D GANESH RAO PATNAIK Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal, by special leave, has been filed challenging the judgment and order dated 1-4-2003 of the High Court of Jharkhand by which the writ petition preferred by the appellants was dismissed and the issue raised is that of seniority between the direct recruits and the promotees in the Bihar Superior Judicial Service, who are currently serving in the State of Jharkhand.

(2.) The Bihar Superior Judicial Service Rules, 1946 (hereinafter referred to as the "Rules") provide for appointment to the post of Additional District and Sessions Judge by two sources, namely, by direct recruitment from amongst members of the Bar and by promotion from amongst members of the Bihar Civil Service (Judicial Branch), and they further provide that one-third posts in the cadre of service shall be filled in by direct recruitment and two-third shall be filled in by promotion. It appears that direct recruitment to Bihar Superior Judicial Service was not regularly made and often the posts of Additional District and Sessions Judges were filled in by promotion. After the year 1979 an advertisement was issued in the year 1985 inviting applications for making appointment to the posts of Additional District and Sessions Judges by direct recruitment. Even after the said advertisement had been issued, no action was taken for making the selection for a considerable period of time. One K. P. Verma then filed a writ petition in Patna High Court praying that a writ of mandamus be issued to the State Government and to the High Court on the administrative side to observe the constitutional mandate of Article 233 of the Constitution and to make appointments by making direct recruitment from amongst members of the Bar in order to comply with the requirement of the Rules whereunder one-third appointments to the posts of Additional District and Sessions Judges had to be made by direct recruitment. The writ petition was heard by a Full Bench of three learned Judges and the judgment is reported in K.P. Verma vs. State of Bihar, AIR 1989 Patna 276. In the said judgment a direction was issued to the State Government and to the High Court on the administrative side to make appointments to the posts of Additional District and Sessions Judges by direct recruitment of members of the Bar within a period of six months from the date of the judgment and a further direction was issued that in no case the vacancies meant for direct recruits shall be filled in by promotion or vice versa and the continuity and the parity shall be maintained until altered by due process of law. In compliance with the aforesaid direction a fresh advertisement was issued in the year 1989 inviting applications from eligible members of the Bar for the purpose of making direct recruitment to the posts of Additional District and Sessions Judges. A written examination was thereafter held, which was followed by interview and a merit list containing names of 129 candidates was declared on 24-11-1990, which was to remain valid till November, 1991. Out of this merit list the High Court recommended names of 32 candidates, in order of merit, for appointment as Additional District and Sessions Judges in the quota of direct recruits. The appellants, who are nine in number, were amongst those 32 candidates, whose names had been recommended to the State Government for appointment.

(3.) Around the same time the High Court also recommended names of 23 Subordinate Judges, including respondent Nos. 4 to 11 in the present appeal (hereinafter referred to as contesting respondents), for promotion to the temporary posts of Additional District and Sessions Judges. The State Government did not take immediate steps to issue the appointment orders in favour of the persons whose names had been recommended by the High Court. At the time when the advertisement was issued in the year 1989 the total number of permanent and temporary posts of Additional District and Sessions Judges was 251. If the quota for the direct recruits was to be worked out for all the posts, including temporary posts, it came to 83 and the remaining 168 posts fell in the quota for the promotees. However, the number of promotees, who were working as Additional District and Sessions Judges by April, 1991, far exceeded their quota of 168. The State Government, it appears, was proceeding on the basis that the cadre of Additional District and Sessions Judges would consist only of permanent posts and, therefore, the temporary posts could not be taken into consideration for making appointment by direct recruitment and such temporary posts had to be excluded while determining the quota of the direct recruits. One Madan Mohan Singh then filed a writ petition before the Patna High Court being C.W.J.C. No. 945 of 1991 wherein several prayers were made and one of the prayers was that direct recruitment should also be made to temporary posts and the quota of direct recruits should be determined by also taking into account the temporary posts of Additional District and Sessions Judges. An interim order was passed in the writ petition on 25-4-1991, which has some relevance and, therefore, it is being reproduced below: -