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

Citation: [2020] 10 S.C.R. 497; 2020 INSC 376

Court: Supreme Court of India

Bench: UDAY UMESH LALIT , VINEET SARAN

Judgment date: 2020-04-29

Case summary

2020 INSC 376. Supreme Court of India judgment dated 2020-04-29. DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS. Read the...

Judgment text

[2020] 10 S. C. R. 497 497 DINESH KUMAR GUPTA AND OTHERS A v. HIGH COURT OF JUDICATURE OF RAJASTHAN OTHERS (Writ Petition (Civil) No. 936 of 2018) B APRIL 29, 2020 [UDAY UMESH LALIT AND VINEET SARAN, JJ. ] Rajasthan Judicial Service Rules, 2010 – rr. 3, 5-8, 15-32, 42, 47, 57; Schedule I, II, VII – Effect of 2010 Rules – Cadre of District Judges in State of Rajasthan – Promotees, Direct Recruits C and candidates selected through Limited Competitive Examination (LCE) – Appointments and seniority – Objection to – Report dtd. 15. 03. 19 by five judge Committee of High Court – Held: Judicial officers promoted on ad-hoc basis as Additional District and Sessions Judges to man Fast Track Courts in the State and substantively appointed to the Cadre of District Judge are entitled D to seniority from the date when substantive appointment is made and not from the date of initial ad-hoc appointment or promotion – Further, selection process initiated under Notification dated 31. 03.

2011 is not in continuation of the earlier selection of 2010 – Report dated 15. 03. 2019 correctly concluded the same – Candidates E selected through LCE and Direct Recruitment vide Order dated 15. 07. 2013 cannot be clubbed with 47 Judicial Officers manning Fast Track Courts who were promoted to the Cadre of District Judge in substantive capacity on 21. 04. 2010 and cannot be placed in accordance with Cyclic Order provided in Schedule VII – The 47 Judicial Officers were rightly placed en-bloc senior to all the F candidates selected pursuant to Notification dtd. 31. 03. 2011 – Inter se placement of candidates selected through LCE be based on merit and not on seniority in the erstwhile cadre – Seniority list issued in terms of Report dtd. 15. 03. 2019 stands modified only to the said extent – Rajasthan Higher Judicial Service Rules, 1969 – rr. 3, 6-9, G 22-24; Schedule I – Rajasthan Civil Courts Ordinance, 1950 – Constitution of India – Arts. 233, 234, 309 – Service Law.

Service Law – Rajasthan Higher Judicial Service – Judicial Officers granted ad-hoc promotions u/1969 Rules to man Fast Track Courts – Service rendered if to be considered for seniority – Held: H 497 498 SUPREME COURT REPORTS [2020] 10 S. C. R. A Service rendered by such Judicial Officers as Fast Track Court Judges on ad-hoc basis cannot be taken into account while reckoning seniority after they were granted promotion on substantive basis – Rajasthan Higher Judicial Service Rules, 1969. Disposing of the writ petitions, the Court B HELD: 1. 1 Following questions arise for consideration:- (A) Whether the judicial officers promoted on ad-hoc basis as Additional District and Sessions Judges to man the Fast Track Courts in the State and who were substantively appointed to the Cadre of the District Judge, are entitled to seniority from the C date of their initial ad-hoc promotion? (B) Whether the selection process initiated in terms of the Notification dated 31. 03.

2011 can be said to be in continuation of the process initiated under Notification dated 15. 04. 2010? (C) Whether the substantive promotion granted to the 47 D Judicial Officers must be taken to be part of the same selection process pursuant to the Notification dated 31. 03. 2011 and whether the 47 Judicial Officers could be placed en-bloc senior to the candidates selected in said selection process initiated pursuant to the Notification dated 31. 03. 2011, without applying the Cyclic E Order in terms of Rajasthan Judicial Service Rules, 2010? (D) Whether the inter se placement of candidates selected to the Cadre of District Judge in the State through Limited Competitive Examination, in the seniority list must be based on their merit in said examination or should it be based on their F initial seniority in the erstwhile cadre? (E) Whether the Report dated 15. 03. 2019 and the consequential Final Seniority List, otherwise calls for any modification or correction?

[Para 38][554-E-H; 555-A-B] 1. 2 The decisions in Debabrata Dash, and V. Venkata Prasad G were in the context where serving Judicial Officers were granted ad-hoc promotions as Fast Track Court Judges, while in C. Yamin the members of the Bar were appointed as Fast Track Court Judges and these decisions thus completely conclude the issue. As has been held in said decisions, the reckonable date has to be H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 499 JUDICATURE OF RAJASTHAN OTHERS the date when substantive appointment is made and not from the A date of the initial ad-hoc appointment or promotion. Question (A) is, therefore, answered in the negative. [Para 39] Debabrata Dash and Another v. Jatindra Prasad Das and Others (2013) 3 SCC 658 : [2013] 2 SCR 331; V. Venkata Prasad and Others v. High Court of A. P. and B Other (2016) 11 SCC 656 : [2016] 3 SCR 834; Kum C. Yamini v. The State of Andhra Pradesh (2019) 10 SCALE 834 : [2019] 10 SCR 595 – relied on. 1. 3 As regards Question No.

(B), it is relevant to note that the Notification dated 15. 04. 2010 had invited application for filling C up 36 vacancies by Direct Recruitments and 22 vacancies by Promotion through LCE. This was preceded by determination of vacancies through Notification dated 31. 03. 2010. After the process initiated in terms of said Notification dated 15. 04. 2010 was cancelled, a fresh determination of the vacancies was D undertaken and the Notification dated 31. 03. 2011 now found vacancies for Direct Recruitments, for Promotion through LCE and for Regular Promotion at 37, 32 and 24 respectively. Thus, the vacancies which became available post the Notification dated 15. 04. 2010 were also taken into account. The Report dated 15. 03. 2019 shows that some of the selected candidates in the E process pursuant to the Notification dated 31. 03. 2011 had not even participated in the earlier process of 2010. In the premises, if the submission that the process initiated under the Notification dated 31.

03. 2011 must be held to be in continuation of the earlier selection of 2010 is accepted, it would amount to conferring undue F advantages upon persons who either had not participated in the process of 2010 or who were not even eligible in 2010. The Report dated 15. 03. 2019, therefore, correctly appreciated the fact situation on record and concluded that it would not be in continuation of the earlier process. [Para 40][562-D-G] G 1. 4 As regards Question No. (C), it must be noted that as on the date when 2010 Rules (Rule 57 thereof repealed 1969 Rules and made provisions for saving certain actions) came into effect, the Additional District and Sessions Judges manning the H 500 SUPREME COURT REPORTS [2020] 10 S. C. R. A Fast Track Courts had rendered service in ad-hoc capacity for almost 07 years. The question whether they be granted promotion on Regular Basis was subject matter of consideration of the High Court.

The Report of the Committee of Judges given in 2008 had advised that they be granted Regular Promotion and the matter was getting deferred at the level of the Full Court. It was B at this stage that 2010 Rules became effective from 18. 01. 2010. Even thereafter, the Notification dated 31. 03. 2010 had published the vacancy situation only in respect of Direct Recruitment and Promotion through LCE. It was obviously so, as the issue regarding grant of Regular Promotion on substantive basis to C those Fast Track Court Judges was simultaneously under consideration and on 21. 04. 2010 a formal Order was passed promoting the 47 Judicial Officers on substantive basis to the Cadre of District Judge. The grant of promotion to the 47 Judicial Officers and selection process pursuant to the Notification dated 15. 04. 2010 were not part of the same process and were completely D independent.

None of the 47 Judicial Officers had the occasion to compete in the LCE that was undertaken in terms of the Notification dated 15. 04. 2010. It is possible to say that the last of the 47 Judicial Officers could as well have been the first in the list of successful candidates through LCE and thus could possibly E have been entitled to better placement. In any case, the process initiated pursuant to the Notification dated 15. 04. 2010 was cancelled for administrative reasons and the appointments in respect of process pursuant to the Notification dated 31. 03. 2011 could be effected only in the year 2013, i. e. more than 03 years after the 47 Judicial Officers were granted substantive F appointment to the Cadre of District Judge. Further, if grant of promotion to the 47 Judicial Officers is taken to be the part of the same process, some of the Direct Recruits may not even be having eligibility in the year 2010 and yet may be placed above some of the 47 Judicial Officers.

In the circumstances, the G assessment made by the High Court in its Report dated 15. 03. 2019 is without any infirmity. The substantive promotion granted to the 47 Judicial Officers cannot be taken to be part of the same selection process where Direct Recruits and candidates through LCE were appointed to the Cadre of District Judge on 15. 07. 2013. If the substantive appointment of the 47 Judicial H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 501 JUDICATURE OF RAJASTHAN OTHERS Officers to the Cadre of District Judge is separate and distinct A from the selection process through which appointment were made after three years on 15. 07. 2017, there would be no question or occasion to apply the Cyclic Order (provided in Schedule VII to 2010 Rules).

It is not the contention of anyone that appointment of the 47 Judicial Officers on the relevant date was either beyond B the quota meant for Regular Promotion or that there was any serious infirmity in the process or that any of the candidates was completely ineligible. Since there was a difference of more than 03 years between these two modes of selection, the Report dated 15. 03. 2019 rightly concluded that the Cyclic Order ought not to get attracted. It is true that the Cyclic Order and the quota for C different streams ensure equitable treatment for three sources. However, the application of the Cyclic Order must depend upon the fact situations. It was precisely for this reason that the expression “as far as possible” has been used in the Rule. Other things being equal, certainly the quotas for different streams and D the Cyclic Order must be adhered to.

However, if such adherence itself is going to cause incongruous situation and inflict incalculable harm, insistence upon applicability of the Cyclic Order in such cases may not be appropriate. The candidates selected through LCE and Direct Recruitment vide Order dated 15. 07. 2013 cannot claim to be clubbed with the 47 Judicial Officers promoted in E substantive capacity on 21. 04. 2010 and cannot claim appropriate placement in accordance with the Cyclic Order. The 47 Judicial Officers were rightly placed en-bloc senior to all the candidates selected through the process initiated pursuant to the Notification dated 31. 03. 2011. Writ Petition (Civil) Nos. 936 of F 2018 and 967 are, therefore, dismissed. [Paras 1, 41, 41. 4][562- H; 563-A-H; 564-A-D; 574-F-G] State of M. P. v. Narmada Bachao Andolan and Another (2011) 7 SCC 639 : [2011] 6 SCR 443 – relied on. 1.

5 While considering Question (D), it is relevant to notice G the emphasis placed by this Court in All India Judges Association while directing that 25 per cent of the posts in the cadre of the District Judge be filled through LCE. It was stated in paragraph 27 that there should be an incentive amongst relatively junior and other officers to improve and to compete with each other so H 502 SUPREME COURT REPORTS [2020] 10 S. C. R. A as to excel and get accelerated promotion. In paragraph 28 the relevant direction again stressed that 25 per cent quota for promotion through LCE be “strictly on the basis of merit. ” Rule 31(2) of 2010 Rules (Rule 31 deals with source of recruitment) also uses the expression “strictly on the basis of merit” while dealing with posts to be filled in through LCE. The merit is to be B assessed in terms of the scheme laid down in the relevant Schedule.

After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, C medical fitness etc. However, placing reliance on Rule 47(4) (the issue of seniority is dealt with by Rule 47), the Committee in its Report dated 15. 03. 2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotion. If the list is to be drawn up according to merit, it is D possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotees through LCE.

In that event, the seniority shall become the governing criteria and the E excellence on part of a comparatively junior candidate may recede in the background. Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to F passing the LCE. The direction issued in All India Judges Association to afford an incentive to meritorious candidates regardless of their seniority would not thus be carried out. The general principle appearing in Rule 47(4) must, therefore, give way to the special dispensation in Rule 31(2) of 2010 Rules. The G High Court in its Report dated 15. 03. 2019 completely failed to appreciate the true character of LCE and reservation of certain quota for that category.

The Court, therefore, accepts the submissions made for the petitioners in Writ Petition (Civil) No. 498 of 2018 and Diary No. 13252 of 2019 and while answering Question (D) it is declared that the inter se placement of the H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 503 JUDICATURE OF RAJASTHAN OTHERS candidates selected through LCE must be based on merit and A not on the basis of the seniority in the erstwhile cadre. Said Writ Petitions are allowed to that extent. [Paras 42][574-H; 575-A-H; 576-A] All India Judges Association v. Union of India and Others (2002) 4 SCC 247 : [2002] 2 SCR 712 – relied B on. 1. 6 It is true that as on the date when 2010 Rules came into effect, there were 83 Fast Track Courts functioning in the State and appropriate mention to that effect was made in Part A of Schedule II to 2010 Rules. It is also correct to say that the ad- C hoc promotions granted to the concerned Judicial Officers were under 1969 Rules.

But such promotions were on ad-hoc basis to man the Fast Track Courts and the law on the point is now well settled that the service rendered by such Judicial Officers as Fast Track Court Judges on ad-hoc basis cannot be taken into D account while reckoning seniority after such Judicial Officers were granted promotion on substantive basis and that their seniority has to be reckoned only from the date of their substantive appointment to the cadre of District Judge. Said 1969 Rules do not in any way confer any right which would be inconsistent with the law so laid down by this Court. The further submission that E four Judicial Officers out of the 47 Judicial Officers were also appointed on the same day along with the petitioners in Writ Petition (Civil) No. 464 of 2019 also has no merit. The grant of promotion on substantive basis to said four Judicial Officers does not by itself entitle said petitioners to any similar treatment.

The F issue of grant of promotion on substantive basis may depend upon various issues including suitability of the concerned candidate and availability of posts. The record also shows that after grant of promotion on substantive basis to the 47 Judicial Officers, there were no vacancies for Regular Promotion which is why the selection process undertaken in the year 2010 did not earmark G any vacancies for Regular Promotions and it was only in the year 2011, when adequate vacancies for said category became available, that the Notification dated 31. 03. 2011 contemplated filling up of certain vacancies by Regulation Promotion. The petitioners in Writ Petition (Civil) No. 464 of 2019 participated in the process H 504 SUPREME COURT REPORTS [2020] 10 S. C. R. A initiated pursuant to said Notification dated 31. 03. 2011. Some of them also appeared in LCE and availed of the opportunity to stake their claim.

Their regular promotions to the Cadre of District Judge must, therefore, be taken only as a result of selection process initiated in terms of the Notification dated 31. 03. 2011 which culminated in the Order dated 15. 07. 2013. In the B circumstances, their substantive appointment to said cadre has to be reckoned from 15. 07. 2013 and not with any anterior effect. Once the Regular Promotion was part of the same process along with other streams, namely, through Direct Recruitment and LCE, the Cyclic Order had to be applied and said petitioners cannot be C given en-bloc placement above the candidates selected through Direct Recruitment and LCE in the same process of selection. Therefore, there is no merit in Writ Petition (Civil) No. 464 of 2019 and said Writ Petition is dismissed. The petitioners in Writ Petition (Civil) No. 899 of 2019 and other connected matters came to be appointed on ad-hoc basis to man the Fast Track Courts D after 2010 Rules came into effect.

Even if their services were continued after abolition of Fast Track Courts, that by itself would not confer any right on them. They came to be substantively promoted to the Cadre of District Judge only vide Order dated 05. 02. 2016. For the reasons stated hereinabove, their entitlement E on substantive basis has to be reckoned only from 05. 02. 2016 and not from any earlier date. Writ Petition (Civil) No. 899 of 2019 and other connected matters are, therefore, dismissed. Thus, while answering Question (E), it is concluded that the Report dated 15. 03. 2019 does not call for any modification, except to the extent dealt with in answer to Question (D). [Para 43][576- F B-H; 577-A-E] 1. 7 The seniority list issued in terms of Report dated 15. 03. 2019 shall stand modified only to the extent that appropriate placement to the candidates selected through LCE be given on the basis of their merit in the examination and not on the basis of G their seniority in the erstwhile cadre.

Except to the said extent, the Report dated 15. 03. 2019 does not call for any modification or clarification. [Para 44][577-G-H; 578-A] All India Judges’ Association v. Union of India and others (1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206; H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 505 JUDICATURE OF RAJASTHAN OTHERS All India Judges’ Association and others v. Union of A India and others (1993) 4 SCC 288 : [1993] 1 Suppl. SCR 749; All India Judges Association and Others v. Union of India and others (2002) 4 SCC 274; Brij Mohan Lal v. Union of India and others (2002) 5 SCC 1 : [2002] 3 SCR 810; Malik Mazhar Sultan and B another v. U. P. Public Service Commission and others (2006) 9 SCC 507 : [2006] 3 SCR 689; Malik Mazhar Sultan and another v. U. P. Public Service Commission and others (2008) 17 SCC 703; All India Judges’ Association v. Union of India and others (2010) 15 SCC 170; Rajasthan Judicial Service Officers’ Association C v.

State of Rajasthan and Another (2009) 14 SCC 656: [2009] 10 SCR 814; High Court of Judicature For Rajasthan v. Veena Verma and another (2009) 14 SCC 734 : [2009] 10 SCR 795; Brij Mohan Lal v. Union of India and Others (2012) 6 SCC 502 : [2012] 5 SCR D 305; Union of India and Others v. N. R. Parmar and Others (2012) 13 SCC 340 : [2012] 13 SCR 555; Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900; Rudra Kumar Sain & Ors. v. Union of India & Ors. (2008) 8 SCC 25; Hon’ble Punjab and Haryana High E Court v. State of Punjab and others (2019) 12 SCC 496 : [2018] 13 SCR 91; K. Meghachandra Singh and Ors. v. Ningam Siro and Others (2019) SCC Online SC 1494 : [2019] 16 SCR 651 – referred to. Case law Reference F [2002] 2 SCR 712 relied on Para 1 [1991] 2 Suppl. SCR 206 referred to Para 2. 1 [1993] 1 Suppl. SCR 749 referred to Para 2. 1 (2002) 4 SCC 274 referred to Para 2. 1 G [2002] 3 SCR 810 referred to Para 2.

3 [2006] 3 SCR 689 referred to Para 2. 4 (2008) 17 SCC 703 referred to Para 2. 5 H 506 SUPREME COURT REPORTS [2020] 10 S. C. R. A (2010) 5 SCC 170 referred to Para 2. 6 [2009] 10 SCR 814 referred to Para 10 [2009] 10 SCR 795 referred to Para 11 [2012] 5 SCR 305 referred to Para 21 B [2013] 2 SCR 331 relied on Para 31 [2016] 3 SCR 834 relied on Para 31 [2019] 10 SCR 595 relied on Para 31 [2012] 13 SCR 555 referred to Para 31 C [1990] 2 SCR 900 referred to Para 39 (2008) 8 SCC 25 referred to Para 39 [2011] 6 SCR 443 relied on Para 41 [2018] 13 SCR 91 referred to Para 41. 1 D [2019] 16 SCR 651 referred to Para 41. 2 CIVIL ORIGINAL JURISDICTION: Writ Petiton (Civil) No. 936 of 2018. Under Article 32 of the Consitution of India E With W. P. (C) No. 967/2018, 1471/2018, 498/2019, 464/2019, 899/2019, 897/2019, 895/2019, 1008/2019 and Diary No. 13252/2019. Vijay Hansaria, Sanjay R. Hegde, V. K. Shukla, P. S. Patwalia, Nidhesh Gupta, Ms. Vibha Datta Makhija, Dr. Manish Singhvi, F R.

Balasubramanian, Sr. Advs. , Avnish Pandey, Ms. Sneha Kalita, Gopal Jha, Abhinav Mukerji, Siddharth Garg, Ms. Bihu Sharma, Purnima Krishna, Samarth Khanna, Rishabh Sancheti, Ms. Padma Priya, Anchit Bhandari, Mohd. Shahrukh Ali, For Mr. K. Paari Vendhan, John Mathew, Ms. Vriti Gujral, Ms. Pallavi Singh, Ms. Jasneet Kaur, Rishi Matoliya, G H. D. Thanvi, Praveen Gaur, Ms. Priyanshi Aggarwal, Ms. Aadya Mishra, D. K. Devesh, Satyendra Kumar, Shailja Nanda Mishra, Harsha Vinoy, Arpit Parkash, Milind Kumar, Annam D. N. Rao, A. Venkatesh, Rahul Sharma, Ms. Sangeetha M. R. , Ms. Ananya Khandelwal, Ms. Avni Sharma, Ms. Prerna Singh, Guntur Pramod Kumar, Ms. Supriya Juneja, Ms. Mridula Ray Bhardwaj, Ms. Sriparna Chatterjee, Ms. Sakshi Kakkar, H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 507 JUDICATURE OF RAJASTHAN OTHERS S. S. Dahiya, R. C. Kaushik, Ms. Sangeeta Gaur, K. Parameshwar, M. V. A Mukunda, Avadh Bihari Kaushik, Devashish Maharishi, Adarsh Upadhyay, Dr. Harsh V. Surana, Rohit K.

Singh, Karthik S. D. , Sachin Sharma, Sunil Samdaria, Sanchit Garga, P. D. Sharma, Advs. for the appearing parties. The Judgment of the Court was delivered by B UDAY UMESH LALIT, J. 1. These Writ Petitions broadly fall in following three categories:- A] Writ Petition (Civil) No. 936 of 2018 filed by four petitioners, prays for appropriate directions that after the promulgation of C Rajasthan Judicial Service Rules, 2010 (“2010 Rules”, for short), all appointments ought to be in conformity with 2010 Rules and allocation of seniority must be in accordance with the Cyclic Order provided in Schedule VII to 2010 Rules. In terms of 2010 Rules, posts in the cadre of District Judges in the Higher Judicial Service D in State of Rajasthan were required to be filled up in accordance with quota of 50% for Promotees, 25% for Direct Recruits and 25% by way of Limited Competitive Examination (“LCE”, for short) in keeping with law laid down by this Court in All India 1 Judges Association vs.

Union of India and Others . This Writ Petition filed by candidates who were successful in LCE prays E that they be allocated seniority in terms of the Cyclic Order in Schedule VII. In this group fall Writ Petition (Civil) No. 498 of * 2019 and Writ Petition Diary No. 13252 of 2019 which pray that the inter se seniority between candidates who were successful in LCE must be determined on the basis of their merit in LCE and not by their erstwhile seniority. F B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37 Direct Recruits challenging the Provisional Seniority List dated 16. 08. 2017 with regard to the cadre of District Judges in the Higher Judicial Service in the State, on the ground that the appointments made after 2010 Rules had come into effect, ought to be in G accordance with the Cyclic Order; and the inter se seniority and placement of Direct Recruits and Promotees, promoted after 2010 1 (2002) 4 SCC 247 H 508 SUPREME COURT REPORTS [2020] 10 S. C. R.

A Rules had come into effect must be in accordance with 2010 Rules. C] Writ Petition (Civil) No. 1471 of 2018 has been filed by Rajasthan Judicial Service Officers Association (“the Association”, for short) seeking benefit of ad-hoc/officiating service put in by B Promotees who were promoted on ad-hoc basis as Fast Track Court Judges and also prays for re-determination of vacancies of Direct Recruits submitting that the vacancies earmarked for Direct Recruits were in excess of their quota. Writ Petition (C) Nos. 464 of 2019, 895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018 are filed by Judicial Officers seeking similar benefit in respect of C ad-hoc/officiating service as Fast Track Court Judges in the State and pray that such candidates be placed above the Direct Recruits in the cadre of District Judges in the State. 2.

Since the issues involved in all these matters pertain to appointments to and allocation of seniority in respect of, the cadre of D District Judges in the State of Rajasthan and regarding effect of 2010 Rules, the petitions were heard together. Before we deal with the factual aspects, it would be necessary to consider certain decisions of this Court touching upon the establishment of Fast Track Courts as well as the concept of promotion through LCE and the respective quotas for candidates coming from three different streams in the Higher Judicial E Service in various States. 2. 1. In All India Judges’ Associationv. Union of India and 2 others , the issues with regard to the working conditions of the members of the subordinate judiciary throughout the country came up for consideration. Number of directions were issued by this Court. However, F review petitions were filed by Union of India seeking certain modifications/clarifications.

These review petitions were disposed of by this Court while issuing further directions in All India Judges’ 3 Association and others v. Union of India and others . In pursuance of said directions, First National Judicial Pay Commission under the G Chairmanship of Mr. Justice K. J. Shetty (former Judge of this Court) was constituted on 21. 03. 1996. The terms of reference were thereafter modified on 16. 12. 1997 and the Commission was also empowered to consider and grant interim relief. By Report dated 31. 01. 1998 some 2 (1992) 1 SCC 119 H 3 (1993) 4 SCC 288 DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 509 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] interim relief was granted by Justice Shetty Commission. After due A deliberations Justice Shetty Commission submitted a Report on 11. 11. 1999 4 and all the States/ Union Territories were directed by this Court to send their responses to Union of India so that all the issues could be deliberated 4 upon and dealt with. 2.

2 After considering all the submissions, this Court in its decision B dated 21. 03. 2002 in All India Judges’ Association and others v. Union 1 of India and others passed some directions. We are presently concerned with the observations made in paragraphs 24 to 29 in which reference th was made to the 85 Report of the Standing Committee of Parliament recommending that there should be increase in the number of Judges. C Said Committee had noted the Judges to Population ratio and in tune th with 120 Report of the Law Commission, recommendations were made to increase the Judges’ strength to 50 Judges per 10 lakh people in the first instance. Recommendations made by Justice Shetty Commission were also considered and recruitment to the Higher Judicial Service in the cadre of District Judges was also subject-matter of directions. D Paragraphs 27 to 29 are quoted for ready reference: “27.

Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i. e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher E 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 F 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 G 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, 4 (2002) 4 SCC 274 H 510 SUPREME COURT REPORTS [2020] 10 S. C. R. A objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i. e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written B 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 C 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 D 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 E 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. F (emphasis supplied) 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i. e. the cadre of District Judges will be: G (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 H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 511 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J.

] (Senior Division) having not less than five years’ qualifying A 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. B (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 C Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service.

The quota for D 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 E 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 F 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 5 Court in R. K.

Sabharwal v. State of Punjab . One of the methods G 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 5 (1995) 2 SCC 745 H 512 SUPREME COURT REPORTS [2020] 10 S. C. R. A and promulgate seniority rules on the basis of the roster principle as approved by this Court in R. K. Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and B 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. ” C 2. 3. Soon thereafter, in its decision rendered on 06. 05. 2002 in 6 Brij Mohan Lal v. Union of India and others this Court had an occasion th to consider the issue relating to Fast Track Courts. The 11 Finance Commission had allocated Rs. 502. 90 crores for the purpose of setting up 1734 courts in various States to deal with long pending cases, D particularly sessions cases. On the basis of said recommendations a note was prepared by the Department of Justice, Government of India to set up Fast Track Courts. Challenges were raised in some High Courts to the constitution of such Fast Track Courts and the matters were dealt by this Court in Transfer Petitions. After considering rival submissions, directions were issued in para 10 and for the present purposes E direction Nos. 1 to 8, 14 and 18 are relevant:- “10.

Keeping in view the laudable objectives with which the Fast Track Courts Scheme has been conceived and introduced, we feel the following directions, for the present, would be sufficient to take care of initial teething problems highlighted by the parties: F Directions by the Court 1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter G of promotion to such posts in Superior/Higher Judicial Services. 2. The second preference in appointments to Fast Track Courts shall be given to retired judges who have good service records with no adverse comments in their ACRs, so far as judicial 6 H (2002) 5 SCC 1 DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 513 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] acumen, reputation regarding honesty, integrity and character are A concerned.

Those who were not given the benefit of two years’ extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Articles 233(2) and 309 of the Constitution. The High Court concerned shall take a decision with regard to B the minimum-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts. 3. No judicial officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial officers who have C sought voluntary retirement after initiation of departmental proceedings/inquiry shall not be considered for appointment. 4. The third preference shall be given to members of the Bar for direct appointment in these courts. They should be preferably in the age group of 35-45 years, so that they could D aspire to continue against the regular posts if the Fast Track Courts cease to function.

The question of their continuance in service shall be reviewed periodically by the High Court based on their performance. They may be absorbed in regular vacancies, if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, E the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services. 5. Overall preference for appointment in Fast Track Courts shall be given to eligible officers who are on the verge of retirement F subject to they being physically fit. 6. The recommendation for selection shall be made by a committee of at least three Judges of the High Court, constituted by the Chief Justice of the High Court concerned in this regard. The final decision in the matter shall be taken by the Full Court of G the High Court. 7.

After ad-hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in advance to initiate process for selection to fill up these H 514 SUPREME COURT REPORTS [2020] 10 S. C. R. A vacancies much before the judicial officers are promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of the subordinate judiciary. The High Court and the State Government concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate courts on priority basis. The State Government concerned shall take B necessary decisions within a month from the receipt of the recommendations made by the High Court. 8. Priority shall be given by the Fast Track Courts for disposal of those sessions cases which are pending for the longest period of time, and/or those involving undertrials.

Similar shall be C the approach for civil cases i. e. old cases shall be given priority. 9. …... 10…... 11….. D 12 ….. 13 ….. 14. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her E appointment on ad-hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade. F 15….. 16…. 17…. 18. The High Court and the State Government shall ensure G that there exists no vacancy so far as the Fast Track Courts are concerned, and necessary steps in that regard shall be taken within three months from today. In other words, steps should be taken to set up all the Fast Track Courts within the stipulated time. ” H DINESH KUMAR GUPTA AND OTHERS v.

HIGH COURT OF 515 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] 2. 4. Thereafter in Malik Mazhar Sultan and another v. U. P. A 7 Public Service Commission and others the issues regarding timely declaration of vacancies in judicial service and timely appointments were considered by this Court as under: “23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, B timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and C there is no delay in filling up of vacancies.

The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be D provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All the State Governments, the Union Territories and/or the High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies E that may occur are timely filled. All the State Governments, the Union Territories and the High Courts are directed to file within three months details of the time schedule so fixed and date from which the time schedule so fixed would be operational. ” 2. 5.

After the disposal of the appeals in Malik Mazhar Sultan 7 F and others v. U. P. Public Service Commission suggestions were made by some of the State Governments and written submissions were also 8 filed by the learned Amicus Curiae. In its order dated 04. 01. 2017 , this Court issued further directions and prescribed timelines. From paragraph 7 onwards directions were issued for filling up vacancies in various cadres including the cadre of District Judges. G 2. 6. By order dated 20. 04. 2010 passed in All India Judges’ 9 Association v. Union of India and others directions issued earlier 7 (2006) 9 SCC 507 8 (2008) 17 SCC 703. 9 (2010) 15 SCC 170 H 516 SUPREME COURT REPORTS [2020] 10 S. C. R. A with regard to 25% quota for Limited Departmental Competitive Examination were modified by this court as under: “6.

Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We B are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which was sought to be achieved by this process could not be achieved, thus it calls for modification. 7. Thus, we direct that henceforth only 10% of the cadre strength C of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion.

In D some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. E Thus we pass the following order. 8. Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates F are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable. 9.

All the High Courts are hereby directed to take steps to see that existing Service Rules be amended positively with effect from G 1-1-2011. If the Rules are not suitably amended, this order shall prevail and further recruitment from 1-1-2011 shall be continued accordingly as directed by us. The time schedule prescribed in 8 the order dated 4-1-2007 (in Malik Mazhar Sultan case ) shall be strictly adhered to for the purpose of selection. All the vacancies H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 517 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] are to be filled up in that particular year and there shall not be any A carry forward of the unfilled posts. ” 3. In the State of Rajasthan, the matters relating to Constitution of Courts and Jurisdiction of Courts were dealt with by the Rajasthan Civil Courts Ordinance, 1950 which consolidated and amended the law relating to Civil Courts in the State.

Clause 6 of said Ordinance dealt with Classes B of Courts; Clause 8 dealt with Power to fix number of District Judges while Clause 10 dealt with the appointment of Additional Judges. In exercise of powers conferred by Article 233 and the Proviso to Article 309 of the Constitution of India, the Governor of Rajasthan made the Rajasthan Higher Judicial Service Rules, 1969 (“1969 Rules”, for short) 10 C in consultation with the High Court in respect of the Rajasthan Higher Judicial Service for making appointments, postings and promotions to the cadre of District Judges, and to provide for other ancillary matters.

The expressions ‘Direct Recruitment’, ‘District Judge’, ‘Member of the Service’ and ‘Service’ were defined in Rule 3 as under:- D “(c) “Direct recruitment” means recruitment in the matter prescribed by clause (ii) of rule 8; (d) “District Judge” includes Additional District Judge, Sessions Judge and Additional Sessions Judge; … … … E (f) “Member of the Service” means a person appointed in a substantive capacity to a post in the service; … … … (h) “Service” means the Rajasthan Higher Judicial Service” F 3. 1. Part-II and Part-III of 1969 Rules dealt with topics ‘Cadre’ and ‘Principles and Procedure of Recruitment and Promotion’. Rules 6 to 9 under said Parts-II and III were as under:- “6. Strength of the Service. - G (1) The strength of the Service shall, until orders varying the same have been passed under sub-rule (2), be as specified in Schedule I. 10 The High Court of Judicature for Rajasthan H 518 SUPREME COURT REPORTS [2020] 10 S. C. R.

A (2) The strength of the service may be varied by the Governor, from time to time, in consultation with the Court. (3) Notwithstanding anything contained in sub-rule (1) and (2), the Governor may, in consultation with the Court, hold any appointment to the service in abeyance for such time as he B deems fit, without thereby entitling any person to compensation. 7. Principles and procedure to be followed. - For the purpose of recruitment to the service, the following principles and procedure of recruitment and promotion laid down by the Court shall be followed. C 8. Sources of Recruitment. - Recruitment to the service shall be made – (i) by promotion from amongst the members of the Rajasthan Judicial Service; or (ii) by direct recruitment from the advocates who have D practiced in the Court or Courts subordinate thereto for a period of not less than seven years. 9. Appointment to the service.

- (1) Subject to the provisions of these rules, appointment of persons to the service shall be made by the Governor on the recommendation of the Court made from E time to time; provided that the number of persons appointed to the service by direct recruitment shall at no time exceed one third of the total strength of the service. (2) Subject to the provisions of sub-rule (1), after every three persons appointed by promotion, the fourth person shall, as far as F possible, be appointed by direct recruitment. If a suitable person is not available for appointment by direct recruitment, the post may be filled by promotion from amongst the members of the Rajasthan Judicial Service. ” 3. 2. Rules 22 and 23 in Part-III dealt with ‘Temporary or G officiating appointment’ and ‘Appointments to posts in the selection grade’ as under:- “22. Temporary or officiating appointment.

- On the occurrence of temporary or permanent vacancies the Court shall recommend the Governor the names of the candidates from H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 519 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] amongst the persons who are eligible for appointment to the service A by promotion under clause (i) of rule 8, for temporary or officiating appointment. 23. Appointments to posts in the selection Grade. - Appointments to the posts in the selection grade of the service shall be made by the Governor in consultation with the Court on B the basis of merit. ” 3. 3. Part IV of 1969 Rules dealt with ‘Seniority’, ‘Probation’ and ‘Confirmation’. Rule 24 dealt with issue of Seniority was as under:- “24. Seniority.

- Subject to the other provisions of these rules, C seniority in the service shall be determined by the date of the order of substantive appointment in a permanent vacancy including appointment on probation under rule 25: Provided that a promoted officer who may have been allowed to officiate continuously against a permanent vacancy in the cadre D from a date, prior to the date of appointment of a direct recruit, shall, if he is subsequently selected and substantively appointed in the service, take his seniority in the cadre over such direct recruit: Provided further that the seniority of candidates appointed to the service shall in the case of the appointment of more persons than one to the service by an order of the same date, follow the order E in which their names have been recommended by the Court.

” Schedule-I to 1969 Rules dealt with ‘Strength of Service’, which was stated to be 89 in the post of District & Sessions Judge and Additional District Sessions Judge, which over a period of time got raised to 150. F 4. However, appointments in excess of the strength indicated in Schedule I to 1969 Rules, were made on various occasions. By Notification dated 31. 03. 2001 issued under the provisions of the Ordinance and under Rule 6(2) of 1969 Rules, 40 Additional District and Sessions Courts were set up in the State for Fast Track disposal of cases pending before the District Judges. By Notification dated 12. 07. 2002, 13 more Additional G District and Sessions Courts were set up under the aforesaid provisions of the Ordinance and 1969 Rules for Fast Track disposal of cases pending before the District Courts. Further, 30 Additional District and Sessions Courts were again set up on 17. 04.

2003 in pursuance of aforesaid powers for Fast Track disposal of cases pending before the District Judges. H 520 SUPREME COURT REPORTS [2020] 10 S. C. R. A Thus 83 Courts were created between 31. 03. 2001 and 17. 04. 2003 which are commonly known as Fast Track Courts and officers from the cadre of Senior Civil Judges were promoted under Rule 22 of 1969 Rules to man these Fast Track Courts. It may be mentioned that though the decision of this Court in Brij 6 B Mohan Lal had indicated three sources from which the candidates could be appointed to man the Fast Track Courts, in the State of Rajasthan candidates were drawn only from one source namely through ad-hoc/ officiating promotions to the persons from the feeder cadre viz. Senior Civil Judges Cadre. There was no appointment of any retired Judge or by way of recruitment from the Bar. C 5. By Order dated 07. 05.

2003 issued in compliance of directions of this Court in All India Judges Association and others versus Union 1 of India and Others and in accordance with the recommendation of First National Judicial Pay Commission, 71 posts were acknowledged to be in “Selection Scale” while 29 posts were found to be in “Super Time D Scale” in the Higher Judicial Service for the year 2002-2003. 6. On 20. 10. 2003, a Notification was issued by the High Court notifying 19 vacansies for Direct Recruitment to the Higher Judicial Service. Out of these 19 vacancies, 11 were shown as current vacancies while 8 were shown as backlog vacancies. A challenge was raised in E this Court by way of Writ Petition (Civil) No. 576 of 2003 by the Association submitting inter alia that there were no vacancies for Direct Recruits and as such the Notification dated 20. 10. 2003 was invalid.

It was also submitted that as on the date, 220 officers were functioning in the cadre of District Judges and Additional District Judges. F 7. On 13. 12. 2004, 22 Judicial Officers from the cadre of Senior Civil Judge were promoted as Additional District and Sessions Judges (Fast Track). 8. The matters concerning regular promotion to be granted to the level of District Judge including whether those who were promoted as G Additional District and Sessions Judge (Fast Track) under Rule 22 of 1969 Rules were being considered by the High Court. A report of a Committee constituted to consider said issues was submitted on 23. 08. 2008. The matter was then placed before the Full Court on 29. 11. 2008 and thereafter the matter stood deferred to 13. 02. 2009, 31. 10. 2009 and to 20. 03. 2010** successively. H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 521 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] 9. By order dated 11. 01.

2008, some Judicial Officers, including A the petitioners in Writ Petition (Civil) No. 464 of 2019, were promoted as Additional District and Sessions Judges on Ad-hoc basis to man the Fast Track Courts. The order stated as under:- “On the recommendation of Rajasthan High Court, H. E. the Governor of State of Rajasthan is pleased to appoint/promote the B following 37 officers in the cadre of R. H. J. S. as Additional District and Sessioins Judges on purely ad-hoc basis to man the temporary Fast Track Courts”. 9. 1 A consequential order was thereafter passed on 11. 03. 2008 directing transfer/posting of said Judicial Officers in the rank of Additional C District and Sessions Judges (Fast Track). 9. 2 In terms of the decision of Full Court in its Meeting dated 29. 11. 2008, the period of probation of 34 out of said 37 Judicial Officers appointed by Order dated 11. 01. 2008 was extended till further orders. 10. On 07. 07.

2009, the challenge raised by the Association in Writ D Petition (Civil) No. 576 of 2003 was decided by this Court vide its decision in Rajasthan Judicial Service Officers’ Association v. State of 11 Rajasthan and Another . It was observed by this Court that the sanctioned strength in terms of 1969 Rules was only 150 and as against 25% posts which could be filled up by Direct Recruitment, 41 Direct Recruits were already working in the Higher Judicial Service. It was, E therefore, concluded that there was no substantive vacancy available for Direct Recruits. The petition was allowed and the Notification dated 20. 10. 2003 was set aside. The relevant observations of this Court were as under:- “8. According to the petitioner, the total cadre strength of RHJS F is 150 and there are already 41 direct recruits working in RHJS.

Since the total cadre strength is 150 and since 25% of the posts were directed by the High Court to be filled in by direct recruitment, there were no vacant posts available for direct recruits since 25% of 150 is 37, while 41 direct recruits were already working in G RHJS. The petitioner also submitted that if 19 vacancies should be treated as 25% of the direct recruitment then there must be at least 57 fresh appointments in RHJS by promotion, but that has not been done. … … … 11 (2009) 14 SCC 656 H 522 SUPREME COURT REPORTS [2020] 10 S. C. R. A 11. In our opinion, as held by us in Veena Verma case, the cadre strength is only 150 and not 240 because the strength of the service is as per Rule 6(2) of the Rajasthan Higher Judicial Service Rules as mentioned in Schedule I to the Rules. Until and unless the Schedule is amended in accordance with Rule 6(2) the strength of the service cannot be varied, as held by us in Veena Verma B 12 case .

As yet, we are told, no order has been passed under Rule 6(2). 12. We have also perused the counter-affidavit filed by the State of Rajasthan and also the rejoinder-affidavit filed in the case. It is stated in Para 3 of the rejoinder-affidavit that the impugned C notification is in violation of the stay order dated 28-9-2000 in Special Leave Petition No. 9346 of 1999, staying the operation of the order dated 30-4-1999 in DB (C) Spl. Application No. 410 of 1998. It is stated in Para 6 of the rejoinder-affidavit that there are as on date 220 officers functioning in the cadre of District Judges and Additional District Judges and as such there are no existing D vacancies. 13. In our opinion, this writ petition has to be allowed. In view of 12 our decision in Veena Verma case it has to be held that under the existing Rule the strength of the service of RHJS is 150 and since there are 41 direct recruits already working, there is no E substantive vacancy.

Hence the impugned notification is illegal and deserves to be quashed. The writ petition is allowed and the impugned notification is quashed. However, we make it clear that it is open to the State Government in consultation with the High Court to amend Schedule I to the Rules in accordance with Rule F 6(2) and thereby vary the strength of the service. 14. The petitioner has filed this writ petition seeking a direction to the respondents to complete the selection process initiated under Notification No. Estt. (RJS)/118/2003 dated 20-10-2003. As we have quashed the said notification in WP (C) No. 576 of 2003, G this writ petition [WP (C) No. 275 of 2007] is dismissed as having become infructuous. ” 11. On the same day, a decision was rendered by this Court in High Court of Judicature For Rajasthan v. Veena Verma and 12 another , which inter alia considered whether Notification dated 12 H (2009) 14 SCC 734 DINESH KUMAR GUPTA AND OTHERS v.

HIGH COURT OF 523 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] 21. 12. 1996 inviting applications for 11 posts in the Higher Judicial Service A in the State of Rajasthan by Direct Recruitment was valid. It was observed that 11 posts were not available for Direct Recruitment. While dealing with the challenge, it was observed, “33. It may be mentioned that posts can be created dehors the cadre of a service, and these are known as ex cadre posts. The B posts created without a specific order under Rule 6(2) are ex cadre posts. Hence in our opinion the temporary or permanent vacancies or posts created beyond the number of posts in Schedule I without a specific order under Rule 6(2) varying Schedule I to the Rules are only ex cadre posts, and can only be filled in by C promotees, and not by direct recruitment. 34. It may be noted that Rule 9(2) uses the words “as far as possible”.

In our opinion, this means that there is no hard-and-fast rule that after every three persons appointed by promotion, the fourth person has to be appointed by direct recruitment. In our D opinion, the Division Bench of the High Court has given a wrong interpretation of Rule 9(2) of the Rules by observing: “it does not give a licence to the respondents to refuse to appoint every fourth person by direct recruitment on the ground that it was not possible for any other reason than the maintenance of the limit of one-third of the total strength imposed by sub-rule E (1) of Rule 9 on direct recruitment”. In our opinion this is a wrong view taken by the Division Bench of the High Court as is evident from the words “as far as possible” in Rule 9(2). These words give a discretion to the authorities, and the Court cannot interfere with this discretion, unless it is palpably F arbitrary. [Emphasis supplied] 35.

In our opinion, the Division Bench of the High Court erred in law in holding that for the purpose of direct recruitment the G temporary or permanent posts created outside the cadre without amending Schedule I were also to be included while calculating the strength of the Service. The Division Bench also erred in holding that whenever posts are created, the strength of the Service is deemed to have been automatically increased although there is no order under Rule 6(2) in this connection amending Schedule I. H 524 SUPREME COURT REPORTS [2020] 10 S. C. R. A In our opinion, there has to be a specific order under Rule 6(2) amending Schedule I otherwise it cannot be said that the strength of the cadre has been increased. Hence, in our opinion, the temporary or permanent posts created outside the cadre cannot be taken into consideration for determining the strength of the cadre. ” B 12. On 18. 01.

2010, in exercise of the powers conferred by Articles 233 and 234 read with proviso to Article 309 of the Constitution of India, the Governor of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court made Rules for regulating recruitment to the posts in, and the conditions and other matters related C to the service of persons appointed to the Rajasthan Judicial Service. The Rules are called Rajasthan Judicial Service Rules, 2010 (“2010 Rules”, for short). 12.

1 The terms, “Cadre”, “Cadre Post”, “Member of the Service” and “Substantive appointment” are defined in clauses (b), (c), (g) and (l) D of Rule 3 as under: “Rule 3: Definitions (b) “Cadre” means the cadre of District Judge, Senior Civil Judge and Civil Judge as provided under Rule 5 of Part-II of these Rules; (c) “Cadre Post” means any post specified in Schedule-I; E (g) “Member of the Service” means a person appointed substantively to a post in the service under the provisions of these Rules; and (l) “Substantive appointment” means an appointment made under the provisions of these rules to a substantive vacancy after due F selection by any of the methods of recruitment prescribed under these Rules and includes an appointment on probation followed by confirmation on completion of the probation period. ” 12.

2 Part-II of 2010 Rules deals with “Cadre” and Rule 5 stipulates that on and from the date of commencement of the Rules, the Rajasthan Judicial Service shall stand re-constituted and re-designated into following G three cadres: (A) District Judges (B) Senior Civil Judge, and (C) Civil Judge. H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 525 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] Rule 6 deals with “Strength of the Service” and is to the following A effect. “(1) The Strength of the Service in each cadre and number of other posts shall be determined by the Government from time to time, in consultation with the Court and the existing posts in each cadre in the service shall be as specified in Schedule-I.

B (2) The strength of other posts manned by the members of the service shall be as specified in Schedule-II unless any order varying the same is issued under sub-rule(1): Provided that the State Government may, in consultation with the Court, create any permanent or temporary post from C time to time as may be considered necessary and may abolish any such post or posts in the like manner without thereby conferring any right on any person for any type of claim. ” 12. 3. Part-III of 2010 Rules deals with subject “General Conditions” and Rules 7, 8 and 15 are as under :- D “7. Determination of vacancies: (1) subject to the provisions of these rules, the Court shall determine and notify the actual number of existing and expected vacancies in each cadre as per the time schedule specified in Schedule-III. (2) Where the vacancies in the cadre are to be filled in by a single E method, the vacancies so determined shall be filled by that method.

(3) Where the vacancies in the cadre are to be filled in by more than one method, the apportionment of vacancies determined under sub-rule (1), to each such method shall be done maintaining the prescribed percentage for the particular method taking into account consideration the overall number of posts already filled in: F Provided that the apportionment for filling up vacancies in the cadre of District Judge, shall be made in a cyclic order of respective quota of each category, i. e. Promotee on the basis of merit-cum-seniority, Promotee on the basis of Limited Competitive Examination and the Direct Recruitee. G 8. Examination:- For filling up of vacancies in the cadre of District Judge and Civil Judge, examination shall be conducted by the Recruiting Authority as per the time Schedule specified in Schedule III. … … … H 526 SUPREME COURT REPORTS [2020] 10 S. C. R. A 15.

Temporary or officiating appointments:- On occurrence of temporary or permanent vacancy, in the cadre of District Judge or the Senior Civil Judge, as the case may be, not taken into consideration at the time of determining the vacancies under Rule 7 and if in the opinion of the Court such vacancy is to be filled in immediately, the Court shall recommend to the Appointing Authority B the names of the persons eligible for appointment maximum for a period of one year and such appointment shall not confer any rights upon the person so appointed. ” 12. 4. Part IV deals with “Methods of Recruitment” under which “Recruitment to the cadre of Civil Judge” and “Recruitment to the cadre C of Senior Civil Judge” are dealt with in Rules 16 to 30 of sub-Parts A and B, while “Recruitment to the cadre of District Judge” is dealt with under sub-Part C. Rule 31 deals with source of recruitment, as under:- “31.

Source of recruitment: (1) Fifty percent posts in the cadre of District Judge shall be filled in by promotion from amongst D Senior Civil Judges on the basis of merit-cum-seniority subject to passing of suitability test as provided under Schedule-IV. (2) Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted E by the Court. (3) Twenty Five percent posts in the cadre of District Judge shall be filled in by direct recruitment from amongst the eligible Advocates on the basis of written examination and interview conducted by the Court. F (4) For the purpose of proper maintenance and determination of seniority of persons appointed through the aforesaid sources, a roster for filling of vacancies based on quota of vacancies reserved here-in-above, as given in Schedule-VII shall be maintained. This roster shall operate prospectively. ” G 12. 5.

Thereafter the relevant subjects are dealt with under three sub-heads named as (I) Promotion, (II) Direct Recruitment and (III) Appointment. Rule 32 dealing with the “Recruitment by Promotion” is as under: “32. Recruitment by promotion:- (1) Fifty percent posts in the H Cadre of District Judge shall be filled in by promotion from amongst DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 527 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] Senior Civil Judges recommended by the Court, on the basis of A merit-cum-seniority, subject to passing of suitability test as provided in Schedule-VI. Explanation: “Qualifying the eligibility test shall not affect the inter-se-seniority of the officers in the Cadre of Senior Civil Judge. (2) The recruitment in the cadre of District Judges under sub-rule B (2) of rule 31 shall be made by a Limited Competitive Examination conducted by the Court in accordance with the scheme of the examination prescribed under Schedule-VIII.

(3) A Senior Civil Judge who has completed actual five years service as on the first day of January preceding the last date fixed C for the receipt of the applications shall be eligible for appearing in the Limited Competitive Examination for promotion to the Cadre of District Judge. (4) For the purpose of Limited Competitive Examination, applications shall be invited by the Court from all eligible Senior D Civil Judges in such manner and in such form as may be specified by the Court. (5) Candidates who have obtained minimum 50% marks in the Limited Competitive Examination shall be eligible for interview by a Committee consisting of Chief Justice, Administrative Judge E and two other Judges nominated by the Chief Justice. The Committee taking into consideration the performance at examination, the service record and the performance at the interview shall assess the suitability and recommend the names of the offices for promotion. ” F 12.

6 Part-D deals with “Probation”, “Confirmation” and “Seniority”. Sub-heading dealing with “Appointment” deals with issue of combined Select List as under: “42. Combined Select List: The Court shall prepare a combined select list putting the names of candidates in cyclic as provided in G Schedule-VII from the lit prepared under sub-rule (1) and (5) of Rules 32 and 41 and send it to the Appointing Authority. ” 12. 7 The issue of seniority is dealt with by Rule 47 as under: “47. Seniority: Subject to the other provisions of these Rules: H 528 SUPREME COURT REPORTS [2020] 10 S. C. R. A (1) Seniority in the service in the cadre of Civil Judge shall be determined from the date of the order of substantive appointment to the service: Provided that the seniority of candidates appointed to the service shall, in the case of appointment of more persons B than one follow the order in which they have been placed in the list prepared by the Recruiting Authority under Rule 24 of these Rules.

(2) Inter-se seniority of persons promoted to the Senior Civil Judge cadre in the same year shall be the same as it was in C the post held by them at the time of promotion. (3) Seniority of persons appointed to the Service in the District Judge cadre by direct recruitment shall be determined from the date of the order of substantive appointment in the cadre. Provided that the seniority of direct recruitee to the cadre, in D the case of appointment of more persons than one by an order of the same selection, shall follow the order in which they have been placed in the list prepared by the Court under rule 41. (4) Inter-se seniority of persons promoted to the District Judge E cadre in the same year shall be the same as it was in the post held by them at the time of promotion.

(5) The seniority of direct recruitee vis-a-vis the promote appointed to the cadre of District Judge shall be determined in the order of their names placed in the combined select list F prepared under Rule 42: Provided that the persons promoted under Rule 15 shall not be given seniority over the direct recruitee. ” 12. 8 Rule 57 repealed 1969 Rules and made provisions for saving certain actions as under: G “57. Repeal and savings: The Rajasthan Highter Judicial Service Rules, 1969 and the Rajasthan Judicial Service Rules, 1955, as amended from time to time, are hereby repealed: Provided that such repeal shall not affect any order made, action taken, effects and consequences of anything done or H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 529 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] suffered there under or any right, privilege, obligation or liability A already acquired, accrued or incurred there under, or enquiry, verification, or proceedings in respect thereof made.

” 12. 9 Schedule I which is referable to Rule 3(c) and Rule 6(1) of the Rules deals with topic “Cadre Strength of the Service” and Part A deals with “District Judge Cadre” which enumerates various designations B in said cadre aggregating to 223 and earmarks 10% reserve for leave, training, deputation etc. ; thus taking the grand total to 245. Parts B and C of this Schedule deal with “Senior Civil Judge Cadre” and “Civil Judge Cadre” and set out the strength at 222 and 329 respectively. 12. 10 Schedule II which is referable to Rule 6(2) of 2010 Rules C deals with topic “Strength of the Service”. Part-A thereof enumerates various designations and the appropriate strength for the concerned posts in “District Judge Cadre”, in which 102 posts are mentioned including 83 “Additional District Judges (Fast Tracks)”.

In the same Schedule, Parts B and C deal with “Senior Civil Judge Cadre” and “Civil Judge Cadre” D respectively and the strength noted against said two parts is 7 and 4 respectively. 12. 11 Schedule VII which is referable to Rule 31(4) sets out the Roster for “filling up vacancies in the District Judge Cadre by direct recruitment and by promotion. ” First four points in the Roster are as E under: 1. By promotion-merit-cum-seniority 2. By promotion-merit-cum-seniority 3. By promotion-Limited Competitive Examination F 4. By direct recruitment. 13 Said pattern is then followed in succession . 13. On 31. 03. 2010 a Notification was issued by the High Court notifying 58 vacancies to be filled in the cadre of District Judge. Out of 58 vacancies so notified, 36 vacancies were to be filled by the Direct G Recruitment from the Bar while remaining 22 vacancies were to be filled by promotion through LCE as provided in Rules 7, 8, 32(1) and 40(1) along with Schedule-II to 2010 Rules.

In this recruitment, no 13 The pattern was thereafter modified vide Notification dated 31. 08. 2012 although the ratio between three sources was kept intact. H 530 SUPREME COURT REPORTS [2020] 10 S. C. R. A provision was made for 50% promotion quota meant for Promotees. Thereafter, a Notification was issued on 15. 04. 2010 inviting applications from Senior Civil Judges who had completed five years of actual service for being considered for 22 posts in the cadre of the District Judge to be filled by LCE and for filling up 36 vacancies through Direct Recruitment. B 14. In Malik Mazhar Sultan and others v. U. P. Public Service 7 Commission , an affidavit was filed on behalf of the High Court in I. A. No. 73 of 2009. The stand taken by the High Court in said affidavit was as under:- “2. It is submitted that in compliance of the directions of Hon’ble C Court dated 21. 03. 2002 passed in All India Judges Association Vs. UOI & Ors.

(AIR 2002 SC 1752 +2002 (4) SCC 247), new Rules for State Judicial Service, namely “Rajasthan State Judicial Service Rules 2003” (hereinafter referred to as draft Rules of 2003) were being framed, wherein provision of various modes of Recruitment/Promotion as approved and directed by this Hon’ble D Court had been incorporated. 3. In the draft Rules, 2003 a time bound schedule for recruitment of the Judicial Officers was also provided, which was more or less on the same lines as directed by the Hon’ble Court in this matter. However, there was variation between dates specified in E the calendar provided in Schedule-III of the draft Rules of 2003 and time schedule prescribed by the Hon’ble Court. As such, the time schedule prescribed by the Hon’ble Court could be implemented only after amending the Draft Rules, 2003 and due promulgation of the same.

Amendment in the Draft Rules of 2003 would have further required, approval of the Full Court of the F High Court and consultation with the Rajasthan Public Service Commission resulting in further delay in due promulgation of the Draft Rules of 2003. Therefore, an application dated 11. 07. 2008 for direction and modification was preferred by the Rajasthan High Court before the Hon’ble Court and it was prayed that the G Hon’ble Court may be pleased:- (a) to allow the application and permit the applicant/Rajasthan High Court to follow the calendar as annexed in Schedule-III of the draft of Rules, 2003 after due promulgation thereof; and H DINESH KUMAR GUPTA AND OTHERS v. HIGH COURT OF 531 JUDICATURE OF RAJASTHAN OTHERS [UDAY UMESH LALIT, J. ] (b) to grant exemption to the applicant from implementing the A time Schedule as prescribed by the Hon’ble Court vide it’s order dated 04. 01. 2007 till draft Rules 2003 are finalized and duly promulgated.

This application for directions and modification was registered as I. A. No. 39. Copy of the same is annexed herewith and marked B as Annexure-R1. 4. It is submitted that while I. A. No. 39 preferred by the Rajasthan High Court was pending consideration, in pursuance of order dated 24. 07. 2008 passed by this Hon’ble Court, a factual report on behalf of Rajasthan High Court with regard to filling of vacancies in C subordinate judiciary in the format prescribed by the Hon’ble Court was filed by the answering respondent through an affidavit dated 27. 08. 2008. True copy of the same is annexed herewith and marked as ANNEXURE-R-2. 5. It is submitted that while considering the factual report with D regard to filling of vacancies in subordinate judiciary filed by the Rajasthan High Court through the affidavit dated 27. 08. 2008 (Annexure-R-2), the Hon’ble Court vide its order dated 23. 09. 2008 (Annexure-A-1) dismissed the I. A. No. 39 preferred by the Rajasthan High Court. E 6.

It is submitted that meanwhile the Draft Rules 2003, incorporating the time schedule prescribed by the Hon’ble Court and other necessary amendments were renamed as “Rajasthan Judicial Service Rules, 2010” (hereinafter to be referred as Rules, 2010) and the same have been duly promulgated and come into force w. e. f. the date of its publication in Rajasthan Gazette F i. e. 19. 01. 2010. 7. It is submitted that: on the date of submission of the IA i. e. 10. 10. 2009, there were 75 vacancies in the cadre of Rajasthan Higher Judicial Service and 33 vacancies in the cadre of Civil Judge (Sr. Division). G 8. It is submitted that a report dated 23. 08. 2008 of a Committee of Hon’ble Judges, constituted by the Hon’ble Chief Justice to consider the matter regarding promotions in the cadre of District Judge on the post of Additional District & Sessions Judge (regular), Additional District & Sessions Judge (Fast Track) and from the H 532 SUPREME COURT REPORTS [2020] 10 S. C. R.

A post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr. Division), recommending promotions in these cadres was placed before the Hon’ble Full Court in its meeting held on 29. 11. 2008, 13. 02. 2009 and 31. 10. 2009 but due to difference of opinion, the report of the Hon’ble Committee could not be approved by the Full Court. However, Hon’ble Full Court in its meeting held on B 31. 10. 2009 approved the report of the Hon’ble Committee dated 23. 08. 2008 to the extent of making promotion of 33 officers from the post of Civil Judge (Jr. Division) to the post of Civil Judge (Sr. Division). Consequently, 33 officers have been promoted from the post of Civil Judge (Jr. Division) to that of Civil Judge (Sr. C Division) vide order dated 30. 11. 2009. Copy of order dated 30. 11. 2009 is annexed herewith and marked as ANNEXURE-R/ 3. 9. It is submitted that the report dated 23. 08.

2008 of the Hon’ble Committee regarding grant of promotions to the post of Additional D District & Sessions Judge (regular) and Additional District & Sessions Judge (Fast Track) was again placed for consideration before the Hon’ble Full Court in its meeting held on 20. 03. 2010. Whereupon it was Resolved that the report requires reconsideration by the Promotion Committee after considering the service record for subsequent period also and the report of E the Promotion Committee be placed before the Hon’ble Full Court by circulation. Pursuant to the Full Court Resolution, Hon’ble Committee convened its meeting on 05-06. 04. 2010 and submitted its report, suggesting amendment in Rule 15 of the Rajasthan Judicial Service Rules, 2010. This report of the Hon

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