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.
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:
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 Article 235 is therefore subject to any law regulating seniority 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 seniority, the end product is 'law' within the meaning of 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 frame rules for that purpose under the proviso to Article 309 of the Constitution. Such rules are, of course, subject to the provisions of the Constitution and to the provisions of any Act which the appropriate 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 legislate on seniority being subject to all other provisions of the Constitution, cannot be exercised in a manner which will affect or be detrimental 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 Government in the concerned 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 control 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 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 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(1) this Court held that the power to confirm a judicial officer is vested in the High Court and not in the Governor.
Before parting with this point, we would like to refer to a decision of this Court in State of Bihar v. Madan Mohan Prasad(3). Sarkaria J., speaking for the Court, observed in that case that in 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 Constitution. The judgment does not discuss the question any further which makes it unnecessary 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 rotation method devised by the High Court in applying the relevant service rules in the matter of confirmation and consequent fixation 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 continuous service in a cadre irrespective of the date of confirmation is the governing criterion of seniority. In so far as the power of the Governor 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.
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 Court'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 determining 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 terms, 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 Grade as also of elevation to the High Court Bench. When recruitment to the Superior Judicial Service is from two sources, 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. Promotees, 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, up to 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 interposed 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 complete their period of probation. Annexure 'C' is the same as Annexure 'B' with the modification that it depicts the position of direct recruits if seniority is assigned to them with effect from the date from which they joined service. Annexure 'D' shows the position of the members of the service in accordance with the dates of their continuous officiation a such members. These statements, the High Court says, will show that it has assigned seniority to promotees and direct recruits in a manner designed to secure the interests of both the classes.