IMPORTANT POINTS
Roster which has been expressly made applicable for filling the post of all the three streams shall be applicable while determining the seniority.
Vacancies existing for recruitment in particular year cannot be mechanically divided at the ratio of 50, 25 and 25 per cent. The entire cadre strength and persons in place as on pre-amendment has to be taken into consideration.
Rule 12(3) providing that seniority among direct recruits would be determined on basis of merits is applicable in case all candidate appearing in the same examination.

Headnote:(a) Punjab Superior Judicial Service Rules, 2007 – Rule 7, 12 and 23 – Instantly, recruitments for all three streams as enumerated in Rule 7(3)(a), (b) and (c) completed in 2008 and all incumbent joined their post in 2008 – In 2004 (before amendment) taking cadre strength as 88 and promotee quota as 75% there should have been 66 promotee officers; and 25% (22) direct recruits – After the amendment which was prospective and by which cadre strength was increased from 89 to 107 adding 18 posts, 50% (9) should go to promotee officers; 25% (4.5) to out of turn promotes and 25% (4.5) to direct recruits – These ought to be added to pre-amendment strength – Thus there should have been 75 (66+9) promote officers; and direct recruits should have been 26.5 (22+4.5) – Out of turn promotee officers being a new cataegory would only be prospective – No error in calculation of vacancies by High Court – Rule 2007 cannot be applied to disturb existing seniority – Vacancies existing for recruitment in particular year cannot be mechanically divided at the ratio of 50, 25 and 25 per cent – The entire cadre strength and persons in place as on pre-amendment has to be taken into consideration. (Para 39, 40, 41)
       (2002) 4 SCC 247; (2010) 15 SCC 170; (2017) 1 SCC 457 – Relied upon
       (b) Punjab Superior Judicial Service Rules, 2007 – Rule 7 r/w Rule 10, Haryana Superior Judicial Service Rules, 2007 – Seniority and roster – Held, roster is to be followed for determination of the seniority – Dates of joining of Officers of different streams selected in a particular year shall not affect their inter se seniority, which is to be decided on the basis of roster. (Para 48, 49, 53)
       (1984) 4 SCC 450; (2012) 13 SCC 340 – Relied upon
       (c) Punjab Superior Judicial Service Rules, 2007 – Rule 7(3)(c) and Rule 12 – Two fast track judges absorbed against direct recruit quota – Challenged on ground of recruitment process for direct recruits not having been followed in case of these two judges – High Court Committee approving the appointment noticing that these judges were subjected to written examination and viva voce examination which is similar to that adopted for direct recruitment – Held, no infirmity in absorbing these two judges against direct recruits quota and granting them seniority accordingly – Rule 12(3) provides that seniority among direct recruits would be determined on basis of merits – Applicable in case all candidate appearing in the same examination – Instantly the two judges not being part of same examination, held, Rule 12(3) does not apply. (Para 61, 62, 63)
       (2012) 6 SCC 502 – Relied upon
       (d) Punjab Superior Judicial Service Rules, 2007 – Rule 7(3)(b) – Sitting ad hoc fast track judge taking limited competitive examination and on being selected appointed – His seniority fixed in order of merit cannot be faulted. (Para 67)
       W.P.(C) No.1022/1989 – Relied upon
       Facts of the case:
       The questions which have arisen for determination in this batch of appeals relate to inter se seniority dispute between three streams of Punjab Superior Judicial Service, i.e.,
       (i) the officers promoted on the basis of merit-cum-seniority under 50% quota;
       (ii) the direct recruits under 25% quota; and
       (iii) officers promoted on the basis of limited departmental competitive examination under 25% quota (as it then existed).
       Writ Petition No.1056 of 2016, was filed by Kanwaljit Singh Bajwa and two others; Writ Petition No.1209 of 2016 was filed by Jatinder Kaur, direct recruit, challenging the seniority list dated 24.12.2015. Similarly Writ Petition No.1057 of 2016 was filed by Jatinder Pal Singh Khurmi and others challenging the seniority list. Writ Petition No.2335 of 2016 was filed by Virinder Aggarwal & another, who were out of turn promotees. They also challenged the seniority list dated 24.12.2015.
       The High Court held that promotees were in excess, hence, promotions made shall be treated in excess of quota and they shall take seniority on the date post is available in their quota. The High Court further held that the date of recommendation of direct recruits cannot be treated the date for the purpose of seniority. On applicability of roster in determination of seniority, the High Court categorically held that roster shall be applicable in determining the seniority as per Rules, 2007. The vacancies under Rule 7(1)(b) shall shift to Rule 7(1)(a) only with effect from 01.01.2011. The writ petitions were allowed and operative portion of judgment is contained in paragraph 208 which is to the following effect:
       Aggrieved by the judgment of the Division Bench of the High Court, the High Court has filed Civil Appeal Nos.5518-23 of 2017.
       Civil Appeals of Kanwaljit Singh Bajwa and others and Civil Appeal of Jatinder Kaur, two Civil Appeals by direct recruits, other Civil Appeals have been filed by promotee Officers whose promotions were treated to be ad hoc and are directed to be placed at the bottom of the seniority. Out of turn promotees had not challenged the judgment, since, the judgment of the High court was substantially in their favour.
       Finding of the Court:
       1. Promotion of fifteen officers under Rule 7(3)(a) cannot be held beyond their quota.
       2. The promotion of fifteen officers cannot be said to be ad-hoc nor they can be directed to be put at the bottom of the seniority list.
       3. The High Court did not issue any direction to recast the seniority as per the roster given in the Appendix-B which is an apparent error committed by the High Court.
       4. While interpreting the Rules 2007 the direction issued by this court have to be kept in mind and rules cannot be interpreted in a manner so as to violate the directions issued by this Court in the above judgment.
       5. Rule 7(4) read with Appendix-B has to be read in the light of direction of this Court in All India’s case and harmonious construction of the rule clearly indicates that roster which has been expressly made applicable for filling the post of all the three streams shall be applicable while determining the seniority.
       Result: Appeals partly allowed.

JUDGMENT :

Ashok Bhushan, J.

Delay condoned. Leave granted.

2. These appeals have been filed challenging the judgment dated 03.03.2017 of Division Bench of the High Court of Punjab and Haryana at Chandigarh allowing the Writ Petition No.1056 of 2016 and other connected writ petitions.

3. The questions which have arisen for determination in this batch of appeals relate to inter se seniority dispute between three streams of Punjab Superior Judicial Service, i.e.,

(i) the officers promoted on the basis of merit-cum-seniority under 50% quota (hereinafter referred to as “promotees”);

(ii) the direct recruits under 25% quota (hereinafter referred to as “direct recruits”); and

(iii) officers promoted on the basis of limited departmental competitive examination under 25% quota (as it then existed) (hereinafter referred to as “out of turn promotees”).

4. The members of Punjab Superior Judicial Service had filed writ petition in the High court challenging the seniority list dated 24.12.2007 issued by the High Court determining the inter se seniority of the members of the Punjab Superior Judicial Service.

5. The judgment of the Division Bench of the High Court has been questioned by Punjab and Haryana High Court at Chandigarh, members of Punjab Superior Judicial Service who were direct recruits and Superior Judicial Officers who are promotees under 50% quota. Civil Appeals on behalf of Kanwaljit Singh Bajwa and others and Jitender Kaur are the appeals filed by direct recruits and other appeals are the appeals filed by the promotee officers under 50% quota.

6. C.A. Nos. 5518-5523 of 2017 filed by the High Court are being treated as leading appeals, reference of pleadings of which appeals shall be sufficient to decide this batch of appeals.

Background Facts

7. The Higher Judicial Service of the State of Punjab was governed by a set of Rules, namely, Punjab Superior Judicial Service Rules, 1963. Rule 8, as it existed initially, provided that of the total number of cad-reposts, two-third shall be manned by promotee officers and one-third by direct recruits.

8. Rule 12 dealt with seniority which provided that the seniority, inter se, of the substantive members of the Service, whether direct recruits or promotee officers, shall be determined with reference to the respective dates of their confirmation. On 31.12.1976 Rule 12 was amended providing that seniority, inter se, of the members of the Service, shall be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation.

9. On 28.01.1991, Rule 8(2) was amended providing that of the total number of cadre posts, three-fourth shall be manned by promotee Officers and one-fourth by direct recruits.

10. This Court in All India Judges' Association and others vs. Union of India and others, 2002 (4) SCC 247, on 21.03.2002, after considering Justice Shetty Commission's report had issued various directions regarding recruitment to the Higher Judicial Service in the cadre of District Judges. The directions were issued by this Court directing that recruitment to the Higher Judicial Service i.e. the cadre of District Judges shall be from three streams i.e.:

“(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 (Senior Division) having not less than five years qualifying 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.”

11. This Court further directed that appropriate rules shall be framed by the High Courts as early as possible in compliance of the aforesaid directions. The Punjab Superior Judicial Serv

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2018 Supreme(SC) 967

Cases Referred (5)