V.K. Shukla, J.@mdashPetitioner, Satya Prakash Sharma, has approached this court questioning the validity of decision dated 10.08.2006 and 21.08.2006 taken by the District Judge, Meerut, disturbing seniority of petitioner and thereby placing him out side from the zone of consideration for being promoted to the post of Sadar Munsarim, and further for directing the respondents not to interfere with the functioning of petitioner as Sadar Munsarim at Family Court, Meerut and to pay regular salary in the pay scale of Rs. 5500-9000/-every month.
2. Brief background of the case is that petitioner was appointed as clerk in the judgeship of Meerut in the lowest pay scale of Rs. 100-180. Omvir Sharma, respondent No. 4, was appointed as clerk in the lowest pay scale of Rs. 200-320/-, which was revised to equal pay scale of Rs. 100-180, at the said point of time. Petitioner was accorded promotion to the next higher scale of Rs. 230-385. Omvir Sharma was also accorded promotion to the next higher scale of Rs. 300-550/-, which was revised pay scale equivalent to Rs. 230-385/-. On 01.06.1987 seniority list was published, wherein petitioner was shown as serial No. 22, whereas Om Veer Sharma at serial No. 25. Promotion in the pay scale of Rs. 1350-2200 was to be made. Petitioner, on account of his illness and bad health, requested that he was not interested in promotion to the pay scale of Rs. 1350-2200. It was also mentioned that he did not intend for future promotion also, and in this regard application dated 13.05.1994 was moved with the said request. The request of the petitioner was considered by the committee, which was headed by IInd Additional District Judge on 09.06.1994. in pursuance of the said consideration report dated 07.06.1994 was approved on 09.06.1994 in following terms:
I have perused the report of Promotion Committee headed by Sri Radha Kant, 2nd Additional District Judge, Meerut, dated 07.06.1994 regarding the representation of Sri Satya Prakash Sharma dated 13.05.1994 praying that he may be debarred permanently from promotion in the next grade of Rs. 1350-2200/-
In view of the report of the committee, recommending that his representation may be accepted, it is hereby ordered that Sri Satya Prakash Sharma, working as Munsarim in the court of Civil Judge, Meerut, in grade of Rs. 1200-2040 is debarred permanently for promotion in the next higher grades. Let an entry be made in the Service Book, Character Roll and Gradation List to this effect.
Inform all concerned.
(K.K. Verma)
District Judge,
Meerut
9.6.94
3. On account of the afore-quoted order, petitioner continued in the pay scale of Rs. 1200-2040/-. Seniority list was again published on 01.05.1995, wherein petitioner was at serial No. 7, while Omvir Sharma was at serial No. 10. Omvir Sharma was accorded promotion to the pay scale of Rs. 1350-2200 on 01.09.1995. Petitioner on 01.06.1996 and 17.09.1996 requested that on account of his continuing medical condition he be permitted to continue on the lower pay scale. Thereafter on 30.11.1996, petitioner requested expressing his willingness for promotion to the pay scale of Rs. 1350-2200 with request that he may be assigned the work of reader. The Promotion Committee so constituted supported the claim of petitioner, and thereafter on 02.01.1997, petitioner was accorded promotion in the pay scale of Rs. 1350-2200. Respondent No. 4 was granted promotion to the pay scale of Rs. 1400-2300/-, and petitioner was accorded promotion to said pay scale of Rs. 1400-2300 on 01.12.1997. On 23.12.1997. Government Order had been issued revising the pay scale with effect from 01.10.1996. in the revised pay scale so circulated, the two pay scales of Rs. 1350-2200 and Rs. 1400-2300/- were merged and a unified revised pay scale of Rs. 4500-7000/- was recommended. District Judge, Meerut sanctioned the pay scale of Rs. 1350-2200/- to the petitioner as promotional pay sale on personal promotion with effect from 01.08.1993. At judgeship Meerut one R.K. Goel was accorded promotion in the pay scale of Rs. 5500-9000/- on 31.07.2001. Against the said order, on administrative side, respondent No. 4 represented before this Court. The said representation was rejected by this Court by means of communication dated 29.08.2003 sent by Deputy Registrar of the Court. The said order clearly mentioned that representation had no force and further character rolls of R.K. Goel, Satya Prakash Sharma, Arvind Kumr Sharma and Omvir Sharma were returned. Thereafter, record in question reveals that representation was moved, requesting therein that pay scale, which had been accorded to the petitioner with effect from 02.01.1997 in the pay scale of Rs. 1200-2040/- (Rs.4000-6000/) has been wrongly accorded, and further complaint was made that name of petitioner was wrongly placed over and above the contesting respondent No. 4 in the seniority list. Thereafter petitioner requested for supplying copy of the representation. District Judge, Meerut on 12.10.2004 said that there was no question of supplying copy of representation of other officials to him and he might move his separate representation. Petitioner has contended that thereafter he requested Omvir Sharma for supplying copy of the same. Thereafter, it has been contended by the petitioner that committee was constituted and the said committee without providing any opportunity of hearing to the petitioner altered the seniority list superseding and placing the petitioner outside the zone of consideration for promotion and illegal promotion has been accorded to respondent No. 4. At this juncture present writ petition has been filed.
4. Short counter affidavit has been filed by Omvir Sharma, contending therein that petitioner has forfeited his right of being promoted for all times to come, and the said request of the petitioner was accepted vide order dated 09.06.1994, and the said order has not been recalled and still holds the field, as such the view which has been taken is correct view. It has also been contended that petitioner has statutory remedy of appeal. It has also been contended that seniority is to be determined in consonance with the Subordinate Civil Courts Ministerial Establishment Rules, 1947. As per Rule, 19 of the said Rules, decision which has been taken is correct decision. Rule 20 of the said Rules deals with promotion and here in the present case, as the post in question was selection post, then in consonance with the guidelines as provided in 1947 Rules merit has been judged and promotion has been accorded, as such no infirmity is there in the decision of deciding seniority as well as according promotion. Details have been mentioned about the entire proceedings undertaken by the Committee constituted for considering the matter. It has also been mentioned that petitioner''s name did not find place within serial Nos. 1 to 10, therefore, he was not called by the administrative committee. It has been contended that the names of respondent No. 4 and one Sukhdev Singh were at serial Nos. 2 and 4, respectively. After perusing the merits and Character Rolls, their names had been recommended by the Selection Committee. Consequently, contesting respondent No. 4 has been promoted as Sadar Munsarim in Civil Court at Meerut Judgeship. It has been contended that seniority list is being questioned without impleading the necessary parties.
5. To this short counter affidavit short rejoinder affidavit has been filed and the statement of fact mentioned in the short counter affidavit has been disputed, and it has been contended that seniority is to be governed by the U.P. Government Servants Seniority Rules, 1991, and further contention of petitioner is that he requested for according promotion in the next higher grade, and the same was accorded. Reference has also been given of the decision dated 16.07.1996 of the Committee, wherein petitioner''s claim for promotion was acceded to, and he was promoted to the next higher post. It has been contended that entire proceedings have been taken exparte against the petitioner.
6. Supplementary counter affidavit has been filed by respondent No. 4, contending therein that complete service book, which is of 33 pages, has not been filed. It has also been sought to be contended that material concealment has been made in Annexure-R.A.2, wherein on page 32 of the rejoinder affidavit certain portions have been left blank. It has been contended that petitioner has not approached this Court with clean hands and emphasis has been laid on the decision dated 09.06.1994 disentitling petitioner for any future promotional post. Details have also been mentioned qua entitlement of the petitioner. Report submitted by the Committee has been supported. Emphasis has been laid on the Circular dated 24.05.1996 issued by the High Court that inter se seniority of the officials is to be fixed according to Rule 19 of 1947 Rules, and not in accordance with the U.P. Government Servant Seniority Rules, 1991. It has also been asserted that petitioner''s claim is based on the applicability of U.P. Government Servant Seniority Rules, 1991, and in view of the circular of the High Court and the fact that U.P. Government Servant Seniority Rules, 1991 are general rules and 1947 Rules are special Rules applicable to the employees of civil court, claim of petitioner is clearly devoid of substance.
7. To this supplementary counter affidavit, supplementary rejoinder affidavit has been filed, and the averments mentioned therein have been vehemently disputed. It has been mentioned that each and every correct fact has been disclosed.
8. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. Apart from this original records on the basis of which proceedings in the question had been undertaken, have also been produced, and thereafter perused by parties an respective arguments have been advanced.
9. Sri Ashok Khare, Senior Advocate, assisted by Sri Sidharh Khare, Advocate, contended with vehemence that in the present case seniority has to be determined in consonance with Rules known as U.P. Government Servants Seniority Rules, 1991, which has been enforced on 20.03.1991 and not at all as per the provisions as contained in the Subordinate Civil Courts Ministerial Establishment Rules, 1947, and qua seniority, the Subordinate Civil Courts Ministerial Establishment Rules, 1947 stands repealed, as such seniority in the present case has been incorrectly determined in accordance with the the Subordinate Civil Courts Ministerial Establishment Rules, 1947, and coupled with this entire proceedings are exparte undertaken In well calculated manner in order to defeat the legitimate right and claim of the petitioner for being considered for promotion, as such writ petition is liable to be allowed.
10. Sri Amit Asthelkar, learned Counsel representing the District Judge, Meerut, on the other hand contended that U.P. Government Servants Seniority Rules, 1991 are not at all applicable, inasmuch as they are only in relation to government servants who are appointed in offices of the State Government, and here, the petitioner has been appointed to the service of Subordinate Civil Court, wherein High Court exercises its control in exercise of power conferred under Article 235 of the Constitution, as such the U.P. Government Servants Seniority Rules, 1991 are not at all attracted and applicable and the seniority has to be determined strictly as per the Subordinate Civil Courts Ministerial Establishment Rules, 1947, and this fact is also fully fortified from the Circular dated 24.05.1996 issued by the High Court, which has the force of law, and wherein it has been categorically mentioned that all other rules relevant to seniority and promotion shall remain the same as has been provided in 1947 Rules, as such in the facts and circumstances of the present case, no interference is required.
11. Sr Ravi Kiran Jain, Senior Advocate, assisted by Sri S.C. Dwivedi, Advocate, appearing for respondent No. 4 adopted the arguments advanced by Sri Amit Asthelkar, and in addition thereto, contended that petitioner is stopped in law in questioning the validity of promotion of respondent No. 4, as he had given up his claim fro promotion without reserving any right, and thus by his own conduct petitioner has forfeited his right of being promoted, and apart from this, the post in question being selection post, has to be filled up on the basis of merit-cum-seniority, and the merit having not been compromised, no prejudice is caused to the petitioner. Factum of not coming with clean hands has also been asserted. in this background, it has been contended that writ petition deserves to be dismissed.
12. The core question to be answered is, as to whether seniority of subordinate civil court staff is to be determined as per the provision contained in the "Subordinate Civil Court Ministerial Establishment Rules, 1947" or as per the provisions of "The U.P. Government Servant Seniority rules, 1991".
13. To start with The Subordinate Civil Courts Ministerial Establishment Rules, 1947, have been framed in pursuance of the provisions of Clause (b) of Sub-section (1) and Clause (b) of Sub-section (2) of Section 241 of the Government of India Act, 1935 in supersession of all existing rules and orders on the subject, and operation of the aforementioned Rules is in relation to the appointment to the ministerial establishment of civil courts in the United Provinces subordinate to the High Court of Judicature at Allahabad and the Chief Court of Awadh at Lucknow, and the conditions of service of the persons so appointed. Relevant extract of Rules 19 and 20, which deal with seniority and promotion are being quoted below:
19. Seniority:-Seniority in service, for the purposes of promotion shall ordinarily be determined from the date of the order of confirmation in the grade and if such date is the same in the case of more than one person then according their respective position in the next lower grade or the register of recruited candidates in the case of persons confirmed in the lowest grade.
20. Promotion:- (1) The posts in judgeship reserved for clerks in that judgeship and promotion to higher posts shall be made from amongst them. If, however, no suitable clerk is available in the judgeship for promotion to a particular post, promotion as a special case may be made from another judgeship with the sanction of the High Court or the Chief Court, as the case may be.
(2) Except in case of Amins, promotion shall be made according to seniority subject to efficiency up to Rs. 80 grade in the case of persons getting pre-1931 scale of pay and the scale of Rs. 70-4-9- (Class-III) in the case of persons getting pay in the post-1931 scale of Rs. 85-6-145 in the case of persons drawing the revised 1947 scale.
(1)(3) Posts other than those mentioned in Clause (2) above, for persons in the pre-1931 scale on post 1931 scale respectively shall be treated as selection posts, promotion to which shall be based on merit with the due regard to seniority.
Note-in passing over a person for inefficiency as well as promotion for a selection post due weight shall be given to his previous record of service and seniority should be disregarded only when the junior official promoted is of outstanding merit as compared with his seniors.
(4) Promotion to the posts of Central Nazir or Central Nazirs from one grade to another in the provinces of Agra shall be made according the rules made from time time by the High Court.
(5) In Courts subordinate to the High court, promotion of Amins from the second to the first grade shall, as a rule, be made within the local jurisdiction of a Judge upon the ground of superiority of general qualifications, irrespective of more length of service.
(6) Promotions and appointments to the posts of Amins in Court shall ordinarily be confined to person who satisfy the District Judge that they have a competent knowledge of
(i) Urdu and Hindi
(ii) Arithmatic
(iii) Mensuration
(iv) Elementary land surveying and mapping
(v) Order XXVI of Act No. V of 1908
(vi) Rules in General Rules (Civil) relating to the work and duties of the Amins. in exceptional circumstances the District Judge may exempt an official from such qualifications if he is satisfied that the official concerned is otherwise fit to hold the appointment.
(7) An official once promoted to the post of Amin shall not, for the purposes of promotion to other posts in the general office be entitled to claim seniority by reasons of such promotion as Amin. Punishments (A separate set of rules regarding punishments and appeal have been Issued.)
reasons of such promotion as Amin
Punishments-(A separate set of rules regarding punishments
and appeal have been Issued.)
14. This was pre-constitution law, and thereafter in exercise of power under Article 309 of the Constitution on 11.07.1950, in supersession of all existing Rules and Orders on the subject for recruitment to the Ministerial Establishment of Subordinate Offices under his control, Rules, known as The U.P. Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950 have been framed by the Governor of Uttar Pradesh. As per the aforesaid Rules, the term "subordinate offices" shall include all offices under the control of Governor other than those of the Secretariat, the State Legislature, the High Court and the Public Service commission. Said Rules deals with the procedure, which was to be adopted in the matter of recruitment to the lowest grade of Ministerial Staff, the way and manner, in which vacancies are to be calculated, and that the test has to be held annually; subject of test and how a candidate is to be selected. Rule 8 of the said Rules deals with promotion. The said Rule contains a Schedule showing the date of tests for recruitment to Ministerial Establishment of various subordinate offices under the different administrative departments of Government, and therein Judicial (A) Department Offices of Subordinate Civil Courts has also been mentioned.
15. Before Hon''ble Apex Court in the case of
7. The 1950 Rules did not, however, expressly say that the 1947 Rules had been superseded by these Rules. But it is significant to note that the 1950 Rules clearly stated that the Governor had framed them in supersession of all existing rules and orders on the subject for recruitment to the ministerial establishment of subordinate offices under his control. The clear effect of the 1950 Rules therefore was that the 1947 Rules stood superseded by the 1950 Rules as regards the subjects prescribed for the test and the manner of the examination to be held for the purpose of selecting candidates for the ministerial staff in the Civil Courts of the State of Uttar Pradesh. To be precise, Rules 9 to 12 and Appendix II of the 1947 Rules were superseded. The two reasons in support of the above view are : (i) that in the definition of the expression ''Subordinate Office'' only the offices of the Secretariat, the State legislature, the High Court and the Public Service Commission stood excluded and (ii) the offices of the Subordinate Civil Courts were included in the Schedule to those Rules. On its administrative side the High Court also understood that the 1950 Rules were applicable insofar as recruitment to the ministerial staff in the Civil Courts was concerned. This is evident from a letter written by Shri M.P. Singh, Joint Registrar of the High Court of Allahabad to all the District Judges In the State of Uttar -Pradesh on February 12, 1973 which is as under:
From
M.P. Singh, B.A., LL.B.,
Joint Registrar,
High Court of Judicature at Allahabad.
To
All the District Judges,
Subordinate to the High Court of Judicature at Allahabad.
CIRCULAR LETTER
No. 14/Ve-4 Dated Allahabad
February 12,1973
Subject : Recruitment to the establishment of the
Subordinate Civil Courts.
Sir,
It has been brought to the notice of the court that many District Judges face a lot of difficulties at the instance of Employment Exchange in making recruitments to their establishments. Broadly speaking the difficulties pointed out by them are as under:
1. Quite often the District Judges, on the list of approved candidates having exhausted, have to recruit candidates directly without subjecting them to a regular test prescribed under the rules for filling up casual vacancies and for meeting the requirements of newly created additional courts at short notice and such candidates continue in the employment of the civil courts for a considerable time, but when a test Is held for recruitment, the Employment Exchange either refuses to sponsor the names of those candidates or withholds their applications for one reason or the other and consequently such candidates are prevented from taking up the test.
2. Some times the Employment Exchange, while forwarding the applications of candidates, withholding applications of such candidates who appear to be deserving and suitable to the District Judges without assigning any reason and this compel the District Judges to recruit candidates only from amongst the candidates whose applications are forwarded by the Employment Exchange.
In order to obviate the difficulties, the court has examined the whole scheme and the rules and within frame work of the existing rules and Government orders on the subject, the following procedure is laid down for our guidance:
While following the procedure laid down in existing rules, published under Government Notification No. 0- 111/XI-8-50 dated July 11, 1950 (which was adopted in supersession of Rules 9 to 12 of the U.P. Subordinate Civil Courts Ministerial Establishment Rules 1947) and amplified in G. 0. No. 0-2248/II-8-III-1950 dated August 30, 1950 the District Judge should in addition himself advertise his requirement under intimation to the Employment Exchange and while doing so he should take care to make it clear that all applications are to be addressed to him and routed through the Employment Exchange. The District Judge should further require that candidates should send advance copies of their applications direct to (ho District Judge which Would go to ascertain whether all applications have been forwarded to him by the Employment Exchange or not. However, if on receiving the applications from the Employment Exchange, it is found that applications of certain suitable candidates have been withheld by the Employment Exchange, the District Judge may in his discretion, permit such candidates to take the test as contemplated in paragraph 7 of the G. O. dated August 30,1950 referred to earlier.
In the case of candidates who are appointed to fill up casual vacancies without appearing in the regular test prescribed under the rules and are already working on the staff of the Civil Court concerned, they should be treated as departmental candidates and should be allowed to take the test without any reference to the Employment Exchange in order to enable them to qualify for regular appointment.
Yours faithfully, Sd/
M.P. Singh
Joint Registrar
(Underlining by us)
8. From the above letter it is clear that the High-Court understood that Rules 9 to 12 of the 1947 Rules including Rule 11 which prescribed the manner of examination (and Appendix II to the 1947 Rules which prescribed details regarding the subjects in the examination had to be held) had been superseded by the 1950 Rules.
12. It was after the promulgation of the 1975 Rules that the competitive examination, with which we are concerned, was held by the District Judge of Kanpur. The said examination, was held in September 1981 and its results were announced on July 25, 1983. Respondent No. 1 and many others appeared in the said examination. The competitive examination was, however, held in accordance with the 1950 Rules. The 1969 Amending Rules were not, however, followed. Respondent No. 1 who had appeared for the competitive examination was not successful. Aggrieved by the result of the examination he filed the writ petition before the High Court of Allahabad, out of which this appeal arises. His principal contention before the High Court was that the competitive examination which had been held in accordance with the 1950 Rules was an unauthorised one and that it should have been held in accordance with the 1947 Rules as amended by the 1969 Amending Rules. The High Court held that It was evident that the intention of promulgating the 1950 Rules was only to prescribe a syllabus different from what had been prescribed in the 1947 Rules but the modification made by the 1950 Rules did not, however, modify the rest of the 1947 Rules. The High Court was of the opinion that "therefore, it follows that the 1950 Rules being later in time superseded 1947 Rules to the extent of Its Inconsistency. After the enforcement of 1950 Rules competitive tests for holding selection for appointment to the Ministerial Establishment of Subordinate Courts was required to be held in accordance with the syllabus of 1950 Rules and not in accordance with Appendix II of 1947 Rules. In other respects the 1947 Rules continued to be effective.
13. The High Court then found that on the promulgation of the 1969 Amending Rules the syllabus prescribed by the 1950 Rules could not be followed. The High Court observed on this question as follows:
The question, however, arises what was the effect of Subordinate Civil Courts Ministerial Establishment (Amendment) Rules, 1969. As noted earlier, the Rules of 1969 were framed by the Governor, amending Appendix II of 1947 Rules. The notification dated September 20, 1969, under which the Rules were enforced, does not contain any reference to 1950 Rules. It appears that while amending the 1947 Rules, the Governor failed to notice that Appendix II of 1947 Rules had already been superseded by Rule 6 of 1950 Rules. However, it Is evident that the intention was to prescribe different syllabus than that prescribed by 1950 Rules. There Is no doubt that by the 1969 Rules, the Governor intended to lay down a syllabus for holding competitive examination for selection and appointment to the ministerial establishment of Subordinate Courts which was quite different from the syllabus prescribed by Rule 6 of 1950 Rules as well as Appendix II of 1947 Rules. The 1969 Rules were also framed by the Governor in respect of the same subject matter as laid down by Rule 5 of 1950 Rules. Since 1969 Rules were framed later in time by the same authority on the same subject, it must be held that the syllabus prescribed by the Amending Rules superseded the earlier rules, on the subject.
17. In this case the deficiencies in the drafting of the rules and the Inadvertence on the part of the High Court in complying with them pose some difficulty in arriving at a just solution. There is no dispute that the 1947 Rules made appropriate provisions regarding the recruitment of candidates to the posts in the ministerial establishment in the Subordinate Courts in the former United Provinces and they continued to be in force till July 11, 1950. On July 11, 1950 the 1950 Rules were promulgated. They were applicable not merely to the ministerial establishments in Civil Courts but to the ministerial establishments in several other offices. They were promulgated in supersession of all existing rules and orders on the subject. They prescribed that recruitment to the ministerial staff in a subordinate office to which the said rules were applicable should be made on the basis of a competitive test and also provided for the mode of calculation of vacancies, the period during which competitive examinations should be held, the subjects for the test and the marks assigned to each of them and the method of selection of successful candidates. They also provided that appointments to higher posts in the ministerial staff of those offices, should be made by promotion. Rules 9 to 12 of the 1947 Rules and Appendix II to it which dealt with above topics thus stood superseded. The other parts of the 1947 Rules which dealt with the nationality, domicile and residence of the candidates, their academic qualifications, character and physical fitness, the appointing authority, probation and confirmation, seniority, punishment, rate of pay, transfers and regulations of conditions of service remained intact since the 1950 Rules did not make any provision as regards these topics. Hence we do not agree with the argument urged on behalf of the appellant that the 1947 Rules stood superseded in their entirety by the 1950 Rules relying upon the opening words of the 1950 Rules which read thus:
In exercise of the powers conferred by Article 309 of the Constitution of India, and in supersession of all existing rules and orders on the subject....
19. The 1969 Amending Rules specifically amended the 1947 Rules. These 1966 Amending Rules appear to have been made after consultation with the High Court as can be seen from the letter dated November 30,1968 written by the Joint Registrar of the High Court to the Joint Legal Remembrancer of the Government of Uttar Pradesh. The 1969 Amending Rules were published in the Uttar. Pradesh Gazette dated October 9.1969. By these Rules, Rule 5 of the 1947 Rules was amended. Rule 5 dealt with the minimum academic qualification which a candidate for a post in the ministerial establishment in a Subordinate Civil Court should possess. The other amendment related to the substitution of the former Appendix II which related to the subjects prescribed for the competitive examination and the marks assigned to each of them as it obtained before the 1950 Rules came into force by a new Appendix which has already been set out above.
20. Rule 11 of the 1947 Rules which required the District Judge to hold the examination in accordance with the former Appendix II of the 1947 Rules which also stood superseded by the 1950 Rules in view of Rules 5 and 7 of the 1950 Rules which dealt with the same subject, was however not replaced nor a corresponding rule authorising the District Judge to hold the competitive examination in accordance with the new Appendix II was introduced by the 1969 Amending Rules Into the 1947 Rules simultaneously. The result was that while the new Appendix II again reappeared in the 1947 Rules prescribing certain subjects and marks assigned to them, the authority who should hold the competitive examination was not again prescribed in the 1947 Rules. It was necessary to re-enact Rule 11 of the 1947 Rules because it also stood repealed by the 1950 Rules which had made provision with regard to the topic contained in the former Rule 11. The legal position that by the promulgation of the 1950 Rules, the former Rules 9 to 12 of the 1947 Rules stood repealed by necessary implication is accepted even by the High Court in its letter dated February 12, 1973 referred to above. Therefore the former Rule 11 should have been re-enacted either, in. the same form or with modification and brought back to life to give effect to the new Appendix II reintroduced in the 1947 Rules. Without such reintroduction of Rule 11, the mere reintroduction of Appendix II in the 1947 Rules by the 1969 Amending Rules would be meaningless and ineffective as the authority who can hold the examination remained unspecified. The method of selection of candidates also remained unspecified. In effect whatever was provided in Rules 9 to 12 of the 1947 Rules which was needed for conducting the examination and selecting candidates was however unavailable. It is not correct to assume that the old Rules 9 to 12 also automatically revived along with Appendix II without an express provision rein traducing them. Here we are not trying to be technical. It is to be noted that, the 1969 Amending Rules do not expressly state that the 1950 Rules would no longer be applicable to the ministerial establishments of the Subordinate Civil Courts. They also did not repeal the item referring to the Judicial Department Subordinate Civil Courts, which found a place in the schedule to the 1950 Rules. The discontinuance of the application of the 1950 Rules to the ministerial establishments of the Subordinate Civil Courts can only be inferred by relying upon the rule of implied repeal provided the said rule is applicable. An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law, that is, where the two laws - the earlier law and the later law - cannot stand together. This is a logical necessity because the two inconsistent laws cannot both be valid without contravening the principle of contradiction. The later laws abrogate earlier contrary laws. This principle is, however, subject to the condition that the later law must be effective. If the later law is not capable of taking the place of the earlier law and for some reason cannot be implemented, the earlier law would continue to operate. To such a case the rule of implied repeat is not attracted because the application of the rule of implied repeal may result in a vacuum which the law making authority may not have intended. Now, what does Appendix II contain. It contains a list of subjects and marks assigned to each of them. But who tells us what that list of subjects means. It is only in the presence of Rule 11 one can understand the meaning and purpose of Appendix II. In the absence of an amendment re-enacting Rule 11 in the 1947 Rules, it is difficult to hold by the application of the doctrine of implied repeal that the 1950 Rules have ceased to be applicable to the ministerial establishments of the Subordinate Civil Courts. The High Court overlooked this aspect of the case and proceeded to hold that on the mere reintroduction of the new Appendix II into the 1947 Rules, the examinations could be held in accordance with the said Appendix. We do not agree with this view of the High Court.
22. We do not agree with the view of the High Court that the 1950 Rules have been repealed by the 1975 Rules insofar as the Subordinate Civil Courts are concerned. It is true that Rule 20 of the 1975 Rules clearly stated that the 1950 Rules had been repealed. But the 1975 Rules did not. apply to the subordinate courts under the control and superintendence of the High Court. Hence the 1950 Rules insofar as they applied to the subordinate courts continued to be in force. The finding of the High Court on this question is erroneous and is liable to be set aside.
23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.
16. After noticing the aforesaid judgment of Hon''ble Apex Court, U.P. Government Servants Seniority Rules, 1991 is being looked into: Relevant Extract of the said rules is being quoted below:
The U.P. Government Servants Seniority Rules, 1991
In exercise of the powers conferred under the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules for determination of seniority of persons appointed to the service under the State Government.
PART I
Preliminary
1. Short title and commencement.-(1) These rules may be called the U.P. Government Servants Seniority Rules, 1991.
(2) The shall come into force at once.
2. Application.- These rules may apply to all government servants in respect of which recruitment and conditions of service, rules may be or have been made by the governor under the proviso to Article 309 of the Constitution.
3. Overriding effect- These rules shall have the effect notwithstanding anything to the contrary contained in any other service rules made heretobefore.
4. Definitions.- In these rules, unless there is anything repugnant in the subject or context, the expression:
(a) "Appointing authority" in relation to any service means the authority empowered to make appointments to such service under the relevant service rules;
(b) "Cadre" means the strength of service, or part of the service sanctioned as a separate unit;
(c) "Commission" means the Uttar Pradesh Public Service Commission or Uttar Pradesh Subordinate Service Selection Commission, as the case may be;
(d) "Committee" means the Committee constituted to make selections for appointment to the service under the relevant service rules;
(e) "Feeding cadre" means the cadre of service from amongst the members whereof, promotion is made to a higher service or post under the relevant service rules;
(f) "Service" means the service in which the seniority of the member of the service has to be determined;
(g) "Service rules" the rules made under the under the proviso to Article 309 of the Constitution, and here there are no such rules, the executive instructions issued by the Government, regulating the requirement and conditions of service of persons appointed to the relevant service;
(h) "Substantive appointment" means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection In accordance with the service rules elating to that service.
PART II
Determination of Seniority
5. Seniority where appointments by direct recruitment only-Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of anyone selection, shall be the same as it is shown in the merit list prepared by the Committees or the Committee, as the case may be:
Provided that a candidate recruited directly may lose his. seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final.
Provided further that the persons appointed on the results of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation" Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection.
6. Seniority where appointments by promotion only from single feeding cadres-Where according to the service rules, appointments are to be made only by promotion, but from a single feeding cadre, the seniority inter se of the persons appointed shall be the same as was in feeding cadre.
Explanation- A person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.:
7. Seniority where appointments by promotion only from several feeding cadres.- Where according to the service rules, appointments are to be made only by promotion, but from more than one feeding cadre, the seniority inter se of the persons appointed on the result of any one selection, shall be determined according to the date of order of their substantive appointment in their respective feeding cadres.
Explanation- Where the order of the substantive appointment in the feeding cadres specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases It will mean the date of issuance of the order:
Provided that where the pay scales of the feeding cadres are different, the persons promoted from the feeding cadre having higher pay scale shall be senior to the persons promoted from the feeding cadre having lower pay scale.
Provided further that the persons appointed on the result of subsequent selection shall be junior to the persons appointed on the result of a previous selection.
8. Seniority where appointments by promotion and by direct recruitment.-Where according to the service rules, appointments are to be made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of order of their substantive appointments, and if two or more persons are appointed together, In the order in which their names are arranged in the appointment order.
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases it will mean the date of issuance of the order:
Provided further that a "candidate recruited directly may lose his seniority, he falls to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se persons appointed on the result of any one selection -
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and by direct recruitment on the result of any one selection the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
Illustrations- (1) Where the quot of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order-
First .... Promotee
Second.... Direct recruits
(2) Where the quot of promotees and direct recruits is in the proportion of 1 : 3 the seniority shall be in the following order-
First .... Promotee
Second to fourth .... Direct recruits
Fifth .... Promotee
Sixth to eight .... By direct recruits
and so on: Provided that -
(i) Where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made In subsequent year or years, the persons so appointed shall not get seniority of any earlier hear but shall get the seniority of the year n which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) where in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get seniority of that very year as if they are appointed against the vacancies of their quota.
8A. Entitlement of consequential seniority to a person belonging to Scheduled Castes or Scheduled Tribes.-Notwithstanding anything contained in Rules 6, 7, or 8 of these rules a person belonging to Scheduled Castes or Scheduled Tribes shall, on his promotion by virtue of rules of reservation/roster, be entitled to consequential seniority also.
Explanation - As a consequence to this rule, the persons belonging to the categories other than Scheduled Castes or Scheduled Tribes promoted later will be placed junior in the seniority list to be persons belonging to Scheduled Castes or Scheduled Tribes promoted earlier even though by virtue of the rule of reservation.
PART III
Seniority List
9. Preparation of seniority list.- (1) As soon as nay be after appointments are made to a service, the appointing authority shall prepare a tentative seniority list of the persons appointed substantively to the service in accordance with the provisions of these rules.
(2) The tentative seniority list shall be circulated amongst the persons concerned inviting objections by a notice of reasonable period, which shall not be less than seven days from the date of circulation of the tentative seniority list.
(3) No objection against the vires or validity of these rules shall be entertainable.
(4) The appointing authority shall after disposing off the objection by a reasoned order, issue a final seniority list.
(5) It shall not be necessary to prepare a seniority list of the cadre to which appointments are made only by promotion from a single feeding cadre.
17. Constitutional provisions, which are provided for under Article 229 occurring under Chapter V, which deals with Officers and servants and the expenses of High Courts. Article 233 occurring in Chapter VI of the Constitution, which deals with appointment of District Judges and Article 235 which deals with control over the subordinate courts as well as Article 309, which authorises appropriate legislature to regulate recruitment and conditions of service, appointed to public service and posts, in connection with the affairs of the State or the Union, are being looked into. For ready reference, these provisions are being quoted below:
Article 229. Officers and servants and the expenses of High Courts.- (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the court or such other Judge or officer of the Court as he may direct;
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of of any law made by the legislature of the State, the conditions of service officers and servants of a High Court shall be made by the Chief Justice of the court or such other Judge or office of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund. "Article 233. Appointment of district judges.- (1) Appointments of persons to be, and the posting and promotion of, district Judges In any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
Article 235. Control over subordinate courts.- the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the Judicial service of a State and holding any post Inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed to taking away from any such person any right of appeal which he may 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."
Article 309. Recruitment and conditions of service of persons serving the Union or a State- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed to, public service and posts, in connection with the affairs of the Union or of any State.
Provided that if shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State of such person as he may direct in the case of services and pots ins connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of person appointed to such services and posts until provision in that behalf is made by or under an Act or the appropriate Legislature under this Article and any rules so made shall have effect subject to the provisions of nay such Act.
18. On the touchstone of constitutional provisions/Statutory provisions and judicial pronouncement on the subject, arguments advanced by respective parties are being adverted to. Control exercised by the High Court over the subordinate courts, has been subject matter of consideration on various occasions. From the side of respondents, Full Bench of Gujrat High Court In
R.M. Gurjar and D.N. Jadhav were working as junior clerks in the Civil Courts under the administrative control of District Judge, Broach, Gujarat. Disciplinary proceedings were initiated against them on the charge that they falsely identified three persons before a Judicial Magistrate. At the enquiry both of them admitted the charge and prayed for mercy. The District Judge by the order dated June 5, 1974 imposed the penalty of withholding their future promotions with permanent effect. The High Court in exercise of its powers under Rule 23 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1071 (the Rules) enhanced the penalty and Imposed the punishment of removal from service. It is not disputed that the High Court enhanced the penalty after affording opportunity to the two officials in accordance with law. Gurjar and Jadhav challenged the order of their removal by way of a writ petition under Article 226 of the Constitution of India before the High Court. The learned single Judge after considering the relevant provisions including the historical background of various constitutional reforms appears to have been of the view that the source of power to pass the Impugned order lay in the constitutional control of the High Court under Article 235. However, the difficulty which came in the way of the learned single Judge to hold so was on account of the judgment of a Division Bench in Ramesh C. Mashruvala v. State 16 GLR 277 : 1975 LIC 578 wherein the Division Bench had given a restricted Interpretation to Article 235 and had confined its applicability to persons in the judicial service of the State only. Accordingly, the learned single Judge referred the following two questions to be decided by a larger Bench:
(1) Whether the High Court on its administrative side has jurisdiction to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the subordinate Court in exercise of the powers of review conferred by Rule 23 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ?
(2) Whether the control vested in the High Courts under Article 235 of the Constitution is exercisable only over members of the judicial service of the State as defined in Article 236(b) or whether the ministerial officers and servants on the establishment of the subordinate courts are also ultimately subject to such control?
2. While the reference was pending before the Full Bench, the decision in Mashruvala case 1975 Lab IC 578 was set aside by this Court In
3. The Full Bench of the High Court speaking through the Acting Chief Justice primarily dealt with question No. 2 and came to the conclusion that the "control" under Article 235 of the Constitution of India extends to the ministerial officers and servants on the establishment of the subordinate Courts also. The second question was, accordingly, answered against the petitioners. On the interpretation of Article 235 and the rules the first question was also decided against the petitioners. This appeal by way of special leave is against the judgment of the Full Bench of the High Court.
4. From the judgment of the Full Bench It transpires that though the Bench entered into lengthy discussion on the interpretation of the constitutional provisions contained in chapter VI of the Constitution, it did not elaborately deal with the relevant rules which have a direct bearing on the first question. We, therefore, consider it desirable, at this stage, to first deal with the relevant provisions of the Gujarat Civil Services'' (Discipline and Appeal) Rules, 1971. The relevant rules are extracted hereunder:
Rules 7,18, 21 and 23 of the Rules are as under:
7. (1) and (2)...
(3) Without prejudice to the provisions of Sub-rules (1) and (2), Heads of Departments and Heads of Offices may impose any of the penalties mentioned in Rule 6 upon any Government servant of subordinate or inferior service serving under them whom they have power to appoint.
(4) ...
18. Orders against which appeal lies''- (1) Subject to the provisions of Rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely:
(i) an order of suspension made or demand to have been made under Rule 5.
(ii) An order imposing any of the penalties specified in Rule 6 whether made by the Disciplinary Authority or by any appellate or reviewing authority.
(iii) An order enhancing any penalty, imposed under Rule 6.
(iv)...
(d) has the effect of his non-promotion to a higher post, or
(2). An appeal referred to in Sub-rule (1) shall lie to an officer immediately superior to the officer who made the order:
21(1)...
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6, or enhancing any penalty imposed under the said rule, the appellate authority shall consider-
(d) whether the penalty imposed is excessive, adequate or inadequate, and, after consultation with the Commission, if such consultation is necessary in the case, pass orders-
(i) setting aside, reducing, confirming or enhancing the penalty, or
(ii) ...
Provided that-
(i) ...
(ii) no order for enhancing the penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty, and 23. Review of orders in disciplinary cases.- The authority to which an appeal against an order Imposing any of the penalties specified in Rule 6 lies may, of its own motion or otherwise, call for the record of any proceeding under these rules and review any order passed in such a case and, may, after consultation with the Commission where such consultation is necessary, pass such order as it deems fit as If the Government servant had preferred an appeal against such order;
Provided that no action under this rule shall be taken after the expiry of a period of more than six months frbm the date of such order.
6. The District Judge, being the Head of office and the appointing authority of the appellants, was the disciplinary authority under Rule 7(3) of the Rules. The District Judge imposed the punishment of stoppage of promotion on permanent basis. Reading Rules 18(1) and 18(2) of the Rules together it is obvious that an order imposing the penalty of stoppage of promotion is appealable and the appeal lies before an officer Immediately superior to the officer who made the order. In this case the order having been made by the District Judge, the appeal would lie to an officer authority immediately superior to the District Judge. The District Judge is under the administrative control of the High Court. The nature and extent of control which vests in the High Court under Article 235 of the Constitution of India has been authoritatively determined by this Court in
7. On the Interpretation placed by us on the Rules, the answer to the first question has t be in the affirmative. We are also of the opinion that the answer to the second question as rendered by the Full Bench of the High Court is unexceptionable and does not call for any interference. The appeal consequently falls and is dismissed but with no order as to cost.
19. Reliance has also been placed by respondents, on the Full Bench judgment of Punjab & Haryana High Court, in the case of
18. I am unable to subscribe to the contention advanced on behalf of the petitioner. The nature and ambit of control vested in the high Court by Article 235 has been elaborated in a number of decisions of their Lordships to which a detailed reference is unnecessary. It suffice to mention that even a decade ago In
The word ''control'' as we have seen, was used for the first time In the Constitution and it Is accompanied by a word ''vest'' which is a strong word. It shows that High court is made the sole custodian of the control over the judiciary.
The soleness of the High court control and the exclusive jurisdiction which it exercises by virtue thereof over the courts subordinate to it and the functionaries attached thereto is now virtually settled law.
19. I am unable to find any substance in the submission that the word "including" in the opening part of Article 235 was in any way Intended to cut down the ambit of control as regards the functionaries attached to the subordinate courts or to draw any line of distinction between them and the Presiding Officers thereof. This word has been obviously used for the purposes of elaboration and clarifying the ambit of control in order to put the matter beyond the pale of controversy. In particular it has to be noticed that the word has to be used because of the preceding provisions of Articles 233 and 234. Article 233 has vested the appointment and posting and promotion of District Judges in the Governor of the State in consultation with High Court. Article 234 has provided for the appointment of the subordinate judiciary by the Governor of the State in accordance with rules framed by him in consultation with the Public ''Service Commission and the High Court. In view of these preceding provisions, in Article 235 it was clarified that so far as members of the subordinate judiciary holding any posts inferior to the post of District Judge were concerned, their posting, promotion and grant of leave were within the control of the High Court. I am inclined to hold that nature and ambit of control of the High court over the Presiding officers of subordinate Courts and the functionaries attached thereto is identical and no distinction and difference between the two ways either intended or contemplated by the framed of the Constitution.
20. On behalf of the respondents, Mr. Sethi has forcefully contended that Article 235 of the Constitution of India definitely includes within its scope the promotion of the functionaries either by way of higher emoluments or by assignment to a post of higher rank. On principle he submitted that if promotions were to be excluded from the ambit of control then a very substantial content thereof would be totally eroded. What in actual practice would be the content of control of an authority over a functionary subordinate thereto if it has no power or authority in regard to his promotion? It maybe said that the real sanction behind control over a public servant is ultimately the power to promote or demote. If the substantial content of the power of promotion is, therefore, subtracted from control then the completeness thereof, which has been so often reiterated by the Supreme Court would be derogated from and in a sense the power would be halved, if not rendered completely nugatory.
21. It may be mentioned that Mr. Kuldip Singh, the learned Counsel for the petitioner frankly conceded that he could cite no authority In support of his proposition that the control envisaged in Article 235 of the Constitution of India did not extend to the promotion of the functionaries attached to the subordinate Courts. On the contrary, Mr. Sethi is able to buttress his argument with the ''weighty observations of the Division Bench in
It clearly means that the promotion of a District Munsif to the post of a Sub Judge vests in the High Court because the terms ''control, includes the promotion also. It is because of this Article that Rule 2 (14) states that such promotion shall be given by the high Court.
In arriving at the above said conclusion the learned Judges of the Bench had relied upon the derived support from the ratio and observations made in High Court, Calcutta v. Amal Kumar Roy AIR 1962 SC 1028 . Therein the Constitution Bench after adverting to the earlier case of
...The result is that we hold that power of promotion of persons holding posts inferior to that of the District Judge being In the High Court the poser to confirm such promotion Is also in the High Court. We also hold that in so far as Rule 5 (iv) Is in conflict with Article 235 of the Constitution, it must be held to be invalid. On the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basis.
22. In the light of the above said authoritative enunciation, I would hold that the power of promotion of all functionaries attached to the District Courts and the Courts subordinate thereto is exclusively vested in the High Court.
35. The rather complex legal question having been answered, the specific issue regarding applicability or otherwise of the State instructions," annexures ''C and ''C1'' to the case of the petitioner, resolves itself with relative case By virtue of Article 235 of the Constitution the High Court is vested with the control over the functionaries and ministerial staff attached to the District Courts and the Courts subordinate thereto. This control includes the power of '' promotion to all such functionaries. The High Court alone is the best judge as to which of these functionaries and the ministerial staff of the Subordinate Courts is fit or worthy for promotion to a higher rank. The power to issue instructions in this regard would, therefore be vested in the High Court. This being within the province of the High Court, any impinging thereon by an external agency would be an intrusion into the field of control exclusively given to it and, therefore, unwarranted. It has been authoritatively held in
36. At the cost of repetition, the matter may be succinctly put on a syllogism. The control of the functionaries of the Subordinate Courts is vested in the High Court by Article 235 of the Constitution. This control envisages in its ambit the power of promotion to the exclusion of the State Government or any other authority. Therefore, any instructions issued by the State in this context are not applicable to such functionaries and the High Court alone is competent to issue such Instructions.
20. Countering the said proposition, from the side of petitioner reliance has been placed on the Constitution Bench judgment of Hon''ble Apex Court in the case of
35. The arguments advanced before us by the learned Counsel for the promotees, direct recruits, the High Court of Punjab and Haryana, the Government of Punjab and the Government of Haryana cover a wide range but on a careful analysis of those arguments, the questions raised by the counsel resolve themselves into two issues. They are : (1) whether the power to frame rules of seniority of District and Sessions Judges vests in the Governor or in the High Court and (2) whether the High Court, basing itself on the rule of quota, is justified in applying the rule of rotation at the time of the confirmation of promotees and direct recruits as District and Sessions Judges.
36. The decision of the first question depends on the scope, meaning and purpose of the provisions contained in Article 309 and Article 235 of the Constitution. Article 309 reads thus:
309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.
Article 235 reads thus:
235. The control over district courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person 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.
37. It is urged by Shri V.M. Tarkunde who appears on behalf of the promotees in Haryana that if the two parts of Article 235 are read together, it will be obvious that the control which the High Court is entitled to exercise over District Courts and courts subordinate thereto does not include the power to make rules regulating the conditions of service of judicial officers. According to the learned Counsel, the power which the Constitution has conferred on the Governor by the proviso to Article 309 is a legislative and not an executive power; and since the Governor exercises a legislative power while making rules under the proviso to Article 309, the principle of the independence of the judiciary is not in any manner violated thereby. Judicial independence, says the Counsel, means freedom from executive interference, not freedom from laws.
38. Shri A. K. Sen, Shri S. N. Kackkar, Dr. Y. S. Chltale, Shrl F. S. Nariman and Shrl B.R. Tuli supported the argument of Shri Tarkunde by citing various decisions of this Court and of the High Courts, the connected provisions of the Constitution and the debates of the Constituent Assembly. On the other hand, it was contended by the learned Solicitor General, Shri Sorabji, who appears on behalf of the High Court that the paramount object of Article 235 is to secure the independence of the judiciary by insulating it from executive interference, which postulates that once an appointment of a judicial officer is made, his subsequent career should be under the control of the High Court. He should not be exposed to the possibility of any improper executive pressure in the course of his judicial career. The control over the subordinate Judiciary, which is vested in the High Court by Article 235, is exclusive in nature comprehensive in extent and effective in operation. There can be no duality in these matters, says the Solicitor General, and therefore the power to frame rules in regard to seniority of judicial officers must reside in the High Court and not in the Governor. That, according to the Solicitor General, is a necessary consequence of the control over the subordinate courts which is vested in the High Court.
39. There Is no direct decision on the question whether the Governor, in the exercise of power conferred by the proviso to Article 309. has the power to frame rules regulating the seniority of judicial officers of the State. The reason for the absence of precedent on this point, when law reports are overflowing with constitutional decisions, probably is that during the last thirty years of the working of our Constitution, no one ever disputed the power of the Governor to frame rules governing seniority of judicial officers. In several States such rules are in force in the absence of a law passed by the State legislature on the subject and High Courts have been applying those rules from time to time and case to case without demur. It is also significant that hardly any High Court has framed rules of its own for determining the seniority of its judicial officers. Even the High Court of Punjab and Haryana, which disputes the right of the Governor so to frame rules, has not made any rules of its own to occupy that field. All this, which Is stark history, cannot be dismissed by saying that the absence of a precedent is no authority for holding that what has not been challenged is lawful. It is true that the novelty of a contention, cannot be its infirmity and indeed law would have remained static and stagnant if it had not been allowed to grow from case to case. But the point of the matter is that there has been no unconcerned acquiescence by High Courts and Judicial Officers in rules framed by the Governors. In Haryana itself, respondent 3, Shri N.S. Rao, challenged the Governor''s power to override the order of his confirmation which was passed by the High Court. and he won. Whenever there was the semblance of a justification for doing so, either one or the other party motivated by personal Interest or out of the broader consideration that the High Court''s controlling jurisdiction must remain inviolate has challenged the rules framed by the Governor as being excessive. But there is a good reason why the rules of seniority framed by the Governor have been acquiesced in, all over the country, over all these years. The reason is as follows:
40. On a plain reading of Articles 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 Article 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, Article 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.
41. Who has the power to pass such a law? Obviously not the High Court because, 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. There is a distinction between the power to pass a law and the power to make rules, which by law, have the force of law. Besides, "law" which the second part of Article 235 speaks of, is law made by the legislature because, if it were not so, there was no purpose in saying that the High Court''s power of control will not be construed as taking away certain rights of certain persons under a law regulating their conditions of service. It could not have been possibly Intended to be provided that the High Court''s power of control will be subject to the conditions of service prescribed by it. The clear meaning, therefore, of the second part of Article 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.
42. 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 thereto. Whenever It was intended to confer ion any authority the power to make any special provisions or rules, Including rules relating to conditions of service, the Constitution has stated so In express terms. See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2). Out of this fasciculus of Articles, the provisions contained in Articles 225, 227(2) and (3) and 229(1) and (2) bear relevance or the question, because these Articles confer power on the High Court to frame rules for certain specific purposes. Article 229(2) which is directly in point provides In express terms that subject to the provisions of any law made by the legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. With this particular provision before them, the framers of the Constitution would not have failed to incorporate a similar provision in Article 235 If It was intended that the High Court should have the power to make rules regulating the conditions of service of Judicial officers attached to district courts and courts subordinate thereto.
43. Having seen that the Constitution does not confer upon the High Court the power to make rules regulating the conditions of service of judicial officers of the district courts and the courts subordinate thereto, we must proceed to consider, who, then, possesses that power? Article 309 furnishes the answer. It provides that Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to posts in connection with the affairs of the Union or of any State. Article 246(3), read with Entry 41 in List II of the Seventh Schedule, confers upon the State legislatures the power to pass laws with respect to "State public services" which must include the judicial services of the State. The power of control vested in the High Court by Article 235 Is thus expressly, by the terms of that Article itself, made subject to the law which the State legislature may pass for regulating the recruitment and service conditions of judicial officers of the State. The power to pass such a law was evidently not considered by the Constitution makers as an encroachment on the "control jurisdiction" of the High Courts under the first part of Article 235. The control over the district courts and subordinate courts is vested in the High Court in order to safeguard the independence of the judiciary. It is the High Court, not the executive, which possesses control over the State judiciary. But, what is important to bear in mind is that the Constitution which has taken, the greatest care to preserve the independence of the Judiciary did not regard the power of the State legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of that independence. The mere power to pass such a law Is not violative of the control vested in the High Court over the State judiciary.
44. It Is In this context that the proviso to Article 309 assumes relevance and importance. The State legislature has the power to pass laws regulating the recruitment and conditions of service of judicial officers of the State. But it. was necessary to make a suitable provision enabling the exercise of that power until the passing of the law by the legislature on that subject. The Constitution furnishes by its provisions ample evidence that it abhors a vacuum. It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power not exercising that power. The proviso to Article 309 provides, in so far as material, that until the State legislature passes a law on the particular subject, it shall be competent to the Governor of the State to make rules regulating the recruitment and the conditions of service of the judicial officers of the State. The Governor thus steps in when the legislature does not act. The power exercised by the Governor under the proviso is thus a power which the legislature is competent to exercise but has in fact not yet exercised. It partakes of the characteristics of the legislative, not executive, power. It Is legislative power.
45. That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor''s power under the proviso to Article 309 being in the nature of a legislative power. By Article 158, the Governor of a State is a part of the legislature of the State. and the most obvious exercise of legislative power by the Governor is the power given to him by Article 213 to promulgate Ordinances when the legislature is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises, the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: "Legislative Power of the Governor". The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject.
46. It is true that the power conferred by Article 309 is "subject to" the provisions of the Constitution. But it is fallacious for that reason to contend that the Governor cannot frame rules regulating the recruitment and conditions of service of the judicial officers of the State. In the first place, the power of 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. The first part of Article 235 is, as it were, subject to a proviso which carves out an exception from the area covered by it. Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject. A combined reading of Articles 235 and 309 will yield the result that though the control over 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, for example, Articles 14 and 16. The question raised before us is primarily one of the location of the power, not of its extent. The second part of Article 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 Article 309, including its proviso, fixes the location of the power. The opening words of Article 309 limit the amplitude of that power.
47. We entertain no doubt that seniority is a condition of service and an Important one at that. The control vested in the High Court by the first part of Article 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 Article 309 In the legislature, arid 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 the second part of Article 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 Article 309 of the Constitution. Such rules are, of course, subject to the provisions of the Constitution and to the provisions of any Act which the appropriate legislature may pass on the subject.
48. As we have said earlier, the mere power to pass a law or to make rules having the force of law regulating seniority does not impinge upon the control vested in the High Court over the district courts and the courts subordinate thereto by Article 235. Such law or the rules, as the case may be, 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 the occasion arises. The Power to legislate on seniority being subject to ail other provisions 0f the Constitution," cannot be exercised in a manner which will affect or be detrimental to the control vested in the High Court by Article" 235. To take an easy example, the State legislature or the Governor cannot provide by law or by rules governing seniority that the state Government in the concerned department will determine the seniority of judicial officers of the State by the actual application of the rules of seniority to each individual case. Thereby, the High Court''s control over the State judiciary shall have been significantly impaired. The opening words of Article 309, "Subject to the provisions of this Constitution" do not exclude the provision contained in the first part of Article 235. It follows that 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 Article 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 of the High Court to decide, That explains partly why in High Court of
50. Numerous decisions were cited before us to highlight the importance of insulating the judiciary from executive Interference. It was urged by the learned Solicitor General on behalf of the High Court that the paramount object of Article 235 is to secure the Independence of the judiciary by ensuring that the subordinate judiciary is insulated from executive interference and once the appointment of a judicial officer is made, his subsequent career should be under the control of the High Court and he should not be exposed to the possibility of any improper executive pressure
52. For these reasons, we reject the contention that the Governor has no power to make rules Of seniority of the
21. Control of High court over district courts and courts subordinate thereto flows from Article 235 of constitution of India, wherein this authority has been exclusively vested. with the respective High Court. This is explicit and clear from the first part of Article 235. Second part of Article 235 defines the outer limit of the power High Court of control over the district Courts and Subordinate Courts thereto. At the first place, in the exercise of its control over District Courts and subordinate Courts, it is not at all in the domain of the High Court to deny such members of service, the right of appeal given to him by the law which regulates his conditions of service. Secondly, High Court cannot, while exercising its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law. This control is exercisable qua the members of judicial service; members of ministerial staff as well as inferior staff of district Court as well as subordinate court. Word ''control'' hs not at all been defined in the constitution of India, the way and manner in which said control is to be exercised is clearly indicted in the second part of Article 235, by two indications. The first is that the order of High Court is made subject to an appeal, if so provided in the law regulating conditions of service. Secondly, High Court has to deal with said incumbent in accordance with condition of service prescribed under law. Control jurisdiction has to be exercised in accordance with conditions of service prescribed under law. Article 235 does not confer Jurisdiction on High Court to make rules regulating conditions of service of Ministerial Staff and Inferior staff of Subordinate Court. The power of control vested in High Court, under ''Article 235 is expressly, by the terms of aforementioned Article, made subject to the law which the State Legislature may pass for recruiting and regulating recruitment and service conditions of Ministerial and Inferior Staff of subordinate ''court. Under Constitutional scheme wherever it was Intended to confer power on High Court specific provision has been made in the Constitution, conferring power on the High Court to make rules namely Article 225, Article 227(2) & (3) and Article 229(1) & (2). Article 229(2) clearly provides in express terms that subject to the provisions of any law made by legislature of State, the conditions of service of officers and servants of High Court, shall be suchas may be prescribed by rules made by Chief Justice or by some other Judge or Officer authorised by Chief Justice. With this particular provisions before them, it is impossible to conceive that provision in Article 235 if it was intended that the High Court should have the power to make rule regulating conditions of service of Ministerial staff and staff of inferior establishment of Subordinate Court and of Subordinate judiciary. Consequently inevitable conclusion on this score is that Constitution does not confer upon High court the power to make rules, regulating condition of service of Ministerial Staff and Staff of Inferior Establishment of subordinate court.
22. The power to make law qua "State Public Services" vests with the State Legislature, under Article 246(3) read with Entry 41 in List II of seventh Schedule. Article 309 provides that Acts of appropriate legislature may regulate the recruitment and condition of service of persons appointed to, pubic services and posts in connection with the affairs of the Union or the State. Proviso to Article 309 provides, until the State legislature passes a law on the subject, it shall be competent for the Governor of the State to make Rules regulating recruitment and condition of service. Control has to be exercised by High court, as per law framed; Power to pass law is evidently not considered by Constitution makers as an encroachment on the Control Jurisdiction of High court under first part of Article 235. Control has to be exercised, as per the service conditions framed in exercise of power vested with Governor under proviso to Article 309 of the Constitution of India. Judgment cited by respondent,
23. On the touchstone of the judgments quoted above, the question to be looked into is as to whether there is conflict in between the provisions of Subordinate Civil Courts Ministerial Establishment Rules, 1947 and the U.P. Govemment Servants Seniority Rules, 1991 qua seniority, which have been referred to above. The Subordinate Civil Courts Ministerial Establishment Rules, 1947, as mentioned above, deal with staff of Subordinate Civil Courts consisting of ministerial service as defined in Fundamental Rule 9 (17) of the Financial Hand Book Vol II part II. The said law Is pre-constitutional law made in exercise of power vested u/s 241 of the Government of India Act, 1935, which was akin to the provisions as provided for by Article 309 of the Constitution. The Subordinate Civil Courts Ministerial Establishment Rules, 1947 was limited to appointments of the staff of Ministerial Establishment of civil courts in the United Provinces subordinate to the High Court of Judicature at Allahabad and the Chief Court of Oudh at Lucknow. The Rules for Recruitment of Ministerial Staff of Subordinate offices In U.P. 1950 has been framed by Governor of U.P. in exercise of power vested under the proviso to Article 309 of the Constitution and it mentions that in supersession of all existing Rules and Orders on the subject for recruitment to the ministerial establishment of subordinate offices under his control. In the Schedule, subordinate Offices under his control have been defined and the same is inclusive of Judicial (A) Department, which deals with the offices of subordinate civil court. 1950 Rules has been subject matter of challenge in case of Om Prakash Shukla v. Abhlshek Kumar (supra), already referred to above, wherein Hon''ble Apex Court has v taken the view that the extent to which the field is occupied by 1950 Rules, 1947 Rules shall stand excluded and impliedly repealed and rest of the Rules are to co-exist. 1991 Rules has been framed in exercise of power conferred by the proviso to Article 309 of the Constitution for determination of seniority of persons appointed to the service under the State Government. The application of the aforementioned Rules as per Rule 2 is of very wide amplitude, and apply to all Government Servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution and further Rule 3 deals with overriding effect of the said Rules, which mens that these rules shall have the effect notwithstanding anything to the contrary contained in any other service rules made heretobefore. Rule 5 of the said Rules covers the field of fixation of seniority in the matter of direct recruitment. Rule 6 clearly mentions that where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. An Explanation has been added to this particular rule, which mentions that a person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as was in the feeding cadre. Rule 7 deals with situation of determining seniority in the matter of promotion, where appointment by promotion only from several feeding cadres. Rule 8 covers the filed of determination of seniority where appointments are both by promotion and direct recruitment. Rule 9 obliges for preparation of seniority list, by initially circulating tentative seniority list, inviting objections on the same and thereafter disposing of the said objections, by reasoned order, and it has been provided for that it shall not be necessary to prepare seniority list of the cadre to which appointments are made only by promotion from single feeding cadre.
24. Much emphasis has been laid that U.P. Government Servants Seniority Rules, 1991 Is only In relation to persons appointed to service under the State Government, as such it is not at all extendable to Incumbents who have been appointed in civil courts. The argument which has been advanced Is misconceived for the simple reason that in exercise of power vested under the proviso to Article 309 of the Constitution, U.P. Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh, 1950 had been framed and under Rule 2 thereof the term subordinate offices" has been defined to mean all offices except for the offices of the Secretariat, the State Legislature, the High Court and the Public Service Commission. Offices of Subordinate Civil Courts has not at all been excluded and same finds place in the Schedule. Hon''ble Apex Court in the case of Pashupatl Nath Shukla v. Nem Chand AIR 1984 SC has taken the view that in our Constitution, which has a Federal Structure, there are both at the level of the Union and at the level of the States detailed provisions pertaining to the Legislature, the Executive and the Judiciary. All the three organs are concerned with the governance of the country one organ makes the laws, the second enforces them and the third interprets them, though some of their functions may be overlapping. In this all the three organs constitute the Government. Paragraphs 8, 9, 10, 11 and 12 of the judgment being relevant are quoted below:
8. The contention of respondent No. 1 which has been accepted by the High Court is that the Secretary of the Legislative Assembly being not an officer of Government or of a local authority he was not qualified to be appointed as the Returning Officer. The argument is that ''Government'' in the expression ''an officer of Government'' used in Section 21 of the Act means the Executive only and an officer of the Legislature is not, therefore, an officer of Government. 9. The above definition is an inclusive definition and it suggests that there may be other organs of State which may be included within the meaning of the expression ''Government''. The expressions ''Central Government'' ''and State Government1 are defined In Section 3(8) and Section 3(60) of the General Clauses Act, 1897 respectively. These definitions are to be adopted unless there is nothing in the context to the contrary. A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State. In Part 1 of the Constitution the expressions the Union'', the State and the Union Territories'' are used. in Article 12 of the Constitution we find the expression ''Government and Parliament of India'' and ''Government and the Legislature of each of the States'' suggesting that Government is different from the Union Legislature or the Legislatures of the States. This is for purposes of Part III of the Constitution. In Article 102(1)(a) and Article 191(1)(a) of the Constitution the expression the Government of India'' and the Government of any State'' are used and they provide that a person holding an office of profit under the Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively. Article 98 and Article 187 of the Constitution provide for the appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively. Article 146 and Article 229 of the Constitution respectively deal with the appointment of officers and servants of the Supreme Court and of the High Courts. Article 148(5) and Article 318 of the Constitution respectively deal with the conditions of service etc. of the employees working in the office of the Comptroller and Auditor-General of India and the Public Service Commissions. Part XIV of the Constitution contains provisions relating to the services under the Union Government and the State Governments. It contains Article 311 which guarantees certain rights which cannot be denied to the employees in the Legislature and in the Judiciary. Dealing with the nature of the office held by the officers working in the High Court who are governed by Article 229 of the Constitution, this Court has observed in
A close scrutiny of the terminology so used shows a marked departure in the language of Article 320(3)(c) from that In Article 310 and 311. Officers and members of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used In Articles 310 and 311. The salaries of these persons are paid out of the State funds as appears from Article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and Pensions payable to or In respect of officers and servants of the High Court are chargeable upon the Consolidated Fund of a State. The item relating to such administrative expenses has to form part of the annual financial statement to be presented to the State Legislative Assembly Under Article 202 and estimates thereof can form the subject-matter of the discussion in the Legislature under Article 203(1). They must, Therefore, be taken "to hold posts in connection with the affairs of the State and to be members of the civil service of the State.
10. Entry 5 of List II of the Seventh Schedule to the Constitution relates to ''Local Government1 that is to say, the constitution and powers of municipal corporation, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-Government or village administration. In each of these cases it becomes necessary to examine the relevant provisions of law applicable to it In order to determine whether the officers and staff of the various organs are officers of Government or not. Before taking up such examination the meaning of the expression ''Government'' has to be ascertained.
11. A student of International Law understands by the expression ''State'' as a fully sovereign independent community residing in a specified territory with a'' legal capacity to enter into international relations and having the power to fulfil the obligations which the international law imposes an the family of nations. It should also have been admitted or recognised as a State on a footing of equality with other States. A State implies the existence of a community or group of people occupying, a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will of the people is expressed and enforced. The last of the elements of a State referred to above is generally called as a Government. A student of Political Theory and Comparative Politics may describe a Government as, monarchical; republican democratic or dictatorial depending upon Its peculiar features. It may be federal or unitary. A political philosopher may describe a Government as imperial. (illegible), capitalist or socialist. The above list is not really exhaustive. But these are only different forms of Government and ''Government'' here Is used in a very broad sense. From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions. The structure of the machinery of Government and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes to some extent the mode in which these powers are to be exercised or these duties are to be performed (See Halsbury''s Laws of England. Fourth Edition, Vol. 8. Para 804). Government generally connotes three estates, namely, the Legislature the Executive and the Judiciary while it is true that in a narrow sense it is used to connote the Executive only. The meaning to be assigned to that expression, therefore, depends on the context in which it is used.
12. In our Constitution, which has a federal structure there are both at the level of the Union and at the level of the States detailed provisions. Pertaining to the Legislature, the Executive and the Judiciary. All the three organs are concerned with the governance of the country - one organ makes the laws, the second enforces them and the third interprets them though sometimes their functions may be overlapping. In this sense all the three organs together constitute the Government at their respective level. It Is significant that the President is a part of Parliament under Article 79 of the Constitution, the executive power of the Union is vested In him under Article 53(1) of the Constitution and he appoints Judges of the Supreme Court under Article 124(2) and he can Issue an order removing a Judge of the Supreme Court under Article 124(4) of the Constitution, of course, subject to the limitations contained therein. At the level of the State too the position is analogous to the position at the level of the Union. The Governor is a part of the Legislature of the State under Article 168(1) of the Constitution. The executive power of the State is vested in him under Article 154(1) and he is consulted in the appointment of Judges of the High Court. While under Article 235 of the Constitution, the High Court is vested with the control over the Subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary, the Governor has to issue the order though on the recommendation made by the High Court. A study of these provisions shows that there is no water tight compartment between the three major organs of the State. The Comptroller and Auditor-General of India though he is assigned an independent status is an officer under the Union Government. (See
25. In view of the judgment of Hon''ble Apex Court, if the expression "Government" is treated as Executive Government only, excluding Legislature and Judiciary, then the very scheme of the provisions of the Constitution would be defeated. Part XIV Chapter I of the Constitution relates to "service under the Union or the State" Article 309 authorises the appropriate legislature to regulate recruitment and condition of service of persons appointed to public service and posts in connection with the affairs of the Union or States, however, subject to other provisions of the Constitution. Proviso to Article 309 authorises executive to make Rules regulating the recruitment and conditions of service of person appointed to such services or posts until power in that behalf is exercised by appropriate legislature under Article 309 of the Constitution. "Public service" means anything done for the service of public, in any part of the State or the Country, as the case may be, in relation to affairs of State or Union. Same is clearly contrary to private service. Persons connected with discharge of public duties relating to any organ of the State i.e. Executive, Judiciary and Legislature are ''Public Servants'' appointed/engaged in the service of Government/ State. Here, in the present case once under the Schedule of 1950 Rules, "Subordinate Courts" have been included then to give a limited meaning to the words "persons appointed to the service under the State Government" would be doing violence to the spirit of the rules itself and the Constitutional mandate.
26. Subordinate Civil Court Ministerial Rules, 1947 provided for Rules regarding appointment to Ministerial Establishment of the Civil Courts in the United Provinces Subordinate to the High Court of Judicature at Allahabad and Chief Court of Awadh at Lucknow and conditions of service. Rule 19 deals with seniority, and provides that seniority in service for the purpose of promotion shall be ordinarily determined from the date of orders of confirmation In the grade and if such date is the same in case of more than one person then according to their respective positions in the next lower grade or the register of recruited candidates in the case of persons confirmed in the lowest grade. U.P. Government Servant Seniority. Rules, 1991 is exclusively meant for determination of seniority of persons ''appointed to the service under the State Government. Said Rules are to apply to all Government Servants in respect of whose recruitment and condition of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution of India. Qua members of Ministerial Staff of Subordinate Court, the Governor under the proviso to Article 309 has full authority to frame Rules regulating the conditions of service, as such U.P. Government Servant Seniority Rules, 1991 are fully applicable qua the members of Ministerial Staff of Subordinate Civil Court, in terms of Rule 2. Rule 3 provides for overriding effect, by mentioning that these Rules shall have effect notwithstanding anything to the contrary contained in any other Service Rules made heretobefore. Rule 4(e) defines "Feeding cadre" as the cadre of service from amongst the members whereof, promotion is made to a higher service or post under the relevant "Service Rules. Rule 4(f) defines "Service" as the service in which the seniority of the member of the service has to be determined. Rule 6, which is relevant for the present case deals with seniority where appointments are to be made by promotion only from a single feeding cadre. As per said Rules according to service rules appointments are to be made by promotion only from a single feeding cadre, the seniority Inter se of persons so appointed shall be the same as it was in the feeding cadre. Explanation added to the same makes position more clear that a person senior in the feeding cadre, even though promoted after the promotion of a person junior to him in feeding cadre shall, In the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. Rule 7 deals with seniority where appointments are made by promotion only from several feeding cadres and Rule 8 where appointments are made only by promotion an by direct recruitment. Rule 9 envisages preparation of seniority list, by inviting objections and disposing said objections by reasoned order. Said Rules are self contained rules, and leaves no room to determine seniority in any other manner. The contrary criteria provided for determining seniority in service for the purpose of promotion stands repealed, as subsequent enactment has the effect of overriding earlier law and is totally inconsistent with other law. Consequently, Rule 20 of 1947 Rules to the extent it provides contrary criteria for determining seniority in service, as per 1991 Rules, stands impliedly repealed.
27. It has been strenuously contended that even if Rules have been framed, same will not ipso facto apply to the members of Ministerial Staff, until and unless High court in exercise of its power of control gives nod to the same and here High Court at no point of time had given its consent for applicability of said Rules, as per the prevailing practice rather High Court, in exercise of its power to issue circular, under high court Rules, on 24.05.1996 had issued Circular clearly providing for that Rules relating to probation, confirmation, seniority and promotion shall be the same as has been provided for in 1947 Rules, as such no reliance can be placed on 1991 Rules. Circular dated 24.05.1996, relied upon is quoted below:
C.L. No. 27/Vllb-104/Admn. (D) dated May 24,1996
In supersession of the Circular Letter No. 14, dated 14.2.1995,1 Am directed to convey the decision of the Hon''ble High Court for strict compliance in the matter of recruitment and selection of Class III on the guidelines evolved by the Court as detailed below without disturbing the qualifications provided under Rules 4, 5, 6, 7 & 8 of the U.P. Subordinate Civil Courts Ministerial Establishment Rules, 1947 and also the syllabus applicable to the post of Class III employees of the Civil Court provided in U.P. Rules for the recruitment of Ministerial Staff of the Subordinate Offices in Uttar Pradesh 1950:
(a) The District Judge should take into consideration the vacancies up to the date of examination and the vacancies which will occur in the year immediately following the date of examination.
(b) In counting the vacancy the District Judge should take into account the existing vacancies and the vacancy which may likely to occur due to the retirement of the official in the strength of the Judgeship. No other consideration shall be given by the District Judge In calculating the vacancy.
(c) The District Judge shall inform the Hon''ble Inspecting Judge abut the number of vacancies calculated by him before advertising the examination.
(d) An advertisement shall be issued by the District Judge in the local newspaper and in a Hindi daily newspaper having a wide circulation in the district in which the examination is being held and also in a Hindi daily newspaper having a wide circulation in the State of Uttar Pradesh. The publication shall be issued soon after the decision of calculating the vacancy. The advertisement shall also provide the date fixed for the examination. The date of availability of application forms, the date of receipt of application form duly filled in by the candidate and all other particulars shall be given by the District Judge,
After the close of the date of receipt of the application forms duly filled in by the candidate, the District Judge shall examine the application forms.
All these applications forms which are incomplete and are submitted by the applicants who are not eligible shall be rejected by the District Judge by speaking order.
When these procedures are complete, procedure for preparing the question paper, examination of the copies shall be adopted. In order to check the leakage in question paper, tampering in answer books and manipulation in the examination of the copies, following checks and balances are introduced:
(A) The whole of the Sate of Uttar Pradesh is divided in three zones, shown by Alphabets ''A'', ''B; & ''C. If examination is held in zone ''A'' then the district shown in ''B'' & ''C shall be zones for preparing question paper and examining answer books. Similarly, if examination is held in zone ''B'' then the rest jobs shall be performed by districts of zone ''A'' & ''C and soon.
(B) The Court also decided that a separate Cell, headed by a Hon''ble Judge will be created in the Registry for supervising the examination. This Cell shall perform the job of selecting the districts in different zones for preparing the examination paper and the district for the examination of the answer books.
(i) The examination cell shall place the code numbers on the answer books so received from the district in which the examination has been held. After the answer books are examined, the examined copies shall be received back in the High Court and correct roll numbers shall be placed on the answer books and mark-sheet shall be prepared on the basis of the marks obtained by the candidates.
(ii) The District Judge of zone ''B'' or as the case may be, which has been allotted the work of preparing question papers shall prepare three examination papers of each subject as per rule and shall send them to the Registrar, High Court in a sealed cover within ten days of the receipt of the letter of the Registrar of the High Court. The Registrar of the High. Court shall keep these papers with him In a sealed cover and only one paper chosen out of the three by the Registrar shall be delivered after getting them printed at the place of his choice to the concerned District Judges in which the examination is going to be held one day before commencement of the examination through special messenger. The block of question paper will be destroyed soon after the question paper is printed.
(C) The answer books shall be printed in the following proforma:
SPECIMEN OF FIRST PAGE OF ANSWERBOOK
Code No. Roll No.
Rest blank: Name of candidate
Signature of the Officer Father''s name
Of Registry at the time
of fixing Code No.
Date of Exam. Signature
Signature of D.J. of Invigilator
After the examination Is over, half portion of the first page of answer book bearing name and roll number etc. shall be separated from the rest part and code number will be appended on both the portions in the Examination Cell of the High Court.
(D) After the examination is over all the answer books shall be sent in a sealed bundle by the district in which the examination is held to the High Court where it shall be received by the Incharge, Examination ell. The District Judge shall take proper care that all the pages of answer books will be signed by the invigilators also. The District Judge shall also take care that the answer books are properly sealed and dispatched through special messenger the same day after the examination is over. The process of sealing the answer books should take place in the presence of the observer of the Court sent by the Examination Cell.
(E) The District Judge of the zone, to whom the job of the examination of answer books has been assigned, shall return the answer books duly examined within 15 days from the date of receipt of the answer books. The District Judge can take help of his Officers for examining the copies. The District Judge of the zone, to whom the answer books have been sent shall return the examined answer books to the Examination ell of the High Court, where the rest process of deciding the answer book and preparation of mark-sheet shall be completed by the Incharge, Examination Cell. The mark-sheet duly signed by the Incharge, Examination Cell shall be sent back to the District Judge, In which the examination has taken place for preparation of the final results.
(F) The District Judge in whose district examination has taken place will pick up the candidates strictly on the basis of the marks obtained by the candidates and the result shall be pasted on the notice board within three days of the receipt of the examined copies and mark-sheet.
(G) The District Judge shall prepare a select list as proved in Rule14 of U.P. Subordinate Civil Court Ministerial Establishment rules, 1947. The District Judge shall follow the directions given Rule 14 mutatis-mutandis. The District Judge shall prepare a select list on the basis of the marks obtained by the candidates. Separate merit list for each category i.e. general candidates and for reserved categories shall be prepared in equal number of vacancies and not beyond it.
(H) The select list shall be taken into consideration as list of seniority of the candidates selected on the basis of the examination. The select list so prepared fro all purpose will be list for seniority. The appointments shall, however, be made as per the roster provided in government notification out of the aforesaid merit list/The gradation list shall be prepared separately strictly in accordance with the merit and in the light of the government notification Issued from time to time.
(I) The roster shall not be an evidence of seniority and would not be used for any other purpose than using it for appointment as per reservation rules.
(J) The District Judge shall make appointment strictly in order of the seniority. If a candidate has seniority in the list of serial No. 6 or 7 thereafter shall not be given appointments in any clear vacancy unless the claim of the candidate senior to him is not settled on a clear vacancy. The clear vacancy available should go to the candidate who Is senior in order of seniority and to none else.
(K) No ad-hoc appointment under Rule 269 of General Rules (Civil) shall be made without the previous permission of Hon''ble the Chief Justice.
(L) No appointment under Rule 269 of General Rules (Civil) will be for more than two months at a time and beyond a maximum period of three months. This appointment too will be made with the previous sanction of Hon''ble the Chief Justice. In any case the appointment under this Rule will not continue for more than three months.
(M) All other rules relating to probation. confirmation. seniority and promotion shall remain the same as has been provided in U.P. Subordinate Civil Courts Ministerial Establishment Rules; 1947.
(L) All expenses of printing, stationary etc. Shall be borne by the District Judge conducting the examination and any clarification in the matter shall be sought from the Hon''ble High Court and none else.
(O) As soon as there are more than one vacancy, the vacancy shall not be filled in by any ad-hoc appointment but examination for the recruitment of the vacancy shall be held expeditiously by the District Judge.
I am further greeted to say that the decision regarding the life of the select list of the candidate shall be intimated later on.
28. The said circular has been issued by the High Court in relation to holding of examination for recruitment of class III employees under the existing Subordinate Civil Courts Ministerial Establishment Rules, 1947 and the U.P. Rules for the Recruitment of Ministerial Staff of the Subordinate Offices in U.P., and therein it has also been provided that provisions in relation to probation, confirmation, seniority and promotion shall remain the same as has been provided in 1947 Rules. It has been contended that this circular is of the year 1996 and had been issued by this Court in exercise of its authority of issuing circulars, and as such seniority which has been determined is correct seniority as. per the said Rules. At this juncture authority of this court as provided in Allahabad High Court Rules, 1952 is to be looked into, which are being quoted below:
The Allahabad High Court Rules, 1952
CHAPTER-III
Rule 4. The following shall be the allocation of executive and Administrative work between the Chief Justice, the Administrative committee and the Full Court.
(A) Matters for the Chief Justice
1. General supervision and control of subordinate courts and the Vigilance Cell subject to these Rules
2. Co-ordination of the work of different Committees and the Administrative Judge
3. Constituting Committees of Judges to examine any specified matter.
4. Assigning districts to Administrative Judge.
5. Mid-term posting and transfers of officers of the subordinate judiciary, in consultation with two (two members of the Administrative committee)
6. Inter district transfer of employee of the subordinate courts.
7. All residuary matters not allotted to any committee or Administrative Judge.
(B) MATTERS FOR ADMINISTRATIVE JUDGES
1. Review of judicial work of subordinate courts, tribunals, district consumer forum and other special courts and control of working including inspection thereof, to record entries in the character rolls of the officers posted in the division assigned to the Administrative Judge.
2. Perusal of returns, calendars, evaluation of inspection reports made by the Presiding Officers in respect of their own offices, audit reports received from those courts, tribunals etc. and to make orders thereon.
3. Any adverse remarks or strictures made by an Administrative Judge about judicial work, conduct, integrity of any officer under his charge will be Communicated to the officer concerned, who may make his representations, if any, within a month and the same shall be placed before the Administrative Committee for consideration and decision.
4. Grant of earned leave to officers p9osted in the sessions division under the charge of the Administrative Judge.
5. Grant of casual leave (including special casual leave) and permission to leave near a quarters to the District and Sessions Judge, Presiding officers of the tribunals and special courts etc. however designated.
5. Disposal of appeals against orders of punishment imposed on and representations etc. of the employees of the subordinate courts.
(C) MATTERS FOR THE ADMINISTRATIVE COMMITTEE.
1. Annual postings and transfers of officers of the subordinate judiciary.
2. Deputation of officers of the subordinate judiciary and their withdrawal.
3. Consideration of the preliminary report in disciplinary matters and directing holding of disciplinary enquiry against officers of the subordinate judiciary.
4. Suspension of officers of the subordinate judiciary pending disciplinary enquiry.
5. Award censure entries to officers of subordinate Judiciary.
6. Temporary promotion o officers to the cadres of Civil Judges and Chief Judicial Magistrates.
7. Confirmation, promotion, selection grade, super sessions and reversions of officers of the subordinate judiciary.
8. Investiture of powers on officers of the subordinate judiciary.
9. Creation and abolition of posts.
10. Issuing Circulars and general letters for the guidance of subordinate courts.
11. Fixing working hours, vacation for the subordinate courts calendars and list of holidays for courts.
12. Matters referred to the Administrative Committee by the Chief Justice.
13. Matters in which opinion of the High Court is sought for by the Union or State Government.
14. Permission to cross efficiency bar to officers of the subordinate judiciary.
15. Finalisation of the list of holidays, working hours, vacations and calendars of the Court.
16. Decision of the reports of the Administrative Judge including annual confidential remarks recorded by him in respect of an officer in his charge.
17. Consideration of representations against the decisions of the committee relating to adverse remarks and strictures.
(D) MATTERS FOR THE FULL COURT
1. Direct recruitment of District judges and recommendations to the government regarding promotion to the cadre of District Judges.
2. Grant of super-time pay scale to officers of Higher Judicial Service, reduction In rank, premature retirement and refusal of extension beyond 58 years to officers of subordinate judiciary.
3. Termination of service of temporary officers and probationers of the subordinate judiciary.
4. Subject to Sub-clause (5) to Clause B and Sub-clause 4(a) to Clause C, consideration of final reports of disciplinary inquiries in respect of officers of subordinate judiciary and taking decision as to punishment and further action.
5. Proposals as to legislation or changes in law.
6. Making and amending Rules of the court.
7. Making and amending Rules for the guidance of subordinate courts.
8. General policy matters affecting the powers and status of the court.
9. Consideration of general annual report of the administration of justice to be sent to Government.
10. Matters which the Chief Justice or the Administrative Committee or any five Judges may consider fit to be placed before the Full Court
29. A bare perusal of the aforesaid Rules would reflect that allocation of executive and administrative work between the Chief Justice, the (Administrative Judge) the Administrative Committee and the Full Court has been provided for. The Administrative Committee under head 10 has been vested with the authority to issue circulars and general letters for guidance of the subordinate courts. The question is as to whether Administrative Committee has the authority to issue direction by-passing statutory rules framed by Governor in exercise of power vested under the proviso to Article 309 of the Constitution. The issue which has cropped up qua the circular dated 24.05.1996 has been considered by this Court in the case of
4. There are two sets of rules which are relevant in this case. These are: (i) The Subordinate Civil Courts Ministerial Establishment Rules, 1947, and (ii) The Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate offices in Uttar Pradesh, 1950. Both. the sets of rules have been considered by the Supreme court in
15. Appointment- All appointments to the ministerial establishment shall be made by the District Judge. Except in the case of stenographer, first appointment shall subject to the provisions of Rule 12 be made to the lowest posts (other posts being filled in my promotion) from amongst the candidates recruited under Rule 11 In order of merit.
(2) In filling the posts of stenographers preference shall be given to the officials possessing the prescribed qualifications who are already working in the Judgeship in which vacancy has occurred.
Provided that any person aggrieved by any order or appointment made otherwise tan in accordance with these rules shall have a right of appeal to the High Court or the Chief Court, as the case may be:
Provided also that nothing in these rules operate to the disadvantage of any person on the approved list of candidates who have already got an officiating chance and not otherwise disqualified at the time of these rules come into fore, whether such person has in fact been appointed or not"
5. A perusal of Rule 15 shows that appointments of ministerial establishment in the District Judgeships have to be made by the District Judge and, in my opinion, in view of Rule 15, the High Court has no jurisdiction to issue any direction regarding the selection and appointment ministerial posts in the District Judgeships and it is the exclusive jurisdiction of the District Judge under the 1947 Rules.
6. This view is further supported by Rules 4, 5, and 7 of 1950 Rules which state that the head of the subordinate office shall hold a competitive test for recruitment to ministerial posts. They are quoted below:
4. Calculation of vacancies.- The head of the subordinate office shall ascertain the probable number of vacancies, if nay in his office during the course of the year and hall if necessary take steps to make the fact generally known.
5. Test to be held annually. - The competitive tests shall be held at least once a year and at the time specified in the Scheduled by each head of a subordinate office for posts not requiring technical knowledge i. e. stenography:
Provided that If the strength of any office does not warrant annual recruitment in a particular year, a competitive test shall be held whenever it becomes necessary to recruit a ministerial servant to the office.
7. Selection of candidates.- (1) On the results of the test, the head of the subordinate office shall select a number of candidates sufficient to fill the number of vacancies as ascertained in Rule 4 and offer to them appointment as and which the vacancies occur according to the order of merit disclosed at the test.
(2) No one who has not been selected in accordance with Sub-rule (1) shall be appointed to any vacancy unless the list of selected candidates Is exhausted.
(3) Casual vacancies may be filled up by appointing persons who have not taken the test, but their further retention shall depend on their taking the next rest and being selected in it.
7. In the present case the head of the subordinate office is the District Judge and hence, in my opinion, the District Judge alone can hold selections for ministerial posts in the District Judgeship.
8. My attention has been Invited to various circulars of the High Court regarding recruitment and selection of Class III employees In the District Judgeship. By the Circular dated 24.5.1996 issued by the Registrar of the High Court (which has been placed before me by the Registrar pursuant to my order dated 9.9.1998, and which shall form part of record), the procedure for holding examinations for filling up the ministerial posts in the District Judgeship has been laid down in great detail. In my opinion, this circular is wholly illegal and ultra vires of Rules 4, 5, and 7 of the 1950 Rules. Every authority in the country has to act In accordance with law, and hence even High Court has to act In accordance with law. When the entire Jurisdiction of holding elections and making recruitments on ministerial posts in the District Judgeships Is vested in the District Judge under the 1947 and 1950 Rules I fail to understand how the High Court can issue such a circular dated 24.5.1996.
9. It appears that the High Court issued said circular in view of certain malpractices in the District judgeships. In my opinion, if there any malpractice, then proper course is for the High Court to take appropriate action in accordance with law against the person concerned, but the High Court cannot assume jurisdiction which it does not have for making selections for ministerial posts in the District Judgeship. A perusal of the circular dated 24.5.1996 shows that for holding of examination for recruitment of class III employees in the District Judgeship, the High Court divided the whole of the Sate of Uttar Pradesh is divided in three zones, shown by Alphabets ''A'', ''B'' & ''C. If examination is held in zone ''A'' then the district shown in ''B'' & ''C shall be zones for preparing question paper and examining answer books. Similarly, if examination is held in zone ''B'' then the rest jobs shall be done by districts of zone ''A'' & ''C'' This Circular further states that a separate cell, headed by a Hon''ble Judge will be created for supervising the examination. This Cell shall perform the job of selecting the districts in different zones for preparing the examination paper and the district for the examination of the answer books. It is not necessary for me to go into further details mentioned in the said circular. Thrust of the circular is that the District Judge of the concerned Judgeship shall not hold the examination but this roll shall be performed by the High Court. The answer copies are also sent to some other district as directed by the High Court. Thus, the District Judge of the concerned judgeship has been totally denuded of his power and debarred from making any selection or recruitment. In my opinion a perusal of Rules 4, 5 and 7 1950 Rules clearly show that it is the District Judge alone who can conduct the examination and make the selection for ministerial posts in his Judgeship. If the District Judge Is committing any Irregularity, the Hon''ble Inspecting Judge of the said district or the Administrative Committee of the High Court can take appropriate action on the administrative side, but this does not man that the High Court can assume the powers of the District judge mentioned in the 1947 and 1950 Rules. In this court every body has to follow the law. It is pertinent here to refer to the decision of the Supreme Court in
10. No doubt Article 235 vests In the, High court the power of supervision and control over the subordinate judiciary, but as held by the Full Bench of the Kerala High Court in N. Srinivasan, Additional -District and Sessions Judge and Anr. v. State of Kerala AIR 1968 Ker 158 and the Full Bench of the Patna High Court in Madan Mohan Prasad and Ors. v. Government of Bihar and Ors. AIR 1970 Pat 432, the said power under Article 235 cannot be exercised in violation of the rules framed under Article 309 of the Constitution. The 1950 Rules have been made by the Governor In exercise of Constitutional power conferred by, Article 309 of the constitution, and the 1947 Rules have been made u/s 241 of the Government of India Act, 1935. Hence the power under Article 235 cannot be exercised in violation of Rules made under Article 309. this view finds supports from the decision of the Supreme Court in H.C. Puttuswamy''s case (supra), where the supreme Court criticized the Chief Justice of the Karnataka High Court for violating the Rules in making appointments. It also finds support from the decision of the Supreme Court In
11. In view of the above discussion, the circular dated 24.5.1996 as well as the circular dated 14.3.1995 are declared illegal and are hereby quashed. In the circumstances, I direct that the process of selection held on 24.3.1995 be completed by the District Judge, Mainpuri, in accordance with law within to months of production of a certified copy of this order before him. The petition is allowed. However, taking practical view of the matter, I direct that any appointments already made in pursuance of circular dated 24.5.1996 shall; not be invalidated, but no appointment In accordance with the said circular shall be made after the date of this judgment. The Registrar of this Court is directed to send copies of this judgment to all District Judges in U.P.
30. Before this Court, it has been informed by Sri Ashok Khare, learned Senior Advocate, that against the judgment of Mohd. Islam Siddiqi v. State of U.P. and Ors., Special Appear had been filed, and ultimately, the said special appeal had been withdrawn and this judgment still holds the field. Sri Amlt Asthelkar, who represents High Court and the District Judge, Meerut, did not dispute this position, and in spite of this, reliance was placed on the circular, which was already quashed by this Court, by contending that it has statutory force, as it was issued by the Administrative Committee, which has authority to issue circulars. Authority of the High Court under High Court Rules is not disputed that it has full authority to issue circulars and general letters for guidance of subordinate courts, but in case there are statutory Rules, holding the field, then no circular can be issued for by-passing the aforementioned Rules. Thus, Administrative Committee has no authority to issue circular in violation of the Rules In exercise of power of control vested under Article 235 of the Constitution. Such power cannot be overreached to such extent to direct violation of statutory Rules, which cover and hold the field. In respect of authority to Issue circulars, Division Bench of this Court in the case of Satish Kumar v. State of U.P. and Ors. being writ petition No. 46861 of 2005, has taken the view that executive instructions cannot override the statutory provisions, and same can be issued to fill in in case there is any lacuna or loophole. Relevant extract of the said judgment is being quoted below:
Even otherwise, it is settled legal proposition that the executive instructions cannot override the statutory provisions. A Constitution Bench of the Hon''ble Supreme Court," In
It Is hardly necessary to mention that if there Is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive powers under Article 162 of the Constitution ignore or act contrary to that rule or the Act.
Similarly, another Constitution Bench of the Hon''ble Supreme Court in
It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and Issue instructions not Inconsistent with the Rules already framed.
The law laid down above, has consistently been followed and it is settled proposition of law that an Authority cannot issue orders/office memorandum/executive Instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide
The Constitution Bench of the Hon''ble Supreme Court, in Naga People''s Movement of Human Rights v. Union of India. AIR 1998 SC 431, held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.
Thus, it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein. The orders cannot be issued In contravention of the statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law; while statutory Rules have full force of law as held by the Constitution Bench of the Hon''ble Supreme Court in
Similar view has been reiterated in
Therefore, it is evident that subordinate legislation cannot override the statutory rules nor can it curtail the content and scope of the substantive provision for or under which it has been made.
31. View to the similar effect has been expressed by Hon''ble Apex Court In the case of
32. Here, In the present case, as far as 1991 Rules are concerned, the same have been promulgated by the Governor in exercise of its legislative power and the Administrative Committee certainly cannot issue Instruction/circular for by-passing the same by directing that seniority would be governed as per 1947 Rules.
33. Much reliance has been placed that circulars issued have binding effect and in this connection reliance has been placed on the judgment of the Court in the case of
17. We do not see any Inconsistency or contradiction between the circular so issued and Section 145 of the Income Tax Act. In fact, the circular clarifies the way in which these amounts are to be treated under the accounting practice followed by the lender. The circular, therefore, cannot be treated as contrary to Section 145 of the Income Tax Act or Illegal In any form. It is meant for a uniform administration of law by all the Income Tax Authorities in a specific situation and, therefore, validly Issued u/s 119 of the Income Tax Act. As such. the circular would be binding on the Department.
34. The said judgment will not come to the rescue of the respondents in any manner, whatsoever, as here Circular Issued is totally contrary to the statutory rules and violation of law cannot be subscribed by any means.
35. The question of 1991 Rules being ipso facto applicable to members of Ministerial Staff and whether consent of High court, qua the same is required or not is being looked into. In earlier part of the judgments it has already been answered that right to control subordinate courts vest with High court, but High court has no authority to frame law qua members of Ministerial Staff of Subordinate Courts, and it is exclusive domain of the State Legislature to make law and in the absence of State Legislature failing to make law, the Governor has to step in and make law in the shape of rules, governing the Service conditions. There are no fetters on the authority of Governor, to determine and decide as to from when the said law framed by him would be enforceable. The Governor while making such rules for determination of seniority of persons appointed to the service of State Government, has clearly mentioned in Sub-rule (2) of Rule 1, that they shall come Into force at once. Once said Rules have been enforced at once, i.e., from the date of Notification dated 20.03.1991, and members of Ministerial Staff of Subordinate Courts are covered by category of persons appointed to the service under the State Government, then with effect from 20.03.1991 said rules will apply qua Ministerial Staff of Subordinate Courts, without any reservation. Consent of High Court is not at all envisaged either directly or Impliedly under the Scheme of Constitution, as such the Rules shall be Ipso facto made applicable.
36. Here, on the touchstone of the provisions quoted above, respective claim is being looked into. Petitioner was appointed as clerk on 08.09.1971, whereas respondent No. 4 was appointed as clerk on 03.07.1973. Petitioner was accorded promotion to the next higher pay scale on 16.11.1977, whereas respondent No. 4 was accorded promotion on 01.07.1979. In the seniority list, which was published on 01.06.1997, petitioner was shown senior to respondent No. 4. Petitioner had refused for being accorded promotion and his request was acceded to for not according promotion on 09.06.1994. On 01.05.1995, again seniority list was published, wherein petitioner was shown at serial No. 7 and respondent No. 4 at serial No. 10. Respondent No. 4 was accorded promotion in the scale of Rs. 1350-2200/-on 01.01.1995. Petitioner requested for placing him on the lower pay scale on 01.06.1996 and 17.09.1996, and thereafter, petitioner submitted his willingness for promotional post in the scale of Rs. 1350-2200/-. Report of the Promotion Committee was submitted on 06.12.1997 and petitioner was accorded promotional grade in the scale of Rs. 1350-2200 on 02.01.1997. On 01.02.1997, respondent No. 4 was granted promotion in the scale of Rs. 1400-2300/-. Petitioner was also accorded promotion to the next higher pay scale of Rs. 1400-233 on 01.12.1997. Since 23.12.1997 pay scale was revised and all benefits were conferred on petitioner, and one R.K. Goel was granted pay scale of Rs. 5500-9000, the pay scale of Sadar Munsarim, which was objected to by respondent No. 4 by moving representation before this Court on administrative side on 15,09.2001. Petitioner was posted as Sadar Munsarim at Family Court in the revised pay scale of Rs. 5500-9000. On 29.08.2003 on administrative side representation of respondent No. 4 was rejected. Respondent No. 4 had objected to the promotion of petitioner, claiming himself to be senior. On 04.03.2005 seniority list was published, wherein petitioner was shown at serial No. 1 and in the said list respondent No. 4 was junior to the petitioner. Thereafter, for settlement of seniority dispute administrative committee was constituted and thereafter seniority has been determined, wherein petitioner had been declared junior vis-a-vis respondent No. 4.
37. In the present case, the very premises on which administrative committee had proceeded to determine the seniority is totally wrong premises, as the seniority ought to have been determined in consonance with 1991 Rules. Undisputed position is that in the seniority list which was published on 01.06.1997, petitioner was shown at serial No. 22, whereas respondent No. 4 was shown junior to the petitioner. Same situation occurred on 01.05.1995, when again seniority list was published and petitioner was shown at serial No. 7 while respondent No. 4 at serial No. 10. Petitioner declined to accept promotion and order dated 09.06.1994 was passed. Respondent No. 4 was accorded promotion in the scale of Rs. 1350-2200/- on 01.09.1995. Petitioner has been promoted to pay scale of 8,1350-2200 on the report of the Promotion Committee on 06.12.1996. Respondent No. 4 has been further promoted in the scale of Rs. 1400-2300/-on 01.02.1997, whereas petitioner has been promoted to the pay scale of Rs. 1400-2300 on 01.12.1997, and thereafter pay scales were revised since 01.01.1996 and a unified pay scale of Rs. 4500-7000 had been provided for. This undisputed factual position, as per Rules 1991, a person senior in the feeding cadre even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. Here, it is true that respondent No. 4 was promoted to the scale of Rs. 1350-2000 on 01.09.1995, whereas petitioner was promoted to the said pay scale on 02.01.1997, but on the premises of the aforesaid Seniority rules, 1991, as the feeding cadre was one and the same and petitioner was senior in the feeding cadre, therefore, petitioner was treated to be senior. Thereafter again respondent No. 4 was accorded promotion in the pay scale of Rs. 1400-2300/- on 01.02.1997 and the petitioner was accorded said promotion on 01.12.1997 and in view of exception to Rule 6 of 1991 Rules, again it was petitioner who was to be treated as senior. Seniority list which had been prepared on 04.03.2005 contained the correct position of seniority qua petitioner and respondent No. 4, and thereafter the way and manner in which proceedings have taken place in the present case reflect that there was one point programme to non-suit the claim of petitioner and place him at serial No. 22 so as to keep him outside the zone of consideration for the post of Sadar Munsarim. Seniority list has not at all been prepared in consonance with 1991 Rules and the undisputed position, which has emerged, is that the seniority was not at all liable to be disturbed as has been sought to be done in the present case, as such the seniority, which has been determined qua petitioner, is quashed and the seniority as it existed on 04.03.2005 is restored.
38. Much emphasis has been laid on the fact that petitioner is stopped in law to claim any promotion, as once on his own the petitioner had given up his claim for promotion and the same had been acted upon by passing order dated 09.06.1994, and as such petitioner by his conduct is stopped in law from claiming any further promotion. Here, in the present case circumstances are speaking for itself, inasmuch as, seniority of petitioner has been disturbed, but at no point of time promotion which was accorded to the petitioner in the scale of Rs. 1350-200 and Rs. 1400-2300 has ever been cancelled. Once the said orders of according promotion has been kept Intact and promotions accorded to the petitioner on two occasions Has not cancelled, then necessary consequence flowing from the same has to be respected. Estoppel is rule of equality flowing out of fairness, and its application depends on the facts of the case. It is well settled that while Judging seniority, collaterally validity of appointment cannot be seen. See Dr. Asha Saxena v. S.K. Chaudhary (F.B.) 1991 (2) UPLBEC 1202. Here, in the present case, petitioner was accorded promotion on 02.01.1997 and on 01.12.1997 respectively and at no point of time said promotions were questioned, whereas, it is well settled that in case any action has to be challenged, then it should be challenged within reasonable period. While questioning the promotion of R.K. Goel, collateral challenge was made by respondent No. 4 but same was rejected. Consequently at the point of deciding seniority, the respondents, in the facts of case are estopped in questioning the validity of promotion accorded to the petitioner. Once petitioner''s promotion is intact then all consequential benefits attached to the same qua seniority has to be extended and in consonance with the provisions of 1991 Rules, petitioner being declared senior, his claim for Sadar Munsarim was liable to be considered, for which he had never declined in fact he has been working as Sadar Munsarim, in Family court, on ad hoc basis.
39. Now coming to the last question, it has been contended by respondents that the post of Sadar Munsarim was selection post and on the basis of merit-cum seniority, respondent No. 4 has been selected and as such the said selection should remain intact In this regard contents of paragraphs 14, 15 and 16 of the counter affidavit which are being quoted below, have to be looked into:
14. That in the district Judgeship the two post of pay scale of Rs. 5000-9000/ was vacant. The one post of Sadar Munsarim and other post of Sadar Munsarim, Family Court, Meerut was vacant, the selection process according to as per Rule 20(3) of Subordinate Civil Courts Mins. Establishment Rule 1947, both post treated as selection post, promotion, which shall be based on merit, with due regard to seniority.
15. That the district Judge, Meerut constituted promotion committee appointing the committee Shri Surendra Kumar Additional District Judge, Court No. 3 as a Chairman, Shri Bachchu Lal, Special Judge (SC and ST Act) and Shri R.N. Maurya, Additional Civil Judge, Senior Division, Court No. 1 as member. The sald Committee has consider the name of following candidates presently working in the grade of Rs. 4500-7000/-
1. Sri Arvind Kumar Sharma
2. Sri Omvir Sharma
3. Sri Sudhir Singh
4. Sri Sukhdev Singh Kabutra
5. Sri Vijal Shankar Bhatt
6. Sri Govind Sahal
7. Sri Bhupendra Kumar
8. Sri Subhash Chand Rajvanshi
9. Sri Suresh Chand Singhal
10.Sri Arvind Kishore Prasad Srivastava
The petitioner does not find place, in 1 to 10 senior candidates, therefore, the petitioner was not called by the administrative committee.
16. That the name of answering respondent was serial No. 2 and Shri Sukhdev Singh Kabutra was serial in No. 4, after perusal of the merit and character rolls both the name has been recommended by the said selection committee, the recommendation given by the committee in respect of the answering respondent No. 4 i.e. Omvir Sharma.
The committee is of unanimous view that Sri Omvir Sharma standing at serial No. 2 of the existing gradation list In the pay scale of Rs. 4500-7000/-, is a suitable candidate for promotion to the post of Sadar Munsari In Civil Courts Judgeship, Meerut. There Is no complaint about his work and conduct. He has rendered good service during this period. He has been rewarded by the Hon''ble High Court for his meritorious work and then different District Judges of the Judgeship Meerut have given him a number of remarks of praise. There is no complaint about his work and conduct He has also worked in different capacities in the Judgeship Meerut. He is a highly educated person and sweet spoken having cordial relations with other employees of the Judgeshlp, Meerut.
The name of answering respondent was placed at serial No. 2 found most suitable candidates and his name recommended for Sadar Munsarim, District Judgeship, Meerut on 18,08.2006 same was approved on 19.08.29006 by the District. Judge, Moerut and thereafter posting order was made by the District Judge, Moorut on 21.08.2006 and answering respondent has joined on the same date i.e. 21.08.2006. The true copy of the report of the committee dated 18.08.2006 approval of the District Judge, Meerut dated 19,.08,2006 and promotion order issued by the District Judge, Meerut dated 21.08.2006 and joining report dated 21.08.2006. is being filed herewith, and marked as Annexure No. CA-7, CA-8, CA-9 and CA-190 to this short counter affidavit respectively.
40. The averments mentioned in the afore-quoted paragraphs of the counter affidavit, which are also fortified from the record, clearly reflect that petitioner was disturbed from his status of being at serial No. 1 in the seniority list and has been sought to be placed at serial No. 22, and the ten incumbents whose names have been mentioned in paragraph 15 of the counter affidavit were considered-by the Administrative; Committee while undertaking the process of selection on the basis of merit-cum-seniority. Here, in the present case circumstances are such that in a well calculated manner petitioner has been sought to be kept outside the zone of consideration, and thereafter purported selection on the basis of merit-cum-seniority has been sought to be made. As the petitioner''s claim was liable to be adverted to on the basis of seniority and he has been kept out side the zone of consideration in well calculated manner on the basis of wrong determination of seniority, selection on the post of Sadar Munsarim of respondent No. 4, is consequently, vitiated.
41. In view of the discussions made above, writ petition succeeds and is allowed. The selection of respondent No. 4, Omvir Sharma, on the post of Sadar Munsarim is hereby quashed and set aside. Respondents are directed to make fresh selection on the post in question, in accordance with law, within two months from the date of receipt of a certified copy of this Judgment.
No order as to costs.
