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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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