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B. S. Yadav And Others Etc vs State Of Haryana And Others Etc on 5 November, 1980
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ACT: Constitution of India, 1950-Articles 235 and 309, proviso-scope of- Governor, if could make rules regulating conditions of service of judicial officers-If could retrospectively amend the rules-determination of inter se seniority of judicial officers and declaring that an officer has satisfactorily completed the period of probation, Governor if competent to do-period of probation if could be reduced in individual cases without exceptional circumstances justifying reduction. Rule of rotation, if could be read into rule of quota of direct recruits and promotees-vacant post for promotees, if could be filled by confirmation of a direct recruit and vice versa.

Governor beyond the period of two years in consultation with the High Court but not so as to exceed a total period of three years. Rule 10(2) empowers the Governor to confirm in consultation with the High Court a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation. Rule 12 (now in force in Haryana) provides that the seniority of direct recruits and promoted officers shall be determined with reference to the respective dates of their confirmation. Under the Punjab Rules as amended retrospectively with effect from April 9, 1976 'cadre post' means a permanent as well as a temporary post in the service. The inter se seniority of the members of the service is to be deter mined by the length of continuous service on a post in the service irrespective of the date of confirmation. The three petitioners in the Haryana writ petitions were selected for recruitment to the Punjab Civil Service (Judicial Branch) in a competitive examination and after the formation of the State of Haryana, they were promoted in an officiating capacity to the Haryana Superior Judicial Service in 1967 and 1968. Respondent No. 3 who was a direct recruit to the Haryana Superior Judicial Service was appointed as a District and Sessions Judge on July 7, 1025 1970 and was confirmed in that post on July 7, 1972 on the completion of A two year probationary period. The three petitioners were confirmed as District and Sessions Judges with effect from July 8, 1972. In the case of judicial officers of Punjab, although there were ten vacancies in the quota of promoted officers and an equal number of promoted officers were officiating for more than three years as Additional District and Sessions Judges, the High Court did not confirm the promotees in those vacancies but confirmed the promotees and the direct recruits by applying the rule of rotational Six direct recruits were given prior dates of confirmation in comparison with the promotees, as a result of which the confirmation of eight promotees was postponed. In the case of some direct recruits confirmation was given within a period of one year and four months though the period of probation was two years. Rule 12 was amended retrospectively from April 9, 1976 by which seniority was to be determined by the length

continuous service on a post in the service irrespective of the date of confirmation Rejecting the plea of one of the direct recruits that the rules not only required the application of a rule of quota at the time of appointment but also required the application of a rule of rotation at the time of confirmation, the High Court held that rules 8 and 12 were independent of each other, that rotational system could not be implicitly read in the quota rule provided for by rule 8 and that members of the Superior Judicial Service were entitled to claim seniority strictly in accordance with the provisions of rule 12. The promotees complained that this decision rendered by the High Court in its judicial capacity was not being followed by the High Court in the discharge of its administrative duties and that seniority of the promotees and direct recruits must be fixed without applying the rule of rotation at the time of confirmation. It was also stated that after the amendment of rule 12 in 1976 although two vacancies of District and Sessions Judges arose on each of these occasions the High Court promoted a direct recruit treating the date of his confirmation as the criterion of seniority. It was contended on behalf of the promotees in Haryana that the control which the High Court exercises under Art. 235 over the subordinate judiciary does not include the power to make rules regulating the condition of service of judicial officers but that since the power conferred on the Governor under the proviso to Art. 309 to make rules is legislative in nature the principle of independence of judiciary is not in any manner violated when the Governor makes the rules. On the other hand it was contended on behalf of the High Court that the control over the subordinate judiciary vested in the High Court by Art. 235 being exclusive in nature, the power to frame rules in regard to the seniority of judicial officers must reside in the High Court and not in the Governor. It was contended on behalf of the promotees that the quota of 2: 1 provided for by rule 8 is applicable only at the time of initial recruitment and that there was no warrant for extending the application of that rule at the time of confirmation. Partly allowing the Petitions; ^ HELD: There is no force

contention that the Governor has no power to make rules of seniority of District and Sessions Judges. [1058B] 1026 On a plain reading of Arts. 235 and 309 of the Constitution it is clear that the power to frame rules regarding seniority of officers in the judicial service of the State is vested in the Governor and not in the High Court. The first part of Art. 235 vests the control over District Courts and courts subordinate thereto in the High Court. But the second part of that Article says that nothing in the article shall be construed as taking away from any person belonging to the judicial service of the State any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. Thus, Art. 235 itself defines the outer-limits of the High Court's power of control over the District Courts and courts subordinate thereto. In the first place, in the exercise of its control over the District Courts and subordinate courts it is not open to the High Court to deny to a member of the subordinate judicial service of the State the right of appeal given to him by the law which regulates the conditions of his service. Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law. [1052C] There is no power in the High Court to pass a law though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law. Law which the second part of Art. 235 speaks of is law made by the Legislature. The clear meaning, therefore, of the second part of Art. 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer of the rights conferred upon him by a law made by the Legislature regulating his conditions of service. [1052G-H] Article 235 does not confer upon the High Courts the power to make rules relating to conditions of service of judicial officers attached to District Courts and the courts subordinate

control conferred upon High Courts by the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating conditions of service of its Judicial officers. Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject. [1055B-C] A combined reading of Arts. 235 and 309 will yield the result that though the control over the subordinate courts is vested in the High Court the appropriate Legislature and until that Legislature acts the Governor of the State has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State. The power of the Legislature or of the Governor thus to legislate is subject to all other provisions of the Constitution like Arts. 14 and 16. [1055D-E] The second part of Art. 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the State. The substantive provision of Art. 309, including its proviso, fixes the location of the power. The opening words of Art. 309 limit the amplitude of that power. [1055F] Seniority is undoubtedly an important condition of service. The control vested in the High Court by the first part of Art. 235 is, therefore subject to any law regulating seniority as envisaged by the second part of that article. The power to make such law is vested by Art. 309 in the Legislature and until it acts, in the Governor. Whether it is the Legislature which passes an Act or the Governor who makes rules regulating seniority, the end product is law within the meaning of second part of Art. 235. The Legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State judicial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to Art. 309 of the Constitution Such rules are subject to the provisions of the Constitution and to the provisions of any Act which the appropriate Legislature may pass on the subject. [1055G- H] The law passed by the Legislature or the rules made by the Governor can provide for general or abstract rules of seniority leaving it to the High Court to apply them to each individual case as and when

occasion arises. The power to legislate on seniority being subject to all other provisions of the Constitution cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Art. 235. [1056B-C] 1028 Though the Legislature or the Governor has the power to regulate seniority of judicial officers by laying down rules of general application, that power cannot be exercised in a manner which will lead to interference with the control vested in the High Court by the first part of Art. 235. In a word, the application of law governing seniority must be left to the High Court. The determination of seniority of each individual judicial officer is a matter which indubitably falls within the area of control of the High Court over the district courts and the courts subordinate thereto. For the same reason, though rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has satisfactorily completed his probation or not is a matter which is exclusively in the domain or the High Court to decide. [1056E-F]] The independence of the judiciary has to be preserved. at all costs. But at the same time the Legislature or the Governor cannot be deprived of their legitimate legislative powers under Art. 309. That power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead to the violation of Arts. 14 or 16 or the pervasive ambit of the first part of Art. 235. Since the power conferred by Art. 309 is not absolute or untrammeled it will be wrong to test the validity of that power on the anvil of its possible abuse. [1057 A-B] High Court of Punjab and Haryana v. State of Haryana, [1975] 3 SCR 355, Union of India v. Justice S. H. Sheth, [1978] 1 S.C.R. 423., A. P. High Court v. Krishnamurthy, [1979] 1 S.C.R. 26 & State of Bihar v. Madan Mohan Prasad, [1976] 3 S.C.R. 110, referred to. Rule 8 as its very heading shows, provides for a distinct condition of ser vice with reference to a specific point of time, namely "recruitment to service". The language of the rule also indicates that the operation of this rule is confined to the stage