M JAMES THOMAS Vs. HONBLE THE CHIEF JUSTICE

JUDGEMENT

(1.) THESE three writ petitions challenge the action of the Chief Justice of this court in cancelling a prior order dated 3-7-1971, on the basis of which promotions were effected in a certain category of the High Court staff from 1-71968. It was ordered that the cancellation was to be given effect to only from the Chief Justice's decision to cancel, viz. 7-9-1974 and not from 1-7-1968 from which date the cancelled order took effect. This is the grievance of the petitioners. The writ petitions will be dealt with seriatim. The facts will be noticed in detail in O. P. 340 of 1976, and supplemented, if necessary, with the additional facts, where present, in the other two writ petitions, O. P. No. 340 of 1976.

(2.) THE petitioner in this writ petition, an Assistant Grade 1 in the High Court services, was a lower division clerk (or an Assistant Grade II as it was redesignated) prior to 1-7-1968, a material date "for purposes of all the three writ petitions. Respondents 5 to 8 are also Assistants Gr. 1, By a G. O. dated 910-1969 the Government refixed the ratio between Upper Division Clerks and lower Division Clerks. By another G O. they also accepted the recommendations of the Pay-revision Committee regarding the revision of pay scales of posts in Government service. This was made applicable to the High court Staff by the Chief Justice on 1-8-1969, which resulted in the proliferation of twenty additional posts of Upper Division Clerks redesignated as Assistants grade I. Promotions to these posts were ordered by Ext. P-1 dated 17-7-1970. As the increased strength was sanctioned by the Government with effect from 1-7-1968, promotions were directed with effect from that date. The petitioner was No. 24 in Ext P-1. Respondents 5 to 8 were not included in Ext. P-1 or promoted at that time as they were not test qualified on 1-7-1968. The petitioner's probation was declared by Ext. P-2 dated 31-6-1978. Against the promotion directed by Ext. P-1 and the denial of promotion to him, the 6th respondent filed a representation dated 3-10-1970 (not exhibited) stating that he should be deemed to have passed the test in April, 1968, when he sat for the examination, although the results were declared only later. This was rejected by the Chief Justice. Ext. X-4 dated 19-8-1971 is a copy of the intimation of rejection from the Registrar. There was a departmental appeal filed on 16-3-1971, which was heard by a Bench of three Judges of this Court under Rule 26 of the High Court Service Rules 1970. Ext. X-7 dated 19-6-1971 is a copy of the Official Memorandum from the Registrar intimating the result of the appeal. While the appeal was pending, on 12-4-1971, the Government issued Ext. P-3 G. O. It referred to the G. O. dated 9-5-1959. Many seniors in service, lacking test-qualifications, were superseded by their juniors and lost their seniority. The Government ordered that the unqualified seniors who were thus passed over for want of test-qualification, would have their ranks and seniority restored, if they passed the test subsequent to 1-7-1969 and before 9-6-1969, On such restoration, the juniors who had meanwhile scored over their unqualified seniors were to be reverted, if necessary. By Ext. P-4 proceedings of the High Court dated 3-7-1971 the Chief Justice made Ext. P-3 g. O. applicable to the Members of the High Court Service, under the second proviso to Rule 35 of the High Court Service Rules 1970. It was in view of these g. Os. that the departmental appeal of the 6th respondent was disposed of on 1-7-1971 and the communication Ext. X-7 issued to him, stating that he was entitled to the benefit of Ext. P-4 proceedings by which Ext. P-3 G. O. was made applicable to the High Court Service. His contention that he should be deemed to have become test qualified on the date on which he wrote the last examination for the test and not on the date of publication of the results was rejected as seen from Ext. X-7.

(3.) BY Ext. P-5 order dated 3-8-1971 implementing Ext. P-4, the promotions ordered by Ext. P-1, and by similar orders in respect of the petitioners and others in the other two writ petitions, were revised, and fresh nominations to the posts of Assistants Gr. I were ordered with effect from the dates shown against their names. Respondents 5, 6 and 7 were promoted with effect from 17-1968, the 8th respondent from 10-7-1968 and the petitioner also, from 10-71968. From Ext. P-5, it is clear that the petitioner lost his rank and seniority. It is also to be noted that Ext P-5 expressly recited that it was issued under Rule 36 of the High Court Service Rules. Ext. X-5 dated 3-11-1970 is a copy of the order promoting respondents 6 to 8 with effect from 22-10-1970. Against Exts. P-4 and P-5, the petitioners in these three writ petitions (except the one in this o. P.) and some others who were affected, sought to file appeals but the registrar returned the appeals as not maintainable. (This is seen from the file ).