Remarking that there is no All India Judicial Service for judges, the Delhi High Court has ruled that judicial services rendered in the past in a different state cannot be cunted for deciding seniority in the current service in another State/ UT.
The Division-Bench of Justice Manmohan and Justice Saurabh Banerjee in this view dismissed a petition filed by a Civil Judge who voluntarily resigned from the Haryana Civil Services in 2018 and joined Delhi Judicial Services by way of clearing the requisite examination.
"HCS and DJS are distinct judicial services of two different States governed by different service rules and controlled by different High Courts. The Constitutional Scheme as reflected in Articles 233 and 235 is that each High Court of the State has a control over certain Courts under its jurisdiction. Consequently, this differentiation is constitutionally sanctioned," the order reads.
Brief Facts of the Case
The petitioner joined the HCS on 27th June, 2012 as a Civil Judge (Junior Division). Subsequently, the petitioner successfully participated in the Delhi Judicial Service Examination, 2015 and joined the Delhi Judicial Service on 11th May, 2018 through proper channel. Based on her past service in the HCS, the petitioner was exempted from undergoing mandatory induction training upon her request and was given benefit of her past service in HCS for the limited purpose of being exempted from training in the DJS, carry forward of leave, Leave Travel Concession and pay protection. The petitioner vide letter dated 26th July, 2022 requested this Court to allow her to appear for the LDCE 2022 for promotion to the DHJS by counting her past service with the HCS towards the qualifying service of ten years as Civil Judge (Junior Division). Her request was placed before Examination Committee which rejected the presentation. The petitioner has challenged the same via the present writ-petition.
Contentions of Counsels ;
Counsel for the petitioner contended that the provision for making Civil Judge (Junior Division) with ten years qualifying service eligible for promotion in ten percent LDCE quota for DHJS came into effect only from 19th April 2022 by virtue of judicial order of the Supreme Court of India in All India Judges Association Vs. Union of India and the competent authority didn't consider it as is shown by the minutes of meeting.
He emphasized that the Government of India for all its employees have issued O.M. dated 1st September, 1998 for counting of past service for completion of qualifying service of promotion in the new department/organisation. He submitted that the interpretation of O.M. dated 1 st September, 1998 is no more res integra as it has been interpreted by the Apex Court in consonance with the claim of the petitioner in Renu Mullick Vs. Union of India [1993] INSC 498 (19 November 1993). He stated that a Committee of this Court dealing with the issue of complaints of sexual harassment against officers of DHJS and DJS had on an earlier occasion itself applied the residuary provisions of DHJS and DJS. Similarly, this Court in P.K. Jain, Distt. & Sessn. Judge v Government of NCT of Delhi, C.W. No. 542 of 1994 had also applied the same residuary provisions in matters relating to medical attendance for District Judge.
Consequently, he stated that by applying the same Rule 33 of DJS Rules, the petitioner became eligible to count her past service for the purposes of competing in the ten per cent LDCE quota in DHJS.
Counsel for respondent stated that the judicial officers appointed to HCS and DJS are governed by different service rules and controlled by different High Courts and thus, the conditions of service of persons governed by different rules cannot be sought to be equated as a matter of right.
He submitted that Rule 2(e) of the DJS Rules categorically defines the word ‘service’ as the ‘Delhi Judicial Service’ and there is nothing in the DJS Rules or the DHJS Rules which stipulates that the service rendered as a judicial officer in another State is to be counted for calculating the qualifying service viz. ten years as Civil Judge (Junior Division) for appointment to the DHJS by promotion on the basis of merit through LDCE in terms of Rule 7(1)(b) of the DHJS Rules. He further stated that in the present case, there is nothing to the contrary in either the DJS Rules or the DHJS Rules in relation to the meaning of the term ‘service’ in the context of the controversy that is the subject matter of the present petition.
He stated that the argument that since the first stage of the Assured Career Progression Scheme (‘ACPS’) scale in the grade of Civil Judge (Junior Division) was granted to certain officers of DJS after counting the time spent by them in the judicial service of another state, therefore, the same yardstick should be used to recognise the past service of the petitioner with the HCS for the purpose of qualifying service for the LDCE is contrary to law. He pointed out that the ACPS Committee for promotion to Civil Judge (Senior Division) of the High Court of Delhi in its meeting held on 10th August, 2015 considered the matter with regard to grant of first stage of ACPS scale in the grade of Civil Judge (Junior Division) to the officers of the DJS, including those officers who had served in the judicial service of another state.
He submitted that the petitioner cannot seek advantage of the aforesaid decision to the extent it favours her, while jettisoning the unpalatable part. Yet further, according to him, the very grant of ACPS scale is intended to compensate for the lack of promotional avenues, and the petitioner’s argument is contrary to the very underlying rationale of the ACPS.
He contended that the benefits of carry forward of leave, LTC, and pay protection, all of which fall within the monetary genre, were granted to the petitioner in accordance with the guidelines provided in O.M. dated 17th August, 2016 of the Government of India. He clarified that due to the shortage of DJS officers for holding vacant courts, induction training is exempted in case the officer concerned has undergone induction training in another State and has held Court in another State.
Thus, the exemption from induction training of the petitioner has no relation whatsoever with counting of the past service for meeting the eligibility criteria for the LDCE. He also pointed out irrespective of the above, the petitioner was not and could not be extended benefits qua eligibility or seniority or promotion as these were de hors the DJS Rules. He submitted that the entire edifice of the petitioner’s case is contrary to the well settled principle of law that the essential qualification for a post is solely for the employer to determine. He stated that the unarticulated premise of the petitioner’s case is to effectively seek a mandamus to amend the rules in a particular manner.
He submitted that it is a settled principle of law that under Article 226 of the Constitution of India, no mandamus can be issued to a rule-making authority to formulate a new rule or to amend or modify an existing rule in a particular manner. Similarly, no mandamus can be issued to undertake the task of legislation under Article 309 of the Constitution of India.
High Court's Observation
The Court at the outset noted that there is no All India Judicial Service for judicial officers and that HCS and DJS are distinct judicial services of two different States governed by different service rules and controlled by different High Courts.
The Constitutional Scheme as reflected in Articles 233 and 235 is that each High Court of the State has a control over certain Courts under its jurisdiction. Consequently, this differentiation is constitutionally sanctioned, the court noted.
It observed that the case of petitioner is neither of absorption nor of compassionate appointment nor of deputation nor of transfer but that of simpliciter resignation and since DJS and HCS are not departments of an All India Judicial Service, the petitioner had to complete the prescribed eligibility criteria of service in the feeder grade i.e. DJS.
"Consequently, the assumption and presumption underlying the arguments of the petitioner that there is an All India Judicial Service for judicial officers is contrary to facts and untenable in law, " the court ruled.
It is settled law that the eligibility for sitting in the examination has to be determined in accordance with the Rule which prescribes the criteria for eligibility, the court said citing The Maharashtra Public Service Commission through its Secretary Vs. Sandeep Shriram Warade
Noting that the condition precedent for participating in the LDCE examination is the fulfillment of ten years of qualifying service, the court asserted that according to Rule 2(e) of the DJS Rules ‘service’ means the Delhi Judicial Service. As there is no provision for inter-changeability or counting of previous service in any other service in the said DJS Rules, this Court cannot extend such benefit beyond the prescribed purview thereof.
It further pointed out that no instance has been shown to this Court where the service rendered as a judicial officer in another State has been counted towards the qualifying services [ten years of Civil Judge (Junior Division)] for appointment to the DHJS.
Consequently, the judgment of the Supreme Court in Ramana Dayaram Shetty (supra) has no application and a judicial officer can sit in the LDCE examination only if he/she has completed ten years of service in the Delhi Judicial Service, the court added.
The Court reiterated that it is settled principle of law that the benefit of past service cannot be sought in the absence of an express enabling provision when the person has accepted appointment in the new service on his/her own violation.
"Clearly, Rule 33 of the DJS Rules and of Rule 27 of the DHJS Rules themselves state that they being residuary provisions are only applicable when there are either “no provision” or “insufficient provision” in the said respective Rules and not otherwise. In the present scenario where both the DJS Rules and the DHJS Rules are clear, specific and self-contained, the residuary provisions, i.e. Rule 33 of the DJS Rules and of Rule 27 of the DHJS Rules, have no role to play. Moreover, as there is no challenge to the legality and validity of either DJS and/or DHJS Rules and as the said rules are categorical and provide for exceptions, this Court is of the view that it has no power to rely upon the residuary Rule to import any other O.M.," the order reads.
CASE TITLE: Ms. Neetu Nagar vs. Govt. of NCT of Delhi and Anr.
CASE DETAILS: W.P.(C) 16555/2022, CM APPLs.52062/2022 and 13863/2023
CORAM: Hon'ble Mr. Justice Manmohan and Hon'ble Mr. Justice Saurabh Banerje
Advocates for Petitioner: Mr. Abhaya K. Behera, Sr. Adv. with Mr. Ankur Chhibber, Advocate
Advocates for Respondent: Mrs. Avnish Ahlawat, SC with
Ms. Tania Ahlawat, Mr. Nitesh Kumar Singh, Ms. Palak Rohmetra, Ms.
Laavanya Kaushik and Ms. Aliza Alam, Advocates for R-1. Dr. Amit George,
Mr. Amol Acharya, Mr. Arkaneil Bhoumik, Mr. Piyo Harold Jaimon and Mr.
Rayadurgam Barath, Advocates for R-2/DHC.
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