LAWS(HPH)-1994-11-5

M.R.CHAUDHARY Vs. HONBLE HIGH COURT

Decided On November 24, 1994
M.R.CHAUDHARY Appellant
V/S
HONBLE HIGH COURT Respondents

JUDGEMENT

(1.) -This judgment will also govern the disposal of C. W. P. No. 1198 of 1993. The petitioner and respondent Janeshwar Goel in this writ petition and the petitioner Surjit Singh in the other writ petition are all members of the Himachal Pradesh Higher Judicial Service constituted as per the Himachal Pradesh Higher Judicial Service Rules, 1973, (hereinafter referred to as the Rules) framed under Article 309 of the Constitution of India. Petitioner Shri Chaudhary is a direct recruit whereas the others are promotees from the Subordinate Judicial Service. The seniority between the three officers named above was first determined in the seniority list published by the Registrar of the High Court on 22 -12 -1990 wherein petitioner Shri Chaudhary was shown at serial No. 9, petitioner Shri Surjit Singh at serial No. 10 and respondent Shri Goel at serial No. 11. It appears that the petitioner Shri Chaudhary was appointed by order dated 11 -1 -1 88 whereas the other two were appointed subs -tantively by order dated 8 -1 -1988. All these three were, however, confirmed with effect from 8 -1 -1990 by order dated 17 -3 -1990 passed by the High Court. It further appears that respondent Shri Goel made a representation to the respondent High Court claiming re -fixation of his seniority under the proviso to Rule 12 of the Rules, which representation was accepted and by order dated 2 -3 -1993 respondent Shri Goel was made senior to petitioners Shri Chaudhary and Surjit Singh. Both the petitioners felt aggrieved by the said order and challenge the legal validity thereof by filing these two separate writ petitions in this regard.

(2.) Submission of the learned Counsel for the petitioners Shri Chaudhary and Shri Singh is that recruitment to the Higher Judicial Service is made by promotion as also by direct recruitment as provided under Rule 8 of the rules aforesaid, that is, 2/3rd by promotion and 1/3rd by direct recruitment and in order to give effect to the aforesaid rule a rota system is followed wherein after two posts allotted to promotees one post is given to direct recruit Under the second proviso to this rule a member of the Judicial Service may be appointed in the vacancy reserved for direct recruit only on officiating basis till the direct recruit is not appointed. In other words, the post reserved for direct recruit cannot be given to the promotees in any manner. It is, therefore, submitted that the impugned order is violative of this rule inasmuch as it has the effect of giving the post reserved for direct recruit, that is, petitioner Shri Chaudhary, to respondent Shri Goel, a promotee. Learned Counsel for respondent Shri Goel, however, submitted that there is nothing on record to indicate that the rota system has either any legal sanctity or has been followed in practice and hence there is no justification for the submission that the impugned order violative Rule 8 of the aforesaid rules. It is, therefore, submitted that re -fixation of seniority of respondent Shri Goel under Rule 12, Proviso (iii) is legal and valid.

(3.) Rule 8, which is relevant to the aforesaid controversy reads as under: - "8. Recruitment to service. -(1) Recruitment to the service would mean by promotion and direct recruitment in the following manner: - (a) 2/3 by promotion. (b) 1/3 by direct recruitment : Provided that this ratio would apply only to the recruitments to be made after the coming into force of these rules : Provided further that nothing in this rule shall prevent the officiating appointment of a member of the Himachal Pradesh Judicial Service on any post which is to be filled up by direct recruitment, till a direct recruitee is appointed." A bare reading of this rule would indicate that the ratio between the promotees and direct recruit has to be maintained as provided therein and that the post reserved for a direct recruit can be given to a promotee only by giving him the officiating appointment till a direct recruit is appointed. In other words, the rule provides that ratio must be maintained and post reserved for direct recruit should not be given on substantive basis to a promotee. This, in our opinion, implies the rota rule and hence the said rule must be deemed to have legai sanctity. In order to ascertain whether this rule has been followed or not in the past, we went through the original record of the High Court available with the learned Counsel and found that the rule has been taken into consideration while confirming officers in the service. In other words, the rule has been followed while allocating vacancies in substantive capacity. Under the circumstances, the rule not only has legal basis but has also been followed in practice. That was perhaps the reason why in the seniority list published on 22 -12 -1990 petitioner Shri Chaudhary was shown senior to Shri Surjit Singh and Shri Goel even though he was appointed subsequent to them. It is the case of Shri Chaudhary that on the date of his appointment as a direct recruit there was no vacancy to be given to promotees and, therefore, neither petitioner Shri Surjit Singh nor respondent Shri Goel could be given appointment in a substantive capacity on that date. It is further submitted that one vacancy became available in January 1989 when Shri Surinder Prakash resigned from service and the other vacancy became available on 31 -8 -1990 when Shri R. L. Sharma, a promotee officer, retired. Neither Shri Chaudhary nor Shri Surjit Singh objected to the seniority in the year 1990, Respondent Shri Goel, no doubt, represented against the same and his representation has been accepted. The question requiring consideration is whether while fixing seniority of officers in service, vacancy reserved for a direct recruit could be given to a promo tee If the second proviso to Rule 8 is to be given any meaning, the answer should be in the negative. The further question requiring consideration, therefore, is whether Rule 12 empowers the High Court to ignore the rota system inbuilt in section 8 of these rules.