(Fakkir Mohamed Ibrahim Kalifulla and S.A. Bobde, JJ.)
All India Judges Asson. & Ors. ______________________ Petitioner(s)
v.
Union of India & Ors. ___________________________ Respondent(s)
(For intervention and directions, impleadment and clarifications/ directions and office report)
IA No. 17/2011 in IA No. 244/2009 and IA Nos. 1 & 2 in IA Nos. 17/2011 in IA No. 244/2009 and IA No. 334/2014 I.A. Nos. 335, 336, 337, 338/2015 and IA No. 339 & 341/2016 in Writ Petition(Civil) No. 1022/1989, decided on April 28, 2016
The Order of the court was delivered by
Order
IA No. 335, 336 and 339
1. Impleadment is allowed.
2. Issue notice.
3. The respective Standing Counsel for the respondent-States as well as Union of India and the High Courts accept and waive formal notice.
4. Having regard to G.O. 86 dated 19th July, 2013 passed by the State of Andhra Pradesh in compliance of the order of this Court dated 8th October, 2012, counsel appearing for the various States and the High Courts are directed to get instructions for passing necessary orders in tune with the above referred to G.O.
5. List on 12th May, 2016.
IA Ns. 341
6. The application is dismissed as withdrawn to move the High Court.
I.A. NO. 17
7. List on 14.07.2016.
I.A. NO. 1 & 2 IN I.A. NO. 17
8. Issue notice.
9. List on 14.7.2016.
I.A. NOS. 337 AND 338
10. Application for impleadment is allowed.
11. Four weeks’ time is granted for filing reply affidavit, if any. List on 14th July, 2016.
I.A. NOS. 334
12. In this application, the applicant has come forward with two distinct prayers. The first prayer is for a direction to the respondents to create cadres of Civil Judge (Junior Division) and Civil Judge (Senior Division) with effect from 1.7.1996. It is pointed out to us that the Himachal Pradesh Judicial Officers (Pay, Allowances and Conditions of Service) Act, 2003 (hereinafter referred to as ‘the Act of 2003’) and Himachal Pradesh Judicial Service Rules, 2004 (hereinafter referred to as ‘the Rules of 2004’) have already come into force. Section 1(3) of the Act of 2003 states that the Act should be deemed to have come into force on 1st day of July, 1996. Section 3 of the Act of 2003 reads as under:—
“3. Salaries. – Notwithstanding anything contained in any rules made under any other law for the time being in force, regulating the pay, allowances and other conditions of service, or any order or judgment passed by any Court, the Judicial Officers in the State shall be paid the pay scales as specified in the Schedule and the rates of allowances and other conditions of service of such Officers shall be such as may be prescribed.”
13. Section 4 of the Act of 2003 further provides, as under:—
“4. (1) Subject to the provisions of section 3, the State Government may by notification in the official Gazette, make rule with retrospective effect regulating the pay, allowances and conditions of service of the Judicial Officers.”
14. The cadre of Civil Judge (Senior Division) was constituted from 20th March, 2004. As per Rule 3 of the Rules of 2004 the following categorization in the cadre of Civil Judge (Senior Division) and Civil Judge (Junior Division) has been formulated. However, sub-Rule (2) of Rule 1 of the Rules of 2004 states that the Rules shall come into force from the date of publication in the Official Gazette and the Gazette Publication was on 20th March, 2004. In the light of the said prescription made in the Rules after the categorization was made under Rule 3(3), the grievance of the applicant has now surfaced. The grievance of the applicant, as rightly pointed out by Mr. Patil, learned senior counsel, based on their prescription contained in Section 3 of the Act of 2003 read along with Section 4, even if the categorization came to be made under the Rules of 2004, the same should have been given effect rto retrospectively, in consonance with the specific provisions contained in the above referred Sections 3 and 4 of the Act of 2003. We are fully convinced of the said submission so made by the leaned senior counsel on behalf of the applicant(s).
15. In such circumstances, the prescription under sub-Rule (2) of Rule 1 of the Rules of 2004 and the Gazette Publication dated 20.3.2004 cannot supersede the specific provision contained in Section 3 and 4 of the Act of 2003, more so, when the Act of 2003 was deemed to have come into force with effect from 1st day of July, 1996.
16. In this context, it will be absolutely necessary to note what this Court has directed in paragraph 38 of the judgment rendered in All India Judges’ Association v. Union of India reported in (2002) 4 SCC 247. The said paragraph reads as under:—
“38. We are aware that it will become necessary for service and other rules to be amended so as to implement this judgment. Firstly, with regard to the pay scales, the Shetty Commission has approved the pay scales with effect from 1-1-1996 but has directed the same to be paid with effect from 1-7-1996. The pay scales as so approved by us are with effect from 1-7-1996. However, it will take some time for the States to make necessary financial arrangements for the implementation of the revised pay scales. The judicial officers shall be paid the salary in the revised pay scales as approved by this Court with effect from 1.7-2002. The arrears of salary between 1-7-1996 to 30-6-2002, will either be paid in cash or the States may make the payment by crediting the same in the provident fund account of the respective judicial officers. Furthermore, the payment by credit or otherwise should be spread over between the years 1-7-1996 to 30-6-2002 so as to minimize the income tax liability which may be payable thereon. In calculating the arrears, the Government will, of course, take into account the interim relief which had been granted and drawn by the judicial officers. The amount to be credited in the provident fund account would also be after deducting the income tax payable.”
17. Therefore, even applying the same the applicant is entitled for the direction asked for.
18. In the said circumstances, the first prayer of the petitioner merits acceptance and the same is granted and the respondents are directed to create cadre of Civil Judge (Junior Division) and Civil Judge (Senior Division), as prescribed under the Rules of 2004, and give effect to the same on and from 1.7.1996 with all consequential benefits accrued to those officers who hold the respective cadre post as from that day.
19. The second prayer of the petitioner is for direction to the respondents to follow “post based roster” in appointments to the cadre of District Judges with effect from 31.3.2003. The said prayer is again based on the statement of law as propounded in paragraph 49 of the above referred to decision rendered in All India Judges’ Association (Supra). While stating as to in what manner the 40 point roster is to be determined, this Court directed that appropriate Rules and methods should be adopted by the High Courts and approved by the States wherever necessary by 31.3.2003. When this application was moved, initially on behalf of the High Court, learned Standing Counsel took notice and submitted that in the High Court a Committee has been constituted which is deliberating on this issue and, therefore, he will be able to report to this Court in a week’s time. It is now pointed out by Mr. Patil, learned senior counsel for the applicant(s) that the 34 point roster has been drawn by the High Court based on the cadre strength providing for different points applicable to the promotees by way of limited competitive examination as well as for direct recruits in the entry level District/Additional District and Sessions Judge. It is also brought to our notice that appropriate Rules have also been drawn by the High Court which has been notified by the State Government on 16th March, 2004. The Rules have been captioned as “Himachal Pradesh Judicial Service Rules, 2004”. Rule 13, which specifies as to how seniority list is to be worked out is to the following effect:—
“RULE-13
Seniority- (1) Where Officers are recruited to a cadre by promotion and direct recruitment seniority shall be regulated by the roster maintained for such recruitment. Officer appointed against higher point of roster shall rank senior to the Officers appointed against a lower point:
Provided that no person appointed to a cadre by direct recruitment shall, for the purpose of fixation of his seniority claim any particular place in seniority unconnected with the date of his actual appointment.
(2) Where more than one Officers are promoted to cadre at the same time inter-se seniority of persons so promoted shall be determined by their inter-se seniority in the lower cadre.
(3) Where direct recruitment is made to a cadre, the inter-se seniority of person so recruited shall be in the order in which their names are arranged in the select list.
(4) Every year in the month of January seniority list of Officers in all cadres, shall be prepared and published by the High Court and the lists so published shall be issued for the purpose of making promotions to the next higher cadres.”
20. As far as the method of recruitment for the purpose of Entry Level District Judge is concerned, Explanation II, reads as under:—
“Appointment to the cadre of the District Judges from categories (a), (b) and (c) shall be in accordance with 40 point roster to be maintained by the High Court in this behalf.”
21. Inasmuch as, 34 point roster having been drawn by the High Court and the relevant rules relating to seniority, namely, Rule-13 has also come into effect, the only other question to be decided is as to how it should be implemented as from 31.3.2003, as directed by us in the judgment referred to above. While drawing the 34 point roster, the High Court has mentioned that the same would be followed after 31.3.2010.
22. Having regard to the specific direction of this Court in the judgment referred to above in paragraph 23, we are of the view that it is required to ascertain as to how the 34 point roster for the three different channel are to be worked out. The High Court is, therefore, directed to apply Rule-13 which prescribes as to how seniority to be drawn by applying the said Rules, ascertain the roster point for the three different categories of promotees and direct recruits and carry out the said exercise from 31.3.2003.
23. We, however, direct the High Court to place the said Report after carrying out the said exercise, to pass further orders. We only direct the High Court to carry out the said exercise within a period of two months.
24. List on 14.7.2016.
25. We make it clear and reiterate that we only want the outcome of such exercise to be placed before this Court before passing further orders as to its implementation.
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