http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

CASE NO.: Appeal (civil)  9728 of 2003

PETITIONER: D. Ganesh Rao Patnaik and others                         

RESPONDENT: State of Jharkhand and others                            

DATE OF JUDGMENT: 06/10/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

G.P. MATHUR, J.

       This appeal, by special leave, has been filed challenging the  judgment and order dated 1.4.2003 of the High Court of Jharkhand by  which the writ petition preferred by the appellants was dismissed and  the issue raised is that of seniority between the direct recruits and the  promotees in the Bihar Superior Judicial Service, who are currently  serving in the State of Jharkhand. 2.      The Bihar Superior Judicial Service Rules, 1946 (hereinafter  referred to as the "Rules") provide for appointment to the post of  Additional District and Sessions Judge by two sources, namely, by  direct recruitment from amongst members of the Bar and by  promotion from amongst members of the Bihar Civil Service (Judicial  Branch), and they further provide that one-third posts in the cadre of  service shall be filled in by direct recruitment and two-third shall be  filled in by promotion.  It appears that direct recruitment to Bihar  Superior Judicial Service was not regularly made and often the posts  of Additional District and Sessions Judges were filled in by  promotion.  After the year 1979 an advertisement was issued in the  year 1985 inviting applications for making appointment to the posts of  Additional District and Sessions Judges by direct recruitment.  Even  after the said advertisement had been issued, no action was taken for  making the selection for a considerable period of time.  One K.P.  Verma then filed a writ petition in Patna High Court praying that a  writ of mandamus be issued to the State Government and to the High  Court on the administrative side to observe the constitutional mandate  of Article 233 of the Constitution and to make appointments by  making direct recruitment from amongst members of the Bar in order  to comply with the requirement of the Rules whereunder one-third  appointments to the posts of Additional District and Sessions Judges  had to be made by direct recruitment.  The writ petition was heard by  a Full Bench of three learned Judges and the judgment is reported in  K.P. Verma vs. State of Bihar AIR 1989 Patna 276.  In the said  judgment a direction was issued to the State Government and to the  High Court on the administrative side to make appointments to the  posts of Additional District and Sessions Judges by direct recruitment  of members of the Bar within a period of six months from the date of  the judgment and a further direction was issued that in no case the  vacancies meant for direct recruits shall be filled in by promotion or  vice versa and the continuity and the parity shall be maintained until  altered by due process of law.  In compliance with the aforesaid  direction a fresh advertisement was issued in the year 1989 inviting  applications from eligible members of the Bar for the purpose of  making direct recruitment to the posts of Additional District and  Sessions Judges.  A written examination was thereafter held, which  was followed by interview and a merit list containing names of 129

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

candidates was declared on 24.11.1990, which was to remain valid till  November, 1991.  Out of this merit list the High Court recommended  names of 32 candidates, in order of merit, for appointment as  Additional District and Sessions Judges in the quota of direct recruits.   The appellants, who are nine in number, were amongst those 32  candidates, whose names had been recommended to the State  Government for appointment. 3.      Around the same time the High Court also recommended names  of 23 Subordinate Judges, including respondent Nos. 4 to 11 in the  present appeal (hereinafter referred to as contesting respondents), for  promotion to the temporary posts of Additional District and Sessions  Judges.  The State Government did not take immediate steps to issue  the appointment orders in favour of the persons whose names had  been recommended by the High Court.  At the time when the  advertisement was issued in the year 1989 the total number of  permanent and temporary posts of Additional District and Sessions  Judges was 251.  If the quota for the direct recruits was to be worked  out for all the posts, including temporary posts, it came to 83 and the  remaining 168 posts fell in the quota for the promotees.  However, the  number of promotees, who were working as Additional District and  Sessions Judges by April, 1991, far exceeded their quota of 168.  The  State Government, it appears, was proceeding on the basis that the  cadre of Additional District and Sessions Judges would consist only of  permanent posts and, therefore, the temporary posts could not be  taken into consideration for making appointment by direct recruitment  and such temporary posts had to be excluded while determining the  quota of the direct recruits.  One Madan Mohan Singh then filed a writ  petition before the Patna High Court being C.W.J.C. No. 945 of 1991  wherein several prayers were made and one of the prayers was that  direct recruitment should also be made to temporary posts and the  quota of direct recruits should be determined by also taking into  account the temporary posts of Additional District and Sessions  Judges.  An interim order was passed in the writ petition on  25.4.1991, which has some relevance and, therefore, it is being  reproduced below: - "Meanwhile as this matter cannot be heard and disposed  of before the summer vacation, to safe guard the interest  of all concerned, including the members of the  subordinate judiciary as such, we direct that the state  government shall be entitled to make appointment to the  superior judicial service by promotion in accordance with  law, but such promotion and the question of seniority of  the persons so promoted shall abide by the final result of  this writ petition and/or any other order of this Court.  It  is further directed that this direction shall be incorporated  in each letter/order relating to such appointment/  promotion as one of the conditions of such appointment/  promotion and unless such condition is accepted by the  person concerned no such appointment/promotion is to  be given effect to."

The State Government thereafter issued two separate notifications on  the same date, i.e., on 30.4.1991.  By one notification 32 persons,  including the appellants herein, were appointed to the posts of  Additional District and Sessions Judges against the quota of direct  recruits and by another notification several persons, including the  contesting respondents in the present appeal, were promoted to the  Bihar Superior Judicial Service and were appointed as Additional  District and Sessions Judges.  In the notification, which related to the  promotees, following two conditions were mentioned: - "2 (ka) The promotion of the above said officers can  be cancelled/modified in the light of the decision of Writ  No. 945/1991; (kha)   In the case of promoted officers, their promotion  will become effective only in the event of their furnishing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

consent letters accepting the abovesaid condition.  In  other words, those officers who do not submit such  written consent letters accepting such condition shall not  be deemed to have been promoted and their joining to the  promoted post will not be accepted."

The promotee officers, including respondent No. 4 and Nos. 6 to 11,  duly submitted their consent letters/undertakings to be bound by the  above conditions and joined at their respective places of postings  some time after the appellants had joined.  The respondent No. 5 did  not submit any consent letter/undertaking but he was allowed to join  as Additional District and Sessions Judge.  Factually, thus the  promotion of respondent Nos. 4 to 11 came into effect much after  30.4.1991. 4.      The writ petition filed by Madan Mohan Singh (C.W.J.C. No.  945 of 1991) was decided by a Division Bench of the Patna High  Court on 16.12.1991 and it was held that the cadre of Superior  Judicial Service included both permanent and temporary posts and  consequently the one-third quota of direct recruitment from the Bar  had to be calculated by taking into account permanent as well as  temporary posts.  The Division Bench issued a further direction that  apart from those 32 persons, who had already been appointed, further  appointments should be made from the same merit list, which was  declared on 24.11.1990 so as to fill in the complete quota of direct  recruits and the validity of the merit list prepared, which was for a  period of one year, i.e., up to November, 1991, was extended for a  further period of six months with effect from 24.11.1991.  The State  Government preferred an appeal against the aforesaid decision of the  Patna High Court before this Court and the judgment of this Court is  reported in State of Bihar vs. Madan Mohan Singh 1994 Supp. (3)  SCC 308.  This Court decided only one question in the appeal,  namely, having regard to the fact that the advertisement had been  issued to fill in only 32 vacancies and 129 candidates having been  called for interview in the ratio of 1:4, whether the said selection  process could be availed of for making further appointments.  After  examining the original record this Court held that the Full Court of the  Patna High Court had approved the selection of 32 candidates only  and had sent a list of the said candidates in order of merit to the State  Government for making appointments, and, therefore, the merit list  prepared could not be utilized for making any further appointment as  the same got exhausted and came to an end.  It was observed that if  the same merit list had to be kept subsisting for the purpose of filling  up other vacancies also, it would naturally amount to deprivation of  rights of other candidates, who had become eligible subsequent to the  advertisement and selection process.  The appeals were accordingly  allowed, the direction of the Division Bench of the High Court to fill  in other vacancies from the same merit list was set aside and the State  Government was directed to issue a fresh advertisement calling for  applications and completing the selection process as early as possible.   In the judgment no opinion was expressed on the question whether for  the purpose of calculating the quota of direct recruits the temporary  posts of Additional District & Sessions Judges had to be taken into  consideration or not. 5.      It is relevant to note here that respondent No. 4 Shri Ram Nath  Mahto was confirmed on 23.5.1994, respondent No. 5 Shri Ram Bilas  Gupta was confirmed on 1.1.1995 and respondent No. 6 Shri Krishna  Murari was confirmed on 1.2.1995 as Additional District and Sessions  Judges consequence upon occurrence of a substantive vacancy.  Some  of the appellants (direct recruits) preferred a representation before the  Patna High Court claiming seniority over 24 promotee officers,  including the contesting respondents.  The High Court, after issuing  notices and giving an opportunity of making representations to the  direct recruits as well as promotee officers, declared by order dated  4.9.1996 that "32 directly recruited Additional District and Sessions  Judges appointed vide notification dated 30.4.1991 shall be treated as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

senior to the 23 appointees by promotion (of the same date) to the  Bihar Superior Judicial Service".  Thus, all the appellants herein were  declared senior to the contesting respondents (respondents 4 to 11 in  the present appeal) in terms of the aforesaid order.  Feeling aggrieved  by the aforesaid decision on the administrative side some of the  promotee officers, including respondent Nos. 4, 5, 8, 9 and 11 herein,  filed a writ petition being C.W.J.C. No. 11620 of 1996 before the  Patna High Court, which, according to the learned counsel for the  parties, is still pending.  In the said writ petition a counter affidavit  was filed by the High Court through the Registrar General wherein the  proceedings of the meeting of the Standing Committee dated  24.8.1996 were extensively quoted and in paragraph 9 thereof it was  stated that in view of the condition imposed in the promotion order of  all the promotees their notification of promotion was liable to be  cancelled after the decision in the writ petition.  However, the High  Court did not take such harsh step to cancel their promotion but  instead the promotees were allowed to continue treating them as  promoted against subsequent quota of promotees.  A copy of the  aforesaid counter affidavit has been filed as Annexure P/2 to the  special leave petition giving rise to the present appeal. 6.      The State of Bihar was bifurcated under the provisions of the  Bihar Reorganization Act, 2000 and the State of Jharkhand was  carved out with effect from 15.11.2000.  The appellants and the  contesting respondents besides others were provisionally allocated to  the State of Jharkhand and in the said provisional allocation order the  names of the appellants were placed above the names of the  contesting respondents in accordance with the administrative decision  of the Patna High Court dated 4.9.1996.  The Jharkhand High Court  promoted the appellants to the posts of District and Sessions Judges in  June, 2001, whereas the contesting respondents were promoted on or  after August, 2001. 7.      Some time in January, 2002 two of the promotee officers, viz.,  respondent Nos. 9 and 11, filed representations on the administrative  side of the Jharkhand High Court for treating them as senior to the  direct recruits.  This representation was referred to a Committee of  two Hon’ble Judges, which, after issuing notices and giving an  opportunity of making representations to the appellants, gave a report  on 26.7.2002 recommending that the promotee officers are entitled to  be ranked senior to the direct recruits.  The report of the Committee  was accepted by the High Court vide order dated 29.8.2002 and the  contesting respondents were declared senior to the appellants.  The  appellants then filed a writ petition on 20.9.2002 before the Jharkhand  High Court challenging the aforesaid decision on the administrative  side dated 29.8.2002 wherein an interim order of stay was passed on  3.10.2002, but ultimately the writ petition was dismissed on 1.4.2003,  which order is the subject-matter of challenge in the present appeal.   8.      Before adverting to the contentions raised by learned counsel  for the parties it will be convenient to reproduce the relevant  provisions of the Bihar Superior Judicial Service Rules, 1946, which  have been made by Governor of Bihar in exercise of powers conferred  by the proviso to Article 309, read with Article 233 of the  Constitution of India and in supersession of all existing rules and  orders on the subject.  The Rules were published by notification dated  31.7.1951 but in view of Rule 1(2) they are deemed to have come into  force on 21.10.1946.  Rules 2, 3, 5, 6, 15 and 16, which are relevant  for the decision of the present case, are being reproduced below: - "2. Definitions \026 In these rules, unless there is anything  repugnant in the subject or context. \026 (a)     "cadre" means the cadre of the Bihar Superior Judicial  Service; (b)      "direct recruit" means an officer appointed to the  Service in accordance with clause (a) of rule 5; (c)      "promoted officer" means an officer appointed to the  Service from the Bihar Civil Service (Judicial Branch)  by promotion in accordance with clause (b) of rule 5;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

and (d)      "Service" means the Bihar Superior Judicial Service.

3.      (1) The strength of the Service and the number and  character of the posts shall be as specified in the schedule  to these rules.         (2) The State Government may, from time to time,  after consultation with the High Court amend the said  schedule.

5.      Appointment to the Bihar Superior Judicial  Service, which shall, in the first instance, ordinarily be to  the post of Additional District and Sessions Judge, shall  be made by the Government in consultation with the  High Court- (a)     by direct recruitment, from among persons  qualified and recommended by the High Court for  appointment under clause (2) of Article 233 of the  Constitution; or (b)     by promotion, from among members of the Bihar  Civil Service (Judicial Branch).

6.      Of the posts in cadre of the Service, two-third shall  be filled by promotion and one-third by direct  recruitment;         Provided that the State Government may in  consultation with the High Court deviate from the said  proportion in either direction.

15.(1) (a)      A member of the Service appointed under  clause (a) of rule 5 shall be on probation for a period of  one year and shall not be confirmed unless he is found to  be suitable in every respect for appointment to the  Service:         Provided that the period of probation may be  extended by the State Government, in consultation with  the High Court.         (b) When such a member is confirmed in the  Service, the period spent on probation shall be counted  towards leave, pension or increments in the relevant time  scale. (2)     Promoted officers appointed against substantive  vacancies in the cadre shall forthwith be confirmed in the  Service.

16.     (a) Seniority inter se of direct recruits shall be  determined in accordance with the date of their  substantive appointments to the Service:         Provided that a direct recruit appointed to the post  of an Additional District Judge shall be junior to a direct  recruit appointed to any other post in the schedule.         (b) Seniority inter se of promoted officers shall  also be determined in accordance with the dates of their  substantive appointments to the Service.         (c) When more than one direct recruit is appointed  at one time, the seniority inter se will be determined in  accordance with the order given in the notification  making their appointments.         (d) When more than one appointment is made by  promotion at one time the seniority inter se of the officers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

promoted shall be in accordance with their respective  seniority in the Bihar Civil Service (Judicial Branch).         (e) Seniority of direct recruit vis-‘-vis promoted  officer shall be determined with reference to the dates  from which they may have been allowed to officiate  continuously, in posts in the cadre of the Service or in,  posts outside the cadre or identical time-scale of pay and  of equal status and responsibility or in posts of higher  scale of pay and of higher responsibility in or outside the  cadre:         Provided that when a direct recruit and promoted  officer are appointed on the same date, the promoted  officer shall be senior to the direct recruits."

Rule 5 gives the source of recruitment to the Bihar Superior Judicial  Service, which is by direct recruitment from among persons qualified  and recommended by the High Court for appointment and by  promotion from among members of Bihar Civil Service (Judicial  Branch).  Rule 6 provides that of the posts in the cadre of the service,  two-thirds shall be filled by promotion and one-third by direct  recruitment.  Rule 16 deals with inter se seniority of direct recruits  and promotees and sub-Rule (e) thereof gives the procedure for  determining the seniority of direct recruits vis-‘-vis promotee officers. 9.      Before dealing with the main issue raised in the appeal, namely,  the inter se seniority of direct recruits and the promotees, the first and  foremost question which requires consideration is whether for  calculating the one-third quota of direct recruits as provided in Rule 6,  the temporary posts of Additional District and Sessions Judges have to  be included or not.  Rule 6 only says that of the posts in the cadre of  the service, two-thirds shall be filled by promotion and one-third by  direct recruitment.  Cadre is defined in sub-rule (a) of Rule 2 and it  means the cadre of the Bihar Superior Judicial Service.  It is important  to note here that the definition of "cadre", as given in the aforesaid  Rule does not say that the temporary posts have not to be taken into  consideration or have to be excluded nor there is any indication to that  effect.  The "cadre" means the entire cadre of Bihar Superior Judicial  Service and, therefore, there is no warrant for excluding the temporary  posts. 10.     Shri Amarendra Sharan, learned senior counsel for the  appellants, has submitted that in C.W.J.C. No. 945 of 1991 (Madan  Mohan Singh vs. State of Bihar) the Division Bench of the Patna High  Court had clearly held that the cadre will include both temporary and  permanent posts and for the purposes of Rule 6 all such posts have to  be taken into consideration for determining the one-third quota of  direct recruits.  According to the learned counsel this part of the  judgment of the Patna High Court in the case of Madan Mohan Singh  had not been reversed by this Court as in the appeal preferred by the  State of Bihar this Court only set aside the direction given by the High  Court whereunder the same merit list of 129 candidates was to be  utilized for filling in all the vacancies in the quota of direct recruits,  even though the advertisement had been issued for filling in only 32  vacancies on which appointments had already been made and also the  further direction extending the validity of the merit list for a further  period of six months.  According to the learned counsel the decision  of the High Court to the effect that the temporary posts had also to be  taken into consideration for determining the quota of the direct  recruits had neither been commented upon nor reversed by this Court  and, therefore, the said decision was binding upon the parties. 11.     Shri Vijay Hansaria, learned senior counsel for the contesting  respondents, has, on the other hand, submitted that the mere fact that  this Court did not specifically advert to the aforesaid part of the  judgment of the High Court would not mean that it gave a seal of  approval to the same, specially when the appeal preferred by the State  of Bihar was allowed and the directions issued in the judgment of the  High Court for making further appointments of direct recruits was set

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

aside. 12.     In our opinion, it is not necessary to go into the question as to  what extent the judgment of the Patna High Court rendered in Madan  Mohan Singh vs. State of Bihar remained intact and would  consequently bind the parties.  The question whether for the  application of "quota rule" temporary posts have to be taken into  consideration or not has been examined in several decisions of this  Court.  In A.K. Subraman vs. Union of India AIR 1975 SC 483 (para  29), it was held as under: - "The quota rule will be enforced with reference to  vacancies in all posts, whether permanent or temporary  included in the sanctioned strength of the cadre (except  such vacancies as are purely of a fortuitous or  adventitious nature)......................"

In P.S. Mahal vs. Union of India (1984) 3 SCR 847, it was held as  under: - "It is therefore obvious that if a vacancy arises on  account of an incumbent going on leave or for training or  on deputation for a short period, it would be a fortuitous  or adventitious vacancy and the quota rule would not be  attracted in case of such a vacancy.  But where a vacancy  arises on account of the incumbent going on deputation  for a reasonably long period and there is no reasonable  likelihood of the persons promoted to fill such vacancy  having to revert, the vacancy would be subject to the  quota rule."         "It is, therefore, apparent that what has to be  considered for the applicability of the quota rule is a  vacancy in a post included in the sanctioned strength of  the cadre............................"         "It is thus clear that the vacancies in the posts of  Executive Engineer arising on account of deputation of  Executive Engineers to other departments, organizations  and public undertakings for a period of one or more years  were long term vacancies and they could not be regarded  as fortuitous or adventitious in character and hence they  were subject to the quota rule."

13.     The same question was considered in Keshav Chandra Joshi  and others vs. Union of India and others 1992 Supp. (1) SCC 272,  with reference to U.P. Forest Service Rules, 1952, which provide for  recruitment to the posts of Assistant Conservator of Forest by direct  recruitment and by promotion.  In paragraph 24 of the report it was  held that the rule of quota being a statutory one it must be strictly  implemented and it is impermissible for the authorities concerned to  deviate from the rule due to administrative exigencies or expediency.   It was further held that the result of pushing down the promotees  appointed in excess of the quota may work out hardship but it is  unavoidable and any construction otherwise would be illegal,  nullifying the force of statutory rules and would offend Article 14 of  the Constitution. 14.     An identical question was examined in considerable detail with  reference to U.P. Higher Judicial Service Rules, 1975 in O.P. Garg  and others etc. vs. State of U.P. and others AIR 1991 SC 1202.  Rule 6  of these Rules provides quota for recruitment from three sources, viz.,  (i) direct recruitment from the Bar, (ii) Uttar Pradesh Nyayik Sewa  and (iii) U.P. Judicial Officers Service (Judicial Magistrates).  After a  thorough examination of the question, it was held as under: - "......................The service having comprised of three  sources including the direct recruitment there is no  justification to deprive the direct recruits of their share in  the temporary posts in the service. Unless the direct  recruits are given their due quota in the temporary posts  the seniority rule cannot operate equitably. We see no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

justification whatsoever in having Rr. 22(3) and 22(4) of  the 1975 rules which deprive one of the sources of  recruitment the benefit of appointment to the temporary  posts. The rules on the face of it are discriminatory.  There is no nexus with the object sought to be achieved  by framing the above-said rules. We, therefore, strike  down rules 22(3) and 22(4) of the 1975 rules being  discriminatory and violative of Arts. 14 and 16 of the  Constitution of India. We, however, direct that the  appointments already made under these Rr. 22(3) and  22(4) shall not be invalidated on this ground. We further  direct that while selecting candidates under R. 18 the  Committee shall prepare a merit list of candidates twice  the number of vacancies and the said list shall remain  operative till the next recruitment. We further direct that  the appointments under Rr. 22(1) and 22(2) of the Rules  shall be made to permanent as well as temporary posts  from all the three sources in accordance with the quota  provided under the 1975 rules."

In view of these authoritative pronouncements of this Court there  cannot be any doubt whatsoever that for determining the quota of  direct recruits, both the temporary and permanent posts have to be  counted and taken into consideration and their quota cannot be  confined to permanent posts alone. 15.     As mentioned earlier no appointments by direct recruitment to  Bihar Superior Judicial Service were made after 1979.  Even though  the advertisement was issued in 1985, but no follow-up action was  taken.  It was under these circumstances that K.P. Verma filed a writ  petition, which was heard and decided by a Full Bench of three  learned Judges of Patna High Court, who wrote separate but  concurring opinions and the judgment is reported in K.P. Verma vs.  State of Bihar AIR 1989 Patna 276.  Shamsul Hasan, J., who authored  the main judgment, while disposing of the writ petition, issued several  directions and direction No. (i) which is of vital significance is being  reproduced below: - "(i) The 30 vacancies that are now being filled up were  available earlier and they would ordinarily have been  treated to be the vacancy of the year 1985. This cannot be  done now but it is now to be ensured that the vacancies  meant for direct recruits are filled up in due time.  Though, those who are appointed directly will rank junior  to those who are promoted in the vacancy of the same  year but the direct appointees will rank senior to those  who are promoted after the appointment of direct  recruits, i. e. after the direct appointees of the earlier year  though the Direct recruits might have been actually  appointed later due to official delay. The candidates  appointed against the vacancy of a particular year will in  future be treated as appointees of that particular year.  Further, the vacancies meant for recruitment from  amongst the Advocates should never be filled up by  promotees even on the ground that the posts are lying  vacant due to the delay caused by the appointment  procedure. If any post out of the 30 lying vacant from the  quota of direct recruits has been filled up or is filled up  by promotion, such promotee will revert immediately to  his original position in the service from which he has  been promoted and on being promoted in the future will  rank below those who fill up the 30 vacancies by direct  recruitment."

P.S. Mishra, J. directed that all the existing vacancies should be filled  up within six months from the date of delivery of the judgment and in  no case the State or the High Court shall fill up the vacancies meant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

for direct recruits by promotion or vice versa and continue the parity  until altered by due process of law.  S.B. Sinha, J., issued a similar  direction that the State Government and the High Court should see to  it that the quota rule is not violated and recruitment be made from  amongst the members of the Bar in terms of Clause (2) of Article 233  of the Constitution with utmost expedition and not beyond a period of  six months from the date of the judgment.  The judgment in the case  of K.P. Verma attained finality and the directions issued therein by all  the learned Judges were binding upon the State Government and the  High Court on the administrative side.  Therefore, as a result of this  decision a complete prohibition was imposed upon the State  Government on filling in vacancies of the quota of direct recruits by  giving promotion to members of Bihar Civil Service (Judicial Branch)  and no appointment in the quota of direct recruits in Bihar Superior  Judicial Service could be made by promotion.   16.     Before the notification dated 30.4.1991 promoting the  contesting respondents to the posts of Additional District and Sessions  Judges had been issued, the total number of permanent and temporary  posts in the said cadre was 251 in which the quota of direct recruits  was 83 and that of promotee officers was 168.  However, the complete  quota meant for the promotee officers had already been filled up much  before 30.4.1991 and there was absolutely no scope for any further  promotion.  When steps were being taken to make appointments by  promotion of the contesting respondents and some others, C.W.J.C.  No. 945 of 1991 (Madan Mohan Singh vs. State of Bihar) was filed in  the High Court wherein an interim order was passed on 25.4.1991 to  the effect that such promotion and the question of seniority of the  persons so promoted shall abide by the final results of the writ  petition.  It was further directed that in the appointment/promotion  order the said condition shall be incorporated and the promotees will  have to give a written consent for accepting such a condition.  It is not  in dispute that the appointment/promotion order of the contesting  respondents contained such a condition and respondent Nos. 4 and 6  to 11 joined at their respective places of posting after they had  submitted their consent letters/undertakings.  The contesting  respondents having been promoted in the vacancies which in fact were  in the quota of direct recruits, in normal circumstances, their  promotion was liable to be rescinded after the decision of the writ  petition.  However, as mentioned in the counter affidavit filed by the  Registrar General on behalf of the High Court in C.W.J.C. No. 11620  of 1996 filed in the Patna High Court, this step was not taken on  sympathetic consideration.  Instead the promotees were allowed to  continue treating them as having been promoted against subsequent  quota of promotees. 17.     After the decision in the case of Madan Mohan Singh by the  High Court, which ruled that temporary posts have also to be counted  for determining the one-third quota of direct recruits, which decision,  in our opinion, is legally correct and sound, there was absolutely no  scope for giving promotion to the contesting respondents in the  vacancies, which did not fall in the quota of promotees but fell within  the quota earmarked for direct recruits.  The High Court had issued  clear directions in the case of K.P. Verma that vacancies meant for  recruitment from amongst advocates should never be filled up by  promotees even on the ground that the posts are lying vacant due to  the delay caused by the appointment procedure and further if any post  out of that lying vacant from the quota of direct recruits had been  filled up or is filled up by promotion, such promotee will revert  immediately to its original position in the service from which he had  been promoted.  The promotion order passed in favour of the  contesting respondents on 30.4.1991 was, therefore, liable to be  cancelled.  However, instead of taking this decision, which would  have naturally meant reverting the contesting respondents back to  their original position, they were allowed to continue treating them as  promoted against subsequent quota of promotees.  In such  circumstances there is absolutely no scope for treating the contesting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

respondents as senior to the appellants who are all direct recruits. 18.     Shri Amarendra Sharan, learned senior counsel for the  appellants, has also drawn the attention of the Court to following  observations made in paragraph 27 of the judgment in O.P. Garg vs.  State of U.P. (Supra): - "..................Since the recruitment to the service is from  three sources the existence of a vacancy either permanent  or temporary is the sine qua non for claiming benefit of  continuous length of service towards seniority. The  period of officiation/service which is not against a  substantive vacancy (permanent or temporary) cannot be  counted towards seniority........................."

The aforesaid observations certainly support the contention of the  appellants that as no vacancy either permanent or temporary in the  quota meant for promotees was available on 30.4.1991, the period of  officiation/service rendered by the contesting respondents till a  vacancy in their quota became available to them, cannot be counted  towards their seniority.   19.     The learned counsel for the appellants has also submitted that  the appointment of the contesting respondents was not only contrary  to Rules but was fortuitous in nature and they can get no advantage of  such fortuitous appointment until a substantive vacancy was available  in their quota, which in fact became available much later some time in  the year 1993-94, which is long after the appointment of the  appellants.  What is a fortuitous appointment has been explained in a  Constitution Bench decision of this Court in Rudra Kumar Sain vs.  Union of India (2000) 8 SCC 25.  After observing that the Rules in  question did not define the terms "ad hoc", "stopgap" and  "fortuitous", which are in frequent use in service jurisprudence, the  Court referred to several dictionaries.  The meaning given to the  expression "fortuitous" in Stroud’s Judicial Dictionary is "accident or  fortuitous casualty".  This should obviously connote that if an  appointment is made accidentally, because of a particular emergent  situation, such appointment obviously would not continue for a  reasonably long period.  In Black’s Law Dictionary the expression  "fortuitous" means "occurring by chance", "a fortuitous event may be  highly unfortunate".  It thus indicates that it occurs only by chance or  accident, which could not have been reasonably foreseen.  In Oxford  dictionary the meaning given to the word "fortuitous" is \026 happening  by accident or chance rather than design.  In our opinion it will not be  proper to hold that the promotion of the contesting respondents was  fortuitous as contended by learned counsel for the appellants.  It  cannot be said that the contesting respondents were promoted by  accident or by chance.  Their promotion order was passed as there  were vacancies to the posts of Additional District and Sessions  Judges, though in the quota or direct recruits, but as no recruitment  from the said channel had been made for a long time and sufficient  number of candidates were not available, the vacancies were filled in  by giving promotion to members of Bihar Civil Service (Judicial  Branch).  If promotion orders had not been passed and the posts had  not been filled in, the judicial work in the districts would have  suffered.  However, it is clear that having regard to the various orders  passed on the judicial side by the Patna High Court and the legal  position being well settled that the temporary posts have also to be  counted for determining the one-third quota of direct recruits, the  promotion given to the contesting respondents was not in accordance  with law.  Instead of taking the harsh step of rescinding their order of  promotion the Patna High Court, on the administrative side, took the  decision to treat them promoted against subsequent quota of  promotees.  Therefore, the contesting respondents can under no  circumstances claim seniority over the appellants and the view to the  contrary taken by the Jharkhand High Court on 29.8.2002 on  administrative side and also in the judgment and order dated 1.4.2003,  which is the subject-matter of challenge in the present appeal, is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

wholly erroneous in law. 20.     Shri Vijay Hansaria, learned senior counsel for the contesting  respondents, has submitted that Rule 6 of the Rules, which says that of  the posts in the cadre of the service, two-thirds shall be filled by  promotion and one-third by direct recruitment, is not in absolute terms  but contains a proviso, which lays down that the State Government  may in consultation with the High Court, deviate from the said  proportion in either direction.  Learned counsel has submitted that in  view of the proviso appended to Rule 6 it was fully open to the State  Government not to strictly adhere to the quota rule of one-third and  two-third and the said quota could be exceeded or reduced.  The  submission is that any appointment made by promotion, which was  beyond the two-third quota, would not be illegal and would be fully  saved by the proviso to the Rule.  It is difficult to accept the  contention raised by the learned counsel for the contesting  respondents.  The proviso to Rule 6 does not give untrammeled power  to the State Government to deviate from the substantive provisions of  the Rule which fixes the quota.  On the contrary it says that the State  Government may, in consultation with the High Court, deviate from  the said proportion in either direction.  This is in tune with the  constitutional mandate of Clause (1) of Article 233 of the  Constitution, which says that appointments of persons to be, and the  posting and promotion of, district judges in any State shall be made by  the Governor of the State in consultation with the High Court  exercising jurisdiction in relation to such State.  The proviso  contemplates a conscious decision taken by the State Government  after having consultations with the High Court in this regard.  The  dictionary meaning of the word "consultation" is a council or  conference (as between two or more persons); deliberation of two or  more persons on some matter.  There is neither any pleading nor any  material on record to show that at any point of time the State  Government ever took a conscious decision for deviating from the  quota rule after having made consultation with the High Court.  In  absence of any material to show that any such decision was taken by  the State Government it is not possible to assume that the promotions  made beyond the two-third quota were legal or valid or that the  notification issued on 30.4.1991giving promotions to the contesting  respondents was in accordance with law and was justified. 21.     Shri Vijay Hansaria, learned senior counsel for the contesting  respondents, has also submitted that in the State of Bihar the quota  rule had completely broken down as after 1979 no appointments by  direct recruitment were made for almost 12 years and in such  circumstances the dispute of inter se seniority between the appellants  and the contesting respondents cannot be decided by applying the  principle underlying Rule 6, which provides for quota in the matter of  appointment to Bihar Superior Judicial Service.  In support of this  contention learned counsel has referred to a Division Bench decision  of Patna High Court rendered in Bihar Judicial Services Association  vs. The State of Bihar 1998 (3) PLJR 21.  After observing that  unfortunately after the year 1979 direct recruits were not being  appointed regularly with the result the number of posts to be filled up  by direct recruits were accumulated and they were filled up in one  year the Bench made a casual observation that the quota rule had  broken down and to that extent the promotees benefited in the earlier  years as they were promoted while no direct recruitment took place.   It may be noted that the court did not strike down Rule 6 of the Rules  nor held it to be ultra vires.  There is no direction in the judgment that  henceforth quota rule should not be followed.  Learned counsel has  also referred to a decision of this Court in Direct Recruit Class II  Engineering Officers’ Association vs. State of Maharashtra (1990) 2  SCC 715 and in particular drawn our attention to the opening part of  paragraph 23 of the report where it is said, "Mr. Tarkunde is right that  the rules fixing the quota or the appointees from two sources are  meant to be followed.  But if it becomes impractical to act upon it, it  is no use insisting that the authorities must continue to give effect to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

it.  There is no sense in asking the performance of something which  has become impossible..................."  Reference has also been made to  sub-paragraphs (D), (E) and (F) of paragraph 47 of the reports, where  it is said that when appointments are made from more than one  source, it is permissible to fix the ratio for recruitment from different  sources and if rules are framed in this regard, they must ordinarily be  followed strictly.  It is also said that if it becomes impossible to adhere  to the existing quota rule, it should be substituted by an appropriate  rule to meet the needs of the situation.  In case, however, the quota  rule is not followed continuously for a number of years because it was  impossible to do so the interference is irresistible that the quota rule  has broken down.  We do not think that the authority cited by the  learned counsel can render any assistance to him.  That the quota rule  had broken down is neither pleaded nor demonstrated.  Similarly, no  material has been placed on record to show that it had become  impossible to adhere to the quota rule contained in Rule 6 of the  Rules.  If no direct recruitment had been made after the year 1979 in  the State of Bihar, it was not on account of the fact that it was  impossible to do so.  At any rate after the decision in K.P. Verma’s  case necessary steps were taken for making appointment by direct  recruitment.  The contesting respondents were appointed long after the  publication of the merit list of the examination conducted for making  direct recruitment and it does not lie in their mouth to say that the  quota rule had broken down or that their promotion though made  beyond the quota fixed for promotees, yet the same should be treated  not only perfectly valid but also in a manner so as to give them the  benefit of seniority over the direct recruits.  The other case cited by  Shri Vijay Hansaria is Rudra Kumar Singh vs. Union of India (2000)  8 SCC 25, is clearly distinguishable on facts as the observations made  here have to be seen in the light of the fact that direct recruits of the  year 1980 were claiming seniority over those who had been given  promotion four years earlier in the year 1976. 22.      Shri Amarendra Sharan, learned senior counsel for the  appellants, has also submitted that both the appellants and the  contesting respondents were members of Bihar Superior Judicial  Service and dispute of their inter se seniority had been settled by the  Patna High Court on the administrative side vide its decision dated  4.9.1996 whereunder appellants were declared to be senior to the  contesting respondents.  In such circumstances it was not open to the  Jharkhand High Court to reopen the issue and take a contrary view on  29.8.2002 whereunder the contesting respondents were declared to be  senior to the appellants.  More so when the decision taken by the  Patna High Court on 4.9.1996 on the administrative side had already  been challenged by filing a writ petition to which respondent Nos. 9  and 11 were parties and the writ petition was still pending.  In our  opinion, as a principle of law, there is no legal bar or prohibition  against an administrative body in seeking to review its earlier decision  provided the parties likely to be affected by such a decision are  afforded an opportunity of hearing.  In the present case the Jharkhand  High Court did give notice to the appellants and they were given an  opportunity to make representations.  Therefore, as an abstract  principle of law, it cannot be said that the decision taken by the  Jharkhand High Court on 29.8.2002 suffers from any legal infirmity.   However, having regard to the background of events and the legal  position emerging from the fact that Rule 6 of the Rules prescribes a  quota and for determining the quota the temporary posts have also to  be counted and taken into consideration and further the orders passed  on the judicial side by the Patna High Court prior to the appointment  of the contesting respondents the inevitable conclusion is that the  contesting respondents cannot claim seniority over the appellants. 23.     In the result the appeal is allowed with costs.  The order dated  29.8.2002 passed on the administrative side by the Jharkhand High  Court and also the judgment and order dated 1.4.2003, which is the  subject-matter of challenge in the present appeal, are hereby set aside.   The administrative decision taken by the Patna High Court on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

4.9.1996 is restored and the appellants shall be treated as senior to the  respondent Nos. 4 to 11.