R. Mohan Doss v. A.Arumugasamy12. Selvi K.B.K.Vasuki13. P.Devadass14. R.Karuppiah15. A.S.Kannan16.M.Mohamed Essath Ali17. A.Selvadoss18. S.F.Akbar19. M.Chinnapandi20. N.Retnaraj21

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 27.08.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.P. NO. 32025 OF 2007R. Mohan Doss.. Petitioner- Vs -1. High Court of Judicature at Madras rep. by its Registrar General Chennai 600 104.2. Deleted3. Deleted4. Selvi R.Mala5. P.Ramakrishnan6. Tmt. Aruna Jagadeesan7. G.M.Akbar Ali8. T.Mathivanan9. A.Ratnavelu10. A.J.Murugananthan11. A.Arumugasamy12. Selvi K.B.K.Vasuki13. P.Devadass14. R.Karuppiah15. A.S.Kannan16.M.Mohamed Essath Ali17. A.Selvadoss18. S.F.Akbar19. M.Chinnapandi20. N.Retnaraj21. M.Vijayaraghavan22. K.Ramakrishnan.. Respondents (RR-2 & 3 deleted vide order of the Court dated27.06.2008)Writ Petition filed under Article 226 of the constitution ofIndia for the issuance of a writ of certiorarified mandamuscalling for the records of the 1st respondent in ROC No.13712 of2003 and B1 dated 20th Sept., 2005, quash the same andconsequently direct the 1st respondent to fix the seniority of thepetitioner within the substantive vacancies of 60 District Judgesas on 3.12.1999 by applying the ratio laid down in the schedule https://hcservices.ecourts.gov.in/hcservices/ to Rule 5 of the Rules and above respondents 2 to 22 as statedtherein.For Petitioner: Mr. Vijay Narayan, SC, for Mr. KarthikFor Respondents: Mr. P.K.Rajagopal for R-1 Mr. N.R.Chandran, SC, for M/s.V.G.Suresh Kumar for RR-4 to 8 & R-18 Mr. R.Gandhi, SC, for Mr. R.G.Narendhiran for R-12 Mr. M.Palani for R-10 Mr. V.T.Gopalan, SC, for M/s. M.Jegadeesan for R-14 Mr. A.K.Kumarasamy for R-15 Mr. M.R.Sivakumar for RR-20 & 21 Mr. N.G.R.Prasad for M/s.Row & Reddy for R-13 Mr. Abdu Kumar Rajarathinam for R-16 Mr. R.Singaravelan for R-11 No Appearance for RR-9, 17 & 19ORDERS.J.MUKHOPADHAYA, J.This writ petition has been preferred by a member of theTamil Nadu State Judicial Service (cadre of District Judge)against order in ROC No.13712 of 2003 and B1 dated 20th Sept.,2005 with further prayer to direct the 1st respondent, High Courtof Judicature at Madras to fix his seniority within thesubstantive vacancies of 60 District Judges as on 3rd Dec., 1999,by following the ratio laid down in Schedule to Rule 5 and above4th to 22nd respondents.2. The brief facts of the case is that a notification wasissued on 8th Nov., 1990, calling for applications from advocatesand pleaders having seven years of experience for directrecruitment to the posts of District Judge – 2nd Grade. As perthe existing rules, known as "The Tamil Nadu State HigherJudicial Service Rules, 1982", the service comprised of 2categories, namely, --i) Category – I--District & Sessions Judge – 1st Gradeii) Category – II--District & Sessions Judge - 2nd GradeAs regards appointment to Category-II, District & SessionsJudge - 2nd Grade, the rules stipulated that the post could befilled up either by recruitment by transfer from category ofsubordinate Judges of the Tamil Nadu State Judicial Service(i.e., 'by promotion') or by direct recruitment, provided that https://hcservices.ecourts.gov.in/hcservices/ nor more than 10 posts shall be filled up or reserved for directrecruitment.3. On 8th Nov., 1990, when advertisement was issued fordirect recruitment, 8 directly recruited District Judges – 2ndGrade, were already working. Therefore, 2 posts were advertised.It followed by a subsequent notification dated 25th March, 1991,calling for further application for appointment as District Judge– 2nd Grade by direct recruitment from eligible ScheduledCaste/Scheduled Tribe candidates. The said notification waschallenged before this Court in W.P. No.6464/95. When the matterwas pending, new rules, namely, the 'Tamil Nadu State JudicialService (Cadre & Recruitment) Rules, 1995', came into force from18th May, 1995. As per the 1995 rules, the cadre consisted ofDistrict Judge/Addl. District Judge/Chief Judicial Magistrate.Under the said Rules, 1995, two sources of recruitment wereprescribed :-a) By Direct Recruitment ; andb) By Promotion on the basis of seniority-cum-merit fromCivil Judge (Sr. Division).A ratio of 1:5 between the direct recruit and promotee wasfixed. Due to the pendency of writ petition, W.P. No.6464/95, norecruitment could be made pursuant to 1990/1991 advertisement.The writ petition, W.P. No.6464/95 was allowed by this Court on18th March, 1996, which directed to issue a fresh notificationcalling for further applications against the two vacancies, onefor 'Open Category' (1 unreserved post) and the other for 'OtherBackward Category' (1 reserved post). 4. In the meantime, the post of Chief JudicialMagistrate/Chief Metropolitan Magistrate having included in thecadre of District Judge, 21 such posts of Chief JudicialMagistrate/Chief Metropolitan Magistrate were upgraded on 21stApril, 1995. Subsequently, in accordance with the decision ofthe High Court in W.P. No.6464/95, another notification wasissued on 2nd June, 1997, calling for further application forappointment to the post of District Judge (Entry Level) (earlierknown as District Judge - 2nd Grade – Category II). Immediatelythereafter, another writ petition, W.P. No.13076/97 was filed byone M.Krishnaswamy for direction on the State Government and HighCourt to make appointment to the vacancies in the post ofDistrict Judge in the ratio of 1:5 as between direct recruits andpromotees. The said writ petition was dismissed on 9th Sept.,1999. Having noticed that the notification was issued invitingapplication for filling up two posts of District Judge – 2ndGrade, by direct recruitment, and in the order of rotation, onevacancy was to be filled up from the candidate belonging to'Backward Category' and one from 'Open Category', this Courtrefused to grant relief and dismissed the writ petition. https://hcservices.ecourts.gov.in/hcservices/ Pursuant to the advertisement dated 8th Nov., 1990, 25th March,1991 and 2nd June, 1997, two posts were filled up by directrecruitment vide G.O. Ms. No.1577 dated 1st Nov., 1999. By thesaid notification, the petitioner and one Mrs.S.Vimala wereappointed by direct recruitment as District Judges (Entry Level –previously known as District Judge - 2nd Grade – Category II).5. In the meantime, by two different notifications, a numberof Civil Judges (Sr. Division) were promoted to the cadre ofDistrict Judges from the dates on which they were to take chargeas such. By G.O. Ms. 375 dated 27th March, 1997, the 4th to 8threspondent along with others were promoted. By another G.O. Ms.No.1537 dated 6th Dec., 1997, 9th to 22nd respondents were promotedas District Judge along with others. Many of them having retiredfrom service or having elevated as Hon'ble Judge of this Court,they are not parties to the writ petition.6. From the fact aforesaid it will be evident that therespondents were promoted more than 1 year 9 months to 2 ½ yearsprior to the direct recruitment of the petitioner.7. According to the learned senior counsel for thepetitioner, in the year 1997, the cadre strength of DistrictJudges was 89 in total. Except the 2 posts of direct recruits,all other posts had already been filled up, including 8 directrecruit District Judges. It was submitted that the contesting 4thto 22nd respondents were excess to the strength of promotee quota.According to the learned senior counsel for the respondents,the appointment of the petitioner and another was made pursuantto the 1982 rule. Referring to the dates of events, it wassubmitted that the process of selection was started in 1990-91for filling up two posts by direct recruitment, but it could notbe filled up because of litigation (writ petitions). This Court,in W.P. No.13076/97, refused to grant relief to fill-up the postby direct recruitment and promotion at the ratio of 1:5 as per1995 rules, and ordered to fill-up only two posts of DistrictJudge – 2nd Grade, as per 1982 rules. It was submitted that theappointment of petitioner and another having made pursuant to1982 rules, the quota fixed under 1995 rules is not applicable.As per 1982 rules, there was no quota fixed, but only 10 postswere fixed for direct recruits. The contention of the petitionerthat the promotees are excess to the quota was refuted.8. Learned senior counsel for the petitioner referred to theorder of appointment of direct recruits, G.O. Ms. No.1577 dated1st Nov., 1999, wherein it is mentioned that the petitioner andanother, advocates, are appointed as District Judges u/r 5 (2) ofthe Tamil Nadu State Judicial Service (Cadre & Recruitment)Rules, 1995. It was highlighted to show that the petitioner wasappointed pursuant to 1995 rules. https://hcservices.ecourts.gov.in/hcservices/ This was contested by learned senior counsel for therespondents on the ground that mere citation of rule will notmake the appointment pursuant to 1995 rules, as 2 posts werefilled up by direct recruitment as per the fixed strength of 1982rules. According to the respondents, the process of selectionhaving started in 1991, the 1982 rules, as was in vogue, isapplicable, which is also evident from the order of this Court inW.P. No.13076/97. They also relied on Supreme Court decision inV.Rangaiah – Vs – J.Sreenivasa Rao(AIR 1983 SC 852) andP.Mahendran – Vs – State of Karnataka (AIR 1990 SC 405) insupport of their contention, wherein Supreme court held that theold vacancy to be filled up on the basis of old rule and notamended rules, particularly when process of selection started andif amended rule is not given retrospective effect.9. We have heard the learned counsel for the parties andnoted their rival contentions.10. In the present case, we are not concerned with theappointment of either the petitioner or the contestingrespondents, i.e., whether they were appointed pursuant to 1982rules or pursuant to 1995 rules. Admittedly, the respondentswere promoted between March and December, 1997 and the petitionerand another were appointed by direct recruitment in Nov., 1999.Promotion and direct recruitment of both the contestingrespondents and petitioner having made after 1995, fordetermination of seniority, the rule of 1995 will be applicable,though their appointment may have been made pursuant to one orother rule. All those who have been appointed subsequent to 1995rules, irrespective of their source of recruitment, pursuant toone or other rules, their seniority would be determined under therules in force at the time of appointment and not those in forceat the time of occurrence of vacancy. In this connection, onemay refer to Supreme Court decision in Union of India – Vs –S.S.Uppal (1996 (2) SCC 168).11. The question whether a person has been appointed excessto the quota and what effect it would have in the matter ofdetermination of seniority fell for consideration before Supremecourt in the case of D.Ganeshrao Patnaik – Vs – State ofJharkhand (2005 (8) SCC 454). That case relates to appointmentin the Bihar Superior Judicial Service. Inspite of rule andspecific prohibition made by High Court to fill-up quota ofdirect recruit by promotees, certain promotions were made to the https://hcservices.ecourts.gov.in/hcservices/ post of District Judge (Addl. District Judge) in the post fallingwithin the direct recruits quota. In the said case, while theSupreme Court held that such appointment (by promotion) are notfortuitous appointment, taking into consideration the relevantfact, held that such appointment (by promotion) against directrecruit quota would not confer seniority over direct recruits ofthe same year.12. In the present case, as it is alleged that there werealtogether 89 posts in the cadre of District Judge (Entry Level –earlier known as District Judge – Category II), and that except 2posts, which were to be filled up by direct recruitment, allposts were filled up, and such statement was denied by the 1strespondent, Madras High Court, the details of strength of cadre,working strength, etc., were called for by this Court. Pursuantto this Court's order, the High Court produced a chart showingdetails of the strength of the cadre of District Judge (EntryLevel), including the working strength as in 1997-98, to find outwhether 4th to 22nd respondents were excess to their promoteequota.From the data as produced, the following fact emerges :-There were vacancies existing against promotee quota,inbetween 1st July, 1996 and 1st July 1999, as shown hereunder :-S.No.As onCadreStrengthWorkingStrengthNo. ofDirectRecruitsNo. ofPromotees101.07.19968989881201.08.19979684777301.07.1998104100793401.07.199910688781The posts which were created or fell vacant in between 1stJuly, 1996 and 1st July, 1999, were as follows :- https://hcservices.ecourts.gov.in/hcservices/ S.No.CadreStrength asonPreviousYearcadreStrengthConstitutionof newCourts/sanction of newposts/existingcourts/postsabolishedG.O.sunderwhichCourtsconstitutedCourtsfunctioningwitheffectfromCadreStrength ofDistrictJudges101.07.1996As perAnnual List– 89Deputation–1 -- 88VacantCourts- 2 ----- 90----------------90 As on01.07.1996201.07.1997906 Courts(From01.07.1996 to30.06.1997)1) G.O.Ms.562,HomeDept. dt.17.4.19972) G.O.Ms.995HomeDept. dt.4.7.19953.5.1997(3Courts)June1997(3Courts)96 As on01.07.1997 https://hcservices.ecourts.gov.in/hcservices/ S.No.CadreStrength asonPrevious YearcadreStrengthConstitutionof newCourts/sanction of newposts/existingcourts/postsabolishedG.O.sunderwhichCourtsconstitutedCourtsfunctioning witheffectfromCadreStrengthofDistrictJudge101.07.1998968 Courts(From01.07.1997 to30.06.1998)1) G.O.Ms.No.436,HomeDept. dt.18.3.19972) G.O.Ms.No.1572,HomeDept.Dated29.10.19973)ChairmanTaxationAppellateTribunal,Corpn. OfChennai(DJcadre)4) G.O.Ms.No.1320dt.5.9.19955) G.O.Ms.No.1914,HomeDept.,dated26.12.199619.01.1998(4Courts)19.01.1998(1Court)19.01.1998(1 Post)05.03.1998(1Court)09.03.1998(1Court)104(As on01.07.1998) https://hcservices.ecourts.gov.in/hcservices/

201.07.19971042 Courts(From01.07.1998to30.06.1999)G.O. Ms.No.1015,HomeDept.dated30.07.199827.04.1999106(As on1.7.1999)It will be evident from 1982 rules that the post of ChiefJudicial Magistrate was not in the cadre of District Judge –Category II. After 1995 rules came into force on 18th May, 1995,apart from post of District Judge/Addl. District Judge, the postof Chief Judicial Magistrate were also included in the saidcadre. For the said reason, 21 posts of Chief JudicialMagistrates were upgraded as Addl. District Judge-cum-ChiefJudicial Magistrate vide G.O. Ms. No.599, Home (Courts-IA) Dept.,dated 21st April, 1995.13. Learned counsel for the petitioner submitted that theupgraded post of Addl. District Judge-cum-Chief JudicialMagistrate should not be counted in the said cadre assubsequently they were downgraded. But from the statement madein the affidavit it appears that pursuant to judgment of Hon'bleSupreme Court dated 21st March, 2003 in W.P. (C) No.1022/89,commonly known as All India Judges Association Case (2002 (4) SCC247), the post of Chief Judicial Magistrates were brought underthe cadre of Civil Judge (Sr. Division), which was reflected inthe rule framed in 2007. Therefore, it will be evident that the21 posts of Chief Judicial Magistrate in the cadre of Addl.District Judge-cum-Chief Judicial Magistrate were available atthe time of promotion of 4th to 22nd respondents and posts havebeen downgraded much after in 2002, pursuant to which thecontesting respondents have not been downgraded.14. The High Court has also filed another chart showing thedetails of vacancies occurred due to elevation or retirement ordismissal of one or other officer between 1st July, 1996 and 31stDec., 2000 in support of the chart of cadre strength and workingstrength and vacancies as existing in one or other year. Fromthe said chart, it is clear that 24 persons retired or dismissedor expired or elevated as High Court Judge or took voluntaryretirement between 1st July, 1996 and 1st July, 1997. Similarly, 8persons retired or expired between 1st July, 1997 to 1st July, 1998and against the aforesaid vacancies, 4th to 22nd respondents andothers were promoted.15. Having regard to the facts brought to the notice of theCourt by the High Court that 4th to 22nd respondents were promotedagainst existing vacancies of promotee quota, the objectionraised by the petitioner cannot be accepted nor the petitionercan derive advantage of Supreme Court decision in Ganeshrao https://hcservices.ecourts.gov.in/hcservices/ Patnaik's case (supra). Further, 4th to 22nd respondents havingbeen promoted much prior to the petitioner, we hold that thepetitioner has been rightly shown junior and his prayer has beenrightly rejected by impugned order dated 20th Sept., 2005. Wefind no merit in this case. The writ petition is accordinglydismissed, but there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrar GLNToThe Registrar GeneralHigh Court, Madras.+1cc to Mr.Karthik, Advocate Sr 48116+1cc to Mr.A.K.Kumarasamy, Advocate Sr 47932+1cc to Mr.R.G.Narenthiran, Advocate Sr 47914+1cc to Mr.M.Palani, Advocate Sr 47894+1cc to M/s. Row & Reddy, Advocate Sr 47877+1cc to Mr.V.G.Suresh Kumar, Advocate Sr 47981VM (CO)km/1.9. W.P. NO. 32025 OF 2007