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PETITIONER: B. S. YADAV AND OTHERS ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND OTHERS ETC.

DATE OF JUDGMENT05/11/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. TULZAPURKAR, V.D. SEN, A.P. (J)

CITATION:  1981 AIR  561            1981 SCR  (1)1024  1980 SCC  Supl.  524  CITATOR INFO :  R          1982 SC1244  (14)  F          1984 SC 161  (52)  R          1984 SC 850  (17)  R          1985 SC1681  (5)  F          1987 SC 415  (16,17)  RF         1987 SC1832  (1)  R          1988 SC 488  (9)  D          1988 SC1153  (2)

ACT:      Constitution  of  India,  1950-Articles  235  and  309, proviso-scope of-  Governor, if  could make rules regulating conditions  of   service  of   judicial  officers-If   could retrospectively amend  the rules-determination  of inter  se seniority of judicial officers and declaring that an officer has  satisfactorily   completed  the  period  of  probation, Governor if  competent to do-period of probation if could be reduced   in    individual   cases    without    exceptional circumstances justifying reduction.      Rule of  rotation, if  could be read into rule of quota of direct  recruits and promotees-vacant post for promotees, if could  be filled  by confirmation of a direct recruit and vice versa.

HEADNOTE:      Exercising power  under the  proviso to Art. 309 of the Constitution (which  empowers the  Governor  to  make  rules regulating the  recruitment and  conditions  of  service  of persons appointed  to services  and posts in connection with the affairs  of  the  State)  the  Governor  of  Punjab,  in consultation with  the Punjab  High Court, framed the Punjab Superior Judicial Service Rules, 1963. The rules provide for the direct  recruitment as  well as appointment by promotion from the  Punjab Civil Service (Judicial branch). Under rule 8(2), two  third of  the total number of cadre posts have to be manned  by promoted  officers  and  one-third  by  direct recruits. Under rule 10(1) direct recruits have to remain on probation for two years provided that the Government may, in exceptional circumstances, reduce the period of probation in

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consultation with the High Court. The period of probation of an officer can be extended by the Governor beyond the period of two  years in consultation with the High Court but not so as to  exceed a  total period  of three  years.  Rule  10(2) empowers the  Governor to  confirm in  consultation with the High Court a direct recruit on a cadre post with effect from a date  not earlier  than the date on which he completes the period of  probation. Rule  12 (now  in  force  in  Haryana) provides that  the seniority of direct recruits and promoted officers  shall   be  determined   with  reference   to  the respective dates of their confirmation.      Under the  Punjab Rules as amended retrospectively with effect from  April 9, 1976 ’cadre post’ means a permanent as well as  a temporary  post in  the  service.  The  inter  se seniority of the members of the service is to be deter mined by the length of continuous service on a post in the service irrespective of the date of confirmation.      The three  petitioners in  the Haryana  writ  petitions were selected  for recruitment  to the  Punjab Civil Service (Judicial Branch) in a competitive examination and after the formation of  the State of Haryana, they were promoted in an officiating  capacity   to  the  Haryana  Superior  Judicial Service in  1967 and 1968. Respondent No. 3 who was a direct recruit  to   the  Haryana  Superior  Judicial  Service  was appointed as a District and Sessions Judge on July 7, 1025 1970 and  was confirmed  in that post on July 7, 1972 on the completion of  A two  year probationary  period.  The  three petitioners were  confirmed as  District and Sessions Judges with effect from July 8, 1972.      In the  case of  judicial officers  of Punjab, although there were  ten vacancies  in the quota of promoted officers and an  equal number  of promoted  officers were officiating for  more  than  three  years  as  Additional  District  and Sessions  Judges,   the  High  Court  did  not  confirm  the promotees in those vacancies but confirmed the promotees and the direct  recruits by  applying the rule of rotational Six direct recruits  were given  prior dates  of confirmation in comparison with  the promotees,  as a  result of  which  the confirmation of  eight promotees  was postponed. In the case of some  direct recruits  confirmation was  given  within  a period of  one year  and four  months though  the period  of probation was two years.      Rule 12  was amended retrospectively from April 9, 1976 by which  seniority was  to be  determined by  the length of continuous service  on a post in the service irrespective of the date of confirmation      Rejecting the  plea of  one of the direct recruits that the rules  not only  required the  application of  a rule of quota at  the time  of appointment  but  also  required  the application  of   a  rule   of  rotation   at  the  time  of confirmation, the  High Court  held that rules 8 and 12 were independent of  each other, that rotational system could not be implicitly  read in the quota rule provided for by rule 8 and that  members of  the  Superior  Judicial  Service  were entitled to  claim seniority strictly in accordance with the provisions of  rule 12.  The promotees  complained that this decision rendered by the High Court in its judicial capacity was not being followed by the High Court in the discharge of its  administrative   duties  and   that  seniority  of  the promotees and direct recruits must be fixed without applying the rule  of rotation  at the  time of  confirmation. It was also stated  that after  the amendment  of rule  12 in  1976 although two vacancies of District and Sessions Judges arose on each  of these occasions the High Court promoted a direct

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recruit  treating  the  date  of  his  confirmation  as  the criterion of seniority.      It was  contended on behalf of the promotees in Haryana that the  control which  the High Court exercises under Art. 235 over  the subordinate  judiciary does  not  include  the power to  make rules  regulating the condition of service of judicial officers  but that since the power conferred on the Governor under  the proviso  to Art.  309 to  make rules  is legislative in  nature  the  principle  of  independence  of judiciary is  not in  any manner  violated when the Governor makes the  rules. On  the other  hand it  was  contended  on behalf  of   the  High  Court  that  the  control  over  the subordinate judiciary  vested in  the High Court by Art. 235 being exclusive  in nature,  the power  to  frame  rules  in regard to  the seniority of judicial officers must reside in the High Court and not in the Governor.      It was  contended on  behalf of  the promotees that the quota of  2: 1  provided for by rule 8 is applicable only at the time  of initial  recruitment  and  that  there  was  no warrant for  extending the  application of  that rule at the time of confirmation.      Partly allowing the Petitions; ^      HELD: There  is no  force in  the contention  that  the Governor has no power to make rules of seniority of District and Sessions Judges. [1058B] 1026      On a  plain  reading  of  Arts.  235  and  309  of  the Constitution it  is clear  that the  power  to  frame  rules regarding seniority  of officers  in the judicial service of the State  is vested  in the  Governor and  not in  the High Court. The  first part  of Art.  235 vests  the control over District Courts  and courts  subordinate thereto in the High Court. But the second part of that Article says that nothing in the  article shall  be construed  as taking away from any person belonging  to the  judicial service  of the State any right of  appeal which  he may have under the law regulating the conditions  of his  service or  as authorising  the High Court to deal with him otherwise than in accordance with the conditions of  his service  prescribed under such law. Thus, Art. 235 itself defines the outer-limits of the High Court’s power  of  control  over  the  District  Courts  and  courts subordinate thereto.  In the first place, in the exercise of its control  over the District Courts and subordinate courts it is  not open to the High Court to deny to a member of the subordinate judicial  service of  the  State  the  right  of appeal  given   to  him  by  the  law  which  regulates  the conditions of  his service. Secondly, the High Court cannot, in the  exercise of  its power  of control,  deal with  such person otherwise  than in  accordance with the conditions of his service which are prescribed by such law. [1052C]      There is  no power  in the  High Court  to pass  a  law though rules made by the High Court in the exercise of power conferred upon  it in that behalf may have the force of law. Law which  the second part of Art. 235 speaks of is law made by the  Legislature. The  clear meaning,  therefore, of  the second part  of Art. 235 is that the power of control vested in the  High Court  by the  first part  will not  deprive  a judicial officer  of the  rights conferred upon him by a law made  by   the  Legislature  regulating  his  conditions  of service. [1052G-H]      Article 235  does not  confer upon  the High Courts the power to  make rules  relating to  conditions of  service of judicial officers attached to District Courts and the courts subordinate thereto.  Whenever it  was intended to confer on

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any authority  the power  to make  any special  provision or rules including rules relating to conditions of service, the Constitution has stated so in express terms. For example the provisions contained  in Articles  225,  227(2)  &  (3)  and 229(1) &  (2) confer powers on the High Court to frame rules for certain specific purposes. Art. 229(2) which is directly in point  provides that subject to the provisions of any law made by  Legislature of  the State the conditions of service of officers of a High Court shall be made by the High Court. The framers  of the  Constitution would  not have  failed to incorporate a  similar provision  in  Art.  235  if  it  was intended that  the High Courts should have the power to make rules regulating  the  conditions  of  service  of  judicial officers in the subordinate judiciary. [1053B-F]      The power  of control  vested in the High Court by Art. 235 is  expressly made  subject to  the law  which the State Legislature may  pass for  regulating  the  recruitment  and service conditions  of judicial  officers of  the State. The framers of  the Constitution did not regard the power of the State Legislature  to pass  laws regulating  the recruitment and  conditions  of  service  of  judicial  officers  as  an infringement of  the independence of the judiciary. The mere powers to  pass such  a law  is not violative of the control vested in  the High  Court over the State judiciary. [1053H; 1054C]      In order  that there may be no vacuum until the passing of a law by the Legislature on the subject, the Constitution has made  provision under the proviso to Art. 309 that until the State Legislature passes a law on the 1027 particular subject, it shall be competent to the Governor of the State  to A  make rules  regulating the  recruitment and conditions of service of the judicial officers of the State. The power  exercised by  the Governor  under the  proviso is thus a  power which the Legislature is competent to exercise but has  in fact  not yet  exercised.  It  partakes  of  the characteristics of the legislative, not executive, power. It is legislative power. [1054D-F]      That the Governor possesses legislative power under the Constitution is incontrovertible. Just as under Art. 213 the Governor  substitutes   tor  the   Legislature  because  the Legislature is in recess so under the proviso to Art. 309 he substitutes for  the Legislature because the Legislature has not yet  exercised its  power to  pass an appropriate law on the subject. [1054G and 1055B-C]      It is  true that  the power conferred by Article 309 is subject to  the provisions  of the  Constitution but  it  is fallacious for  that reason  to contend  that  the  Governor cannot frame rules regulating the recruitment and conditions of service  of the  Judicial officers of the State. Firstly, the power of control conferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of  that Article,  to  laws  regulating  conditions  of service of its Judicial officers. Secondly, the Governor, in terms equally  express, is given the power by the proviso to Article 309 to frame rules on the subject. [1055B-C]      A combined  reading of Arts. 235 and 309 will yield the result that  though the  control over the subordinate courts is vested  in the High Court the appropriate Legislature and until that  Legislature acts  the Governor  of the State has the power  to make  rules regulating the recruitment and the conditions of service of judicial officers of the State. The power  of  the  Legislature  or  of  the  Governor  thus  to legislate  is   subject  to  all  other  provisions  of  the Constitution like Arts. 14 and 16. [1055D-E]

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    The second  part of Art. 235 recognises the legislative power to  provide for  recruitment  and  the  conditions  of service  of   the  judicial   officers  of  the  State.  The substantive provision  of Art.  309, including  its proviso, fixes the  location of  the power. The opening words of Art. 309 limit the amplitude of that power. [1055F]      Seniority is  undoubtedly  an  important  condition  of service. The  control vested  in the High Court by the first part of Art. 235 is, therefore subject to any law regulating seniority as  envisaged by  the second part of that article. The power  to make  such law  is vested  by Art.  309 in the Legislature and  until it  acts, in the Governor. Whether it is the  Legislature which  passes an Act or the Governor who makes rules  regulating seniority,  the end  product is  law within  the   meaning  of  second  part  of  Art.  235.  The Legislatures of  Punjab and Haryana not having passed an Act regulating  seniority   of  the  respective  State  judicial officers, the  Governors of the two States have the power to frame rules  for that  purpose under the proviso to Art. 309 of the Constitution Such rules are subject to the provisions of the  Constitution and  to the provisions of any Act which the appropriate Legislature may pass on the subject. [1055G- H]      The law  passed by the Legislature or the rules made by the Governor  can provide  for general  or abstract rules of seniority leaving it to the High Court to apply them to each individual case  as and  when the occasion arises. The power to  legislate  on  seniority  being  subject  to  all  other provisions of  the Constitution  cannot be  exercised  in  a manner which  will affect  or be  detrimental to the control vested in the High Court by Art. 235. [1056B-C] 1028      Though the Legislature or the Governor has the power to regulate seniority of judicial officers by laying down rules of general  application, that power cannot be exercised in a manner which  will lead  to interference  with  the  control vested in the High Court by the first part of Art. 235. In a word, the  application of  law governing  seniority must  be left to  the High  Court. The  determination of seniority of each  individual   judicial  officer   is  a   matter  which indubitably falls  within the  area of  control of  the High Court over  the district  courts and  the courts subordinate thereto. For  the same  reason, though  rules of recruitment can provide  for a period of probation, the question whether a particular  judicial officer  has satisfactorily completed his probation or not is a matter which is exclusively in the domain or the High Court to decide. [1056E-F]]      The independence  of the judiciary has to be preserved. at all  costs. But  at the  same time the Legislature or the Governor cannot  be deprived of their legitimate legislative powers under  Art. 309.  That power  is subject to all other provisions of  the Constitution  which means  that the power cannot be  exercised in  a manner  which will  lead  to  the violation of  Arts. 14  or 16  or the pervasive ambit of the first part  of Art.  235. Since  the power conferred by Art. 309 is  not absolute or untrammeled it will be wrong to test the validity  of that  power on  the anvil  of its  possible abuse. [1057 A-B]      High Court  of Punjab  and Haryana v. State of Haryana, [1975] 3  SCR 355,  Union of  India v.  Justice S. H. Sheth, [1978] 1  S.C.R. 423.,  A. P.  High Court  v. Krishnamurthy, [1979] 1  S.C.R. 26  & State of Bihar v. Madan Mohan Prasad, [1976] 3 S.C.R. 110, referred to.      Rule 8  as its  very  heading  shows,  provides  for  a distinct condition  of ser vice with reference to a specific

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point of time, namely "recruitment to service". The language of the  rule also  indicates that the operation of this rule is confined  to the  stage of  initial  recruitment  to  the service either  by promotion  or by  direct appointment from the Bar. [1063F]      The reservation  contemplated by  rule 8 is intended to be  made  at  the  stage  of  initial  appointment  only  by reserving two  third of  the total  number of  posts in  the cadre for  promotees and  one third  for direct  recruits. A post which  falls vacant in the quota of promotees cannot be filed by  the confirmation  of a  direct recruit therein nor indeed can a promotee be confirmed in a post which is within the quota of direct recruits. [1063H]      If this  be the  true construction of rule 8 the method of  confirmation   by  rotation   of  direct   recruits  and promotees, regardless of whether the vacancy assigned to the particular officer  falls within  the quota  of the class to which he  belongs will  be in  contravention of  that  rule. [1064B]      ’Appointment’ is  not a continuous process. The process of appointment  is complete as soon as a person is initially recruited to  the service  either by  promotion or by direct recruitment and confirmation is not a part of the process of appointment. "Recruitment  to the service" is a matter which falls within  the power of the Governor under Art. 233 while "confirmation" is  a matter of ’control’ vesting in the High Court under  Art. 235.  The superimposition of rule 8, which fixes the  quota at  the stage  of recruitment  on the rules relating  to   confirmation  and  seniority  is,  therefore, contrary to  the  basic  constitutional  concepts  governing judicial service. [1064C-D] 1029      The rule of rota cannot be read into the rule of quota. In other words the ratio of 2: 1 shall have to be applied at the stage  of recruitment  but cannot on the language of the relevant rules  be applied  at the  stage  of  confirmation. [1066B]      A K. Subraman v. Union of India, [1975] 2 SCR 979, N.K. Chauhan v. State of Gujarat, [1977] 1 SCR 1037 referred to.      Paramjit Singh  Sandhu v.  Ram Rakha,  [1979] 3 SCR 584 held inapplicable.      The High  Court was  not justified in applying tho rule of rotation  at the  time of  confirmation of the members of the superior  judicial service  who were  appointed to  that service by  promotion and  by  direct  recruitment.  In  the discharge of  its administrative  functions the  High  Court could not  have failed  to follow  a  judgment  of  its  own special bench consisting of five Judges. [1066C-D]      High Court  of Punjab  and Haryana v. State of Haryana, [1975] 3 S.C.R. 365, referred to.      On a  proper interpretation of the rules, promotees are entitled  to   be  confirmed  in  the  vacancies  which  are available within  their quota  of two  third, whether or not one third  of the vacancies are occupied by confirmed direct recruits. Similarly  direct  recruits  are  entitled  to  be confirmed in  vacancies which  are  available  within  their quota of one third whether or not two third of the vacancies are occupied by confirmed promotees. [1067D-E]      The fairness which Arts. 14 and 16 postulate is that it a promotee  is otherwise  fit for confirmation and a vacancy falling within  the quota of promotees is available in which he can  be confirmed,  his  confirmation  ought  not  to  be postponed until  a direct  recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in

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the matter  of confirmation  will not, in practice, give any undue advantage to the promotees. [1067D-E].      In so far as the confirmation of respondents 6, 7 and 8 is concerned,  in the  absence of  exceptional circumstances justifying the reduction of their normal probationary period of two  years, the  order of  the High  Court confirming  he three  respondents   before  they   were  normally  due  for confirmation  cannot  be  upheld.  The  order  is  in  clear violation of  the guarantee  of equal  opportunity,  by  the petitioners were  prejudiced and must for that reason be sel aside. [1067G-H]      The power conferred by the proviso to rule 10(1) on the Governor is  ex-facie bad  because  such  a  power  directly impinges upon  the control  vested in the High Court by Art. 235 of  the Constitution.  If at  all  any  authority  could exercise such  a power,  it is  the High  Court and  not the Governor. The  rules must now be understood to mean that the High  Court   and  not   the  Governor   has  the  power  of confirmation, that  the normal period of probation of direct recruits is  two years and that unless there are exceptional circumstances in  regard to  each individual  case, a direct recruit cannot  be confirmed  from a  date earlier  than the date on  which he has satisfactorily completed his probation of two  years. The  High Court is not free to fix any period of probation  as it  likes or  to reduce  the period  of two years at its will and pleasure. [1068B-E]      As regards  The power  of the  Governor to amend a rule with retrospective  effect, since he exercises a legislative power under  proviso to  Art. 309  it is open to him to give retrospective effect to the rules made under that provision. But the  date from  which the rules are made to operate must be shown to bear 1030 either from  the face  of the rules or by extrinsic evidence reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period. In  the instant  case  rule  12  which  was  amended retrospectively from  April 9,  1976 by a notification dated December 31,  1976 is invalid because no such nexus is shown to exist. [1068F-H]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition Nos. 4228-4230 of 1978 and 266 of 1979.            (Under Article 32 of the Constitution)      V. M.  Tarkunde, O.  P. Malhotra,  K. N.  Bhatt,  Vijay Kumar Verma  and R.  C. Kathuria  for the Petitioners in WPs 4228-4230/78.      Y.  S.   Chitale  (Dr.),   Lala  Ram   Gupta,   C.   R. Somashekharan, M.  S. Ganesh,  P. N.  Jain and M. V. Goswami for the Petitioners in W.P. 266/79.      5. N.  Kackar, S.  N. Ashri,  R. N.  Sachthey and M. N. Shroff for Respondent 1 in WP 4228-4230/78.      Soli J.  Sorabjee, and  Hardev Singh  for R.  2 in  WPs 4228-30 of 1978 and 266/79.      F. S.  Nariman, B.  R. Tuli and R. S. Sodhi for RR 3-11 in WP 266/79.      Kuldip Singh,  Prem Malhotra  and R. S. Mongia for R. 3 in WPs 4228-30/78 and intervener.      A. K. Sen and Mrs. Urmila Kapoor for R. 1 in WP 266/79.      The Judgment of the Court was delivered by      CHANDRACHUD, C.J.-These Writ Petitions under Article 32 of the  Constitution involve the consideration of a two-fold

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controversy: first,  as to  the  rules  governing  seniority between direct  recruits  and  promotees  appointed  to  the Superior Judicial Services of Punjab and Haryana and second, between the  control over  district courts  and  subordinate courts vested  in the  High Court  by Art. 235 and the power conferred upon  the Governor  by the  proviso to Art. 309 of the Constitution  to make  rules regulating  the recruitment and conditions  of service of persons appointed, inter alia, to the Judicial Service of the State.      We have  two sets  of Writ  Petitions before  us  which involve identical  points except for one material difference which we  will mention later. Writ Petitions 4228 to 4230 of 1978 are  filed by  three judicial  officers of the State of Haryana who are promotees, that is to say, who were promoted to the Superior Judicial Service of the State 1031 from  the   Haryana   Civil   Service   (Judicial   Branch). Respondents 1 and 2 to those Writ Petitions are the State of Haryana  and   the  High   Court  of   Punjab  and   Haryana respectively. Respondent  3, Shri  N. S.  Rao, is  a  direct recruit, having  been appointed  from the Bar to the Haryana Superior Judicial  Service. Writ  Petition 266  of  1979  is filed by  twenty-two promotees,  that is  to say,  those who were promoted  to the  Punjab Superior Judicial Service from the Punjab  Civil Service  (Judicial Branch).  Respondents 1 and 2  to that petition are the State of Punjab and the High Court of  Punjab and  Haryana respectively. Respondents 3 to 11 were  appointed directly  from  the  Bar  to  the  Punjab Superior Judicial Service.      Some  of   the  more   important  grievances   of   the petitioners are  that their seniority qua direct recruits is wrongly and  unjustly made  to depend  upon  the  fortuitous circumstance of  the  date  of  their  confirmation  in  the Superior  Judicial  Service;  that  even  if  a  substantive vacancy is available, the confirmation of a promotee in that vacancy is  postponed  arbitrarily  and  indefinitely,  that promotees are  treated  with  an  unequal  hand  qua  direct recruits: for  example, a promotee, despite his satisfactory performance and the availability of a substantive vacancy in which he  can be  confirmed, is  continued in an officiating capacity  until   after  a   direct  recruit  completes  his probation and  is due  for confirmation,  and that, the High Court applies the principle of rotation as between promotees and direct  recruits at the time of their confirmation when, in  fact,  that  the  relevant  rules  provide  for  is  the application of  a  rule  of  quota  at  the  time  of  their appointment.      These  grievances   of  the   promotees  can   best  be understood in  the light  of the  following facts: The three petitioners in  the Haryana Writ Petitions were selected for recruitment to  the Punjab  Civil Service  (Judicial Branch) after qualifying  in a  competitive examination.  They  were appointed as  Subordinate Judges  in 1950. By Act 3 of 1966, the State  of Haryana  came into  existence on  November  li 1966. Petitioners  1 and  2-Shri B.  S. Yadav and Shri V. P. Aggarwal- were  promoted in  an officiating  capacity to the Haryana Superior  Judicial Service on July 28 and October 7, 1967  respectively,  while  petitioner  No.  3  Shri  A.  N. Aggarwal,  was   promoted  similarly   on  March  27,  1968. Respondent 3,  Shri N. S. Rao who as a member of the Bar was working as  a District  Attorney, was  appointed directly to the Haryana  Superior Judicial Service with effect from July 7, 1970.  The normal  period of  his  two  years’  probation expired on  July 7,  1972 but  before the  issuance  of  the orders of his confirmation, a complaint dated August 2, 1977

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was received  against him.  That complaint was inquired into by a High Court Judge who, by his report of March 1973, held it to be unfounded. Respondent 3 1032 was thereupon  confirmed by the High Court as a District and Sessions Judge  with  effect  from  March  30,  1973.  By  a notification dated  May 4,  1973 that  date was corrected to July 7,  1972 being the date on which Respondent 3 completed the  two   years’   probationary   period.   By   the   same notification, the  High Court  confirmed the Petitioners and two other  promotees as  District and  Sessions Judges  with effect from  July 8,  1972. Thus,  the petitioners, who were officiating continuously in the Superior Judicial Service of the State as Additional District and Sessions Judges for two or three  years prior  to the  appointment of  Respondent  3 directly to  that service,  lost their seniority over him by being allotted  a date  of confirmation  which was  one  day later than  the date  on which he completed his probationary period.      (A small  digression  will  be  permissible  here.  The Government of  Haryana was  unwilling to concede to the High Court  the   right  to   confirm  a   Judicial  officer.  It disregarded the  High Court’s  order whereby  Shri N. S. Rao was confirmed  and passed an order reverting him to the post of a  District Attorney  which he was holding at the time of his appointment  as a District and Sessions Judge. Rao filed a Writ  Petition in the High Court to challenge the order of the Government.  The High  Court set  aside his reversion on certain other  grounds but  it held by a majority (N. S. Rao v. State  of Haryana  that the  power to  confirm  a  direct recruit vested  in the Governor and not in the High Court. A Constitution Bench  or this  Court reversed  the view of the High Court  and held  by a unanimous judgment (High Court of Punjab and  Haryana v.  State of Haryana), that the power to confirm a  District and  Sessions Judge  resides in the High Court and not in the Governor).      In the Punjab Writ Petition, the contesting parties are twenty-two promotees  who have  filed the  writ petition and Respondents 3  to 11  who were  appointed  directly  to  the Punjab Superior  Judicial Service.  Petitioner No.  1,  Shri Pritpal Singh,  was promoted to that Service on November 12, 1969 when  he was  44 years of age. Respondent 3, Shri J. S. Sekhon, was  appointed directly  to that Service on February 1, 1973  when he  was 41  years of  age. The  former, though promoted to  the Superior  Judicial Service  more than three years before  the appointment of Respondent 3, was confirmed on February 3, 1975 which was one day later than February 2, 1975 on  which  date  Respondent  3  was  confirmed  on  the completion of  his two  years’ probation.  The grievance  of Petitioner No.  1 is  that a permanent vacancy was available on December 23, 1972 in which 1033 he could  have been confirmed but the High Court marked time in order  to enable  Respondent 3  to complete his probation and gave to Petitioner 1 an arbitrary and artificial date of confirmation in  order  that  he  may  not  rank  higher  in seniority to Respondent 3.      The case of Petitioner 1 in the Punjab Writ Petition is illustrative of  the grievance  of  the  other  petitioners. Petitioners 2  to 6  were Promoted  to the Superior Judicial Service between  January 1972  and August 1972. Petitioner 7 was promoted  in April  1973, Petitioners  8 to 10 in August 1974, Petitioners  11 to  16 in 1975, Petitioner 17 in 1976, Petitioners 18  to 20  in 1977  and Petitioners 21 and 22 in 1978. Respondents 4 and 5 were recruited directly in January

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1973 and  were confirmed  in February 1975 on the completion of the probationary period. Their confirmation is open to no exception but,  Petitioners 2  and 3 Shri Amarjit Chopra and Shri H.  S. Ahluwalia  who were  promoted on  January 16 and August 21,  1972 were  confirmed on  August 6  and August 7, 1975  respectively.  The  significance  of  these  dates  of confirmation   becomes   apparent   in   relation   to   the confirmation of  respondents 6  and 7. Having been appointed directly to the Superior Judicial Service on the 1st and 2nd of April 1975, they were confirmed on the 2nd and 5th August 1976 respectively,  which was even before they had completed their probationary  period. Petitioners  2 and  3  who  were promoted to  the Superior  Judicial  Service  roughly  three years prior to the direct appointment of Respondents 6 and 7 were confirmed  on the  6th and  7th August,  1976 which was three or  four days  later than  the dates  of  confirmation allotted to  Respondents 6  and 7. Petitioners 4 to 22 whose dates of  promotion to  the Superior  Judicial Service range between August  1972 and  July 1978  were not  yet confirmed when the Writ Petition was filed on February 27, 1979.      Do the rules which apply to the members of the Superior Judicial Services  of Punjab and Haryana warrant this course of action  and how  far are  the rules  valid ? For deciding these questions  we must  necessarily have  a  look  at  the relevant rules.      The recruitment to the Punjab Superior Judicial Service and the  other conditions  of service of the members thereof are regulated  by  the  "Punjab  Superior  Judicial  Service Rules, 1963"  as amended from time to time. These rules were originally framed  by the Governor of Punjab in consultation with the  Punjab High  Court,  in  exercise  of  the  powers conferred on  the Governor by the proviso to Art. 309 of the Constitution. By that proviso, the Governor has the power to make Rules  regulating the recruitment and the conditions of service of  persons  appointed  to  services  and  posts  in connection with the affairs of the State 1034      Rules 2,  4, 8,  9, 10,  11, 12 and 14 of the aforesaid rules which  are relevant  for the  present purposes read as follows in so far as they are material:           Rule  2:   Definitions.-(1)  ’appointment  to  the      service’ means  an appointment to a cadre post, whether      on permanent,  temporary or  officiating basis,  or  on      probation;           (2) ’cadre  post’ means  a permanent  post in  the                Service;      (6) ’member of the Service’ means a person-           (a)  who immediately  before the  commencement  of                these rules,  holds a  cadre post, whether on                permanent, temporary or officiating basis, or                on probation; or           (b)     who  is  appointed  to  a  cadre  post  in                accordance  with   the  provisions  of  these                rules;      (7) ’Promoted officer’ means a person-           (a)  who is  not a direct recruit and is holding a                cadre-post whether on permanent, temporary or                officiating   basis    or    on    probation,                immediately before  the commencement of these                rules; or           (b)   who is appointed to the Service by promotion                from Punjab Civil Service (Judicial Branch).           Rule 4:  Appointing Authority-All  appointments to      the  Service   shall  be   made  by   the  Governor  in      consultation with the High Court.

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         Rule 8:  Recruitment to service-(1) Recruitment to      the Service shall be made-           (i)  by promotion  from the  Punjab Civil  Service                (Judicial Branch); or           (ii) by direct recruitment.           (2)  of the total number of cadre-posts, two-third                shall be manned by promoted officers and one-                third by direct recruits:           Provided  that  nothing  in  this  sub-rule  shall      prevent the  officiating appointment of a member of the      provincial Civil  Service (Judicial Branch) on any post      which is  to be filled up by direct recruitment, till a      direct recruit is appointed.           Rule 9:  Appointment of  direct  recruits.-(1)  No      person shall  be eligible for direct recruitment unless      he-           (i)  is not  less than  35 years and not more than                45 years  of age  on the first day of January                next  following   the  year   in  which   his                appointment is made; 1035           (ii) has  been  for  not  less  than  7  years  an                Advocate or  a pleader  and is recommended by                the High Court for such appointment           (2) No person who is recommended by the High Court      for appointment  under sub-rule  (i) shall be appointed      unless he  is found  physically fit  by a Medical Board      set up  by the  Governor and is also found suitable for      appointment in all other respects.           Rule 10:  Probation.-(1) Direct  recruits  to  the      Service shall  remain on  probation for a period of two      years, which  may be  so extended  by the  Governor  in      consultation with  the High  Court, as  not to exceed a      total period of three years;           (2) on  the completion  of the period of probation      the Governor  may, in consultation with the High Court,      confirm a  direct recruit  on a  cadre-post with effect      from a  date not  earlier than  the date  on  which  he      completes the period of probation;           (3) If  the work  or conduct  of a  direct recruit      has,  in   the  opinion   of  the  Governor,  not  been      satisfactory he  may, at any time, during the period of      probation or  the extended period of probation, if any,      in  consultation  with  the  High  Court,  and  without      assigning any  reason, dispense  with the  services  of      such direct recruits.           Rule 11:  Reversion of  promoted officers the work      of E  a promoted  officer officiating  on a  cadre-post      has,  in   the  opinion   of  the  Governor,  not  been      satisfactory, he  may, at any time during the period of      officiation, in consultation with the High Court,-           (i) revert him to his substantive post; or           (ii) deal  with him in such other manner as may be      warranted  by   the  terms   and  conditions   of   his      substantive appointment.           Rule 12: Seniority-The seniority, inter se, of the      substantive members  of  the  Service,  whether  direct      recruits of promoted officers, shall be determined with      reference   to    the   respective   dates   of   their      confirmation.           Provided  that   the  seniority,   inter  se,   of      substantive members of the Service having the same date      of confirmation shall be determined as follows:           (i)   in the  case of direct recruits the older in                age shall be senior to the younger;

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         (ii)  in   the  case   of  promoted  officers,  in                accordance with  the seniority  in the Punjab                Civil Service  (Judicial Branch)  as it stood                immediately before their confirmation; 1036         (iii)  in the  case of  promoted officers and direct                recruits, the older in age shall be senior to                the younger.           Rule 14:  Selection Grades.-(1) The members of the      Service shall be eligible for promotion, permanently or      provisionally, to  the following selection grade posts,      carrying scales  of pay  specified  against  them:  Two      Selection Grade  posts in  the time  scale of Rs. 1800-      100-2000; and  Two Selection Grade posts at a fixed pay      of Rs. 2,250.           (2) Promotion  to the  Selection grade posts shall      be made  on merit  and suitability in all respects with      due regard  to seniority  and no  member of the Service      shall be entitled as of right to suck promotion.      Appendix to  the rules  shows that  the Punjab Superior Judicial Service  consisted then  of  20  posts:  one  Legal Remembrancer   and    Secretary   to   Government,   Punjab, Legislative Department; 15 District and Sessions Judges; and 4 Additional District and Sessions Judges.      These rules  were amended  from time  to time  with  or without the  consultation of  the High  Court. The  relevant amendments are these:      On February,  1966 the  Governor of Punjab, in exercise of the  powers conferred  by the  proviso to Art. 309 of the Constitution and  all other  powers  enabling  him  in  this behalf, promulgated  the "Punjab  Superior Judicial  Service (First Amendment)  Rules, 1966".  By clause 2 of these rules the following  proviso was  added to sub-rule (1) of rule 10 of the 1963 Rules:           "Provided that  the Governor  may  in  exceptional      circumstances or  any case,  after consulting  the High      Court, reduce the period or probation".      On  December  31,  1976  the  Governor  of  Punjab,  in exercise of  the powers conferred by the proviso to Art. 309 of the  Constitution and  all other  powers enabling  him in this behalf,  made the  "Punjab  Superior  Judicial  Service (Second Amendment)  Rules, 1976"  in consultation  with  the High Court  of Punjab  and Haryana.  These rules  were given retrospective effect  from April  9, 1976.  Rule 2(2) of the 1963 Rules  defined a  ’cadre post’ to mean a permanent post in the  service. Clause  2 of  the  Second  Amendment  Rules substituted the  following sub-rule  (2) in  rule 2  for the original sub-rule:       "2(2) ’cadre post’ means a permanent or temporary post           in the service . 1037 Rule 12 of the 1963 Rules provided that the seniority, inter se, of  the substantive  members  of  the  Service,  whether direct recruits  or promoted  officers, shall  be determined with  reference   to   the   respective   dates   of   their confirmation.  Clause   3  of  the  Second  Amendment  Rules substituted the following rule for the original rule 12:           "12. Seniority.-The  seniority, inter  se, of  the      members of  the service,  shall be  determined  by  the      length of  continuous ser vice on a post in the Service      irrespective of the date of confirmation;           Provided that in the case of two members appointed      on the  same date,  their seniority shall be determined      as follows:           (i)  in the  case of direct recruits, the older in

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              age shall be senior to the younger;           (ii) a  member  recruited  by  direct  appointment                shall  be   senior  to   a  member  recruited                otherwise; and           (iii)    in  the  case  of  members  appointed  by                promotion,  seniority   shall  be  determined                according to the seniority of such members in                the  appointments   from  which   they   were                promoted."      This is  how the  rules stand in so far as the State of Punjab  is   concerned.  The  State  of  Haryana  came  into existence on  November 1,  1966 by Act 3 of 1966. The Punjab Superior Judicial  Service  Rules,  1963,  as  amended  upto November 1966  apply  to  the  State  of  Haryana  with  the amendments made  from  time  to  time  by  the  Governor  of Haryana.      On March  17, 1971  certain formal amendments were made to the  1963 Rules  by the  Haryana First  Amendment  Rules, 1971. On April 21, 1972 the Governor of Haryana, in exercise of the powers conferred by the proviso to Article 309 of the Constitution and  all other  powers  enabling  him  in  that behalf,  amended   the  1963  Rules  by  the  Haryana  First Amendment Rules,  1972, with retrospective effect from April 1, 1970.  By Clause  3 of  the Amendment,  the definition of "cadre post"  in Rule  2(2) was  amended  to  mean  a  post, whether permanent or temporary, in the service. Rule 8(2) of the 1963  Rules provided  that the  total  number  of  cadre posts, two-third  shall be  manned by  promoted officers and one-third by  direct recruits.  Clause 5  of  the  Amendment altered this  ratio by providing that of the total number of posts, three-fourth shall be manned by promoted officers and one-fourth by  direct recruits.  Rule 12 governing seniority was amended  by clause  6 in  the same  manner as in Punjab, that is to say, 1038 by providing  that the  seniority  of  the  members  of  the service, whether direct recruits or promoted officers, shall be determined by the length of continuous service (in a post in the  service irrespective of the date of confirmation. As an aside  we may  mention, though it has no direct relevance in the  points under consideration, that on December 3, 1976 the Governor in the exercise of his constitutional and other power promulgated an amendment providing that:      "No person-      (a)  who has  more than  two children  and has  not got           himself  or   herself  or   his  or   her   spouse           sterilized, or      (b)   who, having  not more than two children, does not           give an  undertaking not  to have  more  than  two           children. shall be allowed to Join the Service." On September,  2, 1977  the Governor  in the exercise of his constitutional and  other powers  further amended  the  1963 Rules with  retrospective effect  from April  1,  1970.  The definition of  ’cadre post’  in rule  2(2)  was  once  again amended  to   mean  "a   permanent  post  in  the  Service". Similarly,  Rule   8(2)  was  amended  for  the  purpose  of restoring the  quota between  promotees and direct recruits. Once again,  two-third of  the cadre posts were to be manned by promoted  officers and one-third by direct recruits. Rule 12, which  deals with  seniority, was  also amended so as to restore  the   original  position   by  providing  that  the seniority of  members of the Service will be determined with reference to  the  dates  of  confirmation.  In  short,  the Haryana  First  Amendment  Rules,  1977,  which  were  given

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retrospective effect  from April  1,  1970,  superseded  the amendments made  by the  Haryana First Amendment Rules, 1972 and restored  the position  as it  obtained originally under the 1963 Rules, in regard to the definition of ’cadre post’, the quota between promotees and direct recruits and the rule of seniority.      Ever since  November 1,  1966 when the State of Haryana was formed,  there has  been a  common High  Court  for  the States of Punjab and Haryana called the High Court of Punjab and Haryana.  Two separate  High Courts were not created for these two  States  probably  because  of  considerations  of viability in  regard to  one of  the States  and the need to foster a  spirit of  national integration.  But the  fact of there being  two separate  Governors for the two States with independent powers  under the  proviso to Article 309 of the Constitution has  made the  task of the High Court difficult and unenviable.  The Chief  Justice and Judges of the Common High Court  of the two States are faced with the predicament of applying  one set  or service  rules to  members  of  the Superior  Judicial  Service  of  one  State  and  a  totally different, 1039 and to a large extent opposite, set of rules to those of the other State.  As the matter stands to-day, (and we mean what we say  because there  is no  knowing when  one or the other State  will   amend  the  rules  and  with  what  degree  of retroactivity) under  the  Haryana  First  Amendment  Rules, 1977, ’cadre  post’ means  a permanent  post in the Service. Temporary posts  are not  cadre posts in Haryana. In Punjab, ’cadre post’ means both permanent and temporary posts in the Superior Judiciary.  The definition  of ’cadre  post’ has  a significant bearing  on the  fortunes and future of judicial officers. In Punjab, prior to the amendment made to the 1963 Rules on  December 31,  1976  promotees  alone  used  to  be appointed, though  on an  officiating  basis,  to  temporary posts in the Superior Judicial Service. Direct recruits were not appointed  to temporary  posts because  temporary  posts were outside the cadre and C. direct recruits were appointed to cadre  posts only,  in which  they were  entitled  to  be confirmed on  the completion  of  the  probationary  period. After the  amendment, applications  were invited  for direct recruitment to  temporary posts  also with  the result  that promotees lost  the opportunity  of being appointed to those posts, though  on an  officiating basis. Respondents 9 to 11 in the  Punjab writ petition were appointed directly in July 1977 to  temporary posts  of Additional District and Session Judges.      In regard  to the rule of seniority, the position as it obtains in  the two  States is  fundamentally different:  In Punjab, under  rule 12  as amended on December 31, 1976 with retrospective  effect  from  April  9,  1976,  seniority  is determined by  the length  of continuous  service on  a post irrespective of  the date  of confirmation. In Haryana, rule 12 as it stood originally was revived with effect from April 1, 1976 with the result, that seniority of judicial officers in  the   Superior  Judicial   Service  is  determined  with reference to  the dates  of confirmation. The High Court has to deal  with one  set of  officers under its control on the basis that the date of confirmation is the correct criterion of seniority  and with  another set  of officers, also under its control,  on the  basis that  the length  of  continuous officiation in  a  post  is  the  true  test  of  seniority. Whatever decision  the High Court takes or is driven to take administratively in  the matter  of  seniority  of  judicial officers becomes  a bone of contention between the promotees

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and direct  recruits. Sometimes, the administrative decision satisfies neither  the one class nor the other, leading to a triangular controversy. The frequent amendments to the rules which are  often given  a long retrospective effect, as long as seven years, makes the High Court’s administrative 1040 task difficult.  And  if  the  amendments  are  made  either without consulting the High Court or against its advice, the High Court  has a  delicate task  to perform  because if  it adheres to  its opinion,  it is  accused of  bias and  if it gives up  its stand,  it is  accused of being weak kneed and vacillating. The  administrative decisions taken by the High Court in  the instant  cases from  time to  time  have  been assailed by  members of the Judiciary on one or the other of these grounds.  That is  hardly conducive  to the  sense  of discipline and  the feeling  of brotherhood  which ought  to animate the  Judiciary. Surely,  the  State  Governments  of Punjab and Haryana could have saved the High Court from this predicament by  evolving a common set of rules of seniority, at least  in the  name of  national  integration.  There  is nothing peculiar  in the  soil of Punjab and nothing wanting in the  soil  of  Haryana  to  justify  the  application  of diametrically opposite  rules of  service  to  the  judicial officers of  the two  States. The  territories comprised  in these two  States were  at one time, and that too not in the distant past,  parts of  the territory  of the same State of Punjab. The  promotees, at  any rate,  who figure  in  these proceedings, all  flowered on the soil of Punjab but are not told that  their claim to seniority will depend upon whether they remained in Punjab or were allotted to Haryana.      This unfortunate position has arisen largely because of the failure  of the State Governments to take the High Court into confidence  while amending  the rules  of service.  The amendments  made   in  Punjab   on  December  3,  1966  with retrospective effect  from  April  9,  1976,  including  the amendment to  rule 12  governing seniority, were made in the teeth of  opposition of the High Court and indeed, in so far as tho  retrospective effect  of the rules ii concerned, the amendment was  made without  consulting the  High Court.  In Haryana, rule  12 was  amended in  1972  with  retrospective effect from April 1, 1970 contrary to the advice of the High Court. The  plain infirmity  of that amendment could be that it was  designed to operate to the detriment of one and only one judicial  officer who  was  directly  recruited  to  the Superior Judicial  Service, namely,  Shri. N. S. Rao, who is respondent No. 3 to the Haryana Petitions. The original rule 12  was,   however,  subsequently,  restored  by  the  State Government by yet another amendment dated September 4, 1977. There was  a change in the Government which evidently led to a change  in the  rules, as if service rules are a plaything in  the  hands  of  the  Government.  This  only  shows  how essential  it   is  for  the  Governors,  though  not  as  a constitutional requirement, to consult the High Court before framing rules  under the  proviso  to  Article  309  of  the Constitution. Consultation,  be it said is not to be equated with the  formal process  of  asking  the  High  Court  what opinion it holds on a particular issue. Consultation is a 1041 meaningful prelude  to the proposed action, whereby the High Court is afforded an opportunity to discuss the matter under consideration and  to meet  the Government’s  or  Governor’s reasons for  the proposed  action. In  the instant case, the High Court  could have made an effort to persuade one or the other Governor  to see  its point of view; or else, it could at  least   have  impressed   upon  the  two  Governors  the

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imperative need  to adopt  an identical pattern of rules for the two States which are blessed with a common High Court.      Little wonder  then that  the Superior Judicial Service of the  two States  was thrown  into a  state of turmoil and uncertainty. Neither  promotees  nor  direct  recruits  felt secure about  their existing  rank or  seniority because the rules were  being amended  from time to time, sometimes just to suit  the convenience, sometimes to tide over a temporary crisis, sometimes to appease a class of officers who shouted louder  and   at  least  once  in  order  to  strike  at  an individual. The  amendments to  the rules  led to a spate of representations from  the members of the service to the High Court and  human nature  being what it is, Judicial Officers were  not   wanting  who  sought  the  intercession  of  the concerned State Government in order to advance the interests of an  individual or  the interest  of a  class. Once it was known that  the Governor could ignore or defy the High Court while framing  rules of service, the centre of power shifted from the Nyayalaya to the Mantralaya which is an undesirable state of  affairs because  thereby the  very independence of the Judiciary is put in jeopardy.      Questions regarding  confirmation,  seniority  and  the equitable integration  of direct  recruits and promotees had plagued the  High Court  for nearly two decades, even before the separate  State of  Haryana was  formed. These questions were further complicated by the changes brought about in the rules of  1963 by the respective State Governments of Punjab and Haryana. The case of Shri N. S. Rao, who is respondent 3 to the Haryana Writ Petition, is an eloquent illustration of the  effect  of  the  amendments  made  to  the  rules  with retrospective effect.  At the  time  when  the  Governor  of Haryana amended  the rules in 1972 with retrospective effect from April  1, 1970,  Shri N.  S. Rao  was the  only  direct recruit in  the Haryana  Superior Judicial  Service. He  was appointed on  probation on  July 7,  1970. The amendment was given retrospective  effect from  April 1,  1970, as  if  to demote him and him alone.      In so  far as  the Haryana Writ Petitions are concerned some time in February 1972 the Punjab and Haryana High Court took  up  the  question  of  confirmation  of  some  of  the promotees, including  the petitioners, against the permanent posts which fell within the quota 1042 of promotees out of the six permanent posts which were newly created w.e.f. January 18, 1972. Before the High Court could decide the question of confirmation of the promotees against the aforesaid  posts, respondent  3 made a representation to the High  Court on  February 13,  1972 contending  that  the ratio of  2: 1 between the promotees and direct recruits had to be  maintained at all stages, that is to say, not only at the time  of appointment  but at  the time  of  confirmation also.  The   High  Court   appears  to  have  postponed  the confirmation of  the promotees in response to respondent 3’s representation. Later respondent 3 was confirmed with effect from July  7,  1972.  Five  promotees  including  the  three petitioners were  confirmed w.e.f.  July 8, 1972, that is, a day after  respondent  3  was  confirmed.  The  Governor  of Haryana refused  to recognise  the order  of confirmation of respondent 3  passed by  the High  Court and he reverted the latter to  the post  of a  District Attorney w.e.f. June 23, 1973. Respondent  3 challenged the order of his reversion by Writ Petition  No. 2147 of 1973. The Petition was heard by a special Bench  of five  Judges of  the High  Court which set aside the  order of  reversion of respondent 3 but held by a majority that  the  order  of  respondent  3’s  confirmation

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passed by  the High  Court was  invalid since  the power  to confirm a  District &  Sessions  Judge  was  vested  in  the Governor and not in the High Court. The Judgment of the High Court  is  reported  in  Narendra  Singh  Rao  v.  State  of Haryana(1). The  view of  the High Court regarding the power of confirmation  was set aside by this Court by its judgment dated January  24, 1975  in High Court of Punjab and Haryana v. The  State of Haryana.(2). It was held by this Court that the power  to confirm  a District and Sessions Judge resides in the High Court and not in the Governor.      Petitioner No.  1 then made representations to the High Court on  February 12  and March  31, 1975  contending  that recruitment to the Superior Judicial Service was governed by a rule  of quota  only and not also by the rule of rotation; therefore, it  was not  open to  the High  Court to  give an arbitrary date of confirmation to the promotees. Petitioners 2 and  3 also made similar representations. In the meanwhile the Governor of Haryana amended rule 12 by the Haryana First Amendment Rules  1972 providing  that the  seniority of  the members  of   the  Service,   direct  recruits  or  promoted officers,  shall   be  determined   by  the  length  of  the continuous service  on a post in the service irrespective or the date  of confirmation.  In pursuance  of that amendment, the High  Court decided  by an  administrative  order  dated November 2, 1975 that the Petitioners were senior to 1043 respondent 3. It does not, however, appear to have taken any decision on  the representations of the petitioners that the rule  of   rotation  cannot   be  applied  at  the  time  of confirmation.      Aggrieved by  the order  of the  High  Court  that  the petitioners were  senior to  respondent 3  by reason  of the amended rule 12, the latter filed yet another writ petition, No. 100  of 1977, in the High Court challenging the vires of the amended  rule 12.  During  the  pendency  of  that  Writ Petition, the Governor of Haryana amended the rules again by a  notification  dated  September  2,  1977  rescinding  the amendment  introduced  to  the  rules  in  April  1972.  The original rule  12 thus  having been restored, the High Court dealt with respondent 3’s writ petition on the basis that he had automatically become senior to the petitioners. The High Court therefore  confined its  judgement to  the question of inter se  seniority between  respondent 3  and  Shri  J.  M. Tandon (now  a Judge of the High Court). The representations of the  petitioners appear to have been rejected by the High Court since  on June  6, 1978  respondent 3  was granted the selection grade,  presumably on the basis that he was senior to the  petitioners. It  is thereafter  that the petitioners filed these writ petitions (4228 to 4230 of 1978) under Art. 32 of the Constitution, claiming the following reliefs:      (a)  a writ of certiorari directing respondents 1 and 2           (the State of Haryana and the High Court of Punjab           & Haryana  respectively) to  quash the order dated           May 4,  1973 where  by respondent  3 was confirmed           w.e.f. July  7, 1972  and the  order dated June 6,           1978 granting the selection grade to him;      (b)   a writ of mandamus declaring rule 12 of the Rules           as violative  of the  fundamental  rights  of  the           petitioners guaranteed under Articles 14 and 16 of           the Constitution; and      (c)   a writ  of prohibition  restraining respondents 1           and 2  from taking any action on the new seniority           list or  in pursuance  of the  orders dated May 4,           1973 and June 6, 1978.      This is  the genesis  of the  controversy  between  the

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promotees and direct recruits in Haryana. In Punjab, matters were in  no better  shape, though  it must  be said  to  the credit of  its Governor  that no  amendment was made with an evil eye  on any  individual Judicial  Officer. In 1975, the Association of  promoted officers  made a  representation to the State Government asking that in order to avoid arbitrary dates  of   confirmation  being   given  to  the  promotees, continuous officiation  in the  service and  not the date of confirmation  should   be  accepted   as  the  criterion  of seniority, as was done in the case of 1044 other  employees   of  the   Punjab  Government.  The  State Government forwarded  that representation  to the High Court for its comments but the High Court appears to have kept the matter pending  with it  for quite  some time.  Sometime  in 1976,  the   State  Government   ultimately  sent   a  draft notification to the High Court proposing an amendment to the Rules. It  seems that  the Government did not then convey to the High Court its intention to give retrospective effect to the proposed  amendment. By  that time, ten vacancies in the quota of promoted officers had become available and an equal number of  promoted officers  was officiating  for more than three years  as Additional District and Sessions Judges. The High Court,  however, did not confirm the promotees in those vacancies. On  the contrary,  apprehending that the proposed amendment to  rule 12 may be given retrospective effect, the High Court  confirmed the  promotees and the direct recruits by applying  the rule  of rotation. It issued a Notification dated August  25, 1976  which was  published in  the  Punjab Government  Gazette   dated  September   3,  1976,   whereby Respondents 3 to 8 were given prior dates of confirmation in comparison with  the promotees.  The confirmation  of  eight promotees  was   evidently  postponed.   In  the   case   of respondents 6 to 8, the period of probation of two years was reduced by  the High Court substantially. Respondent 6, Shri B. S. Nehra, was appointed on probation on April 1, 1975 and was confirmed  on August  2, 1976.  Respondent 7, Shri T. S. Cheema, was  appointed on probation on April 2, 1975 and was confirmed on  August 5,  1976. Respondent 8 Shri J. S. Sidhu was appointed  on April  11, 1975  and  was  confirmed  with effect from August 8, 1976. Thus, these direct recruits were confirmed within  a period of one year and four months after their appointment,  though the normal period of probation is two years.      On the  issuance of  the Notification  dated August 25, 1976, petitioner  1 addressed  a representation  to the High Court stating  that  he  was  officiating  in  the  Superior Judicial Service  with effect  from November  12,  1969  and asking that  he should be confirmed in the post which became available from  December 23, 1972. He complained against the date of  confirmation, February  3, 1975, allotted to him as arbitrary.      Rule 12  of the  Rules was  thereafter amended  by  the Governor of Punjab by a Notification dated December 31, 1976 which was  given retrospective effect from April 9, 1976. By that amendment, Seniority was to be determined by the length of continuous service on a post in the service, irrespective of  the   date  of   confirmation.  The   direct   recruits, respondents 4  to 9,  addressed a representation to the High Court contending that their seniority as fixed by the High 1045 Court’s Notification  dated August  23, 1976, with reference to the  respective dates of their confirmation, ought not to be disturbed. They also challenged the validity of rule 12.      For the purpose of considering those conflicting claims

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of promotees and direct recruits, the High Court constituted a  sub-committee   consisting  of   three  Judges,   S.   S. Sandhawalia (now Chief Justice), Bhopinder Singh Dhillon and Gurnam Singh,  JJ. The  Committee gave  an oral  hearing  on February 7, 1979 to the representatives of the promotees and direct recruits. The High Court, however, has not readjusted the seniority  of the  promotees and  direct recruits in the light of amended rule 12.      It is  interesting that  before the Sub-Committee heard the representatives  of the promotees and direct recruits, a Full Bench  of five  Judges of  the High Court of Punjab and Haryana, delivered  its judgment  on December  13,  1977  in Civil Writ  100 of  1977 which  was filed by Shri N. S. Rao, who  is  respondent  3  in  the  Haryana  petition.  By  the aforesaid judgment  which is  reported in AIR 1978 (P and H) 234, the  High Court  rejected the plea of Shri Rao that the rules not  only required  the application of a rule of quota at the  time of  appointment  but  they  also  required  the application  of   a  rule   of  rotation   at  the  time  of confirmation.  At   page  240  of  the  report  appears  the conclusion of  the High Court to the effect that rules 8 and 12 were  independent of  each other,  that rotational system could not  be implicitly read in the quota rule provided for by rule  8 and that members of the Superior Judicial Service were entitled to claim seniority strictly in accordance with the provisions of rule 12. The grievance of the promotees is that this  decision which  was rendered by the High Court in the exercise of its judicial functions is not being followed by the  High Court  in the  discharge of  its administrative duties. After  the amendment  of rule 12 by the Notification dated December  31, 1976,  two  vacancies  of  District  and Sessions Judges  arose and  on each  of these  occasions the High Court  promoted a  direct recruit, treating the date of his confirmation  as the  criterion  of  seniority.  In  the quarterly Gradation and Distribution list of officers of the Judicial Department  which the  High  Court  publishes,  the inter se  seniority has been shown according to the dates of confirmation and not in accordance with the amended rule 12. One of  the grievances  of the  promotees is  that the  High Court amended  the quarterly  Gradation List  in  compliance with the  amendments made by the Governor of Haryana in rule 12 but  it did  not amend  the Gradation  List of the Punjab Officers in compliance with the amended rule 12. 1046      This, according to the petitioners, has deeply affected their sense  of security,  contentment and well-being. It is said that  eight more  vacancies arose  within the  quota of promotees after the High Court issued the Notification dated August 25,  1976 but the promotees, who were officiating for a period  of more  than  three  years,  have  not  yet  been confirmed in those posts.      One of  the other grievances of the petitioners is that the High Court acted upon the amendment made by the Governor of Punjab  on December  31, 1976 in the definition of ’cadre post’ by  appointing direct  recruits to  temporary posts in the Superior  Judicial Service. It however ignored the other amendment  effected   by  the   same  Notification,  namely, amendment to  rule 12, under which continuous officiation is the test of seniority.      Being aggrieved  by the  Gradation List prepared by the High Court, the promotees in Punjab have filed Writ Petition 266 of 1979 in this Court claiming the following reliefs:      (i)   an appropriate  writ or  direction  quashing  the           impugned notification dated 25th August, 1976;      (ii) a  writ of  mandamus directing  the High  Court to

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         discharge   its   constitutional   obligation   to           redetermine the,  seniority inter  se of  all  the           members of the Punjab Superior Judicial Service in           accordance with  the provisions  of  rule  12,  as           amended by  the notification  dated  December  31,           1976 and  to make corrections in the Gradation and           Distribution Lists, accordingly;         (iii)  an  appropriate  writ,  directing  the  State           Government and  the  High  Court  to  confirm  the           petitioners with  effect from  the dates  that the           vacancies arose  and  became  available  in  their           quota without applying the rule of rotation;      (iv) an  appropriate writ  directing the  High Court to           consider afresh  the matter  of  filling  up  four           vacancies of  District and  Sessions Judges  which           occurred  after   9-4-1976  and  to  readjust  the           seniority and  respective dates of confirmation of           the  petitioners   and  respondents  3  to  11  in           accordance with the amended rule 12;      (v)   a writ  of prohibition  restraining the  State of           Punjab and  the High  Court from  acting upon  the           seniority fixed prior to the amendment of rule 12,           for  any  purpose  whatsoever,  including  further           promotions within the Service; and      (vi) a writ of certiorari quashing rule 11 of the Rules           as being  violative of  the fundamental  rights of           the petitioners  guaranteed under  Articles 14 and           16 of the Constitution. 1047      These then are the respective grievances and demands of the promotees  and direct  recruits in the Superior Judicial Services of  Punjab and Haryana. In so far as the High Court is concerned,  its point  of view  may best be stated in the language of the report dated May 2, 1978 which was submitted by the Sub-Committee consisting of its three learned Judges. After setting  out the  background of  the controversy,  the report says:           "It is  in the aforesaid context that the question      pointedly   and    squarely   arises,    whether    the      determination  of  seniority  of  the  members  of  the      Service is  a matter  which  is  within  the  exclusive      jurisdiction  of   the  High   Court  as   a  necessary      consequence of  the control  vested in  it by virtue of      Article 235  of the  Constitution of  India. If that be      so, then  it is plain that any intrusion into the field      of this control by any agency other than the High Court      would be  unwarranted and  therefore, unconstitutional.      We are  of the  firm view  that both  on principle  and      logic  and   in  view  of  the  trend  of  the  present      authorities, it  appears to be plain that the Seniority      of the  members of  the judicial Service is so integral      and vital  to the  control of the High Court over them,      that any  erosion thereof  would both  be violative  of      Article 235 of the Constitution and equally run counter      to the settled concept of the independence of judiciary      which is  now coming  to be  recognised  as  the  basic      feature of  the Constitution..  it follows  a  fortiori      that if  seniority of  the members of Superior Judicial      Service is  once deemed to be not within the control of      the High  Court under  Article 235,  then, in  fact, it      could be  determined by the State Governments by making      rules without  even reference  or consultation with the      High Court.  Such a position would be utterly anomalous      and wholly  destructive of  the exclusive  control over      the district  courts  and  courts  subordinate  thereto

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    vested in  the High Court by Art. 235. It appears to be      well-settled both  on principle and precedents that the      power of  determining the  seniority of  the members of      the Service  cannot possibly  be vested in an authority      other than  the High  Court. For  example, it cannot on      the existing  provisions be  vested in  the Governor or      the State  Government. Therefore, it appears to us that      what the State Government cannot do directly, it cannot      be allowed  to do  indirectly by  framing rules even by      the exercise  of executive power vested in it by virtue      of Article 309 and without even consulting or informing      the High  Court. It is, however, well-settled that Art.      309  is   subject  to   the  other  provisions  of  the      Constitution.   Therefore,   the   control   over   the      subordinate judiciary vested in the High Court 1048      by Article  235 must  necessarily override  Article 309      wherever  the   two  happen   to   conflict   at   all.      Consequently, if  seniority is  exclusively within  the      ambit of  the control of the High Court, then it cannot      be surreptitiously  intruded upon either directly or by      devious method  of  framing  rules  under  Article  309      without even  reference or  consultation with  the High      Court."           "The true  rationale underlying the ratio of N. S.      Rao’s  case  and  the  subsequent  decisions  of  Their      Lordships of  the Supreme  Court to  which a  reference      would follow appears to be that in the field of control      over the district courts and courts subordinate thereto      under article  235, there  cannot be  a duality.  There      cannot exist  control by the High Court on the one hand      and by  the State  Government or  the Governor  on  the      other. Therefore,  the situation that seniority must be      determined by the State Government without reference or      consultation with the High Court cannot be countenanced      in principle.  To our  mind  this  would  be  a  patent      example of a duality of control against which the final      Court has firmly set its face."           "On principle,  therefore we  are of the view that      the seniority  of the  members of the Superior Judicial      Service is  exclusively within  the control of the High      Court under  Article 235  and the  State Government is,      therefore, not  competent to  frame or alter rules with      regard thereto". After examining  the decisions  of this Court and of various High Courts, the report concludes thus:           "Both on  principle and  precedents we  are of the      view that  the  Seniority  of  the  members  of  higher      Judicial  Service   being  vested  entirely  under  the      control of  the High  Court cannot  be intruded upon by      the framing  and  re-framing  of  rules  by  the  State      Government, which  it is  not  competent  to  make  and      consequently rule  12 is  ultra vires of Article 235 of      the Constitution."           "Once we  arrive at  that finding,  it is  obvious      that  till   the   vires   of   the   said   rule   are      authoritatively pronounced  upon on  the judicial side,      no firm  basis can exist for determining the individual      seniority inter  se of  the members of the Service-both      direct   recruits   and   promotees-whose   innumerable      representations are  before  the  Committee.  The  High      Court has  earlier taken action on the basis of some of      the  earlier   amendments  to  the  rules  and  on  the      administrative side it would be obviously inept to take      up a contradictory position now. Even otherwise it does

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    not appear appropriate to us in the present case to act 1049      administratively  in   violation   of   the   purported      promulgation of  statutory rules on the point. There is      thus no  choice but  to place the matter squarely for a      binding and authoritative decision on the judicial side      forthwith."           "The High  Court inevitably is the guardian of the      independence and  integrity of the subordinate judicial      service, whose  control is  constitutionally vested  in      it. As  an institution,  it is fundamentally interested      in the  maintenance of these traits. We are of the view      that it  would be  invidious to push a private litigant      or any  one of  the affected  members of  the  judicial      service to  a  court  of  law  to  seek  the  necessary      decision. This  burden, therefore, must also be carried      by the High Court. We would consequently recommend that      the  Registrar  be  directed  to  immediately  initiate      necessary  proceedings   under  Article   226  of   the      Constitution of India on behalf of the High Court."           "Once it  is settled  that  the  determination  of      seniority of  the  members  of  the  Superior  Judicial      Service vests exclusively in the High Court, then there      is no  manner of  doubt that  such  control  inevitably      implies the power of framing rules to make the exercise      of such  control feasible,  convenient  and  effective.      This has  been recently  settled  in  the  Constitution      Bench judgment  reported in  State of U.P. v. Tripathi,      AIR 1978 (Vol. 2) S.C. Cases page 102. We have no doubt      in our  mind that  rules for  the determination  of the      seniority inter  se of  the  members  of  the  Superior      Judicial Service  can be  framed to the satisfaction of      both the wings of the promotees and direct recruits".      The Haryana  Writ Petition  was filed  in this Court by the promotees  in July 1978 and the Punjab Writ Petition was filed in  February 1979.  The High  Court was thereby spared the need  to have  a Writ  Petition filed  under Article 226 before itself  and the  embarrassment of  being required  to decide it.      The arguments advanced before us by the learned counsel for the promotees, direct recruits, the High Court of Punjab and Haryana,  the Government of Punjab and the Government of Haryana cover  a wide  range but  on a  careful analysis  of those arguments, the questions raised by the counsel resolve themselves into  two issues. They are: (1) whether the power to frame  rules of  seniority of District and Session Judges vests in  the Governor  or in the High Court and (2) whether the High  Court, basing  itself on  the rule  of  quota,  is justified in  applying the  rule of  rotation at the time of the  confirmation   of  promotees  and  direct  recruits  as District and Session Judges. 1050      The decision  of the  first  question  depends  on  the scope, meaning  and purpose  of the  provisions contained in Article 309 and Article 235 of the Constitution. Article 309 reads thus:           "309.  Subject   to   the   provisions   of   this      Constitution, Acts  of the  appropriate Legislature may      regulate the  recruitment, and conditions of service of      persons appointed,  to public  services  and  posts  in      connection with  the affairs  of the  Union or  of  any      State:           Provided  that  it  shall  be  competent  for  the      President or  such person  as he may direct in the case      of services and posts in connection with the affairs of

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    the Union,  and for  the Governor  of a  State or  such      person as  he may  direct in  the case  of services and      posts in  connection with  the affairs of the State, to      make  rules   regulating  the   recruitment,  and   the      conditions of  service of  persons appointed,  to  such      services and  posts until  provision in  that behalf is      made by  or under an Act of the appropriate Legislature      under this  article, and  any rules  so made shall have      effect subject to the provisions of any such Act". Article 235 reads thus:           "235. The  control over district courts and Courts      subordinate thereto including the posting and promotion      of, and the grant of leave to, persons belonging to the      judicial service  of  a  State  and  holding  any  post      inferior to  the post of district judge shall be vested      in the High Court, but nothing in this article shall be      construed as taking away from any such person any right      of appeal  which he  may have  under the law regulating      the conditions  of his  service or  as authorising  the      High  Court   to  deal   with  him  otherwise  than  in      accordance  with   the  conditions   of   his   service      prescribed under such law."      It is  urged by  Shri V.  M. Tarkunde  who  appears  on behalf of  the promotees in Haryana that if the two parts of Article 235  are read  together, it will be obvious that the control which  the High  Court is  entitled to exercise over District Courts  and courts  subordinate  thereto  does  not include the power to make rules regulating the conditions of service of  judicial  officers.  According  to  the  learned counsel, the  power which  the Constitution has conferred on the Governor  by the proviso to Article 309 is a legislative and not an executive power; and since the Governor exercises a legislative  power while making rules under the proviso to Article 309,  the  principle  of  the  independence  of  the judiciary is  not in  any manner  violated thereby. Judicial independence, says the Counsel, means freedom from executive interference, not freedom from laws. 1051      Shri A.  K. Sen, Shri S. N. Kackkar, Dr. Y. S. Chitale, Shri F.  S. Nariman  and  Shri  B.  R.  Tuli  supported  the argument of  Shri Tarkunde  by citing  various decisions  of this Court  and of the High Courts, the connected provisions of the  Constitution and  the  debates  of  the  Constituent Assembly. On the other hand, it was contended by the learned Solicitor General,  Shri Sorabji,  who appears  on behalf of the High  Court that  the paramount object of Article 235 is to secure the independence of the judiciary by insulating it from executive  interference, which  postulates that once an appointment of  a judicial  officer is  made, his subsequent career should  be under  the control  of the  High Court. He should not  be exposed  to the  possibility of  any improper executive pressure in the course of his judicial career. The control over  the subordinate  judiciary, which is vested in the High  Court by  Article 235,  is  exclusive  in  nature, comprehensive in  extent and  effective in  operation. There can be  no duality  in these  matters,  says  the  Solicitor General, and therefore the power to frame rules in regard to seniority of judicial officers must reside in the High Court and not  in the  Governor. That,  according to the Solicitor General, is  a necessary consequence of the control over the subordinate courts which is vested in the High Court.      There is no direct decision on the question whether the Governor, in  the exercise of power conferred by the proviso to Article  309, has the power to frame rules regulating the seniority of  judicial officers of the State. The reason for

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the absence of precedent on this point, when law reports are overflowing with  constitutional decisions, probably is that during  the   last  thirty  years  of  the  working  of  our Constitution, no one ever disputed the power of the Governor to frame  rules governing seniority of judicial officers. In several States  such rules  are in force in the absence of a law passed  by the State legislature on the subject and High Courts have  been applying those rules from time to time and case to  case without  demur. It  is also  significant  that hardly any  High Court  has framed  rules  of  its  own  for determining the seniority of its judicial officers. Even the High Court  of Punjab  and Haryana, which disputes the right of the Governor so to frame rules, has not made any rules of its own  to occupy  that field.  All this,  which  is  stark history, cannot be dismissed by saying that the absence of a precedent is no authority for holding that what has not been challenged is  lawful. It  is true  that the  novelty  of  a contention cannot be its infirmity and indeed law would have remained static  and stagnant  if it had not been allowed to grow from 1052 case to  case. But the point of the matter is that there has been no unconcerned acquiescence by High Courts and judicial officers in  rules  framed  by  the  Governors.  In  Haryana itself,  respondent  3,  Shri  N.  S.  Rao,  challenged  the Governor’s power  to override  the order of his confirmation which was  passed by  the High  Court. And  he won. Whenever there was  the semblance  of a  justification for  doing so, either one or the other party motivated by personal interest or out  of the  broader consideration  that the High Court’s controlling   jurisdiction   must   remain   inviolate   has challenged  the  rules  framed  by  the  Governor  as  being excessive. But  there is  a good  reason why  the  rules  of seniority framed  by the  Governor have  been acquiesced in, all over the country, over all these years. The reason is as follows:      On a  plain reading  of Articles  235 and  309  of  the Constitution, it  is clear  that the  power to  frame  rules regarding seniority  of officers  in the judicial service of the State  is vested  in the  Governor and  not in  the High Court. The  first part of Article 235 vests the control over district courts  and courts  subordinate thereto in the High Court. But the second part of that article says that nothing in the  article shall  be construed  as taking away from any person belonging  to the  judicial service  of the State any right of  appeal which  he may have under the law regulating the conditions  of his  service or  as authorising  the High Court to deal with him otherwise than in accordance with the conditions of  his service  prescribed under such law. Thus, Article 235  itself defines  the outer  limits of  the  High Court’s power of control over the district courts and courts subordinate thereto.  In the first place, in the exercise of its control over the district courts and subordinate courts, it is  not open to the High Court to deny to a member of the subordinate judicial  service of  the  State  the  right  of appeal  given   to  him  by  the  law  which  regulates  the conditions of  his service. Secondly, the High Court cannot, in the  exercise of  its power  of control,  deal with  such person otherwise  than in  accordance with the conditions of his service which are prescribed by such law.      Who has the power to pass such a law? Obviously not the High Court  because, there  is no power in the High Court to pass a  law, though  rules made  by the  High Court  in  the exercise of  power conferred upon it in that behalf may have the force  of law.  There is a distinction between the power

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to pass  a law  and the  power to  make rules, which by law, have the  force of law. Besides, "law" which the second part of Art.  235 speaks  of, is  law  made  by  the  legislature because, if  it were  not so, there was no purpose in saying that the High Court’s power of control will not be construed as taking away certain rights of certain persons under a law regulating their  conditions of  service. It  could not have been possibly intended to be 1053 provided that  the High  Court’s power  of control  will  be subject to  the conditions  of service prescribed by it. The clear meaning,  therefore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer or the rights conferred  upon  him  by  a  law  made  by  the  legislation regulating him conditions of service.      Article 235  does not  confer upon  the High Courts the power to  make rules  relating to  conditions of  service of judicial officers attached to district courts and the courts subordinate thereto.  Whenever, it was intended to confer on any authority  the power  to make  any special provisions or rules, including  rules relating  to conditions  of service, the Constitution  has stated  so in  express terms. See, for example Articles  15(4), 16(4),  77(3), 87(2),  118, 145(1), 146(1), and  2(148)(5), 166(3),  176(2), 187(3),  208,  225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2). Out of this fasciculus of Articles, the provisions contained in Articles  225, 227(2)  and (3)  and 229(1)  and (2)  bear relevance on  the question,  because these  Articles  confer power on  the High Court to frame rules for certain specific purposes. Article 229(2) which is directly in point provides in express  terms that  subject to the provisions of any law made by  the legislature  of the  State, the  conditions  of service of  officers and  servants of  a High Court shall be such as  may be  prescribed by  the rules  made by the Chief Justice or  by some  other Judge  or Officer  of  the  Court authorised by  the Chief  Justice  to  make  rules  for  the purposes. With  this particular  provision before  them, the framers  of  the  Constitution  would  not  have  failed  to incorporate a  similar provision  in Article  235 if  it was intended that  the High  Courts shall have the power to make rules regulating  the  conditions  of  service  of  judicial officers attached  to district courts and courts subordinate thereto.      Having seen  that the Constitution does not confer upon the High  Court the  power  to  make  rules  regulating  the conditions of  service of  judicial officers of the district courts and  the courts  subordinate thereto, we must proceed to consider:  who, then,  possesses that  power? Article 309 furnishes  the   answer.  It   provides  that  Acts  of  the appropriate legislature  may regulate  the  recruitment  and conditions of  service of  persons  appointed  to  posts  in connection with  the affairs  of the  Union or of any State. Article 248(3), read with Entry 41 in List II of the Seventh Schedule, confers  upon the  State legislatures the power to pass laws with respect to "State public services" which must include the  judicial services  of the  State. The  power of control vested  in the  High  Court  by  Art.  235  is  thus expressly, by the terms of that Article itself, made subject to  the  law  which  the  State  legislature  may  pass  for regulating the recruitment 1054 and service  conditions of  judicial officers  of the State. The power to pass such a law was evidently not considered by the Constitution  makers as  an encroachment on the "control

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jurisdiction" of  the High  Courts under  the first  part of Article 235.  The  control  over  the  district  courts  and subordinate courts  is vested  in the High Court in order to safeguard the  independence of the judiciary. It is the High Court, not  the executive,  which possesses control over the State judiciary.  But, what  is important to bear in mind is that the  Constitution which  has taken the greatest care to preserve the  independence of  the judiciary  did not regard the power  of the  State legislature to pass laws regulating the  recruitment  and  conditions  of  service  of  judicial officers as  an infringement  of that independence. The mere power to  pass such  a law  is not  violative of the control vested in the High Court over the State Judiciary.      It is  in this  context that  the proviso  to Art.  309 assumes relevance  and importance. The State legislature has the power  to  pass  laws  regulating  the  recruitment  and conditions of service of judicial officers of the State. But it was  necessary to  make a suitable provision enabling the exercise of  that power  until the passing of the law by the legislature on  that subject.  The Constitution furnishes by its provisions  ample evidence  that it  abhors a vacuum. It has therefore  made provisions to deal with situations which arise on  account of  the ultimate repository of a power not exercising that  power. The proviso to Art. 309 provides, in so far  as material, that until the State legislature passes a law  on the  particular subject,  it shall be competent to the Governor  of the  State to  make  rules  regulating  the recruitment and  the conditions  of service  of the judicial officers of  the State.  The Governor thus steps in when the legislature  does  not  act.  The  power  exercised  by  the Governor under  the  proviso  is  thus  a  power  which  the legislature is competent to exercise but has in fact not yet exercised.  It   partakes  of  the  characteristics  of  the legislative, not executive, power. It is legislative power.      That the Governor possesses legislative power under our Constitution is  incontrovertible and,  therefore, there  is nothing unique  about the Governor’s power under the proviso to Article  309 being  in the nature of a legislative power. By Article  168, the  Governor of  a State  is a part of the legislature of  the State.  And the most obvious exercise of legislative power  by the Governor is the power given to him by Art. 213 to promulgate ordinances when the legislature is not in  session. Under that Article, he exercises a power of the same kind which the legislature normally exercises : the power to  make laws. The heading of Chapter IV of Part VI of the Constitution,  in which Art. 213 occurs, is significant: "Legislative Power of 1055 the Governor".  The power  of the Governor under the proviso to Article  309 to  make appropriate  rules is  of the  same kind.  It  is  legislative  power.  Under  Article  213,  he substitutes for  the legislature  because the legislature is in recess.  Under the proviso to Article 309, he substitutes for the  legislature because  the legislature  has  not  yet exercised its  power to  pass  an  appropriate  law  on  the subject.      It is  true that  the power conferred by Article 309 is "subject to"  the provisions  of the Constitution. But it is fallacious for  that reason  to contend  that  the  Governor cannot frame rules regulating the recruitment and conditions of service  of the  judicial officers  of the  State. In the first place, the power of control conferred upon High Courts by the  first part of Article 235 is expressly made subject, by the  second part  of that  Article,  to  laws  regulating conditions of  service of  its judicial  officers. The first

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part of  Article 235  is, as  it were,  subject to a proviso which carves  out an  exception from the area covered by it. Secondly, the  Governor, in  terms equally express, is given the power  by the  proviso to  Article 309 to frame rules on the subject. A combined reading of Articles 235 and 309 will yield the  result that  though the  control over Subordinate Courts  is   vested  in  the  High  Court,  the  appropriate legislature, and  until that  legislature acts, the Governor of the  State, has  the power  to make  rules regulating the recruitment  and  the  conditions  of  service  of  judicial officers of  the State.  The power  of the legislature or of the Governor  thus to  legislate is  subject  to  all  other provisions of  the Constitution  like, for example, Articles 14 and 16. The question raised before us is primarily one of the location  of the  power, not  of its  extent. The second part of  Article 235  recognises the  legislative  power  to provide for recruitment and the conditions of service of the judicial officers of the State. The substantive provision of Article 309,  including its  proviso, fixes  the location of the power.  The opening  words  of  Article  309  limit  the amplitude of that power.      We entertain  no doubt that seniority is a condition of service and  an important one at that. The control vested in the High Court by the first part of Article 235 is therefore subject to  any law regulating seniority as envisaged by the second part  of that  article. The power to make such law is vested by Article 309 in the legislature, and until it acts, in the  Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating seniority, the end  product is  ’law’ within  the meaning of the second part of  Article 235. The legislatures of Punjab and Haryana not  having  passed  an  Act  regulating  seniority  of  the respective State judicial officers, the Governors of the two States have  the power to frame rules for that purpose under the proviso to Article 309 of the 1056 Constitution. Such  rules are,  of course,  subject  to  the provisions of  the Constitution and to the provisions of any Act which  the  appropriate  legislature  may  pass  on  the subject.      As we  have said  earlier, the mere power to pass a law or  to  make  rules  having  the  force  of  law  regulating seniority does  not impinge  upon the  control vested in the High  Court   over  the   district  courts  and  the  courts subordinate thereto  by Article  235. Such law or the rules, as the  case may  be, can  provide for  general or  abstract rules of  seniority, leaving  it to  the High Court to apply them to  each individual  case  as  and  when  the  occasion arises. The power to legislate on seniority being subject to all  other   provisions  of   the  Constitution,  cannot  be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Article 235. To take an easy  example, the  State  legislature  or  the  Governor cannot provide  by law  or by rules governing seniority that the  State  Government  in  the  concerned  department  will determine the seniority of judicial officers of the State by the actual  application of  the rules  of seniority  to each individual case.  Thereby, the High Court’s control over the State judiciary  shall have been significantly impaired. The opening words  of Article 309, "Subject to the provisions of this Constitution" do not exclude the provision contained in the first  part of  Article 235.  It follows that though the legislature or  the  Governor  has  the  power  to  regulate seniority of  judicial officers  by  laying  down  rules  of general application,  that power  cannot be  exercised in  a

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manner which  will lead  to interference  with  the  control vested in  the High  Court by the first part of Article 235. In a  word, the  application of law governing seniority must be left to the High Court. The determination of seniority of each  individual   judicial  officer   is  a   matter  which indubitably falls  within the  area of  control of  the High Court over  the district  courts and  the courts subordinate thereto. For  the same  reason, though  rules of recruitment can provide  for a period of probation, the question whether a particular  judicial officer  has satisfactorily completed his probation or not is a matter which is exclusively in the domain of the High Court to decide. That explains partly why in High  Court of  Punjab &  Haryana v.  State of Haryana(1) this Court held that the power to confirm a judicial officer is vested in the High Court and not in the Governor.      The error  of the  High Court’s point of view, like the error of  the report dated May 2, 1978 of its Sub-Committee, consists in  the assumption  that the Governor, while acting in the exercise of power conferred by the proviso to Article 309, exercises an executive function. That is why it felt so greatly exercised that the independence 1057 of the  judiciary was being eroded. That independence has to be preserved  at all  costs but, as Constitutional realists, we cannot  deprive the  legislature or the Governor of their legitimate legislative  powers under Article 309. That power is subject to all other provisions of the Constitution which means that  the power  cannot be exercised in a manner which will lead,  for example, to the violation of Articles 14, 16 or the  pervasive ambit  of the  first part  of Article 235. Since the  power conferred by Article 309 is not absolute or untrammeled, it  will be  wrong to test the validity of that power on  the anvil  of  its  possible  abuse.  The  various constitutional  safeguards  are  an  insurance  against  its abuse.      Numerous decisions  were cited  before us  to highlight the importance  of insulating  the judiciary  from executive interference. It  was urged by the learned Solicitor General on behalf  of the  High Court  that the  paramount object of Article 235  is to  secure the independence of the judiciary by ensuring that the subordinate judiciary is insulated from executive  interference   and  once  the  appointment  of  a judicial officer  is made,  his subsequent  career should be under the  control of  the High  Court and  he should not be exposed  to   the  possibility  of  any  improper  executive pressure (Union of India v. Justice S. H. Sheth(1), that the control over  the subordinate  judiciary vested  in the High Court  under   Article   235   is   exclusive   in   nature, comprehensive in extent and effective in operation; and that there can  be no "duality" in the matter of control over the district courts  and the  courts subordinate  thereto (A. P. High Court  v. Krishnamurthy(2).  The short  answer to these submissions is  that the power conferred by Article 309 is a legislative, not  executive, power  and that  the  power  is subject to  all  the  provisions  of  the  Constitution.  If despite this  position, the  Governor’s rule-making power is likely to create a magnetic field wherein the executive will be the focal point of attraction, it is not the Constitution that is  to blame.  As is often said, the danger to judicial independence springs more from within than from without.      Before parting  with this point, we would like to refer to a decision of this Court in State of Bihar v. Madan Mohan Prasad(3). Sarkaria  J., speaking for the Court, observed in that case that in 1058

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determining the  seniority of  the Bihar  Superior  Judicial Service the  High Court  was bound to act in accordance with the rules  validly made by the Governor under the proviso to Art. 309  of the Constitution. The judgment does not discuss the question  any further  which  makes  it  unnecessary  to analyse it in detail.      For these  reasons, we  reject the  contention that the Governor has  no power  to make  rules of  seniority of  the District and Sessions Judges.      That takes  us to the second question which is, whether the rotation  method devised  by the  High Court in applying the relevant service rules in the matter of confirmation and consequent fixation  of seniority  of the petitioners vis-a- vis  the   direct  recruits   suffers  from   any  legal  or constitutional infirmity. The main thrust of the argument of the promotees, who have filed the two sets of Writ Petitions before us,  is that  the method  of rotation  applied by the High Court at the time of confirmation is violative of their fundamental  rights   under  Articles   14  and  16  of  the Constitution. In  the Punjab  Writ Petition, the petitioners have taken  an alternative  plea that their seniority should be fixed  in accordance  with  the  amendment  made  by  the Governor of  Punjab by  the Notification  dated December 31, 1976, effective  from April  9,  1976.  By  that  amendment, length of  continuous service in a cadre irrespective of the date  of   confirmation  is   the  governing   criterion  of seniority. In  so far  as the power of the Governor to amend the rules is concerned, that question must be deemed to have been set  at rest  by the  preceding part of our judgment in which we  have upheld the Governor’s power to frame rules of seniority.      To recapitulate  briefly, the Superior Judicial Service Rules, 1963,  which are  currently in  force in Haryana, are identical with  the rules  which were  in  force  in  Punjab before the  amendment dated  December 31, 1976. The Governor of Haryana  had introduced amendments similar to those which are now  in force  in  Punjab,  but  those  amendments  were subsequently withdrawn  and  the  original  position  as  it obtained under the Rules of 1963 was restored.      Under the  rules now in force in Haryana, which were in force in  Punjab prior  to  the  aforesaid  amendment  dated December 31,  1976,  ’cadre  post’  by  rule  2(2)  means  a permanent post in the Service. Under rule 8(2), two-third of the total  number of  cadre  posts  have  to  be  manned  by promoted officers  and one-third  by direct  recruits. Under rule 10(1),  direct recruits have to remain on probation for two years  provided that  the Government may, in exceptional circumstances of any case, reduce the period of probation in consultation 1059 with the  High Court.  The probation  can be extended by the Governor beyond the period of two years in consultation with the High  Court but  not so  as to  exceed a total period of three years.  Rule 10 (2) gives to the Governor the power in consultation with the High Court to confirm a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation.      Rule 12  now in force in Haryana and which was in force in Punjab  prior to  the amendment  dated December 31, 1976, provides that  the seniority of direct recruits and promoted officers  shall   be  determined   with  reference   to  the respective dates  of their confirmation. The proviso to rule 12 deals  with three  kinds of  cases in  which  substantive members of  the Service  have the same date of confirmation. In regard  to the  third category of such cases, the proviso

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says that  in the  case  of  promoted  officers  and  direct recruits having  the same date of confirmation, the older in age shall be senior to the younger.      Under  the   amendment  effected   in  Punjab   by  the Notification  dated   December  31,  1976,  which  is  given retrospective effect  from April 9, 1976, ’cadre post’ means a permanent  as well  as a temporary post in the Service. In so far  as the  rule of  seniority is  concerned, under  the aforesaid amendment the inter se seniority of the members of the Service  is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation.      It may  be recalled  that in  High Court  of Punjab and Haryana v.  State of  Haryana (supra),  it was  held by this Court that  rule 10,  in so  far as  it confers the power of confirmation on  the Governor,  is bad  because the power of confirmation is  a part  of the  control of  the High  Court which is  vested in  it by  Article 235 of the Constitution. Therefore, the  High Court  alone had the power to confirm a District &  Sessions Judge.  As a  result of  that judgment, respondent 3  came back  into the  service  as  a  confirmed District & Sessions Judge.      It is necessary to bear in mind that the only provision of which  the validity  was assailed  by respondent 3 in the aforesaid case  was the  one contained  in rule  10(2) which conferred a  right on  the  Governor  to  confirm  a  direct recruit. No  challenge was made therein to that part of sub- rule (2)  which requires that the confirmation shall be made from a  date not  earlier than  the date on which the direct recruit satisfactorily  completes his  period of  probation. That part  of sub-rule  (2) still  holds the  field. It must also be  mentioned that  no opinion  was expressed  by  this Court on  the validity  of rule  12 of  the Haryana Superior Judicial Service  Rules as  it  then  stood,  which  was  in material respects identical with rule 12 of the Punjab Rules as it exists now under the amendment of 1976. 1060      Dr. Chitale,  who appears on behalf of the promotees in the Punjab  Writ Petition,  contends that  the promotees are not being  confirmed by  the  High  Court  in  the  Superior Judicial Service  even though  vacancies occur  within their two-third quota,  which is  prescribed  by  rule  8(2).  The argument of  the learned  counsel is  that the quota of 2/3: 1/3, which  is provided  for by  rule 8 is applicable at the time of  initial recruitment  only. There  is  therefore  no warrant, according to counsel, for extending the application of that rule at the time of confirmation. In support of this argument, reliance  is placed  on a unanimous decision dated December 13,  1977 of  a Bench of five learned Judges of the Punjab and  Haryana  in  Narender  Singh  Rao  v.  State  of Haryana(1). The  High Court  held in  that case  that rule 8 which provides  for quota  and rule 12 which contains a rule of seniority,  are independent  of each other, that the rule of rotation  cannot implicitly  be read  into the quota rule and that  every member  of the  Superior Judicial Service is entitled to  claim seniority strictly in accordance with the provisions of rule 12. The promotees have made a very strong and emphatic  grievance that  in spite of the fact that  the Punjab Rules  prior to  the 1976  amendment were in material respects similar  to the  rules applicable  in Haryana,  the High Court  has been persistently refusing to follow, in the exercise of its administrative functions, the decision which was rendered  by it  in the exercise of its judicial powers. The promotees  contend that  the judgment  of the five Judge Bench which  held that there is no scope for the application

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of the  rule of  rotation at  the time  of  confirmation  is binding on the High Court as an administrative body and that therefore the seniority of the promotees and direct recruits must be  fixed without  applying the rule of rotation at the time of confirmation.      In order  to demonstrate  the hardship  caused  to  the promotees, Dr.  Chitale has  drawn our attention to Annexure P-I to  the Writ  Petition which has been further elaborated in Annexure  II to  his written submissions. These Annexures show, and  that is  not disputed,  that the  direct recruits have been  assigned a date of confirmation which is a day or so earlier  than the  date of  confirmation allotted  to the promotees. Our attention is also drawn to the relevant order passed by  the High  Court in  the case  of Haryana officers whereby the  date of  confirmation allotted  to  the  direct recruit, Shri  N. S. Rao, is only one day prior to the dates of confirmation allotted to the three promotees, even though the latter  were officiating for a much longer period in the Superior Judicial  Service than  respondent 3. The promotees have assailed  both the  legality and  propriety of the High Court’s Notification  dated August  25,  1976,  under  which eight direct 1061 recruits and  eight promotees  in Punjab  were confirmed  by applying the  method of  rotation, and  the direct  recruits were confirmed  with effect  from dates   which are a little earlier than  the  dates  assigned  to  the  promotees.  The grievance  of   the  promotees   is   accentuated   by   the circumstance that  respondents 6 to 8 had not even completed their normal period of probation and yet they were confirmed by the  High  Court  after  reducing  the  period  of  their probation to  approximately a  year and four months, without there being  any exceptional circumstances for adopting such a course.  Besides, the  power to  reduce  the  probationary period is  vested in  the Governor under the proviso to rule 10(1). And if that provision is unconstitutional for reasons similar to those for which it was held by this Court in Shri N. S.  Rao’s(1) case  that the  Governor  had  no  power  of confirmation, there  is no  provision under  which the  High Court can claim the power to reduce the period of probation.      The High  Court has submitted in its written brief that we should  decide upon  the scope  of Article 235, including the question  as to  who has the power to frame the rules of seniority, and leave the other questions to be decided by it administratively. Representations  of both  sides are  still pending before  it and  if we  were to  pronounce  upon  the validity of  the impugned  notifications, numerous practical complications may  arise rendering  the High Court’s task of fixing seniority  difficult. In  Haryana, we  are  concerned with two  officers only:  Shri B.  S. Yadav, a promotee, and Shri N.  S. Rao, a direct recruit, since petitioners 2 and 3 have been  compulsorily retired during the pendency of these writ petitions. But the High Court says that our decision on the other  issues will  have a far-reaching impact in Punjab where the  conflicting claims  of  several  members  of  the Superior Judicial Service require consideration.      The High  Court justifies  the method adopted by it for determining the  seniority of promotees vis-a-vis the direct recruits by  the application  of the rule of rotation at the time of  confirmation. It  contends that  persons  recruited from these two sources have to be merged in such a manner so as not  only to  maintain a proper ratio amongst them in the service but  also to so deal with them as to have due regard to their  promotional prospects,  in the over all context of the maintenance  of highest  standards of  Administration of

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Justice  by  the  members  of  the  service.  Translated  in concrete terms,  it means  that members  of the  subordinate judiciary who  are promoted to the Superior Judicial Service and those  who are recruited from amongst the members of the Bar  should  have  an  equal  chance  of  promotion  to  the Selection Grade  as also  of elevation  to  the  High  Court Bench. When  recruitment to the Superior Judicial Service is from two sources, 1062 it becomes  imperative to  ensure  proper  blending  of  the members of  the service  and it  is for that reason that the quota rule  (whenever direct  recruits are available) has to be applied  even at the time of confirmation. It will not be in the  interest of  the service if it were otherwise since, according  to   the  High  Court,  if  direct  recruits  are confirmed and  assigned seniority  in  a  block,  that  will adversely affect  the chances  of further  promotion of  the promotees assigned  seniority below  them.  Direct  recruits when recruited  are much  younger than  the promotees,  when promoted. It is for this reason that, wherever possible, the High Court  claims to  have  assigned  seniority  to  direct recruits by  interposing two  promotees between  two  direct recruits. Promotees,  on the other hand, have been confirmed and assigned  seniority one  after  the  other,  in  numbers exceeding two,  when there were no direct recruits. In order to explain and justify its point of view, the High Court has annexed four  annexures to  its written brief, Annexures ’A’ to ’D’.  Annexure ’A’  shows seniority of the members of the service as fixed and determined by the High Court from 1-11- 1966, up  to and  including August 1976. The direct recruits are placed  therein at serial Nos. 4, 5, 10, 21, 24, 27, 38, 41, 44,  47, 50  and 53.  The rest  are promotees. Not only, says the  High Court,  did it  confirm  a  large  number  of promotees between  each group  of  direct  recruits  but  it interposed  two   promotees  between  the  direct  recruits. Annexure ’B’  shows the  likely seniority  of members of the service with  reference to  the dates of the availability of posts in  accordance with  the quota  rule. This depicts the position of  direct recruits  if they are assigned seniority with effect  from the  dates when they complete their period of probation.  Annexure ’C’ is the same as Annexure ’B’ with the modification  that it  depicts the  position  of  direct recruits if  seniority is  assigned to them with effect from the date  from which they joined service. Annexure ’D’ shows the position  of the  members of  the service  in accordance with the  dates  of  their  continuous  officiation  a  such members. These  statements, the  High Court  says, will show that it  has assigned  seniority  to  promotees  and  direct recruits in  a manner  designed to  secure the  interests of both the classes.      Whereas the  promotees complain  that  they  have  been discriminated against and the High Court replies that it has held the  scales of  justice even between the two classes of officers, the  direct recruits  contend that  it is  in fact they who  have suffered  injustice under the notification of seniority issued  by the  High Court  on  August  25,  1976. Respondents 3 to 5 in the Punjab Writ Petition complain that they were  not confirmed by the High Court on the due dates, that  is,  on  their  completing  the  period  of  probation satisfactorily. 1063 The High Court confirmed ten promotees in between Shri S. S. Sodhi, who  is at  present the  Registrar of the High Court, and respondents  3 to 5, thereby giving to the promotees the benefit of  their officiation  in vacancies meant for direct

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recruits. According  to the  direct recruits, the quota rule will lose  its relevance  unless the  rule  of  rotation  is applied  at  the  time  of  confirmation.  They  assail  the validity of  the amended  rule 12,  which  is  in  force  in Punjab, on  the ground  that the  rule that  seniority  must depend upon  the date  of continuous officiation in any post is neither  just nor  reasonable. They  also  challenge  the notification issued  by the  Governor of  Punjab on December 31, 1976  on the  ground that  it  was  given  retrospective effect from  April 9,  1976 arbitrarily, with a view only to superseding the notification of seniority issued by the High Court on  August 25,  1976. It  is contended by them, in the alternative, that if the period of their probation has to be weighed against  the period of officiation of the promotees, it should  be reckoned  from the  date on which the promotee officer begins  to officiate  against  a  permanent  vacancy available in his quota.      In the  light of  these contentions,  the question  for determination is  whether the method of confirmation adopted by the  High Court  by the  rotation of promotees and direct recruits in  the ratio  of 2:1  is  justified  on  a  proper interpretation of  the relevant  rules. Is  the operation of rule 8  confined to  the stage of initial recruitment to the service by promotion and by direct appointment? Or, can that rule be superimposed on rules 10 and 12 so as to justify its application at the stage of confirmation also? These are the questions which are posed for our consideration.      Rule 8,  as its  very heading  shows,  provides  for  a distinct condition  of service  with reference to a specific point of  time, namely:  ’Recruitment to Service’. The words "to be  filled up  by direct recruitment" which occur in the proviso to  sub-rule  (2)  of  rule  8  also  point  in  the direction that the operation of this sub-rule is confined to the stage  of initial  recruitment to  the service either by promotion or  by direct  appointment from the Bar. Rules 10, 11 and 12 provide for the regulation of probation, reversion of promoted  officers and  seniority,  which  conditions  of service are  distinct  and  separate  from  ’Recruitment  to Service’ dealt  with in  rule 8. In other words, rule 8 only fixes the  respective quota of recruits from the two sources specified in  clauses (i)  and (ii)  of sub-rule  (1).  Such reservation is  intended to  be made at the stage of initial appointments only, by reserving 2/3rd of the total number of posts in  the cadre  for  promotees  and  1/3rd  for  direct recruits. It seems 1064 to us evident that a post which falls vacant in the quota of promotees cannot  be filled  by the confirmation of a direct recruit therein  nor indeed can a promotee be confirmed in a post which is within the quota of direct recruits.      If this  be the true construction of rule 8, the method of  confirmation   by  rotation   of  direct   recruits  and promotees, regardless of whether the vacancy assigned to the particular officer  falls within  the quota  of the class to which he  belongs will  be in contravention of that rule. It was held  by this  Court in Punjab and Haryana High Court v. State  of  Haryana  (Supra)  that  ’appointment’  is  not  a continuous process,  that  the  process  of  appointment  is complete as  soon as  a person is initially recruited to the service either  by promotion  or by  direct recruitment  and that  confirmation   is  not   a  part  of  the  process  of appointment. The  necessity of  treating ’Recruitment to the Service’ and  ’confirmation’ as  two distinct  and  separate matters can  be appreciated  if only  it  is  realised  that ’Recruitment to  the Service’ is a matter which falls within

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the  power   of  the   Governor  under   Article  233  while ’confirmation’ is  a matter of ’control’ vesting in the High Court under  Article 235.  The superimposition  of  rule  8, which fixes  the quota  at the  stage of recruitment, on the rules relating  to confirmation  and seniority  is therefore contrary to  the  basic  constitutional  concepts  governing judicial service.      This apart, the application of Rota system at the stage of confirmation  is beset  with practical  difficulties. For example, if vacancies in the quota of direct recruits cannot be filled  for 2 or 3 years for the not uncommon reason that direct recruits  are not  available, and  during that period several vacancies  occur in  the quota of promotees who have been officiating  continuously for  two or  three years, can the postponement  of  the  confirmation  of  such  promotees against vacant  posts  in  their  quota,  until  the  direct recruits are  appointed and become eligible for confirmation on  completing   the  prescribed  period  of  probation,  be justified on any reasonable ground? Is it proper and fair to defer the  confirmation  of  the  promotees  merely  because direct recruits  are not  available at that point of time so as to  enable the High Court to make confirmations from both the sources  by rotation?  This, precisely, is what the High Court has  done by the impugned notification dated 25-8-1976 and that  is the  reason why  it has  not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.      In A.  K. Subraman v. Union of India,(1) the contention of the  respondents that  there  is  an  implied  rotational system involved in the 1065 quota rule  and that  therefore the  quota rule must also be applied at  the stage  of confirmation  was rejected by this Court. It  is true  that it  was observed  in that case that when recruitment  is from  two or  more sources, there is no inherent invalidity  in introducing  the  quota  system  and working it  out by the rule of rotation. But that is not the question which  we have  to consider  in the  writ petitions before us.  What is  relevant is  the decision  of the Court (page 994)  that the quota rule will be enforced at the time of initial  recruitment and not at the time of confirmation. The Court  observed that  the tests  to be  applied for  the purposes  of   promotion  and   confirmation  are   entirely different since  there  is  a  well  recognised  distinction between ’promotion’ and ’confirmation’.      In N.  K.  Chauhan  v.  State  of  Gujarat,(1)  it  was reiterated (pages  1051-1053)  that  having  regard  to  the recent decisions  of this  Court, it  could not be held that ’quota’ is  so interlocked with ’rota’ that where the former is expressly  prescribed the  latter is impliedly inscribed. One  of   us,  Krishna   Iyer,  J.,  while  summarising  the conclusions of the Court said:      "The  quota  rule  does  not,  inevitably,  invoke  the      application of  the  rota  rule.  The  impact  of  this      position  is   that  if  sufficient  number  of  direct      recruits have  not been  forthcoming in the years since      1960 to  fill in  the  ratio  due  to  them  and  those      deficient vacancies  have been  filled up by promotees,      later direct  recruits cannot  claim ’deemed’  dates of      appointment for  seniority in  service with effect from      the time,  according to  the rota  or turn,  the direct      recruits’ vacancies arose". Seniority of  promotees, according  to this  decision, could not be upset by later arrivals from the open market, save to the extent  to which  any excess promotees have to be pushed

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down.      In Paramjit  Singh Sandhu  v. Ram Rakha,(2) it was held by this  Court on  a harmonious  reading of rules 3, 4, 6, 8 and 10  of the Punjab Police Rules, 1959 that the quota rule was operative both at the time of initial recruitment and at the time of confirmation. We would like to clarify that this case is  not an  authority for the proposition that whenever Service Rules  provide for  quota, the  rule of rota must be read into the rule of quota. We are not laying down that the rules of quota and rota cannot coexist. Service Rules may so provide or they may yield to such an interpretation. In that event, their  validity may  have to  be tested  in the total setting of 1066 facts.  Therefore,  whether  the  quota  system  has  to  be observed not  only at  the stage  of initial recruitment but also at  the stage  of  confirmation  is  not  a  matter  of abstract law but will depend on the wording of the rules and the scheme  of the  rules under  consideration. Any dogmatic assertion, one  way or  the other,  is wrong  to make.  On a review of  these authorities,  all that we would like to say is that  on a  proper interpretation  of the rules governing the Punjab  and Haryana  Superior Judicial Service, the rule of rota  cannot be  read into  the rule  of quota.  In other words, the  ratio of  2:1 shall  have to  be applied  at the stage of  recruitment but  cannot, on  the language  of  the relevant rules, be applied at the stage of confirmation.      In our  opinion, therefore,  the  High  Court  was  not justified in  applying the  rule of  rotation at the time of confirmation of the members of the Superior Judicial Service who were  appointed to  that Service  by  promotion  and  by direct recruitment.  In fact, we would like to remind that a special Bench  of five  learned Judges  of the High Court of Punjab and  Haryana had  itself held on December 13, 1977 in N. S. Rao v. State of Haryana, (supra) that the rule of rota cannot be  read into  the rule of quota prescribed by rule 8 of the  Punjab  Superior  Judicial  Service  Rules.  It  was observed by  the  Special  Bench  in  paragraph  14  of  its judgment that  a plain  reading of  rule 8  shows  that  the intention of  the framers  of the  Rules was only to provide for quota  and that no indication at all has been given that the rotational system also had to be followed at the time of confirmation or  for the  purpose of  fixing  seniority.  In coming to this conclusion, the High Court placed reliance on the decisions  of this  Court in  A. K.  Subraman and  N. K. Chauhan to  which we  have already  referred. The High Court expressed its  conclusion in paragraph 22 of the judgment by saying that  rules 8  and 22  are independent of each other, that the rotational system cannot impliedly be read into the quota rule  prescribed by rule 8 and that the members of the Superior Judicial  Service are  entitled to claim seniority, strictly in  accordance with  the provisions  of rule 12. We are unable  to understand  how,  in  the  discharge  of  its administrative functions.  the High  Court could have failed to follow  a judgment of its own special Bench consisting of five  learned  Judges.  We  are  of  the  opinion  that  the aforesaid judgment has taken a correct view of the matter on a combined reading of rules 8 and 12.      We would  like to say at the cost of repetition that we are not dealing with the abstract question as to whether the rule of  quota necessarily excludes the rule of rotation. We are only  concerned to  point out  that it is not correct to say that the rule of rota must 1067 necessarily be  read into  the rule  of quota.  We  have  to

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decide in  those cases the narrow question as to whether, on a true  interpretation of  rules 8  and 12  of the  Superior Judicial Service Rules of Punjab and Haryana, the quota rule prescribed by  rule 8 justifies, without more, its extension at the  time  of  confirmation  so  that,  after  every  two promotees  are  confirmed  one  direct  recruit  has  to  be confirmed and  until  that  is  done,  promotees  cannot  be confirmed even if vacancies are available within their quota in which  they can be confirmed. We are of the opinion, on a proper interpretation  of  the  rules,  that  promotees  are entitled  to   be  confirmed  in  the  vacancies  which  are available within  their quota of 2/3rd, whether or not 1/3rd of the  vacancies are occupied by confirmed direct recruits. And similarly,  direct recruits are entitled to be confirmed in vacancies  which are  available  within  their  quota  of 1/3rd, whether or not 2/3rd of the vacancies are occupied by confirmed promotees.  What we  find lacking in justification is the  refusal of  the High  Court to confirm the promotees even if vacancies are available in their quota in which they can be  confirmed merely because, by doing so, more than two promotees may  have to be confirmed at one time, without the confirmation of  a proportionate  number of direct recruits. The fairness  which Articles 14 and 16 postulates is that if a promotee  is otherwise  fit for confirmation and a vacancy falling within  the quota of promotees is available in which he can  be confirmed,  his  confirmation  ought  not  to  be postponed until  a direct  recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in the matter  of confirmation, will not, in practice, give any undue advantage  to the  promotees. The  facts  and  figures supplied by  the High  Court in Annexure R-4 to its counter- affidavit in  W. P.  266 of  1979 show that vacancies in the quota of  promotees do not generally become available before the promotees  have put  in two  to five  years’ service  as officiating District and Sessions Judges.      In so far as the confirmation of respondents 6, 7 and 8 is concerned, the facts set out by the Registrar of the High Court in  his counter  affidavit do  not,  in  our  opinion, constitute "exceptional  circumstances" such  as to  justify their confirmation long before they had completed the normal period of their probation. It may be recalled that they were confirmed  after   they  had  each  completed  a  period  of probation of  approximately a  year and  four months. In the absence  of   exceptional   circumstances   justifying   the reduction of  their normal probationary period of two years, we find  ourselves unable  to uphold  the order  of the High Court by which these three respondents were confirmed before they were normally due for 1068 confirmation.  The  order  is  in  clear  violation  of  the guarantee of equal opportunity, by which the petitioners are prejudiced, and must for that reason be set aside.      The High  Court will  be at liberty now to confirm them with effect  from the  date or dates on which they completed their normal period of probation, to the satisfaction of the High Court.  This is  apart from  the question as to whether the High Court can exercise the power which was conferred by the proviso  to  rule  10(1)  on  the  Governor.  The  power conferred by  the proviso  on the  Governor is  ex facie bad because such  a power  directly impinges  upon  the  control vested in the High Court by Article 235 of the Constitution. If at  all any  authority could exercise such a power, it is the High Court and not the Governor. We are assuming for the limited purpose  of these petitions that the High Court may,

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in exceptional circumstances, reduce the period of probation of a  direct recruit.  The rules  must now  be understood to mean that  the High Court and not the Governor has the power of confirmation,  that the  normal period  of  probation  of direct recruits  is two  years and  that  unless  there  are exceptional circumstances attaching to each individual case, a direct  recruit cannot  be confirmed  from a  date earlier than the  date on  which he has satisfactorily completed his probation of to years. The High Court is not free to fix any period of  probation as  it likes or to reduce the period of two years at its will and pleasure.      The amended  rule 12,  as in force in Punjab, lays down the length  of continuous  service in  a cadre  post as  the guiding  criterion  for  fixing  seniority.  That  rule  was notified by  the Governor on December 31, 1976 and was given retrospective effect  from April 9, 1976. Since the Governor exercises a  Legislative power  under the proviso to Article 309  of  the  Constitution,  it  is  open  to  him  to  give retrospective  operation   to  the  rules  made  under  that provision. But  the date  from which  the rules  are made to operate must  be shown  to bear, either from the face of the rules or  by extrinsic  evidence, reasonable  nexus with the provisions contained  in  the  rules,  especially  when  the retrospective effect  extends over  a long period as in this case. No  such nexus  is shown in the present case on behalf of the  State Government.  On the contrary, it appears to us that the  retrospective effect  was given  to the rules from April 9,  1976 for  the mere  reason that on August 25, 1976 the High Court had issued a notification fixing seniority of the promotees  and direct recruits appointed to the Superior Judicial Service  of Punjab.  The notification issued by the Governor on  December 31,  1976 will,  therefore, operate on future appointments  or promotions  made after that date and not on 1069 appointments  or  promotions  made  before  that  date.  The seniority of  all officers  appointed  or  promoted  to  the Superior Judicial  Service, Punjab, before December 31, 1976 will be  determined by  the  High  Court  according  to  the criterion of the dates of confirmation, without applying the rule  of  rotation.  The  seniority  of  those  promoted  or appointed after  December 31,  1976 will  be  determined  in accordance with the rules promulgated under the notification of that  date. In  so far  as we see, Judicial officers from Serial No.  1 to  36 mentioned in Annexure P-I to the Punjab Writ Petition, that is, beginning with Shri J. S. Chatha and ending with  Sri Hardev  Singh were  appointed  or  promoted prior to  December 31,  1976. Those  from serial  No. 37  to serial No.  43, that  is beginning with Shri G. S. Kalra and ending with  Shri H.  L. Garg,  were appointed  or  promoted after December  31, 1976.  The validity  of the notification dated December  31, 1976 was not seriously challenged before us, apart  from its  retrospectivity. We do not also see any constitutional or  legal objection to the test of continuous officiation introduced thereby.      In so  far as the Haryana writ petitions are concerned, they involve  a question  of seniority  really  between  two officers only,  namely, Shri  B. S. Yadav, who is a promotee and Shri  N. S.  Rao, who is a direct recruit. The other two promotees,  namely,   petitioners  2   and  3,   have   been compulsorily  retired   during  the  pendency  of  the  Writ Petitions in  this Court.  Rule 12, which is not in force in Haryana, is  similar to rule 12 which was in force in Punjab prior to  its amendment on December 31, 1976. Rule 12, as it originally existed,  was amended by the Governor of Haryana,

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on April  21, 1972  with retrospective  effect from April 1, 1970. However,  on September 2, 1977 the Governor superseded that amendment,  again with  effect from  April 1, 1970, and restored the  rule of  seniority as it existed originally in the 1963  Rules. In Haryana, therefore, the seniority of the members of  the Superior Judicial Service will be determined with  reference   to  the  dates  of  confirmation,  without applying the rule or rotation.      We must  express our concern at the manner in which the Rules of  the Superior Judicial Service have been amended by the Governor of Punjab and, particularly, by the Governor of Haryana. In  Punjab, the  High Court  was never consulted on the question  whether the  amendments made  on December  31, 1976 should  be given  retrospective effect and, if so, from what date.  The amendments  were made despite the opposition of the  High Court.  In Haryana,  the amendment of April 21, 1972 was  made just  in order  to spite  a  single  judicial officer who is a direct recruit. Fortunately, that amendment was withdrawn  by the  successor Government  on September 2, 1977. A 1070 long retrospective  effect was  given to that amendment from April 1,  1970 because  the amendment  of April 21, 1972 was given retrospective  effect from  April  1,  1970  and  that amendment had  to be effectively superseded. We do hope that the State  Governments will apply their mind more closely to the  need  to  amend  the  Service  Rules  of  the  Superior Judiciary and  that the  Rules will not be tinkered with too often. It  should also be realised that giving retrospective effect the  rules  creates  frustration  and  discontentment since the  just expectations  of the officers are falsified. Settled seniority  is thereby unsettled, giving rise to long drawn-out  litigation   between  the  promotees  and  direct appointees. That  breeds indiscipline  and  draws  the  High Court into the arena, which is to be deprecated.      Punjab and  Haryana have  a peculiar problem since they have a  common High Court. But they are blessed, not cursed, with  a  common  High  Court.  Today  we  find  the  strange spectacle of  the High  Court being called upon to determine the seniority  of officers in one State by one test and that of officers  in the  other State  by an  opposite  test.  In Punjab, continuous  officiation on  a post in the Service is the  criterion   of  seniority.  In  Haryana,  the  date  of confirmation is  the governing factor. Can the two Governors not come  together and  take a  joint  decision  applying  a uniform test of seniority to their judicial officers who are under one  common High  Court? And  though that  is not  the requirement  of   the  proviso   to  Article   309  of   the Constitution, we  hope that whatever amendments are going to be made  hereafter to the Rules will be made in consultation with the  High Court. Nothing will be lost thereby and there is so  much to gain: Goodwill, expert advice and the benefit of the  experience of  a body  which has  to administer  the Rules since  the control  over  the  Subordinate  Courts  is vested in  it by  Article 235.  It is sad that the promotees and direct  recruits have to dissipate their time and energy in litigation  which they  can ill-afford  and which  arises largely because  of the  lack of  co-ordination between  the High Court  and the State Governments. It is time enough now to turn a new leaf.      In the  result, we  partly allow  Writ Petition  266 of 1979, quash  the impugned  orders including  (i)  the  order dated August  25, 1976  of the  High Court, published in the Punjab Government  Gazette dated September 3, 1976; (ii) the order whereby  Respondents 6,  7 and  8  were  confirmed  by

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reducing their period of probation; and (iii) all subsequent orders of the High Court confirming the promotees and direct recruits by rotation. We direct that:           (a) The  High Court  will  revise  and  refix  the      respective dates of confirmation of the petitioners and      respondents 3  to 11,  without  applying  the  rule  of      rotation; 1071           (i)   The petitioners,  if they  are otherwise fit                for confirmation,  shall  be  confirmed  with                effect from  the  dates  on  which  vacancies                became available  to them  in  the  quota  of                promotees;           (ii)  Respondents  3  to  11  shall  be  confirmed                against vacancies falling within the quota of                direct recruits,  with effect  from dates  on                which they  successfully completed  their two                years’ probation. Since, the normal period of                probation cannot  be reduced  unless the High                Court is  satisfied in  each individual  case                that there  are  "exceptional  circumstances"                justifying the  reduction of that period, and                since the  High  Court  had  not  given  such                reasons  while   reducing  the   probationary                period   of    some   of   the   respondents,                respondents 3  to 11  will  be  confirmed  as                stated above  without reducing  the period of                their probation.           (b)   The High  Court will  re-draw the  inter  se                seniority-           (i)  of such of the petitioners and respondents as                were promoted  or appointed  to the  Superior                Judicial Service  prior to December 31, 1976,                on the  basis  of  the  respective  dates  of                confirmation allotted  to them  in compliance                with the aforesaid direction (a); and           (ii) of  such of  the petitioners, respondents and                others who  were appointed  to a  post in the                service on  or after  December  31,  1976  in                accordance with the amended rule 12.           (c) The  High Court  will  review  and  reconsider      promotions to  the Selection  Grade  and  other  allied      orders made  by it,  having regard  to these directions      and the seniority to be fixed on the basis thereof. The      High  Court   will  make   necessary  adjustments   and      alterations therein,  in the  light of the action to be      taken in  compliance with  the aforesaid directions (a)      and (b). The confirmations, promotions and other orders      passed by  the High  Court during the pendency of these      Writ Petitions  are, according  to  the  interim  order      passed by  this Court,  subject to  the result of these      Writ Petitions.      Writ Petitions  4228 to  4230 of  1978 are also allowed partly, to the same extent as Writ Petition No. 266 of 1979. The  High   Court  will   readjust  the   seniority  of  the petitioners and  respondent No. 3 therein by the application of the  aforesaid principles  and  in  accordance  with  the Haryana Superior Judicial Service Rules, 1963 1072 as in  force on,  or as  given effect to from April 1, 1970. The seniority  list will  be drawn  by the High Court on the basis of the dates of confirmation without applying the rule of rotation  and in  the light of the directions given by us in the Punjab Writ Petition, in so far as relevant. The High Court will  also comply  with the  other directions  therein

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given regarding  the review  of the  promotions to Selection Grade and the consequential orders.      These directions  in the  aforesaid Writ Petitions from Punjab and  Haryana  shall  be  complied  with  as  soon  as possible, preferably  within a  period of  three months from to-day.      Parties will pay and bear their own costs. P. B. R.                          Petitions allowed in part. 1073