2005 Supreme(SC) 1327

2005(8) Supreme 371
Supreme Court of India
(From Jharkhand High Court)
R.C. Lahoti, CJI, G.P. Mathur and P.K. Balasubramanyan, JJ.
D. Ganesh Rao Patnaik & Ors. —Appellants
versus
State of Jharkhand & Ors. —Respondents
Civil Appeal No. 9728 of 2003
Decided on 6-10-2005
Counsel for the Parties :
For the Appellants : A. Sharan, Additional Solicitor General, S. Muralidhar, Somiran Sharma and Amit Anand Tiwari, Advocates.
For the Respondents Nos. 4-11 : Vijay Hansaria, Sr. Advocate, Anupam Lal Das and Rajan Raj, Advocates.
For the Respondent No. 1 : M.L. Verma, Sr. Advocate, Anil Kumar Jha, Satya Mitra, Advocates.
For the Respondent Nos. 2-3 : Ms. Pinky Anand, Sr. Standing Counsel for Jharkhand, (N.P. on 7.9.2005), D.N. Goburdhun and Rajesh Pathak, Advocates.

Important pointFor determining inter-se seniority between the direct recruits and the promotees in the Bihar Superior Judicial Service, when no vacancy either permanent or temporary in the quota meant for promotees was available, the period of officiation/service rendered by the candidates till a vacancy in their quota became available to them, cannot be counted towards their seniority.

Headnote:(i) Constitution of India—Article 233—Bihar Superior Judicial Service Rules, 1946—Rules 2, 3, 5, 6, 15 and 16—Seniority between direct recruits and promotees in the Bihar Superior Judicial Service, who are currently serving in the State of Jharkhand—Statutory requirement of making one third appointments to the posts of Addl. District and Sessions Judges by direct recruitment from the Bar—Direct recruitment not being regularly made—Writ petitions—Directions made by the High Court to the State Government to make appointments to the posts of Addl. District and Sessions Judges from members of the Bar—Advertisement for recruitment was issued in year 1989—High Court recommended names of 32 candidates for appointment to the post in the quota of direct recruits—High Court also recommended names of 23 Subordinate Judges including respondents 4 to 11 for promotion to the temporary posts of Addl. District and Sessions Judges—State Government did not take immediate steps to issue appointment orders in favour of persons whose names had been recommended for direct recruitment including names of nine appellants—Number of promotees, who were working as Addl. District and Sessions Judges by April, 1991, far exceeded their quota of 168 —State Government issued two separate notifications, one for appointment of 32 persons including appellants to the posts of Addl. District and Sessions Judges against the quota of direct recruits—By another notification, respondents were promoted and appointed as Addl. District and Sessions Judges—Promotion of respondents 4 to 11 came into effect much after 30.4.1991—Appellants claiming seniority over 24 promotee officers including respondents—Whether for calculating one third quota of direct recruits, temporary posts of Addl. District and Sessions Judges have to be included—(Yes)—Whether respondents can be treated as senior to appellants who are all direct recruits—(No).

       Held : In view of these authoritative pronouncements of this Court there cannot be any doubt whatsoever that for determining the quota of direct recruits, both the temporary and permanent posts have to be counted and taken into consideration and their quota cannot be confined to permanent posts alone. As mentioned earlier no appointments by direct recruitment to Bihar Superior Judicial Service were made after 1979. Even though the advertisement was issued in 1985, but no follow-up action was taken. It was under these circumstances that K.P. Verma filed a writ petition, which was heard and decided by a Full Bench of three learned Judges of Patna High Court, who wrote separate but concurring opinions and the judgment is reported in K.P. Verma vs. State of Bihar AIR 1989 Patna 276. Shamsul Hasan, J., who authored the main judgment, while disposing of the writ petition, issued several directions (Paras 14 and 15)

       The judgment in the case of K.P. Verma attained finality and the directions issued therein by all the learned Judges were binding upon the State Government and the High Court on the administrative side. Therefore, as a result of this decision a complete prohibition was imposed upon the State Government on filling in vacancies of the quota of direct recruits by giving promotion to members of Bihar Civil Service (Judicial Branch) and no appointment in the quota of direct recruits in Bihar Superior Judicial Service could be made by promotion. (Para 15)

       Before the notification dated 30.4.1991 promoting the contesting respondents to the posts of Additional District and Sessions Judges had been issued, the total number of permanent and temporary posts in the said cadre was 251 in which the quota of direct recruits was 83 and that of promotee officers was 168. However, the complete quota meant for the promotee officers had already been filled up much before 30.4.1991 and there was absolutely no scope for any further promotion. When steps were being taken to make appointments by promotion of the contesting respondents and some others, C.W.J.C. No. 945 of 1991 (Madan Mohan Singh vs. State of Bihar) was filed in the High Court wherein an interim order was passed on 25.4.1991 to the effect that such promotion and the question of seniority of the persons so promoted shall abide by the final results of the writ petition. It was further directed that in the appointment/promotion order the said condition shall be incorporated and the promotees will have to give a written consent for accepting such a condition. It is not in dispute that the appointment/promotion order of the contesting respondents contained such a condition and respondent Nos. 4 and 6 to 11 joined at their respective places of posting after they had submitted their consent letters/undertakings. The contesting respondents having been promoted in the vacancies which in fact were in the quota of direct recruits, in normal circumstances, their promotion was liable to be rescinded after the decision of the writ petition. However, as mentioned in the counter affidavit filed by the Registrar General on behalf of the High Court in C.W.J.C. No. 11620 of 1996 filed in the Patna High Court, this step was not taken on sympathetic consideration. Instead the promotees were allowed to continue treating them as having been promoted against subsequent quota of promotees. (Para 16)

       After the decision in the case of Madan Mohan Singh by the High Court, which ruled that temporary posts have also to be counted for determining the one-third quota of direct recruits, which decision, in our opinion, is legally correct and sound, there was absolutely no scope for giving promotion to the contesting respondents in the vacancies, which did not fall in the quota of promotees but fell within the quota earmarked for direct recruits. The High Court had issued clear directions in the case of K.P. Verma that vacancies meant for recruitment from amongst advocates should never be filled up by promotees even on the ground that the posts are lying vacant due to the delay caused by the appointment procedure and further if any post out of that lying vacant from the quota of direct recruits had been filled up or is filled up by promotion, such promotee will revert immediately to its original position in the service from which he had been promoted. The promotion order passed in favour of the contesting respondents on 30.4.1991 was, therefore, liable to be cancelled. However, instead of taking this decision, which would have naturally meant reverting the contesting respondents back to their original position, they were allowed to continue treating them as promoted against subsequent quota of promotees. In such circumstances there is absolutely no scope for treating the contesting respondents as senior to the appellants who are all direct recruits. (Para 17)

       (ii) Words and Phrases—Expression ‘fortuitous’—Means ‘occurring by chance or accident—If an appointment is made accidentally, because of a particular emergent situation—It would not continue for a reasonably long period—Service Law—Bihar Superior Judicial Service Rules, 1946.

       Held : The meaning given to the expression “fortuitous” in Stroud’s Judicial Dictionary is “accident or fortuitous casualty”. This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation, such appointment obviously would not continue for a reasonably long period. In Black’s Law Dictionary the expression “fortuitous” means “occurring by chance”, “a fortuitous event may be highly unfortunate”. It thus indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. In Oxford dictionary the meaning given to the word “fortuitous” is - happening by accident or chance rather than design. In our opinion it will not be proper to hold that the promotion of the contesting respondents was fortuitous as contended by learned counsel for the appellants. It cannot be said that the contesting respondents were promoted by accident or by chance. Their promotion order was passed as there were vacancies to the posts of Additional District and Sessions Judges, though in the quota or direct recruits, but as no recruitment from the said channel had been made for a long time and sufficient number of candidates were not available, the vacancies were filled in by giving promotion to members of Bihar Civil Service (Judicial Branch). If promotion orders had not been passed and the posts had not been filled in, the judicial work in the districts would have suffered. However, it is clear that having regard to the various orders passed on the judicial side by the Patna High Court and the legal position being well settled that the temporary posts have also to be counted for determining the one-third quota of direct recruits, the promotion given to the contesting respondents was not in accordance with law. Instead of taking the harsh step of rescinding their order of promotion the Patna High Court, on the administrative side, took the decision to treat them promoted against subsequent quota of promotees. Therefore, the contesting respondents can under no circumstances claim seniority over the appellants and the view to the contrary taken by the Jharkhand High Court on 29.8.2002 on administrative side and also in the judgment and order dated 1.4.2003, which is the subject-matter of challenge in the present appeal, is wholly erroneous in law. (Para 19)

       (iii) Words and Phrases—Word ‘consultation’—Dictionary meaning of the word is a council or conference (as between two or more persons); deliberation of two or more persons on some matter—Constitution of India—Article 233(1). (Para 20)