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PETITIONER: BAIJ NATH SHARMA

       Vs.

RESPONDENT: HON’BLE RAJASTHAN HIGH COURT AT JODHPUR AND ANOTHER

DATE OF JUDGMENT:       02/09/1998

BENCH: A.S. ANAND, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T D.P.Wadhwa,J.      Leave granted.      The appellant,  who  was  a  member  of  the  Rajasthan Judicial Service  (for short  ’RJS’), is  aggrieved  by  the judgment dated  September 17  1997 of  the Division Bench of the Rajasthan  High Court  dismissing his writ petition (CWP No. 3455/97),  wherein he had prayed in effect that his case for promotion  to the Rajasthan Higher Judicial Service (for short ’RHJS’)  be considered from the date when the posts in the RHJS fell vacant.      By the  time the  appellant filed  the writ petition he had already  superannuated on  May 31,  1996. Prior  to  his retirement, posts in the RHJS were    available    in    the promotional quota  for promotion  of the  appellant. He  had earlier filed  writ petition  (CWP No.  1544/96) in the High Court seeking his promotion. This earlier writ petition came up for  admission before  the High Court on May 27, 1996 and the following order was passed:-      "27.5.96: Hon’ble Mr. M.G. Mukherji      Actg.  CJ.   Hon’ble  Mr.  Bhagwati      Prasad J.      Issue notice  returnable four weeks      after the  summer holidays.  Notice      be given  ’dasti’  to  the  learned      advocate.           We direct that even though the      writ petitioner retires on 31.5.96,      his  case   is  to   be  considered      alongwith the  other  officers  for      the purpose  of  promotion  to  the      Rajasthan Higher  Judicial Service,      and in  case such  a  promotion  is      accorded to him nationally his case      would be sympathetically considered      with appropriate directions, as may      be deemed fit and proper."      That writ  petition was  withdrawn by  the appellant on January 8,  1997. Liberty  was, however,  granted to  him to file a  fresh writ petition if any occasion arose. The order

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dismissing the writ petition as withdrawn is as under:- "8.1.97: Hon’ble Mr. M.G. Mukherji CJ.          Hon’ble Mr. Bhagwati Prasad J.      The petitioner  expresses desire to      withdraw    the    writ    petition      application with  liberty  to  file      representation        in        the      Administrative forum.      He is granted liberty to file fresh      writ   application    if   occasion      arises.      The writ  application dismissed  as      withdrawn."      Subsequent  writ   petition  (CWP   No.  3455/97)   was dismissed in  limine with  the following  order which is now impugned:- "17.9.97:      HON’BLE MR. M.G. MUKHERJI, C.J.      HON’BLE MR. BHAGWATI PRASAD,J.      Mr. H.N. Calla for the petitioner.      We are  of  the  opinion  that  the      present writ  application is barred      by the  principles of res judicata.      The representation  as submitted by      the writ  petitioner was considered      by the  Full  Court  and  the  Full      Court in  its Wisdom  rejected  the      same. It  is further contended that      the  Full  Court  did  not  pass  a      speaking     order      on      his      representation. We  are constrained      to  hold   that  the   matter   was      discussed in the Full Court and the      ultimate decision  was communicated      to the  writ petitioner.  We do not      think that  there is  any force  in      this writ  application.  Till  such      time the petitioner retired none of      his  juniors   was  considered  for      promotion or was given promotion to      the   Rajasthan   Higher   Judicial      Service. It may be a very sad state      of  affairs   that   he   was   not      considered for  promotion  till  he      retired but  that does not make out      any case for interference.      The   writ    application    stands      dismissed."      This order is being challenged by the appellant in this appeal.      The appellant  joined RJS   on  January 2, 1979. He was confirmed in  the post  of Munsif-cum-Judicial magistrate by order dated  December 31,  1980. He  was promoted  as  Civil Judge  (Senior   Division)-cum-Additional   Chief   Judicial Magistrate on  February 13,  1992 and  by order dated August 17,  1993  appellant  was  granted  selection  scale  w.e.f. August, 1992.  He retired  on May 31, 1996. After withdrawal of  his  writ  petition  (CWP  No.  1544/96)  the  appellant represented on  January 29, 1997 that his case for promotion to RHJS  be considered and he be given notional promotion in view of  the observations  made on  May  27,  1996  in  writ petition. This  representation did  not find favour with the High Court  and was rejected by resolution of the Full Court dated  July   3,  1997,  which    was  communicated  to  the appellant. This  led the  appellant to  file the second writ

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petition (CWP  No.  3455/97),  which  as  noted  above,  was rejected on  two grounds,  namely,  (1)  it  was  barred  by principle of res judicata and (2) till the appellant retired from  service   none  of  his  juniors  was  considered  for promotion or even promoted to RHJS.      We do  not think  that High  Court was right in holding that the  second writ  petition (CWP No. 3455/97) was barred by  principle   of  res   judicata.   Appellant   made   his representations on  the basis  of observations  made by  the High Court  on May  27, 1996  in his  earlier writ petition. When this  writ petition  came up  for  hearing  again,  the appellant had  retired. He,  therefore,  withdrew  the  writ petition. Liberty  was granted  to him  to file another writ petition, "if occasion arises". This certainly does not mean that fresh  writ petition could be filed only if fresh cause of action arose. In any case fresh cause of action did arise when representations  of the  appellant were rejected by the High Court  and his  case for  promotion  to  RHJS  was  not considered for  giving him  notional promotion. However, our holding  that   second  writ  petition  was  not  barred  by principle of res judicata does not help the appellant as his writ petition  was also  dismissed on  merit. There  is some controversy if  grant of  selection grade  to the  appellant would give  him seniority  over those  officers  who  though senior in  the  seniority  list  of  RJS  were  not  granted selection grade.  Admittedly seniority  list was never under challenge. This  controversy is,  however, not  material for our purposes inasmuch as it is not disputed that on the date when the  appellant  retired  from  service,  posts  in  the promotional quota  were available  and the  appellant  could have been considered for promotion to RHJS in that quota. He was not  so considered  because the  High Court  had taken a decision by  resolution of  the Full Court dated February 9, 1996  not   to  make   further  promotions   from  RJS  till recruitment from  the bar to RHJS was made. The appellant in his first writ petition had challenged the resolution of the Full Court not to make promotions to the cadre of RHJS  till appointments from  the bar were made. This resolution of the Full Court  he certainly  could not  challenge in the second writ petition. High Court in its counter affidavit has given justification as  to why  it took  decision not  to make any promotion to  the cadre  of RHJS though at the relevant time 21 posts  of Additional  District and  Sessions Judges  were Vacant to  be filled  in by promotion and direct recruitment in the ratio of 3:1 as per Rule 9(2) of the Rajasthan Higher Judicial Service  Rules, 1969.  This is  how the  High Court justified its decision:-      "The Full Court in its meeting held      on   9.2.96    resolved   that   no      promotion  shall     be  made  till      direct  recruitment  is  made.  The      decision to  this effect  was taken      by Full  Court keeping  in view the      inequitable operation  of quota 3:1      which has  to be maintained between      promotees and  direct  recruits  to      the R.H.J.S.  which was  not  being      done. While  vacancy in  the direct      recruits    quota     were    being      determined   on    the   basis   of      sanctioned strength  of the  cadre,      the promotional  quota strength  of      the cadre,  the  promotional  quota      was being  operated on the basis of      the  recruitment.   There  were  89

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    sanctioned posts but factually more      than 200  officers were  working on      the R.H.J.S.  posts. The  posts  in      excess of  89 were  being manned by      temporary/ ad  hoc  promotees  from      R.H.J.S.   only    and    therefore      factually the  proportion of direct      recruits has  gone  down  abysmall.      The  embargo   on  promotions   was      therefore,  imposed   by  the  Full      Court to  stop  further  inequality      and imbalance  in  the  proportions      between  the   two   quotas   which      created  problems   in  determining      interse seniority  in  R.H.J.S.  on      the  basis   of  Rota-quota   rule.      Therefore, the  Full Court took the      decision   not   to   promote   the      officers  from   R.J.S.  cadre   to      R.H.J.S.  cadre   till  the  direct      recruitment is made keeping in view      the inequitable  operation of Rota-      quota rule.  The resolution  passed      by the  Full Court  in its  meeting      held on  9.2.96 did not require any      interference of  his excellency the      Governor. Therefore  it is wrong to      contend that  the Full Court has no      wrong  to  contend  that  the  Full      Court has  no authority to stop the      promotions by way of recruitment to      the  R.H.J.S.   to   maintain   the      proportional   representation   and      interse  seniority  between  direct      recruits and promotees."      The appellant  could certainly  have a grievance if any of his juniors had been given promotion from a date prior to his superannuation.  It is  not the  case  there.  From  the promotional  quota,   four  promotions  were  made  only  on December 30,  1996 i.e.,  after the  appellant had  retired. Those promoted  were given  promotions from  the  dates  the orders of  their promotions  were issued  and not  from  the dates the posts had fallen vacant. It is also the contention of the  High  Court  that  these  four  officers,  who  were promoted to  RHJS, were  senior to  the appellant as per the seniority list.  The question  which falls for consideration is very  narrow and that is if under the Rules applicable to the appellant promotion was to be given to him from the date the post  fell vacant  or  from  the  date  when  order  for promotion is  made. We  have not  been shown  any rule which could help  the  appellant.  No  officer  in  RJS  has  been promoted to  RHJS prior to May 31, 1996 who is junior to the appellant. Further decision by Rajasthan High Court has been taken to  restore the  imbalance between the direct recruits and the  promotees which,  of course,  as  noted  above,  is beyond challenge.      In union  of India and others vs. K.K.Vadera and others (AIR 1990  SC 442)  this Court  with  reference  to  Defence Research and  Development Service  Rules,  1970,  held  that promotion would  be effective from the date of the order and not from  the date when promotional posts were created. Rule 8 of  those Rules  did not  specify any  date from which the promotion would be effective. This Court said as under:-      "There is  no  statutory  provision      that the  promotion to  the post of

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    Scientist ’B’  should  take  effect      from 1st  July  of  the  year  that      rightly or wrongly, for some reason      or  other,   the  promotions   were      granted from  1st July,  but we  do      not find  any  justifying  Tribunal      that the  promotions of  the should      be with effect from the date of the      creation   of   these   promotional      posts. We do not know of any law or      nay rule under which a promotion is      to be  effective from  the date  of      creation of  the promotional  post.      After a  post falls  vacant for any      reason whatsoever,  a promotion  to      that post  should be  from the date      the promotion  is granted  and  not      from the  date on  which such  post      falls    vacant.     In    created,      promotions to  those posts  can  be      granted only  after the  Assessment      Board  has   met   and   made   its      recommendations   for    promotions      being granted.  If on the contrary,      promotions are  directed to  become      effective  from  the  date  of  the      creation of  additional posts, then      it would  have the effect of giving      promotions    even    before    the      Assessment  Board   has   met   and      assessed  the  suitability  of  the      candidates for  promotion.  In  the      circumstances, it  is difficult  to      sustain   the   judgment   of   the      Tribunal.      It is  regrettable because  of the inaction on the part of the  High Court  that recruitment  from bar  could not be made in  time which  created an imbalance in the service and ultimately it  were the  appellant  and  officers  similarly placed who  suffered. After  having put  in  long  years  of service it  is the  seniority and promotion which an officer looks forward  to. He  expects he  is given due promotion in time. Non  promotion may be an incidence of any service. But here the  appellant  has  been  deprived  of  his  promotion without any  fault of  his. High Court said that it might be sad state  of affairs that the name of the appellant was not considered for  promotion till  he retired.  High Court  may feel anguish  but it  gives no  comfort to the appellant. At least for future such an unfortunate thing should not happen to any  other officer similarly situated. This malaise which abysmally afflicts  any service  when there  is  recruitment from  different  sources  when  there  is  recruitment  from different sources crops up in the one form or the other with great disadvantage  of one or the other. But then service is not constituted  merely for  the benefit  of the officers in the service  but with  a certain  purpose in view and in the present case  for dispensing justice to the public at large. it is  not at  all advisable  to keep  any post in judiciary vacant for  days when  the courts  are burdened with arrears and litigants  are the  ones who  suffer. We expect the High Courts to  be vigilant  and to  fill up  the posts in direct quota in  time and if the bar quota cannot be filled for any reason fro  no fault of the promotee officers their case for promotion should  not be kept pending till some of them even superannuate. When  the process  for  recruitment  from  Bar

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begins and  it is  expected that posts for direct quota will be  filled  up  soon,  during  the  intervening  period  the officers in  the subordinate  service can  be given  ad  hoc promotions without  their  right  to  claim  seniority  over direct recruits,  who may  join later.  Functioning  of  the courts must not stop.      With these observations we would dismiss the appeal and leave the parties to bear their won costs.