Registrar General and Others Vs Department of Law Justice and Human Rights and Others - Citation 1143926 - Court Judgment

Judgment:

(Prayer: These Writ Appeals Are Filed U/S 4 Of The Karnataka High Court Act Praying To Set Aside The Order Passed In The Writ Petition 41634-691/12 Dated 27/9/13.)

(These Writ Appeals Are Filed U/S 4 Of The Karnataka High Court Act Praying To Set Aside The Order Passed In Writ Petition Nos. 41684-691/12 Dated 27/9/13.)

Cav Judgment:

1. These appeals arise out of the common order of the learned Single Judge dated 27/09/2013, in Writ Petition Nos. 41634-691/2012 connected with Writ Petition No. 28147/2013. Writ Appeal Nos. 6249-56/2013 have been filed by the respondents before the learned Single Judge while Writ Appeal Nos. 6514 and 6516-22/2013 have been filed by the Registrar General, High Court of Karnataka, Bangalore, CRG' for short).

2. The controversy in these proceedings relates to the inter se seniority between promotees and direct recruits in the cadre of District Judges in the wake of the establishment of Fast Track Courts (FTCs) in the State For the sake of convenience, the parties shall be referred to in terms of their status m the Writ Petitions.

Factual Background:

3. The Writ Petitions were filed by the direct recruits assailing Notification dated 14/09/2012 issued by appellant in W. A. No, 6514/2013 and connected appeals i.e., Respondent IMo.3-RG in the writ petitions, under which final seniority list of the District Judges was published. In that list, Respondent Nos.11 to 85 in the aforesaid writ appeals i.e., Respondent Nos.4 to 85 in the writ petitions were the District Judges promoted to that cadre under various Notifications issued by the State Government. The grievance of the petitioners was that, they had been wrongly placed below Respondent Nos.4 to 85. Under these circumstances, the petitioners sought redoing of the seniority list by taking into consideration the actual date of appointment of the petitioners i.e,, the direct recruits in the year 2008 and the date of promotion of the promotees to the cadre of District Judges which according to them was in the year 2009.

4. Learned Single Judge accepted the contentions of the petitioners and sec aside the Notification dated 14/09/2012 i.e., Final Seniority List of the District Judges, published by RG. A direction was issued to redo the seniority list by takmg into account the actual dates of appointment of the petitioners (direct recruits) in the year 2008 and the dates of promotion of the promotees in the cadre of District Judges in the year 2009. Being aggrieved by the observations and directions of Learned Single Judge, the same are assailed by the promotees as well as the RG.

5. It is the case of the petitioners that they were appointed as District Judge in 25% category of direct recruits provided under Rule 4 of the Karnataka Judicial Services (Recruitment) Rules, 2004 ('2004 Rules' for short) by Notification dated 13/02/2008. Their appointment was pursuant to Article 233 of the Constitution.

6. On account of large pendency of cases and for speedy disposal of Sessions Cases as well as other cases, Eleventh Finance Commission had recommended a Scheme for creation of i734 Fast Track Courts FTCs') for the entire country. A special fund was sanctioned for the said purpose-. The FTC Scheme was for a period of five years. The Central Government accorded its approval for continuation of 1,562 FTCs till 31/03/2005 and for a further period of five years upto 31/03/2010. Pursuant to this Scheme, the Government of Karnataka created 93 FTCs in the State between 29/05/2001 and 20/03/2004 and it was decided to appoint Civil Judges (Senior Division) as District Judges on ad hoc basis and the respondent promotees were promoted as ad hoc District Judges under four different Notifications dated 15/02/2003, 19/03/2003, 15/11/2003 and 20/03/2004.

The Notifications stated that they were promoted temporarily on ad hoc basis to officiate as District Judges in the FTCs subject to reversion at any time. No separate Rules were framed in the State for appointment of ad hoc Judges to the FTCs, unlike certain other states.

7. Totally, 82 Civil Judges (Senior Division) were promoted temporarily, on ad hoc basis to officiate as District Judges in the FTCs under the Karnataka Judicial Services (Recruitment) Rules, 1983 Rules (for short '1983 Rules'). These promotees took charge and functioned as ad hoc District Judges. It is significant to note that their promotions were also within the 50% quota fixed for promotion in the cadre of District Judges under Rule 4 of the Karnataka Judicial Services (Recruitment) Rules, 2004 (for short '2004 Rules'); also 25% to be filled by promotions on the basis of seniority- cum-merit and through Departmental Competitive Examination ('accelerated promotion', for short) was made by Notifications dated 01/06/2009, 27/06/2009 and 29/07/2009 on the basis of norms prescribed in circular dated 12/12/2008 (Annexure R18).

8. Thus on 01/06/2009, the Governor of Karnataka, in exercise of his powers conferred on him under Article 233 of the Constitution, appointed 48 ad hoc District Judges/Civil Judges (Senior Division) within the existing 50% vacancies in the cadre of District Judges by promotion or. the basis of seniority-cum-merit under the 2004 Rules A similai Notification was issued on 29/07/2009 appointing 14 such persons and another Notification was issued on 27/06/2009, whereby 45 ad hoc District Judges/Civil Judges (Senior Division) were filled up in the 25% of the existing vacancies in the cadre of District Judges by accelerated promotion.

9. Though, the vacancies in the cadre of District ludges were filled by promotion to an extent of 50% and Dy accelerated promotion to an extent of 25% under the 2004 Rules, the fact remains that the initial appointment of these promotees as Munsiffs was made under the 1983 Rules. Their entry into the post of ad hoc District Judges on the basis of seniority-cum-merit in the year 2003-04 was pursuant to the recommendation of the Eleventh Finance Commission for creating FTCs. The ad hoc promotions of the District Judges in the year 2003-04 was made after following procedure in force i.e., as contemplated under the 1933 Rules. By the time the Notifications promoting the District Judges were issued in the year 2009, the petitioners were appointed as District Judges in the year 2008 by direct recruitment and they took charge on 25/02/20(38 in the existing vacancies meant for direct recruits in the cadre of District Judges. Initially they were treated as senior to the promoted Judges and they were posted in various districts with independent charge or as Principal District Judges.

19. The promoted District Judges gave representations on 24/08/2009 and 03/11/2009 to RG with regard to their seniority and for consideration of their service as FTC Judges in the cadre of District Judges, based on the directions issued by the Hon'ble Supreme Court in Brij Mohan Lai v. Union of India (AIR 2002 SC 2005) CBrij Mohan Lal-I' for short). In response, RG requested the petitioners to give their reply to the representation, which was submitted on 21/C9/2010. Representations as well as reply were placed before Administrative Committee-I of the High Court in the meeting held on 23/08/2010 to consider the same and to fix inter se seniority of direct recruits and promotees. The Committee considered the representations and the reply and, the judgment of the Hon'ble Supreme Court in Brij Mohan Lal-I as we!I as Brij Mohan Lai v. Union of India [(2012)6 5CC 502] CBrij Mohan Lal-IV for short) and heid that Hon'ble Supreme Court had ruled that services rendered in FTCs by a judicial officer would be deemed to be service in the higher grade on his promotion to higher grade in the permanent cadre as District and Sessions Judge. On that basis, Registry was directed to work out and fix the inter se seniority of all the ad hoc Judges, who had been promoted as regular District Judges, by taking into consideration representations of the District Judges who were promoted and also the right of the District Judges who had been appointed directly as well as other District Judges who were selected on the basis of a competitive examination. Report of the Committee was placed before the Full Court on 14/07/2012- The Full Court resolved to accept the Report submitted by the Committee and further resolved to direct RG to prepare a draft seniority list, keeping in view 1983 Rules as well as 2004 Rules and Full Court Resolution governing the same and to circulate the same to the concerned officers calling for objections and thereafter to finalise the seniority list with the approval of Hon'ble Chief Justice.

11. Having regard to the Full Court Resolution, a provisional seniority list of District Judges, was prepared by the RG on 27/07/2012 inviting objections from the aggrieved Judges. In that provisional list, promotee Judges were placed above direct recruits, who are the petitioners herein. The latter filed objections to the provisional list. RG, after considering the objections, finalized the seniority list, which was approved by the Hon'ble Chief Justice. RG had rejected the objections raised by the petitioners on the basis of observations made by the Committee and having regard to the decision of Hon'ble Supreme Court in Brij Mohan Lal-I. In substance, RG had stated that officers who had worked as ad hoc Judges in FTCs were entitled to count their seniority in the cadre of District and Session Judges from the date when they were initially posted as ad hoc District Judges. On the basis of the aforesaid reasoning, after rejecting the objections of the petitioners and after obtaining the approval of the Hon'ble Chief Justice, RG issued Notification dated 14/09/2012 (Annexure-A) under which, promoted District Judges were placed above petitioners (direct recruits) in seniority. That Notification was assailed by the petitioners (direct recruits) in the Writ Petitions.

12. Learned Single Judge, after making a reference to 1983 Rules and 2004 Rules, concluded that those Rules were silent in so far as promotions on ad hoc or temporary basis or promotions against vacant posts created temporarily were concerned. Thus, it was concluded that the Rules were silent on such temporary appointments, though the Administrative Committees as well as the Full Court had appointed the Civil Judges (Senior Division) temporarily by Notifications dated 15/02/2003, 19/03/2003, 15/11/2003 and 20/03/2004 to the posts of ad hoc District Judges (FTCs) after following the procedure contemplated in Rule 2 of the 1983 Rules. Referring to the Statement of Objections and addit'onai statement filed by the State, learned Single Judge noted that the Administrative Committee-II had considered names of the senior-most Civil Judges (Senior Division) for promotion to the cadre of District Judges on ad hoc basis and the Full Court, on accepting the recommendations of the Committee, had accorded sanction for such promotions. RG had then requested Government of Karnataka to seek the approval of Governor of Karnataka and recommendations made by the High Court were accordingly approved and Notifications were issued in 2003-04 in the name of the Governor of Karnataka.

13. After referring to tne Statement of Objections filed by the promotees and hearing the respective parties, learned Single Judge formulated the question for consideration as under:

" Whether promotions of respondents- DJs as ad hoc District Judges vide Notifications dated 15/2/2003, 19/3/2003, 15/11/2003 and 20/3/2004 for being posted in the Fast Track Courts could be treated as regular promotions in the cadre of District Judge under the 1983 Rules and/or services rendered by them as ad hoc Fast Track Judges can be counted for the purpose of seniority in the cadre of District Judge from the date of the aforesaid Notifications or it should be from the date on which they were promoted under the 2004 Rules vide Notifications dated 1/6/2009, 27/6/2009 and 29/7/2009?"

18.1. Alongwith the aforementioned question, it would be necessary to consider peripheral issues, such as whether the procedure in force in the matter of promotion to the posts of District Judge was followed while appointing respondent-DJs, as ad hoc DJs for the Fast Track Courts; whether their promotions as ad hoc District Judges are traceable to 1983 Rules; whether vacancies, that occurred prior to the date on which the 2004 Rules were brought into force, can be taken into consideration for giving deemed date of promotion from the dates of their promotions on ad hoc basis in 2003-04; whether or not the seniority list affects rights of the parties; and whether the respondents- DJs, who were promoted vide Notification 26th June 2009 to fill up 25% vacancies through departmental competitive examination, under the 2004 Rules would be entitled for the same benefits that could be extended to those, who were appointed under 50% quota to be filled up by promotion on the basis of seniority-cum-merit."

14. Learned Single Judge also noted that the procedure contemplated under 1983 Rules for promotion was followed while promoting Civil Judges (Senior Division) as ad hoc District Judges to preside over FTCs. In fact, he concluded that due procedure in force was followed while making promotion of ad hoc District Judges as Presiding Officers of FTCs. However, he considered the entire issue in light of 1983 Rules. After considering the rival contentions, learned Single Judge referred to Brij Mohan Lal-I and Brij Mohan Lal-II and held that the Hon'ble Supreme Court did not have an opportunity to deal with related issues such as, issue of seniority, as had been raised in these proceedings between the direct recruits and ad hoc promotees, but observed that guidelines/directions issued in those two decisions would guide in resolving questions raised in these petitions. Learned Single Judge also noted that issue raised in Debabrata Dash v. Jatindra Prasad Dash [(2013)3 SCC 658] ('Debabrata Dash' for short) was s'milar to the issues raised in these proceedings. Reference was also made to Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [(1990)2 SCC 714) f Direct Recruit Ciass II Engineering Officers' Association), West Bengal v. Aghore Nath Dey [(1993)3 SCC 371] and State of Haryana v. Vijzy Singh [(2012)8 SCC 633] and other decisions.

15. In the backdrop of the aforesaid judicial precedents, the question as to whether ad hoc promotions given to the District Judges in the year 2003-04 could be considered as regular promotions or promotions in the cadre of District Judges on temporarily created posts, was considered. While considering 1983 Rules, learned Single Judge noted that the said Rules did not provide for or create any temporary or ad hoc posts, that there was no material to show that there was any increase in the vacancies under the said Rules, and that the Rules did not provide for creation of any such posts. He opined that, there was no increase in the cadre strength; therefore, the question of giving promotions at that stage or even thereafter under the 1983 Rules did not arise, that no steps were taken by the High Court before the 2004 Rules were brought into force to fill the posts in the cadre of District Judges, which were vacant or available. In fact, no steps were taken under 2004 Rules till 2009. Thus, learned Single Judge held that, where promotions were made on ad hoc basis to posts which were outside the cadre, promotees could not be placed above the direct recruits, who were appointed in conformity with the Rules in force. In support of this, reliance was placed on Mahesh Chandra Verma v. State of Jharkhand [(2012)11 SCC 656] (Mahesh Chandra Verma'). It was also held that promotions could not be treated as appointments to vacant posts in the cadre of District Judges either at the inception or from the dates on which vacancies kept occurring; that under both 1983 as well as 2004 Rules, there was no rule dealing with the seniority of the officers in the service; neither was there a rule giving any benefit to judicial officers appointed either on temporary basis or on ad hoc basis of their service when they were promoted to the permanent vacancies in the cadre of District Judge; therefore, promotees were not entitled to any deemed promotion.

16. Referring to certain judgments of the Hon'ble Supreme Court dealing with the legal position on the issue of determination of seniority in service, learned Single Judge held that no rules were made to regulate the judicial officers in the State appointed on ad hoc basis or purely on temporary basis to the FTCs. The cadre strength of District Judges was not increased when the promotees were appointed in 2003-04. Thus, the question of giving any promotions to the posts of District Judges since the dates of their ad hoc promotions in the absence of vacancies in the cadre in 2003-04 did not arise. Also, the promotions were not under 1983 Rules but were traceable wholly and squarely to ^he FTC Scheme and not even to the 2004 Rules made thereafter. That those who were promoted in the year 2009 under 25% quota by accelerated promotion were not entitled to promotion from an earlier date, without clearing departmental competitive examination. Similarly, those District Judges under 50% quota on seniority-cum-merit basis were also not entitled for promotion with retrospective effect in the absence of any such provision under the 1983 Rules.

17. Learned Single Judge further opined that RG, while fixing seniority of the promotees, had committed two fundamental errors: one, in holding that in view of the judgment of the Hon'ble Supreme Court in Brij Mohan Lai-I, issue of seniority of ad hoc Judges had been concluded, and two, in overlooking the observations in Brij Mohan Lal-II in respect of the date of seniority of the promotees who had taken limited departmental examination in 2009 and were granted accelerated promotion with retrospective effect, irrespective of whether they were successful in those examinations or not, by giving them seniority from the date of their promotions as ad hoc District Judges in 2003-04, by extending a similar benefit that was given to the District Judges promoted within 50% quota on the basis of seniority-cum-merit.

18. Referring to the judgment in Brij Mohan Lal-I, particularly sub-paragraph 14 of paragraph-10 of the judgment, leasned Single Judge considered the expression ''higher grade" in the "parent cadre" in the context of the 1983 Rules and 2004 Rules, and concluded at paragraphs-71 and 72 as under :

"71. in the result, I hold that the promotions of respondent-DJs as ad hoc District Judges vide Notifications issued in 2003-04 for being posted in the Fast Track Courts cannot be treated as regular promotions in the cadre of DJs under the 1983 Rules. In other words, service rendered by them as ad hoc Fast Track Judges cannot be counted for the purpose of seniority in the cadre of District Judge from the date of Notifications issued in 2003-04, and in my opinion,, promotion of the respondent-DJs should be counted from the date of promotions/Notifications issued/made in 2009 in the cadre of DJs under the 2004 Rules.

72. The impugned Notification dated 14/9/2012 by which the final seniority list of District Judges was published by the RG is accordingly set-aside. It is open to the RG to redraw the seniority, taking into account the actual date of appointment of the petitioners (direct recruits) in 2008 and the dates of promotions of the respondent-DJs (promotees) in the cadre of District Judge in 2009. It is needless to state that the RG while redrawing the seniority shall follow the procedure and shall also keep in view the observations made in this judgment. The Rule is made absolute in terms of this judgment. No costs."

As stated earlier, being aggrieved by the order of the learned Single Judge, Writ Appeals have been preferred by the promotee Judges as well as by the RG of the High Court.

Contentions:

19. Learned senior counsel, Sri P.S.Rajagopal, appearing for some of the promotees contended that 93 FTCs were established under various orders of the State Government for disposal of long pending cases. That only in two Notifications dated 15/02/2003 and 19/03/2003, the word "temporarily" and the phrase "subject to reversion at any time" were mentioned. That in two other Notifications dated 15/11/2003 and 20/3/2004 under which, 61 Judges were promoted, the aforesaid expressions were absent. In fact, the appointments to the FTCs were made by following the procedure envisaged under the 1983 Rules and after obtaining orders of His Excellency, the Governor. The promotions, though termed as ad hoc promotions, were on officiating basis and the promotees were given pay scales and other benefits applicable to District Judges and all of them performed their duties as District Judges without reversion and some of them retired while serving as FTC Judges. Under 2009 Notifications, the promotions were regularized which would relate to the initial promotion made in the years 2003-04. That when the promotees were serving as FTC Judges the petitioners were directly recruited as District Judges by Notification dated 13/02/2008, It was also contended that under the 1983 Rules, no quota was provided and for the first time, under the 2004 Rules, the quota in the matter of recruitment in the cadre of District Judges was stipulated. The contention therefore, was that when the 93 FTCs were established in the State it was in substance creation of additional posts in the cadre of District Judge. Therefore, those additional posts must be considered as vacancies under the 1983 Rules and accordingly, the promotees must be considered to have been appointed to those vacancies as from the date of their appointment as FTC Judges and as they were in continuous officiation, their length of service for the purpose of seniority must be construed from that date.

20. It was also brought to our notice that as against 93 FTC posts, 54 FTC posts were ordered to be closed w.e.f. 01/04/2013 and 39 FTC Courts would continue to function till 31/03/2015. Therefore, the length of service of the promotees must be considered from the date of their officiation in the FTCs. By contrasting officiation with probation, it was contended that the period of service on probation is always taken into consideration for the purpose of counting the service of a direct recruit and similarly, the period of officiation must also count when a person is promoted to officiate in a vacant post by a competent authority. In support of this proposition, reliance was placed on several decisions of the Hon'ble Supreme Court including S.B.Patwardhan and another v. State of Maharashtra and Others [(1977) 3 SCC 399] (S.B.Patwardhan) and Direct Recruit Class-II Engg. Officers' Assn. (supra).

21. Referring to certain other decisions of Hon'ble Supreme Court it was contended that a promotee should not suffer on account of administrative delay in regularizing the promotions and if between the date of officiation and the date of regularization, direct recruits are appointed, the latter cannot steal a march over the promotees in the seniority list. It was also contended that the orders of promotion were issued in the name of the Governor of Karnataka and they were orders under Article 223 of the Constitution and therefore, the promotions cannot be termed to be fortuitous or irregular.

22. With reference to the decision of the Hon'ble Supreme Court in Debabrata Dash, it was contended that the appointment therein was made under special Rules made with regard to FTC Scheme and that decision turned on the extant Rules prevailing in State of Odisha, which are not in pari materia with the 1983 Rules. Therefore, learned Single Judge could not have granted relief to the petitioners based on that decision.

23. Placing reliance on certain decisions of the Honble Supreme Court, it was contended that where promotees are in continuous officiacion of certain posts, for a long time and even if the appointments are stated to be on ad hoc basis, the entire period of officiation has to be counted for the purpose of seniority so long as there is no reversion of the promotees or otherwise, it would be in violation of the principles of equality ordained in Articles 14 and 16 of the Constitution.

24. It was contended by Sri.S.S.Naganand, learned senior counsel appearing on behalf of the R.G., that learned Single Judge had failed to appreciate that the High Court never made any distinction between an ad hoc District Judge and a regular District Judge. It was contended that, in fact, promotions as ad hoc District Judges were made by the Administrative Committee-II, taking into consideration the Confidential Records, quantum of work turned out, opinion of the Hon'ble Judges upon the quality of judgments and other relevant material and the said promotions were made under 1983 Rules. In fact, there were certain Judges, who were not promoted as ad hoc District Judges to preside over the FTCs as they were found not suitable to be promoted. Therefore, the Administrative Committee - II decided to fill up the vacancies in the cadre of District Judges within the quota of 66.67% under the 1983 Rules. If it was a simple case of posting the Civil Judge (Senior Judge) as ad hoc District Judge under the FTC then there was no need to screen them on the basis of their career records for the purpose of assessing their suitability. The fact that each Civil Judge (Senior Division) promoted on ad hoc basis as District Judge to preside over FTCs was screened and promoted only if found suitable, implied that those Judges were given promotions on account of increase in the work load in the cadre of District Judges for which FTCs were constituted. Such promotions were made only for the purpose of implementation of the FTC Scheme initiated by the Central Government. These aspects of the matter have been considered by the Hon'ble Supreme Court in Brij Mohan Lai - I, while giving directions in Para.10 of the judgment wherein, it has been stated that while giving such ad hoc promotions, the procedure in the matter of promotions had to be followed. Also, the consequential vacancies had to be filled up immediately.

25. That under 1983 Rules, procedure for promotion was left to be adopted by the High Court as it deemed fit, for selecting candidates on the basis of seniority-cum- merit. The relevant procedure under 1983 Rules was in fact followed by the High Court and only the Judges, who were found suitable, were promoted to preside over the FTCs. It was also contended that as in May 2003 when the first batch of ad hoc District Judges were posted there were 16 regular vacancies, the second batch were given postings in December 2003, and the third batch of ad hoc District Judges were posted in May 2004. On 09/09/2005, when 2004 Rules came into force, there were 46 vacancies in the cadre of District judges ana vacancies that arose subsequently, had to be filled up in terms of the ratio prescribed under 2004 Rules and till 09/09/2005, vacancies had to be filled up under the 1983 Rules. Therefore, it was the contention that when the promotees had undergone screening prior to their promotion to the cadre of District Judges, although termed as *ad hoc' promotions, they were in fact substantive posts which were created on account of the FTC Scheme and therefore, their services as Fast Track Judges could not be ignored. It was hence contended that the learned Single Judge failed to appreciate the directives and the observations made by the Hon'ble Supreme Court not only in Brij Mohan Lal-I, Brij Mohan Lal-II, but also in Suraj Pakash Gupta and others v. State of J. and K. and Others [AIR 2000 SC 2386],{Suraj Prakash), where it was categorically held that even the ad hoc period of service had to be considered for fixing seniority and that regularization in a post would relate back to an anterior date when a clear vacancy arose qfter the Officer was found suitable and eligible for such promotion, and seniority would count from that date.

26. Placing reliance on Rudrz Kumar Sain and Others v. Union of India and Others [(200C) 8 SCC 25], (Rudra Kumar Sain), it was; contended that if a promotee had been promoted after due consultation and with the approval of the High Court, then continuous officiation had to be taken into consideration for counting length of service for the purpose of seniority. Reliance was also placed on Sum Nyan and Others v. Liminiri and Others [2010 (5) UJ SC 2241], to contend that ignoring ad hoc service in a promoted post while fixing of seniority, is improper.

27. With regard to the decision in Debabrata Dash rendered by the Hon'ble Supreme Court in the context of promotions made to FTCs in Odisha, it was contended that the said decision has not been properly appreciated by the learned Single Judge. Drawing our attention to the distinctive facts of that case, it was also contended that in the present case direct recruits who were appointed only in February 2008 and hence, they could not have any grievance with regard to service rendered by the promotees from the year 2003 onwards in the FTCs.

28. Referring to the Notifications of 2009, it was contended that those were Notifications which, in substance, regularized promotions made in the year 2003-2004 and could also be considered as 'confirmation' in the promoted post as the initial promotions were on ad hoc basis. But Notifications of 2009 could not be considered to be promotions made for the first time, as has been done by the learned Single Judge, was the submission.

29. While placing reliance on Brij Mohan Lai -I and Brij Mohan Lai -II as well as Recruitment Rules of 1983 and 2004 and the manner in which the promotees were promoted to FTCs, it was contended that the resolution of the Full Court was correct and given effect to in accordance with law and that learned Single Judge was not right in setting aside the seniority list prepared by RG and thereby directing that direct recruits appointed in the year 2008 must be placed above those promoted in the year 2003-04.

30. Learned counsel Sri K.V.Narasimhan, with reference to his written submissions, contended that under the 1983 Rules, the filling up of the post of District Judges was bv promotion on the basis of seniority-cum- merit from the cadre of Civil Judges, except to the extent of 33,33% of posts which had to be filled by direct recruitment. Thus, promotion was the rule and direct recruitment was an exception. Under the 2004 Rules, for the first time, the quota for promotees and direct recruits came into existence. That when the FTCs were established, there was an automatic addition to the cadre strength creating vacancies in the post of District Judges to which post, the promotees were promoted on officiation basis. That in Brij Mohan Lal-I, the legality of the establishment of the FTCs was upheld and it was held that first preference for appointment of Judges to the FTCs must be by promotion from amongst eligible judicial officers and that on their promotion as FTC Judges, the consequential vacancies have to be filled up immediately.

31. That when 93 FTCs were created, this Court followed the procedure enunciated in Brij Mohan Lal-I and the vacancies iri the cadre of District Judges were filled by the promotees Subsequent to the enforcement of the 20C4 Rules, the vacancies had to be filled up under those Rules and till then, the promotions had to be made under the 1983 Rules. In fact, there was no distinction made by the High Court between ad hoc District Judges and regular District Judges and their pay scales and other allowances and emoluments were on par. That the names of the FTC Judges found a place in the Civil List of Judges that were issued at the relevant point of time. It was also contended that by Notification dated 21/02/2013, the High Court has granted selection grade to the District Judges, including the FTC Judges and therefore, their seniority has been well recognized by the High Court having regard to their length of service including the service rendered as the FTC Judges. That the direct recruits who were appointed only in February 2008 cannot have any grievance with regard to promotions made in the year 2003-04. That accelerated promotion in substance Is not a promotion but only an incentive and that many of the promotees in the instant case were promoted as FTC Judges prior to 2004 Rules and the regularization of their promotion was by a Notification issued in 2009, which relate back to the years 2003-04.

32. Placing reliance on Suraj Pakash Gupta, it was contended that subsequent appointments of the temporary appointees would relate back to the initial date of appointment for the purpose of seniority on the basis rule of continuous officiation and the seniority cannot be reckoned only from the date of confirmation or regularization.

33. Referring to Narender Chadda v. Union of India [(1986) 2 SCC 157] and other decisions, it was contended that once an incumbent is appointed to a post according to Rules, his seniority had to be counted from the date of his appointment and not according to the date of his confirmation.

34. Per contra, Sri. S.M.Chandrashekar, learned Senior Counsel appearing for the contesting respondents, i.e., direct recruits, at the outset, contended that W.A.N0.6514/2013 filed by RG was not maintainable as RG cannot be an aggrieved person so as to challenge the order of the learned Single Judge by filing an appeal. He could not support one set of employees when there is an inter se dispute as to seniority. Placing reliance on Sub- Inspector Rooplal v. Lt. Governor [(2000)1 SCC 644] and Mani Subrat Jain v. State of Haryana [(1977)1 SCC 486], it was contended that W.A.No.6514/2013 may be rejected.

35. On merits, it was contended that the FTC Scheme was temporary, i.e., for five years and was implemented pursuant to the recommendation made by the 11th Finance Commission. There was no constitutional sanction for employment of retired Judges under the FTC Scheme which controversy was considered by the Hon'ble Supreme Court in Brij Mohan La hi. When the Scheme was to be discontinued as the Central Government had decided not to fund the same beyond 31/03/2011, various appointees to the FTCs approached the Hon'ble Supreme Court seeking continuation of the Scheme or regularization of their services in the regular cadre of the FTCs in the State Judicial Services. These contentions were taken up in Brij Mohan Lal-II, where the Hon'ble Supreme Court held that, Officers of FTCs could not claim any benefit as the appointment was ad hoc and temporary and the cadre strength could be increased by 10% to accommodate them.

36. Referring to the factual aspects of the case, out- attention was drawn to Annexures-R9, R-10 and R-17, to contend that Presiding Officers of FTCs were promoted on ad hoc basis in the year 2003-2004 subject to reversion at any time. The posts held by them in the FTCs were not part of the sanctioned strength in the cadre of District Judges. When the promotees were still functioning as ad hoc FTC Judges, contesting respondents, namely direct recruits, were appointed as District Judges through a direct recruitment against clear vacancies in the year 2000. It was only thereafter, that the FTC Judges were promoted to substantive posts in terms of the Notification issued on 01/06/2009 or on later dates with immediate effect (Annexures-R-22, R-23 and R-24).

37. That Rule 2 of the Karnataka Government Servants (Seniority) Rules, 1957 r/w Rule 11 of 2004 Rules, would imply that direct recruits appointed in the year 2008 were senior to the promotees who were promoted as District Judges in the year 2009, subsequent to appointment of the direct recruits.

38. In the backdrop of the above factual aspects it was contended by the direct recruits that directions in Brij Mohan Lal-II were not applicable to the facts of the present case. That Brij Mohan Lal-II could not be construed as nullifying the observations and directions in Brij Mohan Labi and that promotions with retrospective effect was impermissible in law. Direction No. 14 in Brij Mohan Lal-I squarely applied to the promotees. The services rendered in the FTCs by the promotees was infact services rendered by them in their parent cadre i.e., Civil Judge (Senior Division) and not in the cadre of District Judge. That in the event any Judicial Officer was promoted to a higher grade in the parent cadre during his tenure in FTC, the service rendered in FTCs could be deemed to be service in such higher grade. That Brij Mohan Lal-I clearly differentiated between cadre and grade. That a grade is within a cadre, which aspect has been appreciated by the learned Single Judge. Referring to Rule 8 of the Karnataka Civil Service Rules (KCSRs), 1958 it was contended that appointments in the same class are sometimes divided into grades according to pay.

39. Referring to Lalit Mohan Deb and others v. UOI [(1973) 3 SCC 862], it was contended that a selection grade within a cadre is only for a higher pay but in the same post or in the same cadre. That when the Civil Judges (Senior Division) were promoted as ad hoc District Judges in the instant case, it was not to a higher post or to a higher cadre, but only to a higher grade carrying a higher pay scale. Thus, when these Judges were promoted as only ad hoc FTC Judges, they could not claim any right to a promotional post.

40. Referring to certain paragraphs in Brij Mohan Lal- II, it was contended that promotees who functioned as FTC Judges were promoted/appointed on ad hoc basis and did not have any right to a regular post. Specifically referring to paragraph 207 in Brij Mohan Lai-II, it was contended that those directions have been issued under Article 142 of the Constitution to do complete justice to the lis and the directions were issued in the context of the directives issued by the Rajasthan State Government that, the ad hoc promotees were to undertake a limited examination for their regular promotion/absorption and could not over-ride Seniority Rules applicable in the state.

41. It was also pointed out that the controversy in Brij Mohan Lai-II, was with regard to the claim of the FTC Judges for regularizauon and absorption in the regular cadre and did not address the issue of inter se seniority between the direct recruits and promotees as in the instant case and that Rule 2 of the Seniority Rules 1957 would have to be considered in these matters. Thus, it was contended that the directions in Brij Mohan Lal-II were prospective in nature and did not confer any right on ad hoc Judges to claim either promotion or seniority retrospectively from the date of their appointment as ad hoc District Judges. Also, direction in para No.2.07 was in relation to additional 10% posts to be created in the cadre of District Judges and did not apply to ad hoc promotees, this position being re-affirmed by the Hon'ble Supreme Court in Mahesh Chandra Verma, was the submission. Thus, placing reliance on Rule 2 of the Seniority Rules 1957, it was contended that there can be no retrospective seniority unless it is expressly provided under the Rules. In support of this proposition, reliance was placed on certain decisions.

42. With reference to Debabrata Dash, it was contended that the learned Single Judge rightly appreciated that judgment in light of the facts and controversy. In conclusion, learned senior counsel for the direct recruits contended that the appeals were without merit and ought to be dismissed.

43. By way of reply, learned senior counsel for the promotees contended that the writ appeals filed by the RG are maintainable as the final seniority list issued by the RG was assailed by the direct recruits in the writ petition and being aggrieved by the quashing of the seniority list prepared and published by him, the writ appeals were filed. It was also contended that when the orders of the High Court on its administrative side are quashed on the judicial side,- the aggrieved party could always file an appeal assailing the order made in judicial proceedings. In support of this submission, reliance was placed on High Court of M.P. v. Mahesh Prakash and others [(1995) 1 SCC 203].

44. Reiterating these contentions, learned counsel prayed that appeals be allowed by granting relief to the promotees.

Preliminary Objection regarding maintainability of Writ Appeals filed by RG :

45. Before dealing with the rival contentions raised by the respective parties, preliminary objection with regard to maintainability of the writ appeals filed by the RG would have to be considered.

46. Apparently, the appeals filed by the RG are not with an intention of supporting the promotees as opposed to the case of the direct recruits, but with an intention of ensuring that a right decision is taken in the matter which would enure also as a precedent for future controversies. Therefore, by filing the appeals, RG does not signal any opposition to the case of the direct recruits or support the promotees. The decisions relied upon in this regard by the direct recruits turn on their own peculiar facts and cannot apply to the instant case.

47. In Mahesh Prakash (supra), it was held that if an order of the High Court passed on the administrative side is challenged under Article 226 of the Constitution arraigning the High Court as a respondent and if in the writ proceedings the order was against the High Court, it was permissible for the High Court to prefer a special leave petition before the Hon'ble Supreme Court against the order on the writ petition passed on the judicial side. It was categorically held that when a Special Leave Petition is filed, it is in support of the order of the High Court passed on the administrative side, which was set aside on the judicial side.

48. That decision squarely applies to the present case. The decisions relied upon by the direct recruits turn on their own peculiar facts and cannot apply to the instant case. In Mani Subrat Jain (supra), the Hon'ble Supreme Court noted that the High Court had dismissed the petitions of certain persons seeking mandamus as they had no locus standi. In the appeals filed by them before the Hon'ble Supreme Court, it was found that High Court had supported the case of the appellants by pleading their "candidature". It was in that context that the Hon'ble Supreme Court opined that the High Court could not take a comparative view with regard to the candidature of any person, particularly when the petitions filed by the appellants had been dismissed by the High Court, which decision was affirmed by the Hon'ble Supreme Court.

49. In Sub-Inspector Rooplal (supra), it was noted that issue relating to inter se seniority had been decided by the Central Administrative Tribunal against which, the Government (Delhi Administration) had filed SLP. SLP and a review petition of the Government were dismissed by the Hon'ble Supreme Court, but the Government did not extend the benefit to other similarly situated employees and therefore, they were constrained to approach the Tribunal again and the matter again went up to the Hon'ble Supreme Court by way of SLP. The SLP was opposed by the Government. In this context, the role played by the Government as a litigant was commented upon and it was observed that having regard to the controversy, the State ought to have played the role of an amicus curiae by assisting the judicial forum to arrive at a correct decision and unless there were compelling reasons to resort to further proceedings, the State Government ought not to have espoused the case of a particular group of employees against another group of employees. Those observations were made in the context of facts arising in that case where the State Government had failed to grant benefit of a judgment of the Hon'ble Supreme Court to certain employees, who were forced to approach the Tribunal and having lost their case, once again the Government had approached the Hon'ble Supreme Court.

50. The observations of the Hon'ble Supreme Court in that case cannot be applied to the present case where R.G. is only seeking to defend the Full Court Resolution of this Court in the matter of seniority between direct recruits and promotees, notified under his seal, as the seniority list was assailed in the writ petitions. Therefore, we find no merit in the preliminary objection with regard to maintainability of the writ petition filed by the R.G.

Point for Consideration:

51. On merits, the point that arises for our consideration is, as to whether the learned Single Judge was right in directing RG to redraw the final seniority list of District Judges by taking into account the actual dates of appointment of the petitioners (direct recruits) in 2008 and the dates of promotion of the respondent District Judges (promotees) in the cadre of District Judges in 2009, by quashing the impugned Notification dated 14/09/2012, publishing the Seniority List of the District Judges.

Undisputed facte:

52. At the outset, the undisputed facts may be stated. Petitioners were appointed by direct recruitment as District Judges by Notification dated 13/02/2008. They took charge on 25/02/2008. The promotee Judges were appointed or promoted temporarily as ad hoc District Judges prior to that date, by Notifications dated 15/02/2003, 19/03/2003, 15/11/2003 and 20/03/2004. Eighty two Civil Judges (Senior Division) were promoted on ad hoc basis to officiate as District Judges with immediate effect "to man the FTCs", subject to reversion at any time. The expression "to man the FTCs" in the aforesaid Notifications was deleted by Corrigendum dated 21/04/2003. It is not in dispute that directly recruited District Judges were appointed within their 75% quota. Similarly, promotee Judges were promoted/appointed within their quota of 50% and 25% quota was filled by promotions on the basis of seniority-cum-merit through a departmental competitive examination (accelerated promotion) respectively, by Notifications dated 01/06/2009, 27/06/2009 and 29/07/2009 (Annexures R- 22 to R-24) as per 2004 Rules. Thus the quota Rule has been maintained and there is no transgression of the quota in the instant case.

53. It is also not in dispute that, pursuant to the recommendations of the Eleventh Finance Commission and the establishment of the FTCs, ad hoc promotions to the post of District Judges were made to preside over the FTCs and the ad hoc promotees worked as Presiding Officers of the FTCs till they were regularly promoted by the Notifications issued in the year 2009. This is the genesis of the dispute about inter se seniority between the direct recruits and the promotee District Judges. The Full Court, having affirmed the recommendation of the committee which had accepted representations made by the promotee District Judges, had directed RG to prepare the seniority list having regard to the decisions of the Hon'ble Supreme Court in Brij Mohan Lal-I and Brij Mohan Lal-II and also keeping in mind the 1983 Rules as well as 2004 Rules. This resulted in the issuance of the Notification dated 14/09/2012 (Annexure-A) impugned in the Writ Petitions. Under this Notification the promotees were placed as senior to the direct recruits.

Decisions of the Hon'ble Supreme Court with regard to FTC Scheme:

54. Before considering the validity of the said Notification, it would be useful to refer to the decisions of the Hon'ble Supreme Court in Brij Mohan Lal-I and Brij Mohan La I-II as also those decisions which have been rendered in the wake of establishment of the FTCs pursuant to the recommendation made by the Eleventh Finance Commission and other precedents of the Hon'ble Supreme Court touching upon the present controversy.

a) In Brij Mohan Lai-I, the Hon'ble Supreme Court observed that, though the FTC Scheme was envisaged by the Central Government on the basis of views indicated by the Finance Commission, yet, appointments to the FTCs were to be made by the High Courts keeping in view certain modalities. While promotion of the District Judges was in the hands of the Governor acting in consultation with the High Court in terms of Article 235, posting and promotion etc, of officers of the State Judicial Services other than District Judges was exclusively in the hands of the High Court. The High Courts played a pivotal role in the implementation of the Scheme by complying with the constitutional requirements embodied in the relevant provisions of Chapter-VI of the Constitution. Keeping in view the objectives of the FTC Scheme, certain directions were issued of which, the relevant are as under:

"10. Keeping in view the laudable objectives with which the Fast Track Courts Scheme has been conceived and introduced, we feel the following directions for the present, would be sufficient to take care of initial teething problems highlighted by the parties:

Directions by the Court

1. The first preference for appointment of Judges of the Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.

2. The second preference in appointments to Fast Track Courts shall be given to retired Judges who have good service records with no adverse comments in their ACRs, so far as judicial acumen, reputation regarding honesty, integrity and character are concerned. Those who were not given the benefit of two years' extension of the age of superannuation, shall not be considered for appointment. It should be ensured that they satisfy the conditions laid down in Articles 233(2) and 309 of the Constitution. The High Court concerned shall take a decision with regard to the minimum-maximum age of eligibility to ensure that they are physically fit for the work in Fast Track Courts.

3. No judicial officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial officers who have sought voluntary retirement after initiation of departmental proceedings/inquiry shall not be considered for appointment.

4. The third preference shall be given to members of the Bar for direct appointment in these courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed periodically by the High Court based on their performance. They may be absorbed in regular vacancies if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.

5. Overall preference for appointment in Fast Track Courts shall be given to eligible officers who are on the verge of retirement subject to they being physically fit.

6. The recommendation for selection shall be made by a committee of at least three Judges of the High Court, constituted by the Chief Justice of the High Court concerned in this regard. The final decision in the matter shall be taken by the Full Court of the High Court.

7. After ad hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in advance to initiate process for selection to fill up these vacancies much before the judicial officers ere promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of the subordinate judiciary, The High Court and the State Government concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate courts on priority basis. The State Government concerned shall take necessary decisions within a month from the receipt of the recommendations made by the High Court.

8. Priority shall be given by the Fast Track Courts for disposal of those sessions cases which are pending for the longest period of time, and/or those involving undertrials.

Similar shall be the approach for civil cases i.e., old cases shall be given priority.

XXX

14. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts win be deemed as service rendered in the parent cadre. In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade,

15. The retired judicial officers who are appointed under the Scheme shall be entitled to pav and allowances equivalent to the pay ana allowance they were drawing at the time of their retirement, minus total amount of pension drawn/payable as per rules.

16. Persons appointed under the Scheme shall be governed, for the purpose of leave, reimbursement of medical expenses, TA/DA and conduct rules and such other service benefits, by the rules and regulations which are applicable to the members of the judicial services of the State of equivalent status.

17. The High Court concerned shall periodically review the functioning of the Fast Track Courts and in case of any deficiencies and/or shortcoming, take immediate remedial measures, taking into account views of the Administrative Judge nominated.

18. The High Court and the State Government shall ensure that there exists no vacancy so far as the Fast Track Courts are concerned and necessary steps in that regard shall be taken within three months from today. In ether words, steps should be taken to set up ail the Fast Track Courts within the stipulated time." (emphasis supplied)

b) In Brij Mohan Lal-II, the controversy was with regard to appointment of retired District and Sessions Judges as ad hoc Judges of the FTCs in the State Judicial Services, in the context of maintaining standards in the judicial system. After adverting to the directions issued in Brij Mohan Lal-I, the Hon'ble Supreme Court observed that appointments to FTCs were on ad hoc basis, and that there was a possibility of the closure of the FTC Scheme. The Hon'ble Court, therefore, directed that service in the FTCs was to be deemed as service of the promoted judicial officers rendered in the parent cadre. However no right was to accrue to promotees for regular promotion on the basis of such ad hoc appointment. It was also noted that certain High Courts had enacted special rules of recruitment for FTCs and that appointments to the post of ad hoc Judges under the FTC Scheme had been made by different States in different manner, either with the aid of regular Rules for appointment to the higher judicial service or superior judicial service, following due and complete process under those Rules or, under temporary Rules enacted by the respective States for that purpose. Some of the States had not taken recourse to any of those Rules, but had made appointments by issuing general orders. The fact that financial aid and responsibility of the Central Government to run the FTC Scheme would eventually come to an end was a fact known to all the State Governments and the High Courts right from inception of the FTC Scheme. In fact, the Central Government had decided not to finance the FTC Scheme beyond 31/03/2011, and that, despite discontinuation of the FTC Scheme by the Central Government, a number of States had decided to continue with the FTC Scheme for some time.

The Hon'ble Supreme Court, after noting the aforesaid facts, considered the pertinent question, "whether any of the appointees to the post of ad hoc Judges under the FTC Scheme have right to the post in the context of the facts of the present case?". While answering that question, the Hon'ble Court considered the letters of appointment issued to the appointees in various States. Upon an analysis of the Rules relating to different States as well as appointment letters issued to the appointees and the methodology that was adopted for appointment of FTC Judges, Hon'ble Supreme Court observed that the appointees couid not have any legal, much less indefeasible, right to the post in question. The posts themselves were temporary and were created under the ambit of FTC Scheme sponsored by the Union of India, which was initially made for a limited period of five years. Financing of the FTC Scheme had been stopped by the Central Government with effect from 31/03/2011. No permanent posts were created under the FTC Scheme. In other words, their appointments were temporary appointments against temporary posts.

Having said that the appointees under the FTC Scheme did not have an absolute right to the post, the Hon'ble Supreme Court nevertheless categorically stated that the controversy had to be considered in light of the decision in Madhumita Das v. State of Orissa [(2008)6 SCC 731] (Madhumita Das) and Brij Mohan Lal-I. Deliberating on whether a writ of mandamus could be issued, in the context of a policy decision taken by the Central Government to initiate FTC Scheme and thereafter not to finance it beyond 31/03/2011, in light of the constitutional duty of the Court to ensure maintenance of the competence of the judiciary as well as effectiveness of the justice delivery system in the country, the Hon'ble Court held that it had no hesitation to issue a mandamus and/or appropriate directions as it possessed the jurisdiction and was competent to do so. Having regard to the decisions in Madhumita Das and Brij Mohan Lal-I, the Hon'ble Court examined the essential features which had compelled it to give the directions. They are as under:

"(a) The right of the citizens, under trial or convicts to a speedy and fair trial.

(b) Persistent deadlock between the Union and the State Governments in regard to continuation or otherwise of the FTC Scheme.

(d) The legitimate expectation of the large number of FTC Judges, that their services would be regularised in the Higher Judicial Service of the respective State or that the FTC Scheme would be made a permanent feature.

(e) The element of arbitrariness that appears to have crept into the decision¬making process of the Government and its hierarchy-

(f) Why due weightage was not given to the decision and recommendation of the minutes of the Chief Justices and Chief Ministers' Conference held in the year 2009 at New Delhi?

(g) Whether the decision of the Government was data based and taken objectively?

(h) There is an inbuilt contradiction in this policy decision inasmuch as on the one hand, lack of finances is one of the grounds taken for discontinuance of the FTC Scheme, funds to the tune of Rs.2500 crores have been allocated for starting of the morning, evening and shift courts on the other."

(emphasis supplied)

The Hon'ble Supreme Court noted the recommendations of the Thirteenth Finance Commission under the head "improving justice delivery system" and that a sum of Rs.5,000/- crores was allotted for that purpose out of which a sum of Rs.2,500/- crores was to be allotted for morning/evening shift courts, but no amount had been allotted for FTCs. Having noted that there were over, three crore pending cases in the country it was felt that FTC ad hoc direct recruits could be regularized, as they had gained a lot of judicial experience, by absorbing them in the regular cadre of District Judges in different States to handle the problem of arrears to some extent. Thus, the Hon'ble Supreme Court felt that Central Government should, in consultation with State Governments and High Courts of different States, reconsider allocating grant of Rs.5,000/- crores for meeting the initial expenses "due to increase in cadre strength of additional District Judges for absorbing direct recruits of the FTC Scheme by way of regularization."

Having regard to the facts, circumstances and the previous judgments of the Court and with the intention to do complete justice, the Hon'ble Court passed certain directions as under:

"207.8. We hereby direct that it shall be for the Central Government to provide funds for carrying out the directions contained in this judgment and, f necessary, by reallocation of funds already allocated under the 13th Finance Commission for judiciary. We further direct that for creation of additional 10% posts of the existing cadre, the burden shall be equally shared by the Centre and the State Governments and funds be provided without any undue delay so that the courts can be established as per the schedule directed in this judgment.

* * *

207.13. The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, shall be entitled to be absorbed and remain promoted to the Higher Judicial Services of that State subject to:

(a) Such promotion, when effected against the 25% quota for out-of-turn promotion on merit, in accordance with the judgment of this Court in All India Judges' Assn. (3), by taking and being selected through the requisite examination, as contemplated for out-of-turn promotion.

(b) if the appointee has the requisite seniority and is entitled to promotion against 25% quota for promotion by seniority-cum-merit, he shall be promoted on his own turn to the Higher Judicial Services without any written examination.

(c) While considering candidates either under Category (a) or (b) above, due weightage shall be given to the fact that they have already put in a number of years in service in the Higher Judicial Services and of course with reference to their performance.

(d) All other appointees in this category, in the event of discontinuation of the FTC Scheme, would revert to their respective posts in the appropriate cadre."

(emphasis supplied)

c) Next the decision of the Hon'ble Supreme Court in Debabrata Dash has a direct bearing on the issue of seniority of ad hoc FTC Judges. The main question for consideration was whether services rendered by first respondent therein in the FTC as Additional District Judge could be taken into account while fixing his seniority after regularization of his services in the Senior Branch Cadre under the Grissa Superior Judicial Service Rules, 1963 (1963 Rules), which the High Court of Orissa answered in affirmative and directed to treat the period of service rendered by him in the FTC for the purpose of seniority from the date of his joining the post and refixed his seniority. That judgment was challenged by the direct recruits before the Hon'ble Supreme Court by contending that the direction was not consistent with the 1963 Rules and certain other rules.

The facts in that case were similar but not identical to the facts in the present case and therefore, it would be useful to refer to them in some detail. First respondent therein was initially appointed as Munsiff and thereafter promoted, and subsequently appointed on ad hoc basis as Additional District Judge in FTC on 11/04/2002. The appellants therein on the other hand, were appointed as District Judges by direct recruitment under the 1963 Rules on 22/01/2003, First respondent functioned as an ad hoc Additional District Judge as his term was extended and by Notification dated 15/12/2003, he was allowed to officiate in the Senior Branch of the Superior Judicial Service on regular basis on account of a vacancy that arose on 31/07/2003 due to retirement of an officer of the Senior Branch on 31/07/2003; appellant No.l therein was confirmed in the cadre of Senior Branch, Superior ludicial Service with effect from 03/02/2004 while appellant No.2 therein was confirmed with effect from 02/03/2004. They were conferred selection grade with effect from 03/02/2008 and 07/02/2008 respectively.

First respondent therein, was substantively appointed in the cadre of District Judge with effect from 17/01/2007 and was granted selection grade with effect from 22/10/2009. He made a representation to the High Court on the administrative side, seeking seniority in the cadre of District Judge with effect from 26/04/2002 i.e., the date of his joining as ad hoc Additional District Judge (FTC) over and above the appellants therein, on his service in the FTC being included for the post of computing his length of service in the cadre of Senior Brach, Superior Judicial Service, under the 1963 Rules. That representation was rejected by the Full Court of the High Court. This administrative decision was challenged by the first respondent therein, before the High Court on the judicial side. Division Bench of that High Court observed that though the promotion of first respondent therein in the Senior Branch Cadre in the Superior Judicial Service was initially on ad hoc basis, that was given to him after the High Court adjudged his suitability for promotion by following the 1963 Rules. Such ad hoc promotion was regularized by Notification dated 15/12/2003, under the 1963 Rules as the petitioner had rendered uninterrupted service. The High Court had also considered minutes of the meeting of the Full Court and concluded that promotion of first respondent as a Fast Track Judge was under the 1963 Rules and not under the 2001 Rules. Therefore, his service had to be counted with effect from 26/04/2002 when he joined the post as an ad hoc Additional District Judge in the FTC and his subsequent regularization was to be considered effective from that date. The High Court of Orissa held that the view taken by the High Court on administrative side was in ignorance of the law laid down in Brij Mohan Lal-I.

The Hon'ble Supreme Court considered the controversy in light of the 1963 Rules as well as the 2001 Rules applicable in the State of Odisha for appointments made to FTC and held that in the absence of any vacancy in the Senior Branch Cadre of service to be filled up by promotion on the relevant date, no promotion could have been accorded on ad hoc basis or otherwise, under the 1963 Rules. After referring to certain judicial precedents, reference was made to Direction No. 14 of Brij Mohan Lal-I and held that until the vacancy occurred in the cadre of Superior Judicial Service, which has to be filled up by promotion, the service rendered by the first respondent therein in the FTC could net be deemed to be service rendered in the Superior Judicial Service (Senior Branch). Until then, he continued to be a member of the parenc cadre i.e., Superior judicial Service. It was also held that third part of Direction No.14 could not be read in a manner overriding the 1963 Rules.

Referring to Brij Mohan Lal-II, the Hon'ble Supreme Court held that in State of Odisha, FTC Judges were appointed under a separate set of Rules (i.e., 2001 Rules) and not regular Rules governing the State Higher Judicial Service. While appointing FTC Judges, it was clearly stipulated that such appointments would be ad hoc and such appointees shall not derive any benefit therefrom. Ultimately, the Hon'ble Supreme Court concluded that neither on 05/01/2002 i.e., the date the first respondent therein was appointed on ad hoc basis nor on 26/04/2002, when he joined service as ad hoc Additional District Judge in the FTC, was there any vacancy in the cadre of Senior Judicial Service (Senior Branch) for being filled up by promotion. Such vacancy arose only on 15/12/2003 ana from that date, first respondent had to be given benefit of service rendered in the FTC. Accordingly, the appeal filed by the direct recruits was allowed.

Clause (d) to Rule 3, and Rules 4, 5, 7, 8, and 9 of the 1963 Rules were considered and it was held that, if a person had to be a member of the Senior Branch of the Superior Judicial Service, then his appointment had to be made to a post in the service when such a vacancy arose. The membership of service was limited to the persons who were appointed within the cadre strength by direct recruitment and by promotion.

The Hon'ble Court also held that first respondent therein not being appointed in accordance with 1963 Rules, and there being no vacancy available, to be filled up by promotion on that date in the Superior Judicial (Senior Branch), he could be given the benefit of service rendered in the FTC only from the date on which vacancy arose in the Senior Branch cadre of the service i.e., 15/12/2003 and not before that. Under those circumstances, the appeal of the direct recruits was allowed and the judgment of the Orissa High Court was set aside.

d) In Maheshchandra Verma v. Jharkhand [(2012)11 SCC 656], the controversy was with regard to appointments made to the post of Addl. District Judges by the State of Jharkhand, pursuant to Bihar Raorganization Act, 2000, whereby State of Jharkhand was carved out of the State of Bihar and in the context of creation of FTCs. By Notification dated 22/02/2001, ninety superior judicial officers (Additional District Judges and District Judges) were transferred from the State of Bihar to the State of Jharkhand of which, sixty two were promotees and twenty eight were direct recruits. On 10/05/2001, the Governor of Jharkhand in consultation with the High Court framed jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001. On 3/05/2001, High Court of Jharkhand issued an advertisement inviting applications in the prescribed format from eligible candidates to fill up posts in the cadre of Additional District Judges. Upon issuance of appointment letters to selected candidates, the selection process pursuant to the advertisement should have come to an end in respect of seventeen selected candidates, but ten more candidates from serial Nos.18 to 27 in the merit list were appointed as FTC Judges. In August 2002, without any advertisement, fifteen more candidates were appointed from the Bar by Notification dated 12/08/2002. It was contended that these appointments of ten plus fifteen Additional District Judges was in violation of Articles 14 and 16 of the Constitution and in derogation of directions given in Brij Mohan Lal-I . It was contended that the Full Court of High Court of Jharkhand on 18/10/2001 had recommended seventeen candidates as Additional District Judges of FTCs, which were constituted by Notification dated 29/11/2001. That even before the FTCs were set up, ten names were recommended in October 2001 for making appointments against non-existing posts. In fact, on 23/01/2001, when the advertisement was issued, the FTCs Scheme was not in force. The High Court held the appointments which were offered to the members of the Bar pursuant to advertisement dated 23/02/2001 which were meant for Add!. District Judges. Since there was no sanction from the State for those posts as on that date, the appointments were quashed. That order was assailed before the Hon'ble Supreme Court.

It was held that the appellants therein, were not appointed to any permanent post, their appointments were temporary and on ad hoc basis as stated in the Notification of their appointment dated 12/08/2002 and they were not appointed under the Rules of 2001, but made under a temporary scheme and therefore, the case was covered under Brij Mohan Lal-II. Without entering into the grievance of the respondents therein that if the appellants were absorbed to regular cadre, their promotional avenues would get affected, the Hon'ble Court held that respondents had no locus standi to challenge or question the appellants' appointment and dismissed the appeals, directing the State of Jharkhand and High Court of Jharkhand to appoint appellants therein in regular cadre of Higher Judicial Service, strictly in the manner laid down in Brij Mohan Lal-II.

Position in State of Karnataka:

55. Keeping in mind the aforesaid judgments of the Hon'ble Supreme Court directly on the issue of ad hoc promotions being made under the FTC Scheme, the present controversy of inter se seniority between direct recruits and promotees could be considered in light of the relevant rules as well as other judgments of the Hon'ble Supreme Court having a bearing on the matter.

56. As already stated, pursuant to recommendations of the Eleventh Finance Commission and the FTC Scheme of the Central Government, in the State of Karnataka, Notifications were issued on 29/05/2001, 20/03/2003, 31/10/2003 and 20/03/2004, creating totally 93 FTCs (Annexure "R-4?). Steps were taken for appointment from the cadre of Civil Judge (Sr.Dvn.), on the basis of seniority-cum-merit. No separate or special rules were framed in the State tor appointment of ad hoc Judges to the FTCs. Notifications were issued on 15/02/2003, 19/03/2003, 15/11/2003 and 20/03/2004 respectively, promoting 82 Civil Judges to the cadre of District Judges on ad hoc basis. The extant rules at that point of time pertaining to recruitment of District Judges were 1983 Ruies.

57. On 10/10/2002, Administrative Committee - II considered the record of 35 Civil Judges (Senior Division) with regard to their over-all suitability for- ad hcc promotion for being posted as Presiding Officers in the FTCs, based on the Annual Confidential Records, quantum of work turned out. opinion of the Judges about the quality of judgments and other relevant record and 11 Civil Judges were not found fit and suitable for promotions and hence only 21 Judges were promoted to the post of ad hoc District Judges to preside over FTCs (Annexure "R-5"). The recommendation of Administrative Committee-II was placed before the Full Court on 10/12/2002 and the Full Court approved the names of 21 Judicial Officers for promotion. On the basis of the Full Court decision, RG, sent two letters dated 27/12/2002 and 04/02/2003 to the first respondent, for obtaining requisite orders from His Excellency, the Governor of Karnataka. Thereafter, Notifications dated 15/02/2003 and 19/02/2003, in respect of 21 Civil Judges (Senior Division) promoting them temporarily on ad hoc basis, to officiate as ad hoc District Judges in FTCs, were issued. In a similar fashion, Notification dated 15/11/2003 for promotion on ad hoc basis to officiate as District Judges in respect of 31 Civil Judges (Senior Division) was issued and thereafter, another Notification dated 20/03/2004 in respect of 30 Civil Judges (Senior Division), promoted on ad hoc basis to officiate as District Judges with immediate effect, was issued.

58. The existing Rules at that point of time pertaining to recruitment of District Judges were the 1983 Rules made, in exercise of powers conferred by Articles 233, 234 and proviso to Article 309 of the Constitution, by the Governor of Karnataka in consultation with Karnataka Public Service Commission and the High Court of Karnataka. Rule-2 and Schedule appended thereto provide the category of posts, method of recruitment and minimum qualifications. The category of posts mentioned therein are District Judges (Super-time scale), District Judges, Civil Judges and Munsiffs. In the present case we are concerned with the cadre of District Judges. Rule 2 and Item Nos.l and 2 of the Schedule thereto, with which we are concerned in the present case, read thus:

"2. Method of recruitment, minimum qualifications, etc. - In respect of each category of posts specified in column (2) of the Schedule below, the method of recruitment and the minimum qualifications shall be as specified in the corresponding entries in columns (3) and (4) thereof: - SCHEDULE

SI. No	Category of posts	Method of recruitment	Minimum qualifications etc.
1.	District Judges (Supertime scale)	By promotion by selection from the cadre of District Judges by the High Court of Karnataka	Must have put in at least 5(five) years of service as District Judge.
2.	District Judges	By promotion on the basis of seniority- cum-merit from the cadre of Civil Judges: Provided that suchnumber of posts as may be determined by the High Court from time to time but not exceeding in the aggregate 33 1/3% of the posts in the cadre of District Judges may be filled by Direct recruitment).Note- The Highcourt of Karnataka may, subject to those rules, adopt such procedure as it deems fit for selecting the candidates by direct recruitment or by promotion by seniority-cum-merit.	For Direct Recruitment.Must be holder of a degree in Law or equivalent qualification; and Must be practicing on the last date fixed for submission of applications, as an Advocate and must have so practised for not less than seven years as on such date. Age: Must not have attained the age of (forty-eight) years on the last date fixed for submission of application.)Probation: Two years, During the period of probation he must undergo such training as may be specified by the High Court of Karnataka Officiation.-2 years.

(emphasis supplied)

59. Sub-Rule (1) of Rule 3 state that subject to Articles 233, 234 and 235 of the Constitution of India, provisions of Rules 5, 6(2),- 6(3), 8, 9, 10 to 13 of Karnataka Civil Services (General Recruitment) Rules, 1977, shall, insofar as they are not inconsistent with these rules, mutatis mutandi, apply to recruitment of District Judges, Civil Judges and Munsiffs under these Rules. Sub-Rule(2) of Rule 3 states that all rules regulating conditions of service of members of State Civil Services made from time to time under any law or the Proviso to Article 309 of the Constitution of India shall, subject to Articles 233, 234 and 235, be applicable to Munsiffs, Civil Judges and District Judges recruited and appointed under these Rules. Rule 5 provides for repeal and savings. It states, that Karnataka District Judges (Recruitment) Rules 1962, Karnataka Civil Judges (Recruitment) Rules 1966, Karnataka Munsiffs (Recruitment) Rules 1981, and all Rules made on the subject are repealed, provided that the said repeal shall not affect (a) previous operations of the said Rules or anything duly done or suffered thereunder or any right, liability or obligation acquired, accrued or incurred under the said Rules; (b) the validity of the list of selected candidates for the posts of District Judges or Munsiffs, as the case may be, prepared under the repealed rules and appointments of such selected candidates; and (c) all proceedings, including action taken to make recruitment and preparation of the list of selected candidates, commenced under the repealed Rules etc.

60. Therefore, under the 1983 Rules, 33.33% of total posts was to be filled by way of direct recruitment and 66.67% of total posts was to be filled up by way of promotions. Statement showing particular cadre strength of regular District Judges, number of posts filled up, number of posts reserved for promotees under 2/3^rd cadre strength and number of District Judges promoted from the cadre of Civil Judge (Senior Division), is produced as Annexure "R-1?, to the statement of objections filed on behalf of the State.

61. Another set of rules i.e., 2004 Rules was published by Notification dated 09/09/2005. Those rules were also made by the Governor of Karnataka in exercise of powers conferred upon him under Article 233 and 234 and proviso to Article 309 of the Constitution, in consultation with the Karnataka Public Service Commission and the High Court of Karnataka. Rule 2 (e) defines "Recruiting Authority" to mean High Court of Karnataka. Rule 2(f) defines "service" to mean the Karnataka Judicial Service. Rule 3 states that appointing authority for posts in the cadre of District Judges and Civil Judges (Jr.Dn.) shall be the Governor and for posts in the cadre of Civil Judges (Sr.Dn.) shall be the High Court. Rule 4 provides for method of recruitment, qualification and age limit in respect of three cadre of posts i.e., District judge, Civii Judge (Sr.Dn.) and Civil Judge (Jr.Dn,). The present petitions, are concerned with the cadre of District Judge. The relevant Rule 4 to the extent, necessary, read thus:

"4. Method of recruitment:, qualification and age limit:-

In respect of each cadre of posts specified in column (2) of the table below the method of recruitment and minimum qualification, age limit etc., shall be as specified in the corresponding entries in columns (3) and (4) thereof

(œTABLE?)

62. It provides for selection of candidates in the order of merit on the basis of aggregate of the marks obtained in written examination and viva-voce test, subject to government orders relating to reservation of posts for scheduled castes, schedule tribes and other backward classes. Part-II of Rule-5 provides for competitive examination for recruitment of Civil Judges, Junior Division, which we are not concerned with.

63. Neither under 1983 Rules nor under 2004 Rules, is there a provision for appointment on ad hoc or temporary basis. Unlike in some other States, in the State of Karnataka, there were no special rules made for recruitment of Judges for the FTC. But it cannot be said that the High Court on its administrative side promoted Presiding Officers to preside over FTCs on a random basis or without following a procedure known to law? Annexures "R-5" to "R-17", clearly disclose that Administrative Committee-II, considered the Confidential Records, quantum of work turned out, opinion of the Hon'ble Judges about the quality of judgments and other relevant materials on record, before promoting Judicial Officers (Senior Division), as Presiding Officers of FTCs. Those recommendations of the Administrative Committee-II were accepted by Full Court and the State Government and accordingly promotions were made. Though the object of those promotions was to man FTCs set up at the instance of the Central Government, the manner in which the promotions were made, though on ad hoc or temporary basis, was as if the promotions were to fill up vacancies that arose on account of increase in work.

64. Though no specific norms with reference to the manner of promotion has been made under the 1983 Rules, the said Rules note that the High Court must adopt such procedure as it deems fit for selecting candidates for promotion on seniority-cum-merit. Having perused Annexures œR-5" to "R-17", it is clear that the High Court adopted the procedure of promotions by seniority-cum- merit as it would have done if promotions to substantive vacancies would have been made by it to the cadre of District Judge in the normal course. The only other requirement that had to be borne in mind while making promotions to substantive vacancies was that the promotion should not exceed 66.67%, as 33.33% of posts in the cadre of District Judges had to be filled up by direct recruitment.

65. The 1983 Rules also do not state that promotion has to be in a substantive capacity or that appointment has to be to the service i.e., to a post in the service, or that persons who hold posts bearing designations similar to the designations of post held comprised in the service could not become members of the service. With the above legal frame work, the concept of seniority can be examined at this stage, having regard to the controversy involved in these appeals.

SENIORITY:

66. Seniority is one of the conditions of service having a direct nexus to promotion to the next cadre. Whether promotion is based on seniority-cum-merit or on the Dasis of merit-cum-suitability, seniority is an important factor to be considered at the time of making promotions. Seniority is determined on the basis of rules. As far as State of Karnataka is concerned, the Karnataka Government Servant's (Seniority) Rules, 1957 are applicable. The common meaning attributed to the word seniority is "length of service", which is normally a comparison between length of service in the same grade and not the over all length of service in different grades.

67. In the matter of fixing seniority between direct recruits and promotees, generally, a direct recruit is appointed on probation while a promotee is normally placed on officiation. During the period of probation or officiation, the officer concerned could be discharged or reverted on grounds of unsuitability in accordance with rules governing the conditions of service. In fixing seniority in officiating position, seniority of promotees and direct recruits should be fixed having regard to the quota prescribed in the relevant rules and confirmation should be made in the same order V.B.Badami and Others v. State of Mysore and Others (1975)2 SLR 295.

68. The method of fixing seniority of direct recruits and promotees in accordance with the recruitment rules, came up for consideration before the Hon'ble Supreme Court in A.K.Subraman v. Union of India [AIR 1975 SC 319] (A.K.Subraman). The facts of the case and guidelines issued in that case, are as under:-

The grievance of the petitioners therein was that notwithstanding the fact that they were recruited by promotion to officiate in the grade of Executive Engineer regularly as a result of selection by the Departmental Promotion Committee and they have been working in that capacity for nearly 13 years or more, their cases were not considered for the purpose of promotion to the still higher grades in Class-I and Assistant Executive Engineers recruited several years after their recruitment were held to be senior to them and some of them were even promoted to the next higher grade ignoring their claim. The Hon'ble Court opined that to consider when a vacancy arose in the grade of Executive Engineer, one must ascertain the posts which the grade of Executive Engineer consisted of, for the vacancies could only be in the posts in the grade of Executive Engineer. The word "grade" had various shades of meaning in service jurisprudence. It is some times used to denote a pay scale and sometimes a cadre. A cadre may consist only of permanent posts or sometimes, even temporary posts. Whenever a vacancy arose in a permanent post or in a temporary post, it was a vacancy in the grade of Executive Engineer and the quota rule of promotion would apply. The Court also said that there is a well recognized distinction between a promotion and confirmation. When promotion is made by selection, it is based on the assessment of relative merit from a field of choice consisting of the senior most persons in the lower cadre up to about five or six times the number of expected vacancies, while for confirmation, the only aspect considered is whether the performance of the incumbent is satisfactory and there is nothing objectionable from the vigilance angle.

i. The seniority of a civil servant in the cadre concerned will count from the date of initial appointment on officiation (on promotion) or probation (on direct recruitment) provided the initial appointment is within the quota;

ii. The quota rule applies to vacancies in all posts, permanent or temporary included in the sanctioned strength of the cadre, except vacancies which are purely fortuitous or adventitious;

iii. The validity of appointment from one source does not depend upon the making of appointment from the other source; direct recruits could be validly appointed against direct recruitment vacancies without waiting for promotion and vice versa and so long as the appointment is within the quota the appointee is entitled to count seniority from that date. This rule should be distinguished in cases where the rota system of appointment is applicable. Thus where persons are appointed on a rota basis and are drawn from different registers, such as direct recruits, and recruits from other sources, their seniority would count from their date of the order of appointment and not from the date of individual appointment. Thus when under the rules appointments were to be made under different registers, that would be the date to determine seniority. To read the "date of order of appointment" as the 'date of appointment" would place direct recruits at a disadvantage as such appointments usually took longer compared to the appointments of those drawn from registers of those already //? employment. Quota and rota must be thus reflected in the seniority lists that are prepared.

iv. If the direct recruits are appointed against promotional vacancies, or promotees are appointed against direct recruitment vacancies, their appointment must be adjusted against clear vacancies becoming available thereafter at any time, and for purpose of seniority it is the date on which the appointment is adjusted against a vacancy available for that source which counts for seniority and not the date of appointment made in violation of the quota.

v. Once the seniority of direct recruits and promotees when they are on probation/officiating basis is fixed according to the date of appointment, thereafter the source from which they are recruited is not relevant for purposes of confirmation which has to be made strictly according to seniority fixed in compliance with the quota rule and the date of appointment.

These principles have been reiterated in all the subsequent decisions by the Supreme Court and followed by the High Courts.

The quota system enunciated by the Hon'ble Justice Shetty Commission appointed for fixation of pay scales for judicial officers, was in issue in All India Judges Association (III) v. Union of India [(2002)4 SCC 247], where the Court directed as follows:

"That recruitment to the Higher Judicial Service i.e., the cadre of District Judges will be:

"(I)(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 suitable 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."

Thus, seniority would count from the date on which direct recruits or promotees are appointed against clear vacancies earmarked for that particular posi. Also, if direct recruitment vacancies arising in a given year are not filled up immediately and are filled up thereafter, the direct recruits will get seniority from the date of their appointment and not from the date on which the vacancy arose. But promotees recruited within their quota in the meantime, would be entitled to seniority from the date of their appointment and cannot be made juniors to direct recruits recruited subsequently, on the ground that direct recruitment vacancies were available in the previous years.

In subsequent decisions also, the Hon'ble Supreme Court held that an earlier promotee within the quota is entitled to be confirmed at the earliest availability of vacancy, provided he is eligible for confirmation and consequently seniority also accrues on the same basis.

Rule 2 and 3 of the Karnataka Government Servants (Seniority) Rules, 1957 reads as under:-

"2. Subject to the provisions hereinafter contained the seniority of a person in a particular cadre of service or class of post shall be determined as follows:-

(a) Officers appointed substantively in dear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post;

(b) The seniority inter-se of officers who arc confirmed shall be determined according to dates of confirmation, but where the date of confirmation of any two officers is the same, their relative seniority will be determined by their seniority inter-se, while officiating in the same post and if not, by their seniority inter-se in the lower grade.

(c) Seniority inter-se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same the seniority inter-se in the lower grade shall prevail.

Explanation - When an officer otherwise fit for promotion from a particular cadre of service or class of post is not available for promotion on account of deputation, the shortness of the vacancy or other similar reason resulting in his junior in the same cadre of service or class of post being promoted the senior officer will maintain his seniority in the cadre of the service or class of post to which the promotion has been made. But this provision will not be applicable to officers, who are not considered fit for promotion. In such cases, a definite decision shall be taken whether the officer who is not available for promotion, would have been promoted to the higher post if he were available.

Unless there is a positive decision to supersede, he shall rank for seniority over his junior.

*(d) Omitted"

3. Where officers are recruited to any service or a class of post by promotion and by direct recruitment, the officers directly recruited will take precedence over the promoted officers in case where the date of appointment is the same."

Precedents on the issue of seniority:

69. At this stage, it would be useful to discuss other judicial precedents on the issue of seniority, having regard to the nature of appointments made to FTCs in the State and Keeping in mind Notifications of the year 2009 issued in the instant case, before venturing to answer the question of inter se seniority between direct recruits and promotees in these cases.

70. In Debabrata Dash, the following cases were referred to and it would be relevant to refer to them. S.B. Patwardhan v. State of Maharashtra (1977 (3) SCC 399); Baleshwar Dass v. State of U.P. (1980 (4) SCC 226) and Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra (1990 (2) SCC 715).

a) In S.B.Patwardhan and another v. State of Maharashtra and others [(1977) 3 SCC 399)J, the controversy was with regard to departmental promotees and direct recruits appointed as Deputy Engineers in Engineering Services of the Governments of Maharashtra and Gujarat. The contention was that they were being treated unequally in the matter of seniority. Whereas, promotees as officiating Deputy Engineers did not belong to class II cadre so long as they were not confirmed as Deputy Engineers, direct recruits appointed on probation as Deputy Engineers entered the class or cadre on the very date of their appointment, since, on satisfactory completion of probation, confirmation was guaranteed to them. On the question whether the promotees and direct recruits belonged to the same class and ought to be treated with an even hand or whether they belonged to different classes or categories and could be justifiably treated unequally, it was held that care ought to be taken to avoid a clear transgression of equality clauses of the Constitution.

Under the 1960 Rules, which were considered in that case, the ratio of appointment by nomination and promotion of both Class I and Class II Engineering Services was fixed as far as practicable at 75:25. Candidates appointed by nomination that is, direct recruits were to be on probation for two years. On satisfactory completion of probation, they were to be confirmed as Assistant Engineers Class-I or Deputy Engineers Class-II as the case may be.

Rule 8 (iii) therein stated that "the probationers recruited directly to the Bombay Service of Engineers Class II Cadre in any year shall, in a bunch, be placed senior to promotees confirmed during that year." This Clause was held to be discriminatory against promotees as it accorded preferential treatment to direct recruits. The justification for the Rule was that persons who were promoted as officiating Deputy Engineers did not belong to Class II cadre, whereas, direct recruits appointed on probation as Deputy Engineers entered that class or cadre on the very date of their appointment since, on satisfactory completion of probation, confirmation was guaranteed to them. The question considered was, whether officiating Deputy Engineers belonged to Class II cadre or not. Referring to A.K.Subraman (supra), it was held that there was a well recognized distinction between promotion and confirmation and tests to be applied for the purpose of promotion were entirely different from those that had to be applied at the time of confirmation. Elaborating on clause (iii) of Rule 8, therein the Hon'ble Court stated that though drawn from two different sources, they constituted a single integrated cadre as they discharged identical functions, bore similar responsibilities and acquired equal amount of experience in their respective assignments and yet, Rule 8(iii) provided that probationers recruited during any year shall, in a bunch, be treated as senior to promotees confirmed in that year. That, clause (iii) of Rule 8 determined seniority solely on the touchstone of confirmation which was indefensible. According to the Hon'ble Court, confirmation was one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The Hon'ble Court quoted a glaring instance where a distinguished member of the judiciary was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. Observing that officiating Deputy Engineers were not confirmed even though substantive vacancies were available, it was held that confirmation did not conform to any set rules and whether an employee should be confirmed or not depended on the sweet will and pleasure of the Government.

Referring to B.S.Gupta v. Union of India [(1975)3 SCC 116)], it was observed that when recruitment is made from several sources, it may be necessary in public interest to depart from the normal rule of seniority and to provide that dates other than that of appointment would determine inter se seniority of officers. In the context of clause (iii) of Rule 8, it was held that seniority was a valuable right and could not depend upon mere confirmation and hence, clause (iii) of Rule 3 was struck down as being violative of Articles 14 and 16 of the Constitution,

b) In the case of Baleshwar Dass and others v. State of U.P. and others [(1980)4 SCC 226], the controversy related to seniority between three groups of Assistant Engineers belonging to Uttar Pradesh Service Engineers (Irrigation Branch) - graduate engineers directly recruited by the Public Service Commission through competitive examinations; graduate engineers once appointed in numbers but later absorbed after consultation with the Public Service Commission and diploma holders later promoted as Assistant Engineers.

Rule 23 of the United Provinces Services of Engineers Class II, Irrigation Branch Rules, 1936 was considered, which stated that "Seniority in the Service shall be determined according to the date of the order of appointment to it...". Rules 3 and 4 of those Rules stated that a cadre post could be permanent or temporary and an engineer appointed substantively to a temporary or permanent post became a member of the Service. Considering the meaning of substantive capacity in context of temporary and permanent post, the Hon'ble Court opined as under:-

"A post of short duration, say a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head 'temporary' for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the service provided they have been appointed substantively to that temporary post".

"A thing is substantive if it is "an essential part of constituent or relating to what is essential". Substantive capacity means "independent existence".

Therefore, according to the Hon'ble Court when a post is vacant, however designated, in official capacity, which person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate the official diction used in this connection, it may be said that a person is said to hold a post in a substantive capacity when lie holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation, subject to confirmation. Therefore, if an appointment is made even to a temporary post of long duration or of an indefinite duration after following the procedure, then the post is held by the incumbent in a substantive capacity, was the view of the Hon'ble Court. A direction was given in that case to the State Government concerned, to ascertain whether the capacity in which the pest had been held was substantive or temporary and if the incumbent was holding the post in substantive capacity, then the entire officiating service could be considered for seniority and for other purpose, they may remain temporary.

The observations and findings of the Hon'ble Court can be better appreciated by the following passage:

"If a public servant serves for a decade with distinction in a post known to be not a casual vacancy out a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, can it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations."

c) Despite the judgment of the Hon'ble Supreme Court in S.B.Patwardhan (supra), once again the controversy of seniority in service between direct recruits and promotees was interpreted in Direct Recruit Class II Engineering Officers' Association. Reiterating what had beer, stated in S,B.Patwardhan, a Constitution Bench of the Hon'ble Supreme Court, held that once an incumbent is appointed to a post according to Rules, his seniority had to be counted from the date of his appointment and not according to the date of his confirmation. It was held that seniority could not be determined on the sole test of confirmation, for, confirmation was one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority had to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment was made by way of stop-gap arrangement, without considering the claims of all the available eligible persons and without following rules of appointment, the experience on such appointment could not be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment was made after considering the claims of all eligible candidates and the appointee continued in the post uninterruptedly till the regularization of his service in accordance with rules made for regular substantive appointments, there was no reason to exclude the officiating service for purpose of seniority.

After making the aforesaid observations, the summing up was as follows:-

(A) Once an incumbent is appointed to a post according to rule, his seniority has to becounted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc, and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be continued.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly."

d) In Suraj Prakash Gupta and Others etc., v. State of Jammu and Kashmir and Others [AIR 2000 SC 2386], where the controversy was with regard to regularization of Engineers who had served as stop-gap or ad hoc Engineers, it was held that their services could be regularized from an anterior date after consulting the Service Commission from the date of vacancy in promotee quota, after considering fitness, eligibility, suitability and ACPs. Only the period of service rendered out side the quota or the period rendered within quota when the promotee was not eligible or found fit had to be excluded.

71. The judgments of the Hon'ble Supreme Court specifically dealing with the controversy of seniority between direct recruits and promotees in judicial service which are relevant to the present case can be referred to at this stage.

a) In O.P. Sing la v. Union of India [(1984)4 SCC 450] (O.P.Singla), petitioners before the Hon'ble Supreme Court were promotee - Additional District and Sessions Judges of Delhi working in temporary posts in their cadre created under Rule 16 and 17 of the Delhi Higher Judicial Service Rules, 1970. Those who were directly recruited to the Delhi Higher Judicial Service under Rule 5 (2) were impleaded as respondents. The petitioners challenged the seniority list on the ground that seniority between promotees and direct recruits had to be determined in accordance with the respective dates of their continuous officiation as Additional District and Sessions Judges and that seniority given to direct recruits appointed at a later point of time over promotees appointed earlier, was violative of Articles 14 and 16. Allowing the writ petitions, Hon'ble Court held that in such a situation, seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to the respective posts and the dates from which promotees had been officiating continuously either in temporary posts or in substantive vacancies to which they were appointed albeit in a temporary capacity. It was further held by Mukharji J., concurring with the majority view, that temporary posts could be held in substantive capacity. Appointment in a substantive capacity is different from appointment to substantive posts. A person could be said to hold a post, permanent or temporary, in a substantive capacity only if his appointment to that post was not fortuitous or ad hoc as a stop-gap arrangement and was made in compliance with rules and regulations, which had to be complied with while making appointments to a permanent post. In that case, all promotees were appointed to temporary posts in accordance with the qualifications laid down under clause (a) of Rule 7 namely, by selection and after completion of minimum of ten years judicial service. Selection was made by the Full Court of the High Court and appointments were made on merit-cum-seniority basis, and persons found not fit for promotions were ignored. It was he'd that they were appointed regularly and not on ad hoc or stop-gap basis. It was also held that a direct recruit, appointed after a member was promoted to a substantive post of Additional District and Sessions Judge, could not rank higher than the latter in the list of seniority but would rank lower in seniority than the latter.

b) In Rudra Kumar Sain (supra), facts were that pursuant to the decision in O.P.Singla, Delhi High Court had drawn a provisional seniority list of candidates for the Delhi High Court Judicial Service on 26/03/1985 which was approved by the Full Court ori 25/10/1986 and issued on 11/11/1986. A writ petition under Article 32 of the Constitution was filed by the promotees as well as the direct recruits disputing whether in preparing the seniority list, guidelines and directions given by the Supreme Court in G.P.Singia had been duly followed or not. Promoted officers had contended that the said directions were not followed. According to them, they were promoted under the 1970 Rules, but the High Court had treated them to be ad hoc or stop-gap appointees and they were made junior to the direct recruits and their continuous service was not taken into account for determination of their seniority. On the other hand, direct recruits contended that any appointments made in excess of posts available must be held to be either stop-gap or fortuitous and that the High Court did not commit any illegality in drawing up the seniority list. The Hon'ble Supreme Court held that, in drawing up the seniority list, though the High Court proceeded to allocate seniority according to length of continuous officiation, regardless of whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit, as directed by the Supreme Court in O.P.Singla case, but committed an error by excluding certain persons on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been made after due consultation with and/or approval of the High Court arid the appointees possessed the required qualification under Rule 7 of the Recruitment Rules therein. Cri this score, seniority list was held to be vitiated.

While dealing with terms sad hoc', 'fortuitous' and 'stop-gap', the Hon'ble Supreme Court opined that interpreting provisions of a service rule would depend on the provisions of that rule and context in and purpose for which the expressions were used. The meaning of any of these terms in context of computation of inter se seniority of officers holding cadre post would depend upon facts and circumstances in which the appointment came to be made. For that purpose, it would be necessary to look into the purpose for which the post was created and nature of appointment of the officer as stated in the appointment order. If the appointment order itself indicated that the post was created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post could be aptly described as "ad hoc" or "stop-gap", which had suddenly arisen on account of happening of some event of a temporary nature, and the appointment of such a post could aptly be described as "fortuitous" in nature. But if on account of delay in completing the process of regular recruitment to the post due to any reason, it not being possible to leave the post vacant till then, and to meet this contingency, an appointment was made then it could appropriately be made a stop-gap arrangement and appointment in the post made as ad hoc appointment. It was not possible to make out nor give an exhaustive list of circumstances and situations in which such an appointment (ad hoc, fortuitous or stop-gap) could be made. The Hon'ble Court held as under :

"20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be stopgap or fortuitous or purely ad hoc'. In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be 1fortuitous/adhoc/stopgap' are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous".

In the aforesaid cases, the Hon'ble Supreme Court noticed that the extant Rules provided for temporary posts.

72. The ratio in the aforesaid cases have to be applied to the facts of the present case. Reiterating the same, Government of Karnataka issued four Government Orders creating 93 FTCs across the State. By Government Order dated 29/05/2001, 13 Courts were created. On 20/03/2003, 23 FTCs were created, on 31/10/2003 33 FTCs were created and by another Government Order dated 20/03/2004, 24 FTCs were created. Thus, on those dates there were additional vacancies though ad hoc or temporary in nature which became available in the cadre of District Judges. On 15/02/2003, 16 Judges; on 19/03/2003, 5 Judges; on 15/11/2003, 31 Judges and on 20/03/2004, 30 Judges were appointed to preside over the FTCs (totally 82). Thus, on the basis of seniority- cum-merit and suitability, this Court appointed Civil Judges (Senior Division) to preside over FTCs on the basis of 1983 Rules.

73. We would summarise the ratio of the judgments of the Hon'ble Supreme Court as follows:

a) In Brij Mohan Lal-I, Hon'bie Supreme Court categorically stated that while making appointments to FTCs, first preference must be given to those eligible judicial officers, who could be given ad hoc promotions and that while giving such promotions, High Courts had to follow procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services. The recommendation for selections or ad hoc promotions was to be made by a Committee of at least three Judges of the High Court constituted by the Chief Justice of the High Courts concerned, the final decision in the matter was to be taken by the Full Court of the said High Court. After ad hoc promotions of judicial officers to FTCs, the consequential vacancies were to be filled up immediately. Thus, while making ad hoc promotions of Judges to FTCs, the extant procedures in the matter of promotions were to be followed. Also, on making ad hoc promotions, the consequent vacancies were to be filled up by a special recruitment drive, the implication being that the posts created on account of the constitution of FTCs were treated as additional posts in the higher cadre of District Judges. The posts vacated by them in the parent cadre were to be immediately filled up by others.

Of course, tne Hon'ble Supreme Court also observed that there was no right conferred on a judicial officer to claim regular promotion on the basis of his or her appointment on ad hoc basis under the FTC scheme, as service rendered in FTCs was to be deemed as services rendered in the parent cadre. It was also stated that if any judicial officer was promoted to a higher grade in the parent cadre during his tenure in the FTCs, service rendered in FTCs was to be deemed as service in such higher grade. These observations have been relied upon by the petitioners (direct recruits) to contend that ad hoc promotions did not imply grant of regular promotions to respondent - officers. The Hon'ble Supreme Court also opined that as far as service conditions are concerned, ad hoc promotees were to be governed by rules and regulations which were applicable to members of judicial services of equivalent status i.e., in the cadre of District Judges.

b) In Brij Mohan Lal - II, tr.e Hon'ble Supreme Court directed the State Government to take a decision either to continue the FTC Scheme on a permanent basis or to put an end to it arid not to continue it on an ad hoc or temporary basis. Directions were also given as to how persons recruited from the Bar as Judges, to preside over FTCs, were entitled to be appointed in regular cadre. As far as ad hoc promotees as FTC Judges were concerned, they were entitled to be absorbed and "remain promoted" in the higher cadre subject to conditions applicable to regular promotion on seniority-cum-merit basis and accelerated promotions. While carrying out this exercise, due weightage was to be given to the fact that they had already put in a number of years in judicial service and giving due regard to their performance. Only persons who were not absorbed were to be reverted to the respective posts in the appropriate cadre in the event of discontinuation of the FTC Scheme.

c) In between these two decisions, there is an order passed by the Hon'ble Supreme Court in the case of Madhumita Das. In that case, 16 posts of District Judges were advertised including 9 posts held by the petitioners therein. The grievance of the petitioners was that: they had been selected to function as ad hoc Additional District Judges in terms of the judgment in Brij Mohan Lal-I and having regard to the advertisement for recruitment and the conditions stipulated therein, they could not apply. Hon'ble Supreme Court held that their cases had to be considered as and when the appointments were to be made in respect of regular vacancies and that as and when regular vacancies arose, their cases had to be duly considered and there was no necessity for them to appear in any examination meant for recruitment to the cadre of District Judge.

d) In Debabrata Dash also, after referring to Direction No. 14 of Brij Mohan Lal-I, Hon'ble Supreme Court held that, until vacancy arose in the cadre of Superior Judicial Service, which had to be filled up by promotion, service rendered by the first respondent therein in FTC could not be deemed to be service rendered in Superior Judicial Service (Sr. Dn.), and until then, he continued to be a member of the parent cadre. It was also observed that in Orissa, FTC Judges were appointed under a separate set of rules and not under rules governing the State Higher Judicial Service in Odisha. While appointing FTC Judges, it was clearly stipulated that such appointments would be ad hoc in nature. Even then, Hon'ble Supreme Court held that the respondent therein was to be given benefit of service rendered in FTC from the date the vacancy in the regular cadre and not from the date he actually joined service under the FTC Scheme or from the date the promotion was made or from the date of confirmation in the regular cadre. Thus, what follows from Debabrata Dash, is that the period of service rendered in FTC could be deemed to be service rendered in the Superior Judicial Service (Senior Branch) i.e., District Judges cadre from the date the vacancy arose in that cadre which in that case was subsequent to the respondent joining service as FTC Judge and during his service as FTC Judge. In the instant case, however, there were no separate Rules for appointment to FTCs. They were promoted under the 1983 Rules as if they were being promoted to regular vacancies, but as the FTC Scheme was a temporary scheme, can the contention of the promotees that their seniority has to be counted from the date of their appointment as an FTC Judge be accepted?

e) On the other hand, in Mahesh Chandra Verma, no relief was given to Judges who worked under FTC Scheme as their very appointments were made to non- existing posts. In fact, when advertisement dated 23/01/2001 was issued by the Jharkhand High Court, the FTC Scheme was not in force at all. Under those circumstances, it was held that the service rendered under the FTC Scheme wou!d not enure to the benefit of the FTC Judges. But the facts in the present case are quite contrary to the facts in Mahesh Chandra Verma and therefore, that decision has no bearing to the present controversy. The Learned Single Judge was, therefore, not right in placing reliance on that decision to deny relief to the promotees.

f) On the other hand, the consistent view of the Hon'ble Supreme Court right from A.K.Subraman (supra), has been that seniority would count from the date of initial appointment or officiation (on promotion) or probation (on direct recruitment) provided the initial appointment was within the quota and that quota rules would apply to vacancies in all posts, permanent or temporary included in sanctioned strength of the cadre, except vacancies which are purely fortuitous or adventitious. Also validity of appointment from one source does not depend upon making of appointment from another source. For instance, direct recruits need not wait for promotees to fill up vacancies so long as their appointment is within their quota and vice versa.

g) In fact, in S.B.Patwardhan, the Hon'ble Supreme Court categorically observed that confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on availability of substantive vacancies. It would only depend on the sweet will and pleasure of the Government. Therefore, even if confirmation in a post takes place as and whenever the Government or the appointing authority acts, seniority would have to be counted from the date of officiation and not from the date of confirmation.

h) In Baleshwar Dass also, the Hon'ble Supreme Court held that a post may be called temporary Tor budgetary or other technical reasons, but it is the nature of appointment to that post which has to be noted. Even if a post is temporary or permanent in nature the substantive capacity in which a person holds the post becomes relevant. Therefore, an appointment made even to a temporary post of long duration or of an indefinite duration after following the procedure is an appointment in substantive capacity in which event, the date from which the person holds the post in substantive capacity must be considered for seniority.

i) In Direct Recruitment Class-II Engineers Officers Association, it has been stated that if an appointment is made by way of stop-gap arrangement, without considering claims of all available eligible persons and without following rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. But once an incumbent is appointed to a post according to the rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. In other words, if the initial appointment is ad hoc and not according to rules and is made as a stop-gap arrangement, the officiation to such post cannot be taken into consideration for considering seniority.

j) In the context of appointments and promotions made to Judicial cadre in O.P.Singla, the Hon'ble Supreme Court has categorically opined that as between direct recruits and promotees, when an appointment is made in substantive capacity to a temporary post, and direct recruit is subsequently appointed, the direct recruit cannot claim a rank higher than the promotee appointed in the substantive capacity even to a temporary post.

k) In Rudrakumar Sain, the Hon'ble Supreme Court held that seniority list was vitiated as persons appointed to temporary post in a substantive capacity after due consultation and by following the procedure were excluded on the ground that the post was held by them on ad hoc basis or for fortuitous reasons. The Hon'ble Court held that if the post is held by a person who possesses requisite qualification and is found suitable by the appointing authority and is appointed in accordance with procedure prescribed under the rules, then such an appointment cannot be held to be stop-gap or fortuitous or purely ad hoc.

In Debabrate Dash, the Hon'ble Supreme Court held that the respondent therein was entitled to count his service in the cadre of District Judge from the date the vacancy arose in that cadre and not from the date when he joined service as a Judge of the FTC.

74. Thus, what emerges from a consideration of the precedents on the issue is that the service rendered by the promotees in FTCs is not merely stop-gap or fortuitous. No doubt, their appointments was on ad hoc basis. That was because the FTC Scheme itself was not permanent. But too much negative emphasis on the expression "ad hoc" cannot be placed in the instant case. Even if the promotees were promoted as FTC Judges on ad hoc basis, their promotions were not on random or by any pick and choose method. Administrative Committee- II of this Court considered the names of Civil Judges (Sr. Dn.) in order of seniority as well as on the basis of their individual merit, and recommendation was made by the Committee to appoint them as FTC Judges. Their suitability to work as FTC Judges was based on seniority- cum-merit in terms of the 1983 Rules. The 1983 Rules did not prescribe any specific procedure for selecting the candidates by promotion by seniority-cum-merit. The said rule only stated that "High Court of Karnataka may adopt such procedure as it deems fit for selecting the candidates by promotion by seniority-cum-merit". A common procedure was adopted for selecting candidates to be promoted as FTC Judges i.e., on the basis of confidential records, quantum of work turned out, opinion of the Hon'ble Judges about the candidates and upon the relevant material on record, the suitability of the Judges based on their seniority was considered and recommended to be appointed as FTC Judges. Recommendations of the Administrative Committee - II were accepted by the Full Court and by the State Government and accordingly, their promotions were notified. The promotions were made after the establishment of FTC Courts in the State to vacancies which existed in the cadre of District Judges. The appointments were thus in a substantive capacity although, the posts were of a temporary nature as the FTC Scheme itself was a temporary scheme. Therefore, if the argument of the promotees is to be accepted, then relief would have to be given to the promotees by holding that they are entitled to count their seniority from the date they were promoted as FTC Judges under various Government Orders, in which case, the claim made by the promotees would be fully met.

75. However, in Debabrata Dash, the Hon'ble Supreme Court took note of the fact that appointments to the FTCs were made under separate rules and did not grant relief to the respondent therein from the date the order appointing him to the FTC was issued or even from the date when he joined duty as an FTC Judge but directed him to count his service in the cadre of Senior Judicial Service (Sensor Branch) i.e., cadre of District Judge from the date the vacancy arose in that cadre namely, on 15/12/2003. Therefore, period of service rendered by the respondent therein as an FTC Judge from 26/04/2002 when he joined duty till 15/12/2003 was not taken into consideration. If that reasoning of the Hon'ble Supreme Court is applied to the present case, then, having regard to the vacancy position, it is noted that with effect from 01/05/2003, there was vacancy in 66.2/3rd's quota of promotees as well as among 33.1/3rd of direct recruits. The promotees would have to be promoted from that date when vacancy arose in the cadre of District Judge.

76. As on 09/09/2005, 2004 Rules came into effect, in which event, vacancy had to be filled up in the prescribed ratio of 50% by promotion, 25% by accelerated promotion and further 25% by direct recruitment. The 2004 Rules were framed pursuant to the judgment of the Hon'ble Supreme Court in All India Judges' Association v. Union of India [(2002) 4 SCC 247]. The vacancy position were reworked pursuant to the said Rules. Even as on 25/02/2003, when the direct recruits took charge in the instant case, there were 34 vacancies (i.e., 50%) in promotional quota, 45 vacancies (i.e., 25%) in accelerated promotion quota and 14 vacancies (i.e., 25%) in direct recruitment quota. This list of vacancy position does not take into account the 93 FTCs posts created by the State Government. If the 93 FTCs constituted by the State Government, though temporary in nature, are also taken into consideration, then the appointment of FTC Judges would have been made in a substantive capacity. It means that the appointment is to a clear vacancy having independent existence in which event, officers appointed substantively to those posts would be senior to all persons appointed on any other basis as contemplated in clause (a) of Rule 2 of the Karnataka Government Servants (Seniority) Rules, 1957 from the year 2003-04 onwards.

77. In Rudrakumar Sain, the Hon'ble Supreme Court held that the terms ad hoc., fortuitous or stop-gap, have to be interpreted in light of the facts and circumstances of the case, in which, appointments were made. For that purpose, it would be necessary to consider the reason for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicated that the post was to meet a particular contingency and have a specified period, then the appointment would be ad hoc or stop-gap. But the rise in the vacancy was on account of happening of an event even of a temporary nature, then it would be an appointment of a fortuitous nature. If the promotions were made on account of a delay in making regular recruitment or to meet such a situation and a stop-gap arrangement was made, then the appointment was ad hoc. But if, on the other hand, a person who possessed the requisite qualification was appointed to a particular post after consultation with the appropriate authority and he continued in that post for a fairly long time, it could not be held that it was stop-gap, fortuitous or purely ad hoc appointment.

78. In the instant case, the appointment order uses the expression "ad hoc", because the FTC Scheme was a temporary scheme but by that logic, it cannot be stated that the service rendered by FTC Judges was a stop-gap service or for a specific or for a limited period only. Therefore, the service rendered by the FTC Judges in the State would have to be counted for the purpose of giving weightage and for determination of their seniority, at least from the date the vacancy arose under 1983 as well as 2004 Rules, if not from the date of their appointment as FTC Judges. This would be in consonance with the dicta of the Hon'ble Supreme Court discussed above.

79. On consideration of the judgments of the Hon'ble Supreme Court, what follows is that the date of confirmation to a post in the year 2009 in the instant case cannot be reckoned as the date for the purpose of ascertaining seniority, in the instant case, the admitted position is that direct recruits were appointed as probationary officers in February 2008 and promotees were confirmed as District Judges in June 2009 onwards. The Notifications dated 01/06/2009, 27/06/2009 and 29/07/2009 have to relate back to the date on which the promotees could have been appointed in the vacancies. In that event, clause (a) of Rule (2) of seniority Rules can also be given effect to in the instant case, as the promotees would be appointed substantively in clear vacancies from the date the vacancies arose, in which event, they would be senior to all persons appointed subsequently.

80. There is another angle to the matter. Clause (a) and (c) of Rule 2 of the Seniority Rules, speak about officiation. On a combined reading of these two clauses, what becomes clear in the context of these clauses is that, officiation is when a person is not appointed in a substantive vacancy or is appointed on a temporary basis. But if a person is appointed substantively in a clear vacancy, he cannot be stated to be appointed on an officiating or temporary basis. The promotees in the instant case, no doubt, were appointed under FTC scheme and not to clear vacancies in the cadre of District Judges when they were promoted as FTC Judges. But their appointments being in a substantive capacity, when the clear vacancy arose their service from the date the vacancy arose had to be reckoned for the purpose of seniority. Rule 3 of the Seniority Rule states that where the officers are recruited for any service or a class of post by promotion and by direct recruitment, the officers directly recruited would take precedence over the promoted officers in case where the date of appointment is the same. Therefore, the Rules give precedence to directly recruited officers over promotees only where the date of appointment is the same. The implication being that if prior to the direct recruits being appointed promotions were made, then the seniority of the promotees would have to be reckoned from the date of their promotion to vacant posts. The posts created by the State Government under the FTC Scheme were not permanent but temporary posts but the appointment under the scheme was in a substantive capacity and not as a stop-gap arrangement. Though, two appointment orders stated that the promotions were on ad hoc basis and were subject to reversion at any time in future, would not detract from the nature of appointment made to the post under FTC Scheme, having regard to the voluminous dicta of the Hon'ble Supreme Court. Thus, seniority of the promotees has to be counted from the date they were appointed to the substantive vacancies i.e., from the date the vacancies arose and not from the date of the Notification issued in the year 2009, nor could it be from the date they were appointed as Judges of FTCs in the year 2003-04.

81. The questions raised by the learned single Judge could be answered in the following manner:

That the extant procedure in the matter of promotion to the post of District Judge was followed while appointing the promotees as ad hoc District Judges for the FTCs. Their promotions are in substance traceable to 1983 Rules. The vacancies that occurred prior to the enforcement of 2004 Rules have to be reckoned for giving deemed date of promotions from the date the vacancies arose, but not from the date of their promotions on ad hoc basis in 2003-04 nor from 2009 when the Notifications were issued. That the District Judges, who were promoted by Notification dated 25/06/2009 to fill up 25% vacancies through Departmental Competitive Examination under the 2004 Rules would be entitled for the same benefits that could be extended to those who were appointed under 50% quota to be filled up by promotion on the basis of seniority-cum-merit provided there were vacancies existing prior to the 2004 Rules and they possessed the requisite seniority to fill up those posts. The Departmental Competitive Examination taken by those officers is relevant only for adjusting 25% vacancies subsequent to the 2004 Rules i.e., to fill up the quota of 25% vacancies meant for accelerated promotion under the 2004 Rules without disturbing their seniority, in case there were vacancies to which they could have been appointed prior to 2004 Rules. Therefore, the promotions of the ad hoc District Judges as FTC Judges could be treated as regular promotions in the cadre of District Judges under the 1983 Rules and subsequently under the 2004 Rules from the date the vacancy arose, but not from the date of the issuance of the Notifications in the year 2003-04. Their promotions should be adjusted in the quota mentioned in 2004 Rules on the enforcement of those Rules without disturbing their seniority. The 2009 Notifications are in substance regularization of those promotions. Therefore, the seniority of the promotees would have to be reckoned from the date they filled up the vacancy in the cadre of District Judge and not from the date of their appointments as ad hoc Judges in the year 2003-04, nor from the date of the Notifications issued in the year 2009. Even if promotions as ad hoc Judges were in the absence of vacancies under the 1983 Rules, the appointment must be deemed to be made from the date the vacancies arose. But if there were already existing vacancies prior to the date of issuance of the Notifications appointing the ad hoc Judges, it would be from the date of the Notifications.

82. Thus, learned single Judge was not right in holding that the 1983 Rules were not applied to the promotions of the officers to the FTCs and that the ad hoc promotees constituted a class which was separate and distinct from those who were appointed to the posts in the cadre in conformity with the Rules of recruitment. As and when the vacancies arose under the 1983 Rules, promotions ought to have been made. At the time when the ad hoc promotions were made, even if there were no vacancies under the 1983 Rules, as and when the vacancies arose, FTC Judges must be deemed to be promoted from the date of the vacancy. The facts in the instant case are peculiar. On the one hand, steps at the right time were not taken to fill up the vacancies till 2009 and on the other hand, due to increase in the work load of the District Courts, the FTC Scheme was evolved and the promotees functioned as District Judges. If the vacancies had been filled up in time over the years, then it is these very promotees who would have been screened and promoted to the vacancies on the basis of seniority-cum- merit. Therefore, having regard to the dicta of the Hon'ble Supreme Court in Brij Mohanlal-I as well as Brij Mohanlal-II, the ad hoc promotions must enure to the benefit of the promotees at least from the date the vacancies arose in the cadre of District Judges and not from the date of the Notifications appointing them as ad hoc Judges.

83. When the aforesaid dicta are applied to the case at hand, it is noted that when the ad hoc promotions were made on various dates upto 01/05/2003, there were no vacancies in the cadre of District Judges. The vacancy arose only from 01/05/2003 in the quota meant for promotions. Therefore, the ad hoc appointments of the promotees prior to vacancies would not enure to their benefit. The ad hoc appointment of the FTC Judges would enure to their benefit only from the date they filled up the vacancy, which have arisen subsequent to their appointment. The screening of the Judges for appointment under the FTC Scheme and their service as ad hoc Judges are relevant for the purpose of reckoning their length of service from the date they filled the vacancy subsequent to their appointment. In this way ad hoc appointments to the FTCs would become relevant and enure to the benefit of the promotees in the matter of seniority, which is to be reckoned from the date their vacancies arose. Such an interpretation would be in line with the directions issued in Brij Mohan Lai - I and II, particularly, direction No.14 and paragraph 207.13 respectively. It would also be in line with other judgments of the Hon'ble Supreme Court dealing with seniority cited above.

84. In the result, the writ appeals are ailowed and the impugned judgment is set aside. The RG is directed to prepare a fresh seniority list of the direct recruits and promotees in conformity with the following directions:

(i) As far as the direct recruits are concerned their seniority would be reckoned from the date they were appointed.

(ii) As far as promotees are concerned, their seniority would be reckoned from the date they were appointed to the substantive vacancies i.e., from the date vacancies arose under the quota mentioned in 1983 Rules and not from the date of the Notifications appointing them as FTC Judges, where the vacancies arose subsequent to their appointment. In case, where the vacancies occurred prior to their appointment as FTC Judges, seniority should be reckoned from the date they were appointed as FTC Judges.

(iii) As far as those Judges who took examination by way of accelerated promotion is concerned, they are from two categories (a) ad hoc FTC Judges and (b) Civil Judge (Senior Division). The ad hoc FTC Judges have to be promoted as par their seniority, in those vacancies, which arose even prior to the examination for accelerated promotion held in the year 2009. Where there were no available vacancies prior to the examination held in the year 2009, the ad hoc FTC Judges would be considered for seniority from the date of Notification promoting them in 25% quota meant for accelerated promotion. /Is far as the Civil Judges (Senior Division) Judges, who took the examination for accelerated promotion is concerned, as the examination was conducted in 2009, their seniority would obviously be after the entry of the direct recruits on 25/02/2008, is reckoned. In other words, the direct recruits would be senior to the Civil Judges (Senior Division), who were promoted by way of accelerated promotion in the year 2009.

(iv) The said exercise to be carried out in an expeditious manner, preferably within a period of one month from today. All consequential benefits which accrue to the promotees shall be given to them in an expeditious manner.

(v) The Notifications issued in the year 2009 shall be construed as regularization of their officiation in the vacancies in the cadre of District Judges where the vacancies arose prior thereto.

(vi) The appeals being allowed and the impugned judgment being set aside, is without any order as to costs.

Court	Karnataka High Court
Decided On	Apr-03-2014
Case Number	W.A. Nos. 6514 & 6516-22 of 2013 c/w W.A. Nos. 6249-56 of 2013 (S-PRO)
Judge	THE HONOURABLE CHIEF JUSTICE MR. D.H. WAGHELA & THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA
Appellant	Registrar General and Others
Respondent	Department of Law Justice and Human Rights and Others

Registrar General and Others Vs. Department of Law Justice and Human Rights and Others - Court Judgment

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