No Statutory Right: P&H High Court Dismisses Judges' Pleas Seeking Re-Determination Of Inter-Se Seniority By Counting Ad-Hoc Service

The Punjab and Haryana High Court recently dismissed a petition filed by different categories of judges claiming seniority over and above recruits from other sources. The petitions were filed seeking re-determination of inter-se seniority of judges by counting the time spent in their ad-hoc service. The petitioners claiming seniority over other recruits belonged to three categories: (a) judges of the fast-track courts who were absorbed in regular service from ad-hoc positions; (b) promotee Judges falling in the category of accelerated promotion for seniority, and (c) direct recruit Additional District Judges.

Dismissing their plea, a Division Bench of Justices Augusting George Masih and Sandeep Moudgil held that the statutory rules do not provide for 'absorption' as a source of appointment. Still, the same was accepted by the Full Court based on the decision of the Supreme Court in Brij Mohan Lal's case.

"They do not have any statutory right, and the benefit is by way of concession, which has been bestowed upon them," it added.

It perused the Supreme Court's judgement in the Brij Mohan Lal case, which lays down the process required to be followed for determining the suitability of the Fast Track Court Judges for absorption in the regular cadre of Additional District Judges. The judgement mentions members of the Selection Committee and the marks for the written examination and interviews separately. It has the provision for assigning one mark per year of service in the Fast Track Courts depending upon the length of service forming a part of the interview and the condition of age relaxations. The High Court held

"This clearly indicates the dilution of the norms, as provided for in the statutory rules for appointment to the post of Additional District Judge in the regular cadre where the marks for the written examination, interview and even the qualifying marks in aggregate for both the general category and the reserved category candidates are higher than what were laid down by the Hon'ble Supreme Court."

Background

A sub-committee was constituted for determining the seniority amongst the judges appointed from different sources (i.e., direct recruits, promotees based on an examination, on seniority-cum merit and the from the fast track court). The petitions are now filed by the judges of the fast track court and the promotee judges, as they have been kept at the end of the seniority list.

When ad-hoc posts were turned into a regular posts, their initial day of joining service (as ad-hoc) was not considered. Instead, the later date was considered for preparing the seniority list, depriving them of their right to consideration and appointment from their initial date of appointment on an ad-hoc basis.

The main arguments raised by the petitioners are: (i) judges who were appointed on an ad-hoc basis because of non-availability of posts in their category and claiming the benefit of the service; and (ii) direct recruits have come at a subsequent stage, and thus must not be given seniority over and above them.

As per the prevailing rules,  recruitment to the post of Additional District and Sessions Judge was to be made 50% by promotion based on merit-cum-seniority and passing a suitability test, 25% by promotion based on merit through limited competitive examination amongst the judicial officers with the requisite service period and age and the remaining 25% of the posts were to be filled by direct recruits from amongst the eligible Advocates as per the requirement.

Judgement of the Court

On a perusal of the rules, the High Court held that inter-se seniority of the officers on promotion/appointment from their respective source would be governed as per the roster annexed, and the dates of their appointment and actual joining of the service would not make any difference. It rejected the claim of seniority of Promotee Judges over the Direct Recruit Judges holding that that an officer promoted on an ad hoc basis in a vacancy/post against a roster point earmarked for specific categories shall not have any right to the post, nor is he entitled to count the said service to regular service for seniority, even if appointed earlier.

It was held that the Fast Track Court Judges, who this procedure has absorbed, cannot be equated with and compared to the directly recruited Additional District Judges in the regular cadre. Holding that the petitioners were rightly assigned the seniority at the bottom of three categories, it was held that the appointment of the Fast Track Court Judges was based upon a concession, which had been conferred upon them, taking a sympathetic view and mitigating their hardships against the post meant for direct recruits. It noted,

"They were appointed in pursuance to a special procedure and that too, against the post which came into existence subsequently. It is after they have now become a part of the cadre that they can claim themselves to be falling in the cadre of direct recruits as they have been appointed against the post of said quota. Their appointment being beyond the statutory source, they can only be granted the benefit after the statutory source has been exhausted, which has been so granted to them and rightly so by the High Court."

On the claim of the Promotee Judges falling in the category of accelerated promotion for seniority above the Direct Recruit Judges, the Court held that they would not be entitled to the benefit of seniority over and above the direct recruits in the light of the prevailing rules. The rules mention that an officer promoted on an ad hoc basis against a roster point earmarked for an officer belonging to the other categories shall have no right to the post, nor would he be entitled to add the period of such service to regular service for seniority.

On the claim of seniority by the direct recruit Additional District Judges over and above the other category of officers, the Court made reference to the same rules it relied on to reject the claim of accelerated promotee Judges. It held that the said rules would disentitle them to the claim as the seniority has to be fixed per the roster annexed with the 2007 Rules.

Case Title: RAJNEESH BANSAL & ANR V/S STATE OF HARYANA & ORS and other connected matter

Citation: 2022 LiveLaw (PH) 258 

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