Full Judgment Text
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PETITIONER:
B. L. GOEL
Vs.
RESPONDENT:
STATE OF U.P. & ORS.
DATE OF JUDGMENT17/10/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V. ((CJ)
UNTWALIA, N.L.
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
CITATION:
1979 AIR 228 1979 SCR (2) 82
1979 SCC (2) 378
ACT:
U.P. Higher Judicial Service Rules, 1953-Rules 20 and
23-Appellant a promotee to post of District Judge-Government
created posts of District Judges. for absorption of
promotees-Three direct recruits confirmed as District Judges
against these vacancies-Appellant not confirmed-
Notifications declaring confirmations-Validity of.
HEADNOTE:
Under the U.P. Higher Judicial Service Rules, 1953
appointments to the posts of Civil and Sessions Judges were
made by promotion from the members of the U.P. Civil Service
(Judicial Branch) and by direct rccruitment. Rule 20 of the
Rules dealing with seniority provided that seniority in each
of the two classes of posts shall be determined by the date
of confirmation in that class of post. Rule 23 provided that
a probationer shall be confirmed in his appointment at the
end of his period of probation if the Governor was satisfied
that he was fit for confirmation.
The appellant who was appointed as a Civil Judge in
1955, was promoted as officiating Civil and Sessions Judge
in July, 1960. Respondents 3 to 5 who were direct recruits
to the post of Civil and Sessions Judges joined service In
May/June, 1966.
For the purpose of absorbing the promoted officers the
Government converted 22 temporary posts into permanent posts
of Civil and Sessions Judges with effect from April 1, 1966.
Three out of those posts were given to the three
respondents, who were direct recruits, and they were
confirmed in the posts with effect from May/June, 1968. In
twelve other posts, twelve promotees were confirmed with
effect from April 1, 1966, but the appellant was not so
confirmed though he had been continuously officiating as a
Civil and Sessions Judge since July, 1960. He was confirmed
as Civil and Sessions Judge with effect from January 1,
1969. He was eventually confirmed in the post of District
and Sessions Judge with effect from February 1, 1973.
The three respondents were later appointed as District
and Sessions Judges. By a Notification dated March 19, 1975,
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they were confirmed in those posts with effect from
July/August, 1972. The Notification dated July 22, 1977
issued by the High Court, showed the three respondents at
serial Nos. 31 and 32 of the list and the appellant at No.38
and the dates of confirmation were shown as August 25, 1972
in respect of three respondents and March 18, 1973 in
respect of the appellant.
The High Court allowed the appellant’s writ petition
and quashed the Notifications dated March 19, 1975 and July
22, 1971 insofar as they related to the dates of
confirmation of the appellant and the respondents. The High
Court on the administrative side was directed to redetermine
the dates of their confirmation as District and Sessions
Judges and their inter-se seniority in accordance with Rule
20.
83
In appeal it was, inter alia, contended on behalf of
the appellant that the 22 permanent posts having been
created with effect from 1-4-1966 for permanent absorption
of promotees who had been officiating prior to that date
four a period of more than three years, (Respondents 3 to S
who were not even in service on that date, could not be
absorbed against any of those vacancies, and the appellant
who had put in nearly six years of service in the Cadre on
the date when the three respondents were appointed, could
not be denied confirmation with effect from April 1, 1966;
that apart from greater length of service, the appellant has
an excellant, unblemished record of service; and in the
circumstances, the confirmation of the appellant with effect
from date later than those assigned to Respondents 3, 4 and
S is unfair, arbitrary and discriminatory.
Allowing the appeal,
^
HELD: The main criteria to be considered for
confirmation of officers officiating in the Higher Judicial
Service of the State are:
(i) Availability of a substantive vacancy/post.
(ii) Suitability for the post. [92C]
Here, a substantive post of Civil and Sessions Judge was
available to the appellant from April 1, 1966, when
Respondents 3, 4 and 5 had not even been appointed to the
service in any capacity. By April 1, 1966, the appellant had
put in service as officiating Civil and Sessions Judge for a
period exceeding 5 years and 9 months. There is nothing on
record to suggest that by or on April 1, 1966, he was not
suitable for confirmation as Civil and Sessions Judge, or
later, as District and Sessions Judge when a post in that
grade became available to him. In the circumstances, the
impugned Notification dated March 19, 1975 issued by the
Government, inasmuch as it did not accord to the appellant
the same treatment which had been meted out to twelve other
promoted officers who were confirmed with effect from April
1, 1966, is not based on any intelligible. differentia or
reasonable principle, and as such, cannot be sustained. The
same comments apply mutatis mutandis to the impugned
Notification, dated July 22, 1977, issued by the High Court.
Once it is found that the Notification dated March 19, 1975
cannot be sustained, The foundation for fixing the dates of
confirmation and determining relative seniority of District
and Sessions Judges will also crumble. [92D-G]
The entire matter therefore, requires reconsideration
by the High Court in the exercise of its powers under
Article 235 of the Constitution. [93A]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 911 of
1978.
Appeal by Special Leave from the Judgment and order
dated 12-12-1977 of the Allahabad High Court (Lucknow Bench)
in Writ Petition No. 1283 of 1976
R.K.Garg, V. J. Francis, Madan Mohan and D.K Garg for
the Appellant.
G. N. Dikshit and O.P. Rana for Respondents Nos. 1 and
2.
84
S. N Andley, B. P. Maheshwari and Sures Sethi for
Respondents 3 and 5.
Yogeshwar Prasad, Mrs. Rani Chhabra and Miss Meera
Bali, for Respondent No. 4.
P. C. Bhartari and R. P. Kathuria for the Intervener
(B. S. Yadav and Ors.)
The Judgment of the Court was delivered by
SARKARIA,J.- This appeal by special leave is directed
against a judgment dated December 12, 1977 of the High Court
of Allahabad.
The appellant herein, Shri B. L. Goel, is a District
and Sessions Judge and as such a Member of U.P. Higher
Judicial Service. The sanctioned permanent strength of the
Higher Judicial Service was 82. It comprised (i) 37 posts of
District and Sessions Judges and (ii) 45 Civil and Sessions
Judges, including five posts of leave reserve. The service
includes substantive posts as well as temporary posts. The
appointments to the posts of Civil and Sessions Judges are
made from two sources:
(a) By promotion from the members of the U.P.
Civil Service (Judicial Branch); and
(b) By direct recruitment after consultation with
the Court (vide Rule 5).
Under Rules 13 and 17 of the U.P. Higher. Judicial
Service 1953 (hereinafter referred to as the 1953 Rules)
waiting lists were to be prepared of the persons found fit
for promotion or appointment to the higher service. Rule 19
provided that the Governor shall, on receipt from the Court
of the waiting lists prepared under Rules 13 and 17, make
appointment to the service on the occurrence of substantive
vacancies. Para 2 of Rule 19 provide d that the Governor
could make appointments in temporary or officiating
vacancies of the persons who were eligible for appointment
by promotion and whose names were borne on the waiting list
on force prepared under Rule 13. Rule 21 fixed the period of
probation for direct recruits at two years. Rule 22 provided
that the probation could be extended for a specific period.
On satisfactory completion of his period of probation, a
direct recruit was entitled to be confirmed. No period of
probation was fixed in the case of promotees. Rule 20, which
is being impugned, originally, ran as follows:
"20. Seniority.-Subject to the provisions of rule
31, seniority in each of the two classes of posts in
the Services shall be determined by the date of
confirmation in that class of post;
85
Provided that if in any class of the post, two or
more persons are confirmed on the same date, their
seniority will be determined according to the order in
which their confirmation has been notified;
Provided further that in the case of direct
recruits, their inter se seniority will be fixed in the
same order in which their names appear in the list
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prepared by the Selection Committee under rule 17."
Rule 23 dealt with confirmation. It provided:
"23. Confirmation.-(1) A probationer shall be
confirm ed in his appointment at the end of his period
of probation or at the end of the extended period of
probation, if the Governor, after consultation with the
Court, is satisfied that he is fit for confirmation.
(2) All confirmations under this rule shall be
notified in the the official Gazette." D
The appellant was appointed to the U.P. Civil Service
(Judicial Branch) on September 13, 1948 on the basis of a
competitive examination held by the U.P. Public Service
Commission. He was posted as Civil Judge in the same service
in January 1955. He was appointed by promotion as an
officiating Civil and Sessions Judge in U.P. Higher Judicial
Service in July 1 960. Respondents 3, 4 and 5 are direct
recruits. They were appointed on probation on Civil and
Sessions Judges and joined the service on May 31, 1966, May
27, 1966 and June 1, 1966, respectively.
The constitutional validity of the 1953 Rules providing
for appointment to U.P. Higher Judicial Service first came
up for consideration before this Court in 1966, in Chandra
Mohan v state of U.P.(1) wherein it was held that the 1953
Rules providing for recruitment of District Judges
particularly rules 5, 8, 13, 17 and 19 of the U.P. Higher
Judicial Service Rules 1953, were invalid as they
contravened the mandate of Article 233(1), and that
consequently, the appointments of persons appointed under
those Rules including the appellant and respondents 3, 4 and
S to the U.P Higher Judicial Service were unconstitutional
and invalid. The appointments of persons appointed under the
1953 Rules, including the appellant and respondents 3, 4 and
S were, however. validated by the Constitution (Twentieth
Amendment) Act, 1964, which inserted Article 233A in the
Constitution.
(l) A.T.R. 1966 S.C. 1987.
86
By a notification dated March 31, 1969 the Governor
confirmed respondents 3, 4 and 5 as Civil and Sessions
Judges with effect from May 31, 1966. May 27, 1966 and June
1, 1966, respectively. Again by a Notification dated May 31,
1969 they were confirmed with effect form the same dates.
These Notifications were superseded by Notification dated
July 19, 1974. The dates of confirmation of the respondents,
however, remained unchanged. This notification was cancelled
by Government notification dated August 26, 1974.
The Government by its order (G.O. No. 870/7-AI-503)
dated June 19, 1971, created by conversion of the existing
temporary posts,22 permanent posts of Civil & Sessions
Judges with effect from June 1,1969, for absorbing the
promoted officers, who had been continuously officiating as
Civil & Sessions Judges for more than three years.
Subsequently, by its G.O. 2693/VII-A-Niaya/503/70. the
Government in partial modification of its G.O., dated June
19, 1971, directed that the creation of 22 permanent posts
of Civil & Sessions Judges shall have effect from April 1,
1966. This Notification shows that all these posts/courts
continuously existed on temporary basis from different dates
ranging between July 22, 1949 to August 8.1962.
Consequent upon the creation of 22 permanent posts with
effect from April 1. 1966, the Governor on March 19, ]975
issued a Notification in supersession of the earlier ones.
Although all the 22 permanent posts created with effect
from April 1,1966 according to the Government Notification
were meant for absorption of promotees only three of those
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posts were given to the three direct recruits, respondents
3, 4 and S (S/Shri R. C. Bajpai, Rikheshwari Prasad and
Behari Ji Das) who were shown as confirmed with effect from
May 31, 1968, May 27, 1968 and June 1, 1968, respectively,
the dates on which they completed their two years’
probation. Against 12 of those posts, 12 promotees were
confirmed as District and Sessions Judges with effect from
April 1, 1966. The appellant was not one of those 12
promotees who were so confirmed although he had been
continuously officiating as Civil and Sessions Judge since
July 1960 and the direct recruits/Respondents 3, 4 and 5
were appointed to that cadre about six years later. The
appellant was however shown, along with others as confirmed
with effect from January 1, 1969.
The appellant was appointed as officiating District and
Sessions Judge under Government Notification dated January
9, 1974 with the rider that the seniority would be
determined later on. This Notification was cancelled by
Notification dated July 17, 1974 whereby the
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appellant was confirmed on the post of District and
Sessions Judge with effect from February 1, 1973.
Respondent 3, 4 and 5 were appointed as District and
Sessions Judges, and confirmed as such by a Government
Notification dated January 9, 1974. These Notifications were
cancelled and replaced by fresh Notifications from time to
time. The last Notification Issued by the State Government
confirming the appellant and respondents 3, 4 and 5 as
District and Sessions Judges is of March 19, 1975. Under
this Notification, the appellant was confirmed with effect
from February 1,1973 while respondents 3, 4 and 5 were
confirmed with effect from July 16, 1972, August 8, 1972 and
August 25, 1975, respectively.
On July 22, 1977, the High Court in exercise of its
powers under Article 235 of the Constitution, issued a
Notification confirming certain officers as District and
Sessions Judges in order of seniority from the dates and in
the vacancies shown against their names. the appellant was
shown at Serial No. 38 and respondents 3, 4 and 5 at Serial]
Nos. 30, 31 and 32, respectively. While the appellant’s date
of confirmation was mentioned as May 18, 1973, respondents
3, 4 and 5 were shown as confirmed with effect from August
25. 1972.
The appellant challenged the validity of all the
Notifications issued by the State Government relating to his
confirmation as also of respondents 3, 4 and 5 on the post
of Civil and Sessions Judge as well as on the post of
District and Sessions Judge by a writ petition under Article
226 on these grounds: (1) That these orders were
discriminatory and therefore, violative of Articles 14 and
16 of the Constitution; and (2) that the Governor had no
power to confirm Civil and Session Judges and District
Judges, as the same power being a part of ’control’ vested
exclusively in the High Court under Article 235, (3) The
appellant, also, (by amending his writ petition) impugned
the validity of Notification No. 670 dated July 22, 1977
issued by the High Court during the pendency of the writ
petition, (4) It was also contended on the authority of this
Court in S. B. Patwardhan v. State of Maharashtra(1) that
the rule requiring determination of the seniority to be
governed by the date of confirmation is Unconstitutional as
it made seniority dependent upon the fortuitous
circumstances of confirmation, and where a cadre consists of
both permanent and temporary employees, the date of
confirmation cannot be an intelligible criterion for
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determining seniority as between direct recruits and
promotees.
The High Court has however, taken the view that
Patwardhan’s (supra) is not attracted to the facts of the
instant case because in the case of U.P. Higher Judicial
Service, the matter stands concluded
(1) A.I.R. 1977 S.C. 2051,
88
by the decision of this Court in Chandra Mohan’s case(l),
wherein it was held that it is open to the competent
authority to determine the seniority in accordance with rule
20 sans the second proviso, supplemented by any other valid
principles or rules. After an elaborate discussion, the High
Court concluded: "The Notification dated 17th July 1974 and
Notification dated 19th March, 1975 issued by the Governor
confirming the petitioner and the opposite parties 3, 4 and
5, are invalid and ultra-vires inasmuch as the power to
confirm on the post of District Judge vests in the High
Court and not in the Governor. The Notification of the High
Court, dated 22nd July 1977, however, meets the situation
and fills up the lacuna to a certain extent. This
Notification has been issued by the High Court in exercise
of its powers under Article 235 of the Constitution....The
said Notification of the High Court also mentions the
respective dates from which they stood confirmed. These
dates are not founded on proper criteria and it appears that
they were not properly fixed. Hence, that part of the said
Notification of the High Court cannot be sustained. Their
dates of confirmation shall have to be redetermined by the
High Court."
In the result, the High Court partly allowed the writ
petition and quashed the aforesaid Notifications dated July
17, 1974 and July 22, 1977 so far as they relate to the
dates of confirmation of the petitioner and the opposite
parties 3, 4 and 5. A direction was given to the High Court
in its administrative side, to redetermine the dates of
their confirmation as District & Sessions Judges and their
inter-se seniority "in accordance with rule 20 sans the
second proviso of the U.P. Higher Judicial Service Rules,
1953, supplemented by any other valid principles or rules".
The main contentions raised by Shri R. K. Garg,
appearing on be half of the appellant, are
(1) Rules 20 and 23 of the 1953 Rules, which make
determination of seniority wholly dependent upon the
fortuitous circumstance of confirmation offend Articles 14
and 15 of the Constitution. (It is submitted that earlier in
Civil Appeal 1703 of 1969 decided on April 19, 1976, he was
obliged to give up the plea because fundamental rights were
then under suspension and the broader protection of Article
14 was not available to him). Reliance has been placed on
Patwardhan’s case (ibid).
(2) (a) In the impugned Notifications, dates of
confirmations have been fixed arbitrarily in a manner which
unduly favours the direct recruits (respondents 3, 4 and 5)
and singles out the appellant pro
(I) A.I.R. 1976 S.C. 1482.
89
motee for unfavourable treatment, notwithstanding the fact
that he was Promoted as Civil and Sessions Judge about 6
years prior to the recruitment of Respondents 3, 4 and 5 to
the same cadre, and had also been promoted to the senior
grade of the Service as District and Sessions Judge, one
year prior to the promotion of these respondents to that
grade.
The High Court has not properly construed the
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observation in this Court’s decision dated April 19, 1976 in
C.A. 1703 of 1969, to the effect, that the seniority was to
be determined "in accordance with rule 20 sans the second
proviso of the U.P. Higher Judicial Service Rules, 1953,
supplemented by any other valid principles or rules,". In
that observation the indication was clear that the
confirmations were not to be arbitrarily made but in
accordance with valid and fair criteria which would ensure
that its consequences did not offend Articles 14 and 16. One
of these criteria would be the length of continuous service
in the cadre of the Higher Judicial Service. Indeed, new
Rules of 1975 adopt this as the governing criteria for
fixation of inter se seniority in the service. According to
Mr. Garg, this criterion, based as it was on a principle of
fairplay, could be validly imported into the truncated Rule
20 of 1953 Rules, in accordance with the broad observation
of this Court in its decision in C.A. 1703 of 1969.
(b) In any case, the Government had while creating 22
permanent posts with effect from April, 1966, (by conversion
of the existing temporary posts held by promotees into
permanent ones) as per Notifications (G.O. No. 870/7-AI-503
and G.C). No. 2093/VII-A-Niaya/ 503/70) declared it as a
matter of policy that all these posts are being created for
permanent absorption of promotes who have been continuously
working against temporary posts in an officiating capacity
for more than three years. Respondents 3, 4 and S had not
even been appointed (on probation) to the service on April
1, 1966. They entered the service on May 31, 1966, May 21,
1966 and June 1, 1966; while on April 1. 1966, or even on
the date of respondents’ entry into service, the appellant
had put in about six years’ continuous service as
officiating Civil and Sessions Judge. Thus, both as a matter
of declared policy and fair principle, the appellant could
not be denied confirmation with effect from April 1, 1966,
against one of those 22 posts, and none of the respondents
could be confirmed against any of those 22 posts which had
been made permanent for the purpose of absorbing promotes
who had put in officiating service for a period of more than
three years. Stress has been laid on the fact that apart ll
from greater length of service, the appellant has an
excellent, unblemished record of service. In the
circumstances, therefore, the confir-
7-817 SCI/78
90
mation of the appellant with effect from a date later than
those assigned to Respondents 3, 4 and 5 is unfair,
arbitrary, and discriminatory.
As against this, Shri Andley, Learned Counsel for
Respondents 3, 4 and 5 submits that the Respondents should
be deemed to have been appointed to the service in 1964,
when they were selected for appointment to the service.- by
the Select Committee of the High Court and were recommended
for appointment to the Government. The Respondents, it is
submitted, would have been appointed to the Service and
joined it in 1964, but for the fact that Chander Mohan etc.
in the writ proceeding obtained an interim order from the
Court, restraining the Government from giving effect to
their appointments, and it was only on the vacation of that
"stay" order in 1966, the respondents could join duty, which
they did in May and June 1966. The delay in joining the
service being not due to any fault on the part of the
Respondents, for the purpose of confirmation and
determination of seniority, it would be but fair to take the
date of their appointment as the date on which they were
selected by the Selection Committee in 1964 for recruitment
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to the Service. If no stay order issued by the Court had
intervened, the Respondents would have been entitled to be
confirmed on completion of their two years’ probation in
1966, Long before a substantive vacancy could become
available to the appellant. It is pointed out while these
direct recruits were, as usual, appointed against
substantive vacancies, on probation, the appellant and other
promotes like him were appointed against temporary posts on
officiating basis only, and they (promotees) could claim
confirmation only when substantive vacancies/posts became
available to them. It is further argued that the intendment
of Rule 8 of the 1953 Rules was that 25 per cent of the
vacancies in U.P. Higher Judicial Service should be filled
by direct recruitment, and this, according to the learned
Counsel implies that confirmation of direct recruits and
promotes at any given time should also be made in the ratio
of 1: 3 by rotation. It is urged that when the matter is
considered from this angle, the en bloc confirmation of 12
promotes with effect from April l, 1966 followed by the
confirmation of the three direct recruits (respondents 3, 4
and 5) with effect from May 30, 1968, May 27, 1968 and June
1968, was neither improper, nor arbitrary. Learned Counsel
further maintains that equities are wholly on the side of
respondents 3, 4 and S who are not younger than the
appellant, and this should also be taken into account as a
factor in their favour.
The last but luke-warm contention of Shri Andley is
that it is not clearly borne out by the record that the 22
temporary posts, converted
91
into permanent ones with effect from April 1, 1966, were
created for the purpose of absorbing the promotees only.
We do not think it necessary to decide the question
with regard to the constitutional validity of Rules 20 and
23, because this appeal can be disposed of on the second
ground urged by Shri Garg. Before dealing with that
contention, it is necessary to have a clear picture of its
factual premises. There is no dispute that the appellant was
promoted as officiating Civil and Sessions Judge in July
1960, while Respondents 3, 4 and 5 joined the service as
Civil and Sessions Judges on probation, about six years
later in May/June, 1966. We are unable to accept Shri
Andley’s argument that the date of the Respondents’ C entry
into service should be assumed as the date in 1964, when the
Selection Committee selected them for appointment. There is
no warrant for importing such a fiction. The stark fact
remains that respondents 3, 4 and S joined the service in
May/June 1966.
It is further an uncontroverted fact that the appellant
was promoted to the senior grade as officiating District and
Sessions Judge about one year prior to the respondents’
promotion to that grade. It is further clear from the record
(vide Paragraph 6 (g) of the affidavit of Shri Radhika
Raman, Under Secretary to the Government of Uttar Pradesh:
Annexure IV A to the Rejoinder Affidavit of Respondents 3
and 5 filed in the High Court as also the copies of the
Notifications filed by the appellant in this Court) that the
State Government created (by conversion of the existing
temporary posts/courts) 22 permanent posts/ courts of Civil
and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-
6-1971 with effect from 1-1-69. Later on, by another
Government order No. 2693/VII/A-Nyay 503/70, dated 3-3-1973,
in modification of the earlier notification, the creation of
the aforesaid 22 permanent posts was given effect from 1-4-
1966. By the impugned Government Notification of March 19,
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1975, against 12 of those 22 posts, twelve promoted officers
shown at Serial Nos. 24 to 35 were confirmed with effect
from 1-4-1966. Against the next 3 of those 22 posts,
respondents 3, 4 and 5 were confirmed with effect from 31-5-
68, 27-5-68 and 1-6-68. Against the remaining seven promoted
officers including the appellant, were confirmed with effect
from January 1, 1969. The first proviso to Rule 8 of 1953
Rules which provided for a quota of 25% for direct
recruitment and 75% for promotion, was specifically declared
void by this Court in Chandra Mohan’s case decided in 1966.
That void Rule, being non-existent, was not available for
the purposes of confirmation etc.
92
After considering the entire material on record and
hearing the Counsel for the parties, including Shri Dikshit
appearing for the State, we are unable to appreciate, why
the appellant like 12 other promoted officers, was not
confirmed with effect from April 1, 1966, when he was
continuously working as officiating Civil and Sessions Judge
from July, 1960.
In the case of promoted officers, the main criteria to
be considered for their confirmation are:
(i) Availability of a substantive vacancy/post.
(ii) Suitability for the post.
Here, in the case of the appellant, a substantive post
was available to him with effect from April 1, 1966, when
respondents 3, 4 and S had not even been appointed, on
probation or otherwise, to the service. By that date, April
1, 1966, he had put in service as officiating Civil and
Sessions Judge for a period of 5 years and 9 months
approximately. There is nothing on record to suggest that by
or on April 1, 1966, he was not found suitable for
confirmation. Why was he, then, not accorded the same
treatment in the matter of fixing the date of his
confirmation as had been meted out to twelve promoted
officers who were confirmed with effect from April 1, 1966
Shri Dikshit has not been able to satisfy us that in not
allocating 1-4-66 to the appellant as the date of his
confirmation, the Government were acting according to any
intelligible differentia or reasonable principle. Nor is any
a principle justifying a differential treatment to the
appellant in the matter of fixing the date of his
confirmation, discernible from the impugned Notification
dated March 19, 1975, itself.
We are therefore, of opinion that this Government
Notification dated March 19, 1975 cannot, as it stands, be
sustained and needs reconsideration .
The same comments apply mutatis mutandis to the
impugned Notification, dated July 22, 1977, issued by the
High Court. Moreover, once it is found that the Notification
dated March 19, 1975 cannot be sustained, the foundation for
fixing dates of confirmation and determining relative
seniority of District and Sessions Judges will also crumble.
Accordingly we allow this appeal, set aside the
impugned Notifications dated March 19, 1975 and July 22,
1977 in so far as they fix the dates of confirmation of the
appellant vis-a-vis Respondents 3, 4
93
and 5, both in the junior and senior grade of the U.P.
Higher Judicial Service. The High Court shall consider the
matter afresh and refix and readjust, in the exercise of its
powers under Article 235 of the Constitution, the dates of
the confirmation of the appellant and the said respondents,
at first, in the grade of Civil and Sessions Judges, and
then in the grade of District and Sessions Judges, in
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accordance with law. There will be no order as to costs in
this Court.
P.B.R. Appeal allowed.
94