Mohd.Iqbal Sherkhan vs State of Jammu and Kashmir

T.S. Doabia, J.—The controversy involved in these petitions relates to the selection and appointment to the posts of District and Sessions

Judge borne on the cadre of the service constituted under the rules promulgated vide SRO162 of 1983 known as ""The Jammu and Kashmir

Higher Judicial Service Rules, 1983"" (hereinafter referred to as ""Rules 1983""). The recruitment to the cadre under the aforesaid rules is from two

sources viz. (i) 75% by promotion; and (ii) 25% by direct recruitment.

Respondent No. 2 (Registrar General, J&K High Court), with a view to select and appoint candidates towards the direct quota, issued

notification No. 16 of 1997 dated 5.9.1997, in partial modification of notification No. 50 of 1995, inviting applications from desirous candidates

for seeking consideration to the posts of District and Sessions Judge. Four posts were advertised through this notification with the break up of two

for general category and one each for reserved categories of Scheduled Caste and Resident of Backward Area (ROBA). The High Court

conducted the written examination and declared the list of successful candidates who had qualified according to the prescribed standard. These

candidates were accordingly called for viva voce test/interview on 27.2.1999 which was conducted by a committee constituted for the purpose.

M/s. S.C. Mansotra, Baldev Raj, Mohan Lal Bhagat, Madan Lal, Ajit Singh and Mohd. Iqbal Sherkhhan, petitioners are the practising

advocates. Mr. Mansotra has challenged the notification No. 16 of 1997 dated 5.9.1997 to the extent it reserved two posts for reserved

categories. He also sought to quash subclause (iii)(c) of Clause (b) of Rule 9 of SRO126 of 1994 whereby the post of District and Sessions Judge

has been kept alongwith such equivalent post of other services, under rule 9 which provides provision for identified creamy layer posts. He further

seeks to quash SRO157 of 1995 dated 11.7.1995 whereby a provision to rule 4 has been added restricting the scope of direct recruitment to the

posts of District and Sessions Judges from the Bar not to extend 25 per cent of the permanent sanctioned strength of the service, contrary to rule

11 of the Rules, 1983.

Petitioners Mohan Lal Bhagat, Baldev Raj and Madan Lal, belong to the reserved category of Scheduled Caste and have challenged notification

No. DIP/J2708 issued by respondent No. 2 (Registrar General) on the ground that the candidates belonging to the Scheduled Caste category

have not been included in the list of the candidates for viva voce as they were eligible and deserving candidates.

Petitioners Ajit Singh and Isher Dass Padiar have appeared in the Higher Judicial Service Examination and have not been shown in the list of

successful candidates called for viva voce. They have made a representation to the High Court for appointing candidates for Scheduled Caste

category. This representation has been treated as writ petition (OWP No. 178/99). Similarly, representation of All India Depressed Classes

Federation (Regd.) through its President, Mr. S.N. Dogra, Dogra Bhawan, Janipur, Jammu, has been received by the High Court for seeking

selection and appointment of SC/ST candidates in higher judicial service pursuant to the examination conducted by the High Court. This

representation has been treated as writ petition (OWP No. 259/99).

Petitioner Mohd. Iqbal Sherkhan, belonging to the Scheduled Tribe category seeks similar relief of selection and appointment to the post against

the reserved category of ST. In fact, no such post under this category has been advertised.

Rules 1983 have been framed in exercise of the power conferred by Section 124 read with section 109 of the Constitution of Jammu and

Kashmir (corresponding to Articles 309 and 233 respectively of the Constitution of India). The strength of the service initially consisted of 14 posts

of District and Sessions Judges and 7 posts of Additional District and Sessions Judges. Out of these 21 posts, 1 post of District and Sessions

Judge and 6 posts of Additional District and Sessions Judges, were temporary. The process of selection has been challenged by the petitioners on

the ground that Rules 4 to 9 and 11 of the Rules 1983, have not been adhered to. These rules undoubtedly deal with the process of selection and

are reproduced hereunder :

Method of recruitment. (1) Recruitment to the service shall be made :

(a) 75% by promotion;

(b) 25% by direct recruitment.

(2) In case suitable candidates are not available for direct recruitment, posts reserved for the category shall be filled up by promotion :

Provided that the number of posts for direct recruitment from the Bar at no given time shall exceed 25 per cent of the permanent strength of the

service.

(1) A person shall be eligible for direct recruitment provided he

(i) is a permanent resident of the State;

(ii) must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January next following the year in

which the notice inviting applications is published;

(iii) has atleast 7 years continuous practice at Bar as an Advocate or pleader and is recommended by the High Court after it has held examination

followed by an interview as may be prescribed by it, for such appointment;

(iv) will produce a certificate of good character from the District and Sessions Judge of the District in which he has been practising and in the case

of candidates normally practising in the High Court, from the Registrar of the High Court and also from the two respectable persons not related to

the candidate who are well acquainted with him in private life and are unconnected with his University, College or School;

Note : Persons dismissed by the Central Government or by a State Government or by a Corporation owned or controlled by the Union or a State

Government shall not be eligible for recruitment.

(v) must possess sound knowledge of writing and reading Urdu.

(2) Every person who qualifies in the written examination shall be examined by a Medical Board constituted by the Director, Health Services of the

respective Divisions and shall be called for interview only after the Board certifies that the candidate possesses sound physical and mental health.

(Rules 4 and 5 (supra) came to the amended by SRO157 of 1995 dated 11.7.1995 whereby proviso to Rule 4 was added and subrule (1) of Rule

5 substituted).

Direct Recruitment. Applications for direct recruitment to the service shall be invited by the Court by publishing a notice to that effect in the

leading newspaper of the State and shall be made in the form prescribed from time to time to be obtained from the Registrar of the Court on

payment of the prescribed fee.

(a) The application shall be submitted to the Court by the candidate through the Registrar of the High Court. The application shall be accompanied

by certificates of age, academic qualifications, standing as a legal practitioner and such other documents as may be acquired to be furnished.

Selection Committee. (1) There shall be a Selection Committee for each recruitment to the service consisting of Chief Justice and one or more

Judges to be nominated by him.

(2) No proceeding of the Selection Committee shall be invalid merely by reason of a vacancy occurring in it, or by a member or members being

not present at one or more of its meetings, provided that a majority of the members of the Committee have been present at each meeting.

Procedure of selection. (1) The Selection Committee referred to in rule 7 shall scrutinize the applications received and may thereafter hold

examination, as it may consider necessary for judging the suitability of the candidates. The Committee may call for interview such of the applicants

who in its opinion have qualified for interview after scrutiny and examination.

(2) The marks to be allotted for examination and interview shall be determined by the Selection Committee.

(3) In assessing the merit of a candidate the Selection Committee shall have due regard to his professional ability, personality and health.

(4) The Selection Committee shall prepare a preliminary list of candidates in order of merit who in its opinion, are suitable for appointment to the

service and place the same for consideration before the Court.

(5) The Court shall examine the recommendations of the Selection Committee and, having regard to the number of direct recruits to be taken,

prepare a final list of candidates in order of merit and recommend the names to the Governor.

Appointments. Subject to the provisions of rule 11 the Governor shall on receipt from the Court of the list mentioned in rule 8 make

appointments, to the service on the occurrence of substantive vacancies by taking candidates from the list in the order in which they stand in the list.

xx xx xx xx xx

xx xx xx xx xx

Appointment to be on rotational system. (1) Appointments to the service shall be made on the rotational system, the first three vacancies shall

be filled by promotion of the members of the Judicial Service and the fourth vacancy shall be filled from the list of direct recruits and so on.

(2) A roster shall be maintained as a running account from year to year and will start at the commencement of a year at the point following the point

which was utilized at the end of the previous year.

Respondent No. 2 has filed a common reply to the petitions stating therein that there was no deviation from the procedure prescribed by the rules.

The sanctioned strength of the service at the time of issuance of notification No. 16 of 1997 was 39. Against it six posts stood already filled up by

direct recruitment. The question of providing reservation for direct recruitment in the service was duly considered and approved by the Full Court

and Hon'ble the Chief Justice was authorised to deal with the recruitment pursuant to notification No. 16/97. The process of selection for filling up

the posts has been initiated and completed in part, strictly in accordance with the relevant rules. Other respondents who have filed replies also seek

dismissal of the petitions as the grounds taken therein by the petitioners are unsustainable.

We have heard learned Counsel for the parties and perused the record.

Out of the pleadings of the parties, rule position and the submissions made by the learned Counsel at the bar, following points emerge for

consideration :

(1) Whether the post of District and Sessions Judge should not be mentioned in Rule 9 of SRO126 of 1994 ?

(2) Whether selection has not been made in accordance with Rules 4 to 9 and 11 of the Rules 1983 ?

(3) Whether the posts reserved to be filled up by persons belonging to Scheduled Caste and Backward Areas, is in consonance with law and

whether the Constitution of the State/India restricts the applicability of reservation to the service created under Rules 1983 ?

(4) Whether SRO157 restricting the recruitment to the service from the Board, to permanent vacancies, is sustainable ?

The argument of Mr. Mansotra, in so far as the post of District and Sessions Judge, finds place in rule 9(B)(iii)(c) of SRO126 of 1994, is that

the post of District and Sessions Judge being the constitutional post having its sources from section 109 of the Constitution of Jammu and Kashmir

and being a post not borne on the service of the State visavis the other services, as held by the Supreme Court in case All India Judges'

Association v. Union of India, 1993(4) SCT 248 (SC) : AIR 1993 SC 2493 that a judicial service cannot be classified or placed even alongwith

the highest service of the Administration/Bureaucratic service of the country the mention of the post in this rule is unconstitutional.

By virtue of SRO126 of 1994 dated 28.6.1994, State of Jammu and Kashmir has promulgated rules called as ""the Jammu and Kashmir

Reservation Rules, 1994"" providing 50 per cent reservation to different classes for citizens of unprivileged sections of the society. Rule 9 of these

rules deals with the holders of the posts including the post of District and Sessions Judge, classified for the purposes of creamy layer in terms of the

Supreme Court judgment in Indira Sawhney's case, 1992 Supp.(3) SCC 217. It reads as under :

Notwithstanding anything contained in these rules, the persons and their children as specified below shall be excluded from the category of

socially and educationally backward classes :

(A) xx xx xx xx

(B) Service class :

(i) xx xx xx xx

(ii) xx xx xx xx

(iii) Officers of the State Government enjoying the status and cadre of

(a) xx xx xx xx

(b) xx xx xx xx

(c) Officers of the State Government, High Court, Members of the Subordinate Judiciary, including District and Sessions Judges, enjoying gazetted

rank whether belonging to technical or other service/departments having annual income from all sources rupees one lakh or above per annum.

xx xx xx xx xx xx

Mr. Mansotra could not make out that the post of District and Sessions Judge is a constitutional post. The officers of the State Government and

other constitutional functionaries, having annual income above rupees three lakhs, from all sources, form a creamy layer and are not entitled to the

benefit of reservation. The holders of these posts have been identified on the basis of report of the ""Gupta Commission"" set up by the Government

for identification of the persons forming creamy lawyer. Thereafter, the mention of the post in Rule 9 of the Rules 1994, does not violate any

provision of law. This argument of Mr. Mansotra having no force is rejected.

We now proceed to deal with the argument raised at the bar that selection has not been made in accordance with the procedure prescribed

and contained in Rules 4 to 9 of the Rules 1983.

The argument of learned Counsel for the petitioners is that subrule (2) of Rule 5 has not been complied with which prescribed that every

person who qualifies in the written test shall be examined by a Medical Board constituted by the Director of Health Services of the respective

divisions and called for interview only after the Board certifies that the candidate possessed sound physical and mental health. Calling of the

candidates for viva voce test is against the mandate of rule 5(a) of Rules 1983. It is not disputed by the petitioner that a candidate is to be

appointed only after the Medical Board declares him fit for the purposes. If a candidate is subjected to the medical test after conducting his

interview, it will not materially change the object sought to be achieved. No doubt, rule provides that before a candidate is subjected to viva vice

test, he should have been certified by the Medical Board that he possessed sound physical and mental health. In that event those candidates who

will not be ultimately selected and offered appointment, are required to be put to medical examination before viva voce test. A candidate, before

he is finally selected and offered appointment, has to be certified by Medical Board with regard to his sound physical and mental health. Medical

examination of the candidates either before calling them for interview or after the interview, does not materially change the object. This rule,

therefore, is directory in nature. The mandatory requirement of the rule is that the candidate ultimately selected for appointment should be certified

by the Medical Board of having possessed sound physical and mental health. Therefore, such deviation of the procedural rule has neither altered

nor affected the process of selection and such a breach of rule does not render the selection process invalid.

Another limb of the argument of learned Counsel for the petitioners is that the process of selection suffers the fraction (infraction ?) of

mandatory rule as no Selection Committee has been nominated by the Chief Justice as mandated by rule 7 which envisages that there shall be a

Selection Committee for each recruitment to the service consisting of the Chief Justice and one or more Judges to be nominated by him. The

Selection Committee in terms of rule 8 is to scrutinize the applications received and may thereafter hold examination as it may consider necessary

for judging the suitability of the candidates and further the Committee may call for interview such of the candidates who, in its opinion, have

qualified for the interview after scrutiny of examination. According to learned Counsel for the petitioners this Committee has not been constituted.

What has been stated at the bar by learned Counsel representing respondent No. 2 (Registrar General) is, that the Chief Justice has been

authorised by the Full Court to deal with the recruitment and in pursuance to that authorisation, the applications have been examined and the

written examination conducted. The Chief Justice has constituted the Committee who has conducted the interview of the candidates who have

passed the written test held by the High Court. The breach of rule pressed by the learned Counsel, is only that it was the committee who was to

scrutiny the applications and to provide guidelines/criteria for selection. It is not denied that the criteria for qualifying the examination prescribing the

percentage of minimum marks to be secured by a candidate for passing the written examination, has been approved by the Full Court which is

wider in its amplifications than that of the Selection Committee. The applications have been scrutinized deriving ?) driving the authority from Full

Court authorisation/the Chief Justice for dealing with the selection. The procedure adopted for selection appears to be in consonance with the rules

as minimum qualifying marks to be secured by a candidate, have been approved and fixed by the Full Court and the candidates called for interview

are only those who have qualified according to the said prescribed criteria. The Selection Committee constituted by the Chief Justice has

interviewed the candidates. The process of selection has rather broadened the base upto the Full Court which includes the members of the

Selection Committee. It is nobody's case that any ineligible candidate has been permitted to sit in the written examination or any candidate has

been summoned for viva voce who has not qualified the written examination. The candidates have been subjected to interview for the purposes of

viva voce by the Committee constituted by the Chief Justice. It does not affect or render the selection invalid if the applications are not scrutinized

by a Committee consisting of the Chief Justice and one or more Judges nominated by him. However, for supervising and holding of the examination

at respective divisions, Judges of the High Court were made incharge of the examination counter. The scrutiny of applications has been made,

criteria for qualifying the written examination has been fixed by the Full Court, the examination has been conducted under the supervision of the

Judges of the High Court and the interview of the candidates conducted by a Committee nominated by the Chief Justice for the purpose. It all

shows that the infraction of the rule traced by the learned Counsel that it has not been done by a Selection Committee, appears to be not justified.

The next argument of Mr. Mansotra is that two posts advertised, to be filled from the candidates belonging to the SC and ROBA categories, is

without the authority of law. In order to make out his point he has submitted that the provisions of SRO126 of 1994 deal with the services of the

State. The Higher Judicial Service is not a service of the State in terms of the All India Judges' Association case (supra), therefore, the High Court

was not justified in filling up the post by candidates belonging to reserved categories. His further submission is that he is not opposed to the

reservation policy in its application to the higher judicial service but there is no proper notification either by the High Court or by the Governor

providing reservation in this service. The policy to provide reservation to the weaker sections of the society in terms of Articles 14(4) and 16(4) of

the Constitution of India, is a national policy envisaged in the Constitution. The State of Jammu and Kashmir, as a matter of policy pursuant to the

judgment of the trial Court in Indira Sawhney's case (supra), has provided reservation in the services of the State to the extent of 50 per cent to the

under privileged citizens of the State by identifying such classes of citizens by promulgation of SRO126 of 1994. The High Court has adopted the

policy of reservation for making it applicable to this service also by a Full Court resolution and pursuant thereto notification No. 16 of 1997

modifying the earlier notification, has been issued. His further argument is that the act of the High Court has not been certified by the Governor

under his constitutional power, therefore, the application of the reservation policy is bad. He has admitted that the Higher Judicial Service is not the

service like other services of the State and has been taken out of the purview of the Public Service Commission. This itself is an answer to the

submission of Mr. Mansotra that the High Court regulates this service and the appointments are only made by the Governor on its

recommendation. The High Court has adopted the policy of the Government to provide reservation to this service also. It is not in controversy that

the reservation can be made applicable only by a legislative Act notifying or amending the rules. It can be made applicable by executive action also.

The High Court by its resolution has made applicable the reservation in the service which has not been opposed to by Mr. Mansotra in principle.

His argument that the Government has not modified the rules, and, therefore, the reservation cannot be made applicable, is without substance. It is

not necessary that the rules governing the service should always contain a stipulation of providing reservation to the service, the reservation cannot

be made applicable otherwise also. SRO126 of 1994 is applicable to every service of the State and the High Court has also made it applicable to

this service.

The argument of the learned Counsel is that SRO157 of 1995 to the extent of adding proviso to Rule 4, is unconstitutional and contrary to the

scheme contained in Rule 11 which envisages the appointment to the service from two sources on rotational basis and that every fourth vacancy

shall be filled up from the list of direct recruits. According to him, if direct recruitment of 25% quota is to be made against the permanent vacancies,

the rotational system cannot be maintained. To elaborate it, the submission is that the allocation of 75% and 25% also cannot be achieved. If the

proviso is adhered to, the quota of the promotees is bound to exceed 75% of their share. Their plea is that the original rule provided the quota for

two sources to the service without pleading any restriction. The limitation and restriction provided by the proviso is discriminatory, unjustified and

arbitrary. In support of their contention, reliance has been placed upon the judgment of the Apex Court pronounced in case O.P. Garg v. State of

Uttar Pradesh, 1991(2) SCT 507 (SC) : 1991(2) SCR 657 wherein the Supreme Court upon examination of similar proposition and interpretation

of the similar provision of the Uttar Pradesh Higher Judicial Service Rules, 1975 where the category was constituted on the permanent and

temporary vacancies, quashed the discriminatory rule and directed the respondents therein to make appointments to the service on the occurrence

of the substantive vacancies which means permanent as well as temporary posts.

Learned counsel for the petitioners have submitted that at present sanctioned strength of the service is of 52 posts of District and Sessions

Judges and Additional District and Sessions Judges which has been disputed by the learned Counsel for the respondents submitting that some of

the posts like the Presiding Officers of the Tribunals and other forums, have been created by the Government to be manned only by a District and

Sessions Judge, attaching certain eligibility qualifications to hold that post but these posts are not on the cadre of the service and, therefore, cannot

be included in the service. The Judicial Officers are being sent on deputation to those posts. This argument of Mr. J.P. Singh, learned Counsel that

the posts held by the District and Sessions Judges, outside the cadre cannot be treated to be a part of the cadre of the service, cannot be brushed

aside. Rules themselves have created a cadre consisting of District and Sessions Judges and Additional District and Sessions Judges. The posts

outside the cadre cannot be said to be the posts borne on the cadre of the service. The direct recruits can raise their claim only against the

sanctioned strength of service in terms of Rule 4(2). Learned counsel further submitted that proviso to Rule 4(2) is for a specific purpose. The

purpose as per the counsel is to avoid a situation which may result when there is reduction in the cadre strength, that is, when temporary posts are

abolished. It is submitted that whereas promotees working on higher posts can be reverted back to lower hierarchy of service, this would not be

the position in the case of direct recruits. They would have to go back to the profession which may not be a healthy situation. This may again

introduce an atmosphere of uncertainty which may not be conducive to the existence of a strong vibrant judicial system. It is to avoid this situation

that the proviso, as per counsel appearing for the respondents, has been added.

Learned counsel for the petitioners have placed explicit reliance on the decision given by the Supreme Court in case of O.P. Garg (supra)

which decision was noticed in a later decision reported as Ram Kishore Gupta v. State of U.P. and others, 1999(2) SCT 618 (SC) : J.T. 1999(2)

S.C. 385 . What was observed in Ram Kishore's case is being quoted below :

The High Court in the judgment under appeal took the view that the provision of the relevant rules requires that the direct recruits should not

exceed 15% of the total permanent strength of the service. On that basis the matter was disposed of by directing not to appoint more than six

persons amongst the candidates selected for direct recruitment inasmuch as there are only 311 permanent posts and, therefore, direct recruits

could not got more than 47. The High Court in those cases was concerned with the interpretation of the Uttar Pradesh Higher Judicial Service

Rules, 1975. The effect of these rules was considered by a three Judge Bench of this Court in O.P. Garg and others v. State of U.P. and others,

JT 1991(2) SC 359. This court, after examination of the relevant rules, took the view as follows :

We allow the writ petitions and the civil miscellaneous petitions, quash the final senority list dated August 25, 1988 and direct the High Court to

prepare, circulate, invite objections and finalise the seniority list of the service in the light of the findings given and the observations made by us in

this judgment. We reiterate our findings hereunder :

(1) All the 236 promotee officers working against 236 posts (229 permanent plus 7 temporary) as Additional District and Sessions Judges on

April 5, 1975 shall be deemed to be existing members of the service as constituted under the 1975 Rules and they shall en bloc rank senior to

other offices appointed to the service thereafter with their quota under the 1975 Rules.

(2) We strike down first proviso to Rule 26(1)(a) of the 1975 Rules and direct that the continuous officiation/service by a promotee appointed

under the rules shall be counted for determining his seniority from the date when a substantive vacancy in permanent or temporary post is made

available in his quota under the 1975 Rules.

(3) We also strike down Rules 22(3) and 22(4) of the 1975 Rules but the appointments already made under these rules shall not be invalidated.

We further direct that while selecting candidates under Rule 18 of the said rules the committee shall prepare a merit of candidates twice the number

of vacancies and the said list shall remain operative till the next recruitment. We further direct that the appointments under Rules 22(1) and 22(2) of

the 1975 Rules shall be made to permanent as well as to the temporary posts from all the three sources in accordance with the quota provided

under the said rules.'

This court took the view that both temporary and permanent service will be taken note of in determining the quota available for direct recruits. It

was also made clear that the service consists of permanent as well as temporary posts and Rule 22 of the Rules required to make appointment to

service on the occurrence of substantive and it would not mean that it would exclude temporary vacancies. The scheme of the rules indicates that

there are permanent and temporary posts which are created to meet the contingencies and they may, no doubt, be made permanent and, therefore,

it cannot be doubted that when appointment under Rule 22 is contemplated substantive vacancies would include both temporary or permanent but

the vacancy must be in the cadre. Therefore, the decision taken by the High Court cannot be sustained at all."" (Para 2)

If the law laid down in the aforementioned judgment is taken note of then it becomes apparent that for determining the respective quota both

permanent and temporary posts are required to be taken note of and to this extent the learned Counsel for the petitioners are right in their

submission that the quota should be determined accordingly. It is this aspect of the matter which is being highlighted and it is urged that the bar

created in the proviso that only permanent strength would be taken into consideration, is bad.

This argument be examined. One option is to strike down the proviso which restricts the quota of 25 per cent to permanent strength of service.

There is yet another option. This is to adopt an approach which prevents the continuance of a temporary and uncertain situation to continue in the

judicial service.

There can be no dispute with the proposition that an independent judiciary is the backbone of a democratic system. This concept of

independence of judiciary has many dimensions. It is not limited to fearlessness of other power centres; it has a wider concept which takes within

itself the concept of independent from execute pressure and influences. The existence of a temporary cadre negates this concept. A person

appointed on temporary basis would be under a constant fear of reversion or ouster from service. This would definitely destroy the concept of

independence of judiciary. Under the American Constitution, Art. III, S.1, Judges of the Supreme Court and as of the inferior Federal Courts are

guaranteed a tenure of office during good behaviour. Under the Indian Constitution also, there are provisions ensuring continuity of office for

Judges of the Supreme Court and guaranteeing that they shall not be removed from office before their age of retirement, except by an order of the

President passed after an address by each House of the Parliament supported by a majority of the total membership of that House and by a

majority of not less than twothirds of the members of that House present and voting, has been presented to the President in the same session, for

such removal on the ground of misbehaviour or incapacity [Art. 124(4)]. There is a similar provision with regard to Judges of High Court (See Art.

217(1)(b)). These constitutional guarantees to Judges of the highest courts in the land are based on considerations of public interest and are not

dictated by any special consideration for Judges as individuals. In somewhat different context the Supreme Court of America in Evans v. Gore,

1920(253) US 245(253) : 62 Law Ed 887(892) highlighted the concept of independence of judiciary. The Supreme Court was dealing with the

concept of prohibition against the diminution of emoluments of Federal Judges contained in Art. III, S.1. of the American Constitution. What was

observed by the Supreme Court of America is being reproduced below :

These considerations make it very plain, as we think, that the primary purpose of the prohibition against diminution was not to benefit the Judges,

but like the clause in respect of tenure, to attract good and competent men to the Bench, and to promote that independence of action and judgment

which is essential to the maintenance of the guarantees, limitations, and pervading principles of the Constitution, and to the administration of justice

without respect to persons, and with equal concern for the poor and the rich.

Alexander Hamilton in the Federalist No. 79 quoted in Evans v. Gore (supra), observed as follows :

Next to permanency in office, nothing can contribute more to the independence of the Judge than a fixed provision for their support ...............In

the general course of human nature, a power over a man's subsistence amounts to a power over his will.

Justice Story observed in his commentary on the Constitution of America :

Without this provision (as to an undiminishable compensation), the other, as to the tenure of office, would have been utterly nugatory, and indeed

a mere mockery.

What has been said in the aforementioned judicial precedents with regard to the prohibition qua diminution of emoluments can well be applied

to the present case also. Any attempt to create a temporary cadre would have the same effect on the functioning of the judiciary as diminution in

emoluments is likely to result. As a matter of fact, when Section 109 of the Constitution of Jammu and Kashmir is perused, it becomes apparent

that it does not talk of any temporary cadre. In this regard it is pertinent to refer to Article 224 of the Constitution of India. It specifically provides

for appointment of Additional Judges to various High Courts and even in that case their tenure is fixed. In the absence of provision authorising

creation of a temporary cadre, it can safely be observed that the Constitution of Jammu and Kashmir contemplates only one cadre. This cadre is to

be created in terms of Section 109 of the State Constitution. Therefore, to say that 25% posts would be restricted only to permanent strength, is

an argument which cannot be accepted. In view of the above, similar direction as was given by the Supreme Court in D.P. Gupta's case (supra) is

being given in this case also. The cadre of posts in question would now consist of all the posts which are borne on permanent and on temporary

strength. This would be in line with the direction as given by the Supreme Court in O.P. Garg's case (supra). This would also take care of the

argument raised by learned Counsel for petitioners.

Another question regarding determination of seniority between the direct recruits and the promotees, is also required to be dealt with. This is

because some observations have been made by the Supreme Court visavis this matter also in the two decisions referred to above. Before

elaborating this aspect the Rule which deals with the seniority may also be noticed at this stage. This is Rule 17 and it reads as under:

Seniority. (1) As between direct recruits their inter se seniority shall be determined by their placement in the select list prepared on the basis of

the results of the written examination and the interview.

(2) As between direct recruits and promotees, seniority shall be determined with reference to the date of their appointment in the cadre, provided

the promotee and the direct recruit are appointed on the same date, the promotee shall rank senior to the direct recruit.

So far as the question of seniority is concerned, some principles have been laid down by a Constitution Bench of the Supreme Court in case Direct

Recruits ClassII Engineering Officers' Association v. State of Maharashtra, AIR 1990 S.C. 1607. The summing up of the judgment is found in

para 44 of the judgment. The principles which were laid down are as under :

To sum up, we hold that :

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according

to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and

made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly

till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one sources, it is permissible to fix the ratio for recruitment from the different sources, and if

rules are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation.

In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible

that the quota rule had broken down.

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following

the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source

inducted in the service at a later date.

(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such

relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the

executive instruction has ceased to remain operative.

(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the

single cadre of Deputy Engineers.

(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than

scrutinised for finding out any possible error. It is not in the interest of service to unsettle a settled position.

With respect to Writ Petition No. 1327 of 1982, we further hold :

(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata if the same

has been earlier decided by a competent court by a judgment which became final.

xx xx xx xx

This judgment has been referred to in various other later decisions. Without burdening this judgment by making reference to other judgments, it

would be apt to notice that where rule exists on a particular subject, then the seniority has primarily to be determined in terms of that rule. It is only

in the absence of rules, guidance can be had from the various principles enunciated in the judgments noticed above. The principles so laid down

could in a way supplement the Rules in question. So far as the rules, dealing with the fixation of seniority are concerned, Rule 17 is clear and

categoric. As between the direct recruits their inter se seniority is to be determined by their placement in the select list prepared on the basis of the

result of written examination and interview. This is so provided in Rule 17(1). There can be no dispute with this proposition. Again, Rule 17(2) is

categoric. It deals with the method and manner in which the direct recruits and promotees are to be fitted. As between the direct recruits and

promotees, the seniority is to be determined with reference to the dates of their appointment provided that where promotees and direct recruits

have been appointed on the same date, the promotee is to rank senior to the direct recruit. It is only where some area is not covered by the Rules,

guidance can be had from the Constitution Bench judgment in Direct Recruits case (supra). The principle at Sl. No. `A' that it is the date of

appointment and not the confirmation, would be helpful in this regard. The other principle at Sl. No. `B' i.e., if the initial appointment is not made by

following the procedure laid down but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the

Rules, the period of officiating service has also to be counted, can also be helpful. Even where quota a rule is not adhered to and the appointments

are made from one source in excess of the quota but has been done after following due procedure, then the appointee is not to be pushed below

the appointee from the other source inducted in the service at a later date. This can be spelt out from principle No. `E'. Where the Rules permit the

authorities to relax the provisions relating to the quota, ordinarily a presumption is to be raised that there was such relaxation and there could be a

deviation from the quota rule also. This can be spelt out from principle No. `G'. Therefore, in the present case, the seniority shall be governed by

the date of appointment in the cadre. This is the plain meaning of Rule 17. If a promotee has already been appointed and even if that has been

done in breach of the quota, then it would be presumed that there was requisite relaxation given in this regard. As a matter of fact, a perusal of

Rule 4(2) makes it apparent that in case suitable candidates are not available for direct recruitment, the posts reserved for that category can be

filled up by promotion. With a view to safeguard the rights of the direct recruits, a direction can be given that the respondents shall determine the

quota which is available to them and would take steps to fill the same. However, in the matter of determining seniority, the determination would

depend upon Rule 17. Date of appointment would govern the subject.

For the aforesaid reasons, writ petitions stand disposed of accordingly.