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CASE NO.: Writ Petition (civil) 516  of 1992

PETITIONER: ISHWAR CHAND JAIN

       Vs.

RESPONDENT: HIGH COURT OF PUNJAB & HARYANA & ORS

DATE OF JUDGMENT:       10/01/2001

BENCH: G.B.Pattanaik, U.C.Banerjee, N.S.Hegde

JUDGMENT:

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     BANERJEE, J.

     Judicial  precedents are available in large numbers in regard  to  the irksome issue of inter-se seniority  between the  direct  recruits  and promotees.   One  direct  recruit judicial  officer, said to be aggrieved by the issuance of a Notification  dated  13th  December, 1990 in the  matter  of revision  and  refixation  of the dates of  confirmation  of Districts/Additional  District and Session Judges in Haryana Superior  Judicial  Service has brought this  matter  before this  Court  under  Article 32 of the Constitution.   On  an analysis  of the factual details, it can undoubtedly be said that  the  matter  itself  has   a  chequered  career.   The appellant  joined  the service on 2nd May, 1983 as a  direct recruit  Additional  District & Sessions Judge  in  Judicial Service  on  probation  for  a   period  of  2  years.   The contextual  facts depict that shortly after joining the post and  during  the  probationary   period,  the   petitioners services were terminated and in accordance with the existing Rules, the recommendation for such termination was duly sent to the State Government but the State Government in its turn however  requested for a further probationary period of  one year.  Subsequently however, upon the expiry of the extended period  the petitioners services were terminated and it  is against  the  termination order, that the  petitioner  moved this  Court  under  Article 32 of the Constitution.   By  an order  dated 26.5.1988 this Court however did set aside  the order   of  termination  and  a  direction  was  issued  for reinstatement  of  the appellant with continuity of  service together  with  all arrears of salary, allowances and  other benefits  and  in terms therewith petitioners  service  was confirmed with effect from 2nd May, 1986.  Subsequent to the placement  of  the  petitioner as above (i.e.  to  say  from 2.5.1986),  the  petitioner however, moved an  interlocutory application  in  the  Civil Appeal No.811 of 1988  and  this Court  on 11th September, 1990 passed an order to the effect that  the petitioners entitlement for confirmation from 2nd May, 1985 cannot be doubted and the High Court was not right in  confirming the petitioner with effect from 2nd May, 1986

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and it is on this perspective a further direction was issued by this Court for confirmation of the petitioner with effect from  2nd May, 1985 within two months and the same was  duly complied  with recording the confirmation as directed.   The petitioner  however  moved  once  again  this  Court,  under Article 32 which is presently under consideration inter alia for  issuance of a Writ of Certiorari for quashing the order or  notification dated 13.12.1990 regarding the placement of the  petitioner in the seniority list.  Incidentally, it  is convenient  to note at this juncture that the petitioner has been placed at Sl.  No.27 in the seniority list.  It is also convenient  to  note  that  whereas  the  petitioner  claims placement  immediately  after Sl.  No.18 i.e.  Shri  Krishan Kant  in the pleadings before this Court but there is slight shift  in  the stand during the course of hearing since  the petitioner  (appearing in person) contended that as a matter       of  fact, the placement should have  been  immediately after Shri M.K.Bansal at Sl.No.20.  Sl.No.19 and before Shri A.S.Garg who is placed at The second Writ Petition presently under  consideration  also contain two other prayers    the first being for issuance of a proper writ striking down Rule 10 (2) regarding the date of confirmation of direct recruits and  portion  of Rule 12 regarding fixation of seniority  on the  date of confirmation as being violative of Articles  14 and  16  of the Constitution and secondly for issuance of  a Writ  of Mandamus directing the Respondent No.1 to refix the seniority  of  the petitioner in accordance with  the  rules after  giving  same interpretation which had been given  for the  petitioners and respondents in the case of H.L.  Randev &  Ors and for appropriate placement of the petitioner being senior  to  Respondent  No.3  to 9  with  all  consequential benefits.  As noticed above the petitioner during the course of  hearing withdrew the names of Respondent No.3 Shri  M.K. Bansal  as also Respondent No.9 Shri B.L.  Gulati and prayed for  striking  off  the  same from the Cause  Title  of  the petition   and  in  terms   therewith  this  Court  directed withdrawal  of  the names as prayed for by  the  petitioner. The  principal  grievance  thus  pertains  to  placement  of Respondent  Nos.4  to 8.  It will not be out of  context  to note  that  Respondent Nos.4 to 8 have all retired from  the Judicial  Service  and the petitioner himself is  to  retire shortly.   Before proceeding with the matter further, a look at  the  prayers  of the Interlocutory  Application  in  the earlier  disposed of appeal noted above would be  convenient at  this  juncture:   a) to fully  implement  the  judgment passed  in Civil appeal No.811 of 1988 decided on 26.5.1988. b) to confirm the petitioner Ishwar Chand Jain at least with@@                                                   JJJJJJJJJJ effect  from 2.5.1985 and to fix the seniority  accordingly.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ c)  to revise the A.C.R.  for the year 1984-85 suitably i.e. from C (unsatisfactory) to B plus (Good) in the light of the  judgment of this Honble Court.  d) to pass such  other further orders as this Honble Court may deem fit and proper in  the  circumstances of the case. It is in regard to  the prayer  (b)  that  Shri   Mahabir  Singh,  learned  Advocate appearing  for  the Respondents contended as  a  preliminary issue for consideration that since the petitioner has prayed for   fixation  of  seniority   in   earlier   Interlocutory Application,  question  of further fixation would not  arise and  the present application is barred under the doctrine of res  judicata  or  constructive res judicata  or  principles analogous  thereto.  We are, however, not impressed with the preliminary  objection  of  the learned Advocate  since  the seniority  list  under challenge in the petition is of  13th

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December,  1990  and the earlier petition was filed  on  7th July,  1990  and  the  order  thereon  was  passed  on  11th September, 1990.  In the premises, question of the challenge being barred by the doctrine of res judicata or constructive res  judicata or under any principles analogous thereto does not  and cannot arise and as such the preliminary  objection of  Mr.   Mahabir Singh fails.  Turning attention on to  the merits  of  the  matter,  be  it noted  that  prior  to  the completion  of  the  probationary  period  the  rules  stood amended and Mr.  Mahabir Singh, Advocate for the Respondents contended  that  it  is the earlier rule which ought  to  be treated  as the governing rule in the matter of placement of the  petitioner  in  the seniority list and it  is  on  this score,  the  petitioner  while conceding the factum  of  the earlier  rule being the governing rule, contended that  Rule 10(2)  and a portion of Rule 12 however ought to be declared as  invalid  since the same is violative of Articles 14  and 16.   Rule  10 (2) and Rule 12 as the Rules then  stood  and before  amendment  read  as below:  Ru  le  10.   Probation (1)  (2)  On the completion of 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.        12.     Seniority:-    The Seniority-inter-se  of  the  substantive   members  of   the service, whether direct recruits or promotee officers, shall be  determined with the reference to the respective dates of their confirmation;  (Emphasis supplied)

     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;  (ii)  in  the  case  of promotee  officers, in accordance with the seniority in  the Punjab   Civil  Service  (Judicial   Branch)  as  it   stood immediately before their confirmation;  (iii) in the case of promotee  officers  and  direct recruits, the older  in  age shall be senior to the younger.

     The  validity  of Rule 10(2) also that  of  emphasised portion  of  Rule 12 as above, are under challenge  in  this Writ Petition.

     In order however to appreciate the submissions made by the  parties and for effective adjudication of the  disputes between  the  parties it would be convenient to  note  Rules 2.1,  2.2  and  2.6 at this juncture and the  same  read  as below:

     Rules  2.1  Appointment  to   the  Service  means  an appointment to a cadre post, whether on permanent, temporary or officiating basis or on probation.

     Rules  2.2 Cadre post means a permanent post in  the service.

     Rules 2.6 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

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     b) who is appointed to a cadre post in accordance with the provisions of these rules;

     These  rules, however, stood amended as noticed  above and excepting the amendment to Rule 2.2 there is not much of a  change introduced by the amendment to the rules since the amendments  pertain to the alteration of number from earlier Rule  2.6  to  present 2.5.  Definition of Cadre  post  in terms  of  Rule  2.2  however has  undergone  a  substantive change:   whereas  in the earlier rule Cadre post meant  a permanent  post  in the service, under the new and  existing Rule.   Cadre  post  means  a post  whether  permanent  or temporary  in  the service as regards seniority in terms  of Rule  12.   The amendment seems to be rather drastic in  the sense   that  whereas  the   earlier  Rule  12  specifically provided,  that  the seniority-inter-se would  be  dependant upon reference to the respective dates of their confirmation for   both  direct  recruits   and  promotee  officers,  the amendment  introduced  the  length   of  continuous  service instead of dates of confirmation.  (Emphasis supplied)

     Turning  on to the issue of the validity of the rules, it  has been contended by the petitioner that the portion of Rule 12 of the Rules, which makes the seniority dependant on the  date of the confirmation, is liable to be quashed being arbitrary  and violative of Article 14 of the  Constitution. The  petitioner contended that his entitlement for assigning of  seniority should be next to Shri Krishan Kant Agarwal as the  other respondents being respondent Nos.3 to 8 were  not members  of the cadre on the date of joining the service  by the petitioner i.e.  on 2.5.83 while under the Notifications Nos.606  and  607  dated   13.12.1990  confirmation  of  the petitioner  with  effect  from 2.5.85 and  fixation  of  his seniority  next  to  Shri RD Aneja and Ors.  cannot  but  be ascribed to be illegal and void being contrary to the Punjab Superior Judicial Service Rules (as applicable to Haryana on 2.5.83)  and in fact runs contrary to the directions  issued by  this Court in the Interlocutory Application No.1A in  CA No.811/88.   The petitioner contended that the petitioner is entitled  to  be confirmed with effect from 2.5.83 and  have his  seniority  fixed  next  to  Shri  KK  Agarwal  and  the seniority  has to be assigned on the date of  promotion/date of  joining service since the appointment of the  petitioner was  on  a vacant post on 2.5.83 and in the cadre  having  a total  strength  of 27 candidates and having regard  to  the ratio  between the direct recruits and promotees, the former were  entitled to 9 posts whereas promotees were entitled to 18  posts  and  since respondent Nos.  3 to 8  do  not  come within  those 18 promotee officers and Shri KK Agarwal being placed  at Item No.18 in the list of promotee officers there exists  no  manner  of  doubt as to  the  placement  of  the petitioner  before  respondent  Nos.   3 to  8  as  promotee officers.   Mr.   Mahabir Singh on the other hand  contended that at the time of appointment of the petitioner along with two  others  in the Haryana Superior Judicial Service  there were  27  permanent posts in the cadre.  According  to  Rule 8(2) of the Punjab Superior Judicial Service Rules, 1963 (as applicable to the State of Haryana) in force on the relevant date,  the  number  of  posts to be  manned  by  the  direct recruits  were  nine.  There were only 6 direct recruits  in the service they being (1) Sh.  N.S.  Rao, (2) Sh.  SK Jain, (3)  Sh.  R.K.  Nehru (4) Shri Surinder Sarup (5) Sh.   B.L. Gulati  and (6) Sh.  V.M.  Jain.  At the time of appointment of  the  petitioner  along with two others  in  the  Haryana

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Superior  Judicial  Service, only 24 officers (18  promotees and 6 direct recruits) were working against the permanent 27 cadre  posts  meaning  thereby that 3 permanent  posts  were lying  vacant.   It  may also be stated that  prior  to  the amendment  made in Rules 2(2) and 12 of the Punjab  Superior Judicial  Service Rules, 1963 (as applicable to the State of Haryana)  with  effect from 19.3.1984 only  permanent  posts were  treated  as  cadre posts and seniority of  members  of Haryana  Superior Judicial Service was to be determined with reference   to  the  respective   dates   of   confirmation. Incidentally, factors relating to confirmation in service of the  officers of the Haryana Superior Judicial Service stand settled  by  the decision of this Court in B.S.   Yadav  and Ors.   v.  State of Haryana and Ors.  (AIR 1981 SC 561)  and the  directions for confirmation in service of the  officers as  contained therein are summarised as below:  (i) A member of  the service who had been appointed thereto by  promotion would  if  he was otherwise fit for confirmation, was to  be confirmed with effect from the date on which vacan cy became available  in the quota of promotees:  (ii) a direct recruit could not be confirmed against a post available in the quota of  direct recruits from a date earlier to the date on which he  had satisfactorily completed his period of probation  of two  years.   Incidentally,  according to  the  instructions contained in Haryana Government letter No.6817-2GSI-76/28957 dated 29.10.1976 the policy of the State Government has been that the temporary posts which have been in existence in the permanent departments for five years or more and the work of which  is of a continuous nature, would be made permanent by the   Administration  Department   after  obtaining   formal concurrence  of the Finance Department.  On the wake of  the observations and the directions of the Constitution Bench in Yadavs  case  (supra) Sh.  IC Jain, the  petitioner  having joined  Haryana Superior Judicial Service on 2.5.1983, could not  be confirmed earlier to 2.5.1985 i.e.  on completion of two  years period of probation.  It may also be stated  that the  Haryana  Government vide their letter dated  24.12.1981 converted  one post of District & Sessions Judge with effect from 24.12.1981 into cadre (permanent) post thereby revising the  cadre  strength  from  18 to  19  of  permanent  posts. Against  this  post,  Sh.  R.K.  Gupta (since  retired)  was confirmed.   Similarly  the  Haryana Government  vide  their letter  dated  1.6.1982  converted 8  temporary  posts  into permanent  raising the cadre posts in the service from 19 to 27.   Out  of  these 8 permanent posts, 3  posts  were  kept vacant  for  direct  recruits to complete  their  quota  and against   5  remaining  posts   S/Sh.   O.P.   Gupta  (since retired),  RC  Jain  (since expired), I.P.   Vasishth,  N.K. Jain  and  O.P.   Gupta-II were confirmed with  effect  from 1.6.1982  as the records depict.  In the meantime Sh.   B.S. Yadav,  Sh.   O.P.Gupta  and Sh.  K.L.  Wason  retired  from Haryana   Superior  Judicial  Service   with   effect   from 31.7.1982, 31.12.1982 and 31.5.1983 respectively and against these posts S/Sh.  Krishan Kant, M.K.  Bansal and A.S.  Garg were  confirmed.   The Haryana Government vide their  letter dated  10.11.1988 converted 1 temporary post of Joint  Legal Remembrancer  into  permanent one with effect from  1.6.1983 and  Sh.  M.S.  Nagra, was confirmed against this post.  The Haryana  Government  vide  their   letter  dated  14.11.1983 converted 3 temporary posts into permanent raising the cadre posts  in  the  service  from  28 to 31.   Out  of  these  3 permanent  posts, 1 post was kept vacant for direct recruits to complete their quota and against 2 remaining posts S/Shri S.B.   Ahuja and Gorakh Nath were confirmed with effect from 14.11.1983.   One  permanent post in the cadre  of  promotee

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officers became available on the untimely death of Sh.  V.K. Jain  (I) on 22.11.1983 and against this permanent post Shr. R.D.   Aneja was confirmed with effect from 22.11.1983.  The petitioner  Shri  I.C.  Jain was confirmed on 2.5.1985  i.e. on  completion of two years period of probation against one of the permanent posts lying in the quota of direct recruits with   effect  from  14.11.1983  in  accordance   with   the guidelines  of  this  Court, referred to above.   Thus,  the petitioner had been given confirmation on the due date.

     Incidentally  be it noticed that the petitioner on 7th July,   1990  moved  this  Court  as   and  by  way  of   an Interlocutory  Application  in  a disposed of  matter  being Civil  Appeal  No.811  of 1988 decided on 26.5.1988  for  an order  to  confirm the petitioner at least with effect  from 2.5.1985  and  to fix the seniority accordingly.  The  other prayers  are  not being taken note of by reason of the  fact that  the same are not relevant for the present purpose.  In that  Interlocutory Application, however and for the  prayer as  noted  above, this Court observed having regard  to  the earlier decision as below:

     In view of the above observation there was no adverse entry  against  the  petitioner for the year  1984-85.   The petitioner  was  in normal course entitled  to  confirmation with  effect from 2.5.1985 as no adverse material was  there against  the  petitioners  work or conduct.  But  the  High Court has confirmed the petitioner with effect from 2.5.1986 on  the  premise that the probationary period was  extended. No  order  of  the High Court extending probation  has  been placed  before  us.  Since the initial period of two  years probationary  period  had been completed the  petitioner  is entitled  to  be confirmed with effect from  2.5.1985.   The High Court was not right in confirming the petitioner w.e.f. 2.5.1986.  We accordingly, direct the High Court to consider the  appellants case for his confirmation w.e.f.   2.5.1985 within  two months and if necessary it may hear the officers (on  administration  side)  who  may  be  affected  by  such decision.  The application is accordingly disposed of.

     The  confirmation thus stands effective from 2nd  May, 1985  and not 2nd May, 1986 as was offered.  It is in  terms@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  this order that a Notification dated 13th December, 1990 was published recording the placement of the officers and as per  the date of the confirmation being 2.5.1985 as directed by this Court, the Petitioner was placed at item No.27, i.e. immediately  after Shri Gorakhnath and Shri Aneja but before Shri M.C.  Agrawal.  S/Shri Gorakhnath and Aneja having been confirmed on 14.11.1983 and 27.11.1983 respectively, cannot, but be treated as senior.  This Court has already dealt with the issue and it is on the basis of the directions contained therein that the gradation list has been prepared and we see no  reason  to interfere with the same.  The  contention  of placement  immediately after Sh.  Krishan Kant at No.19  and before  Shri  M.K.  Bansal or Sh.  AS Garg in our view  does not  and cannot arise in the contextual facts having  regard to  the decision of this Court as noticed above.  It is  not the date of joining which ought to be taken note of but date of  confirmation  and in any event since the issue has  been dealt  with by this Court once before, question of reopening of  the same would not arise.  It is on this score, however, that Mr.  Mahabir Singh contended that the same is barred by the doctrine of res-judicata:  whereas it can not be said to

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be  strictly within the ambit of the doctrine but no further relief  can  be granted to the petitioner by reason  of  the finding  of this Court in the absence of which, the decision of  this court in Chandra Kishore Singhs case (L.   Chandra Kishore Singh v.  State of Manipur:  1999 (8) SCC 287) could have  had some application, wherein this Court in paragraphs 14 and 15 of the Report (page 303), observed as below:-

     14.  Seniority itself based upon length of service is an  acquired  right of an employee which entitles him to  be considered for further promotion.  It is generally regulated by   service  rules.   Such   rules  normally  provide   for determined   seniority  with  reference  to  the   date   of appointment  to  the class, category and grade to which  the appointment  is made.  It is determined only on the basis of the length of service.  Such length of service may be on the basis  of the difference of continuous officiation or on the basis  of the difference of continuous officiation or on the basis  of  the difference of substantive appointment in  the cadre  or  grade or service which may be reckoned  from  the date of confirmation on the basis of regularisation.

     15.   It  is  now well settled that even in  cases  of probation  or officiating appointments which are followed by a  confirmation unless a contrary rule is shown, the service rendered  as officiating appointment or on probation  cannot be   ignored   for  reckoning   the  length  of   continuous officiating  service  for  determining   the  place  in  the seniority  list.  Where the first appointment is made by not following  the  prescribed procedure and such  appointee  is approved  later on, the approval would mean his confirmation by  the authority and shall relate back to the date on which his appointment was made and the entire service will have to be  computed  in  reckoning the seniority according  to  the length of continuous officiation.  In this regard we fortify our  view  by  the judgment of the Court in G.P.   Doval  v. Chief Secretary, Government of U.P.  [1984 (4) SCC329]

     The   probationary   period  in   the   matter   under consideration  however cannot be considered by reason of the settlement  of  the issue as above and also the factum of  a contra  service  rule  Incidentally  be it  noted  that  the original  two  year probationary period was extended by  the State Government for one year more, by reason wherefor, this Court  on  a  petition under Article 32  by  the  Petitioner redressed  the  grievance  by   recording  that  substantive placement of the Petitioner ought to be from 2.5.1985 and by reason  of  the  finding and observation of  this  Court  as regards  substantive  appointment   neither  any  continuous officiation nor any probationary period can be considered to ascribe  seniority to the petitioner herein.  The  direction to  the High Court by this Court to consider the appellants case  for confirmation with effect from 2.5.1985 answers all the  queries raised in the matter, as such we need not  even delve  into  the  validity  of the rules as  raised  by  the petitioner  herein and thus would leave the questions  open. Significantly,   petitioners  rank  and   file   has   been determined  by  this  Court at his own instance  and  having gained  the  desired objective, we should have thought  that the  litigatious  spirit would die down or be at its  lowest ebb  at least but unfortunately and we say so since we  feel it  expedient  to record that the spirit continued  unabated and  undaunted and resultantly the instant proceeding, which is,  to put it very mildly, a total abuse of the process  of

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court.   The  petitioner herein, has been able  to  persuade this  Court in the earlier matter to redress his  grievances and  even  after obtaining the fullest benefit,  the  demand still  remains  to  be insatiable, which in  our  view  runs counter  to all known principles of judicial ethics.  Before we  part with the judgment and record our conclusion in  the matter  we would wish to highlight one aspect of the  matter which needs to be considered with care and caution so far as the  judicial  officers are concerned.  Judiciary is one  of the  three  organs  of  the State  and  owes  constitutional responsibility.   Responsiveness to the needs of a  litigant to  have  the  matter disposed of  expeditiously  cannot  be decried  in any way and in any event is the need of the day. The petitioner herein has been in the judicial service since 1983  (if  that  date had to be taken note of)  and  a  long period  of  seventeen years has been spent more in  the  law courts  in  ventilating the personal grievance  rather  than redressing the grievances of the litigant public.  All of us owe  a duty to the public at large and one need not take the extreme  recourse unless placed against a wall.  There might be  some  grievances here and there or some  dissatisfaction about  service  conditions  but   that  will  not  otherwise authorise   a  judicial  officer  to  indulge  in   fanciful litigations.  With these observations we do feel it inclined to  record our opinion in the matter to the effect that  the writ  petition  has  no merit and as such  the  same  stands dismissed  with costs assessed at Rs.  2000/- to be paid  to the Legal Aid Committee of this Court.