Biswajit Palit vs State Of Tripura And Ors

Akil Kureshi, CJ

Heard learned counsel for the parties for final disposal of the petition.

The petitioner has challenged the seniority list dated 07.07.2017 of the Judicial Officers Grade-I of Tripura Judicial Service. The petitioner has also challenged the decision of the rule making authority in not giving retrospective effect to Tripura Judicial Service (7th Amendment) Rules, 2018 (hereinafter to be referred to as the Amendment Rules of 2018). The prayer of the petitioner is that such Amendment Rules of 2018 should be given limited retrospectivity from the commencement of Tripura Judicial Service (5th Amendment) Rules, 2013 (hereinafter to be referred to as the Amendment Rules of 2013).

Brief facts may be noted at the outset:

Petitioner was appointed to the Tripura Judicial Service Grade-III on 01.11.2001. He was promoted as Additional Chief Judicial Magistrate in Tripura Judicial Service Grade-II on 23.12.2010. He was thereafter promoted to Tripura Judicial Service Grade-I under order dated 02.02.2015.

In All India Judges' Association and others vrs. Union of India and others reported in (2002) 4 SCC 247 (popularly referred to as the 3rd Judges Case) the Supreme Court examined various issues concerning the Judicial Officers of the District Judiciary across the country. One of the issues was to introduce a special stream for promotion to the District Judges cadre by way of competitive examination. Those who excel in such examination would get accelerated promotion. This would be separate from promotion based on merit-cum-seniority. The Supreme Court devised a formula under which 50% of the posts in District Judge cadre would be filled up by promotion from amongst the Civil Judge (Senior Division) on the basis of merit-cum-seniority. 25% would be by promotion strictly on the basis of merit, through limited departmental examination of Civil Judge (Senior Division) having not less than 5(five) years qualifying service and 25% of the posts would be filled by direct recruitment from amongst eligible advocates on the basis of written and viva-voce tests conducted by the High Court. While doing so, the Supreme Court also introduced the system of maintaining a roster for the purpose of determining inter se seniority of the incumbents belonging to three different streams. Relevant portion of this judgment reads as under:

"27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the Subordinate Judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge Cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the Subordinate Judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25 per cent of the posts in the Service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.

As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be:

(1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;

(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts.

(2) Appropriate rules shall be framed as above by the High Courts as early as possible.

Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum-seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For example, there is, as per the Rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the Service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R. K. Sabharwal and Ors., v. State of Punjab reported in (1995) 2 SCC 745. One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate Seniority Rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal's case as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant Rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31-3-2003.

We disapprove the recommendation of giving any weightage to the members of the Subordinate Judicial Service in their promotion to the Higher Judicial Service in determining seniority vis-à-vis direct recruits and the promotees. The roster system will ensure fair play to all while improving efficiency in the service."

In consonance with this judgment in case of 3rd Judges Case, the Tripura Judicial Service Rules, 2003 (hereinafter to be referred to as the Rules of 2003) were framed. Rule 7 of the said Rules of 2003 embodied the directions of the Supreme Court for promotion to Grade-I posts of Judicial Service which reads as under:

"METHOD OF RECRUITMENT, QUALIFICATION, RESERVATION AND AGE LIMIT:

(1) In respect of each category of posts specified in column (2) of the table below, the method of recruitment and minimum qualification, age limit etc., are specified in the corresponding entries in columns (3) and (4) thereof:

Provided that the High Court shall have the power to relax the qualifying period of Judicial Officers for the purpose of promotion in case the same is considered necessary in the public interest.

(2) Except as otherwise provided herein, all appointments and promotions to the service shall be made against a grade and not against any specific post included in the service.

SL. NO.

Cadre

Method of Recruitment

Qualification, age limit etc.

1

2

3

4

1.

Grade-I

Selection Grade Scale.

Super time Grade Scale

Grade-II

(i) Not exceeding 25% of the posts in the Grade may be filled by direct recruitment on the basis of the aggregate marks /grade secured in a competitive examination conducted by the High Court, as specified in Schedule B of the Rules.

(ii) 50% of the posts in the Grade shall be filled by promotion from the cadre of Grade-II of the Service on the basis of merit cum seniority by the High Court, following the criteria in Schedule „C‟.

(iii) Remaining 25% of the posts in the Grade shall be filled up by promotion strictly on the basis of merit through limited departmental competitive examination conducted by the High Court as specified in Schedule-B of the Rules.

(iv) 25% of the posts in Grade-I shall be in Selection Grade to be filled by promotion by the High Court from the officers in Grade-I in accordance with the procedure laid down in Schedule „C‟.

(v) 10% of the posts in Grade-I shall be in the Super time Scale to be filled by promotion by the High Court from the officers in Selection Grade in accordance with the procedure laid down in Schedule „C‟.

By promotion from the cadre of GradeIII selected by the High Court on the basis of criteria indicated in Schedule „C‟.

(1) By filling up 50% of the posts on the results of the competitive examination to be conducted by the commission in the manner indicated in schedule „B‟;

(2) By filling up the remaining 50% of the posts on the results of the competitive examination to be conducted by the High Court as indicated in schedule „B‟;

Provided that all the vacancies may be filled up from one source only if the other source fails to recommend candidate within the period specified in the letter of requisition and it is considered expedient so to do in the public interest.

By direct recruitment.

Must be holder of degree in law of a recognized University.

Must be practicing as an advocate in Courts of Civil and Criminal jurisdiction on the last date fixed for receipt of applications and must have so practiced for a period of not less than seven years as on such date.

Must have attained the age of thirty five years and must not have attained the age of forty eight years in the case of candidates belonging to Scheduled Castes or Scheduled Tribes and forty five years in the case of others, as on the last date fixed for receipt of applications.

Must have been in the cadre of Grade-II for a period of not less than 5 years.

Must have served in Grade-I for not less than five years.

Must have served not less than three years in the Selection Grade.

Must have been in the cadre of Grade-III for a period of not less than five years.

(1) Must be holder of degree in law granted by a recognized University established by Law in India.

(2) Must not have completed, as on the last date fixed for receipt of applications 38 years of age in the case of candidates belonging to Scheduled Castes or Scheduled Tribes and 35 years of age in the case of others.

Rule 18 of the Rules of 2003 pertains to seniority and as it existed then, read as under:

"18. SENIORITY:-

(1) An Officer appointed or promoted in accordance with the Rules, on regular basis shall be senior to persons appointed on ad-hoc or temporary basis.

(2) The seniority inter-se of the members of the Service, appointed on the basis of the result of Competitive Examination/Limited Departmental Examination shall be determined according to the Merit List prepared by the concerned authority.

(3) Where two officers are placed at the same position in the Merit List, the person senior in age shall be senior to the other.

(4) The inter-se seniority of persons appointed in Grade-I in any year by way of promotion and direct recruitment, shall be determined by rotation on the basis of quota for promotees (50%), for promotees through competitive examination (25%) and for direct recruitment (25%); that is to say 2:1:1.

(5) Where more than one Officer is promoted to a cadre by the same order, the inter-se seniority of person so promoted shall be determined by their inter-se seniority in the lower „Cadre‟ unless directed otherwise.

(6) A 40(forty) point roster is to be maintained for appointment/promotion to the post of Grade-I in service. The posts at Serial Nos.1 and 2 will go to the promotees under 50% quota. The post at Serial No.3 shall go to the promotee under the limited departmental Competitive Examination and the post at Serial No.4 shall be available to Direct recruit. This process shall be repeated till all the posts in the cadre are filled up in the roster in manner stated.

Provided that the above roster will not affect the existing members of the Service and this will be implemented prospectively.

(7) The High Court shall prepare and publish a seniority list of Officers in all Cadres from time to time and the list so published shall be used for the purpose of consideration for promotion to the next higher cadre."

The Supreme Court in case of All India Judges' Association and others vrs. Union of India and others reported in (2010) 15 SCC 170 (popularly referred to as the 4th Judges Case) revisited the quota for regular promotion and accelerated promotion in the District Judge cadre. The original proportion of 50% and 25% respectively was modified to 65% and 10% respectively. In other words, the quota for fast track promotion or accelerated promotion was reduced from 25% to 10%. Corresponding increase was made in normal promotion quota from 50% to 65%. The High Courts were required to amend the rules accordingly w.e.f. 01.01.2011. By way of greater emphasis it was provided that if the rules are not suitably amended the order would prevail and further recruitment from 01.01.2011 shall be continued as directed by the Supreme Court. It was clarified that all vacancies would be filled up in that particular year and there shall not be any carry forward of the unfilled posts. Relevant portion of this judgment reads as under:

"6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which was sought to be achieved by this process could not be achieved, thus it calls for modification.

Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order.

Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable.

All the High Courts are hereby directed to take steps to see that existing Service Rules be amended positively with effect from 1-1-2011. If the Rules are not suitably amended, this order shall prevail and further recruitment from 1-1-2011 shall be continued accordingly as directed by us. The time schedule prescribed in the order dated 4-1-2007 [in Malik Mazhar Sultan case, (2008) 17 SCC 703] shall be strictly adhered to for the purpose of selection. All the vacancies are to be filled up in that particular year and there shall not be any carry forward of the unfilled posts."

Rule 7 of the Rules of 2003 was amended by virtue of Amendment Rules of 2013 which were promulgated on 29.05.2013. The said Amendment Rules of 2013 introduced following amendments in Rule 7 of the Rules of 2003:

"6. Amendment of Rule 7:

(i) The existing provision against Serial No.1(ii) in Column No.3 of the table, appended under Sub-rule (2) of Rule 7 of the Principal Rules, shall be substituted with the following-

"65% of the posts in the Grade shall be filled by promotion from the cadre of Grade-II of the Service on the basis of merit-cum-seniority by the High Court, following the criteria in Schedule-C"

(ii) The existing provision against Serial Nol1 (iii) in Column No.3 of the table, appended under Sub-rule (2) of Rule 7 of the Principal Rules, shall be substituted with the following-

"Remaining 10% of the posts in the Grade shall be filled up by promotion strictly on the basis of merit through limited departmental competitive examination conducted by the High Court as specified in Schedule B of the Rules.

Provided that if candidates are not available for 10% of seats, or are not able to qualify in the examination then vacant posts shall be filled up by regular promotion."

Thus, by virtue of the said amendment, the Rules of 2003 were brought in consonance with the directions of the Supreme Court in 4th Judges Case by reducing the quota for accelerated promotion from 25% to 10% and increasing the quota of normal channel of promotion from 50% to 65%. However, no corresponding amendment was made in Rule 18 of the Rules of 2003 pertaining to seniority.

In October, 2014 the High Court of Tripura conducted the process for promotion and direct recruitment to Grade-I judicial posts. The quota applied during such exercise was as per the amended Rule 7 of the Rules of 2003. The petitioner along with other judicial officers was promoted against normal promotion quota under order dated 02.02.2015. Respondent No.3 was promoted against accelerated promotion quota. Respondent No.4 was appointed as direct recruit under order dated 11.05.2015.

The High Court published a draft seniority list of Grade-I officers by applying the rotation of the vacancies in proportion of 50:25:25. According to the petitioner, on account of this he was pushed down in his seniority. He, therefore, filed a representation dated 30.05.2017 opposing such draft seniority position. On 07.07.2017 final seniority list was published confirming the draft seniority list. The petitioner was shown at Sl. No.14 which according to him should have been Sl. No.12. There was no separate order on the representation of the petitioner dated 30.05.2017, however, while publishing the final seniority list it was recorded that all representations received were considered.

On 11.07.2017 the Registrar General of the High Court had conveyed to the Secretary, Law, Government of Tripura as under:

"Sir,

I am directed to communicate to you the relevant extract of the Full Court resolution dated 30.06.2017 regarding amendment of Tripura Judicial Service Rules, 2003 which is as follows:

"The Full Court has also resolved that in view of the 15% increase in the promotion quota for regular promotees from the post of Grade-II to Grade-I in Tripura Judicial Service by the Fifth Amendment of Tripura Judicial Service w.e.f. 29.05.2013, the Registrar General shall write to the Law Department, Government of Tripura to take steps for suitable amendment of Rule 18 of Tripura Judicial Service Rules, 2003 regarding determination of inter se seniority among the Officers of Grade-I of Tripura Judicial Service proportionate to the increase in the promotion quota for regular promotees."

I am, therefore, directed to request you to kindly take required steps for amendment of Tripura Judicial Service Rules, 2003 in terms of the resolution of the Hon‟ble Full Court."

On 03.08.2017 the Law Secretary wrote to the Registrar General and conveyed as under:

"Sir,

I am directed to refer to the above cited subject and to inform you that as per Judgment of the Hon‟ble Supreme Court dated 19.04.2012 passed in "Brij Mohan Lal versus Union of India" in the case bearing Transfer Petition No.22 of 2001 directing to increase 10% cadre strength of judicial officers in Tripura Judicial Service by amending the Tripura Judicial Service Rules, 2003 and in compliance of the order dated 20.04.2010 passed by the Hon‟ble Supreme Court of India in WP(C) No.1022/1989 (All India Judges Association Vs. Union of India & Ors.), the Law Department in the Government of Tripura increased the cadre strength of Judicial Officers of Tripura judicial Service by way of amendment including sub-rule (2) of rule-7 and Schedule E (A((b), Schedule E(B) and Schedule C(C) of Tripura Judicial Service (Fifth Amendment) Rules, 2013 (copy enclosed as Annexure-I). By fifth amendment, promotion against 50% of the vacancies in Grade-I has been increased to 65% and promotion by way of departmental competitive examination against 25% vacancies has been reduced to 10%, though 25% against direct recruitment from Bar having 7 years practice in Courts has been kept unchanged. But inadvertently the figure of 50% for promotion and 25% for promotion against departmental competitive examination under sub rule (4) and sub rule (6) of Rule 18 of the Tripura Judicial Service Rules, 2003 were not changed at the time of Fifth Amendment of Tripura Judicial Service Rules, 2003 and as a result, the principle of inter-se seniority remained unchanged creating anomaly and discrimination amongst the members of the service.

In the meantime, the Hon‟ble High Court, taking resolution in the Full Court meeting held on 30.06.2017 (copy enclosed as Annexure-II), has requested the State Government to take step to appropriately amend the relevant rules to bring parity in the line of fifth amendment of the Tripura Judicial Service Rules, 2003.

In view of above, the draft Tripura Judicial Service (Seventh Amendment) Rules, 2017 giving effect from the date of coming into force of the Tripura Judicial Service (Fifth Amendment) Rules, 2013 i.e. from 29.05.2013 is prepared and enclosed herewith (copy enclosed as Annexure-III) for consultation with the Hon'ble High Court.

I am, therefore, directed to request you to kindly place the draft Amendment Rules before the Hon‟ble High Court for consultation at an early date."

On 13.12.2017 in response to the said letter dated 03.08.2017 of the Government, the Registrar General of the High Court conveyed the Full Court resolution to the Government which was as under:

"The Full Court has considered the amendment proposal of the State Government for amendment of sub-rules (4) & (6) of Rule 18 of Tripura Judicial Service Rules with retrospective effect from 29.05.2013 and found that the final seniority list of the Officers of Grade-I of Tripura Judicial Service has already been published with the approval of the Full Court in terms of its resolution dated 30.06.2017 after determination of the seniority of the Officers in Grade-I of Tripura Judicial Service in accordance with existing provisions of Tripura Judicial Service Rules.

The Full Court is of the considered view that if sub-rules (4) & (6) of Rule 18 of Tripura Judicial Service Rules with regard to determination of inter se seniority among the Judicial Officers of Grade-I are amended with retrospective effect from 29.05.2013, as proposed by the State Government vide Letter No.F.2(13)-LAW/ESTT.2/2011/141 dated 03.08.2017 of the LR & Secretary, Law Department, the final seniority list of the Officers of Grade-I of Tripura Judicial Service already approved by the Full Court and finally published, has to be re-published after re-determination of inter se seniority of the Officers and the seniority of some of the Officers already determined as per the existing rules will be affected and the settled position will thereby be un-settled. The Full Court has, therefore, resolved to approve the amendment proposal with prospective effect.

The Registrar General will communicate the resolution of the Full Court to the LR & Secretary, Law Department, Government of Tripura accordingly."

With effect from 04.01.2018 the Rules of 2003 were amended by Tripura Judicial Service (7th Amendment) Rules, 2018 (hereinafter to be referred to as the Amendment Rules of 2018). By virtue of these amending rules sub-rules (4) and (6) of Rules 18 of the Rules 2003 were substituted as under:

"Sub-rule-4, The inter-se seniority of persons appointed in Grade-I in any year by way of promotion and direct recruitment, shall be determined by rotation on the basis of quota for promotees (65%), for promotees through limited departmental competitive examination (10%) and for direct recruitment (25%), that is to say 3:0:1, followed by 2:1:1 in the next rotation and shall be repeated in the same manner."

"Sub-rule-6, A 40(forty) point roster is to be maintained for appointment/promotion to the post of Grade-I in service. The posts at Sl. No.1, 2 & 3 will go to the promotees under 65% quota for the first rotation. The post at Sl. No.4 for the first rotation shall go to the direct recruitment under 25% quota. For the next rotation Sl. No.5 & 6 will go to the promotees. Sl. No.7 will go to the promotees under limited departmental competitive examination under 10% quota and Sl. No.8 will go to the direct recruitment. This process shall be repeated till all the posts in the Grade-I cadre are filled up in the roster in manner stated."

By virtue of the said Amendment Rules of 2018, the rotation of vacancies in Judicial Service Grade-I and the roster to be maintained for such seniority were brought in consonance with the changed quota as per the Amendment Rules of 2013. The petitioner thereupon filed a review petition before the High Court on administrative side on 10.08.2018 and requested that such amendments be given retrospective effect from 29.05.2013, i.e. the date when the Amendment Rules of 2013 were brought into effect. The High Court vide its order dated 30.08.2018 rejected such request. Thereupon the petitioner first filed a writ petition being WP(C) No.220 of 2019 which was withdrawn on 13.05.2019 with following observations:

"Mr. Raju Datta, learned counsel for the petitioner seeks permission to withdraw the writ petition reserving liberty to file afresh.

Learned counsel for the respondents not opposed to the same.

As prayed for, the writ petition stands disposed of as having been withdrawn reserving liberty to file afresh in the same and subsequent cause of action."

Thereupon the present fresh petition has been filed for the above noted prayers.

Appearing for the petitioner learned Sr. counsel Mr. Bijan Chandra Das raised following contentions:

(i) The promotion quotas and the quota for direct recruitment in the Grade-I post of Judicial Services were governed by the decisions of Supreme Court in 3rd and 4th Judges cases, so was the inter se seniority between such promotees and direct recruits. When by virtue of 4th Judges Case, Rule 7 of Rules of 2003 was being amended, corresponding amendment in Rule 18 for fixation of seniority should also have been made. The directives for such corresponding changes were inbuilt in the said two judgments of the Supreme Court. Not amending Rule 18 was thus a pure oversight, which even the High Court and the Government later on acknowledged. While doing so, in the year 2018, the seniority rule should have been given retrospective effect. Despite the recommendation from the Government it was under the insistence of the High Court that such retrospectivity was not granted;

(ii) Fixing a different quota for roster as compared to the quota for promotions would not be workable. In other words, unless and until the proportion of promotions and direct recruitment are in consonance with the roster points earmarked for each stream, the rules would become unworkable;

(iii) Counsel submitted that the error or omission was filled by the rule making authority by amending the Rules of 2003 by virtue of Amendment Rules of 2018. Such amendment was thus declaratory or clarificatory in nature. It was aimed at curing an unintended defect. Such rule should, therefore, be interpreted as a curative rule;

(iv) Counsel submitted that while the Government in exercise of its powers of subordinate legislation was framing the seniority rule, consultation with the High Court was not necessary. In any case, such consultation was neither meaningful nor effective since full facts were not brought to the notice of the High Court.

In support of his contentions, counsel relied on certain decisions reference to which would be made at a later stage.

On the other hand, learned counsel Mrs. Paramita Dhar appearing for the High Court administration opposed the petition. She took us through the affidavit-in-reply filed by the High Court administration and contended that having kept in mind all relevant aspects of the matter, conscious decision was taken by the Full Court not to give retrospective effect to the amendments of 2018 since there was a possibility of unsettling a settled position. She submitted that the Court in exercise of writ jurisdiction would not give a direction to give retrospective effect to a rule contrary to manifest intention of the rule making authority.

Learned counsel Mr. Somik Deb appearing for respondent No.3 who, as we noted earlier, is also a promotee but in accelerated stream raised following contentions:

(i) The petition has been filed after a long delay. In the matter of seniority the Court would not reopen the seniority position which is closed long back;

(ii) The petitioner has not joined several other promotees who would be affected if the prayers made by the petitioner are granted. In absence of all necessary parties, writ petition should be dismissed;

(iii) He submitted that in plain terms the rule has only prospective effect. The High Court in exercise of writ jurisdiction would not give retrospectivity to a legislation which is expressly made prospective;

(iv) Counsel further submitted that when a rule was framed and given prospective effect after due deliberations and consciously, it cannot be stated that present is a case of casus omissus which the High Court may be in a position to fill;

(v) Counsel submitted that seniority is a vested right. When the respondent No.3 was promoted in his quota, he acquired right to seniority in terms of the then existing statutory provision. Such vested right cannot be taken away by subordinate legislation.

Counsel relied on certain decisions reference to which would be made at appropriate stage.

Learned counsel Mr. T.D. Majumder appearing for respondent No.4, the direct recruit, also opposed the petition making similar submissions.

In order to decide these issues, we may revisit the 3rd Judges Case and 4th Judges Case judgments. The entire fulcrum of the petitioner‟s case as well as the right of promotion and seniority of the petitioner and the private respondents flows from these two judgments. We may recall in the 3rd Judges Case, the Supreme Court for the first time introduced the concept of accelerated promotion in the cadre of District Judges. 50% of the vacancies would be filled by promotion from the feeder cadre on the basis of merit-cum-seniority and after passing a suitability test. 25% would be promoted strictly on the basis of merit through limited departmental competitive examination from amongst the Civil Judge (Senior Division) with not less than 5(five) years of qualifying service. The rest 25% would be earmarked for direct recruitment. While doing so, the Supreme Court also desired to minimize disputes of inter se seniority. For such purpose it was provided that the High Courts will suitably amend and promulgate seniority rules on the basis of roster principle as approved by the Supreme Court in case of R.K. Sabharwal and others vrs. State of Punjab and others reported in (1995) 2 SCC 745. In this context, it was clarified that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. It was provided that the existing relative seniority of the members of the higher judicial service has to be protected but the roster has to be evolved for the future. It was directed that the appropriate rules and methods will be adopted by the High Court and approved by the State wherever necessary by 31.03.2003. The Supreme Court also did not accept the recommendations for giving any weightage to the members of the subordinate judicial service on their promotion to the higher service in determining seniority vis-à-vis the direct recruits and the promotees. It was provided that the roster system will ensure fair play to all while improving efficiency in the service.

It was in consonance with these directions of the Supreme Court in 3rd Judges Case that the Rules of 2003 were promulgated in the State of Tripura. Rule 7 thereof embodied the principle of two streams of promotion and direct recruitment to the cadre of District Judge in the proportions set out by the Supreme Court. Rule 18 pertaining to seniority laid down various guiding principles for fixing inter se seniority of these promotees and direct recruits. Sub-rule (4) of Rule 18 provided that the inter se seniority of persons appointed in Grade-I in any year by way of promotion and direct recruitment shall be determined by rotation on the basis of quota for promotees 50%, for promotees through competitive examination 25% and direct recruitment 25%, that is to say 2:1:1. As per sub-rule (6) of Rule 18, a 40 (forty) point roster would be maintained for appointment/promotion to the posts of Grade-I. The posts at Sl. No.1 and 2 will go to the promotees under 50% quota, the third post would go to promotee under the limited departmental competitive examination and the 4th post would be available to the direct recruit. This process would be repeated.

Two significant aspects of the matter would emerge from the said judgments of the Supreme Court and the corresponding rules framed by the State. First that quota for normal promotion, accelerated promotion and direct recruitment were fixed and second that the seniority inter se between candidates of these three different streams who would all occupy the posts in a common cadre, would be governed by the roster point. The first two vacancies would go to the promotees under normal channel, third to the promotee on acceleration basis and the fourth would go to the direct recruit and so on.

The Supreme Court had a rethink about the quota earmarked for accelerated promotion. In 4th Judges Case, the Supreme Court directed that such quota would be modified and brought down to 10%. There would be corresponding increase in the quota for normal promotion to 65%. It was provided that the rules shall be amended to come into effect from 01.01.2011. Even if such rules are not amended, this modification shall take effect from such date. It was to incorporate such changes that Amendment Rules of 2013 were brought into effect. By virtue of the amendments under the said Rules, the quota for fast track promotion was reduced to 10% and that for normal promotion was increased to 65%. However, no corresponding amendment was made in Rule 18 of the Rules of 2003 concerning seniority.

The fact that this was a pure oversight which was corrected in the year 2018 is beyond cavil. In fact, the High Court in its Full Court resolution dated 30.06.2017 which was conveyed to the State Government under communication dated 11.07.2017 had resolved that in view of 15% increase in the promotion quota for regular promotees by virtue of the Amendment Rules of 2013 the Government of Tripura would be requested to take steps for suitable amendment of Rule 18 of the Rules of 2003 regarding determination of inter se seniority amongst the officers of Grade-I of Tripura Judicial Service proportionate to the increase in the promotional quota for regular promotees. Pursuant to this communication, the Government of Tripura had conveyed to the High Court under letter dated 03.08.2017 that by the Amendment Rules of 2013 quota for promotion for (regular promotees) was increased from 50% to 65% reducing that in the examination quota from 25% to 10% but "inadvertently the figure of 50% for promotion and 25% for promotion against departmental competitive examination under sub-rule (4) and sub-rule (6) of Rule 18 of the Tripura Judicial Service Rules, 2003 were not changed at the time ............." and "as a result the principle of inter se seniority remained unchanged creating anomaly and discrimination amongst the members of the service". In that view of the matter, it was suggested that the draft rules be given effect from coming into force of Tripura Judicial Service (5th Amendment) Rules, 2013. This suggestion was, however, not accepted by the High Court. It was so resolved by the Full Court under resolution dated 12.12.2017 and which was conveyed to the Government on 13.12.2017. In the said resolution, the Full Court expressed an opinion that the final seniority list of officers of Grade-I of Tripura Judicial Service is already approved by the Full Court and finally published, which would have to be republished after redetermination of inter se seniority of the officers and seniority of some of the officers already determined as per the existing rules will be affected and the settled position will be unsettled. The Full Court, therefore, resolved to approve the amendment only with prospective effect.

In our opinion, the amendments in Rule 18 particularly, sub-rules (4) and (6) of the Rules of 2003 by virtue of the Amendment Rules of 2018 shall have to be applied from 29.05.2013, i.e. the date from which Rule 7 of the Rules of 2003 was amended by virtue of the Amendment Rules of 2013. This is so for the following reasons:

Firstly, by combined reading of 3rd and 4th Judges Cases, it was inbuilt in the formula fixing inter se quota for two streams of promotions and direct recruitment to Grade-I judicial service that the seniority by way of rotation must be in tandem with such proportion. We may recall that in the 3rd Judges Case while introducing a stream of accelerated promotion and earmarking 25% of the vacancies of the promotional posts for such stream the Supreme Court also desired that all issues of inter se seniority between the two streams of promotees and direct recruits be regulated through the system of roster. Whatever the previous procedure as per the rules for determining the inter se seniority would operate only till amendments in the rules introducing such internal quotas. From that date all inter se seniority would be governed by the roster point. While not recognizing any edge in favour of the in-house candidates against the direct recruits, it was expected that an equitable system would be installed to maintain the efficiency of the service. Rule 18 was, therefore, included in the Rules of 2003. Roster points were earmarked in proportion of the ratio for each stream. When in 4th Judges Case, the Supreme Court modified the respective ratios for normal promotion and accelerated promotion streams, it was absolutely incumbent upon the rule making authority also to make necessary changes in the roster points. Though the 4th Judges Case is silent on this aspect, the directions contained therein must be read in continuation of the directions contained in 3rd Judges Case. The 4th Judges Case was not in supersession of the earlier judgment. It was only in partial modification to the limited extent of shrinking the quota of accelerated promotion stream and correspondingly swelling that in favour of normal promotions. The directions issued in the 3rd Judges Case would mutatis mutandis apply in such changed scenario also. The roster point, therefore, had to be suitably amended. The rule of seniority particularly, sub-rules (4) and (6) of Rule 18 of the Rules of 2003 which provided for such roster points had to be brought in tune with the amended Rule 7. This in the plain terms was the effect of two judgments of the Supreme Court.

Irrespective of that, in plain logic maintaining the roster points as per the original proportion of promotees and direct recruits would even otherwise not be workable. It is nobody‟s case that such changes in the seniority rules particularly concerning the roster points were not necessary. It was, therefore, that the High Court on its own brought this situation to the notice of the Government to make necessary amendments in Rule 18 of the Rules of 2003. The Government recognized such requirement and, in fact, suggested that such recommended changes be given effect from 29.05.2013 when Rule 7 of the Rules of 2013 was amended. Whatever the reason, the Full Court did not agree to this later suggestion of the Government.

Whenever a cadre comprises of more than one stream such as promotees and direct recruits, the question of inter se seniority always comes up. The question that is, therefore, relevant is whether in addition to fixing the quota for such different sources for filling up the vacancies, in fixing inter se seniority, has the legislature also adopted the principle of rotation of such vacancies which in popular parlance in the service jurisprudence has come to be known as the rota and quota system of promotion and seniority. If in addition to providing quota for different streams no rotation of vacancies is to be made for fixing seniority, the question would stand on an entirely different footing. Any change in internal quota would not necessarily affect the seniority rule. On the other hand, if the service rule in addition to prescribing quota for different streams also adopts the principle of rotation of vacancies for inter se seniority, it is absolutely essential that such rotation as per the roster points keeps pace with the changing internal ratio for different streams. Or else, the roster point system would break down. For example, if a cadre is formed by promotion and direct recruitment in equal measures but the roster point earmarks first two vacancies for promotees, third for direct recruitment and so on, at the end of the roster, there would be large number of direct recruits left without assigning any seniority.

In the Constitution Bench judgment of the Supreme Court in case of Mervyn Continho and others vrs. Collector of Customs, Bombay and others reported in AIR 1967 SC 52 the validity of determining seniority in the cadre by system of rotation between direct recruits and promotees came up for consideration. While upholding the principle of fixing seniority by rotation of vacancies it was observed as under:

"5. One of the principles in this circular of 1959 is with respect to relative seniority of direct recruits and promotees. It provides that relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules. It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules. Where, for example, the reservation for each method is 50 per cent, the roster will run as follows-(1) promotion, (2) direct recruitment, (3) promotion, (4) direct recruitment, and so on. Appointments should be made in accordance with this roster and seniority determined accordingly. A question has been raised whether the circular of 1940 to which we have already referred survived after this circular of 1959; but in our opinion it is unnecessary to decide that question, for the circular of 1959 itself lays down that seniority shall be determined accordingly, i.e., in accordance with the rotational system, depending upon the quota reserved for direct recruitment and promotion respectively. It is this circular which according to the respondent has been followed in determining the seniority of Appraisers in 1963.

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This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words "'seniority determined accordingly", in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where, therefore, recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service. The anomalies which have been referred to in the petition arise not on account of there being anything opposed to equality of opportunity in Government service by the use of the rotational system; they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it. It is merely because of this fortuitous circumstance that anomalies to which reference has been made in the petition have arisen. There is no doubt that if direct recruitment had kept pace with the quota fixed therefore there would have been no anomalies in fixing the seniority list. The question, therefore, narrows down to this: Can it be said that there is denial of equality of opportunity which arises out of this fortuitous circumstance and which is not a vice inherent in the rotational system? We are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in Government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of 1:1 should be worked out". This order is in accordance with the circular of 1959 and as we have said already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. Nor do we think that this system is on a par with the carry-forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179, and on which strong reliance is placed on behalf of the petitioners. In the case of the carry-forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devdasan's case, AIR 1964 SC 179. The petition must, therefore, fail so far as seniority of Appraisers is concerned."

We may now consider whether the amendments of 2018 would have retrospective or retroactive effect. We are conscious that a legislation is presumed to be prospective unless either in express terms or necessary implications it is given retrospective effect by the rule making authority. We are equally conscious that in exercise of writ jurisdiction this Court would not mandate giving retrospective effect to a rule which the rule making authority has not granted. However, the techniques are not unknown where an amendment or a statute is considered either clarificatory, declaratory or even curative. These interpretative techniques have developed over period of time to ensure that the intention for framing a legislation is given its full effect.

In this context, we may refer to certain decisions.

In case of Allied Motors (P.) Ltd. vrs. Commissioner of Income Tax, Delhi reported in AIR 1997 SC 1361 it was observed as under:

"12. Therefore, in the well known words of Judge Learned Hand, one cannot make a fortress out of the dictionary; and should remember that statutes have some purpose and object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning. In the case of R.B. Jodha Mal Kuthiala v. Commissioner of Income-tax, Punjab, Jammu & Kashmir and Himachal Pradesh, (1971) 82 ITR 570): (AIR 1972 SC 126), this Court said that one should apply the rule of reasonable interpretation. A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole."

In case of Zile Singh vrs. State of Haryana and others reported in (2004) 8 SCC 1, it was observed as under:

"22. The State Legislature of Haryana intended to impose a disqualification with effect from 5-4-1995 and that was done. Any person having more than two living children was disqualified on and from that day for being a member of municipality. However, while enacting a proviso by way of an exception carving out a fact situation from the operation of the newly introduced disqualification the draftsman's folly caused the creation of trouble. A simplistic reading of the text of the proviso spelled out a consequence which the Legislature had never intended and could not have intended. It is true that the Second Amendment does not expressly give the amendment a retrospective operation. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have the retrospective effect and if the Court can unhesitatingly conclude in favour of retrospectivity, the Court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statutes.

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Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. Vs. State of U.P. and Ors., (2002) 2 SCC 645, State of Rajasthan Vs. Mangilal Pindwal, (1996) 5 SCC 60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co., (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar Vs. S. Michael & Ors., AIR 1963 SC 933. In West U.P. Sugar Mills Association case a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar's case a three-Judge Bench of this Court emphasized the distinction between "supersession" of a rule and "substitution" of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place."

In case of State Bank's Staff Union (Madras Circle) vrs. Union of India and others reported in (2005) 7 SCC 584, it was observed as under:

"26. Curative Statutes are by their very nature intended to operate upon and affect past transactions. Curative and validating statutes operate on conditions already existing and are therefore wholly retrospective and can have no prospective operation."

In case of Vijay vrs. State of Maharashtra and others reported in (2006) 6 SCC 289, it was observed as under:

"10. It may be true the amendment came into effect on 8-8-2003. The legislative policy emanating from the aforesaid provision, in our opinion, is absolutely clear and unambiguous. By introducing the said provision, the legislature, inter alia, intended that for the purpose of bringing grassroot democracy, a person should not be permitted to hold two posts created in terms of the Constitution (73rd Amendment) Act. It is true that ordinarily a statute is construed to have prospective effect, but the same rule does not apply to a disqualifying provision. The inhibition against retrospective construction is not a rigid rule. It does not apply to a curative or a clarificatory statute. If from a perusal of the statute, intendment of the legislature is clear, the Court will give effect thereto. For the said purpose, the general scope of the statute is relevant. Every law that takes away a right vested under the existing law is retrospective in nature. [See Govt. of India & Ors. vs. Indian Tobacco Association, (2005) 7 SCC 396.]

"The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to past events. The reason why penal statutes are so construed was stated by Erle, C.J., in Midland Rly. Co. v. Pye, (1861) 10 CBNS 179 at p.191 in the following words:

"Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment."

This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power."

In case of Commissioner of Income Tax, Kolkata XII vrs. Calcutta Export Company reported in (2018) 16 SCC 686 it was observed as under:

"30. A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section, is required to be read into the section to give the section a reasonable interpretation and requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole.

The purpose of the amendment made by the Finance Act, 2010 is to solve the anomalies that the insertion of Section 40(a)(i-a) was causing to the bona fide taxpayer. The amendment, even if not given operation retrospectively, may not materially be of consequence to the Revenue when the tax rates are stable and uniform or in cases of big assessees having substantial turnover and equally huge expenses and necessary cushion to absorb the effect. However, marginal and medium taxpayers, who work at low gross product rate and when expenditure which becomes subject matter of an order under Section 40(a)(i-a) is substantial, can suffer severe adverse consequences if the amendment made in 2010 is not given retrospective operation i.e., from the date of substitution of the provision. Transferring or shifting expenses to a subsequent year, in such cases, will not wipe off the adverse effect and the financial stress. Such could not be the intention of the legislature. Hence, the amendment made by the Finance Act, 2010 being curative in nature required to be given retrospective operation i.e. from the date of insertion of the said provision.

Further, in Allied Motors (P) Limited, (1997) 3 SCC 472, this Court while dealing with a similar question with regard to the retrospective effect of the amendment made in Section 43-B of the Income Tax Act,1961 has held that the new proviso to Section 43-B should be given retrospective effect from the inception on the ground that the proviso was added to remedy unintended consequences and supply an obvious omission. The proviso ensured reasonable interpretation and retrospective effect would serve the object behind the enactment. The aforesaid view has consistently been followed by this Court in the following cases, viz., Whirlpool of India Ltd., vs. CIT, (2000) 9 SCC 62 : (2000) 245 ITR 3, CIT vs. Amrit Banaspati Co. Ltd., (2002) 10 SCC 457 : (2002) 255 ITR 117 and CIT vs. Alom Extrusions Ltd., (2010) 1 SCC 489 : (2009) 319 ITR 306."

The issue can be looked from a slightly different angle. If we give prospective effect to the amendments in the Rule 18, for the period between 2013 when the quotas for normal promotion and accelerated promotion were re-adjusted but roster points were not, till 2018 when such correction was made, a piquant situation will arise. Promotion quota will follow a different proportion and seniority roster a different one. This will make the seniority rule vulnerable to the charge of being arbitrary. To save it from being unconstitutional and ultra vires the said amendment will have to be seen as curative and, therefore, retroactive. In view of this discussion, we find that the situation can be addressed only by interpreting the amendments in sub-rules (4) and (6) of Rule 18 of the Rules of 2003 by virtue of amendments of the Rules of 2018 as curative in nature and would relate back to the amendment to Rule 7 by virtue of Amendment Rules of 2013. Such amendments in sub-rules (4) and (6) of Rule 18, therefore, shall have to take effect from 29.05.2013.

We may now deal with the contentions raised by the counsel for the respondents. We do not find that the petition suffers from delay or laches. The petitioner had made a representation at the very outset objecting to his seniority assigned in the draft seniority list soon after it was published. His representation was rejected by publishing final seniority list on 07.07.2017. Soon thereafter the amendments in Rule 18 of the Rules of 2003 were promulgated on 04.01.2018. The petitioner thereupon again requested the administration to redetermine his seniority as per the said amended rules. This was rejected by the Full Court on 28.08.2018. Sometime thereafter he filed the writ petition in the High Court but withdrew the same on 13.05.2019 with a liberty to file a fresh petition. The present petition thereafter came to be filed on or around 25.05.2019. The petitioner has thus all along kept his challenge alive, pursued his position with reasonable promptness. The petition at least cannot be thrown out on the ground of delay or laches.

The contention that if the prayers are ultimately granted, several other promotees or direct recruits would be affected and, therefore, petition should not be entertained, cannot be accepted for two reasons. Firstly, the petitioner has challenged the seniority position on the basis of legal contentions. No factual aspects or disputes come into picture. Some of the employees in his cadre are already joined as respondents. It is by now well settled through series of judgments of the Supreme Court that when a petitioner challenges seniority only on the basis of legal contention and not touching any factual aspects, it is not necessary to join the persons likely to be affected by the outcome of such petition. In case of The General Manager, South Central Railway, Secunderabad and another vrs. A.V.R. Siddhantti and others reported in (1974) 4 SCC 335 it was observed as under:

"12. The second is that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in this case. Those employees, proceeds the argument, were necessary parties and their non-joinder is fatal to the petition. In support of this contention, Counsel has cited Padam Singh Jhina v. Union of India and ors.

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As regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop Departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition."

Additionally, the petitioner has joined the respondents No.3 and 4 who are presently shown senior to him but if his prayers are granted, they are likely to become his junior. The petitioner has thus joined those persons who are likely to be affected by his challenge. Thereafter it is not his duty to join any other person who may be indirectly affected by a declaration of law that this Court may make in this petition.

The contention that the respondents No.3 and 4 had a vested right to a seniority position which cannot be taken away by a subordinate legislation framed with retrospective effect also cannot be accepted. Firstly, as noted above, continuing the rule position for determining seniority which is not in sync with the changed quota for promotees and direct recruits would lead to a deadlock. Secondly, none of the respondents had a right to seniority on the basis of principles which were not in consonance with the quota for promotions and direct recruitment.

In view of this discussion, it is not necessary to examine at length the contention of the petitioner that no consultation before amending the seniority rules the High Court was necessary or that such consultation was not properly done. Firstly, whether necessary or not the Government took the suggestion of the High Court and accepted the same. The question of consultation not being necessary or not properly done, therefore, would not arise.

In the result, the petition is allowed in following terms:

(i) The amendments in sub-rules (4) and (6) of Rule 18 of the Rules of 2003 by virtue of the Amendment Rules of 2018 are held to be curative and would have effect from 29.05.2013, i.e. the date on which Rule 7 of the Rules of 2013 was amended by virtue of Amendment Rules of 2013;

(ii) The seniority list published on 07.07.2017 will have to be recast giving effect to these directions. The seniority of the petitioner, respondents No.3 and 4 and all other judicial officers who are either promoted or directly recruited pursuant to the process of promotion/recruitment of 2015 shall be refixed according to such roster point.

Petition is disposed of accordingly.

Pending application(s), if any, also stands disposed of.