UDAY UMESH LALIT.J. - (1.) These Writ Petitions broadly fall in following three categories:- A] Writ Petition (Civil) No. 936 of 2018 filed by four petitioners, prays for appropriate directions that after the promulgation of Rajasthan Judicial Service Rules, 2010 ("2010 Rules", for short), all appointments ought to be in conformity with 2010 Rules and allocation of seniority must be in accordance with the Cyclic Order provided in Schedule VII to 2010 Rules. In terms of 2010 Rules, posts in the cadre of District Judges in the Higher Judicial Service in State of Rajasthan were required to be filled up in accordance with quota of 50% for Promotees, 25% for Direct Recruits and 25% by way of Limited Competitive Examination("LCE", for short) in keeping with law laid down by this Court in All India Judges Association vs. Union of India and Others, (2002) 4 SCC 247. This Writ Petition filed by candidates who were successful in LCE prays that they be allocated seniority in terms of the Cyclic Order in Schedule VII. In this group fall Writ Petition (Civil) No.498 of 2018 and Writ Petition Diary No. 13252 of 2019 which pray that the inter se seniority between candidates who were successful in LCE must be determined on the basis of their merit in LCE and not by their erstwhile seniority. B] Writ Petition (Civil) No. 967 of 2018 has been filed by 37 Direct Recruits challenging the Provisional Seniority List dated 16.08.2017 with regard to the cadre of District Judges in the Higher Judicial Service in the State, on the ground that the appointments made after 2010 Rules had come into effect, ought to be in accordance with the Cyclic Order; and the inter se seniority and placement of Direct Recruits and Promotees, promoted after 2010 Rules had come into effect must be in accordance with 2010 Rules. C] Writ Petition (Civil) No.1471 of 2018 has been filed by Rajasthan Judicial Service Officers Association ("the Association", for short) seeking benefit of ad-hoc/officiating service put in by Promotees who were promoted on ad-hoc basis as Fast Track Court Judges and also prays for re-determination of vacancies of Direct Recruits submitting that the vacancies earmarked for Direct Recruits were in excess of their quota. Writ Petition (C) Nos.464 of 2019, 895 of 2019, 897 of 2019, 899 of 2019 and 1008 of 2018 are filed by Judicial Officers seeking similar benefit in respect of ad-hoc/officiating service as Fast Track Court Judges in the State and pray that such candidates be placed above the Direct Recruits in the cadre of District Judges in the State.
(2.) Since the issues involved in all these matters pertain to appointments to and allocation of seniority in respect of, the cadre of District Judges in the State of Rajasthan and regarding effect of 2010 Rules, the petitions were heard together. Before we deal with the factual aspects, it would be necessary to consider certain decisions of this Court touching upon the establishment of Fast Track Courts as well as the concept of promotion through LCE and the respective quotas for candidates coming from three different streams in the Higher Judicial Service in various States. 2.1. In All India Judges' Association vs. Union of India and others, (1992) 1 SCC 119 the issues with regard to the working conditions of the members of the subordinate judiciary throughout the country came up for consideration. Number of directions were issued by this Court. However, review petitions were filed by Union of India seeking certain modifications/clarifications. These review petitions were disposed of by this Court while issuing further directions in All India Judges' Association and others vs. Union of India and others, (1993) 4 SCC 288. In pursuance of said directions, First National Judicial Pay Commission under the Chairmanship of Mr. Justice K.J. Shetty (former Judge of this Court) was constituted on 21.03.1996. The terms of reference were thereafter modified on 16.12.1997 and the Commission was also empowered to consider and grant interim relief. By Report dated 31.01.1998 some interim relief was granted by Justice Shetty Commission. After due deliberations Justice Shetty Commission submitted a Report on 11.11.1999 and all the States/ Union Territories were directed by this Court (2002) 4 SCC 274 to send their responses to Union of India so that all the issues could be deliberated upon and dealt with. (2002) 4 SCC 274 2.2 After considering all the submissions, this Court in its decision dated 21.03.2002 in All India Judges' Association and others v. Union of India and others(supra) passed some directions. We are presently concerned with the observations made in paragraphs 24 to 29 in which reference was made to the 85th Report of the Standing Committee of Parliament recommending that there should be increase in the number of Judges. Said Committee had noted the Judges to Population ratio and in tune with 120th Report of the Law Commission, recommendations were made to increase the Judges' strength to 50 Judges per 10 lakh people in the first instance. Recommendations made by Justice Shetty Commission were also considered and recruitment to the Higher Judicial Service in the cadre of District Judges was also subject-matter of directions. Paragraphs 27 to 29 are quoted for ready reference: "27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should benot less than five years. The High Courts will have to frame a rule in this regard. (emphasis supplied) 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: (1) (a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible. 29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum-seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For example, thereis, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal vs. State of Punjab, (1995) 2 SCC 745. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003." 2.3. Soon thereafter, in its decision rendered on 06.05.2002 in Brij Mohan Lal vs. Union of India and others, (2002) 5 SCC 1 this Court had an occasion to consider the issue relating to Fast Track Courts. The 11th Finance Commission had allocated Rs.502.90 crores for the purpose of setting up 1734 courts in various States to deal with long pending cases, particularly sessions cases. On the basis of said recommendations a note was prepared by the Department of Justice, Government of India to set up Fast Track Courts. Challenges were raised in some High Courts to the constitution of such Fast Track Courts and the matters were dealt by this Court in Transfer Petitions. After considering rival submissions, directions were issued in para 10 and for the present purposes direction Nos.1 to 8, 14 and 18 are relevant:- "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 are 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. 9....... 10...... 11..... 12..... 13..... 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 will 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..... 16.... 17.... 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 other words, steps should be taken to set up all the Fast Track Courts within the stipulated time." 2.4. Thereafter in Malik Mazhar Sultan and another vs. U.P. Public Service Commission and others, (2006) 9 SCC 507 the issues regarding timely declaration of vacancies in judicial service and timely appointments were considered by this Court as under: "23. It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that the system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All the State Governments, the Union Territories and/or the High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All the State Governments, the Union Territories and the High Courts are directed to file within three months details of the time schedule so fixed and date from which the time schedule so fixed would be operational." 2.5. After the disposal of the appeals in Malik Mazhar Sultan and others v. U.P. Public Service Commission(supra) suggestions were made by some of the State Governments and written submissions were also filed by the learned Amicus Curiae. In its order dated 04.01.2017, (2008) 17 SCC 703. this Court issued further directions and prescribed timelines. From paragraph 7 onwards directions were issued for filling up vacancies in various cadres including the cadre of District Judges. 2.6. By order dated 20.04.2010 passed in All India Judges' Association vs. Union of India and others, (2010) 15 SCC 170 directions issued earlier with regard to 25% quota for Limited Departmental Competitive Examination were modified by this court as under: "6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which was sought to be achieved by this process could not be achieved, thus it calls for modification. 7. Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order. 8. Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable. 9. All the High Courts are hereby directed to take steps to see that existing Service Rules be amended positively with effect from 1-1-2011. If the Rules are not suitably amended, this order shall prevail and further recruitment from 1-1-2011 shall be continued accordingly as directed by us. The time schedule prescribed in the order dated 4-1-2007 (in Malik Mazhar Sultan case (2008) 17 SCC 703) shall be strictly adhered to for the purpose of selection. All the vacancies are to be filled up in that particular year and there shall not be any carry forward of the unfilled posts."
(3.) In the State of Rajasthan, the matters relating to Constitution of Courts and Jurisdiction of Courts were dealt with by the Rajasthan Civil Courts Ordinance, 1950 which consolidated and amended the law relating to Civil Courts in the State. Clause 6 of said Ordinance dealt with Classes of Courts; Clause 8 dealt with Power to fix number of District Judges while Clause 10 dealt with the appointment of Additional Judges. In exercise of powers conferred by Article 233 and the Proviso to Article 309 of the Constitution of India, the Governor of Rajasthan made the Rajasthan Higher Judicial Service Rules, 1969 ("1969 Rules", for short) in consultation with the High Court[1] in respect of the Rajasthan Higher Judicial Service for making appointments, postings and promotions to the cadre of District Judges, and to provide for other ancillary matters. The expressions 'Direct Recruitment', 'District Judge', 'Member of the Service' and 'Service' were defined in Rule 3 as under:- "(c) "Direct recruitment" means recruitment in the matter prescribed by clause (ii) of rule 8; (d)"District Judge" includes Additional District Judge, Sessions Judge and Additional Sessions Judge; (f) "Member of the Service" means a person appointed in a substantive capacity to a post in the service; (h) "Service" means the Rajasthan Higher Judicial Service" [1] The High Court of Judicature for Rajasthan 3.1. Part-II and Part-III of 1969 Rules dealt with topics 'Cadre' and 'Principles and Procedure of Recruitment and Promotion'. Rules 6 to 9 under said Parts-II and III were as under:- "6. Strength of the Service.- (1) The strength of the Service shall, until orders varying the same have been passed under sub-rule (2), be as specified in Schedule I. (2) The strength of the service may be varied by the Governor, from time to time, in consultation with the Court. (3) Notwithstanding anything contained in sub-rule (1) and (2), the Governor may, in consultation with the Court, hold any appointment to the service in abeyance for such time as he deems fit, without thereby entitling any person to compensation. 7. Principles and procedure to be followed.- For the purpose of recruitment to the service, the following principles and procedure of recruitment and promotion laid down by the Court shall be followed. 8. Sources of Recruitment.- Recruitment to the service shall be made - (i) by promotion from amongst the members of the Rajasthan Judicial Service; or (ii) by direct recruitment from the advocates who have practiced in the Court or Courts subordinate thereto for a period of not less than seven years. 9. Appointment to the service.- (1) Subject to the provisions of these rules, appointment of persons to the service shall be made by the Governor on the recommendation of the Court made from time to time; provided that the number of persons appointed to theservice by direct recruitment shall at no time exceed one third of the total strength of the service. (2) Subject to the provisions of sub-rule (1), after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. If a suitable person is not available for appointment by direct recruitment, the post may be filled by promotion from amongst the members of the Rajasthan Judicial Service." 3.2. Rules 22 and 23 in Part-III dealt with 'Temporary or officiating appointment' and 'Appointments to posts in the selection grade' as under:- "22. Temporary or officiating appointment.- On the occurrence of temporary or permanent vacancies the Court shall recommend the Governor the names of the candidates from amongst the persons who are eligible for appointment to the service by promotion under clause (i) of rule 8, for temporary or officiating appointment. 23. Appointments to posts in the selection Grade.-Appointments to the posts in the selection grade of the service shall be made by the Governor in consultation with the Court on the basis of merit." 3.3. Part IV of 1969 Rules dealt with 'Seniority', 'Probation' and 'Confirmation'. Rule 24 dealt with issue of Seniority was as under:- "24. Seniority.- Subject to the other provisions of these rules, seniority in the service shall be determined by the date of the order of substantive appointment in a permanent vacancy including appointment on probation under rule 25: Provided that a promoted officer who may have been allowed to officiate continuously against a permanent vacancy in the cadre from a date, prior to the date of appointment of a direct recruit, shall, if he is subsequently selected and substantively appointed in the service, take his seniority in the cadre over such direct recruit: Provided further that the seniority of candidates appointed to the service shall in the case of the appointment of more persons than one to the service by an order of the same date, follow the order in which their names have been recommended by the Court." Schedule-I to 1969 Rules dealt with 'Strength of Service', which was stated to be 89 in the post of District and Sessions Judge and Additional District Sessions Judge, which over a period of time got raised to 150. ;