The writ petitioners cannot be heard to claim relief on the basis of the subsequent selection process commenced pursuant to the notification dated 22nd 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 of Notification dated 22nd February 2013 for the year 2012, they cannot be given any relief. – 2016 Nov.http://judis.nic.in/supremecourt/imgst.aspx?filename=44314-SRIKANT ROY & ORS. Vs. STATE OF JHARKHAND & ORS.

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.

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) No.4159/2008
dated 29th 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 Judges through Limited
Competitive Examination scheduled on 31st August 2008; and also 18 posts of
Additional District Judges from the promotee officers on the basis of merit-
cum-seniority scheduled on 23rd 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 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 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 petitioners was that the High
Court was erroneously linking the ratio of posts to fill up the vacancies
by giving retrospective effect to the amended Rules, which has come into
force w.e.f. 20th 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 (Senior
Division) scheduled to be held on 31st 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 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 directions to the High Court to fill up the
vacancies, as directed. The relevant portion of the impugned judgment reads
thus:
“10. Having heard the counsel for the parties at some length in the light
of the explanation in regard to the bifurcation of the posts as per roster
system to be followed in pursuance to the Jharkhand Superior Judicial
Service Rules, which was amended in view of the directions of the Supreme
Court, we are of the view that 50% of the posts having already been filled
up by the promotes on the basis of the merit-cum-seniority due to which 41
posts were filled up, the left over 42 posts have to be bifurcated into 25%
and 25% meaning thereby 21 posts will have to be assigned to be filled up
by promotion from the Subordinate Judges/Civil Judge (Senior Division) on
the basis of Limited Competitive Examination and left over 21 posts which
constitute 25% of the available posts will have to be filled up by the
direct recruits as that is the clear mandate of the Supreme Court in the
case referred to hereinbefore in pursuance to which the Jharkhand Superior
Judicial Service Rules, was also amended in 2001 and became effective in
2004. In fact, the petitioners have informed this Court that the
respondents have not only invited the applications for all the 42 posts to
be filled up by the Subordinate Judges on the basis of Limited Competitive
Examination, but even the posts that might be available in the year 2009
have also been included in the advertisement, which is clearly not in
consonance with the direction of the Supreme Court and is also contrary to
the Jharkhand Superior Judicial Service Rules, 2001.

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 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.

12. As no other point has been pressed in this writ petition and the only
dispute that has been raised is in record to bifurcation of posts contrary
to the roster principle, referred hereinbefore, and the same having been
found to be correct, the notification issued on the internet for filling up
the posts of Additional District Judges is quashed and set aside.
Consequently, the process of examination to be held on 31.8.2008 is also
set aside. The writ petition, accordingly, is allowed, but without any
order as to costs.”
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.
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 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
direct recruits from the Bar. That contention, essentially, is 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.
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 on 30th April, 2008 and anticipated
vacancy till 31st March 2009 were notified on the official Website of the
High Court. The said Notification reads thus:

“Actual and anticipated Vacancy in the cadre of Jharkhand Superior Judicial
Service

|Actual Vacancy as on 30.04.2008 |Anticipated Vacancy till|
| |31.03.2009 |
|By Promotion from |Promotion (by way of |By promotion from |
|Sub-Judges on basis of |Selection) through |Sub-Judges on basis of |
|merit-cum-seniority |limited competitive |merit-cum-seniority |
| |examination | |
| 18 | 34 | 11 |
Note: In the event of issuance of notification by the State Government
regarding induction of 10 Adhoc A.D.Js. of the Fast Track Courts in the
Jharkhand Superior Judicial Service on regular basis, in view of the
recommendation of the Court made vide letter Nos.6949/Apptt. Dated 3rd
November 2007 and 2819/Apptt. Dated 11.04.2008, the actual vacancies as on
30.04.2009 in the Promotee Quota shall be reduced to 08.”
After initiation of the impugned selection process for 2008, a Writ
Petition No.4159/2008 was filed in the High Court in which directions were
issued to the High Court to fill up 21 vacancies out of 42 vacancies by
promotion of Subordinate Judges on the basis of 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 the directions issued by the High Court was granted on 9th
April, 2009. The said interim order was later modified on 24th September
2010, in the following terms:

“List alongwith the batch of T.C.22 of 2001.
Since the matter has been pending at the stage of advertisement of
2008, we modify the order passed by the previous Bench dated 9.4.2009 by
directing the process, pursuant to the advertisement of 2008, to continue
pending the hearing and final disposal of this Special Leave Petition.
However, on completion of the exercise, vacancies will not be filled till
further orders.”
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 filed, this Court on 5th August
2011 permitted the High Court to make appointments concerning the said
selection process of 2008. The said order reads thus:

“In modification of our order dated 24th 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 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 High Court memorandum
dated 4th 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

|By Promotion from |Promotion (by way |By direct |Total Vacancies |
|Sub-Judges on |of Selection) |recruitment from | |
|basis of |through limited |Bar | |
|merit-cum-seniorit|competitive | | |
|y |Examination | | |
|28 |08 or 09 |07 or 08 |44 |
Memo 7671/Apptt. Dated Ranchi the 4th 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.”

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 petitions appeared in the
preliminary examination held on 29th September 2011 and the main
examination held on 27th November 2011 along with other candidates. Only 32
candidates could qualify the main examination, who were called for viva-
voce held on 3rd 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 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 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, they cannot claim any relief in
respect of fresh vacancy which was notified in the year 2012, vide
Notification dated 22nd March, 2012. That notification reads thus:

“JHARKHAND HIGH COURT, RANCHI
NOTIFICATION

No. 102/A. The Vacancies of the Jharkhand Superior Judicial Service
including the future vacancies till 31.12.2012 are hereby notified in the
following manner:-

|By promotion from |Promotion (by way of |By direct recruitment |
|Civil Judge (Sr. |selection) through |from Bar (25%)- under |
|Division) on the |limited competitive |Rule 4(a) of Rules, |
|basis of |Examination (10%)- under|2001 |
|merit-cum-seniority |Rule 4(c) of Rules, 2001| |
|(65%)- under Rule | | |
|4(b) of Rules, 2001 | | |
|57+7=64 |Nil |5 (+8*) |
It is made clear that appointment over the aforesaid 69 notified vacancies
will also be subject to final decision of the Hon’ble Supreme Court in the
Special Leave to Appeal (Civil) No. 9883/2009.

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).

Dated: 22nd March, 2012

By Order,
Registrar General”
The vacancy position as on 31st December 2012 was revised and duly
notified vide Notification dated 19th September 2012, which reads thus:
“JHARKHAND HIGH COURT, RANCHI

NOTIFICATION

No.275/A The Vacancies position of the Jharkhand Superior Judicial Service
till 31.12.2012 as notified vide Notification No.102/A dated 22nd March
2012 is revised and notified in the following manner:-

|By promotion from Civil |Promotion (by way of |By direct recruitment |
|Judge (Sr.Division) on |selection) through |from Bar (25%)- under |
|the basis of |limited competitive |Rule 4(a) of rules 2001 |
|merit-cum-seniority |examination (10%)-under | |
|(65%) – under Rule 4 (b)|Rule 4(c) of rules, 2001| |
|of rules, 2001 | | |
| 68* | Nil | 08 |
| | | |
It is made clear that appointment over the aforesaid notified
vacancies will subject to final decision of the Hon’ble Supreme Court in
the Special Leave to Appeal (Civil) No.9883/2009.

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. Dated 17th July 2012, the actual
vacancy as on 31.12.2012 under this quota [i.e. under Rule 4(b)] shall be
reduced to 40.

By Order
Sd/-
Registrar General

Dated: 19th September, 2012”

9. It is stated that the vacancy position as on 31st December 2012 was
notified on the basis of the sanctioned strength of 174 at 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 vacancy position as calculated on
the basis of amended Rules (as amended on 14th December 2011) has been
mentioned as follows:
|Sanctioned |By promotion from |Promotion (by way |By direct |
|strength |Civil |of selection |recruitment from |
| |Judge(Sr.Div.)on the|through limited |Bar |
| |basis of |competitive | |
| |merit-cum-seniority |examination |(25%)-Rule 4(a) |
| |(65%)-Rule 4(b) |(10%)-Rule 4(C) | |
|Sanctioned | 124 | 19 | 48 |
|Strength-191 | | | |
|Present working| 68 | 20(-1*) | 36 |
|strength-124 | | | |
|Present | 56-1*=55 | Nil | 12 |
|vacancies |(*excess adjusted) | | |
10. It is then stated that pursuant to the decision of this Court in
Civil Appeal Nos.6647-6649/2012 (filed by officers posted as Additional
District Judges, Fast Track Courts), vide letter dated 20th 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. After due consideration, the vacancy position of the
Jharkhand Superior Judicial Service was notified vide Notification dated
22nd February 2013 which reads thus:

“HIGH COURT OF JHARKHAND, RANCHI
NOTIFICATION

No.45/A. The Vacancies position of the Jharkhand Superior Judicial Service
as notified earlier vide Notification No.275/A dated 19th September, 2012
is hereby recalled and further revised till date in the following manner:-

|By promotion from Civil |Promotion (by way of |By direct recruitment |
|Judge (Sr.Division)on |selection) through |from Bar (25%)-under |
|the basis of |limited competitive |Rule 4(a) of rules, 2001|
|merit-cum-seniority |examination (10%)-under | |
|(65%)-under Rule 4(b) of|Rule 4(c) of Rules, 2001| |
|rules,2001 | | |
| 55 | Nil | 22*+03^=25 |

It is made clear that appointment over the aforesaid notified
vacancies will be subject to final decision of the Hon’ble Supreme Court in
the Special Leave Petition(Civil) No.9883/2009.

Note:- 1* 22 Vacancies for the appellants of Civil Appeal Nos.6647,6648 &
6649 of 2012.

2.^03 Vacancies for Direct Recruitment from Bar.

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

Dated: 22nd February, 2013

Memo No.1644/Apptt.Dated Ranchi, the 22nd 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”

11. It is also pointed out that the Standing Committee of the High Court
vide minutes dated 18th February 2014 assessed the vacancy position as on
20th February 2014 as under:

| | |Sanctioned |Working |Vacancy as |
|Sl.No.| |Strength |Strength as on|on |
| | | |20.02.2014 |20.02.2014 |
| 1 |By promotion from Civil | 134 | 60 | 74* |
| |Judge 9Sr.Division) on the| | |(74-4*)=70 |
| |basis of | | | |
| |merit-cum-seniority | | | |
| |(65%)-under Rule 4(b) of | | | |
| |rules, 2001 | | | |
|2 |Promotion(by way of | 21 | 17 | 4 |
| |selection)through limited | | | |
| |competitive | | | |
| |examination(10%)-under | | | |
| |Rule 4(c) of Rules, 2001 | | | |
|3 |By direct recruitment from| 51 | 55 | Excess 4* |
| |Bar (25%)-under Rule 4(a) | | |((excess may|
| |of Rules,2001 | | |be adjusted)|
In other affidavits filed on behalf of the High Court by the Registrar
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 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 proportion. There can be no difficulty in
accepting the argument that the amended Rules providing for the ratio to be
maintained between the promotees and direct recruits became effective on
20th August 2004 and had prospective application. Thus, the factual
position as obtained on 20th 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:-

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

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.

Rule-5: Of the total posts in the cadre of the service 67% shall be
filled in by promotion and 33% by direct recruitment:

Provided that the State Government may, in consultation with the High
Court, from time to time deviate from the aforesaid percentage in either
direction.

Rule 8:- 8. Seniority:

Seniority inter se of direct recruits shall be determined in accordance
with the dates of their respective appointments to the service.

Seniority inter se of promoted officers shall be determined on the basis of
their seniority as existing in the Jharkhand Judicial service immediately
prior to his appointment under these rules.

If at any time more than one direct recruit is appointed in the service,
the inter se seniority of such appointees will be determined in accordance
with the order of merit as obtaining in the select list at the time of his
appointment.

Seniority of direct recruits vis-à-vis promoted officers shall be
determined with reference to the dates on which his appointments actually
are made:

Provided, however, when a direct recruit and a promoted officer are
appointed on the same date, the promoted officer shall rank senior to the
direct recruit.”

14. Resultantly, appointments made prior to 2004 were governed 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 that no vacancy against 25% quota for direct recruitment
existed in the State of Jharkhand at that time. This affidavit was filed on
26th August 2008 after the amended Rules were notified and came into force
w.e.f. 20th August 2004. Thus, notification for filling up of 34 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 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’ Association & Ors. Vs Union of
India & Ors.[1] which has enunciated the principle of roster and the ratio
to be followed for the post of Additional District Judge. Indisputably,
pursuant to the decision of this Court the Rules were amended, which came
into effect from 20th 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 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-cum-
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 Punjab3. 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 case3 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.”
(emphasis supplied)

16. Once it is found that no post against the quota of direct recruitment
was available as on 30th April, 2008, no fault can be found with the
selection process commenced by the High Court for 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 glossed over the effect of filling up the vacancies in the
ratio of 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:-

Rule 5: Of the total post in the cadre of service.

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.

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.

25% shall be filled in by direct recruitment from the Bar on the basis of
test and viva-voce conducted by the High Court.

8(d) The following roster shall be maintained after appointment/promotion
to fix the seniority of the direct recruits vis-à-vis promote officer. The
roster shall be as follows for every unit of 100 posts.

For promote officers from the service-

1,2,5,6,9,10,13,14,17,18,21,22,25,26,29,30,33,34,37,38,41,42,45,46,49,50,53,
54,57,58,61,62,65,66,69,70,73,74,77,78,81,82,85,86,89,90,93,94,97,98.

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.

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

Copy to- Superintendent, Government press, Doranda Ranchi, with request
that be published in next edition of Jharkhand official Gazette.

Deputy Secretary of Govt,”

17. The position as it stood as on 30th April 2008, is stated in
paragraph 4 of the affidavit filed by the High Court dated 30th March,
2016, which reads thus:

“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:-

| By Promotion from |Promotion (By way of |By direct recruitment|
|Sub-Judges on the |selection) through |from Bar (25%) |
|basis of |limited competitive | |
|merit-cum-seniority |Examination (25%) | |
|(50%) | | |
|Sanctioned Strength – 145 |
|73 |36 |36 |
|Working strength = 93 |
|55 |00 |38 |
|Vacancies = 52 |
|18 |36-2=34 |02 (surplus) |

18. Considering the fact that no vacancy existed in the quota of direct
recruit as on 30th August 2008, the writ petitioners (respondents 4 to 11
in the leading appeal), who could participate in the selection process for
direct recruit alone and not by way of promotion through Limited
Competitive Examination, had no locus 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 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 cadre. The right to be considered for
appointment can only be 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 recruits
existed as on 30th 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 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 the selection process
commenced for the year 2010 does not merit interference. In that, the
vacancy position as on the date of the notification (i.e. 4th November,
2010), for commencing selection process in 2010, were only upto 8 vacancies
for appointment by 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 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 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 appointed eight candidates after due
selection subsequently 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 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.
21. The decision in the case of Rakhi Ray & Ors. Vs. High Court of Delhi
and Ors.[2] will be of no avail to the writ petitioners and would instead
support the view we have already taken. The writ petitioners cannot be
heard to claim relief on the basis of the subsequent selection process
commenced pursuant to the notification dated 22nd 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 of
Notification dated 22nd February 2013 for the year 2012, they cannot be
given any relief.
22. Considering the above, the Civil Appeal must succeed and is allowed.
The impugned judgment and order of the High Court of Jharkhand at Ranchi in
WP(S) No.4159/2008 dated 29th 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 are dismissed. Accompanying, I.As are disposed of in the same terms.
23. We order accordingly. No order as to costs.

………………………..CJI.
(T.S.Thakur)

…………………………..J.
(A.M.Khanwilkar)

……………………………J.
(Dr.D.Y.Chandrachud)

New Delhi,
Dated: 16th November, 2016

———————–
[1] (2002) 4 SCC 247
[2] (2010) 2 SCC 637