SRIKANT ROY vs. STATE OF JHARKHAND .

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 10874/2016 (arising out of S.L.P.(Civil) No.9883/2009) Srikant Roy & Ors. …..Appellants Vs. State of Jharkhand & Ors. …..Respondents WITH W.P.(C) No.300/2013, W.P.(C)No.27/2014 & W.P.(C)No.325/2014 J U D G M E N T A.M.KHANWILKAR, J. JUDGMENT Leave granted. 2. This common judgment will dispose all the four petitions. 3. The leading Civil Appeal arising out of Special Leave Petition (Civil) No.9883/2009, is directed against the judgment of the Division Bench of the High Court of Jharkhand at Ranchi in W.P.(S) Page 1 2 th No.4159/2008 dated 29 August 2008. By the said Writ Petition, the writ petitioners (respondents 4 to 11 herein) had challenged the selection process for filling up of 34 posts of Additional District

August 2008; and also 18 posts of Additional District Judges from the promotee officers on the basis of merit-cum-seniority scheduled rd on 23 August 2008. The writ petitioners (respondents 4 to 11 herein) were appointed purely against temporary and ex-cadre posts on ad-hoc basis, as Presiding Officer, Fast Track Courts in the rank of Additional District & Sessions Judge in the year 2002. According to the said writ petitioners, the impugned selection process was improper and not in conformity with the mandate of the amended Rules requiring ratio of 50:25:25 - by promotion from amongst the JUDGMENT Sub-Judges on the basis of merit-cum-seniority and passing of a suitability test; by promotion (by way of selection) strictly on the basis of merit through a Limited Competitive Examination of Sub-Judges having not less than 5 years service; and by direct recruitment from the Bar on the basis of written test and viva-voce conducted by the High Court, respectively. The said writ petitioners asserted that if the impugned selection process was allowed to be Page 2 3 taken forward, it would be in breach of the relevant Recruitment Rules and also infringe the mandate of adhering to the roster as per Rule 8 of the amended Rules. The main contention of the said writ

ratio of posts to fill up the vacancies by giving retrospective effect to th the amended Rules, which has come into force w.e.f. 20 August 2004. The challenge before the High Court in the writ petition, as has been noted in the opening para 1 of the impugned judgment was limited to the quota assigned for the Limited Competitive Examination from amongst the (Subordinate Judge/Civil Judge st (Senior Division) scheduled to be held on 31 August 2008. The High Court in paragraph 4 of the impugned judgment has noted that the challenge is only to the extent of 42 posts of Additional JUDGMENT District Judges which had to be filled up by following the roster system in the ratio of 25:25. Those posts were required to be bifurcated equally between the promotees from the rank of Subordinate Judges by conducting Limited Competitive Examination and direct recruits from the Bar in the ratio of 25:25. In paragraph 10 onwards of the impugned judgment, the High Court upheld the plea of the said writ petitioners and issued Page 3 4 directions to the High Court to fill up the vacancies, as directed. The relevant portion of the impugned judgment reads thus:

JUDGMENT 11. Hence, this court is left which no option, than to set aside the examination process, which is scheduled to be held on 31.08.2008 and further direct the respondents to bifurcate the left over posts into the ratio of half and half, i.e. 25% and 25% equally and thereafter issued a fresh advertisement for filling up 21 posts by the Subordinate Judges on the basis of Limited Competitive Examination and Page 4 5 the rest 21 posts will have to be filled up by direct recruits for which exercise will have to be undertaken in future by the respondents.

4. The appellants, who were working as Subordinate Judges at the relevant time and were otherwise eligible to appear in the Limited Competitive Examination for filling up the notified vacancies by way of promotion, have approached this Court to question the aforesaid decision. JUDGMENT 5. The cognate Writ Petitions involve overlapping issues. The petitioners in these Writ Petitions, however, participated in the selection process of 2010 commenced on the basis of an advertisement No. 1/2010 for the post of Additional District Judge from the Bar. These petitioners did not succeed in getting appointed, as the first 8 candidates in the merit list exhausted the 8 Page 5 6 vacancies notified for the relevant period. The said writ petitioners were, however, placed at serial No.9 onwards in the merit list. According to these petitioners, some more posts were available for

dependent on the outcome of Civil Appeal arising out of Special Leave Petition (Civil) No.9883/2009 wherein the selection process of 2008 is the subject matter. According to these writ petitioners, the High Court had failed to notify the correct number of vacancies for 2010. The correct number of vacancies in 2010 to be filled up by direct recruitment ought to be 13. Indeed, the writ petitioners have made their own assumption to arrive at this number of vacancies, as is spelt out from the averments in the Writ Petition. JUDGMENT 6. The Registrar General of the High Court has filed reply affidavits. The stand of the High Court (Administration Side) was that no vacancy for direct recruit from the Bar existed as on 20.04.2008. It is stated that in the year 2008, the actual vacancy as th st on 30 April, 2008 and anticipated vacancy till 31 March 2009 were notified on the official Website of the High Court. The said Notification reads thus: Page 6 7 “Actual and anticipated Vacancy in the cadre of Jharkhand Superior Judicial Service

of 42 vacancies by promotion of Subordinate Judges on the basis of JUDGMENT Limited Competitive Examination and the rest of 21 vacancies by direct recruitment. The matter was, therefore, referred to the selection committee. In the meantime, however, the Judicial Officers challenged the decision of the High Court by way of present S.L.P. (Civil) No. 9883/2009 in which interim stay of operation of th the directions issued by the High Court was granted on 9 April, Page 7 8 th 2009. The said interim order was later modified on 24 September 2010, in the following terms: “List alongwith the batch of T.C.22 of 2001.

Pursuant to the modification of the interim order, the High Court completed the selection process of filling up of the notified vacancies of 2008 by way of promotion. On a further application th filed, this Court on 5 August 2011 permitted the High Court to make appointments concerning the said selection process of 2008. The said order reads thus: JUDGMENT th “In modification of our order dated 24 September 2010, the High Court is free to make appointments subject to the result of the special leave petition. The Interlocutory Application is, accordingly, allowed.” Pursuant to the liberty given by this Court, the High Court submitted recommendations to the State Government for promotion of 31 Officers of Sub-Judge Cadre as per the Page 8 9 advertisement issued in 2008 to fill up the vacancies in terms of Rule 4(b) and 4(c). The High Court submitted another recommendation to the State Government for promotion of 17 more Officers. 7. It is then asserted by the High Court that when the selection process of 2008 was commenced and completed, there was no vacancy for direct recruit quota. The affidavit also refers to the fact that 8 vacancies of direct quota were notified in the year 2010 vide th High Court memorandum dated 4 November 2010 for the relevant period, which reads thus: “Actual vacancies in the Jharkhand Superior Judicial Service accrued during the period from 18.07.2008 till date

th Memo 7671/Apptt. Dated Ranchi the 4 November, 2010 Copy forwarded to Scientist (D), N.I.C., Jharkhand High Court Ranchi. He is requested to put the aforesaid vacancies in the official website of the Jharkhand High Court, Ranchi.” Page 9 10 The High Court with a view to fill up those vacancies, commenced the process vide advertisement No.01/2010. Pursuant to the said advertisement, the writ petitioners in the connected writ

2011 along with other candidates. Only 32 candidates could qualify the main examination, who were called for viva-voce held on rd 3 February 2012. Out of those candidates, only 15 candidates including the writ petitioners in the connected writ petitions successfully qualified all the three rounds. However, as per the merit wise rank of successful candidates, the names of the said writ petitioners were placed at lower position. Thus, the first 8 meritorious candidates were recommended for appointment against the vacant posts to be filled by the process of direct recruitment. It JUDGMENT is also mentioned in the affidavit that the appointment of the candidates made against the selection process for 2008, the candidates were made aware that their appointment was subject to the final decision of this Court in SLP (Civil) No. 9883/2009. 8. It is asserted by the High Court that the writ petitioners in connected writ petitions, who participated in the subsequent Page 10 11 selection process cannot get any advantage qua the selection process of 2008. For, they participated in the selection process commenced on the basis of advertisement No.1 of 2010. Similarly,

JUDGMENT Also, all the earlier advertised vacancies are hereby recalled and restructured in the above manner. Note:- The recommendation for filling up of 08* vacancies of Direct Recruit Quota has already been made to the State Government for issuance of necessary Notification vide Letter No. 1959/Apptt. Dated 10.02.2012 and thus the vacancy under this Quota till 31.12.2012 remains 05(five). nd Dated: 22 March, 2012 By Order, Registrar General” Page 11 12 st The vacancy position as on 31 December 2012 was revised th and duly notified vide Notification dated 19 September 2012, which reads thus:

Note: In the event of the issuance of Notification by the State Govt. regarding Promotion of 28 Officers of the rank of Civil Judge (Sr.Division) in the Jharkhand Superior Judicial Service in view of recommendation of the Court as made vide letter no.9593/Apptt. th Dated 17 July 2012, the actual vacancy as on 31.12.2012 under this quota [i.e. under Rule 4(b)] shall be reduced to 40. JUDGMENT By Order Sd/- Registrar General th Dated: 19 September, 2012” st 9. It is stated that the vacancy position as on 31 December 2012 was notified on the basis of the sanctioned strength of 174 at Page 12 13 the relevant time. That sanctioned strength was later on increased to 191 on creation of 17 permanent posts of Superior Officers @ 10% of existing strength. In paragraph 20 of the reply affidavit, the

Civil Appeal Nos.6647-6649/2012 (filed by officers posted as JUDGMENT th Additional District Judges, Fast Track Courts), vide letter dated 20 February 2013 the State Government was requested to create 13 permanent posts to accommodate the 22 appellants in the said Civil Appeals on condition that in the event of non qualifying of any of the appellants in the selection process to be conducted in terms of the direction given by this Court in the said decision, the equal number of such created posts of District Judge will be abolished. Page 13 14 After due consideration, the vacancy position of the Jharkhand nd Superior Judicial Service was notified vide Notification dated 22 February 2013 which reads thus:

Nos.6647,6648 & 6649 of 2012. 2.^03 Vacancies for Direct Recruitment from Bar. JUDGMENT 3. Taking into account the 13 posts likely to be created from the end of the State Government. By Order Sd/-A.K.Choudhnary Registrar General I/C nd Dated: 22 February, 2013 nd Memo No.1644/Apptt.Dated Ranchi, the 22 February, 2013 Copy forwarded to the I/c NIC Cell, High Court of Jharkhand, Ranchi for uploading the above notification in the official website of the Jharkhand High Court, Ranchi immediately. Sd/-22.02.2013 Registrar General I/c” Page 14 15 11. It is also pointed out that the Standing Committee of the High Court vide th th minutes dated 18 February 2014 assessed the vacancy position as on 20 February 2014 as under:

In other affidavits filed on behalf of the High Court by the Registrar JUDGMENT General, the above factual position has been reiterated. 12. We have heard the learned counsel for the parties at length. The leading appeal concerns the selection process commenced in 2008. The High Court has set aside the said selection process on the finding that 50% of the posts have already been filled up by the promotees on the basis of merit-cum-seniority and as a result of Page 15 16 which the left over 42 vacancies should be filled by promotion from the subordinate Judge/Civil Judge (Senior Division) on the basis of Limited Competitive Examination and by the direct recruits in equal

that the amended Rules providing for the ratio to be maintained th between the promotees and direct recruits became effective on 20 August 2004 and had prospective application. Thus, the factual th position as obtained on 20 August 2004 would become relevant. 13. Rules 4 and 5 read with Rule 8, as it existed prior to the amendment of 20.08.2004 read thus: “ Rule -4 : - Appointment to the service- Appointment to the service, which shall in the first instance ordinarily be to the post of additional district judge, shall be made by the governor, in consultation with High Court:- (a) By direct recruitment of persons as recommended by the High Court for such appointment under clause (2) of Article 233 of the Constitution of India; and (b) By promotion on merit-cum-seniority basis from amongst the officers belonging to the Jharkhand service provided that where the merit of the officers is equal in all respects, seniority shall prevail and be given weightage. JUDGMENT Rule-5 : Of the total posts in the cadre of the service 67% shall be filled in by promotion and 33% by direct recruitment: Page 16 17 Provided that the State Government may, in consultation with the High Court, from time to time deviate from the aforesaid percentage in either direction.

14. Resultantly, appointments made prior to 2004 were governed JUDGMENT by the Rules as applicable at the relevant time. As per that dispensation, the direct recruits quota was 33% of the total posts. That was obviously in excess of 25% now specified in the amended Rules (as amended on 20.08.2004 pursuant to the decision of this Court). Notably, the State of Jharkhand had filed an affidavit in C.A.No.1867/2006 before this Court in which it has been stated Page 17 18 that no vacancy against 25% quota for direct recruitment existed in th the State of Jharkhand at that time. This affidavit was filed on 26 August 2008 after the amended Rules were notified and came into

posts of Additional District Judge through Limited Competitive Examination from amongst the members of Jharkhand Subordinate Judges having more than 5 years of experience and 18 posts from merit-cum-seniority basis amongst the Civil Judge (Senior Division), was issued in 2008 on the basis that no vacancy against the posts of direct recruit quota was available. That stand is reiterated even now in the affidavit filed by the High Court. The High Court in the impugned judgment has committed manifest error in not considering these relevant facts about the vacant posts for direct JUDGMENT recruits as on 20.08.2004 - before recording a finding against the High Court and the State Government and to reject their stand that no vacancy against the quota of direct recruit was available as on 30.04.2008. 15. Indeed, the High Court in the impugned judgment has adverted to the decision of this Court in All India Judges’ Page 18 19 1 Association & Ors. Vs Union of India & Ors. which has enunciated the principle of roster and the ratio to be followed for the post of Additional District Judge. Indisputably, pursuant to the

th effect from 20 August 2004. In paragraph 27 to 29 of the said decision, this Court has considered the question regarding the method of recruitment to the post in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. The same reads thus: “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 JUDGMENT 1 (2002) 4 SCC 247 Page 19 20

JUDGMENT (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 Page 20 21

JUDGMENT (emphasis supplied) 16. Once it is found that no post against the quota of direct th recruitment was available as on 30 April, 2008, no fault can be found with the selection process commenced by the High Court for Page 21 22 appointment in the cadre of Jharkhand Superior Judicial Service by promotion on the basis of merit through Limited Competitive Examination. The High Court in the impugned judgment has

25:25, which inevitably will exceed the quota of posts for direct recruits as on 30.04.2008. That would disturb the roster point and is impermissible in terms of Rule 8 as amended. The notification dated 20.08.2004 amending Rule 5 and 8 reads thus: “Government of Jharkhand Department of Personnel, Administrative Reforms and Rajbhasha NOTIFICATION Ranchi Date 20.08.2004 No. 6/Estab Jud 610/2001 Perso. 4544/after repealing existing Rule 5 7 8 (d) of Jharkhand Superior Judicial Services (recruitment, Appointment and conditions of Services) Rules 2001 of Departmental Notification No. 1246 dated 08.05.2001, Rule 5 and 8(d) are substituted as follows:- JUDGMENT Rule 5: Of the total post in the cadre of service. (i) 50% shall be filled by promotion from amongst the Sub Judges on the basis of merit-cum-seniority and passing a suitability test as may from time to time be prescribed by the High Court. (ii) 25% shall be filled in by promotion (by way of selection) strictly on the basis of merit through a limited competitive examination of Sub Judges having not less than 5 years service and also having due regard to his service record in the past. Page 22 23 (iii) 25% shall be filled in by direct recruitment from the Bar on the basis of test and viva-voce conducted by the High Court.

(i) For promote officers from the service- 1,2,5,6,9,10,13,14,17,18,21,22,25,26,29,30,33,34,37,38,41,4 2,45,46,49,50,53,54,57,58,61,62,65,66,69,70,73,74,77,78,81 ,82,85,86,89,90,93,94,97,98. (ii) For promote officers form the limited competitive examination of Sub Judge, 3,7,11,15,19,23,27,31,35,39,43,47,51,55,63,67,71,75,79,83, 87,91,95,99. (iii) For direct recruits- 4,8,12,16,20,24,28,32,36,40,44,48,52,56,60,64,68,72,76,80, 88,92,96,100. By order of Governor (Shri Nitya Shankar Mukhopaddya) Deputy Secretary of State No. 6/Estab Jud 610/2001 Perso. 4544/after Ranchi Date 20.08.2004 JUDGMENT Copy to- Superintendent, Government press, Doranda Ranchi, with request that be published in next edition of Jharkhand official Gazette. Deputy Secretary of Govt,” th 17. The position as it stood as on 30 April 2008, is stated in th paragraph 4 of the affidavit filed by the High Court dated 30 March, 2016, which reads thus: Page 23 24 “That it is stated that as on 30.04.2008, the sanctioned strength of the Jharkhand Superior Judicial Service was 145 and working strength was 93, which is shown herein below:-

promotion through Limited Competitive Examination, had no locus JUDGMENT to challenge the selection process of 2008. 19. The High Court has overlooked the distinction between “post” and “vacancy”. If the requisite posts were already exhausted by the direct recruits against the earmarked quota for direct recruitment, merely because some vacancies occur, it would not be open to the aspiring candidates against the direct recruit quota to challenge the Page 24 25 selection process commenced for the in service judicial officers by promotion through Limited Competitive Examination. The cadre strength is always measured by the number of posts comprising the

claimed in respect of a post in the given cadre. The percentage of quota has to be worked out in relation to number of posts which form the cadre and has no relevance to the vacancy that would occur. This aspect has been glossed over by the High Court in the impugned judgment. Suffice it to observe that as no post for direct th recruits existed as on 30 April, 2008, the challenge to the selection process to fill up the vacancy by promotion through Limited Competitive Examination, at the instance of aspiring candidates by direct recruitment cannot be countenanced. The Writ Petition filed JUDGMENT by such aspiring candidates (WP(S) No. 4159/2008), therefore, ought to have been dismissed by the High Court. 20. Having said this, it must follow that the selection process of 2008 which has been completed pursuant to the liberty given by this Court by way of interim order is proper and has become final. On this finding, the challenge in the companion Writ Petitions to Page 25 26 the selection process commenced for the year 2010 does not merit interference. In that, the vacancy position as on the date of the th notification (i.e. 4 November, 2010), for commencing selection

direct recruitment from the Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list candidates. The petitioners were placed at serial No.9 onwards. The first 8 candidates having been appointed, the selection process for 2010 would get exhausted and considered as complete. Merely because the names of the writ petitioners appear in the selection list, they do not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in conformity with the extant Regulations. The selection process in which the writ petitioners JUDGMENT participated, was commenced on the basis of the stated notification for 8 notified vacancies and appointments have been made of the meritorious candidates. That selection process must be treated as having come to an end. The fact that the notifications for subsequent selection process (commenced after 2010), issued by the High Court notifying different or higher number of posts for direct recruitment, can be of no avail to the selection process of Page 26 27 2010. That changed position is ascribable to subsequent period on the basis of availability of posts for direct recruits. Not for selection process of 2010. Similarly, the fact that one candidate amongst the

resigned, no right can accrue to the Writ Petitioner(s) on completion of the selection process of 2010. Reliance placed on Rule 21 which requires preparation of select list and to notify the same or to remain valid for one year from the date of being notified, is also inapposite. That is not a Rule mandating preparation of a wait list of the selected candidates. No express provision for retaining the select list as wait list for one year has been brought to our notice. On the other hand, the effect of Rule 22 is that once the names of candidates from the notified select list are recommended to the JUDGMENT Government proportionate to the vacancies available for appointment; and recommended candidates are so appointed or on expiry of one year from notifying the select list whichever is earlier, the select list would become ineffective qua the subject selection process. For, that selection process is concluded. None of the writ petitioners can, therefore, succeed in getting the relief claimed by them. Page 27 28 21. The decision in the case of Rakhi Ray & Ors. Vs. High Court 2 of Delhi and Ors. will be of no avail to the writ petitioners and would instead support the view we have already taken. The writ

subsequent selection process commenced pursuant to the nd notification dated 22 February 2013. The High Court was not expected to fill the vacancies over and above the vacancies advertised for selection process of 2010. Moreover, since the writ petitioners have participated in the earlier selection process of 2010 and not in the subsequent selection process conducted on the basis nd of Notification dated 22 February 2013 for the year 2012, they cannot be given any relief. JUDGMENT 22. Considering the above, the Civil Appeal must succeed and is allowed. The impugned judgment and order of the High Court of th Jharkhand at Ranchi in WP(S) No.4159/2008 dated 29 August 2008 is set aside and consequently the WP(S) No.4159/2008 stands dismissed. Even the three connected Writ Petitions bearing Nos.300/2013,27/2014 and 325/2014 deserve to be dismissed and 2 (2010) 2 SCC 637 Page 28 29 are dismissed. Accompanying, I.As are disposed of in the same terms.

………………………..CJI. (T.S.Thakur) …………………………..J. (A.M.Khanwilkar) ……………………………J. (Dr.D.Y.Chandrachud) New Delhi, th Dated: 16 November, 2016 JUDGMENT Page 29