Date of Judgement:
12th August 2021
Coram:
Justice L. Nageswara Rao and Justice Aniruddha
Parties:
Petitioner: Anand Kumar Tiwari & Ors.
Respondents: High Court of Madhya Pradesh & Ors.
Subject
The judgement analysed the effect of the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017 on the seniority gradation list prepared prior to its commencement.
Overview
- Two Writ Petitions, WP (C) No. 675 of 2018 and WP (C) No. 997 of 2020, were filed before the Supreme Court, and the facts are as follows:
Writ Petition (C) No. 675 of 2018
- The petitioners were directly recruited judges who got ranked as superior to those promoted through the LCE. A provisional gradation list was notified in this respect on 15th February 2010.
- However, the promotees through the LCE challenged it, and the same was accepted by the Administrative Committee. As a consequence, the seniority status was conferred on three judges who got promoted through the LCE over direct recruits.
- A Special Committee, appointed for analysing the criteria for seniority status, recommended giving seniority based on the date of appointment. It relied on Rule 11 of the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 1994, and opined that the District Judges promoted through LCE (on 02.09.2009) shall be ranked senior to the Judges who were directly recruited (on 10.09.2009).
- This recommendation was accepted by the Administrative Committee and the gradation list placed the petitioners below the judges promoted through the LCE.
Writ Petition (C) No. 997 of 2020
- The petitioner was a directly recruited judge, whose preference for representations for determination of seniority on the basis of a 40 point roster, was rejected on the ground that the 2017 Rules came into force with effect from 13.03.2018, and that they are prospective in operation.
- The petitioner had relied on the Supreme Court’s decision in All India Judges’ Association & Ors. v. Union of India and Ors. (2002) that decided the determination of seniority to be made on the basis of 40 point roster.
- However, the Administrative Committee had not analysed the matter due to the pendency of a suit, SLP (C) No.24437 of 2008, and it was only in 2017 that an amendment was made to the rule of seniority.
- The 2017 Rules were notified in supersession of the 1994 Rules, and the same were in line with the Supreme Court’s observations in the All India Judges’ Association case.
Common Submissions
- The petitioners submitted that the Special Committee has erred in recommending the ranking of seniority based on the date of appointment which was based on the Madhya Pradesh Civil Services (General Condition of Service) Rules, 1961. However, the Respondents argued that since there was no provision in the 1994 Rules for determining the seniority of District judges, it had followed the 1961 Rules.
- Another common allegation by the petitioners was that the 2017 Rules had retrospective effect, and therefore, the same override the 1961 Rules. However, the Respondents argued that the Rules are prospective in nature, and is valid only after its commencement date.
Issues Involved
- Whether the determination for seniority can be made on the basis of date of appointment in absence of any provision in the 1994 Rules?
- Whether the 2017 Rules have a retrospective effect over other related Rules?
Important Provisions
- Rule 11 (1) of the 2017 Rules: The Rule clarifies on the effect of seniority determination prior to its commencement. It states that the relative seniority of members of service working on the date of commencement of the Rules should not be disturbed. It further says that the roster should be prepared and maintained only after the commencement of operation of the Rules.
- Rule 12 (1) (e) of the Madhya Pradesh Civil Services (General Condition of Service) Rules, 1961: Rule 12 of the 1961 Rules deals with the determination of seniority of direct recruits and promotees. Rule 12(1)(e) reads that the relative seniority between direct recruits and promotees should be determined according to the date of appointment/promotion. The Proviso to this clause states that if a person has been appointed or promoted on the basis of roster earlier than his senior, then the seniority of such person shall be determined according to the merit/select/fit list prepared by the appropriate authority.
Judgement Analysis
- The Supreme Court accepted the argument of the Respondents on the determination of seniority based on the date of appointment. It opined, “we are in agreement with the submission that in the absence of any rule for determining inter-se seniority of direct recruits and promotees, the date of appointment/promotion can be taken into account for fixing seniority.” It further stated that there was no error in adopting the principle of Rule 12 (1) of the 1961 Rules. (Paragraph No. 11)
- With respect to the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017, the Court observed that it does not have a retrospective effect, and that the seniority inter-se direct recruits and promotees, as provided in the 2017 Rules, shall be determined on the basis of roster only after its commencement of operation. (Paragraph No. 9)
- The Court, however, found the Respondent’s submission regarding the delay in enacting the Rules in compliance with its directions in All India Judges’ Association case to be unjustified. (Paragraph No. 9)
With these observations, the Court dismissed the writ petitions.
Conclusion
The case has dealt with the determination of seniority between direct recruits and promotees. The confusion as to which Rules must be followed has arisen mainly due to delay in the enactment of the new Rules. The Supreme Court had, way back in 2002, had given directions to the High Courts to make necessary amendments, with respect to the determination of seniority of District judges. However, the Madhya Pradesh High Court did not give it due consideration owing to a pending case, and much later, in 2017, it had come up with a new amendment. The petitioners wanted to give the Act a retrospective power, however, the provisions therein clearly state that the Rules does not disturb the lists of seniority prepared before its commencement. The Supreme Court had observed the same after analysing the different laws in this regard and dismissed the petitions accordingly.
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