B. S. YADAV AND OTHERS ETC. versus STATE OF HARYANA AND OTHERS ETC,

c B. S. YADAV AND OTHERS ETC. v. STATI": OF HARYANA AND OTHERS ETC, November 5, 1980 [Y. V. CHANDRACHUD, C. J., P. N. BHAGWATI, V. R. KRISHNA !YER, V. D. TULZAPURKAR AND A. P. SEN, JJ]

Constitution of India, 1950-Articles 235 and 309, proviso-scope of- Govemor, . if could make rules regulating conditz'ons of service of judicial officers-If could retrospectively amend the rules-deteqnina!ion of inter se seniority of judicial officers and declaring that an officer has satisfactorily com- pleted the period

of probation, Governor if competent to do·–period of probation if could be reduct•d in individual cases without exceptional circums- tances iustifying reduction. Rule of rotation, if could be read into rule of quota of direct recruits and promotees-vacant post for promotee, if could be filled by confirmation of a direct recruit and vice versa ..

Exercising power under the proviso to Art. 309 of the Constitution (which empowers the Governor to make rules regulating the recruitmeot and condi- tions of service of persons appointed to services and posts [n connection with the affairs of the State) the Governor of Punjab, in consultation with the Punjab High Court, framed the Punjab Superior Judicial Service Rules, 1963. The rules provide for the direct recruitment as well as appointment by promo- tion from the Punjab Civil Service (Judicial branch}.

Under rule 8(2), tw;:i- third of the total number of cadre posts have to be manned by promoted officers and one-third by direct recruits. Under rule 10(1) direct recruits have to remain on probation for two years provided that the Government may, in exceptional circumstance.s, redu'ce the period of probation in con>ultation with the High Court. The period of probation of an officer can be extended by the Governor beyond the period of two years in consultation with the High Court but not so as to exceed a total period of three years. Rule 10(2) empowers the Governor to confirm in consultation with the High Court a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation.

Rule 12 (now in force in Haryana) provides that the seniority of direct recruits and promoted officers shall be determined with reference to the respective dates of their confirmation. Under the Punjab Rules as amended retrospectively with effect from Aprff 9, 1976 'cadre post' means a permanent as well as a temporary post in the service. The inter se seniority of the members of the service is to pe deter- mined by the length of continuous service on a post in the service irrespective of the date of confirmation.

The three petitioners in the Haryana writ petitions were selected for ~e­ cruitment to the Punjab Civil Service (Judicial Branch) in a competitive exami- nation and after the formation of the State of Haryana, they were pmmoted in an officiating capacity to the Haryana Superior Judicial Service in 1967 and 1968.

Respondent No. 3 who was· a direct recruit to the Haryana Superior Judicial Service was appointed as a District and Sessions Judge on July 7, B. S. YADAV v. HARYANA 197() and was confirmed in that post on July 7, 1972 on 6-e completion of two year probationary period. 'The three petitioners were confirmed as District and Sessions Judges with effect from July 8, 1972.

In the case of judicial officers of Punjab, although there were ten vacan- cies in the quota of promoted officers and an equal number of promoted officers were officiating fol' more than three years as Additioml District and Sessions Judges, the High Court did not confirm the promotees in those vacan-. cies but confirmed the promotees and the direct recruits by applying the rule of rotation. Six direct rec;ruits were given prior dates of confirmation in com- parison with the promotees, as a resnlt of which the confirmation of eight promotees was postponed.

In the case of some direct recruits confirmation was given within a period of one year and four months though the period of probation was two years. Rule 12 was amended retrospectively frpm

April 9, 1976 by which seniority was to be determined by the length of continuous service on a post in the service irrespective of the date of confirmation. Rejecting the plea of one of the direct recruits that the rules '10t oniy required the application of a rule of quota at the time of appointment but also required the application of a rule of rotation at the time of confirmation, the c

High Court held that rules 8 and 12 were independent of each other, that ·rotational system could not be implicitly read in the quota rule provided for by rule 8 and that members of the Superior Judicial Service were entitled to claim seniority strictly in accordance with the provisions of rule 12. The

promotees complained that this decision rendered by the High Court in its judicial capacity was not being followed by the High Court in the· discharge of its administrative duties and that seniority of the promotees and direct recruits must be fixed without applying the rule of rotation at the time of confirmation. It was also stated that after the amendment of rule 12 in 1976 although two vacancies of District and Sessions Judges arose on each of these occasions the High Court promoted a direct recruit treating the date of his confirmation as the criterion of seniority.

It was. contended on behalf of the promotees in Haryana that the control which the High Court exercises under Art. 235 over the subordinate judiciary does not include the power to make rules regulating the condition of service. of judicial officers but that since the power conferred on the Governor under the proviso to Art. 309 to make rules is legislative in nature the principle of independence of judiciary is not in any manner violated when the Governor makes the rules.

On the other hand it was contended on behalf of the High Court that the control over the subordinate judiciary vested in the Hi~h Court by Art. 235 being exclusive in nature, the power to frame rules in regard to the. seniority of judicial officers must reside in the High Court and not in the Governor.

It was contended on behalf of the promotees that th·e quota of 2: l provided for by rule 8 is applicable only at the time of initial recmitment and that there was no warrant for extending the application of that rule at the time of confirmation.

Partly allowing the Petitions; HELD: There is no force in the contention that the Governor has no power to make rules of seniority of District and Sessions Judges. [1058B] c On a plain reading of Arts. 235 and 309 of the Constitution it i,; clear that the power . to frame rules regarding seniority of officers in the .indici"l service of the State is vested in the Governor and not in the High Court. The first part of Art. 235 vests the control over District Courts and courts subordi- nate thereto in the High Court. But the second part of that Article says that nothing in the article shall be construed as taking away

from any person belonging to the judicial service of the State any right of appeal which h~ may have under the law regulating the conditions of his service or as autho- rising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

Thus, Art. 235 itself defines the outer-limits of the High Court's power of control over the District Courts and courts subordinate thereto. In the first place, in the exercise of

its control over the District Courts and subordinate courts it is not open to the High Court to deny to a member of the subordinate judicial service of the State the right of appeal given to him by the law which regulates the condi- tions of his service. , Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in ·accordance with the conditions of his service which are prescribed by such law. [1052C-F] There is no power in the High Court to pass a law though rules made by the High Court in the ex<>rcise of power conferred upon it in that behalf may have the force of law. Law which the second part of Art. 235 speaks of is law made by the Legislature.

The clear meaning, therefore, of the secor.d part of Art. 235 is that the power o~ control vested in the High Court by the first part will not deprive a judicial officer of the rights conforred upon him by a law made by the Legislature regulating his conditions of service. [1052G·H] Article 235 does not. confer upon the High Courts the p0wer to make rules relating to conditions of service of judicial Officers attached to District Courts and the courts subordinate thereto.

Whenever it was intended to confer on any authority the power to make any special provision or rules includini; rules relating to conditions of service, the Constitution has stated so in express terms.

For example the provisions contained in Articles 225, 227(2) & (3) and 229(1) & (2) confer powers on the High· Court to frame rules for certain specific purposes. Art. 229(2) which is directly in point provides

that subject to the provisions of any law made by Legislature of the State the conditions of service of officers of a High Court shall be made by the High Court. The framL"fS of the Constitution

would not have fail.ed to incorporate a similar provision in Art. 235 if it was intended that the High Courts should have the powe~ to make rules regulating the conditions of service of judicial officers in the subordinate judiciary. [1053B-F] The power of control vested in the High Court by Art. 235 is ellpressly made subject to the law which the State Legislature may pass for regulating the recruitment and service conditions of judicial officers of the State. The framers of the Constitution did not regard the power of the State l.egislature to pass Jaws regulating the recruitment and conditions of service of judicial >Jfficers as an infringement of the independence of the judiciary.

The mere powers to pass such a law is not violative of the control vested in the High Court over the State judiciary. [1053H; 1054C] In order that there. may be no vacuum until the passing of a law by the Legislature on the subject, the Constitution has made provision under

the proviso to Art. 309 that until the State Legislature pas§es a law on the B. S. YADAV v. HARYANA particular subject, it shall .be competent to the Governor of the State to make rules regulating the recruitment and conditions of service .of the judicial officers of the State. The power exercised by the Governor under the proviso is thus a power which the Legislature is competent to exercise but has in fact not yet exercised. It partakes of the characteristics of the legislative, not executive, power. It is legislative power. [1054D·F]

That the Governor possesses legislative power under the Constitution is incontrovertible. Just as under Art. 213 the Governor substitutes tor the Legislature because the Legislature is in recess so under the proviso to Art. 309 he substitutes for the Legislature because the Legislature has not yet exercised its power to pass an appropriate law on the subject. [1054G and 1055B-C]

It is true that the power conferred by Article 309 is subject to the provi- sions of the Constitution but it is fallacious for that reason to contend that the Go.-ernor cannot frame rules regulating the recruitment and conditions of service of the Judicial Officers of the State.

Firstly, the power of control conferred upon High Coiirts by the first part of Article 235 is e"pressly made sabject, by the second part of that Article, to laws regulating conditions of secvice of its Judicial Officers.

Secondly, the Governor, in terms equally ·ex- press, is given the power by the proviso to Article 309 to frame mies on the subject. [1055B-C] A combined reading of Arts. 235 and 309 will yield the result that though the control over the subordinate courts is vested in the High Court the appro- priate Legislature and until that Legislature acts the Governor of the State has the power to make rules regulating the recruitment and the conditions of service of judicial officers of the State. The power of the Legislature or of the Governor thus to legislate is subject to all other provisions of the Consti- tution like Arts. 14 and 16. [1055D-E]

The second part of Art. 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the …._ State. The substantive provision of Art. 309, including its proviso, fixes the location of the power.

The opening words of Art. 309 limit the amplitude of that power. [1055F] Seniority is undoubtedly an important condition of service. The control vested in the High Court by the first part of Art. 235 is, therefore. subject to any law regulating seniority as envisaged by the second part of that article. :rhe power to make such law is vested by Art. 309 in the Legislature and

until it acts, in the Governor. Whether it is the Legislature which passes an Act or the Governor who makes rules regulating seniority, the end product is law within the meaning of second part of Art. 235.

The Legislatures of Punjab and Haryana not having passed an Act regulating seniority of the res- pective State jui:licial officers, the Governors of the two States have the power to frame rules for that purpose under the proviso to Art. 309 of the Consti- tution.

Such rules are subject to the provisions of the Constitution and to the provisions of any Act which the appropriate Legislature may pass on the subject. [1055G-H] The law passed by the Legislature or the rules made by the Governor can provide for general or abstract rules of seniority leaving it to the High Court to apply them to each individual case as and when the occasion arises. The

·power to legislate on seniority being subject tQ all other provisions of the Constitution cannot be exercised in a manner which will affect or be detri- mental to the control vested in the High Court by Art. 2'35. [1056B·C]

c Though the Legislature: or the Governor has the power to regulate senio- rity of judicial officers by laying down rules of general· application, that power cannot. be exercised in a manner which will lead to interference with the control vested in the High Court by the first part of Art. 235. In a won~, the application of law governing seniority must be left to the High Court.

The determination of seniority of each individual judicial officer is a matter which indubitably falls within the area of control of the High Court over the district courts and the courts subordinate thereto.

For the same reason, though rules of recruitment can provide for a period of probation, the ques- tion whether a particular judicial officer has satisfactorily compl:~led his proba- tion or not is a matter which is exclusively in the domain of the High Court to decide. [1056E-F]

The independence of the judiciary has to be preserved 1t all costs. But at the same time the Legislature or the Governor cannot be deprived of their legitimate legislative powers under Art .. 309.

That power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead to the violation of Arts. 14 or 16 or the pervasive ambit of the first part of Art. 235.

Since the power con- ferred by Art. 309 is not absolute or untramelled it will be wrong to test the validity of that power on l:he anvil of its possible abuse. [1057 A-BJ High Court of Pu11jab and Haryana v. State of Haryana, [1975] 3 SCR 365, Union of India v. Justice S. H. Sheth, [1978] 1 S.C.R. 423., A. P. High Court v. Krishnamurthy, [1979] 1 S.C.R. 26 & State of Bihar v. Madan Mohan Prasqd, [1976] 3 S.C.R. 110, referred to.

Rule 8 as its very heading shows, provides for a distinct condition of ser- vice with reference to a specific point of time, namely "recruitment to service". The language of the rule also indicates tha.t the operation of this rule is confin- ed to the stage of initial recruitment 1to the service either by promotio11 or by direct appointment from the Bar.

[1063F] The reservation contemplated by rule 8 is intended to be made at the stage of initial appointment only by reserving two third of the t;,tal number of posts in the cadre for promotees and one third for direct recruits. A post

which falls vacant in the quota of promotees cannot be filed by the confirma- tion of a direct recruit therein nor indeed can a promotee be confirmed in a post which is within the quota of direct recruits. [1063H] If this be the true construction of rule 8 the method of confirmation by rotation of direct recruits and promotees, regardless of whether the vacancy assigned to the particular officer falls within the quota of the class to whi.;h he belongs will be in contravention of that rule. [1064B]

'Appointment' is not a continuous process. The process of appointment is complete as soon as a person is initially recruited to the service either by promotio~ or by direct recmitment and confirmation is not a part of the process of appointment.

"Recruitment to the service" is a matter which falls within the power of the Governor under Art. 233 while "confirmation" is a m~.tter of 'control' vesting in the High Court under Art. 235.

The superimposition of rule 8, which fixes the quota at the stage of recruitment on the rules relating to confirmation and seniority i,s, therefore, contrary to the basic constitutional concepts governing judicial service. [1064C-D]

B. S. YADAV v. HARYANA 102 9 The n;[e of rota cannot be read into the rule of quota. In other words the ratio of 2 : 1 shall have to be applied at the stage of recruitment but cannot on the language of the relevant rules be applied

at the stage of confirmation. [l 066Bj A K. Subraman v. Union of India, [1975] 2 SCR 979, N. K. Chauhan v. State of Gujarat, [1977] 1 SCR 1037 referred to. Paramjit Singh Sandhu v. Ram Rakha, [1979] 3 SCR 584 held inapplicable. The High Court was not justified in applying the rule of rotation at the time of confirmation of the members of the superior judicial service who were appointed to that service by promotion and by direct recruitment. In the dis· charge of jt.s administrative functions the High Court could not have failed to follow a judgment of its own special bench consisting of five Judges. [1066C-D] High Court of Punjab and Haryana v . . State of Haryana, [1975] 3 S.C.R. 365, referred to.

On a proper interpretation of the rules, promotees are entitled to be confirmed in the vacancies which are available within their quota of two third, whether or not one third of the vacancies are occupied by confirmed direct recruits.

Similarly direct recruits are entitled to be confirmed in vacancies which are available within their quota of one third whether or not two third of the vacancies are occupied by confirmed promotees. [1067D-El The fairness which Arts. 14 and 16 postulate is that if a promotee is other- wise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The

adoption of this principle in the matter of confirmation will not, in practice, give any undue adyantage to the promotees. [10670-E]. Jn so far as the confirmation of respondents 6, 7 and 8 is concerned, in tl1e absence of exceptional circumstances justifying the reduction of tl::~ir nor- mal probationary period of two years, the order of the High Court confirming the three respondents before they were normally due for confirmation cannot be upheld.

The order is in clear violation of the guarantee of equal opportu- nity, by the petitioners were prejudiced and must for that reason be set. aside. [1067G-H] The power conferred by the proviso to rule 10(1) on the Governor is

ex-facie bad because such a power directly impinges upon the control vested in the High Court by Art. 235 of the Constitution. If at all any authority could exercise such a power, it is the High Court and not the Governor. The rules must now be understood to mean that the High Court and not the Gover- nor has the power of confirmation, that the normal period of probation of

direct recruits is two years and that unless there are exceptional circumstances in regard to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily completed his proba- tion of two years.

The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure. [1068B-E] As regards the power of the Governor to amend a rule with retrospective effect, since he exercises a legislative power under proviso to Art. 309, it is open to him to give retrospective effect to the rules made under that provision. But the date from which the rules are made to operate must be shown to be~r 5-6 S. C. India/ND/Bl

·R c .1030 either from the face of the rules or by extrinsic evidence reasonable nexns with the provisions contained in the rules, especially when the retrospective effect extends over a

long period. In the instant case rnle 12 which was amended retrospectively frorr\ April 9, 1976 by a notification dated December 31, 1976 is invalid because' no such nexus is shown to exist. [1068F-H] -""'

ORIGINAL JURISDICTION: Writ Petition Nos. 4228-4230 of 1978 and 266 of 1979. (Under Article 32 of the Constitution) V. M. Tarkunde, 0. P. Malhotra, K. N. Bhatt, Vijay Kumar Verma and R. C. Kathuria for the Petitioners in WPs 4228-4230/78. _A

Y. S. Chitale (Dr.), Lala Ram Gupta, C. R. Somashekharan, M. S. Ganesh, P. N. Jain and M. V. Goswami for the Petitioners in W.P. 266/79. S. N. Kackar, S. N_ Ashri, R. N. Sachthey and M. N. Shroff for Respondent 1 in WP 4228-4230/78.

Soli J. Sorabjee, and Hardev Singh for R. 2 in WPs 4228-30 of 1978 and 266/79. F. S. Nariman, B. R. Tuli and R. S. Sodhi for RR 3-11 in \VP 266/79. Kuldip Singh, Prem Malhotra and R. S. Mongia for R. 3 in

WPs 4228-30/78 and intervener. A. K. Sen and Mrs. Urmila Kapoor for R. 1 in WP 266/79. _. The Judgment of the Court was delivered by CHANDRACHUD, C.J.-These Writ Petitions under Article 32

of the Constitution involve the consideration of a two-fold contro- ver&y : first, as to the rules governing seniority between direct recruits and promotees appointed to the Superior Judicial Servrces of Punjab and Haryana and second, between the control over district courts and subordinate courts vesited in the High Court by :Art. 235 and the power conferred upon the Governor by the proviso to Art. 309 of the Constitution to make rules regulating the recruitment and conditions of service of persons appointed, inter alia, to the Judicial Service of the State.

We have two sets of Writ Petitions before us whrch involve identical pointS' except for one material difference which we will men- H1 tion later. Writ Petitions 4228 to 4230 of 1978 are filed by three

J.udrcial Officers of the State of Haryana who are promotees, that is to say, who were promoted to the Superior Judicial Service of the State B. s. YADAV v. HARYANA (Chandrachud, C.J.)

103 i from the Harvana Civil Service (Judicial Branch). Respondents 1 and 2 to those W;it Petitions are the State of Haryana and the High Court of Punjab and Haryana respectively. Respondent 3, Slrrr N. S. Rao, is a direct recruit, having been appointed from the Bar to the Haryana Superior Judicial Service.

Writ Petition 266 of 1979 is filed by twenty-two promotees, that is to say, those who were promoted to the Punjab Superior Judicial Service from the Punjab Civil Service (Judi- <:ial Branch). Respondents 1 and 2 to that petition are the State of Punjab and the High Court of Punjab and Haryana respectively. Respondents 3 to 11 were appointed directly from the Bar to the Punjab Superior Judicial Service.

Some of the more important grievances of the petitioners are that their seniority qua direct recruits is wrongly and unjustly made to depend upon the fortuitous circumstance of the date of their confirma- tion in the Superior Judicial Service; that even if a substantive vacancy is available, the confirmation of a promotee in that vacancy is post- poned arbitrarily and indefiilltely, that promotees are treated with al\ unequal hand qua direct recruits : for example, a promotee, despite his satisfactory performance and the availability of a substantive vacancy in which he can be confirmed, rs continued in an officiating capacity until after a direct recruit completes his probation and is due for confirmation, and that, the High Court applies the principle of rota- tion as between promotees and direct recruits at the time of their confirmation when, in fact, aill that the relevant rules provide for is the application of a rule of quota at the time o4' their appointment. These grievances of the promotees can best be understood in the. light of the following facts : The three petitioners in the Haryana

Writ Petitions were selected for recruitment to the Punjab Civil Ser- vrce (Judicial Branch) after qualifying in a competitive examination. They were appointed as Subordinate Judges in 1950. By Act 3 of 1966, the State of Haryana came into existence on

November 1, 1966. Petitioners 1 and 2 – Shri B. S. Yadav and Shri V. P. Aggar~ wal – were promoted in an officiating capacity to the Haryana Superior Judicial Service on July 28 and October 7, 1967 respective- ly, while petitioner No. 3 Shri A. N. f\ggarwal, was promoted similarly on March 27, 1968. Respondent 3, Shri N. S. Rao who as a mem- ber of the Bar was working as a District Attorney, was

appointtid directly to the Haryana Superior Judicial Service with effect from luly 7, 1970. The normal period of his two years' probation ;;:xpired en July 7, 1972 but before the issuance of the orders of his confirma- tion, a complaint dated August 2, 1972 was received against him.

That1 complaint was inquired into by a High Court Judge who, by .his report of March 1973, held it to be unfounded. Respondent 3 c c was thereupon confirmed by the High Court as a District and Session~ Judge with effect from March 30, 1973.

By a notification dated May 4, 1973 that date was corrected to July 7, 1972 being the date on which Respondent 3 completed the two years' probationary period. By the same notification, the High Court confirmed the

Petitioners and two other promotees as District and Sessions Judges with effect from July 8, 1972. Thus, the petitioners, who were offi- ciating continuously in the Superior Judicial Service of the State as Additional District and Sessions Judges for two or three years prior to the appointment of Respondent 3 directly to that service, lost their seniority over him by being allotted a date of confirmation which was one day later than the date on which he completed bis proba- tionary period.

(A small digression will be permissible here. The Government of Haryaua was urlwilling to concede to the High Court the right to confirm a Judicial Officer. It disregarded the High Court's order

whereby Shri N. S. Rao was confirmed and passed au order reverting hhn to the post of a District Attorney which he was holding at the time 0£ his appointment as a District and Sessions Judge. Rao filed a Writ Petition in the High Court to challenge the order of the Government.

The High Court set aside his reversion on certain other grounds but it held by a majority (N. S. Rao v. State of Har- yana(l) that the power to confirm a direct recruit vested in the Governor and not in the High Court. A Constitution Bench of this Court reversed the view of the High Court and held by a unanimous judgmeilt

(High Court of Punjab and Haryana v. S~ate of Har- yana)(~), that the power to confirm a District a.nd Sessions Judge resides in the High Court and not in the Governor). In the Punjab Writ Petition, the

contesting parties are twenty-two promotees who have filed the writ petition and Respon- dents ::I to 11 who were appointed directly to the Punfiab Superior Judicial Service. Petitioner No. 1, Shri Pritpal Singh, was promoted to that Service on November 12, 1969 when he was 44 years of age. Respondent 3, Shri J. S. Sekhon, was appointed {faectly to that Ser- vice on February 1, 1973 when he was 41 years of age. The former, though promoted to the Superior Judicial Service more than three years before the appointment of Respondent 3, was confirmed on February 3, 1975 which was one day later than February 2, 1975 on which date Respondent 3 was confirmed on the completion of hi~ two years' probation..

The grievance of Petitioner No. 1 is that a permanent vacancy was available on December 23, 1972 in which (1) ILR 1974 Punjab 121. {F.B.). (2) [1975] 3 S.C.R. 365. B. s. YADAV v. HARYANA (Chandrachud, C.J.)

he could have been confirmed but the High Court marked time in order to enable Responderfr 3 to complete his probation and gave to Petitioner 1 an arbitrary and artificial date of confirmation in order ). that he may not rank higher in seniority to Respondent 3. The case of Petitioner 1 in the Punjab Writ Petition is illustra- tive of the grievance of the other petitioners. Petitioners 2 to 6 were promoted to the Superior Judicial Service between January 1972 and August 1972. Petitioner 7 was promoted in ~pril 1973, Petitfoners 8 to 10 in August 1974, Petiti:oners 11 to 16 in 1975, Petitioner 17 in 1976, Petitioners 18 t?j20 in 1977 and Petitioners 21 and 22 in 1978. Respondents 4 and 5 were recruited directly in January 1973 and were confirmed in February 1975 on the completion of the probationary period. Their confirmation is open to no exception but, Petitioners 2 and 3 Shri Amarjit Chopra and Shri H. S. Ahluwalia who were promoted on January 16 and August 21, 1972 were confirmed on August 6 and August 7, 1976 respectively. The significance of these dates of confirmation becomes apparent in relation to the confirmation of respondents 6 and 7.

Having been appointed directly to the Superior Judicial Service on the 1st and 2nd of April 1975, they were confirmed on the 2nd and 5th August 1976 respectively, which was even before they had completed their probationary

period. Peti- tioners 2 and 3 who were promoted to the Superior Judicial Service roughly three years prior to the direct appointment of Respondents 6 and 7 were confirmed on the 6th and 7th August, 1976 which was _..

three or four days later than the dates of confirmati:on allotted to Res- pondents 6 and 7. Petitioners 4 to 22 whose dates of promotion to the Superior Judicial Service range between August 1972 and July 1978 were not yet confirmed when the Writ Petition was filed on February 27, i979.

Do the rules which apply to the members of the Superior Judicial Servi:ces of Punjab and Haryana warrant this course of action and how far are the rules valid? For deciding these questions we must neces• iarily have a look at the relevant rules.

The recruitment to the Punjab Superior Judicial Service and the other conditions of service of the members thereof are regulated by the "Punjab Superior Judi:cial Service Rules, 1963" as amended from time to time. These rules were originally framed by the Governor of Punjab in consultation with the Punjab High Court, in exercise of the powers conferred on the Governor by the proviso to Art. 309 .of the Constitution._ By that proviso, the Governor has the power to make rules regulating the recruitment and the conditions of service of per- ~ons appointed to services and posts in connection wi:th the affairs of the State.

c Rules 2, 4, 8, 9, 10, 11, 12 and 14 of the aforesaid rules which are relevant for the present purposes read as follows in so far as they are material : Rule 2 : Definitions.-( 1) 'appointment to the service' means an appointment to a cadre post, whether on permanent, tempo- rary or officiating basis, or on probation;

(2) 'cadre post' means a permanent post in the Service; (6) 'memb(:r of the Service' means a person- (a) who immediately before the c~mmencement of these ::1 rules, holds a cadre post, whether on permanent, tern-

porary or officiating basis, or on probation; or (b) who is appointed to a cadre post in accordance wi:th the provisions of these rules; (7) 'Promoted officer' means a person- ( a) who is not a direct recruit and .is holding a cadre-post whether on permanent, temporary or officiating basis or

on probation, immediately before the commencementi of these rules; or (b) who is appointed to the Service by promotion from Punjab Civil Service (Judicial Branch) .. Rule 4 : Appointing Authority.-All appointments to the

Service shall be made by the Governor in consultation with the High Court. Rule 8 : RecruUment to Service.-( 1) Recruitment to the Service shall be made- (i) by promotion from the Punjab Civil Service (Judicial

Branc:h); or (ii) by drrect recruitment. (2) of the total number of cadre-posts, two-third shall be manned by promoted officers and one-third by direct recruits : Provided that nothing in this sub-rule shall prevent the offi- ciating appointment of a member of the provincial Civil Service (Judicial Branch) on any post which is to be filled up by direct '1'

recruitment, till a direct recruit is appointed. Rule 9 : Appointment of direct recruits.–(1) No person shall be eligible for direct recruitment unless he– (i) is not less than 35 yearn and not more than 45 years

of age on the first day of January next following the year in which his appointment is made; B. s. YADAV v. HARYANA (Chandrachud, C.l.) 103_5~ (ii) has been for not less than 7 years an Advocate or a

pleader and is recommended by the High Court for such appointment. (2) No person who is recommended by the High Comt for appointment under sub-rule ( 1) shall be appointed unless he is found physically fit by a Medical Board set up by the- Governor and is also found suitable for appointment in all other respects. Rule IO : Probation.-(1) Direct recruits to. the Service shall remain on probation for a period of two years, which may be so extended by the Governor in consultation with the High Court, as not to exceed a total period of three years;

(2) On the completion of the period of probation the Gover- nor may, in consultation with the High Court, confirm a direct recruit on a cadre-post with effect from a date not earlier than the date on which he completes the period of probation;

(3) If the work or conduct of a direct recruit has, in the opinion of the Governor, not been satisfactory he may, at any time, during the period of probation or the extended period of probation, if any, in consultation with the High Court, and with- out assigning any reason, dispense with the services of such direct recruits.

Rule 11 : Reversion of promoted officers.-If the work of a promoted officer officiating on a cadre-post has, in the opinion of the Governor, not been satisfactory, he may, at any time during the period of officiation, rn consultation with the High Court,- (i) revert him to his substantive post; or

(ii) deal with him in such other manner as may be wan-anted by the terms and conditions of hrs substantive appointment. Rule 12 : Senion'1y.-The seniority, inter se, of the substan- tive members of the Service, whether direct recruits of promoted officers, shall be determined with reference to the respective dates of their confirmation.

Provided that the seniority, inter se, of substantive members of the Service having the same date of confirmation shall be d1:ter- mined as follows : (i) in the case of direct recruits the older in age shall be senior to the younger;

(ii) in the case of promoted officers, in accordance with the seniority in the Punjab Civil Service (Judicial Brnn.::h) as it stood rmmediately before their confirmation; c (1981] 1 S.C.R.

c (iii) in the case of promoted officers and direct recruits, the older in age shall be senior to the younger. Rule 14 : Selection Grades.–( 1) The members of the Service shall be eligible for promotion, permanently or provrsionally, to the following selection grade posts, carrying scales of pay specified against them : Two Selection Grade posts in the time scale of Rs. 1800-100-2000; and Two Selection Grade posts at a fixed pay of Rs. 2,250.

(2) Promotion to the Selection grade posts shall be made on merit and suitability in all respects with due regard to seniority and no member of the Service shall be entitled as of right to such promotion.

Appendix A to the rules shows that the Punjab Superior Judicial Service consisted then of 20 posts : One Legal Remembrancer and Secretary to Government, Punjab, Legislative Department; 15 District and Sessions Judges; and 4 Additional District and Sessions Judges. These rules were amended from time to time with or without the consultation of the High Court. The relevant amendments are these : On February 3, 1966 the Governor of Punjab, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution and all other powers enabling him in thrs behalf, promulgated the "Punjab Superior Judicial Service: (First Amendment) Rules, 1966". By clause 2 of these rules the following proviso was added to sub-rule (1) of rule 10 of the 1963 Rules:

"Provided that the Governor may in exceptional circum- stances of any case, after consulting the High Court, reduc~ the period of probation". On December 31, 1976 the Governor of Punjab, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution and all other powers enabling him in thi~ behalf, made the "Punjab Superior Judicial Service (Second Amendment) .Rules, 1976" in con- sultation with the High Court of Punjab and Haryana. These rules were given retrospective effect from April 9, 1976. Rule 2(2) of the 1963 Rules. defined a 'cadre post' to mean a permanent post in the service.

Clause 2 of the Second Amendment Rules substituted the following sub~rule (2) in rule 2 for the original sub-rule : "2(2) 'cadre post' mearis a permanent ·or temporary post in the , service".

\_ B. s. YADAV v. HARYANA (Clumdrachud, C.J.) Rule 12 of the 1963 Rules provided that the seniority, inter se, of the substantive members of the Service, whether direet recruits or promot- ·ed officers, shall be detern1ined with reference to the respective dates of their confirmation. Clause 3 of the Second Amendment Rules sub- ·stituted the following rule for the original rule 12 :

"12. Seniority.-The seniority, inter se, of the members of the service, shall be determined by the length _of continuous ser- vice on a post in the Service irrespective of the date of confimla- tion;

Provided that in the case of two members appointed on the same date, their seniority shall be determined as follows : (i) in the case of direct recruits, the older in age shall be senior to the younger;

(ii) a member recruited by direct appointment shall be senior to a member recmited ·otherwise ; and (iii) in the case of members appointed by promotron, senio- rity shall be determined according to the seniority of

such members in the appointments from which they were promoted." This is how the rules stand in so far as the State of Punjab is ·concerned. The State of Haryana came into existence on November 1, 1966 by Act 3 of 1966. The Punjab Superior Judicial Service Rules, 1963, as amended upto November 1966 apply to the State of Haryana -with the amendments made from time to time by the Governor of Haryana.

On March 17, 1971 certain formal amendments were made to the 1963 Rules by the Haryana First Amendment Rules, 1971. On }\pril 21, 1972 the Governor of Haryana, in exercise of the powers ·conferred by the proviso to Article 309 of the Constitution and all ·other powers enabling him in that behalf, amended the 1963 Rules 'by the Haryana First Amendment Rules, 1972, with

r_etrospective effect from April 1, 1970. By Claus~·3 of the Am,cndment, the defini- tion of "cadre post" in Rule 2(2) was amende<;l to mean a post, whether permanent or temporary, in the service. Rule 8(2) of the 1963 Rules . . provided that the total number of cadre post~, two-third shall · be manned by promoted officers and one-third by direct recruits. Clause 5 of the Amendment altered this ratio by providing that of the total number of posts, three-fourth shall be manned by promoted officers and one-fourth by direct recruits.

Rule 12 governing seniority was ·amended by clause 6 in the same manner as in Punjab, that is to say, c by providing that the seniority of the members of the service, whether direct recruits or promoted officers, shall be determined by the length of continuous service cm a post in the service irrespective of the date of confirmation. As an aside we may mention, though it has no direct relevance in the points under consideration, that on December 3, 1976 the Governor in the exercise of his constitutional and other poweF.s promulgated an amendment providing that :

"No person- (a) who has more than two children and has not got himself or herself or his or her spouse sterilised, or (b) who, having not more than two children, does not give an undertaking not to have more than two children,

shall be allowed to join the Service." On September, 2, 1977 the Governor in the exercise of his constitu- tional and other powers further amended the Rules with retrospective effect from Apri:l 1, 1970. The definition of 'cadre post' in rule 2(2) was once again amended to mean "a permanent post in the Service". Similarly, Rule 8(2) was amended for the purpose of restoring the quota between promotees and direct recruits. Once again, two-third of the cadre po8ts were to be manned by promoted officers and one-third by direct recruits. Rule 12, which deals with seniority, was also amended so as to restore the original position by providing that the seniority of members of the Service will be determined with reference to the dates of confirmation. In short, the Haryana First Amendment Rules, 1977, which were given retrospective effect from April 1, 1970, superseded the amendments made by the Haryana First Amendment Rules, 1972 and restored the position as it obtained originally under the 1963 Rules, in regard to the definition of 'cadre post', the quota between promotees and direct recruits and the rule of seniority.

Ever since November 1, 1966 when the State of Haryana was form- ed, there has been a commmi High Court for the States of Punjab and Haryana called the High Court of Punjab and Haryana. Two separate High Courts were not created for these two States probably because of considerations of viability in'regard to one of the States and the need to foster a spirit of national integration. But the fact of there being two separate Governors for the two States with independent powers under the proviso to Article 309 of the Constitution has made the task of the High Court difficult and unenviable. The Chief Justice and Judges of the Common High Court of the two States are faced with the predicament of applying one set of service rules to members of the Superior Judicial Service of one State and a totafly different. ' \.

B. s. YADAV v. HARYANA (Chandrachud, C.J.) and to a large extent opposite, set of rules to those of the other State. As the matter stands to-day, (and we mean what we say because there is no knowing when one or the other State will amend the rules and with what, degree of retroactivity) under the Haryana First Amendment Rules, 1977, 'cadre post' means a permanent post in the Service. Tem- porary posts are not cadre posts in Haryana. In Punjab, 'cadre post' means both permanent and temporary posts in the Superior Judiciary. The definition of 'cadre post' has a significant bearing on the fortunes and future of judicial officers. In Punjab, prior to the amendment made to the 1963 Rules on December 31, 197 6 promotees alone used to be appointed, though on an officiating basis, to temporary posts in the Superior Judicial Servrce.

Direct recruits were not appointed to temporary post& because temporary posts were outside the cadre and direct recruits were appointed to cadre posts only, in which they were entitled to be confirmed on the completion of the probationary period. After the amendment, applications were invited for direct recruitment to temporary posts also with the result that promotees lost the opportu- nity of being appointed to those posts, though on an officiating basis. Respondents 9 to 11 in the Punjab writ petition were appointed direct- ly in July 1977 to temporary posts' of Additional District and Session Judges.

In regard to the rule of seniority, the posifo:m as it obtains in the two States is fundamentally different : In Punjab, under rule 12 as amended on December 31, 1976 with retrospective effect from April 9, 197 6, seniority is dete1mined by the length of continuous service on a post irrespective of the date of confirmation. In Haryana, rule 12 as it stood originally was revived with effect from April 1, 1970 with the result, that seniority of judicial officers in the Superior Judicial Service is determined with reference to the dates of confirmation. The High Court has to deal with one set of officers under its control on the basis that the date of confirmation is the correct criterion of seniority and with another set of officers, also under its control, on the basis that the length of continuous officiation in a post is the true test of seniority.

Whatever decision the High Court takes or is driven to take administratively in the matter of seniority of judicial officers be- comes a bone of contention between the promotees and direct recruits. Sometimes, the administrative decision satisfies neither the one class nor the other, leading to a triangular controversy.

The frequent amendments to the rules which are often given a long retrospective effect, as long as seven years, makes the High Court's administrative 1039' c task difficult. And if the amendments are made either without con-

sult!ng the High Court or against its advice, the High Court has a delicate task to perform because if it adheres to its opinion, it is ac- cused of bias and if it gives up its stand, it rs accused of being weak- kneed and vascillaHng.

The administrative decisions taken by the High Court m the instant cases from time to time have been assailed by members of the Judiciary on one or the other of these grounds. That is hardly conducive to the sense of discipline and the feeling of brotherhood which ought to animate the Judiciary. Surely, the State Governments of Punjab and Haryana could have saved the High Court from this predicament by evolving a common set of rules of seniority,' at least in the name of national integration. There is nothing peculiar in the soil of Punjab and nothing wanting in the soil of Haryana to justify the application of diametrically opposite rules of service to the judicial officers of the two States. The territories comprised in these two States were at one time, and that too not in the distant past, parts of the territory of the same State of Punjab. The promotees, at any rate, who figure in these proceedings, all flowered on the soil of Punjab but are not told that their claim to seniority wm depend upon whether they remained in Punjab or were allotted to Haryana.

This unfortunate position has arisen largely because of the failure of the State Governments to take the High Court into confidence while amending the rules of service. The amendments made in Punjab

on December 3, 1966 with retrospective effect from April 9, 1976, including the amendment to rule 12 governing seniority, were maile in. the teeth of opposition of the High Court and indeed, in ~o far as tho retrospective effect of the rules is concerned, the amenament was made without consulting the High Court. In Haryana, rule 12 was amended in 1972 with retrospective effect from April 1, 1970 contrary to the advice of the High Court.

The plain infirmity of that amendment could be that it was designed to operate to the detriment of one and only one judicial officer who was directly recruited to the Superior Judicial Service, namely, Shrr N. S. Rao, who is respondent No. 3 to the Haryana Petitions.

The original rule 12 was, however, subse- quently, restored by the State Government by yet another amendment dated September 4, 1977. There was a change in the Government which evidently led to a change in the rnle~, as if service rules are a plaything in the hands of the Government.

This only show~· how essential it is for the Governors, though not as a constitutional require- ment, to consult the High Court before framing rules under tho proviso to Article 309 of the Constitution. Consultation, be it said is not to be equated with the formal process of asking the High Court what opinion it holds on a particular issue.

Consultation is …. B. s. YADAV v. HARYANA (Chandrachud, C.J.) meaningful prelude to th.e proposed action, whereby the High Court is afforded an opportunity to discuss the matter under consideration and to meet the Government's or Governor's reasons for the proposed action. In the instant case, the High Court could have made an effort to persuade one or the other Governor to see its point of view; or else, it could at least have impressed upon the two Governors the impera- tive need to adopt an identical pattern of rules· for the two States which are blessed with a common High Court.

Little wonder then that the Superior Judicial Service of the two States was thrown into a state of turmoil and uncertainty. Neither promotees nor direct recruits felt secure about their exrsting rank or seniority because the rules were befog amended from time to time, sometimes just to suit the convenience, sometimes to tide over a temporary crisrs, sometimes to appease a class of officers who shouted louder and at least once in order to strike at an individual. The

amendments to the rules led to a spate of representations from the members of the service to the High Court and human nature being what it is, Judicial Officers were not wanting who sought the inter- cession of the concerned State Government in order. to advance the . interests of an individual or the interest of a class. Once it was known that the Governor could ignore or defy the High Court while framing rules of service, the centre of power shifted from the Nyayalaya to the Mantralaya which is an undesirable state of affairs becau>e thereby the very independence of the Judiciary is put in jeopardy.

Questions regarding confirmation, seniority and the equitable inte- gration of direct recruits and promotees had plagued the High Court for nearly two decades, even before the separate State of Haryana was formed.

These questions were further complicated by the changes brought about in the rules of 1963 by the respective State Governments of Punjab and Haryana. The case of Shri N. S. Rao, who is respondent 3 to the Haryana Writ Petition, is an

eloquent illustration of the effect of the amendments made to the rules with retrospective effect. At the time when the Governor of Haryana amended the rules in 1972 with retrospective effect from April 1, 1970, Shri N. S. Rao was the only direct recruit in the Haryana Superior Judici:al Service. He was appointed on probation on July 7, 1970. The amendment was given retrospective effect from April 1, 1970, as if to demote him and him alone.

In so far as the Haryana Writ Petitions are concerned some time in February 1972 the Punjab and Haryana High Court took up the question of confirmation of some of the promotees, including the petiti:oners, against the permanrnt posts which fell within the quota c

io4 2 of promotees out of the six permanent posts which were newly creat- ed w.e.f. January 18, 1972. Before the High Court could decide the question of confirmation of the promotees against the aforesaid posts, respondent 3 made a representation to the High Court on February 13, 1972 contending that the ratio of 2 : 1 between the promotees and direct recruits had to be maintained at all stages, that is to say, not only at the time of appointment but at the time of confirmation also.

The High Court appears to have postponed the confirrnatiol'l of the promotees in response to respondent 3's representation. Later respondent 3 was confirmed with effect from July 7,

1972. Five promotees including the three petitioners were confirmed w.e.f. July '8, 1972, that is, a day after respondent 3 was confirmed. The Gover- nor of Haryana refused to recognise the order of confirmation of respondent 3 passed by the High Court and he reverted the latter to the post of a District Attorney w.e.f. June 23, 1973. Respondent 3 challenged the order of bis reversion by Writ Petition No. 2147 of 1973. The Petition was beard by a special Bench of five Judges of the High Court which set aside the order of reversion of respondent 3 but held by a majority that the order of respondent 3's confirmation passed by the High Court was invalid since the power to confirm a District & Sessions Judge was vested in the Governor and not in the High Court.

The Judgment of the High Court is' reported in Narendra Singh Rao v. State of Haryana(1). The view of the High Court regarding the power of confirmation was set aside by this Court by its judgment dated January 24, 1975 in High Court of Punjab and Haryana v. The State

of Haryana. (2 ). It was held by this Court that the power to. confirm a District and Sessions Judge resides in the High Court and not in the Governor. Petitioner No. 1 then made representations to the High Court on February 12 and March 31, 1975 contending that recruitment to the Superior Judicial Service was governed by a rule of quota only and not also by the rule of rotation; therefore, it was not open to the High Court to give an arbitrary date of confirmation to the promo- tees. Petitioners 2 and 3 also made similar representations. In the meanwhile the Governor of Haryana amended rule 12 by the Ffar- yana First Amendment Rules 1972 providing that the seniority of the members of the Service, direct recruits or promoted officers, shall be determined by the length of the continuous service on a post in the service irrespective or the date of confirmation. In pursuance of that amendment, the High Court decided by an administrative order dated November 2, 1975 that the Petitioners were senior to (!) ILR [1974] 1 Punj. & Har. 121.

(2) [1915] 3 S.C.R. 365. B. s: YADAV v. HARYANA (Clwndrach1id, C.J.) r~spondent 3. It does not, however, appear to have taken any decision on the representations of the petitioners that the rule of rotation cannot be applied at the time of confirmation.

Aggrieved by the order of the High Court that the petitioners were ~enior to respondent 3 by reason of the amended rule 12, the latter filed yet another writ petition, No. 100 of 1977, in the High Court (lrnllenging the vires of the amended rule 12.

During the pendency of that Writ Petition, the Governor of Haryana amended the rules again by a notification dated September 2, 1977 rescinding the amendment introduced to the rules in April 1972. The original rule 12 thus having been restored, the High Court dealt with respon- dent 3's writ petition on the basis that he had automatically become senior to the petitioners. The High Court therefore confined its judgement to the question of inter se seniority between respondent 3 and Shri J. M. Tandon (now a Judge of the High Court).

The representations of the petitioners appear to have been rejected by the High Court since on June 6, 1978 respondent 3 was granted the selection grade, presumably on the basis that he was senior to the petitioners. It is thereafter that the petitioners filed these writ peti- tions (4228 to 4230 of 1978) under Art. 32 of the Constitution, claiming the following reliefs :

(a) a writ of certiorari directing respondents 1 and 2 (the State of Haryana and the High Court of Punjab & Haryana respectively) to quash the order dated May 4, 1973 where- by respondent 3 was confirmed w.e.f. July 7, 1972 and the

order dated June 6, 1978 grantrng the selection grade tci him; (b) a writ of mandamus declaring rule 12 of the Rules as vioia- tive of the fundamental rights of the petitioners ~aranteed under Articles 14 and 16 of the Constitution; and

(c) a writ of prohibition restraining respondents 1 and 2 from taking any action on the new seniority list or in pursuance of the orders dated May 4, 1973 and June 6, 1978. This is the genesis of the controversy between the proi:iiotees and direct recruits in Haryana.

In Punjab, matters were· in no better -.,. shape, though it must be said to the credit of it1> Governor that no amendment was made with ari evil eye on any individual Judicial Officer.

In 1975, the '.Associ:ation of promoted officers made a re- presenfation to the State Government asking that in order to avoia arbitrary dates of confirmation being given to the pr0motee8, continu- ous officiation in the service and not the date of confirmation should be accepted as the criterion of seniority, as was done in the case of SUPREME COliRT REPORTS

c other employees of the Punjab Government. The State Government forwarded that representation to the High Court for its comments but the High Court appears to have kept the matter pending with it for quite some time. Sometime in 1976, the State Government ulti- mately sent a draft notification to the Hrgh Court proposing an amendment to the Rules. It seems that the Government did not then convey to the High Court its intention to give retrospective effect to the proposed amendment. By that time, ten vacancies in the quota of promoted officers had become available and an equal number of promoted officers was officiating for more than three years as Addi- tional District and Sessions Judges.

The High Court, however, did not confirm the promotees in those vacancies. On the contrary, apprehending that the proposed amendment to rule 12 may be given- retrospective effect, the High Court- confirmed the promotees and the direct recruits by applying the rule of rotation. It issued a Notifica- tion dated August 25, 1976 which was

published in the Punja1' Government Gazette dated September 3, 1976, whereby Respond- ents 3 to 8 were given prior dates of confirmation in comparison with the promotees. The confirmation of eight promotees was evidently

postponed. In the case of respondents· 6 to 8, the period of proba- tion of two years was reduced by the High Court substantially. Respondent 6, Shri B. S. Nehra, was appointed on probation on April 1, 1975 and was confirmed on August 2, 1976. Respondent 7, Shri T. S. Cheema, was appointed on probation on April 2, 1975 and was confirmed on August 5, 1976. Respondent 8 Shri J. S. Sidhu was appointed on April 11, 1975 and was confirmed with effect from August 8, 1976. Thus, these direct recruits were confirmed within a period of one year and four months after their appointment, though the normal period of probation is two years.

On the issuance of the Notification dated August 25, 1976, petitioner 1 addressed a representation to the High Court stating that he was officrating in the Superior Judicial Service with effect from November 12, 1969 and asking that he should be confirmed in the post which became available from December 23, 1972. He complain- ed against the date of confirmation, February 3, 1975, allotted to him as arbitrary. •

Rule 12 of the Rules was thereafter amended by the Governor of Punjab by a Notification dated December 31, 1976 whiCh was given retrospective effect from April 9, 1976. By that amendment, Seniority was to be determined by the length of continuous service on a post in the service, irrespective of the date of confirmation. The direct recruits, respondents 4 to 9, addressed a representation to · the High Court contending that their seniority as fixed py the High B. s. YADAV v. HARYANA (Chandrachud, C.J.)

104 5 Court's Notification dated August 23, 1976, with reference to the respective dates of their confirmation, ought not to be disturbed. They also challenged the validity of rule 12.

For the purpose of considering those conflicting claims of pro- motees and direct recruits, the High Court constituted a sub-com- mittee consistrng of three Judges, S. S. Sandhawalia

(now Chief Justice), Bhopinder Singh Dhillon and Gurnam Singh, JJ. The Com- mittee gave an oral hearing on February 7, 1979 to the representa- tives of the promotees and drrect recruits.

The High Court, how- ever, has not readjusted the seniority of the promotees and direct recruits in the Irght of amended rule 12. It is interesting that before the Sub-Committee heard the re- presentatives of the promotees and direct recruits, a Full Bench of five Judges of the High Court of Punjab and Haryana, delivered its judgment on December 13, 1977 in Civil Writ 100 of 1977 which was filed by Shri N. S. Rao, who is respondent 3 in the Haryana petition. By the aforesaid judgment which is reported in AIR 1978 (P and H) 234, the High Court rejected the plea of Shri Rao that the rules not only required the application of a rule of quota at the time of appointment but they also required the application of a rule of rotation at the time of confirmation.

At page 240 of the report appears the conclusion of the High Court to the effect that rules 8 and 12 were independent of each other, that rotational system could not be implicitly read in the quota rule provided for by rule 8 and. that ·members of the Superior Judicial Service were entitled to claim seniority strictly in accordance with the provisions of rule 12. The grievance of the promotees is that this decision which was rendered by the High Court rn the exercise of its judicial functions is not being followed by the High Court in the discharge of its

administrative duties. After the amendment of rule 12 by the Notification dated . December 31, 1976, two vacancies of District and Sessions Judges arose and on each of these occasions the High Conrt promoted a drrect recruit, treating the date of his confirmation as the criterion of seniority.

In the quarterly Gradation and Distribution list of officers of the Judicial Department which the High Court putlishes, the inter se seniority has been shown according to the dates of confirmation and not rn accordance with the amended rule 12. One of the grievances of the promotees is that the High Court amended the quarterly Gradation List in compliance with the

amendments made by the Governor of Haryana in rule 12 but it did not amend the Gradation List of the Punjab Officers in compliance with the amended n.tle 12. 6:-6 S. C. India/ND/81

This, according to the petitioners, has deeply affected their sense of security, contentment and well-being. It is said that eight more vacancies arose within the quota of promotees after the High Court issued the Notification dated August 25, 1976 but the pro- motees, who were officiating for a period of more than three years, c

have not yet been confirmed in those posts. One of the other grievances of the peti:tioners is that the High C<mrt acted upon the amendment made by the Governor .. of Punjab , on December 31, 197 6 in the definition of 'cadre post' by appointing direct recruits to temporary posts in the Superior Judicial Service. It however ignored the other amendment effected by the same Noti- fication, namely, amendment to rule 12, under which

continuous officiation is the test of seniority. Being aggrieved by the Gradation List prepared by the High Court, the promotees• in Punjab have filed Writ Petition 266 of 1979 in this Court claiming the following reliefs :

(i) an appropriate writ or direction quashing the impugned notification dated 25th August, 1976; (ii) a writ of mandamus directing the High Court to discharge its constitutional obligation to redetermine the seniority inter se of all the members of the Punjab Superior Judicial Service in accordance with the provisions of rule 12, as

amended by the notification dated December 31, 1976 and to make corrections in the Gradation and Distribution Li:sts, accordingly; (iii) an appropriate writ, directing the State Government

and the High Court to confirm the petitioners wi:th effect from the dates• that the vacancies arose and became available in t11eir quota without applying the rule of rotation; (iv) an appropriate writ directing the High Court to consider afresh the matter of filling up four vacancies of District and Sessions Judges which occurred after 9-4-1976 and

to readjust the seniority and respective datel! of confirmation of ilie petitioners and re1>pondents 3 to 11 in accordance with the amended rule 12; {v) a writ of prohibition restraining the State of Punjab and the High Court from acti:ng upon ilie seniority fixed prior to the amendment of rule 12, for any purp080

whatsoever, including further promotion~ within the Service; and (vi) a writ of certiorari qu!l.l>hing rule 11 of the Rales as being violative of the fundamental righti; of the petitioners

guaranteed under Articles 14 and 16 of ilic Constitution. B. s. YADAV v. HARYANA (Chandrachud, C.J.) These then are the respective grievances and demands of the promotees and direct recruits in the Superior Judicial Services of

Punjab and Haryana. In so far as the High Court i'S concerned, its point of view may best be stated in the language of the report dated May 2, 1978 which was submitted by the Sub-Committee consisting of its three learned Judges. After setting out the background of the controversy, the report says:

"It is in the aforesaid context that the question pointedly and squarely arises, whether the determination of seniority of the members of the Service isi a matter which is within the ~xclusive jurisdiction of the High Court as a necessary consequence of the control vested in it by virtue of Article 235 of ihe Constitution of India. If that be so, then it is plain that any intrusion into the field of this control by any agency other. than the High Court would be unwarranted and therefore, unconstitutional. We are of the firm view that both on principle and logic and in view of the trend of the pre&ent authorities, it appears to be plain that the Seniority of the members of the judicial Service is so integral and vital to the control of the High Court over them, that any erosion thereof would both be violative of Article 235 of the Constitution and equally run counter to the settled con- .cept of the independence of judiciary which is now coming to be recognised as the basic feature of the Constitution. . . . . . . . . it follows a fortiori that if seniority of 'the members of Superior Judicial Service is once deemed to be not within the control of the High Court under Article 235, then, in fact, it could be determined by the State Governments by malCing rules without even reference or consultation with the High Court.

Such a position would be utterly anomalous and wholly destructive of the exclusive control over the district courts and courts sub- ordinate thereto vested in the High Court by Art. 235.

It ap- pears to be well-settled both on principle and precedents that the power of determining the seniority of the members of the Service cannot possibly be vested in an authority other than the High Court. For example, it cannot on the existing provisions be vested in the Governor or the State Government. Therefore, it appears to us that what the State Government cannot · do directly, it cannot be allowed to do indirectly by framing rules even by the exercilie of executive power vested in it by virtue of Article 309 and without oven conliulting or informmg the High Court. H is, however, well-liettled that Art. 309 i~ ittbject to the other provisions of the Constitution.

Therefore the control over the nbordinate i•diciary vested in the High Court 104 7 c 104 8 by Article 235 must necessarHy override Article 309 wherever the two happen to conflict at all.

Comequently, if seniority is exclusively within the ambit of the control of the High Court, then it cannot be surreptitiously intruded upon either directly or by devious method of framing rules under Article 309 without -4.

c even reference or consultation. with the High Court." "The true rationale underlying the ratio of N. S. Rao's cose and the subsequent decisions of Their Lordships of the Supreme Court to which a reference would foll~w appears to be that in the field of control over the district courts and courts subordi- nate thereto under article 235, there cannot be a duality. There cannot exrst control by the High Court on the one hand and by the State Government or the Governor on the other. Therefore, the -situation that seniority must be determined by the

Stater Government without reference or consultation with the High Court cannot be countenanced in prindple. To our mind this would! be a patent example of a duality of control against which the final Court has firmly set its face."

"On principle, therefore we are of the view that the senio- rity of the members of the Superior Judicial Service is exclusively within the control of the High Court under Article 235 .and the State Government is, therefore, not competent to frame or alter rules with regard thereto".

After examining the decisions of this Court and ·of various High Courts, the report concludes thus : ''Both on principle and precedents we are of the view that the Seniority of the members of hrgher Judicial Service being vested entirely under the control of the High Court cannot be intruded upon by the framing and re-framing of rules by the State Government, which it is not competent to make and conse- quently r~le 12 is ultra vires of Article 235 of the Constitution." "Once we arrive at that finding, it is obvious• that till the vires of the said rule are authoritatively pronounced upon on the judicial side, no firm basis can exist for determining the indivi- dual seniority inter se of the members

of the Service–both direct recruits and promotees – whose innumerable representa- tions are before the Committee. The High Court has earlier taken· action on the basis of some of the earlier amendments to the rules and on the administrative side it would be obviously inept to take up a contradictory position now. Even other~e it does not appear appropriate to us in the present case to act B. s. YADAV v. HARYANA (Chandrachud, C.J.)

104 9 administratively in violation of the purported promulgation of statutory rules on the point. There is thu~ no choice but to place the matter squarely for a binding and authoritative ded- sion on the judicial side forthwith."

"The High Court inevitably is the guardian of the indepen- dence and integrity of the subordmate judicial service, whose control is constitutionally vested in it. As an institution, it is

fundamentally interested in the maintenance of these traits. We are of the view that it would be invidious tci push a private litigant or any one of the affected members of the judicial ser- vice to a court of law to seek the necessary decision.

This burden, therefore, must also be carried by the High Court. We would consequently recommend that the Registrar be directed to immediately initiate necessary proceedings under Article 226 of the Constitution of India on behalf of the High Court."

"Once it is settled that the determination of seniority of the members of the Superior Judicial Service vests exclusively in the High Court, then there is no manner of doubt that such control inevitably implies, the power of. framing rules to make the exer- cise of such control feasible, convenient and effective. This has been recently settled in the Constitution Bench judgment report- ed in State of U.P. v. Tripathi, AIR 1978 (Vol. 2) S.C. Cases page I 02.

We have no doubt in our mind that rules for the de,termination of the seniority inter se of the members of the Superior Judicial Service can be framed to the satisfaction of both the wings of the promotees and direct recruits".

The Haryana Writ Petition was filed in this Coart by the pro- motees in July 1978 and the Punjab Writ Petition wa~ filed in February 1979. The High Court was thereby spared the need to have a Writ Petition filed under Article 226 before itself and the embarrassment of being required to decide it.

The arguments advanced before us by the learned c.ounsel for c the promotees, direct recruits, the High Court of Punjab and –;. Haryana, the Goverqment of Punjab and the Government of Haryana cover a wide range but on a careful analysis of those arguments, the questions raised by the counsel resolve themselves into two issues.

They are : (1) whether the power to frame rules of seniority of Dis- trict and Session Judges vests in the Governor or in the High Court and (2) whether the High Court, basing itself en the rule of quota, is justified in applying the rule of rotation at the time of the conlirma- tion of promotees and direct recruits as District and Session Judges. t1981] 1 S.C.R.

The decision of the first question depends on the scope, mean- c ing and purpose of the provi:sions contained in Article 309 and Arti- cle 235 of the Constitution. Article 309 reads thus:

"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of anv State:

Provrded that it shall be competent for the President or such person as he may direct in the case of services and posts in con- nection with the affairs of the Union, and for the Governor of a State or wch person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such iervices and posts until provisi:on in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any 5uch Act".

Article 235 reads thus : "235. The control over district courts and Courts subordi- nate then~to including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article .. £hall be construed as taking away from any such person any rrght of appeal which he may have under the law regulating the conditions of his ilervice or as authorising the High Court to deal ._,

with him otherwise than in accordance with the conditions of his service prescribed under iUCh law." It is urged by Shri V. M. Tarkunde who appears on behalf of the promotees in Haryana that if the two parts of Article 235 are read together, it will be obvious that the control which the High Court is entitled to exe.:cise over District Courts and courts

subordinate thereto does not include the power to make rules regulating the conditrons of iorvice of judicial officers. According to the learned "" coun5el, the power which the Constitution has

conferred on the Governor by the proviso to Article 309 i~ a legislative and not an executive power; and since the Governor exercises a legislative power while making rules under the proviso to Article 309, the principle of the independence of the judiciary is not in any manner violated there- by.

Judicial independence, says the Counsel, means freedom from executive interference, not freedom from laws. B. s. YADAV v. HARYANA (Chandraclutd, C.J.) Shri A. K. Sen, Shri S. N. Kackkar, Dr. Y. S. Chitale, Shrr F. S. Nariman and Shri B. R. Tull supporte<l the argument of Shri Tar- kunde by citing various decisions of this Court and of the High Courts, the connected provisions of the Constitution and the debates of the Constituent Assembly.

On the other hand, it was contended by the learned Solicitor General, Shri Sorabji, who appe3.!S on behalf · of the High Court that the paramount object of Article 235 is to secure the independence of the judiciary by insulating rt from execu- tive interference, which postulates that once an appointment of a judicial officer is made, his subse_quent career should be under the control of the High Court. He should not be exposed to the possibi- lity of any improper executive pressure in the course of his judicial career.

The control over the subordinate judiciary, which is vested in the High Court by Article 235, is exclusive in nature,. comprehen- sive in extent and effective in operation. There can be no duality in these matters, says the Solicitor General, and therefore the power to frrune rules· in regard to seniority of judicial officers must reside in the High Court and not in the Governor.

That, according to the Solicitor General, is a neces~ary consequence of the control over the subordinate courts which is ve~ted in the High Court. There is no direct decision on the question whether the Gover- nor, in the exercise of power conferred by the proviso to Article 309, c

has the power to frame rules regulating the seniority of judkial officers of the State. The reMon for the absence of precedent on this· point, when law reports are overflowing with constitutional decisions, probably is that during the last thirty years of the working of our Constitution, no one ever disputed the power of the Governor to frame rules governing seniority of judicial officers. In several States such rules are in force in the absence of a law passed by the State iegislature on the subject and High Courts have been applying those rules fr.om time to time and case to case without demur. It is also significant that hardly any High Court has framed rules of its own for determining the seniority of its judicial officers.

Even the High Court of Punjab and Haryana, which disputes· the right of the Gover- nor so to frame rules, has not made any rules of its own to occupy that field. All this, which is stark history, cannot be dismissed by

saying that the absence of a precedent is no authority for holding that what has not been challenged is lawful. It is true that the novelty of a contention cannot be its infirmity and indeed law would have re- mained static and stagnant if it had not been allowed to grow from c

case to case. But the point of the matter is that there has been no unconcerned acquiescene by High Courts and jud!cial office-rs in rules framed by the Governors. In Haryana itself, respondent 3, Shri N. S. Rao; challenged the Governor's power to override the order of his confirmation which was passed by the High Court.

And he won. Whenever there was the semblance of a justification for doing so, either one or the other party motivated by personal interest or out of the b;roader consideration that the High Court's controlling jurisdi'C- tion must remain ·inviolate has challenged the rules framed by the Governor as being excessive.

But there is a good reason why the rules of seniority framed by the Governor have been acquiesced in, all over the country, over all these years. The reason is as follows : On a plain reading of Articles 235 and 309 of the Constitution, it is clear that the power to frame rules regarding seniority of officers in the judicial servrce of the State is vested in the Governor and not in the High Court The first part of Article 235 vests the control over distriCt courts and courts subordinate thereto in the High Court. But the second part of that article says that nothing in the article shall be construed as taking away from any person belonging to the judi'Cial service of the State any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescrrbed under such law. Thus, Arti- cle 235 itself defines the outer limits of the High Court's power of control over the district courts and courts subordinate thereto. In

the first· place, in the exercise of its control over the district courts and subordinate courts, it is not open to the High Court to deny to a member of the subordinate judicial service of the State· the right of appeal given to him by the law which regulates the conditions of his service.

Secondly, the High Court cannot, in the exercise of its power of control, deal with such person otherwise than in accordance with the conditions of his service which are prescribed by such law. Who has the power to pass such a law? Obviously not the High Court because, there is no power in the High Court to pass a law, though rules made by the High Court in the exercise of power conferred upon it in that behalf may have the force of law. There rs a distinction between the power to pass a law and the power to make rules, which by law, have the force of law. Besides, "faw" which the second part of Art. 235 speaks of, is law made by the· legislature because, if it were not so, there was no purpose in saying that the High Court's power of control will not be construed as taking away certam rights of certain persons under a law regulating their condi- tions of service. It could not have been possibly intended to be B. s. YADAV v. HARYANA (Chandrachud, C.J.)

provided that. the High Court's power of control will be subject to the conditions of service prescribed by it. The clear meaning, there- fore, of the second part of Article 235 is that the power of control vested in the High Court by the first part will not deprive a judicial officer or the rights conferred upon him by a law made by the legisla- tion regulating him conditions of service.

Article 235 does not confer upon the High Courts the power to make rules relatin_g to conditions of service of judicial officers attach- ed to district courts and the courts subordinate thereto. Whenever, it was intended to confer on any authority the power to make any special provisions or rules, including rules· relating to conditions of service, the Constitution has stated so in express terms.

See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1), and 2(148)(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2). Out of this fasciculus of Articles, the provisions contained in Articles 225, 227(2) and (3) and 229 ( 1) and (2) bear relevance on the question, because these Articles confer power on the High Court to frame rules. for certain specific purposes. Article 229(2) which is directly in point provides in express terms that subject to the provisions of any law made by the legislature of the State, the conditions of service of officers and ser- vants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the pur- poses.

With this particular provision before them, the framers of the Constitution would not have failed to incorporate a similar provi- skm in Article 235 if it was intended that the High Courts shall have the power to make rules regulating the conditions of service of judi~ dal officers attached to district courts and courts subordinate thereto. Having seen that the Constitution does not confer

upon the High Court the power to make rules regulating the conditions of service of judicial officers of the district courts and the courts sub- ordinate thereto, we must proceed to consider : who, then, possesses c

that power? Article 3 09 furnishes the answer. It providei; that Acts of the appropriate legislature may regulate the recruitment and condi- .,.. -tions of service of persons appointed to posts in connection with the affairs of the Union or of any State.

Article 248(3), read with Entry 41 in List II of the Seventh Schedule, confers upon the State legislatures the power to pass laws with respect to "State public services" which must include the judicial services of the State. The power of control vested in the High Court by Art. 235 is thus ex- pressely, by the terms of that Article itself, made subject to the Jaw which the State legislature may pass for regulating the recruitment c

and service conditions of judicial officers of the State. The power to pass such a law' was' evidently not cons!dered by the Constitution- makers as an encroachment on the "control jurisdiction" of the High Courts under the first part of Article 235.

The control over the district courts and subordinate courts is vested in the High Court in order to safeguard the independence of the jud!ciary. It is the High Court, not the executive, which possesses control over the State judi- ciary. But, what is important to bear in mind is that the Constitution which has taken the greatest care to preserve the independence of the judiciary did not regard the power of the State legislature to pass laws regulating the recruitment and conditions of service of judicial officers as an infringement of that independence.

The mere power to pass such a law is not violative of the control vested in the High Court over the1 State Judiciary. It is in this context that the proviso to Art. 309 assumes relev- ance and importance.

The State legislature has the power to pass laws regulating the recruitment and condrtions of service of judicial officers of the State. But it was neces~ary to make a suitable provi- sion en1tbling the exercise of that power until the passing of the law by the legislature on that subject. The Conititution furnishes by its provisions ample evidence that it abhors a vacuum.

It has therefore made provisions to deal with situations which arise on account of the ultimate repository of a power not exercising that power. The proviso to Art. 309 provides, in so far as material, that until the State legisla- ture passes a law on the particular subject, it ihall be competent to the Governor of the State to make rules regulating the recruitment and the conditions of service of the judicial officer!> of the State. The Governor thus steps in when the legislature does not act. The power —'.

exercised by the Governor under the proviso is thus a power wh!ch the legislature is competent to exercise but has in fact not yet exer- cised. It partakes of the characteristics of the legislative, not execu- tive, power. It is legislative power.

That the Governor posse~ses legislat!ve power under our Constitution is incontrovertible and, therefore, there is nothing uniqtte about the Governor's power under the proviso to Article 309 being in the nature of a legislative power.

By Article 168, the Governor of a State is a part of the legislature of the State: And the most obvious exercise of legislative power by the Governor is the power given to him by Art. 213 to promulgate ordinances when the legisla- ture is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises· : the power to make laws. The heading of Chapter IV of Part VI of the Constitu- tion, in which Art. 213 occurs, is significant : "Legislative Power of B. s. YADAV v. HARYANA (Chandrachud, C.l.)

the Governor". The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislatrve power. Under Article 213, he substitutes for the legisla-

ture because the legislature is in recess. Under the proviso to Arti- cle 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject. It is true that the power conferred by Article 309 is "subject to" the provisions of the Constrtution. But it is fallacious for that reason to contend that the Governor cannot frame rules

regulating the recruitment and conditions of service of the judicial officers of the State. In the first place, the power of control· conferred upon High Courts by .the first part of Article 235 is expressly made subject, by the second part of that Article, to laws regulating conditions of ser- vice of ru· judicial officers. The first part of Article 235 is, as it were, subject to a proviso which carves out an exception from the area covered by it. Secondly, the Governor, in terms equally express, is given the power by the proviso to Article 309 to frame rules on the subject.

A combined reading of Articles 235 and 309 will yield the result that though the control over Subordinate Courts is vested in the High Court, the appropriate legislature, and until that legislature acts, the Governor of the State, has the power to make rules regulat- ing the recruitment and the conditions of service of judicial officers of the State. The power of the legislature or of the Governor thus to legislate is subject to all other provisions of the Constitution like, for example, Articles 14 and 16.

The question rarsed before us is primarily one of the location of the power, not of its extent. The second part of Article 235 recognises the legislative power to provide for recruitment and the conditions of service of the judicial officers of the State. The substantrve provision of Article 309, including its proviso, fixes the location of the power. The opening worc:IS of Arti- cle 309 limit the amplitude of that power.

We entertain no doubt that seniority is a condition of service and an important one at that. The control vested in the High Court by the first part of Artrcle 235 is therefore subject to any law regulat- ing seni<_irity as envisaged by the second. part of that article. The

power to make such law is vested by Article 309 in the legislature, and until it acts, in the Governor. Whether it is the legislature which passes an Act or the Governor who makes rules regulating senrority, the end product is 'law' within the meaning o1' the second part of Article 235.

The legislatures of Punjab and Haryana not having passed an Act regulating seniority of the respective State judicial officers, the Governors of the two States have the power to fra~e rules for that purpose under the proviso to Article 309 of the c

1056 . Ll981] 1 S.C.R. Constitutron. Such rules are, of course, subject to the provisions of the Constitution and to the provisions of any Act which the appro- priate legislature may pass on the subject .

As we have said earlier, the mere power to pass a law or to make rules having the force of law regulating seniority does not impinge upon the control vested in the High Court over the district courts and the courts subordinate thereto by Article 235. Such law or the rules, as the case may be, can provide for general or abstract rules of seniority, leaving it to the High Court to apply them to each individual case as and when the occasion arises" The power to legis- late on senrority being subject to all other provisions of the Constitu- tion, cannot be exercised in a manner which will affect or be detri- mental to the control vested in the High Court by Article 235. To take an easy example, the State legislature or the Governor cannot provide by law or by rules governing seniority that the State Govern- ment in the com;erned department will determine the seniority of

judicial officers of the State by the actual application of the rules of seniority to each individual case. Thereby, the High Court's con- trol over the State judiciary shall have been significantly impaired. The opening words of Article 309, "Subject to the provisions of this Constitution" do not exclude the provision contained in the first part of Article 235. It follows that though the legislature or the Governor has the power to regulate seniority of judicial officers by laying down rules of general application, that power cannot be exercised in a

manner which will lead to interference with the control vested in the High Court by the first part of Article 235. In a word, the applica- tion of law governing seniority must be left to the High Court. The determination of seniority of each individual

judicial officer is a matter which indubitably falls within the area of control of the High Court over the district courts and the courts' subordinate thereto. For the same reason, though rules of recruitment can provide for a period of probation, the question whether a particular judicial officer has

satisfactorily completed his probation or not is a matter which is exclusively in the domain of the High Court to decide. That explains · partly why in High Court of Punjab & Haryana v. State of Haryana(l) this Court heid' that the power to confirm a judicial officer is vest~d in the High Court and not in the Governor.

The error of the High Court's point of vrew, like the error of the report dated ~\,fay 2, 197 8 of its Sub-Committee, consists in the assumption that the Governor, while acting in the exercise of power conferred by the proviso to Article 309, exercises an executive func- tion.

That is why rt felt so greatly exercised that the independence {I)[I975f3s£1l-:-365. _,… n. s. YADAV v. HARYANA (Chandrachud, C.J.) of the judiciary was being eroded. That independence has to be

preserved at all costs but, as Constitutional realists, we cannot deprive the legislature or the Governor of their legitimate legislative powers under Article 309. That power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead, for example, to the violation of Articles 14, 16 or the pervasive ambit of-the first part of Article 235. Since the power conferred by Article 309 is not absolute or untramelled, it will be wrong' to test the validity of that power on. the anvil of its possible abuse.

The . various constitutional safeguards are an insur- ance against its abuse. Numerous decisions were cited before us to hrghlight the import- ance of insulating the judiciary from executive interference. It was urged by the learned Solicitor General on behalf of .the High Court that the paramount object of Article 235 is to secure the .independence of the judiciary by ensurmg that the subor~inate judiciary is insulated c

from executive interference and once the appointment of a judicial officer is made, his subsequent career should be under the control of the High Court and he should not be exposed to the possibility of any improper executive pressure (Unioll of India v. Justice S. H. Sheth( 1 ), that the control over the subordinate judiciary ve;ted in the High

Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation; and that there can be: no "duality" in the matter of control over the district courts and' the courts sub- ordinte thereto (A. P. High Court v. Krishnamurthy('}. The short answer to these submissions is that the power conferred by Arti- cle 309 is a legislative, not executive, power and that the power is subject to all the provisions of the Constitution. If despite this posi~ . tion, the Governor's rule-making power is likely to create. a magnetic field wherein the executive will be the focal point of attraction, it / is not the. Constitution that is to blame. As is often said, the danger to judicial independence springs more from within than from without. Before parting with this point, we would like to refer to a deci- , sion of this Court in State of Bihar v.

Madan Mohan Prasad('). Sarkaria J., speaking for the Court, observed in that case that in (I) [1978] 1 SCR 423. , (2) [1979] I SCR 26. (3) [1976] 3 S,C.R. liO. determining the seniority of the Bihar Superior Judicial Service the High Court was bound to act in accordance with the rules validly made by the Governor under the proviso to Art. 309 of the Constitu- tion. The judgment does n(\t discuss the question any further which makes it unnecesary to analyse it in detail.

For these reasons, we reject the contention that the Governor has no power to make rules of seniority of the District and Sessions Judges. That takes us to the second question which is, whether the rota- tion method devised by the High Court in

applying the relevant c service rules in the matter of confirmation and consequent fix:ation of seniority of the petitioners vis-a-vis the direct recruits suffers from any legal or constitutional infirmity. The main thrust of the argument of the promotees, who have filed the two sets of Writ Petitions before us, is that the method of rotation applied by the High Court at the time of confirmation is violative of their fundamental rights under Articles 14 and 16 of the Constitution. In the Punjab Writ Petition, the petitioners have taken an alternative plea that their seniority · should be fixed in accordance with the amendment made by the Governor of Punjab by the Notification dated December 31, 1976, effective from April 9, 1976. By that amendment, length of continu- ous service in a cadre irrespective of the date of confirmation is the governing criterion of seniority. In so far as' the power of the Gover- nor to amend the rules is concerned, that question must be deemed to have been set at rest by the preceding part of our judgment in which we have upheld the Governor's power to frame rules of seniority. To recapitulate briefly, the Superior Judicial Service Rules, 1963, which_ are currently in force in Haryana, are identical with the rules which were in force in Punjab before the amendment dated Decem- ~er 31, 1976.

The Governor of Haryana had introduced amend- ments 8imilar to those which are now in force in Punjab, but those amendments were subsequently withdrawn and the original position as it obtained under the Rules of 1963 was res~ored.

Under .the rules now in force in Haryana, which were in force in Punjab prior to the aforesaid amendment dated December 31, 1976, 'cadre post' by rule 2(2) means a permanent post in the Service. Undor rnle 8(2), two-third of the total number of cadre posts have to be manned by promoted officers and one-third by

direct recruits. Undor nde 10(1), direct recruits have to remain on probation for tw0 yeal'i provided that the Government may, in exceptional circum- staneoi of any case, reduce the period of pro!Jat,ion in cons.ultation B. s. YADAV v. HARYANA (Chandrachud, C.l.)

with the High Court. The probation can be extended by the Gover- nor beyond the period of two years in consultation with the High Court but not so as to exceed a total period of three years. Rule 10 (2) gives to the Governor the power in consultation with the High Court to confirm a direct recruit on a cadre post with effect from a date not earlier than the date on which he completes the period of probation.

Rule 12 now in force in Haryana and which was in force in Punjab prior to the amendment dated December 31, 1976, provides that the seniority of direct recruits and promoted officers shall be determined with reference to the respective dates of their confirmation. The proviso to rule 12 deals with three kinds of cases in which sub- stantive members of the Service have the same date of confirmation. In regard to the third category of such cases, the proviso says that in the case of promoted officers and direct, recruits liaving the same date of confirmation, the older in age shall be senior to the younger. Under the amendment effected in Punjab by the Noti:fication dated December 31, 1976, which is given retrospective effect from :April 9, 1976, 'cadre post' means a permanent as well as a temporary post in the Service.

In so far as the rule of seniority is concerned, under the aforesaid amendment the inter se seniority of the members of the Service is to be determined by the length of continuous service on a post in the Service irrespective of the date of confirmation. It may be recalled that in High Court of Punjab and Haryana v. State of Haryana (supra), it was held by this Court that rule 10, in so far as it confers the power of confirtnation on the Governor, is bad because the power of confirmation is a part of the control of the High Court which is vested in it by Article 235 of the Constitu- tion. Therefore, the High Court alone had the power to confirm a District & Sessions Judge. As a result of that judgment, respondent 3 came back into the service as a confirmed District & Sessions Judge. It is necessary to bear in mind that the only provision of which the validi:ty w~ aa:saile<l by respondent 3 in the aforesaid case was the one contained in rule 10(2) which conferred a right on the Governor to confirm a direct recruit. No challenge was made therein to that part of iiYb-rule (2) which requires tlrnt the confirmation shall be made from a date not earlier than the date on which the direct recruit satisfactorily completes hi:s period of probation. That part

of sub-rule (2) 1>till holds the field. It must also be mentioned that no opinion Wlli oi:prNiie<l by this Court on the validity of rule 12 of the Haryana Saperior Judicial Service Rule11 a~ it then stood which was in material rNpecti identical with rule 12 of the Punjab' Rules as it ell!ts now 11.ndor the amendment of 1976.

c 10,60 c Dr. Chitale, who appears on behalf of the promotees in the Punjab Writ Petition, contends that the promotees are not being con- firmed by the High Court in the Superior Judicial Service even though vacancies occur within their two-third quota, which is prescribed by rule 8(2). The argument of the learned counsel is that the quota of 2/3 : 1/3, which is· provided for by rule 8 ii> applicable at the time of initial' recruitment only. There is therefore no warrant, according to counsel, for extending the applicatron of that rule at the time of confirmation.

In support of this argument, reliance is placed oti a unanimous decision dated December 13, 1977 of a Bench of five learned Judges of the Punjab and Haryana in Narender Singh Rao v. State of Haryana( 1 ). The High Court held in that case that rule 8 which provides for quota and rule 12 which contains a rule of seni:o- rity, are independent of each other, that the rule of rotation cannot implicitly be read into the quota rule and that every member of the Superior Judicial Service is entitled to clai:m

seniority strictly in accordance with the provisions of rule 12. The promotees have made a very strong and emphatic grievance that in spite of the fact that that the Punjab Rules prior to the 1976 amendment were in material res- pects simHar to the rules applicable in Haryana, the High Court has been persistently refusing to follow, in the exercise of its administra- tive functions, the decision which was rendered by it in the exercise of its judicial powers.

The promotees contend that the judgment of the five Judge Bench which held that there is no scope for the applica- tion of the rule of rotation at the time of confirmation is binding on the High Court as an administrative body and that . therefore the seniority of the promotees and direct recruits must be fixed without applying the rule of rotation at the time of confirmation. In order to demonstrate the hardship caused to the promotees, Dr. Chitale has· drawn our attention to Annexure P-1 to the Writ Petition which has been further elaborated in Annexure II to his written submissi:ons. These Annexures show, and that is not disput- ed, that the direct recruits have been assigned a date of confirmation which is a day or so earlier than the date of confirmation allotted to ·the promotees.

Our attention is also drawn to the relevant order passed by the High Court in the case of Haryana officers whereby the date of confirmation allotted to the direct recruit, Shrr N. S. Rao, is only one day prior to the dates of confirmation allotted to the three proniotees, even though the latter were officiating for a much longer period in the Superior Judicial

Service than respondent 3. The promotees have assailed both the legality and propriety of the High Court's Notification dated August 25, 1976, under which eight direct (1) AIR 1978 Punjab & Haryana 234.

B. s. YADAV v. HARYANA (Chandrachud, C.l.) lOtH _ recruits and eight promotees in Punjab were confirmed by applying the method of rotation, and the direct recruits were confirmed with effect from dates which are a li:ttle earlier than the dates assigned to the promotees.

The grievance of the promotees is accentuated bY: the circumstance that respondents 6 to 8 had not even completed their normal period of probation and yet they were confirmed by the High Court after reducing the period of their probation to approxi- . mately a year and four months, without there being any exceptional circumstances for adoptrng such a course.

Besides, the power to reduce the probationary period is vested in the Governor under the proviso 'to rule 10(1). And if that provision is unconstitutional for reasons similar to those for which it was held by this Court m Shri N. S. Rao's(1) case that the Governor had no power of confirma- tion, there is no provision under which the High Court can claim the power to reduce the period of probation.

The High Court has submitted in its written brief that we should decide upon the scope of Article 235, including the question as to who has the power to frame the rules of seniority, and leave the other questions to be decided by it administratively. Representations of

both sides are still pending before it and if we were to pronounce upon the validity of the impugned notifications, numerous practical complications may arise rendering the High fjourt's task of fixing . seniority difficult.

In Haryana, we are concerned with two officers only : Shri B. S. Yadav, a promotee, and Shri N. S. Rao, a direct recruit, since petitioners 2 and 3 have been compulsorily retired during the pendency of these writ petitions. But the High Court says that our decision on the other issues will have a far-reaching impact in Punjab where the conflicting claims of several members of the Superior Judicial Service require consideration.

The High Court justifies the method adopted by it for deter- mining the seniority of promotees vis-a-vis the direct recruits by the application of the rule of rotation at the time of confirmation. It contends that persons recruited from these two sources have to be merged in such a manner so as not only to maintain a proper ratio amongst them in the service but also to so deal with them as to have due regard to their promotional prospects, in the over all context of the maintenance of highest standards of Administration of Justice by the members of the service. Translated in concrete tenns, it means that members of the subordinate judiciary who are promoted to the Superior Judicial Service and those who are recruited from amongst the members of the Bar should have an equal chance of promotion to the Selection Gracie as also of elevation to the High Court Bench. When recruitment to the Superior Judicial Service is from two sources, (f)AIR 1918 -Punjab_&_ H:aryaria 234.

7-f> SC/lndia/ND/81 c r c (1981] 1 S.C.R. it becomes imperative to ensure proper blending of the members of the service and it is for that reason that the quota rule (whenever direct recruits are available) has to be applied even at the time of confirmation. It will not be in the interest of the service if it were otherwise since, according to the High Court, if direct recruits are confirmed and assigned seniority in a block, that will adversely affect the chances· of further promotion of the promotees assigned seniority below them.

Direct recruits when recruited are much younger than the promotees, when promoted. It is for this reason that, wherever possible, the High Court claims to have assigned seniority to direct recruits by interposing two promotees between two direct recruits. Proinotees, on the other hand, have been' confirmed and assigned seniority one after the other, in numbers exceeding two, when there were no direct recruits. In order to explain and justify its point of view, the High Court has annexed four annexures to its written brief, Annexures 'A' to 'D'. Annexure 'A' shows seniority of the members of the service as fixed and determined by the High Court from 1-11-1966, upto and including August 1976. The direct recruits are placed therein at serial Nos. 4, 5, 10, 21, 24, 27, 38, 41, 44, 47, 50 and 53.

The rest are promotees. Not only, says the High Court, did it confirm a large number of promotees between each group of direct recruits but it ,,giterposed two promotees between the direct recruits. Annexure 'B' shows the likely seniority of members of the service with reference to the dates of the availability of posts in accordance with the quota rule.

This depicts the position of direct recruits if they are assigned seniority with effect from the dates when they comfJlete their period of probation. Annexure 'C' is the same as Annexure 'B' with the modIBcation that it depicts the position of clirect recruits if seniority is assigned to them with effect from the date from which they joined serviee'.

Annexure 'D' shows the posi- tion of the members of the service in accordance with the dates of their continuous officiation as such members. These statements·, the High Court says, will show that it has assigned seniority to pro- motees and direct recruits in a manner designed to secure the interests of both the classes.

Whereas the promotees complain that they have been discrimi- nated against and the High Court replies that it has held the scales of justice even between the two classes of officers, the direct recruits contend that it is in fact they who have suffered injustice under the notification of seniority issued by the High Court on

August 25, 1976. Respondents 3 to 5 in the Punjab Writ Petition complain that they were not confirmed by the High Court on the due dates, that is, on their completing the period of probaiion satisfactorily. .—f.

B. s. YADAV v .. HARYANA (Chandrachud; C.J.) The High Court confirmed ten promotees in between Shri S. S. Sodhi, whe is at present the Registrar of the High Court, and responden1ts J to 5, thereby giving to the promotees the benefit of their officia-. tion in vacancies meant for direct recruits. According to the direct recruits, the quota rule will lose its relevance unless the rule of rota- tion is applied at the time of confirmation.

They assail the validity of the amended rule 12, which is in force in Punjab, on the ground that the rule that seniority must depend upon the date of continuous officiation in any post is neither just nor reasonable.

They also challenge the notification issued by the Governor of Pungab on December 31, 1976 on the ground that it was given retrospective effect from April 9, 1976 arbitrarily, with a view only to superseding the notification of seniority issued by the High Court on August 25, 1976. It is contended by them, in the alternative, that if the period of their probation has to be weighed against the period of officiation of the promotees, it should be reckoned from the date on which the promotee officer begins to officiate

against a permanent vacancy .available in his quota. In the light of these contentions, the question for determination is whether the method of confirmation adopted by the High Court by the rotation of promotees and direct recruits in the ratio of 2 : 1 is justified on a proper interpretation\ of the relevant rules. Is the

operation of rule 8 confined to the stage of initial recrnitment to the service by promotion and by direct appointment? Or, can that rule be superimposed on rules 10 and 12 so as to justify its application at the stage of confirmation also?

These are the questions which are posed for our consideration. Rule 8, as its very heading shows, provides for a distinct condi- tion of service with reference to a specific point of time, namely : 'Recruitment to

Service'. The words "to be filled up by direct recruitment" which occur in the proviso to sub-rule (2) of rule 8 also point in the direction that the operation of this sub-rule i8 con- fined to the stage of initial recruitment to the service either by promo,tion or by direct appointment from the Bar.

Rules 10, 11 and provide for the regulatiorj of probation, reversion of promoted officers. and seniority, which conditions of service are distinct and separate from 'Recruitment to Service' dealt with in rule 8. In other words, rule 8 only fixes the respective quota of recruits from the two sources specified in olauses (i) and (ii) of sub-rnle { 1). Such reservation is intended to be made at the stage of initial appointments only, by reserving 2/3rd of the total number of posts in the cadre for promotees and 1/3rd for direct recrnits. It seems c

JI c !!UPREMB COURT REPORTS to us evident that a post which falls vacant in the quota of promotees cannot be filled by the confirmation of a direct recruit therein nor indeed can a promotee be confirmed in a post which is within th quota of direct recruits.

If this be the true constructio1\ or rule 8, the method of confir- mation by rotation of direct recruits and promotees, regardless of whether the vacancy assigned to the particular officer falls within the quota of the class to which he belongs will be in contravention of that rule. It was held by this Court in Punjab and Haryana High Court v. State of Haryana (Supra) that 'appointment' is not a conti- nuous process, that the process of appointment is complete as soon as a person is initially recruited to the service either by promotion or by direct recruitment and that confirmation is not a part of the process of appointment.

The necessity of treating 'Recruitment to the Service' and 'confirmation' as two distinct and separate matters can be appreciated if only it is realised that 'Recruitment to the Service' is a matter which falls within the power of the Governor under Article

while 'confirmation' is a matter of 'control' vesting in the High Court under Article 235. The superimposition of rule 8, which fixes the quo.fa at the stage of recruitment, on the rules relating to confirmation and seniority is therefore con~rary to the basic constitutional concepts governing judicial service. This apart, the application of Rota system at the stage of confir- mation is beset with practical difficulties.

For example, if vacancies in the quota of direct recruits cannot be filled for 2 or 3 years for the not uncommon reasonJ that direct recruits are not available, and during that period several vacancies occur in the quota of promotees who have been officiating continuously for two or three years, can the postponement of the

confirmation of such promotees against vacant posts in their quota, until the direct recruits are appointe.d an1d become eligible for confirmation on completing the prescribed period of probation, be justified on any reasonable ground ? Is it

proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so mi to enable the High Court to make confirmations from both the sources by rotation?

This, precisely, is what the High Court has done by the impugned notification dated 25-8-1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.

In A. K. Subraman v. Union of India, (1) the contention of the res- pondents. that there is an implied rotational system involved in thtJ (l) [1975] 2 S.C.R. 979. -11 t B. s. YADAV v. HARYANA (Cha11drachud, C.J.)

<juota rule and that therefore the quota rule must also be applied at the stage of confirmation was rejected by this Court. It is true that it was observed in that case that when recruitment is from two or more sources, there is no inherent invalidity in introducing the quota system and working it out by the rule of rotation.

But that is not the question which we have to consider in the writ petitions before us. What is relevant is the decision of the Court (page 994) that the quota rule will be enforced at the time of initial. recruitment and not at the time of confirmation.

The Court observed that the tests to be applied for the purposes of promotion and confirmation are ~ntirely different since there is a well recognised distinction between 'promotion' and 'confirmation'.

In N. K. Chauhan v. State of Gujarat,( 1 ) it was reiterated (pages 1051-1053) that having regard to the recent decisions of this Court, it could not be he.Jd that 'quota' is so interlocked with 'rota' that where the former is expressly prescribed the latter is impliedly inscrib- ed.

One of us, Krishna Iyer, J., while summarising the conclusions 9£ the Court said : "The quota rule does not, inevitably, invoke the application of the rota rule. The impact of this position is that if sufficient

number of direct recruits have not. been forthcoming in the years since 1960 to fill in the ratio due to them and those defi- c cient vacanies have been filled up by promotees, later direct recruits cannot claim 'deemed' dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits' vacancies arose".

Seniority of promotees, according to this decision, could not be µpset by later arrivals from the open market, save to the .extent to which any excess promotees have to be pushed down.

In Paramjit Singh Sandhu v. Ram Rakha.,( 2 ) it was held by this Court on a harmonious reading of rules 3, 4, 6, 8 and 10 of the Punjab Police Rules, 1959 that the quota rule was operative both at the time of initial recruitment and at the time of confirmation. We would like to clarify that this case is not an authority for the proposition that whenever Service Rules provide for quota, the rule « rota must be read into the rule of quota. We are not laying down that the rules of quota and rota cannot coexist.

Service Rules may so provide or they may yie.Jd to such an interpretation. ~n that event, their validity may have to be tested in the total setting of (I) [1977] 1 SCR 1037. (2) [1979] 3 SCR 584.

c p facts. Therefore, whether the quota system has to be observed not only at the stage of initial recruitment but also at the stage of confir- mation is not a matter of abstract law but will depend on the word- ing of the rules and the scheme of the rules under

consideration. Any dogmatic assertion, one way or the other, is wrong to make. On a review of these authorities, all that we would like to say is that on a proper interpretation of the rules governing the Punjab and Haryana Superior Judicial Service, the rule of rota cannot be read into the rule of quota. In other words, the ratio of 2: 1 sh.all have to be applied at, the stage of recruitment but cannot, on the lan,guage of the relevant rules, be applied at the stage of confirmation. In our opinion, therefore, the High Court was not justified in applying the rule of rotation at the time of confirmation of the mem- bers of the Superior Judicial Service who were appointed to that Service by promotion and by direct recruitment. In fiact, we would like to remind that a special Bench of five learned Judges of the High Court of Punjab and Haryana had itself held on December 13, 1977 in N. S. Rao v. State of Haryana, (supra) that the rule of rota cannot be read into the rule of quota prescribed by rule 8 of the Punjab Superior Judicia1l Service Rules.

It was observed by the Special Bench in paragraph 14 of its judgment that a plain reading of rule .. 8 shows that the intention of the framers of the Rules was only to provide for quota and that no indication at all has been given that the rotational system also had to be followed at the time of confir- mation or for the purpose of

fixing seniority. In comin\g to this conclusion, the High Court placed reliance on the decisions of this Court in A. K. Subraman and N. K. Chauhan to which we have 011- ready referred.

The High Court expressed its conclusion in para- graph 22 of the judgment by saying that rules 8 and 22 are indepen- dent of each other, that the rotational system cannot impliedly be read into the quota rule prescribed by rule 8 and that the members ·of the Superior Judicial Service are entitled to claim seniority, strictly in accordance with the

provisions of rule 12. We are unable to understand how, in the discharge of its admin,istrative functions. the High Court could have failed to follow a judgment of its own special Bench consisting of five learned Judges. We are of the opinion that the aforesaid judgment has taken a correct view of the matter on a combined reading of rules 8 and 12.

We would like to say at the cost of repetition that we are not dealing· with the abstract question as to whether the rule of quota necessarily excludes the rule of rotation. We are only concerned

to point out that it is not correct to say that the rule of rota must -t B. s. YADAV v. HARYANA (Chandrachud, C.J.) necessarily be read into the rule of quota. We have to decide in

those cases the narrow question as to whether, on a true interpreta- tion of rules 8 and 12 of the Superior Judicial Service Rules of Punjab and Haryana, the quota rule prescribed by rule 8 justifies, without more, its extension at-the time of confirmation so that, after every two promotees are confirmed one direct recruit has to be con- finned and until that is done, promotees cannot be confirmed even if vacancies are available within their quota in which they can be confirmed.

We are of the opinion, on a proper interpretation\ of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of 2/3rd, whether or not I/3rd of the vacancies are occupied by confirmed direct recruits. And simi- larly, direct recruits are entitled to be confirmed in vacancies which are available whhin their quota of 1/3rd, whether or not 2/3rd of the vacancies are occupied by confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be con- firmed merely because, by doing so, more than two promotees may have 10 be confirmed at one time, without the confirmation of a propor- tionate number of direct recruits.

The fairness which Articles 14 and 16 postulates is that if a promotee is otherwise fit for confirma- tion and a vacancy falling within the quota of promotees is available in which he can be

confirmed, his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, com- pletes his period of probation and thereupon becomes eligible for confirmation. The adoption of this principle in the matter of con~fir­ mation, will not, in practice, give any undue advantage to the promotees.

The facts and figures supplied by the High Court in Annexure R-4 to its counter-affidavit in W. P. 266 of 1979 show that vacancies in the quota of promotees do not generally become

available before the promotees have put in two to five years' service . as officiating District and Sessions Judges. In so far as the confirmation of respondents 6, 7 and 8 is con- cerned, the facts set out by the Registrar of the High Court in his counter

affidavit do not, in our opinion, constitute "exceptional circumstances" such as to justify their confirmation long before they had completed the normal period of their probation. It may be recalled that they were confirmed afrer they had each completed a period of probation of approximately a year and four months. In

the absence of exceptional circumstances justii"ying the reduction of their normal probationary period of two years, we find ourselves unable to uphold the order of the High Court by which these three respondents were

confirmed before they were normally due for c confirmation. The order is in clear violation of the guarantee of equal oppor.tunity, by which the petitioners are prejudiced, and must for that reason be set aside.

c The High Court will be at liberty now to confirm them with effect from the date or dates on which they completed their normal period of probation, to the satisfaction of the High Court. This is

apart firom the questiorA as to whether the High Court can exercise the power which was conferred by the proviso to rule 10 (1) on the Governor. The power conferred by the proviso on the Gover-

nor is ex facie bad because such a power directly impinges upon the control vested in the High Court by Article 235 of the Constitu- tion. If at all any authority could exercise such a power, it is the High Court and not the Governor. We are assuming for the limited purpose of these petitions that the High Court may, in exceptional circumstances, reduce the period of probation of a· direct recruit. The rules must now be understood to mean that the High Court and not the Governor has the power of confirmation, that the normal period of probation of direct recruits is two years and that unless there are exceptional circumstances attaching to each individual case, a direct recruit cannot be confirmed from a date earlier than the date on which he has satisfactorily complc,ted his probation of two years.

The High Court is not free to fix any period of probation as it likes or to reduce the period of two years at its will and pleasure. The amended rule 12, as in force in Punjab, lays down the

length of continuous service in a cadre post as the guiding criterion for fixing seniority. That rule was notified by the Governor on December 31, 197 6 and was given retrospective effect from April 9, 197 6.

Since 'the Governor exercises a Legislative power under the proviso to Article 309 of the Constitution, it is open to him to g\ve retrospective operati.on to the rules made under that provision. But

the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case.

No such nexus is shown( in the present case on behalf of the State Government. On the contrary, it appears to us that the retro- spective effect was given to the rules from April 9, 1976 for the mere reason tha·t on August 25, 1976 the High Court had issued a notifica- tion fixing seniority of the promotees and direct recruits appointed to the Superior Judicial Service of Punjab.

The notification issued by the Governor on December 31, 197 6 will, therefore, operate on future appointments or ·promotions made af'ter that date and not on B. s. YADAV v. HARYANA (Chandrachud, C.J.)

appointments or promotions made before that date. The seniority of .all officers appeinted or promoted to the Superior Judicial Service, Punjab, before December 31, 1976 will be determined by the High Court according to the criterion of the dates of confirmation, without apply~g 1the rule of rotation.

The seniority of those promoted or appointed after December 31, 1976 will be determined in accordance with the rules promulgated under the notification of that date. In so far as we see, Judicial officers from Serial No. 1 to 36 mentioned in Annexure P-I to the Punjab Writ Petition, that is, beginning with Shri J. S. Chatha and ending with Sri Hartlev Singh were appointed or promoted prior to December 31, 1976. Those from serial No. 37 to serial No. 43, that is beginning with Shri G. S. Kalra and ending with

Shri H. L. Garg, were appointed or promoted after December 31, 1976. The validity of the notification dated Decem- ber 31, 1976 was not seriously challenged before us, apart from its retrospectivity.

We do not also see any constitutional or legal objection to the test of continuous officiation introduced thereby. In so far as the Haryana writ petitions are concerned, they involve a question

of seniority really between itwo officers only, namely, Shri B. S. Yadav, who is a promotee and Shri N. S. Ra.o, who is a direct recruit. The other two promotees, namely, peti- tioners 2 and 3, have been compulsorily retired during the pendency of the Writ Petitionis in this Court. Rule 12, which is not in force in Haryana, is similar to rule 12 which was in force in Punjab prior to its amendment on December 31, 1976. Rule 12, as it originally ,existed, was amended by the Governor of )'Iaryana, on April 21, 1972 with retrospective effect from April 1, 1970.

However, on 'September 2, 1977 the Governor superseded that amendment, again with effect from April 1, 1970, and restored the rule of seniqrity as it existed originally in the 1963 Rules.

In Haryana, therefore, the seniority of the members of the Superior Judicial Service will be ·determined with reference to the dates o~ confirmation, without applying the rule or rotation.

We must express our concern at the manner in which the Rules '()f the Superior Judicial Service have been amended by the Governor ·of Punjab and, particularly, by the Governor of Haryana. Inl Punjab, the High Court was never consulted on the question whether the ·amendments made on December 31, 1976 should be given retrospec- tive effect and, if so, from what date. The amendments were made <lespi'te the opposition of the High Court. In Haryana, the amendment of April 21, 1972 was made just in order to spite a single judicial -officer who is a direct recruit.

Fortunately, that amendment was withdrawn by the successor Government on September 2, 1977. 10 (i 9 c long retrospect\ve effect was given to that amendment from April 1, 1970 because the amendment of April 21, 1972 was given retrospec- tive effect from April 1, 1970 and that amendment had to be effec- tively superseded.

We do hope that the State Governments will apply their mind more closely to the need to amend the Service Rules of ,the Superior Judiciary and that the Rules will not be tinkered with too often. It should also be realised that giving retrospective effect to .the rules creates frustration

and discontentment sillce the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn-out litigation between the pro- motees and direct appointees.

That breeds indiscipline and draws the High Court into the arena, which is to be deprecated. Punjab and Haryana have a peculiar problem since they have a common High Court. But they are blessed, not cursed, with a

common High Court. Toda:y we find the strange spectacle of the High Court being called upon to determine the seniority of officers in one State by one test and that of officers in the other State by an opposite test:.

In Punjab, continuous officiation on a post in the Service is the criterion of seniority. In Haryana, the date of confir- mation is the governing factor. Can the two Governors not come

together and take a joint decision applying a uniform test of seniority to their judicial officers who are under one common High Court ? And ,though that is not the requirement of the proviso to Article 309' of the Constitution, we hope that whatever amendments are going to be made hereafter to the Rules will be made in consultation with the High Court. Nothing will be lost thereby and there is so much to gain : Goodwill, expert advice and the benefit of the experience of a body which has to administer the Rules since the control over the Subordinate Courts is vested in it by Article 235. It is sad that the promotees and direct recruits have to dissipate their ·time anjd energy in litigation which they can ill-afford and which arises largely ·because of the lack of co-ordination between the High Court and the State Governments.

It is time enough now to turn a new leaf. In the result, we partly allow Writ Petition 266 of 1979, quash the impugned orders including (i) the order dated August 25, 1976 of the High Court, published in the Punjab Government

Gazette dated September 3, 1976; (ii) the order whereby Respondents 6, · 7 and 8 were confirmed by reducing their period of probation; and {iii) all subsequent orders of the High Court confirming the promo- tees and direct recruits by roti1tion.

We direct that : (a) The High Court will revise and refix the respective dates of confirmation' of the petitioners and respondents 3 to 11, without applying the rule of rotation; B. s. YADAV v. HARYANA (Chandrachud, C.J.)

(i) The petitioners, if they are otherwise fit for confirma- 'A. 1tion, shall be confirmed with effect from the dates on which vacancies became a:vailable to them in the quota of promotees;

(ii) Respondents 3 to 11 shall be confirmed against vacan- cies falling within the quota of direct recruits, with e.ffect from dates on which they successfully completed their two years' probation.

Since, the normal period of probation cannot be reduced unless the High Court is satisfied in each individual case that there are "exceptional circumstances" justifying the reduction of

c that: period, and since the High Court had not given such reasons while reducing the probationary period or some of the respondents, responpents 3 to 11 will be confirmed as stated above without reducing the

period of their probation. (b) The High Court will re-draw the inter se seniority – (i) of such of the petitioners and respondents as were promoted or appointed to the Superior Judich~l Service

prior to December 31, 1976, on the basis of the respective dates of confirmation allotted to them in compliance with the aforesaid direction (a); and (ii) of such of the petitioners, responldents and others who were appointed to a post in the -:;oervice on or after

December 31, 1976 in accordance with the amended rule 12. ( c) The High Court will review and reconsider promotions to the Selection Grade and other allied orders made by it, having regard to these directions and the seniority to be fixed on the basis thereof. The High Court will make necessary adjustments and alterations therein, in the light of the action to be taken in compliance with the aforesaid directions (a) and (b). The con . .llrmations, promotions and other orders passed by the High Court during the pendency of these Writ Petitions are, according to the interim order passed by this Court, subject to the result of these Writ Petitions.

Writ Petitions 4228 to 4230 of 1978 are also allowed partly, r to -the same extent as Writ Peiition No. 266 of 1979. The High Court will read just the seniority of the petitioners and respondent No. 3 therein by the application of the aforesaid principles and in accordance with the Haryana Superior Judicial Service Rules, 1963 \072

as in force on, or as given effect to from April 1, 1970. The senio-. rity list will be drawn by the High Court on the basis of the dates of confirnu1tion without applying the rule of rotation and in the light of the directions given by us in the Punjab Writ Petition, in so far as relevant. The High Court will also comply with the other directions :therein given regarding the review of the promotions

to Selection Grade and the consequential orders. These directions in the aforesaid Writ Petitions from Punjab and Haryana shall be complied with as soon as possible, preferably within a period of three months from to-day.

Parties will pay an\d bear their own costs. P. B. R. Petitions allowed in part. -1',