- (1.) The petitioner, Shri S.C. Dureja, was appointed to the Haryana Civil Service (Judicial Branch) on 5th June, 1971 and was posted as Sub Judge IIIrd Class and in due course was conferred the powers of Sub Judge IInd Class, Sub Judge 1st Class, Chief Judicial Magistrate and was appointed as Senior Sub Judge on 20th June, 1985. Vide orders of the State Government dated 25th April, 1988 and published in the Gazette on 3rd May, 1988, Annexure P-l to the petition, he was appointed by promotion as officiating Addl. District and Sessions Judge in the State of Haryana by virtue of the powers conferred on the State Government under Rule 8 of the Punjab Superior Judicial Service Rules, 1963 as applicable to the State of Haryana (hereinafter referred to as 'the Rules') with the rider that "the promotion was subject to the condition that in the annual confidential reports for the years 1986-87 and 1987-88 in respect of the promotees their integrity is not doubted and these are not to be less than B plus (Good)". It appears that subsequent to the order of promotion Annexure PI two annual Confidential Reports i.e. for the years 1986-87 and 1987-88 were subsequently recorded in which the grading given to the petitioner was B (satisfactory) the former report being apparently recorded on the basis of an Inspection Note Annexure R-2/II which had been written by justice I.S. Tiwana, on 28 the August, 1987. The inspection remarks was a conveyed to the petitioner on 17th September 1987 vide Annexure P-2 and the assessment made thereon i.e. B (satisfactory) vide Annexure P-3 dated 1.11.1988. Aggrieved by the assessment and the gradation given, the petitioner filed a representation before the High Court Annexure P-4 dated 9.12.1988 but the same was rejected on 9.11.1989. The petitioner was also assessed as B (satisfactory) for the year 1987-88 and these remarks top were conveyed to him through Annexure P-5 dated 10.4.1990. Against these remarks be filed a representation annexure P-6 dated 223.1990 and the same was rejected vide Annexure P7 dated 17.8.1990. As the petitioner had failed to get B plus in the annual confidential reports for the years 1986-87 and 1987-88 as per the rider put in Annexure P1 the order of promotion, he was reverted and posted as Sub Judge-cum- Judicial Magistrate 1st Class under order Annexure P-ll, dated 20.11.1990. He thereafter filed a representation Annexure P-ll/A dated 26.11.1990 against the order of reversion before the High Court, but to no effect. This petition has been filed praying that Annexure P-3 dated 1.11.1988 conveying the remarks for the year 1986-87, Annexure P-5 dated 10.4.1990 conveying those for the year 1987-88 and the order of reversion Annexure P-ll dated 20th November, 1990 be quashed primarily on the ground that rule 8 required that promotion to the service was to be made exclusively on the basis of seniority and as such the instructions annexure R-2/1 which had provided for, in addition, an element of selection as well could not be sustained. Elaborating this argument Mr. Rajiv Atma Ram learned counsel for the petitioner, urged that if a further requirement that an officer was required to have B plus or above assessment so as to be eligible for promotion was to be enforced the Court found that there was a gap in the rules, the same could be filled in by executive instructions which could be issued by the Government alone being the rule making authority and that the High Court was, therefore,not competent to issue the instructions Annexure R-2/a. Reliance for this proposition has been placed by Mr. Rajiv Atma Ram on State of Haryana and others vs.Shamsher Singh Bahadur and others, 1972 SLR 441 and Sardul Singh Head Constable vs. Inspector General of Police, Punjab and others, 1970 SLR 505
(2.) The stand of Mr. J.S. Khehar, learned counsel for respondents, however, is that admittedly it was the High Court which was the selecting body and only the formality of appointment lay with the State Government and, as such, it was only proper that the High Court lay down its own guidelines so as to ensure that the criteria for promotion was uniformly applied so that the officers who could seek promotion were of a certain standard. In the alternative, it has been pleaded by Mr. Khehar that even assuming that the instructions Annexure R-2/1 could be issued by the Government alone yet it could be presumed that the government had themselves accepted them as they had been acted upon right from the date of their issuance in the year 1969. I have heard the learned counsel for the parties in this aspect. Rules 8,9 and 14 of the Rules are reproduced below;- "8. Recruitment to service.-- (l) Recruitment to the service shall be made- - (i) by promotion from the Punjab Civil Service (Judicial Branch); or (ii) by direct recruitment (2) Of the total number of cadre posts, two third shall be manned by promoted officers and one-third by direct recruits; Provided that nothing in this sub-rule shall prevent the officiating appointment of a member of the Provincial Civil Service (Judicial Branch) on any post which is to be filled up by direct recruitment, till a direct recruit is appointed. 9. Appointment of direct recruits.. (l) No person shall be eligible for direct recruitment unless he- (i) is not less than 35 years and not more than 45 years of age on the first day of January next following the year in which his appointment is made; (ii) has been for not less than 7 years an advocate or a pleader and is recommended by the High Court for such appointment. (2) No person who is recommended by the High Court for appointment under sub-rule (1) shall be appointed unless he is found physically fit by a Medical Board set up by the Governor and is also found suitable for appointment in all other respects. 14. Selection grades.- (l) The members of the Service shall be eligible for promotion, permanently or provisionally to the following Selection Grade posts, carrying scales of pay specified against them:- Two selection grade posts in die time scale of Rs. 1800-100-2000; and two selection grade posts at a fixed.pay of Rs. 2250 (2) Promotion to the Selection grade posts shall be made on merit and suitability in all respects with due regard to seniority and no member of the service shall be entitled as of right to such promotion." It will be seen from a reading of the aforesaid rules that while qualifications for direct appointment to the service have been laid down yet no specific criterion has been provided for promotion from the Subordinate cadre. It is in this situation that the High Court has issued instruction Annexure R 2/1 which provide as under- "That it has been decided by the Hon'ble the Chief Justice and Judges that any officer of the Superior Judicial Service and the PCS/HCS (Judl. Branch) who is placed in category B (Average/Satisfactory) or below in the assessment of annual confidential remarks shall not be considered till the next annual confidential assessment for promotion to the Selection Grade of the appropriate service. It has further been decided by their Lordship that the PCS/HCS (Judl. BranchO officers in the category B (Average/Satisfactory) or below in the assessment of annual confidential remarks shall also not be considered either for promotion as District/Additional District and Sessions Judge or for appointment as Senior Subordinate Judge-cum-Chief Judicial Magistrate till the next annual assessment of confidential remarks. I am, therefore, to request that all the judicial officers working in your sessions Division may kindly be informed of the above decision of the Hon'ble Judges." The question posed is as to whether the aforesaid instructions are valid and secondly, whether they are directory in nature and can be waived of in appropriate cases. It may be seen from a reading of the rules, aforequoted, that the procedure for promotion to the service has not been laid down and taking a due from rule 14 ibid Mr.Rajh Atma Ram has argued that as selection grade was to be given to a member of the service only after determining the merit and suitability with due regard to seniority and no member of the service would be entitled as a right to such benefit, it was to be presumed in the absence of any such condition in rule 8(i) that promotion was was to be made exclusively on the basis of seniority and, as such, the instructions annexure R 2/1 providing for B plus or above assessment for promotion made an addition to the rules and could not be sustained. He has referred to Shamsher Singh Bahadur's case for this proposition. In this case the rules provided a particular criterion for promotion to the rank of Assistant from the post of Clerk. The State Government however, issued instructions that in addition to the other qualifications required for promotion, the person concerned would also be required to clear the Assistant Grade Examination. The Hon'ble Supreme Court held that the prescription of a test for promotion was not in the nature of the filling-up of a gap in the rules but was in fact an addition thereto and the government was not competent to after the rules framed under Article 309 of the Constitution of India by means of an administrative instruction. The ratio of the judgment aforesaid however, does not apply to the facts of the present case. It is to be noted that in that case the selecting and appointing authority was the government itself, but in the present case the selection is made by the High court and the formal appointment by the State Government. It is in this situation that rule 8 provides only a source of recruitment and in that eventuality the selecting agency i.e. the High Court is at liberty to prescribe a guideline for promotion as the rules are admittedly silent on this score. Mr. Khehar appearing for the High Court has cited Sant Ram Sharma vs. State of Rajasthan and another, 1967 SLR 906 and has referred me to paragraph 6 of the report in which the Court observed that the absence of a specific provision in die rules laying down the principle of promotion to a selection grade post, did not mean that till such rules was framed in this behalf, the government was not entitled to issue instructions regarding the principles to be followed in promotion. Moreover, it is also to be borne in mind that in the interest of better administration it is always open to a selecting body to prescribe a qualification in excess of the one laid down in the rules. In State of Haryana vs. Subash Chander Marwaha and others, 1973 2 SLR 137 which pertained to the Punjab civil Service examination the question posed was whether the instruction issued by the State Government prescribing that a candidate must obtain at least 55 per cent marks in the qualifying examination before he could be appointed to the service, although the rules provided a minimum of 45 per cent marks, and it was observed as under- "Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on, the Government fixing a higher score of marks for the purpose of selection. In a case where appointment are made by selection from a number of eligible candidates it is open to the government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility".
(3.) There is another aspect which comes to mind. Admittedly, the instructions have been acted upon without demur by the government since 1969, and all promotions have been made on that basis. I am, therefore, of the view that an element of acquiescence comes in and even accepting that the government alone was competent to issue these instructions, yet by the passage of time, they can well be deemed to have accepted as valid by the government.;