Aniruddha Bose, J. - (1.) The subject of controversy in this appeal is a draft gradation prepared by the High Court Administration in respect of judicial officers for the post of District Judge (Entry Level). This gradation list forms part of a circular bearing no. 4139-R (JS) dated 29th November, 2016. The draft gradation list was successfully challenged before the learned First Court by 18 (Eighteen) judicial officers all being in the cadre of District Judge (Entry Level). Out of these eighteen officers, fifteen (being petitioner nos. 1 to 15 in the writ petition) were directly recruited as District Judges (entry level) from amongst the members of the bar in a selection process undertaken in the year 2009. Two of them (writ petitioner nos. 16 and 17) were recruited through the same process in the year 2010. The other writ petitioner (no. 18) entered the service through a process known as "jump promotion". We shall better explain these sources of recruitment along with the third method being promotion on the basis of merit-cum- seniority and on passing a suitability test, later in this judgment. None of the writ petitioners had figured in the said gradation list. In the judgment under appeal, the said draft gradation list has been invalidated.
(2.) Recruitment to the post of District Judge (Entry Level) is effected in West Bengal in terms of the West Bengal Judicial (Condition of Service) Rules, 2004 (the 2004 Rules). These Rules were framed in terms of directions issued by the Hon'ble Supreme Court in the case of All India Judges Association and Ors. Vs. Union of India, 2002 4 SCC 247. This judgment was delivered on 21st March, 2002. The 2004 Rules became operational on 1st October, 2004. In this judgment, it has been observed and directed:- "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-cut-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: (1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum- seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible. 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, there is, 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 v. State of Punjab. 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."
(3.) So far as the present appeal is concerned, the following provisions of the 2004 Rules are relevant:- "24. Cadre- (1) The Higher Judicial Officers in the rank of District Judges of the service as mentioned in Part II shall include the following posts forming the cadre, namely:- (a) District Judge; (b) District Judge in selection grade; (c) District Judge in super time scale. (2) The strength of the cadre of the service shall be such as specified in Schedule IV and the Government in consultation with the High Court may vary such strength of the cadre from time to time. Provided that the number of posts as referred to in clause (b) and clause (c) of sub-rule (1), shall be determined by the Government from time to time depending upon the total strength of the officers in the service. 25. Member of service.- (1) On or after coming into force of these rules, the Higher Judicial Officers in the rank of District Judges recruited to any of the posts as mentioned in sub-rule (1) of rule 24 in accordance with these rules, shall be the member of the service. (2) Notwithstanding anything contained in the foregoing provisions of this rule, the Higher Judicial Officers in the rank of District Judges holding substantively or in the officiating capacity of the posts referred to under sub-rule (1) of rule 24, shall, prior to the commencement of these rules, be deemed to be member of the service. 26. Method of recruitment:- (1) On or after the commencement of these rules, the appointment of the Higher Judicial Officers in the rank of District Judged in the post of District Judge as mentioned in clause (a) of sub-rule (1) of rule 24, shall be made- (a) by direct recruitment from the Bar; (b) by selection through promotion, on the basis of merit-cum-seniority and on passing of a suitability test, from amongst such Judicial Officers other than District Judges as mentioned in clause (b) of sub-rule (1) of rule 6 of these rules; (c) by promotion strictly on the basis of merit through limited competitive examination of such Officers other than District judges as mentioned in clause (b) of sub-rule (1) of rule 6 of these rules having not less than five years of qualifying service: Provided that the number of vacancies to be filled up by direct recruitment as stated in clause (a) shall not be more than 25% of the total permanent strength and such recruitment shall as far as possible be made annually: Provided further that the number of vacancies to be filled up by promotion as stated in clause (c) shall, subject to the provision of the third proviso, not be more than 25% of the total permanent strength and such recruitment shall as far as possible be made annually; Provided also that where suitable persons are not available for appointment to the posts of the Judicial Officers in the rank of District Judges under this Part, the number of vacancies required to be filled up by direct recruitment as stated in clause (a) and by promotion as stated in clause (c), shall not be carried forward and such vacancies may be filled up- (a) in respect of vacancies as required to be filled up by direct recruitment as stated in clause (a) (i) firstly, from amongst the eligible Judicial Officers in the rank of District Judges as selected by the method as stated in clause (c): (ii) secondly, from amongst the eligible Judicial Officers in the rank of District Judges selected by the method as stated in clause (b); (b) in respect of vacancies required to be filled up by promotion on the basis of merit as stated in clause (c), from amongst the eligible Judicial Officers in the rank of District Judges selected by the method as stated in clause (b). (2) The appointment of the Higher Judicial Officers in the rank of District Judges in the post of District Judge in selection grade and District Judge in super time scale, as referred to in clauses (b) and (c) of sub-rule (1) of rule 24, shall be made by the High Court by selection of the Higher Judicial Officers in the rank of District Judges of service from posts as referred to in clause (a) and clause (b), respective, of that rule and such appointment shall be made by selection on the basis of merit- cum-seniority. 27. Qualification for direct recruitment.- (1) No person shall be eligible for appointment by direct recruitment unless- (a) he is a citizen of India; (b) he has attained the age of 35 years and has not attained the age of 45 years (relaxation of 3 years on upper age for the candidates belonging to the Scheduled Castes and Scheduled Tribes) on the first day of January of the year in which the applications for recruitment are invited; (c) he has been practicing for not less than seven years as an advocate; and (d) he has good character and is of sound health and free from any bodily defect which render him unfit for such appointment. (2) The selection by way of direct recruitment to posts as referred to in clause (a) in sub-rule 24, shall be made by the High Court by way of conducting a written examination and viva voce in accordance with such manner and subject to such guidelines as may be specified by the High Court from time to time. 28. Appointing authority.- (1) All appointments to the post as referred to in clause (a) of sub-rule (1) shall be made by the Governor in accordance with recommendations of the High Court. (2) All selections to posts referred to in clause (a), clause (b) and clause (c) of sub-rule (1) of rule 24 shall be made by the High Court. 29. Probation.- (1) A Judicial Officer in the rank of District Judges appointed to the posts as mentioned in clause (a) of sub-rule (1) of rule 24 shall be on probation for a period of two years from the date on which he joins duty. (2) The High Court may, at any time, extend the period of probation but the total period of probation shall not exceed three years. (3) The High Court may, at any time, during or at the end of the period of probation, revert a promote Judicial Officer in the rank of District Judges to his substantive post from which he was promoted and in the case of direct recruitment, the High Court may recommend termination of his service. (4) On successful completion of probation, the probationer shall, if there is permanent post available, be confirmed in the service and if no permanent post is available, a certificate shall be issued by the High Court to the effect and as soon as a permanent post becomes available, he shall be confirmed. (5) A probationer shall be deemed to be on probation until confirmed, reverted or terminated, as the case may be. 30. Posting and transfer.- All postings and transfers in the rank of Higher Judicial Officers in the rank of District Judges shall be made by the High Court. 31. Seniority.- (1) The seniority of the Higher Judicial Officers in the rank of District Judges appointed to the post as referred to in clause (a), (b) and (c) of sub-rule (1) of rule 24, shall, unless reduced in rank on account of punishment, be determined in accordance with- (a) the date of continuous officiation in case of officers promoted to the posts as referred to in clause (a) of sub-rule (1) of rule 24; (b) the date of order of appointment in the case of direct recruit to the posts as referred to in clause (a) of sub-rule (1) of rule 24; (c) the date of order of selection to posts as referred to in clause (b) and (c) respectively of sub-rule (1) of rule 24 or such date, as may be specified by the High Court: Provided that in the case of direct recruit or promotee under clauses (a), (b) or (c), as the case may be, of sub- rule (1) of rule 26 to the post referred to in clause (a) of sub-rule (1) of rule 24, if the date of continuous officiation of the Higher Judicial Officer in the rank of district judges promoted to such post and the date of joining/appointment of the direct recruit in the service be the same, the seniority inter se shall be fixed according to the 40 point roster as determined by the High court from time to time. Provided further that seniority inter se amongst the Higher Judicial Officers in the rank of District Judges promoted by an order of the same date or amongst direct recruits appointed by an order of the same date, shall follow the order in which their names have been recommended by the High Court. Provided also that the relative seniority of the Judicial Officers of the West Bengal Higher Judicial Service appointed prior to coming into force of these rules and governed by the West Bengal Higher Judicial Service (Determination of Seniority) Rules, 1979, shall not be affected.";