting audit
    of the accounts of the High Court as well as the subordinate court. He
H   stated that he was the only official who was qualified to do this work and
  M.D. SHARMA v. PUNJAB AND HARYANA HIGH COURT [SUJATA V. MANOHAR, J.J 165

requested that his qualification and experience should be recognised by A
making him Superintendent. This representation was considered by the
Chief Justice of High Court. Bearing in view the qualification and the
excellent work which was being done by the appellant in the Internal Audit
Cell, it was decided to promote the appellant as officiating Superintendent
Grade-II, against a newly created post although he was junior to several B
other officers in the cadre of Assistants. Accordingly by an office order
dated 9.2.1982 the appellant was promoted as officiating Superintendent
Grade-II (on ad hoc basis) with effect from 3.2.1982. In the "remarks"
column if was stated as follows :

            "Against a newly created post w.e.f. 3.2.1982 (forenoon) by           C
         keeping in abeyance one post of Senior Assistant held by him
         subject to the condition that en his promotion he will not be
         deemed to have become senior to those officials who are otherwise
         senior to him in the general seniority and that he will have no
         preferential claim for promotion as Superintendent Gr. I merely          D
         on account of his present promotion."

      In May 1982 the appellant made a further representation to the Chief
Justice of the High Court which is dated 20th of May 1982. The appellant
requested that he should be promoted to Superintendent Grade-I. He
pointed out that in the course of his duties, he had to inspect the work and      E
accounts of persons holding posts senior to him, which was causing some
embarrassment. He submitted that looking to the nature of the work and
his responsibilities, he should be promoted as Supe'rintendent Grade-I so
that he can effectively discharge his duties of carrying out the internal audit
of the High Court and the subordinate courts.                                     p

                                                ..
       The representation of the appellant was put up before the Chief
Justice of the High Court with an office note which said that his repre-
sentation may be considered favourably and ·a post of Superintendent
Grade-I should be created for the appellant. However, in order to
safeguard the interests of officials senior to him, it was recommended that G
a condition should be imposed similar to the c_ondition which was earlier
imposed when he was promoted as Superintendent Grade-II as a special
case. The Chief Justice of the High Court accepted this recommendation.
By an office order dated 20.12.1982, the appellant was promoted from
officiating Superintendent Gnrde-II to the post of Superintendent Grade-I. H
    166                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A In the "remarks" column it was stated as follows :

              · "Against a newly created post for him. His appointment is
            subject to the condition that on account of his promotion he will
            not be deemed to have become senior to those officials in general
            seniority and he will have no preferential claim merely on account
B           of his present post."

    Therefore, both these promotions were special promotions which were
    given to the appellant in view of his special qualifications and for discharge
    of special duties for which he was suited, as also on account of his excellent
C   track record. It is necessary to note that when the appellant was promoted
    from senior Assistant to Officiating Superintendent Grade-II he was at
    serial No. 95 in the seniority list of Assistants. Similarly, on the date when
    he was promoted as Superintendent Grade-I he was the junior-most in the
    list of Superintendents Grade-II.

D
           In 1987 the appellant made a representation seeking waiver of the
    conditions which were imposed upon him when he was promoted as
    Superintendent Grade-II and thereafter as Superintendent Grade-I. He
    requested that he should be given seniority from the date of his appoint-
    ment as Superintendent Grade-II and as Superintendent Grade-I. On that
E   basis he should also be given Selection Grade as Superintendent Grade-I.
    By an order of "Office Judge" dated 22.4.1987 this representation was
    rejected and this rejection was endorsed by the Chief Justice of the High
    Court. Thereupon the appellant filed a Civil Writ Petition No. 5932 of 1987
    in the High Court praying that the conditions imposed at the time of
F   granting promotions to the appellant, denying him the b::nefit of seniority
    should be deleted and that he should be granted seniority, confirmation
    and Selection Grade from the date his juniors have been confirmed and
    granted Selection Grade in the said posts and for other reliefs. This writ
    petition has been dismissed by the High Court and hence the appellant has
    preferred the present appeal.
G
          Rule 8 of the High Court (Conditions of Service) Rules at the
    material time prescribed, inter alia, that for the post of Superintendent
    Grade-I the method of promotion was by "selection on the basis of
    seniority-cum-merit" from out of Superintendents Grade II and Revisors in
H   the ratio of 5 : 1.
   M.D. SHARMA v. PUNJAB AND HARYANAHIGH COURT [SUJATA V. MANOHAR, J.]   167

      Rule 12 prescribed, inter alia, that promotion to the post of Super- A
intendent Grade-II was by "selection on the basis of seniority-cum-merit"
from out of the Assistants.

      Rule 24 provided as follows :

         "Promotion in the High Court Establishment from one grade to          B
         the next higher one shall, except in cases where competitive ex-
         amination is prescribed, be by selection and no one shall have a
         right to claim promotion merely on the basis of seniority."

Rule 30 which dealt with seniority provided, inter alia, the seniority shall   C
be determined separately for each category of posts in the establishment
and that up to the date of confirmation, seniority shall be determined by
the length of continuous service in the particular category of posts. Within
the same category, se.niority shall be determined from the date of confir-
mation in the particular category, Rule 38 provided as follows :
                                                                               D
        "Where the Chief Justice is satisfied that the operation of any rule
        ca uses undue hardship in any particular case, he may by order
        dispense with or relax the requirements of that rule to such extent
        and subject to such conditions as he may consider necessary for
        dealing with the case in a just and equitable manner provided that E
        the case is not dealt with in a manner less favourable to the officer
        or official concerned than in accordance with the rules."

Ordinarily, therefore, promotion to the posts in question is on the basis of
seniority-cum-merit, and a person is not entitled to claim promotion merely    F
on the basis of his seniority. Rule 30 which deals with seniority further
provides that the seniority is based upon the length of continuous service
in respect of employees who are not confirmed; while it is based on the
date of confirmation in the case of employees who are confirmed in that
post.
                                                                               G
       The promotion of the appellant was not in the normal course. This
is quite clear from the representations made and from the fact that a post
was specially created for the appellant first, in the cadre of Superintendent
Grade-II, and then in the cadre of Superintendent Grade-I. This was done
because of the special requirements of the High Court and the fact that H
    168                    SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A the appellant was the only qualified person who was in a position to meet
    these special requirements of the High Court and carry out the special
    responsibilities and duties of internal audit in a proper manner. Looking
    to the seniority of the appellant in the cadre of Assistants it was also
    obvious that the promotion which was given to the appellant would cause
    prejudice to a number of persons who were senior to the appellant in the
B   cadre of Assistants and who would have probably been selected for promo-
    tion on the basis of seniority-cum-merit prior to the appellant. It was in
    these circumstances that the Chief Justice, in exercise of his powers under
    Rule 38, directed that the normal rule as to seniority should not be applied
    in the case of the appellant and that his said two promotions would not
C   make him senior to those officials who were otherwise senior to him in "the
    general seniority". The appellant has pleaded for deletion of this condition
    as contrary to the High Court Rules. Rule 38, however, empowers the Chief
    Justice to impose a special condition when the application of a rule may
    cause undue hardship in a particular case. The condition was imposed in
D   the case of the appellant because the Chief Justice felt that in order to deal
    in a just and equitable manner with the promotion in question and with
     those who were senior to the appellant in the lower cadre, it was necessary
     to impose such a condition protecting the seniority of those in the lower
     cadre. The promotion was subject to this condition and, therefore, the
     promotion and the condition attached cannot be de-linked. There is no
E   doubt that it was in very special circumstances that the appellant was given
     these two promotions which he would not have otherwise got. Undoubted-
     ly, the appellant had discharged his duties in a very able manner and had
     exerted himself to earn the qualification of passing the SAS examination
     which enabled him to discharge the special duties which were entrusted to
     him by the High Court. The promotion that was given to him was in
F
     recognition of his ability and his qualification. At the same time, if the Chief
     Justice thought it fit to impose a condition protecting the seniority of other
     qfficers in the lower cadre in view of this out of turn promotion, that
     condition cannot be considered as unjust i\_nd unreasonable. It cannot
     therefore, be struck down in the manner claimed by the appellant.
G
           What are the implications of the condition which was so imposed
     twice in succession? At the time when the appellant was promoted as
     Superintendent Grade-II the appellant was 95th in the seniority list of the
     Assistants. Therefore, the condition that on his promotion, he will not be
H    deemed to have become senior to those officials who are otherwise senior
    M.D. SHARMA v. PUNJAB AND HARYANAHIGH COURT [SUJATA V. MANOHAR,J.]      169

 to him in "the general seniority" would be referable to all those officials A
 who were senior to the appellant in the seniority list of Assistants. These
 Assistants would, as and when promoted as Superintendents Grade-II,
 rank above the appellant although the appellant was promoted as Super-
 intendent Grade-II prior to them. Obviously, the conditions will operate so
 long as the appellant remains in the cadre of Superintendent Grade-II. B
 Otherwise the question of inter-se seniority between the appellant and
 others in the said cadre would not arise and as per Rule 30, there is
 separate seniority for each cadre.

         Thereafter, in December 1982 the appellant was promoted as Super-
  intendent Grade-I. This promotion was also subject to the condition that         C
  he will not be deemed to have hecome senior to those officials senior to
  him in "the general seniority". In this instance, the appellant was· being
  promoted from Superintendent Grade-II to Superintendent Grade-I. The
  condition, therefore, has a reference to the seniority of the appellant in the
   cadre of Superintendent Grade-II from which he was promoted as Super-           D
  intendent Grade-I. The appellant was the junior-most in the cadre of
  Superintendents Grade-II. Therefore, all those persons who were senior to
  the appellant in the cadre of Superintendents Grade-II - there being a
  separate seniority list for each cadr.e - would, on promotion as Superinten-
  dents Grade-I, rank in seniority above the appellant although he was
  promoted earlier to them as Superintendent Grade-I. For the promotional          E
  post of Superintendent Grade-I, for the purpose of protecting the seniority
  of others, one has to look to the position of the officials who are in the
  same cadre along with the appellant in the lower grade of Superintendents
  Grade II form which promotion is made. Therefore, in the case of promo-
  tion to the post of Superintendent Grade-I, one has to took to the seniority     F
  list of Superintendents Grade-II. All those persons who ranked above the
  appellant in the cadre of Superintendents Grade-II at the time when he
  was promoted as Superintendent Grade-I would, on their promotion as
  Superintendents Grade I, retain their seniority above the appellant. The
  respondents are, therefore, not right in contending that even for the            G
  purpose of seniority in the cadre of Superintendent Grade-I, the appellant
  will rank below all at those Assistants who were senior to him at the time
· when he was promoted as Superintendent Grade-II. The general seniority
  which is referred to in the condition imposed at each step is the general
  seniority in the cadre from which promotion is made to the post in
  question. It cannot go beyond the general seniority in the cadre from which      H
    170                   SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A   the promotion is made. Any previous seniority in the lower cadre beyond
    the cadre from which promotion is made may be different or conflicting
    and would be irrelevant for this purpose. Therefore, the only persons who
    are entitled to claim seniority above the appellant in the cadre of Superin-
    tendents Grade-I are those persons who were holding the post of Super-
    intendents Grade-II along with the appellant at the time when the appellant
B   was promoted as Superintendent Grade-I and who were senior to the
    appellant in the cadre of Superintendents Grade-II. It is their seniority
    which is protected by the condition which is imposed in the -order of
    promotion by respondent No. 1.

C         The justification for this special condition and for the exercise of
  power under Rule 38 lies in the special requirements of the High Court at
  the material time and the fact that the appellant was, by virtue of his ability
  and qualification, specially suited to meet these requirements. Such a
  special condition can be imposed only when there are special
D circumstances which warrant a special promotion. The condition so impose
  cannot be understood as continuing for all times in respect of all future
  promotions of the appellant. Such an interpretation would make the
  condition onerous and also beyond the powers conferred by Rule 38. This
  is because Rule 38 has a proviso to the effect that the case cannot be dealt
E with in a manner less favourable to the officer concerned than in
  accordance with the rules. Future promotions which are· made in the
  normal course by applying the principle of selection as set out in the
  relevant rules would not warrant the imposition of any such condition. One
  must bear in mind that when· promotions are by selection on the basis of
  merit as well as seniority, it is possible that a junior who is more meritorious
F than his senior may be promoted in preference to his senior. In such a
  situation the junior who is promoted will rank as senior in the promotional
  post to his erstwhile senior who may be promoted at a later date. Simply
  because that person was senior in the lower cadre, a junior who is more
  meritorious and who secured an earlier promotion cannot be deprived of
G his seniority under the normal rules of seniority. In fact, for higher posts
   carrying heavy responsibilities, merit is a very important consideration. The
   efficiency and proper functioning of any institution depends upon able and
   responsible people being selected for positions of responsibility. The
   promotional process must be conducive to such person reaching positions
H of authority in the institution.
  M.D. SHARMA v. PUNJAB AND HARYANA HIGH COURT (SUJATA V. MANOHAR, J.)   171

       The appeal of the appellant, therefore, in so far as the appellant A
seeks the removal of condition imposed relating to his seniority at the time
when he was promoted as Superintendent Grade-II and Superintendent
Grade-I fails. Seniority of the appellant as Superintendent Grade-II will be
determined in accordance with the condition imposed. Therefore, all those
persons who are promoted as Superintendent Grade-II from the cadre of B
Assistants will rank in seniority above the appellant in the cadre of Super-
intendents Grade-II if they were senior to the appellant in the cadre of
Assistants. This is, of course, provided that at the time of the promotion
of such seniors, the appellant is also in the cadre of Superintendents
Grade-II. Otherwise the question of their being placed above the appellant
in the cadre of Superintendents Grade-II does not arise. Similarly, in the C
cadre of Superintendents Grade I all those persons who are promoted as
Superintendents Grade-I from the cadre of Superintendents Grade-II who
were senior to the appellant in the cadre of Superintendents Grade-II will
rank above the appellant in the cadre of Superintendents Grade-I as and
when such seniors are promoted to the cadre of Superintendents Grade-I. D
Once again this contingency will arise only in the case of promotions so
made while the appellant is in the cadre of Superintendents Grade-I. If for
any reason the appellant is no longer in the cadre of Superintendents
Grade-I at the time when his seniors in the cadre of Superintendents
Grade- II are promoted, the question of their being placed above the
appellant does not arise. If on the basis of determination of appellant's E ·
seniority in this fashion in the cadre of Superintendent Grade-II as well as
Superintendent Grade-I, the appellant becomes entitled to Selection Grade
by virtue of his seniority so determined, he will be granted Selection Grade.
If his position in the seniority list does not warrant the grant of Selection
Grade, the same will not be granted to the appellant. We are informed that F
the grant of selection grade depends entirely on the position in the seniority
list of the cadre concerned. With these direttions, the appeal is disposed
of. There will, however, be no order as to costs.

S.H.                                                  Appeal disposed of.