Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has set aside the order of the single bench of Jammu and Kashmir High Court which quashed an administrative Order of the Chief Justice prescribing certain qualifications for promotion to the post of Head Assistant along with a power of relaxation, persons who were fully qualified as per the rules at the time of appointment. The Court held,

“… the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Background

The respondents were originally appointed as peons (Class-IV) during the period 1989¬1995. They were promoted as Junior Assistants in the year 1997 and as Senior Assistants in 1998-1999.

In contrast, the appellants in these appeals were directly recruited to the post of Junior Assistants in the year 1998. They were promoted as Senior Assistants on various dates in the years 2001, 2005, 2006 and 2008.

In exercise of the power conferred by Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, the Chief Justice of the High Court of Jammu & Kashmir issued an Office Order No.579 dated 24.10.2008, prescribing the qualifications as well as the mode of recruitment for appointment and promotion to various posts in the High Court.

By a common Order dated 30.08.2013, a learned Judge of the High Court quashed the Chief Justice’s Order dated 24.10.2008 on the reasoning

(i) that all persons working as Senior Assistants constituted a homogenous group and hence there cannot be any differentiation among them on the basis of educational qualifications;

(ii)that the Chief Justice’s order dated 24.10.2008 was not put up before the Full Court for approval;

(iii) that Note¬2 of the Chief Justice’s Order restricts the power of relaxation available to the Chief Justice only to cases of persons appointed before 25.04.1987 and hence it is invalid; and

(iv) that the Order of the Chief Justice had the effect of affecting individuals adversely with retrospective effect.

The said judgment was challenged on the ground that the High Court was wrong in thinking that Note¬2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him.

Analysis

In exercise of the powers conferred by Sub-section (2) of Section 108 of the Constitution of Jammu & Kashmir, the High Court issued a set of Rules known as the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, with the approval of the Governor of the State.

“While Rule 4 stipulates that all appointments of the staff of the High Court including promotions shall be made by the Chief Justice, the power to lay down the qualifications and to determine the mode of recruitment is conferred by Rule 6 upon the Chief Justice.”

The prescription of the minimum educational qualification of a graduation, was not an innovation by the Chief Justice, made all of a sudden in the year 2008. It appears that even way back on 25.04.1987, graduation was prescribed as a qualification for promotion to the post of Head Assistant.

“If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut-off date.”

Further, it is worth noticing that the respondents have actually secured a second lease of life, after having failed in the first round of litigation. After the office Order dated 24.10.2008 was issued by the Chief Justice prescribing the qualifications for direct recruitment/promotion to various posts, the contesting respondents got promoted as Head Assistants on 24.11.2008 only because suitable eligible candidates were not available.

“It is only after their promotion was set aside in the first writ petition filed by the qualified candidates, that the contesting respondents woke up from the slumber and initiated a second round of litigation by challenging the Order of the Chief Justice.”

The Order of promotion dated 24.11.2008 promoting the contesting respondents as Head Assistants made it clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation/appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of Chief Justice dated 24.10.2008, until the writ petition filed against their promotion was allowed by the single Judge and the Order also got confirmed in writ appeal by the Division Bench.

The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect was also found to be completely incorrect.

“The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice.”

It was hence held that the High Court erred in thinking that the impugned action of the  Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class.

“… the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non-graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Relief 

However, in view of the fact that the contesting respondents have been working in the post of Head Assistants for quite some time and have also acquired the necessary qualifications, the Court held that they need not be reverted at this stage.

“But the seniority of the appellants vis-a-vis the contesting respondents shall be based on the dates of acquisition of such qualification and the length of service taken together. In other words, the seniority of the contesting respondents will be decided not on the basis of the date of their promotion but on the basis of the date of their acquiring the qualification while occupying the promoted posts.”

[Ashok Kumar v. State of Jammu and Kashmir, 2021 SCC OnLine SC 24, decided on 18.01.2021]


*Justice V. Ramasubramanian has penned this judgment 

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ., while allowing the present petition in part, discussed the right of selected candidates against State advertised vacancies relying on similar precedents.

Background

The Himachal Pradesh Staff Selection Commissioner, Hamirpur (hereinafter referred as “the Commission”), in September 2017, issued an advertisement for filling up 154 posts of Radiographers, wherein essential educational qualification prescribed was as per the Recruitment and Promotion Rules, that is, (a)(i) 10+2 pass in science from a recognized Board of School Education/University (ii) Diploma in Radiology from an institution recognized by the Central/HP Government or B.Sc. Degree in Radiology from a recognized University b) must be registered with Himachal Pradesh Para Medical Council, Shimla. In July 2018, the Commission conducted direct evaluation process for these advertised posts of Radiographers and thereafter, on 15-12-2018, the Commission declared the result, wherein two candidates Beli Ram and Yogita Chauhan, respondents 7 and 8 in CWP No. 3371 of 2019 were selected, whereas candidatures of the petitioners were rejected by the Commission, which compelled the petitioners and similarly situated persons to challenge the rejection order before the erstwhile Himachal Pradesh Administrative Tribunal by filing various Original Applications (OAs). These OAs were listed in December 2018 and the Tribunal passed interim direction holding the petitioners eligible for the post in question and directed their results to be prepared by the Commission.

All these petitions were eventually disposed by a common order dated 22-05-2019 by directing the State Government to constitute a committee of experts to examine equivalence of the academic/technical qualifications possessed by the petitioners and recognition thereof and the Commission was directed to proceed with the matter in light of the report of the committee of experts. The State, in turn, by notification dated 16-08-2019, constituted an expert committee as directed. The expert committee conveyed its report dated 25-09-2019 holding the degrees possessed by the petitioners to be valid for the purpose of recruitment/appointment. However, since the State failed to act even on the basis of the expert committee, the petitioners were constrained to approach this Court by filing instant petitions.

Claims raised

The claims raised in the instant petition can be classified into three main categories;

  1. Claim regarding seniority.
  2. Claims considered and placed in the waiting list.
  3. Claims of petitioners who did not fulfil the eligibility criteria or their names had not been registered with Himachal Pradesh Para Medical Council, Shimla.

 Observation

With respect to claims regarding seniority the Court referred the case of, C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, and said, It is more than settled that if a candidate has been wrongly excluded from the process of appointment on account of illegal and arbitrary action on behalf of the State, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed. Accordingly, the claims of the petitioners in first category are allowed and these petitioners are held entitled for grant of seniority from the date when respondents No. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e. 15-12-2018.”

Allowing the second category of claims as well, Court considered the case of Neelima Shangla v. State of Haryana, (1986) 4 SCC 268, wherein the Supreme Court observed that it is always open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. The ratio laid down in the said judgment was further substantiated as well as elaborated by Shankarsan Dash v. Union of India, (1991) 3 SCC 47, wherein it was held that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, still the successful candidates acquire an indefeasible right to be appointed. According to the Supreme Court, notification merely amounts to an invitation to qualified candidates to apply or recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, the Court also stated that it does not mean that the State has the license of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. It was declared that if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. Reliance was also placed on Asha Kaul v. State of Jammu and Kashmir, (1993) SCC 2 573, where the Supreme Court again said that “mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment. It was further stated, that there is obligation of the Government to act fairly and the whole exercise cannot be reduced to a mere farce”. Court also made a special mention of the recent judgment in Dinesh Kumar Kashyap v. South East Central Railway, (2019) 12 SCC 798.

Finding no merits, the Court rejected the third category of claims.

 Decision

Allowing the present petition in part, Court made a systematic evaluation of the three categories of claims and further issued necessary directions.[Robin Singh v. State of Himachal Pradesh, 2020 SCC OnLine HP 2998, decided on 12-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In the case relating to seniority of teachers appointed with Shri Samarth Shikshan Sansthan, the 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has held that a person who neither a graduate nor a trained teacher at the time of his initial appointment cannot claim seniority over a someone possessing graduation and B.Ed degrees.

Background

The appellant, Madhavi, was appointed with Shri Samarth Shikshan Sansthan on a temporary basis on 16.7.1985. At that time, she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. However, she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards, possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. Later, Chagan acquired B.Sc. degree and entered Category ‘D’ of Schedule ‘F’ of the Rules on 21.2.1997. Chagan then obtained B.Ed. degree in the year 1999 and was thus placed in Category ‘C’ of Schedule ‘F’.

When Madhavi was appointed as the Head Master of the School, Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi who was appointed against a temporary vacancy on 16.7.1985. Therefore, he is senior to her. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985 in terms of Rule 6 read with Rule 2(1)(j) of the Rules. It was contended that the post of Secondary Teacher was not vacant in the year 1985, therefore, Madhavi was illegally appointed as Primary Teacher which is Category ‘E’ post whereas he was appointed on 1.8.1985 and thus, he is senior to Madhavi.

Analysis

The Court noticed that Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule ‘B’ of the Rules. Such teacher is assigned Category ‘E’ as per Schedule ‘F’. Clause II(1) of Schedule ‘B’, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category ‘D’ and later on after acquiring B.Ed. degree, he entered Category ‘C’, whereas Madhavi was already in Category ‘C’ since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed. Though she was appointed against a regular vacancy on 24.11.1988.

Explaining the Scheme of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and the Rules, the Court noticed that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule ‘B’ prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule ‘B’. Similarly, Schedule ‘F’ deals with rule of seniority having different categories. Category ‘E’ is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers.

Hence, the Court held that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of the Rules.

It was, hence, concluded that Madhavi’s appointment was in accordance with Section 5(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. However, Chagan could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.

[Madhavi v. Chagan, 2020 SCC OnLine SC 1007, decided on 09.12.2020]

 

Case BriefsSupreme Court

Supreme Court: In the case where Direct Recruits to the newly created posts of Tax Assistants in the Finance Department of the Government of Rajasthan claimed seniority over Departmental Promotees, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ held that the seniority of the promotees given on the basis of their dates of appointment was justified by Rule 27 of the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975.


Background


  • In 2009, the Finance Department of the Government of Rajasthan granted approval for creation of 554 posts of Tax Assistants.
  • On 4th October 2010, a Departmental Selection Committee was constituted for recruitment of both categories and proceedings were initiated soon filling all the for 554 posts of Tax Assistants. In accordance with the rules, it was proposed to fill the 80% quota of direct recruits to the extent of 443 vacancies and 111 from amongst Departmental Promotees.
  • Amendments to the Rajasthan Commercial Taxes Subordinate Services General Branch Rules, 1975, made with effect from 01.12.2010, prescribed the manner of filling of posts of Tax Assistants.
  • On 16.05.2011, provisional results were declared for the test held for Direct Recruits.
  • The results of the tests for the Departmental Promotees were announced on 14.06.2011 and the promotion letters were issued on 23.06.2011.
  • The appointment orders of the Direct Recruits were issued subsequently; on 04-07-2011.
  • On 05.06.2013, the Commercial Taxes Department of the State of Rajasthan published a seniority list in which those appointed as DPs, in the 20% quota were shown as senior to the Direct Recruits.

Why was the seniority challenged?


The Direct Recruits argued their appointment, later than the Departmental Promotees is the result of manipulation by the department (or, rather some officers in the department) who wished to favor the Departmental Promotees; and that since their selections began before that of the DPs, the second proviso is attracted, for determination of inter se seniority. They also argue that the selection- in terms of the rules, “subsequent selection” necessarily refers to a chronologically later event.

In the present case, the recruitment of the Direct Recruits began with the advertisement in January, 2011 (and Second proviso to Rule 27 (1) 14 thus, in the earlier financial year, having regard to Rule 2 (l)) whereas the selection process for Departmental Promotees began in May, 2011.

It was urged that the amended rule 27, only speaks about the seniority on the basis of date of appointment; however, the proviso (2) clarifies the rule for reckoning seniority when there are two advertisements for the same post, filled through different categories (sources) of candidates. Therefore, the main rule will only apply when the recruitment is through the same advertisement. It cannot be applied in a case where another advertisement is issued for the same post after the release of the results of the first advertisement and appointment order is given in the later case. This process of arbitrary recruitment will always deprive of the candidates in their order of seniority in their whole service tenure which is against the principles of Article 14.


What the Supreme Court said


The Court noticed that the main provision of Rule 27 of the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975 was amended  as to clearly provide that seniority in the cadre would be fixed from the dates of appointment of the employees, or officers, to the cadre. However, the provisos of the Rules 27 were retained.

On a plain reading of the Rule 27 [1] and the two provisos, the Court summarised the following position:

(a) before the amendment of 2002, seniority of personnel appointed to the “lowest categories of posts” in any department was to be determined as from the date of appointment; however, for promotees, it was to be from the date of selection;

(b) after the amendment of 2002, seniority has to be fixed (by reason of Rule 27 (1)) as on the date of appointment to the post or service;

(c) however, in the case of pre-state integration of state (of Rajasthan) or pre-integration of services, seniority could be “modified or altered by the Appointing Authority on an ad hoc basis”- this clearly was meant to be a “sunset” clause, i.e. operative for a limited period;

(d) the second proviso,- which is the one pressed into service by the Direct Recruits, states that seniority of those selected earlier will be determined over those selected latter

Explaining the scope of Rule 27, the Court said the principal mandate of the rule is that seniority is determined on the basis of date of appointment (“shall be fixed from the date of their appointment”). Proviso (2) lists out two rules. The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed through a later selection process.

The Rajasthan High Court was of the opinion that this rule (i.e. proviso) applied to selections from the same source, i.e. where two sets of direct recruits were appointed, those selected through a previous recruitment process, would rank senior to those recruited through a later recruitment process. The Supreme Court termed this interpretation ‘salutary’.

It said,

“There may be various reasons why the ultimate appointment of one batch of recruits may be delayed: challenges to some part of the recruitment process (such as shortlisting, calling of candidates for interviews etc.), during which period, a subsequent recruitment may be undertaken. To forestall any apprehensions as to which of the appointees would be senior, and if those from the earlier process are appointed later, the proviso clarifies that candidates from the earlier process would rank senior, despite the main rule speaking of a date of appointment based seniority.”

The Court applied the same logic to departmental promotees, as well, if two batches of promotees are appointed, through selection. It said,

“The second limb of the second proviso clarifies that when merit based, or seniority based promotions are resorted to, the applicable norm would be seniority in the feeder cadre, to forestall any debate about the rule of merit (in the selection) being the guiding principle.”

Hence, keeping in mind that the advertisements for filling the entire cadre, in both the quotas or streams of recruitment were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies and also the completion of procedure, such as verification of antecedents, the Court held that the seniority of the promotees given on the basis of their dates of appointment was justified.

[Mahonar Lal Jat v. State of Rajasthan, 2020 SCC OnLine SC 956, 26.11.2020]


*Justice S. Ravindra Bhat has penned this judgment. Read more about him here. 

For State of Rajasthan: Additional Advocate General Dr. Manish Singhvi,

For Departmental Promotees: Senior Advocate R. Venkatramani

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, A.S. Bopanna and V. Ramasubramanian, JJ has dismissed the claim of certain District Judges to club their services rendered as advocates with the service rendered by them as Judicial Officers, for determining their eligibility for elevation as High Court judges.

Grievance of the petitioners

The Petitioners were duly selected and appointed as District Judges (Entry Level) by way of direct recruitment. Though they had not completed 10 years of service as Judicial Officers, as on date but at the time of their appointment as District Judges, they already practiced for more than 10 years as advocates.

The petitioners contended that despite being the senior­most in the cadre of District Judges, they have been overlooked and their juniors now recommended for elevation to the High Court as Judges This, according to the Petitioners, was done by the Collegium of the High Court solely on the application of Explanation (a) under Article 217(2) of the Constitution of India. The contention of the Petitioners is that to determine the eligibility of a person, sub-clauses (a) and (b) of clause (2) of Article 217 together with Explanations (a) and (aa) should be applied simultaneously.

What does Article 217(2) say?

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

Explanation for the purposes of this clause

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947 , within India as defined by the Government of India Act, 1935 , or has been an advocate of any High Court in any such area, as the case may be.

Can sub­clauses (a) and (b) of Article 217(2) be clubbed?

The Court explained that Article 217(2) merely prescribes the eligibility criteria and the method of computation of the same. If a person is found to have satisfied the eligibility criteria, then he must take his place in one of the queues. There are 2 separate queues, one from judicial service and another from the Bar. One cannot stand in one queue by virtue of his status on the date of consideration of his name for elevation and at the same time keep a towel in the other queue, so that he can claim to be within the zone of consideration from either of the two or from a combination of both.

“Hopping on and hopping off from one queue to the other, is not permissible. Today, if any of the petitioners cease to be Judicial Officers and become Advocates, they may be eligible to be considered against the quota intended for the Bar. But while continuing as Judicial Officers, they cannot seek to invoke Explanation (a) as it applies only to those who have become advocates after having held a judicial office.”

The Court noticed that the Petitioners want the experience gained by them as advocates to be clubbed together with the service rendered by them as Judicial Officers, for determining their eligibility and once this clubbing is allowed, they would like to take advantage of their settled seniority position in the cadre of District Judges, over and above that of Respondents. In other words, the Petitioners want the best of both worlds.

Sub¬clause (b) of Clause (2) of Article 217 prescribes the number of years a person should have been an Advocate to become eligible for consideration. Therefore,

“if the petitioners want to be considered from the category as advocates, irrespective of their present status as judicial officers, they can always do so, provided they do not stand in the queue intended for judicial officers. The case of the petitioners, as on date falls under Article 217(2)(a) and not Article 217(2)(b).”

On the argument that clubbing should be permitted for contesting respondents as well

Calling this argument, a ‘self-serving argument’ of convenience, the Court said,

“If the argument of the petitioners is accepted and the contesting respondents are also granted the benefit of clubbing, they will be far seniors to the petitioners in terms of the total number of years of service both at the bar and in service. In such an event, the petitioners will not come anywhere near the zone of consideration (within the first 9 or 15).”

The Court explained that filling up the vacancies under the service quota, the collegiums of the High courts consider the ACRs and the judgments of the judicial officers, in the ratio of 1:3 or 1:5 or so. To undertake this exercise, the High courts maintain seniority lists of judicial officers. If there are vacancies to be filled up, the profile of 9 or 15 senior-most officers are considered. In every State, hundreds of judicial officers will satisfy the qualifying criteria, if the argument of the petitioners is accepted.

“Take for instance a case where a person is appointed as a District Judge after 10 years of practice at the Bar. If the contention of the petitioners is accepted, even such a person will be eligible from day one of his appointment as District Judge. Since all such persons cannot be considered for the limited number of vacancies, a seniority list is maintained and a particular number of officers are taken in the zone of consideration, depending upon the number of vacancies sought to be filled up under the quota.”

The cache in the argument of the petitioners is that for the purpose of seniority, they do not want any two services to be clubbed, but for the purpose of eligibility, they want even the practice at the Bar to be clubbed. “This is nothing but a self-serving argument.”

[R. Poornima v. Union of India, 2020 SCC OnLine SC 714, decided on 04.09.2020]

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Dr. DY Chandrachud, JJ has refused to review it’s verdict in B K Pavitra v Union of India, (2019) 16 SCC 129 wherein it had upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservations (to the Posts in the Civil Services of the State) Act 2018.

The Review Petition was filed on the ground that did not consider the binding principles laid down by a Constitution Bench of this Court in M. Nagaraj v Union of India, (2006) 8 SCC 212 and Jarnail Singh v Lachhmi Narain Gupta, 2018 (10) SCC 396 were not considered by the Court  in it’s May 10, 2019 judgment and that, in any case, the matter should have been referred to a Bench of a higher strength. It has also been urged, inter alia, that there is an error apparent in the findings of this Court on the retrospective application of the Reservation Act 2018 and the inapplicability of the ‘creamy layer’ concept to consequential seniority.

The Court, however, said that every ground urged in the review petitions has been addressed on merits in the judgment under review and that it did not find any error apparent on the record to justify interference

The Court had, in it’s May 10, 2019 verdict held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

On the issue of creamy layer, the Court had held,

“The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A).”

The bench had, earlier this year, refused to entertain the applications challenging the validity of Karnataka’s 2018 reservation law, which granted reservation in promotion to employees belonging to SC and ST categories. The Court held that applications filed by a group of general category employees for applying ‘post-based quota’ and the principle of the creamy layer at entry-level in public employment were not maintainable. The maintainability of the MAs was challenged on the ground that though styled as an application for directions, they seek to lay a substantive challenge to the subsequent directions and clarifications issued by the State government in implementing the Reservation Act 2018.

[BK Pavitra v. Union of India, Review Petition (C) No. 1632 of 2019, order dated 30.07.2020]

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the inter se placement of the candidates selected to the Cadre of District Judge through Limited Competitive Examination (LCE) must be based on merit and not on the basis of the seniority in the erstwhile cadre.

The Court arrived at the aforementioned finding while dealing with the challenge to the Report of the Committee of five Judges of the Rajastha High Court under the Chairmanship of the Chief Justice of the High Court.

The report dated 15.03.2019 stated,

“merit of those promoted through LCE should by virtue of Rule 32(2) be considered as the benchmark for promotion, inter-se seniority amongst them in the feeder cadre being maintained by prescription of Rule 47(4), subject to the exception that if an officer by regular method of promotion is able to otherwise secure promotion in the same year in the regular line on his turn and on that basis he gets a higher placement in the seniority, regardless of his selection in the LCE, he should not be put to a disadvantageous position and allowed to retain his position in the seniority based on his regular promotion. In other words, such officer would be entitled to retain seniority, either on the basis of LCE or on the basis of regular promotion, whichever is more beneficial to him.”

Placing reliance on Rule 47(4), the Committee in its Report dated 15.03.2019 held that the inter se seniority of persons promoted to the District Judge Cadre in the same year ought to be the same as it was in the posts held by them at the time of promotion.

Rule 47 (4) of 2010 Rules reads as,

“Inter-se seniority of persons promoted to the District Judge cadre in the same year shall be the same as it was in the post held by them at the time of promotion.”

Whereas Rule 31(2) of the 2010 Rules states,

“Twenty five percent posts in the cadre of District Judge shall be filled in by promotion from Senior Civil Judges strictly on the basis of merit through limited competitive examination conducted by the Court.”

Rule 31(2) of Rajasthan Judicial Service Rules, 2010 uses the expression “strictly on the basis of merit” while dealing with posts to be filled in through LCE. The merit is to be assessed in terms of the scheme laid down in the relevant Schedule. After considering various parameters stated in said Schedule, the successful candidates are selected on the basis of merit. The list of successful candidates becomes the basis for final selection subject to qualifying parameters such as suitability, medical fitness etc.

Holding that the High Court, in its Report dated 15.03.2019, completely failed to appreciate the true character of LCE and reservation of certain quota for that category, the Supreme Court said that the general principle appearing in Rule 47(4) must give way to the special dispensation in Rule 31(2) of 2010 Rules.

The Court explained that if the list is to be drawn up according to merit, it is possible that the last person in the list of selectees may be the senior most and going by the Report of the Committee, if all the selectees are promoted in the same year such last person may as well be at the top of the list of promotes through LCE. In that event, the seniority shall become the governing criteria and the excellence on part of a comparatively junior candidate may recede in the background.

“Instead of giving incentive to comparatively junior and other officers, the entire examination process will stand reduced to a mere qualifying examination rather than a competitive examination affording opportunity to meritorious candidates. The criteria shall then become seniority subject to passing the LCE.”

The Court, hence, directed:

“the seniority list issued in terms of Report dated 15.03.2019 shall stand modified only to the extent that appropriate placement to the candidates selected through LCE be given on the basis of their merit in the examination and not on the basis of their seniority in the erstwhile cadre. Let the appropriate changes be made within four weeks of this Judgment.”

[Dinesh Kumar Gupta v. High Court of Judicature of Rajasthan, 2020 SCC OnLine SC 420 ,decided on 29.04.2020]

Case BriefsSupreme Court

Supreme Court: Upholding the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, the bench of UU Lalit and Dr. DY Chandrachud, JJ held,

“The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.”

Backdrop

The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 . The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v Union of India, (2017) 4 SCC 620 wherein it was held that Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on the ground that an exercise for determining inadequacy of representation, backwardness and the impact on overall efficiency had not preceded the enactment of the law. Such an exercise was held to be mandated by the decision of a Constitution Bench of this Court in M Nagaraj v Union of India, (2006) 8 SCC 212. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The grievance of the petitioners is that the state legislature has virtually re-enacted the earlier legislation without curing its defects.

On whether the basis of the decision in B K Pavitra I has been cured

Holding that in adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily, the Court said that the methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies.

It was hence, held,

“once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact.”

On selection based on “merit”

On the assumption that awarding opportunities in government services based on “merit” results in an increase in administrative efficiency, the Court said,

“administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.”

The Court also said that the arguments that attack reservations on the grounds of efficiency equate “merit” with candidates who perform better than other candidates on seemingly “neutral” criteria, e.g. standardised examinations. Candidates who score beyond a particular “cut-off point” are considered “meritorious” and others are “non-meritorious”. However, this is a distorted understanding of the function “merit” plays in society. It, hence, said,

“the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. “Merit” must not be limited to narrow and inflexible criteria such as one‘s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.”

On the issue of creamy layer

Accepting the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status, the Court held that the concept of creamy layer has no relevance to the grant of consequential seniority. It said,

“The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A).”

On retrospectivity of the Act

Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected.

The Court, hence, held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

Therefore, the benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded.

[BK Pavitra v. Union of India, 2019 SCC OnLine SC 694, decided on 10.05.2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Arun Bhansali, J. allowed a petition filed to claim seniority on the basis of the merit of the petitioners in the merit list based on common selection.

The facts of the case were that the petitioners had participated in the recruitment process in response to an advertisement issued by Zila Parishad in the year 2012, inviting the applications from the eligible candidates for appointment on the post of Teacher Grade III. The petitioners had earlier instituted writ applications and as a consequence of directions issued by the Court, the result was revised in the month of November 2016; resulting into the appointment of the petitioners on the post of Teacher Grade III (Level I/Level-II). Thus the petitioners had already been accorded appointment. However, State-respondent had declined seniority and other benefits to the petitioners from the date the petitioners became entitled on account of revision of the result while candidates lower in merit to the petitioners have been accorded those benefits. Thus, the petitioners claimed benefit of pay fixation and seniority on a notional basis from the date juniors to the petitioners had been accorded in the same recruitment process of the year 2012.

The Court, while placing reliance on the case of Surja Ram v. State of Rajasthan, SBCW No. 3082/2018, directed the State-respondent to extend the benefit of pay fixation and seniority on notional basis to the petitioners from the date juniors to the petitioners had been accorded with reference to the same recruitment process of the year of 2012. It held that seniority to be assigned as per the inter-se merit of the candidates in the merit list based on common selection. [Prakash Chandra Ahari Bhil v. State Of Rajasthan, 2019 SCC OnLine Raj 254, Order dated 15-03-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a petition seeking to quash the orders and further make the petitioner entitled to the post of the Principal.

In the present matter, the petitioner was appointed as an ad-hoc lecturer along with the respondent. Although both were appointed on the same day but the petitioner joined a day prior to the respondent. Also, both were regularized as lecturers on the same day after seven years. The petitioner hence claimed that, since the respondent joined late, therefore that would make him junior and the petitioner senior to him.

The same was rejected by the learned Single Judge placing due weightage on Rule 33-C (3) (b) of the Uttar Pradesh Secondary Education Service Commission (Amendment Act), 1998, and further held that the respondent being older in age, was entitled to seniority.

The Court rejected the petition on two grounds; the fact that the employee could not join on the date when he is required to, cannot act as a detriment. And secondly, the usage of the word “appointment” and not “joining” in clause (a) of Section 33-C (3), which provides for seniority in terms of age, made the respondent entitled to his seniority, thus granted by the learned Single Judge.[Deen Bandhu Singh Rawat v. State of Uttarakhand, 2019 SCC OnLine Utt 131, Order dated 27-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): A Bench comprising of Divya Prakash Sinha, Information Commissioner allowed an appeal and directed the CPIO to adequately liaise with the officers to carry out his duties in the present matter.

In the pertinent case, the appellant has sought details of the sanctioned strength of SAS Grade, JAG, Senior-Scale Grade, Junior Scale Grade and Group-B in legal cadre of Indian Railways from the year 2000 to 2016. Details of the incumbents, names and details of the working place and revised list of the details against each grade issued in the light of orders of CAT were also sought for. The respondent submitted in return that since the seniority list of gazetted employees is made by Zonal Railways while list of non-gazetted employees is made by Railway Board, therefore consolidated information was not available.

The Court directed the CPIO to seek the assistance of the concerned holder of information and provide it directly to the appellant free of cost within 30 days from the date of receipt of this order. [Kasi Vishwanathan v. CPIO, 2019 SCC OnLine CIC 27, Order dated 06-02-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of V.K. Tahilramani, Acting CJ, and M.S. Sonak, J. dismissed a writ petition filed challenging the order of Maharashtra Administrative Tribunal (MAT) whereby the claim of the petitioner to be appointed as a peon in the office of Deputy Conservator of Forests was dismissed.

The petitioner had applied for the said post in pursuance of the advertisement issued by the respondents. The post was for the reserved category and the petitioner belonged to the Other Backward Classes. He obtained 90 marks in the written test equal to the marks secured by Respondent 4, who was finally appointed to the said post on the basis of higher qualifications. The petitioner challenged the appointment before the MAT, which was dismissed. Feeling aggrieved, the petitioner was before the High Court.

The High Court perused Rule 4(3) of Maharashtra Civil Services (Regulation of Seniority) Rules 1982, on which reliance was placed by the petitioner. The said Rule provides that if two persons were appointed on the same date, the person with the earlier date of birth would be placed at a higher position in the seniority list. On the same analogy it was contended that in case of candidates securing equal marks, the candidate with the earlier date of birth should be appointed. The Court held the contention of the petitioner to be misconceived as much as the said Rule pertains to the matter of seniority in service and could not be applied in the matter of appointment. Holding thus, the Court found no fault in the order impugned. Accordingly, the petition was dismissed. [Yogehsh H. Mhaskar v.  State of Maharashtra, 2018 SCC OnLine Bom 1157, dated 03-05-2018]

Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]

Case BriefsSupreme Court

Supreme Court: Deciding the validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (To the Posts in the Civil Services of the State) Act, 2002 which provides for grant of consequential seniority to the Government servants belonging to Scheduled Castes and the Scheduled Tribes promoted under reservation policy, the bench of A.K. Goel and U.U. Lalit, JJ declared the provisions of the impugned Act to the extent of doing away with the ‘catch up’ rule and providing for consequential seniority under Sections 3 and 4 to persons belonging to SCs and STs on promotion against roster points to be ultra vires Articles 14 and 16 of the Constitution.

In the present case where the Assistant Engineers of SC/ST category recruited in the year 1987 were promoted to the cadre of Assistant Executive Engineers while in general merit,Assistant Engineers recruited in 1976 were considered for promotion to the said cadre, the appellants argued that the SC/ST candidates got promotion early and on account of consequential seniority, percentage of SC/ST candidates was much higher than the permitted percentage and all top positions were likely to be filled up by SC/ST candidates without general merit candidates getting to higher positions. The appellant had also argued that as a consequence of accelerated seniority to the roster point promotee, the roster point promotee would reach the third level by the age of 45 and fourth, fifth and sixth level in next three, two and two years, however, the general merit promotee would reach the third level only at the age of 56 and retire before reaching the fourth level. This would result in reverse discrimination and representation of reserved category would range between 36% to 100%.

The exercise for determining ‘inadequacy of representation’, ‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A) of the Constitution. Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. If the State wishes to exercise its discretion under Article 16(4A), it is to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. Even if the State has compelling reasons, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. The Court said that the plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion.

The Court, however, clarified that the judgment will not affect those who have already retired and will not affect financial benefits already taken. Consequential promotions granted to serving employees, based on consequential seniority benefit, will be treated as ad hoc and liable to be reviewed. Seniority list may be now revised in the light of this judgment within three months. [B.K. Pavitra v. Union of India, 2017 SCC OnLine SC 109, decided on 09.02.2017]