2021 (0) AIJEL-SC 67590

SUPREME COURT OF INDIA

(MADHYA PRADESH HIGH COURT)

Hon'ble Judges:L.Nageswara Rao and Aniruddha Bose JJ.

Prem Narayan Singh Versus Hon Ble High Court Of Madhya Pradesh


Writ Petition (Civil) No. 1069 of 2019 ; *J.Date :- AUGUST 12, 2021



Cases Referred To :
  1. All India Judges Association & Ors. V. Union Of India And Ors., 2002 4 SCC 247 : 2002 AIR SC 1752 : 2002 (3) Scale 291 : JT 2002 (3) 503 : 2002 AIR SCW 1706
  2. Dinesh Kumar Gupta & Ors. V. Hon Ble High Court Of Judicature Of Rajasthan And Ors., 2020 0 SCCOnlineSC 420

Equivalent Citation(s):
2021 JX(SC) 437 : 2021 AIJEL_SC 67590


JUDGMENT :-

L.NAGESWARA RAO, J.

1 Interlocutory Application for impleadment is allowed.

2 Initially, there were two sources of recruitment to the Higher Judicial Services, namely by promotion from the members of the Subordinate Judicial Service and by direct recruitment. The final report dated 11.11.1999 by Justice Shetty Commission was considered by this Court in its judgment dated 21.03.2002 in All India Judges Association & Ors. v. Union of India and Ors., (2002) 4 SCC 247

3 The Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 1994 (hereinafter, the 1994 Rules ) was accordingly amended in the year 2005. Rule 5 of the 1994 Rules reads as follows: -

4 Seniority of the members of the Higher Judicial Services is dealt with in Rule 11 which is as follows: -

5 On 22.04.2007, the Full Court decided that the seniority of Civil Judges who have been selected through LCE shall be on the basis of their merit. A representation was preferred on 23.10.2007 by Mr. N.P. Singh who has filed an application for impleadment in this Writ Petition, requesting the High Court to determine seniority of those Civil Judges who have been promoted after passing the LCE on the basis of seniority in the lower cadre. He filed a Writ Petition in the High Court of Madhya Pradesh on 24.12.2017 which this Court is informed is pending. The representation preferred by Mr. N.P. Singh was rejected on 12.12.2008. Smt. Giribala Singh, one of the impleading Respondents in this Writ Petition has also preferred a representation for restoration of original seniority in the lower cadre to determine the seniority in the Higher Judicial Services which was not accepted.

6 This Court is informed by Mr. P.S. Patwalia, learned Senior Counsel appearing for the Petitioners that the Administrative Committee uniformly took a decision that inter se seniority of the District Judges selected through LCE should be on the basis of merit in the examination and in the order in which they were recommended for promotion. On 14.12.2017, the Administrative Committee held that the inter se seniority in the feeder cadre shall not be affected. It was resolved that the LCE shall only be for considering the suitability and it was not intended to alter the inter se seniority of the candidates selected in the LCE. The recommendation made by the Administrative Committee was approved by the Full Court on 18.12.2017.

7 The Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017 (hereinafter, the 2017 Rules ) was notified on 13.03.2018. Rule 11 of the 2017 Rules reads as under: -

8 Rule 11 (4) (b) provides that the seniority of a person promoted through LCE as Civil Judge (Senior Division) shall be determined in accordance with inter se seniority in the lower cadre. Consequently, the gradation list of the District Judges was altered and seniority of District Judges was determined on the basis of their seniority in the lower cadre. The Petitioners whose seniority was adversely affected in view of the decision of the Administrative Committee, approved by the Full Court and the revised gradation list preferred representation to the Administrative Committee, which was rejected. Aggrieved thereby, the Petitioners have approached this Court by filing this Writ Petition.

9 We have heard Mr. P.S. Patwalia, learned Senior Counsel for the Petitioners, Mr. Ravindra Shrivastava, learned Senior Counsel for the High Court of Madhya Pradesh and Mr. Dushyant Dave, learned Senior Counsel for the impleaded Respondents. The contention of the Petitioners is that their seniority as District Judges was properly fixed in accordance with the judgment of this Court in All India Judges Association (supra).

10 There is no dispute regarding their merit in the LCE and the High Court rightly determined the seniority amongst those promoted in the LCE quota as per the recommendations made by the High Court. They relied upon the second proviso to Rule 11 of 1994 Rules, according to which inter se seniority amongst persons promoted by an order of the same date shall follow the order in which their names have been recommended by the High Court. It was argued on behalf of the Petitioners that the agenda placed before the Administrative Committee in 2017 related to the seniority of those District Judges selected by direct recruitment. However, the Administrative Committee proceeded to depart from the earlier decisions of the Full Court and decided that inter se seniority of District Judges from the LCE quota should be on the basis of seniority in the lower cadre. The Petitioners argued that the decision of the Administrative Committee as approved by the Full Court is contrary to the judgment of this Court in All India Judges Association (supra). Insofar as the 2017 Rules are concerned, it was submitted on behalf of the Petitioners that their seniority cannot be revised as Rule 11 (1) provides that the relative seniority of members of services holding substantive posts in their respective quota at the time of commencement of the 2017 Rules shall be as it existed before the commencement of the 2017 Rules. In other words, the Petitioners contended that their seniority which was settled at the time of their promotion cannot be disturbed. The Petitioners suggested that Rule 11 (4) (b) of 2017 Rules, according to which inter se seniority of the District Judges promoted through LCE should be on the basis of seniority in the lower cadre, is contrary to law. Petitioners referred to a judgment of this Court in Dinesh Kumar Gupta & Ors. v. Hon ble High Court of Judicature of Rajasthan and Ors., (2020) SCC Online SC 420 to submit that this Court while interpreting a Rule which is in pari materia, held that inter se seniority of District Judges promoted through LCE should be on the basis of merit in the examination.

11 The resolution of the Administrative Committee dated 14.12.2017 which was approved by the Full Court was supported by Mr. Ravindra Shrivastava, learned Senior Counsel by arguing that the view taken by the High Court is a possible view and should not be interfered with by this Court. However, Mr. Shrivastava submitted that dispute relating to the criteria for inter se seniority of LCE candidates has been settled by this Court in Dinesh Kumar Gupta s case.

12 Mr. Dushyant Dave, learned Senior Counsel appearing for the impleaded Respondents submitted that the Writ Petition deserves to be dismissed in limine for non-joinder of the parties. None of the District Judges who would be adversely affected have been made parties to the Writ Petition. He argued that introduction of LCE is only for providing a method of recruitment. He submitted that promotion to the Higher Judicial Services is on the basis of seniority-cum-merit to which an exception is carved out by providing a channel of promotion on the basis of merit amongst senior Civil Judges. Merit has to be restricted only for the purpose of selection. This Court in All India Judges Association s case did not hold that the inter se seniority of District Judges promoted through LCE should be on the basis of merit. According to him, if the Petitioners case is accepted, the senior Civil Judges who have already been selected as District Judges through LCE would be seriously affected. The decision of this Court in Dinesh Kumar Gupta s case is per incuriam, according to Mr. Dave as it is contrary to the law laid down in All India Judges Association and it needs to be ignored. He further argued that the earlier decisions of the Full Court are contrary to the Rules and the decision of the Administrative Committee in 2017 is in strict conformity with the Rules.

13 Appointment to Higher Judicial Services in accordance with the Rules was initially by direct recruitment and promotion. On the basis of the recommendations by Justice Shetty Commission, this Court directed that 25 per cent of posts in the service filled by promotion should be strictly on the basis of merit through LCE of Civil Judges (Senior Division). The High Courts were directed to frame appropriate rules in conformity with the judgment in All India Judges Association. This channel of promotion on the basis of merit in LCE was introduced to provide an incentive to relatively junior officers to get quicker promotion.

14 In Dinesh Kumar Gupta (supra), this Court considered the issue relating to inter se seniority of District Judges promoted through LCE. Source of recruitment to the Rajasthan Higher Judicial Services in Rule 31 of Rajasthan Higher Judicial Service Rules, 2010 is similar to Rule 5 of the Madhya Pradesh Higher Judicial Service Rules. The decision of the Administrative Committee that the seniority in the lower cadre is to be taken into account for the purpose of inter se seniority of the District Judges promoted through LCE was held not to be justified by this Court. It was observed in Dinesh Kumar Gupta (supra) that LCE will be reduced to a mere qualifying examination if inter se seniority in the lower cadre has to be taken into account for determining the seniority of District Judges promoted through LCE. This Court declared that the inter se placement of candidates selected through LCE must be based on merit and not on the basis of seniority in the erstwhile cadre.

15 We are not in agreement with the learned Senior Counsel appearing for the impleaded Respondents that the judgment of this Court in Dinesh Kumar Gupta (supra) is contrary to the law laid down by this Court in All India Judges Association s case. Much stress was laid by Mr. Dave on the fact that introducing a channel of appointment to District Judges would only be providing a method of recruitment and no more. The incentive that was directed to be given to junior officers working as Civil Judges for promotion as District Judges solely on the basis of merit would be defeated if their seniority in the cadre of District Judges is not determined on the basis of their merit in LCE.

16 The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50 per cent of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter se amongst those who have been promoted through LCE.

17 Rule 11 (1) of the 2017 Rules makes it clear that the relative seniority of members of the service who are holding substantive posts at the time of commencement of the Rules shall be as it existed before the commencement of the Rules. The seniority of the Petitioners which has been determined prior to the 2017 Rules cannot be disturbed. The Petitioners will not be adversely affected by Rule 11 (4) (b) of the 2017 Rules which alters the criteria for determination of seniority from merit to inter se seniority in the lower cadre. The resolution of the Administrative Committee approved by the Full Court being contrary to the law laid down by this Court in Dinesh Kumar Gupta s case is set aside. Consequently, the gradation list of the District Judges dated 01.02.2019 shall be revised in accordance with the law laid down by this Court in Dinesh Kumar Gupta case.

18 The Writ Petition is allowed, accordingly.