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Supreme Court of India
Prem Narayan Singh vs Honble High Court Of Madhya … on 12 August, 2021Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Aniruddha Bose

Non-Reportable

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No.1069 of 2019

Prem Narayan Singh and Ors.
…. Petitioner(s)
Versus

Hon’ble High Court of Madhya Pradesh
…. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

Interlocutory Application for impleadment is allowed.

1. The Petitioners are Members of the Higher Judicial

Services working as District Judges in the State of Madhya

Pradesh. They were appointed to the Higher Judicial Services

from 2007 onwards after being selected in the Limited

Competitive Examinations (for short, ‘ LCE’). They have

challenged the resolution of the Administrative Committee of

the High Court of Madhya Pradesh dated 14.12.2017 by

which it was resolved that the merit of candidates in LCE

would not be relevant for altering inter se seniority in the

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feeder cadre. The Full Court resolution by which the

resolution of the Administrative Committee dated 14.12.2017

was approved is also assailed in the Writ Petition. The

revised gradation list dated 01.02.2019 on the basis of the

resolution of the Special Committee is also questioned in the

Writ Petition.

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. 1 This

Court was of the opinion that an incentive should be provided

to the junior officers to improve and compete with each other

to get quicker promotion. This Court was also of the opinion

that while maintaining 75 per cent appointments to the post

of District Judges by promotion and 25 per cent by direct

recruitment, there should be two methods of promotion. 50

per cent of the posts in the Higher Judicial Services must be

filled up by promotion on the principle of merit-cum-seniority

and the remaining 25 per cent of the posts shall be filled up

1 (2002) 4 SCC 247

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by promotion, strictly on the basis of merit through a limited

departmental competitive examination for which the

qualifying service of the Civil Judge (Senior Division) shall not

be less than five years. The High Courts were directed to

frame rules in that regard.

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: –

“”Rule 5 – Method of appointment
(a) 50 percent by promotion from among the civil

judges (senior division) on the basis of, merit cum

seniority and passing suitability test;
(b) 25 percent by promotion strictly on the basis of

merit through limited competitive examination of civil

judges (senior division) having not less than 5 years

qualifying service;
Provided that notwithstanding that a person has passed

such competitive examination, his suitability for

promotion shall be – considered by the High Court on

the basis of his past performance and reputation;
(c) 25 percent of the post shall be filled by the direct

recruitment from among the eligible advocates on the

basis of the written test and viva-voice conducted by

the high court,

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Provided that if any post earmarked for direct

recruitment remains vacant even after two consecutive

selection processes held for that purpose, the same

shall be filled by promotion from amongst the Civil

Judges (Senior Division), having not less than 7 years of

aggregate Judicial service and have attained the age of

35 years and have not attained the age of 48 years as

on the 1st January of the year in which application for

filling up such vacant posts are invited, strictly on the

basis of merit through written examination and viva-

voce conducted by the High Court keeping in mind

suitability of the candidate on the basis of his past

performance and reputation, on the assumption that

quota for direct recruitment to the extent of vacant

posts has broken, down.”

(2) Appointment to the categories (b) and (c) of subrule

(1) of rule 3 shall be made by the High Court by

selection of members of the service from categories (a)

and (b) respectively on merit-cum-seniority basis;

Provided that no member of the service shall be

appointed in the category (b) and (c) of sub-rule (1) of

rule 3 unless he has completed five years and three

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years continuous service in the category (a) and {b)

respectively.

4. Seniority of the members of the Higher Judicial Services

is dealt with in Rule 11 which is as follows: –

“Rule 11. Seniority –

(1) The seniority of the person appointed to a post in

categories (a), (b) and (c) of sub rule (1) of rule 3 shall,

unless he has been reduced in rank on account of

punishment, be determined in accordance with-
(a) The date of continuous officiation in the service in

case of officers promoted to category (a);
(b) The date of order of appointment in the case of

direct recruits to post in category (a); and
(c) The date of order of promotions to categories (b)

and (c) respectively or such date, as may be specified

in this regard by the High court:
Provided that where the date of continuous officiation

in the case of a member promoted to a post in category

(a) and the date of joining the service in the case of

direct recruit to the post in the same category, be the

same, the promoted officer shall be treated as senior:
Provided further that inter seniority among the persons

promoted by an order of the same date or among direct

recruits appointed by an order of the same date shall

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follow the order in which their names have been

recommended by the High court.

(2) The seniority of persons appointed or promoted to

the various categories prior to the commencement of

these rules, shall also be determined on the basis of

above principles.”

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

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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: –

“11. Seniority: –

(1) The relative seniority of the members of service holding

substantive post within their respective quota at the

time of commencement of these rules shall be as it

exists before the commencement of these rules.
(2) After the commencement of these rules, the cadre

posts in category (a) of sub-rule (1) of Rule 3 shall be

filled up by rotation based on the quota fixed in clauses

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(a), (b) and (c) of sub-rule (1) of Rule 5 in every

recruitment year.

(3) For the purpose of proper maintenance and

determination of seniority of persons appointed through

the aforesaid sources, a roster for filling of vacancies

based on quota of vacancies reserved here-in-above, as

given in Schedule-II shall be maintained for each

recruitment year. This roster would operate on yearly

basis in which applications for appointment were

invited in the recruitment year.

(4) Seniority of persons appointed under clause (a), (b) and

(c) of sub-rule (1) of Rule 5 to the Service in category

(a) of rule (1) of Rule 3 shall be determined in following

manner: –

(a) The Seniority, inter se, of persons appointed by

promotion under clause (a) of sub-rule (1) of Rule 5

shall be determined by their inter se seniority in

the lower cadre;

(b) The Seniority, of person promoted through limited

competitive examination of Civil Judges (Senior

Division) under clause (b) of sub-rule (1) of Rule 5

shall be determined in accordance with the inter se

Seniority in the lower cadre;

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(c) The inter se seniority of Persons appointed to the

Service by direct recruitment under clause (c) of

sub-rule (1) of Rule 5 shall be fixed in the order of

merit they are placed in the selection list, those

recruited earlier shall rank senior to those recruited

later;

(5) The seniority of the members of the service promoted

under clause (a) of sub-rule (1) of Rule 5 and under

proviso to clause (c) of sub-rule (1) of Rule 5 of the HJS

Rules, 1994, (amended vide L.D. No.F.17(E)40/88/21-

B(one) dated 13-08-2015) shall be as per the seniority

in the lower cadre.

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,

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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

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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.2 to submit that this Court while

interpreting a Rule which is in pari materia, held that inter se

2 (2020) SCC Online SC 420

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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

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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.

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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

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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

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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.

……………………………….J.
[ L. NAGESWARA RAO ]

……………………………….J.
[ ANIRUDDHA BOSE ]
New Delhi,
August 12, 2021.

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