"2(2) 'cadre post' means a permanent or temporary post in the service .
Rule 12 of the 1963 Rules provided that the seniority, inter se, of the substantive members of the Service, whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation. Clause 3 of the Second Amendment Rules substituted the following rule for the original rule 12:
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 April 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 retrospective effect from April 1, 1970. By Clause 3 of the Amendment, the definition of "cadre post" in Rule 2(2) was amended 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 posts, 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, 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 (in 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 power promulgated an amendment providing that:
shall be allowed to Join the Service."
On September, 2, 1977 the Governor in the exercise of his constitutional and other powers further amended the 1963 Rules with retrospective effect from April 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 posts 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.
In regard to the rule of seniority, the position 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, 1976, seniority is determined 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, 1976 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 becomes 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 task difficult. And if the amendments are made either without consulting 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 accused of bias and if it gives up its stand, it is accused of being weak kneed and vacillating. The administrative decisions taken by the High Court in 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 will depend upon whether they remained in Punjab or were allotted to Haryana.
On the issuance of the Notification dated August 25, 1976, petitioner 1 addressed a representation to the High Court stating that he was officiating 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 complained 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 by the High 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 promotees and direct recruits, the High Court constituted a sub-committee consisting of three Judges, S. S. Sandhawalia (now Chief Justice), Bhopinder Singh Dhillon and Gurnam Singh, JJ. The Committee gave an oral hearing on February 7, 1979 to the representatives of the promotees and direct recruits. The High Court, however, has not readjusted the seniority of the promotees and direct recruits in the light of amended rule 12.
There is no direct decision on the question whether the Governor, in the exercise of power conferred by the proviso to Article 309, has the power to frame rules regulating the seniority of judicial officers of the State. The reason 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 legislature on the subject and High Courts have been applying those rules from 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 Governor 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 remained static and stagnant if it had not been allowed to grow from case to case. But the point of the matter is that there has been no unconcerned acquiescence by High Courts and judicial officers 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 broader consideration that the High Court's controlling jurisdiction 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: