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1984 (8) TMI 349

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..... respectful disagreement with Brother Mukharji on the interpretation of some of the provisions with which we are concerned in these Writ Petitions. There are many decisions bearing upon the familiar controversy between promotees and direct recruits and this will be one more. Perhaps, just another. Since those various decisions have not succeeded in finding a satisfactory solution to the controversy, we would do well by confining our attention to the language and scheme of the rules which are under scrutiny herein, instead of seeking to derive a principle of universal application to the cases like those before us. Previous judgments of this Court are, of course, binding to the extent that they are relevant and they cannot be ignored. But, if they turn upon their own facts, the general set-up of the particular service, its historical development and the words of the impugned provisions, no useful purpose will be served by discussing those cases at length, merely to justify an observation at the end that they have no application and are distinguishable. We have two writ Petitions before us which are filed under Article 32 of the Constitution by promotee Additional District and S .....

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..... i. Appointment of direct recruits is dealt with by Rule 5(2), according to which, in regard to the persons not already in the Delhi Judicial Service, appointment to service shall be made by the Administrator on the recommendation of the High Court. In other words, promotees are appointed to the Service in consultation with the High Court while direct recruits are appointed to the service on the recommendation of the High Court. Rules 7 and 8 which are crucial to the controversy between the promotees and direct recruits read thus : Rule 7-REGULAR RECRUITMENT :- Recruitment after the initial recruitment shall be made : (a) by promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than 10 years of Service in the Delhi Judicial Service. (b) by direct recruitment from the Bar. Provided that not more than 1/3rd of the substantive posts in the Service shall be held by direct recruits. Rule 8-(1) The inter-se seniority of members of the Delhi Judicial Service promoted to the Service shall be the same as in the Delhi Judicial Service. (2) The seniority of direct recruits vis-a-vis promotees shall be determined in .....

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..... s thereto from amongst members of the Delhi Judicial Service. The Schedule to the Rules shows that the initial authorised permanent strength of the Delhi Higher Judicial Service was 16, out of which one was to be a District and Sessions Judge and 12 were to be Additional District and Sessions Judges. The remaining 3 were appointed in Leave- Deputation reserve vacancies. Out of these 16 posts, one was a super-time scale post, three were selection grade posts and twelve were time-scale posts. The contention of the petitioners is that seniority between promotees and direct recruits must be determined in accordance with the respective dates of their continuous officiation as Additional District and Sessions Judges and that, direct recruits who are appointed as Additional District and Sessions Judges after the promotees are so appointed, cannot rank higher in seniority over the promotees. It is urged that promotees discharge identical functions and bear the same responsibilities as direct recruits and upon their appointments, they constitute one common class. Therefore, to give seniority to the direct recruits who are appointed later in point of time is violative of Articles 14 a .....

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..... e proviso require that, at any given point of time, 1/3rd of the substantive posts in the Service shall be reserved for direct recruits or does it only stipulate that the posts held by direct recruits shall not be more than 1/3rd of the total number of substantive posts in the Service ? The proviso reads thus: Provided that not more than 1/3rd of the substantive posts in the Service shall be held by direct recruits. This language is more consistent with the contention of the promotees that the proviso merely prescribes, by way of imposing a ceiling, that the direct recruits shall not hold more than 1/3rd of the substantive posts. Experience shows that any provision which is intended to prescribe a quota, generally provides that, for example, 1/3rd of the substantive posts shall be filled in by direct recruitment. A quota provision does not use the negative language, as the proviso in the instant case does, that not more than one- third of the substantive posts in the Service shall be held by direct recruits. If the matter were to rest with the proviso, its interpretation would have to be that it does not prescribe a quota for direct recruits : it only enables the ap .....

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..... ) of Rule 16 confers power upon the Administrator to create temporary posts in the Service. By clause (2) of Rule 16, such posts are required to be filled, in consultation with the High Court, from amongst the members of the Delhi Judicial Service, that is to say, the promotees. Rule 17, which is in the nature of a non-obstante provision, provides that not withstanding anything contained in the Rules, the, Administrator may, in consultation with the High Court, fill substantive vacancies in the Service by making temporary appointments thereto from amongst the members of the Delhi Judicial Service. The position which emerges from the provisions contained in Rules 16 and 17 is that it is permissible to create temporary posts in the Service and, even substantive vacancies in the Service can be filled by making temporary appointments. The twofold restriction on this dual power is that the High Court must be consulted and such appointments must be made from amongst the promotees only. If temporary appointment to the Service, either in temporary posts or in substantive vacancies, can be made within the framework of the Rules and have to be made, if at all, from amongst the promotees and .....

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..... er the post is permanent or temporary. The inclusive clause contained in the second part of Rule 2 (b) has to be read in the context of the first part of that Rule and must take its meaning from what precedes it. Therefore, every promotee who holds the post of an Additional District and Sessions Judge in the Service is the holder of a Cadre Post, whether the post is permanent or temporary. Direct recruits hold cadre posts in all events because, they can only be appointed to substantive posts in the Service on a permanent basis. Rules 16 and 17 forbid their appointments to temporary posts in the Service or to substantive vacancies in the Service on a temporary basis. Though this is the true scope and meaning of Rule 2 (b), it is unnecessary to be dogmatic about it. As will appear presently, even if it is assumed for the purposes of argument that temporary posts not included in the Service are also Cadre Posts, that will not make any difference to the principle on the basis of which the Seniority List of the Service will have to be drawn. But, before adverting to that principle, it would be useful to draw attention to Rule 2 (d) which provides that a Member of the Service .....

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..... n so far as relevant, that the seniority of direct recruits vis- a-vis the promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quota of vacancies reserved for both the categories by Rule 7, provided that the first available vacancy will be filled by a direct recruit, the next two vacancies by promotees and so on. This Court has taken the view in many cases that whenever the rules provide for recruitment to a Service from different sources, there is no inherent infirmity in prescribing a quota for appointment of persons drawn from those sources and in working out the rule of quota by rotating the vacancies as between them in a stated proportion. (See, for example, Mervyn Coutinho v. Collector of Customs, Bombay,(1) S. C. Jaisinghani v. Union of Indiu,(2) Bishan Sarup Gupta v. Union of India, (1) A.K. Subraman v. Union of India,(2) V. B. Badami v. State of Mysore(3) and Paramjit Singh Sandhu v. Ram Rakha.(4) Therefore, Rule 8 (2) cannot be held to be unconstitutional merely because, it reserves one-third of the vacancies in the Service for direct recruits and provides that the first available vacancy in the Ser .....

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..... tance of the authorities, when their names are considered for appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stop-gap basis. Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the Service. It is however difficult to appreciate how, in the matter of seniority, any distinction can be made between direct recruits who are appointed to substantive vacancies in the Service on the recommendation of the High Court under Rule 5(2) and the promotees who are appointed in consultation with the High Court to posts in the Service under Rules 16 and 17. Rule 16 provides for the appointment of promotees to temporary posts in the Service, while Rule 17 provides for appointment of promotees to substantive vacancies in the Service .....

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..... , the Administrator created temporary posts in the Service under Rule 16(1); secondly, four promotees were appointed to those posts in the Delhi Higher Judicial Service; and thirdly, that they were appointed `till further orders'. The appointments were neither adhoc, nor fortuitous, nor in the nature of stop-gap arrangement. Indeed, no further orders have ever been passed recalling the four promotees and, others similarly situated, to their original posts in the subordinate Delhi Judicial Service. Promotees who were appointed under Rule 16 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not take up to the necessity of converting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years. Considering the history of the Delhi Higher Judicial Service, it is clear that the phrase `till further orders, is only a familiar official device to create and perpetuate temporary posts in the Service when the creation of permanent posts is a cry .....

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..... itable rule for determining seniority between direct recruits on the one hand and promotees who are appointed under Rules 16 and 17 on the other ? It is difficult to evolve a rule which will cause no hardship of any kind to any member of the Service. Therefore, the attempt has to be to minimise, as far as possible, the inequities and disparities which are inherent in a system which provides for recruitment to the Service from more than one source. While doing this, the one guiding principle which must be kept in mind is that classification is a gloss on the right to equality. It is but a step in the process of working out the equities between persons who are entitled to equal treatment. It is therefore necessary to ensure that classification is made on a broad, though rational, basis so as not to produce the self-defeating result of denying equality to those who in substance, are situated similarly. That is why, it would be hyper-technical to make a sub- classification between promotess appointed under rule 16 and those appointed under Rule 17, with the object of denying to the latter the equality of status and opportunity with the former and with direct recruits. It is true tha .....

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..... sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. Since the rule of `quota and rota' ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which were appointed in a temporary capacity. Our attention was drawn to several decisions but most of them turn of their own facts. For example, the promotees placed great reliance on the decision in Baleshwar Dass v. State of U.P.(2) In that case, there was only one rule of recruitment to both the permanent and temporary posts in the cadre. Besides, no rotation of vacancies was prescribed for the purpose of fixing seniority. The position which arises in the case before us did not therefore arise in that case. However, the observations made by Krishna Iyer, J. in that case are not without relevance for the present purpose. The lear .....

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..... her words, after having rendered service in a post included in the service, he is hanging outside the service without finding a berth in service, whereas direct recruits of 1976 have found their place and berth in the service. This is the situation that stares into one's face while interpreting the quota- rota rule and its impact on the service of an individual. But avoiding any humanitarian approach to the problem, we shall strictly go by the relevant Rules and precedents and the impact of the Rules on the members of the service and determine whether the impugned seniority list is valid or not. But, having done that we de propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely, that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundat .....

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..... t should not disturbed. We wish that were possible. It would be incongruous to do so because, if the rule of `quota and rota' ceased to apply when appointments were made to the Service under Rules 16 and 17, her present position in the seniority list which has been accorded to her on the basis of that rule cannot be maintained. For this consequence the promotees are not to blame, and certainly, not any of the direct recruits. The promotees had made a representation to the High Court as long back as in the year 1977 but, for a reason not easy to understand, the High Court did not dispose of that representation for over three years, Indeed, one of the contentions of the High Court before us is that those writ petitions are premature because the representation of the promotees is still pending before it. Miss Mehra was appointed three years after the promotees had made their representation to the High Court, which was the most appropriate authority for them to approach. A timely disposal of the representation by the High Court would have saved the predicament in which some of the direct recruits like Miss Mehra will now find themselves. It was urged that the promotees ought not to .....

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..... reasons with such relevant rules as are necessary. These two Writ petitions under article 32 of the Constitution question the validity of Rule 8(2) of Delhi Higher Judicial Service Rules, 1970 hereinafter referred to as the said rules and the fixation of inter-se seniority of the promotees and direct recruits of Delhi Higher Judicial Service. In the first one, namely Writ Petition No. 5669 of 1980, the petitioners are, one Shri O.P. Singla, who was at the relevant time working as an Additional District Sessions Judge and at the time of the institution of the petition working as the Presiding Officer, Industrial Tribunal in Tis Hazari Court, Delhi alongwith Shri D.C. Aggarwal, Additional District and Sessions Judge, Delhi. The respondents to this application are the Union of India, Delhi Administration, Delhi High Court, respondent No. 4, Shri G.S. Dakha, Additional District and Sessions Judge, Tis Hazari, Delhi and respondent No. 5 Miss Usha Mehra, Additional District and Sessions Judge, Tis Hazari, Delhi. In the second petition there are 32 petitioners who are Additional District and Sessions Judges in the Delhi Higher Judicial Service alongwith Delhi Judicial Service .....

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..... imum of 10 years service. There is an Explanation for calculation of period of 10 years which again is not relevant for the present purpose. Rule 8 is as follows:- 8. (1) The inter-se seniority of members of Delhi Judicial Service promoted to the service shall be the same as in the Delhi Judicial Service. (2) The seniority of direct recruits vis-a-vis promotees shall be determined in the order of rotation vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by direct recruitment and the next two vacancies by promotees so on. Rule 9 deals with the qualifications for direct recruits and provides that they (1) should be citizen of India, (2) must have practised as an advocate for not less than seven years, (3) must have attained the age of 35 years and not attained the age of 45 years on 1st January of the year in which his appointment is made. The submission of the petitioners is that the officers intended to hold the posts of District Judges cannot artificially be prevented from holding such posts substantively, either because of delay in making .....

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..... l way, 22 officers, including Shri Mahesh Chandra, whose date of birth was 12th October, 1928 and whose date of appointment as Additional District and Sessions Judge was 8 years before Miss Mehra. She also supersedes Shri S.R. Goel who was born on 12th October, 1929 and who had joined the service on 24th March, 1972-8 years before Miss Mehra had joined as Additional District and Sessions Judge; more or less similar is the position in case of Shir Y.B. Gupta, Shri P.K. Bahri, Shri H.P. Bagchi and Mrs. Santosh Duggal who was born on 21st March, 1931 and had joined the service as Additional District and Sessions Judge on 29th September, 1975 and numerous other officers last of whom had joined on 23rd August, 1979 and most of whom were at least 10 years older than respondent No. 5, Miss Mehra. Similarly Shri Dakha supersedes 16 officers by joining as Additional District and Sessions Judge in 1978 and is superseding officers who had joined in 1972, 1973, 1974, 1975 and some of whom were much older than him in age. Shri J.B. Goel will also be superseding some of the officers who have been indicated in the chart. This anomaly has been caused by the operation of Rule 7(b) of the said rules .....

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..... e 7 provided that first available vacancy shall be by direct recruitment and the next two vacancies by promotees. and so on. Sub-rule (2) or the makers of sub-rule (2) of Rule 8 presumed and assumed a factual position that quotas of vacancies have been reserved for both categories by Rule 7 which is really not a fact. Rule 7 does not reserve any quota for either of the categories. Rule 7 only provides for ceiling of direct recruits by providing that in case there were recruitment from Bar as well as by promotions, in such a case Bar recruits would not be more than 1/3rd of the substantive posts in the Service. This brings the problem of so interpreting the rules as to avoid any possible injustice to any section, if possible. In this task in the instant case there is one advantage that though there are numerous decisions, dealing with rights and privileges of promotees vis-a-vis direct recruits, there is no case, at least none to which attention was drawn in this case, where the rule dealing with position between direct recruits and promotees in a service composed of two different types of recruits, is worded in the manner as provided in the rules in the instant case. It is well- .....

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..... preted, where the courts are not fettered or bound by precedents, to ensure that justice flows, such justice is essential for society to survive. It is important because it enables the individuals in the administration of justice to serve justice and to identify themselves with the process. But by rules, we cannot make justice certain in this uncertain age but all we can ensure is, attempt to prevent injustice. Most of the problems as are apparent in working out these types of schemes and rules have been due to the failure to see the reality and the desire to proceed on adhocism. The rules in question have been noted in the instant case in detail. There is no quota as such. Rule 8(2) proceeds on the misconception that there is quota fixed for direct recruits, which rule 7 does not. Rule 8(2) cannot on plain literal meaning also be construed or interpreted to mean that it was deemed by the legislature and the rule making body to engraft any quota. There is no deemed quota, if that was the intention then the rule would have said so. It has not. Rule 8(2) proceeds on wrong assumption. Therefore, it should be given effect to in so far as it can be without reading any quota for the s .....

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..... e case of V.B. Badami Etc. v. State of Mysore Ors. The Court observed in the context of the rules before this Court in that case that as long as the quota rule remained neither promotees could be allotted any of the substantive vacancies of the quota of direct recruits nor could direct recruits be allotted promotional vacancies. Two more principles were settled; one was that quotas which were fixed were unalterable. Quotas which were fixed could only be altered by fresh determination of quotas under the relevant rule. The other was that one group could not claim the quota fixed for the other group either on the ground that the quotas were not filled up or on the ground that because there had been a number in excess of quota the same should be absorbed depriving the other group of quota. The observations made in that decision would have been very apposite and might have helped the present respondents if it was possible to find that there was any fixed or unalterable quota so far as direct recruits are concerned in this case as in that case and further that ad-hoc arrangements or promotions meeting the exigencies of the service had not been made in accordance with the procedure .....

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..... prevail among the members of the administration, if the administration has to remain a vehicle of social progress and transformation which the Indian administration must, in view of the very great possibility and the transitory nature through which it is passing in spite of the severe personal and economic hardships that the members of the administration go through. The decision in the case of S.B. Patwardhan Ors. Etc. Etc. v. State of Maharashtra Others may be noted, in resolving the present controversy though the decision in that case was rendered in the context of the controversy of the Engineering Service. Rule 8 (1) of the relevant rules in that case before this Court dealt with the various categories which manned the Class II sub-divisional posts which were compiled in two lists, one list of Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and the other list of officiating Deputy Engineers. It is not necessary for the present controversy to set out the details of the same. The controversial provision was rule 8 (iii) which was as follows: The probationers recruited directly to the Bombay Service of Engineers, Class II cadre in any year .....

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..... ation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources so long as they belong to the same cadre dissimilar functions and bear similar responsibilities. Saying anything beyond this will be trespassing on a field which does not belong to the courts. (Emphasis supplied) The aforesaid observations have to be borne in mind in deciding the present controversy. In the case of Rajendra Narain Singh and others v. State of Bihar and Others the question was about the interpretation of the Bihar Police Service (Recruitment) Rules 1953. In that case Rule 3 of the relevant rules was thus: The Governor shall decide in each year to number of vacancies to be filled in that year. Provided that the number of vacancies to be filled by promotion in the service in any one year shall not, unless the Governor is satisfied that there is not a sufficient number of officers fit for promotion, be less than half the total number of vacancies to be filed in any such year. The Court further observed that Rule 3 of Bihar Police Service (Recruitment) Rules was not really a quota rule and it did not l .....

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..... it of any ambiguity and an arbitrary cut of long years of service does not take place. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16 of the Constitution. This Court further noted that for purposes of seniority, one has to go normally by the order of appointment to the Service in a substantive capacity. But no fixed connotations can be attributed to expressions like `substantive capacity', `service', `cadre' and the like because probation even for temporary appointments is provided for in the rules may mean that even temporary appointments can be substantive For there cannot be probation for government servant who is not be absorbed substantively in the service on completion thereof. Permanency carries with it other rights than mere seniority and promotion. Permanent posts and temporary posts are in official terminology sharply different, but in that case the Court further noted that from this alone, there was no difference, in the historical context of U.P. Se .....

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..... have been noted but is manifest that in the context of the present circumstances, Rule 7 can have only application to recruitments to the substantive posts in the service. It provides two different sources of recruitment. and without fixing any actual quota, but a ceiling of not more than 1/3 of the substantive posts to be held by direct recruitments. Rules 7 and 8 do not exist in isolation. These have to be read with the other rules, particularly Rule 16. The principles of harmonious construction must be accepted so that all the rules are rendered operative and one does not make the other nugatory. Rule 16 is a rule of relaxation or an additional rule of recruitment providing for temporary posts being filled up in addition to the substantive posts. The effect of the creation of temporary posts is to expand the area of membership of the service'. As the filling up of the temporary posts under Rule 16 is confined to recruitment from the members of Delhi Judicial Service, Rule 7 cannot be made applicable for the recruitment to temporary posts. Therefore, there is no quota rule applicable with regard to temporary posts. In the aforesaid view of the matter, it appears that by de .....

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..... can have application only if there is more than one. source of recruitment. If temporary posts in the service are created as has been done in this case by the Administrator as envisaged by rule 16(1) and if such posts have been filled in as it appears to have been done here in consultation with the High Court from amongst members of Delhi Judicial Service as required under Rule 16(2) of the Rules, quota rule assuming that there is any, cannot apply to such appointments. The validity of such appointments is not open to the exception that these violate the quota rule, if any. As has been mentioned hereinbefore it is impossible to find in Rule 7 any quota rule simply because Rule 8 assumes, that quota rule is there in Rule 7, and then proceeds to make a rotational system. It would not be proper to accept the position that there is any quota rule specially in view of the fact that working of the said rules over all these years indicate that the rule was not adhered to and the fulfilment of the rule cannot be adhered to if the appointments under Rule 16 is given effect to and also in view of the fact that if the quota rule is adhered to in conjunction with rule 8(2), it will result in .....

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..... antive capacities in the sense indicated above can be placed on probation now if that has not been done so far. As has been noted in the decision of A. Janardhana v. Union of India and ors. at 608 of the Report, if proviso to rule 7(b) is read with rule 8(2) and in the manner contended by the respondents, it might so happen that a candidate's position may be placed in such a way that by legal fiction, he will be placed as senior to a person as a District and Sessions Judge by national placement at a time when he did not even reach the age at which he or she would have become eligible for appointment. That would be unfortunate and would produce incongruous result. Indeed such a result had happened in A. Janardhana's case (supra). An argument was advanced on behalf of the respondents that there is no provision for probation for the appointments under rules 16 17 of the said rules, but sub- rule (2) of rule 12 required that all candidates shall be on probation for a period of two years. An appointment on probation is not a jurisprudential sine qua non for absorption into the services, though normally and generally various rules of different services make such provision .....

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..... before these petitions were filed had been existing. and loath to upset the just expectations of the members of the legal profession who have joined the service and one would be very sorry to do that. Judicial appointments are no longer attractive for any lawyer of any kind of success. One would be hesitant to put further disincentives for those with professional experience to join Judicial service, and therefore be reluctant to interfere with the just expectations of professional entrants who had entered Judicial service at sacrifice of considerable money and position. But the provisions of the rule as well as of the Constitution must be given effect to. In the instant case members of the Judicial service, the petitioners had made representations to the High Court in 1977. The two entrants who would a be vitally affected by the re-adjustment of the list would be Shri G.S. Dakha who joined the service on 27th of September, 1973 and Miss Usha Mehra who joined the service on probation on 24th of April, 1980. At that time challenge in the form of representation to existing seniority before the High Court was there. Shri J.B. Goel had joined the service on 10th November, 1980 and .....

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