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Madhya Pradesh High Court · body

2008 DIGILAW 632 (MP)

Y. D. Shukla v. High Court of Judicature of M. P.

2008-04-29

A.K.PATNAIK, SANJAY YADAV

body2008
ORDER Patnaik, C.J. -- 1. The petitioners, who are all judicial officers belonging to the M.P. Lower Judicial Service, have filed this writ petition with a prayer to declare the second proviso under rule 5(1) of the M.P. Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994, as amended by notification dated 8th June, 2005 as ultra vires the Constitution of India. 2. The relevant facts briefly are that in the year 1994, the M.P. Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994 (for short "the 1994 Rules") were framed by the Governor of Madhya Pradesh in consultation with the High Court of Madhya Pradesh under Art.233 read with the proviso to Art. 309 of the Constitution of India. Rule 5(1) of the 1994 Rules provided for appointment to the posts of District Judge in Senior Time Scale by direct recruitment from the Bar and by promotion by selection on the basis of merit-cum-seniority from amongst officers belonging to the M.P. Lower Judicial Service. The first proviso to rule 5(1) of the 1994 Rules, however, stated that the number of vacancies to be filled up or reserved to be filled up by direct recruitment shall be determined by the High Court from time to time, but shall not exceed 10% of the total permanent strength and direct recruitment shall, as far as possible, be made biennially. The second proviso to rule 5(1) further provided that post for direct recruitment where suitable persons are not available for appointment, shall not be carried forward. In accordance with rule 5(1) of the 1994 Rules, Judicial Officers belonging to M.P. Lower Judicial Service were being considered for promotion by selection on the basis of merit-cum-seniority to the posts of District Judge in Senior Time Scale as and when vacancies arose. 3. In the year 1999, Justice Shetty Commission (for short "the Shetty Commission") submitted its report. In accordance with rule 5(1) of the 1994 Rules, Judicial Officers belonging to M.P. Lower Judicial Service were being considered for promotion by selection on the basis of merit-cum-seniority to the posts of District Judge in Senior Time Scale as and when vacancies arose. 3. In the year 1999, Justice Shetty Commission (for short "the Shetty Commission") submitted its report. The recommendation, in the Shetty Commission's report were considered by the Supreme Court in All India Judges Association and others v. Union of India and others [ (2002)4 SCC 247 ], and the Supreme Court inter alia directed in its order dated 21st March, 2002 that recruitment to the Higher Judicial Service i.e. in the cadre of District Judges will be 50% by promotion from amongst Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing of suitability test, 25% by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service and 25% by direct recruitment from amongst eligible Advocates on the basis of written and viva-voce test conducted by the High Court and appropriate rules shall be framed by the High Court as early as possible. 4. Pursuant to the said direction of the Supreme Court in All India Judges Association case, the Governor of Madhya Pradesh, in consultation with the High Court of M.P., amended the 1994 Rues by notification dated 8th June, 2005 and substituted rule 5( 1) of the 1994 Rules as follows: "5. Method of Appointment. -- (1) Appointment to the posts in category (a) of sub-rule (1) of rule 3 shall be made as follows : (a) 50 per cent by promotion from amongst the' Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing suitability test; (b) 25 per cent 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; Provided further that recruitment to the posts shall be made on the basis of the vacancies available till the attainment of the required percentage. (c) 25 per cent of the posts shall be filled by the direct recruitment from amongst the eligible advocates on the basis of the written test and viva voce conducted by the High Court." In the aforesaid substituted rule, therefore, while the ratio of 50% by promotion on the basis of merit-cum-seniority, 25% by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) and 25% by direct recruitment from amongst eligible advocates on the basis of written test and viva voce conducted by the High Court, as directed by the Supreme Court, has been provided for appointment to the posts of District Judge (Entry Level), a proviso has been introduced in rule 5(1)(a) and (b) that recruitment to the posts shall be made on the basis of vacancies available till the attainment of the required percentage. It is this proviso which has been challenged in this writ petition by the petitioners as ultra vires Arts. 14, 16 and 233 of the Constitution. 5. Mr. Rajendra Tiwari, learned senior counsel for the petitioners submitted that on account of the impugned proviso, presently no promotion from amongst Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing of suitability test is being made and only promotions strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) and direct recruitment from amongst the eligible advocates on the basis of written test and viva voce are being made to fill up the vacancies in the posts of District Judge (Entry Level). He submitted that the quota of 50% by promotion from amongst Civil Judges (Senior Division), 25% by promotion by limited competitive examination of Civil Judges (Senior Division) and 25% by direct recruitment from amongst the eligible advocates on the basis of written test and viva voce should be applied to the vacancies of District Judge (Entry Level) available to be filled up every year and if this is done, Civil Judges (Senior Division) can be considered on the basis of merit-cum-seniority for promotion to 50% of the vacancies every year. He submitted that if the quota of 50%, 25% and 25% for promotion on the basis of merit-cum-seniority, promotion on the basis of limited competitive examination and direct recruitment are applied to the total number of posts or the cadre strength of District Judges (Entry Level), then the right of the petitioners to equality and equal opportunity in the matter of public employment guaranteed under Arts. 14 and 16 of the Constitution would be affected. In support of his submission, Mr. Tiwari cited the decision in Indra Sawhney v. Union of India and others [ AIR 1993 SC 477 ], in which the Supreme Court has held that for the purpose of applying the rule of 50% reservation in favour of the Scheduled Castes, Scheduled Tribes and other backward classes, a year should be taken as a unit and not the entire cadre strength or service as the unit. 6. Mr. Tiwari next submitted that Art.233 of the Constitution mandates that appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court. He further submitted that under Art.235 of the Constitution, the control over district Courts and Courts subordinate thereto including the posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge is vested in the High Court and it is in exercise of such control that the High Court promotes and posts sufficient number of judicial officers as District Judges to ensure that the administration of justice goes on smoothly. He argued that in case, in any particular year, sufficient number of Civil Judges (Senior Division) are not available for promotion strictly on the basis of merit through limited competitive examination or sufficient number of eligible advocates are not available for direct recruitment on the basis of written test and viva voce conducted by the High Court so as to maintain the required percentage of recruitment to the posts as provided in rule 5(1), the High Court will not be able to fill up all the posts of District Judges (Entry Level) in exercise of its powers under Arts.233(1) and 235 of the Constitution. He submitted that in Malik Mazhar Sultan and another v. U.P. Public Service Commission and others [ (2006)9 SCC 507 ], the Supreme Court has observed in paragraph 23 of the judgment at page 513 of the SCC that it is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels and timely steps are required to be taken for determination of vacancies, issue of advertisements, conducting of examinations, interviews, declaration of the final results and 'issue of orders of appointments and for these and other steps, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. He submitted that the impugned proviso, in so far as it prevents the High Court from filling up the available vacancies in any particular year runs contrary to the directions of the Supreme Court in Malik Mazhar Sultan v. U.P. PSC (supra). 7. Mr. V.S. Shroti, learned senior counsel appearing for the High Court, on the other hand, submitted that from the language in paragraphs 27 and 28 of the judgment of the Supreme Court in All India Judges Association case (supra), it is clear that the percentages for promotion on the basis of merit-cum-seniority, promotions strictly on the basis of limited competitive examination and direct recruitment are to be maintained vis-a-vis the total posts of the Higher Judicial Service or the cadre of District Judges. He submitted that in view of the clear language of the Supreme Court and the directions in paragraphs 27 and 28 of the judgment in the All India Judges Association case (supra), the percentages for promotion on merit-cum-seniority, promotion on the basis of merit through limited competitive examination and direct recruitment have to be by reference to the total posts or the service or the cadre, and not by reference to the vacancies in a p31ticular year. He submitted that the right of the petitioners under Arts. 14 and 16 of the Constitution to equality of opportunity in the matters of employment is not in any way affected by the impugned proviso. 8. Mr. He submitted that the right of the petitioners under Arts. 14 and 16 of the Constitution to equality of opportunity in the matters of employment is not in any way affected by the impugned proviso. 8. Mr. Shroti cited the decision in Orissa Judicial Service Association Cuttak and another v. State of Orissa and others [ AIR 1991 SC 382 ], in which the Supreme Court upheld the validity of rule 7 of the Orissa Judicial Service Rules, 1963, which provided that when a vacancy occurs in the Senior Branch of a service, Government shall decide in consultation with the High Court whether it may be filled up by direct recruitment or promotion. He submitted that in the aforesaid decision, the Supreme Court has held that under clauses (1) and (2) of Art.233 of the Constitution, recruitment to the posts of District Judge could be made by promotion from subordinate judicial service as well as by direct recruitment from amongst members of the Bar and rule 7 of the Orissa Judicial Service Rules, 1963 made in exercise of powers under Art.309 read with Art.233 of the Constitution of India could not be challenged merely on the ground that it may, to certain extent, adversely affect the chances of promotion of officers belonging to the junior branch of judicial service. 9. Mr. Shroti also cited the decision in S. Prakash and another v. K.M. Kurian and others [ (1999)5 SCC 624 ], in which the Supreme Court upheld Note (3) in the impugned Rules which provided that whenever a ratio or percentage is fixed for different methods of recruitment to the posts, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or percentage to the cadre strength of the posts to which the recruitment is made and not to the vacancies existing at that time. 10. Mr. 10. Mr. Shroti next cited the decision in Delhi Judicial Service Association v. Delhi High Court [ AIR 2001 SC 2102 ], in which the Supreme Court interpreting rule 7(b) of the Delhi Higher Judicial Service Rules, 1970, as amended in 1987, which provided that recruitment after the initial recruitment shall be made by direct recruitment from the Bar provided that not more than 1/3rd of the posts in the service shall be held by direct recruits has held that the embargo provides that direct recruitment will not exceed 1/3rd of the total number of posts in the service and not qua number of vacancies at any given point of time. 11. Mr. Shroti also cited the decision in Prasad Kurien and others v. K.J. Augustin and others [ (2008)3 SCC 529 ], in which the Supreme Court while interpreting the Kerala Excise and Prohibition Subordinate Service Rules, 1974 and the Kerala State and Subordinate Service Rules, 1958 has held that proportion between direct recruitment and promotion on transfer is to be maintained by looking to the cadre or service strength and not looking to the vacancies which are sought to be advertised. 12. Mr. Shroti submitted that the cadre strength of District Judges (Entry Level) in the year 2006-2007 was 163 posts. Hence 50% of the cadre strength of 163 posts works out to 82 posts whereas as many as 87 Civil Judges (Senior Division), who had been promoted on the basis of merit-cum-seniority were in position. The result is that the Civil Judges (Senior Division) who have been promoted on the basis of merit-cum-seniority have exceeded their quota of 50% provided in rule 5(1) of the 1994 Rules, as amended by the notification dated 8th June, 2005 and for this reason no promotion from amongst Civil Judges (Senior Division) on the basis of merit-cum-seniority can take place in accordance with clause (a) of rule 5(1) of the amended Rules until the required percentages are attained as provided in the impugned proviso. 13. Relevant portion of para 27 and the entire para 28 of the order of the Supreme Court in the All India Judges Association case (supra), on which Mr. Shroti has relied upon are extracted herein below: "27.... 13. Relevant portion of para 27 and the entire para 28 of the order of the Supreme Court in the All India Judges Association case (supra), on which Mr. Shroti has relied upon are extracted herein below: "27.... we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 percent of the total post in the higher judicial services must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the higher judicial service i.e. the cadre of district Judges will be : (1)(a) 50 per cent by promotion from amongst the civil Judges (senior division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of civil Judges (senior division) having not less than five years qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible." (Emphasis provided) 14. It will be clear from the underlined words in para 27 of the order of the Supreme Court in All India Judges Association case (supra), quoted above, that 50% of the total posts in the Higher Judicial Service was to be filled up by promotion on the basis of principle of merit-cum-seniority and 25% of the posts were to be filled up by promotion strictly on the basis of merit through limited departmental examination between Civil Judges (Senior Division) who have not less than five years of service. Hence, the percentage of 50% and 25% were to be worked out not on the basis of vacancies but on the basis of total number of posts. Again, on a reading of underlined words in para 28 of the order of the Supreme Court in the All India Judges Association case, quoted above, we find that the direction of the Supreme Court regarding percentages for promotion from amongst Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority, 25% by promotion strictly on the basis of merit through limited competitive examination from Civil Judges (Senior Division) and 25% by direct recruitment through eligible advocates, was with reference to the Higher Judicial Service, the cadre of District Judges or the posts. Contrary to the aforesaid express directions of the Supreme Court in All India Judges Association case, the High Court could not have provided in the amended rules that the percentages fixed for promotions on the basis of merit-cum-seniority, promotions directly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) and direct recruitment have to be worked out with reference to the number of vacancies in a particular year and not the total posts of the cadre or service. 15. But on reading of both paras 27 and 28 of the order of the Supreme Court in the case of All India Judges Association (supra), we do not find that there is any direction of the Supreme Court that till the percentages of 50%,25% and 25% for promotion on the basis of merit-cum-seniority, promotion on the basis of merit through limited competitive examination and direct recruitment are attained, there should be no promotion from amongst Civil Judges (Senior Division) on the basis 6f principle of merit-cum-seniority. The impugned proviso that recruitment to the posts shall be made on the basis of vacancies available till the attainment of required percentage is therefore not introduced in the Rules pursuant to any specific direction of the Supreme Court in the aforesaid paragraphs 27 and 28 of the order of the Supreme Court in All India Judges Association, case (supra). 16. 16. The question to be decided in this case is whether in the absence of any express direction of the Supreme Court that until the required percentages as mentioned in paragraphs 27 and 28 of the order in the All India Judges Association case (supra), are attained, promotion from Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority could be constitutionally prevented by the insertion of the impugned proviso in the 1994 Rules by the amendment to the 1994 Rules by notification dated 8th June, 2005. 17. Articles 233 and 235 of the Constitution are quoted herein below: "233. Appointment of District Judges. -- (1) Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. 235. Control over subordinate Courts. -- The control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law." It will be clear from language of Articles 233 and 235 of the Constitution that powers are vested in the Governor of the State and the High Court to make appointment of persons to be District Judges by promotion or by direct recruitment. It will be also clear from Art.235 of the Constitution, quoted above that control over District Courts and Courts subordinate thereto including the posting and promotion of persons belonging to the judicial service and holding any post inferior to the post of District Judge shall be vested in the High Court. It will be also clear from Art.235 of the Constitution, quoted above that control over District Courts and Courts subordinate thereto including the posting and promotion of persons belonging to the judicial service and holding any post inferior to the post of District Judge shall be vested in the High Court. The Governor of the State as well as the High Court will also have to ensure that posts of District Judges in the State are filled up by direct recruitment or promotion so that administration of justice in the State does not suffer in any way and that the people of the State get timely justice from the District Courts. 18. In fact, in Malik Mazhar Sultan v. U.P PSC (supra), the Supreme Court has observed : "23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be' provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient• number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All the State Governments, the Union Territories and/or the High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All the State Governments, the Union Territories and the High Courts are directed to file within three months details of the time schedule so fixed and date from which the time schedule so fixed would be operational." 19. All the State Governments, the Union Territories and the High Courts are directed to file within three months details of the time schedule so fixed and date from which the time schedule so fixed would be operational." 19. Contrary to the aforesaid provisions in Arts.233 and 235 of the Constitution as well as the directions of the Supreme Court in Malik Mazhar Sultan v. U.P. PSC (supra), the impugned proviso prevents the High Court and the Governor to fill up all vacancies arising from year to year till the attainment of percentages mentioned in rule 5(1)(a), (b) and (c) of the 1994 Rules as amended. In other words, in a given year, vacancies of the posts of District Judges (Entry Level) cannot be filled up by promotion of Civil Judges on the basis of merit-cum-seniority if suitable candidates for promotion strictly on the basis of merit through limited competitive examination of Civil Judge (Senior Division) or through direct recruitment from amongst eligible advocates on the 'basis of written test and viva voce conducted by the High Court are not available. 20. The contention of Mr. Shroti, however, is that 50% of the posts of District Judges (Entry Level) numbering to as many as 82 have already been filled up by Civil Judges (Senior Division) on the basis of merit-cum-seniority and at present there is an excess number of persons promoted on the basis of merit-cum-seniority and, therefore, no promotion to the post of District Judges (Entry Level) on the basis of merit-cum-seniority of Civil Judges (Senior Division) can take place so long as excess exists and it is for this reason that the impugned proviso has been inserted. It is not imperative that required percentages mentioned in clauses (a), (b) and (c) of rule 5(1) of the 1994 Rules have to be immediately attained and the percentages can be attained gradually so that vacancies do not remain unfilled and the chance of promotion of Civil Judges (Senior Division) on the basis of merit-cum-seniority is not completely choked. 21. The consequence of the impugned proviso would be that for some more years from now, promotion from amongst Civil Judges (Senior Division) on the basis of merit-cum-seniority will not be made and Civil Judges (Senior Division) can only be appointed as District Judges (Entry Level) through limited competitive examination of Civil Judges (Senior Division). 21. The consequence of the impugned proviso would be that for some more years from now, promotion from amongst Civil Judges (Senior Division) on the basis of merit-cum-seniority will not be made and Civil Judges (Senior Division) can only be appointed as District Judges (Entry Level) through limited competitive examination of Civil Judges (Senior Division). Experience during the last two years has shown that not all Civil Judges (Senior Division) can compete in such limited competitive examination which comprises of a written test. Having given up the regular college education long back and not used to writing examinations for several years, Civil Judges (Senior Division) may not be able to successfully compete with other Civil Judges (Senior Division) in a limited competitive written examination for promotion to the posts of District Judges (Entry Level) although they may be otherwise suitable and meritorious for such promotion to the post of District Judge (Entry Level) on the basis of their performance as Civil Judges (Senior Division). Thus, the right of such Civil Judges (Senior Division) to be considered for promotion to the post of District Judge (Entry Level) to equality and equal opportunity in the matters of public employment guaranteed under Arts. 14 and 16 of the Constitution is affected by the impugned proviso. In the decisions cited by Mr. Shroti, provision similar to the impugned proviso that recruitment to the posts shall be made on the basis of vacancies available till the attainment of required percentages was not under consideration before the Supreme Court. The impugned proviso altogether prevents the consideration of Civil Judges (Senior Division) on the basis of merit-cum-seniority for promotion to the posts of District Judges (Entry Level) till the attainment of the required percentages in rule 5(1) of the 1994 Rules, as amended. 22. For the aforesaid reasons, we declare the impugned proviso to rule 5(1) of the 1994 Rules, providing that recruitment to the posts shall be made on the basis of vacancies available till attainment of required percentage as ultra vires Arts. 14, 16,233 and 235 of the Constitution, but we make it clear that this judgment will not affect promotions and recruitments, which have already been made. The writ petition is allowed. The interim order passed by this Court on 22.11.2007 is vacated. Considering the facts and circumstances of the case, parties shall bear their respective costs.