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Pattanaik, J.—This petition under Article 32 of the Constitution by thepromotee District Judges, who are members of theMaharashtra State Judicial Service Association, assails thedecision of the Bombay High Court on Administrative sideon the question of inter se seniority of District Judges,appointed by nomination from the Bar and those who arepromoted from the rank of Additional District Judge. Onconsideration of the relevant statutory rules and the judgmentof this Court in Balasaheb Vishnu Chavan and Another Vs. State of Maharashtra and Others, theHigh Court came to the conclusion that District Judges, whoare appointed by nomination would reckon their seniority inthe cadre from the date of appointment, even though they areasked to work as Additional District Judges and the promoteeDistrict Judges would reckon their seniority from the date oftheir promotion. In the writ petition that had been filed, Smt.U.R. Joshi, a direct recruit District Judge had been arrayed asrespondent No. 3 in her individual capacity as well asrepresentative of the direct recruit nominated District Judges.She however, appeared in her individual capacity alone andamongst the direct recruits, she was the senior-most. Whenthe case had appeared before the Court on 16.1.2002, andeven though a statement was made by the counsel appearingfor the promote-petitioners that individual notices to each ofthe direct recruit had been offered, even though they had notbeen arrayed as parties, an application for being impleaded asparty respondents had been made by several such directrecruits and the prayer for impleadment has bene allowed andtime had been granted to the impleaded direct recruitsrespondents to file counter affidavit within ten days from thatdate. The impleaded direct recruits have filed their counteraffidavit and were represented by Shri M.L. Verma, thelearned senior counsel. Respondent No. 3, the senior-mostdirect recruit District Judge was represented by Shri BhimraoN. Naik. Shri S.M. Jadhav appeared for the High Court andShri S.V. Deshpande, appeared for the State of Maharashtra.On behalf of the direct recruit respondents, a preliminaryobjection had been taken by Shri M.L. Verma that the disputebeing one of inter se seniority within a cadre, the Court oughtnot to entertain a petition under Article 32, as the partieswere entitled to approach the High Court under Article 226against the Administrative decision of the Bombay HighCourt. We have no doubt in our mind that an administrativedecision of the Court could be assailed by filing a writpetition under Article 226 in the High Court itself, but thisCourt having entertained the petition under Article 32 byissuing rule on 8.12.2000 and the dispute being one, whichcenters round interpretation of the relevant rules and both thedirect recruits and the promotees having made their standknown, and further no disputed question on facts havingarisen, we do not think it appropriate to direct the promoteesto approach the High Court in the first instance. We,therefore, heard the parties at length on the merits of thematter.
The Service conditions of the employees belonging tothe Judicial Service of the State of Maharashtra is governedby a set of rules framed by the Governor of Maharashtra inconsultation with the High Court in exercise of powersconferred by Articles 233 and 234 of the Constitution and theproviso to Article 309 of the Constitution called the BombayJudicial Service Recruitment Rules, 1956 [hereinafterreferred to as 'the recruitment rules']. The said rules havebeen amended twice, once in the year 1987 and again in theyear 1992. u/s 3 of the Rules, the service consistsof two branches - junior and senior. The senior branchconsists of District Judges, Principal Judge and all otherJudges of the Bombay City Civil Court, Additional DistrictJudges, Chief Judge and Additional Chief Judges of theSmall Causes Court, Bombay and Chief MetropolitanMagistrate and Additional Chief Metropolitan Magistrates, asprovided in Rule 3(3). The method of recruitment to thesenior branches is indicated in Rule 5. Under Sub-rule (2) ofRule 5, the District Judges are of two grades -- (a) DistrictJudges and (b) Small causes Court District Judges. In theoriginal Recruitment Rules of 1956, there were no two gradesof District Judges and under Rule 5(2)(i), appointment to thepost of District Judges could be made by the Governor bypromotion in consultation with the High Court of persons,who have served as Assistant Judges and from the Membersof the Bar, on recommendation of the High Court, who havepractised as Advocates or pleaders for not less than sevenyears. Thus, the cadre of District Judge could be filled upeither by promotion of the Assistant Judges or by directrecruitment from the Bar. Under the Amended Rules of1987, there existed two grades of the District Judges viz. theDistrict Judges and Selection Grade District Judges. Inaccordance with Rule 5(2)(ii) of 1987 Rules, appointment tothe post of District Judges could be made by the Governor bypromotion from the Members of the Junior Branch, who hadordinarily served as Additional District Judges and by way ofdirect recruitment on the recommendation of the High Courtfrom the members of the Bar who have practised asAdvocates or pleaders for not less than seven years in theHigh Court of Courts subordinate thereto. In case of directrecruits, a further stipulation was that direct recruits would befirst appointed to work as Additional District Judge for aperiod of two years or for such further period, as may bedecided by the Government on the recommendation of theHigh Court. The Recruitment Rules were again amended inthe year 1992 called the Bombay Judicial ServiceRecruitment (Second Amendment) Rules, 1992 and Rule5(2)(ii) reads thus:
"Rule 5(2)(ii): District Judges -- Appointment tothe posts of District Judges shall be made by theGovernor.
(a) by transfer from the judges in the City Civiland Sessions Court, Bombay, who arerecruited from the Bar only if they arewilling;
(b) by promotion in consultation with the HighCourt, from the members of the JuniorBranch who have been promoted asAdditional District Judge; and
(c) by nomination, on the recommendation ofthe High Court, who has been for not lessthan seven years an advocate or pleader inthe High Court or Courts subordinatethereto."
It is thus apparent that the appointment to the post of DistrictJudges under 1992 Rules, could be made not only bypromotion of Additional District Judges and by nominationfrom amongst the members of the Bar, having not less thanseven years practice on the recommendation of the HighCourt, but also by transfer from the Judges in the City Civiland Sessions Court, who are recruited from the Bar, only ifthey are willing. It may be borne in mind that when the HighCourt had recommended for addition of a new sub-rule toRule 5(2(ii), so as to make appointment to the post ofDistrict Judge by transfer from the Judges in the City Civiland Sessions Court, by suggesting that a new sub-rule to benumbered as Clause [c] to be added and that was in the draftrule, but in its final shape, the said new sub-rule wasnumbered as Clause (a) and the pre-existing Clause [a]became Clause [b] and the pre-existing Clause [b] becameClause [c] and this alteration, the Rule as it stands now,has become wholly unworkable. Though Rule 5(2)(ii) wasamended by the amended rules of 1992, but Rule 5(2)(ii)(b)remained intact, as a result of which though under 1992Rules, Rule 5(ii)(b) provides for promotion and Rule5(2)(ii)(c) provides fro nomination on the recommendation ofthe High Court but while prescribing the proportion betweenthem in Sub-rule (b), the old provision remains as it is and thesame is quoted herein below:
"(b) ordinarily the proportion of posts filled in bypromotion, under Sub-clause (a) of Clause (ii) andthose by appointment from members of the Barunder Sub-clause (b) of Clause (ii) shall be 50:50."
It would thus be seen that under the Rule as it now stands,appointment from members of the Bar is made under Sub-clause[c] and not under Sub-clause [b] as indicated aboveand promotion is made under Sub-clause [b] and not underSub-clause [a] as indicated above. The entire confusion isbecause of the fact that while draft rules suggested anaddition of a clause as Clause [c], the final rule altered thesame and the additional clause was made Clause [a]. Theseniority in the cadre of District Judges with which we areactually concerned in the present case is governed by Clause[c] of Rule 5(2) and the same is extracted herein below:
"[c] Seniority in the cadre of District Judges incase of persons appointment under Sub-clause (a)and (b) of Clause (ii) shall be determined on thebasis of their dates of appointment to work asDistrict Judges."
If a literal interpretation of the seniority rules is to be given,then it must be held that there is no rule for seniority of theDistrict Judges, who are appointed by nomination on therecommendation of the High Court from amongst themembers of the Bar, having not less than seven years'standing as an advocate, as that would come under Sub-clause[c] of Rule 5(2)(ii), whereas the seniority rule provides fordetermination of inter se seniority amongst the personsappointed under Sub-clause [a] and Sub-clause [b]. For aproper appreciation of the matter, it would be proper toextract Rule 5(2), as it stands now, after the amendment of1992:
"Rule 5(2): District Judges, Selection GradeDistrict Judges and Judges of the Bombay CityCivil Court:-
(i) District Judges shall be of two grades namely:-
(a) District Judges; and
(b) Selection Grade District Judges.
(ii) District Judges -- Appointment to the postsof District Judges shall be made by the Governor
(a) by transfer from the Judges in the CityCivil and Sessions Court, Bombay, who arerecruited from the Bar only if they arewilling;
(b) by promotion in consultation with theHigh Court, from the members of the JuniorBranch, who have been promoted asAdditional District Judges; and
(c) by nomination, on the recommendation ofthe High Court, who has been for not lessthan seven years an advocate or pleader inthe High Court or Courts subordinatethereto.
(iii)(a) Appointment under Sub-clause [c] of Clause
(ii) shall not be made unless a person is firstappointment to work as an Additional District Judgeon probation for a period of two years which maybe extended by the High Court from time to time,as it may deem fit.
(a-1) During the period of probation anduntil expressly confirmed by a written orderthe services of an appointee shall beterminated by one month notice on eitherside, without any reason being assignedtherefore or by payment of salary for theperiod of notice or the unexpired portionthereof.
[a-2] He/she shall be required to pass thelanguage examination according to the rulesprescribed in that behalf unless he hasalready passed, or has been exempted frompassing those examinations.]
(b) ordinarily the proportion of posts filled in bypromotion, under Sub-clause (a) of clause (ii) andthose by appointment from members of the Barunder Sub-clause (b) of Clause (ii) shall be 50:50;
[c] Seniority in the cadre of District Judges in caseof persons appointment under Sub-clauses (a) and(b) of Clause (ii) shall be determined on the basisof their dates of appointment to work as DistrictJudges:
Provided that, if more than one person is soappointed to work as District Judge on the date,seniority inter se as between them shall be in theorder fixed by the High Court."
In course of hearing, to our query, the counsel appearingfor the High Court, on instructions, submitted that there isnot a single person in the cadre of District Judge, who hascome by way of transfer from the Judges in the City Civiland Sessions Court, who had been recruited from the Barand only one person who had come, had gone back.
Mr. Nageshwara Rao, appearing for the promotees,contended that the administrative decision of the High Court,determining inter se seniority between the promotees anddirect recruits has been made on the basis of the Judgment ofthis Court in Balasaheb Vishnu Chavan and Another Vs. State of Maharashtra and Others, in which case,the provisions of the Recruitment Rules, as it stood prior toits amendment in 1987 was under consideration. At thatpoint of time, there was no rule for determination of inter seseniority between the direct recruits and promotees, whichwas brought about by amendment of 1987 and has also beenretained under the 1992 Rules. The question forconsideration in the aforesaid case was, though a member ofthe Bar is recruited as a District Judge, he may be asked toserve as an Assistant Judge for a specific period if he isbelow the prescribed age and, therefore, whether suchappointment would make him a member of the cadre ofAssistant Judge or he can be held to be a District Judge, buthas been required to serve as an Assistant Judge for gainingexperience. On construction of the relevant provisions ofthe Rules, the Court held that when a member of the Bar isrecruited as a District Judge and is asked to serve as anAssistant Judge for a specified period, if he is below theprescribed age, then his functioning as Assistant Judgewould not be strictly in law make him as a member of thecadre of Assistant Judge, as there is no provision for directrecruitment to the cadre of Assistant Judge. Consequently,such a person cannot be called as a member of the AssistantJudge subject to the rule of seniority applicable to theregular members of that cadre who are appointed only bypromotion from the Junior Branch. According to Mr.Nageshwara Rao, the aforesaid decision could not be reliedupon for determining the inter se seniority between the directrecruit and promotee District Judges, in view of the specificrule dealing with seniority. Mr. Nageshwara Rao contendsthat on a plain literal meaning being given to the languageused in Rule 5[2][c], the seniority in case of a direct recruithas to be reckoned from the date, he is appointed to work asDistrict Judge and not from the date, he is appointed to workas an Additional District Judge. The learned counsel, insupport of the aforesaid contention also relies upon Rule5(iii)(a), which unequivocally puts an embargo for anappointment as District Judge from amongst the members ofthe Bar unless such person on being selected is firstappointed to work as Additional District Judge on probationfor a period of two years, which may be extended by theHigh Court from time to time, as it may deem fit. Mr.Nageshwara Rao, therefore, contends that a promoteeDistrict Judge on being promoted from the post ofAdditional District Judge, is entitled to reckon his seniorityin the cadre from the date of promotion, whereas a directrecruit District Judge by nomination on the recommendationof the High Court from amongst the members of the Bar,who have practised for not less than seven years, would beentitled to reckon his seniority in the cadre of District Judgeonly when he is appointed to work as a District Judge andnot the initial period of probation for two years when he isappointed to work as an Additional District Judge.
Mr. M.L. Verma, the learned senior counsel, appearingfor the direct recruits as well as Mr. Bhimrao N. Naik,appearing for respondent No. 3, however contended that theseniority rule as provided in Rule 5[2][c] does not deal withthe seniority in the cadre of District Judge and thosemembers, who are directly recruited from the Bar on therecommendation of the High Court, after being selected andthe aforesaid rule of seniority is intended for determininginter se seniority between the promotees and those who areappointed as District Judge by transfer from the Judges inthe City Civil and Sessions Court. According to Mr.Verma, even the prescription of ratio of 50:50 in Rule5(2)(b) is between the transferee District Judges and thepromotee District Judges and not between the direct recruitDistrict Judges and promotee District Judges. The learnedcounsel urged that in the cadre of District Judges, the quotaof promotees has become much more than, what is providedand, therefore, those of the promotees who have usurped thequota meant for direct recruits, cannot be given anyseniority. We fail to understand how this contention couldbe advanced in the teeth of his submission that Rule 5(2)(b)does not provide for any quota for the direct recruits. Wealso are not in a position to appreciate the contention that theinter se seniority rule in the cadre of District Judge does notprovide for seniority of the direct recruits, which has to be inaccordance with the Maharashtra Civil Service (Regulationof Seniority) Rules, 1982. In fact the Registrar of the HighCourt, in the affidavit filed, has taken the aforesaid stand.In our considered opinion, the stand taken by the High Courtas well as by the direct recruit District Judges is whollyunsustainable and it is unimaginable that a rule providing forrecruitment to the cadre of District Judge, which isessentially composed of direct recruits and promotees and arule of seniority has been provided, but does not cover thecase of direct recruit District Judges. The entire anomalyand confusion is an account of the mistake that wascommitted while inserting another clause under theamendment of 1992. As has been stated earlier, as on datethere is not a single person, who has come on transfer fromthe category of Judges in the City Civil and Sessions Courtand is working as District Judge. Rule 5(2) of the 1992Rules, therefore, require necessary alteration, either byaltering existing Sub-clause [a] as Sub-clause [c], Sub-clause[b] as Sub-clause [a] and Sub-clause [c] as Sub-clause[b] and then in Sub-clause (iii)(a) by altering Sub-clause [c]as Sub-clause [b] or keeping Rule 5(2)(ii) and Rule (2)(iii)(a)as it stands and altering and amending Clauses {b} and {c}.It appears that the State Government or the High Court havenot applied their mind to the amendments carried out andnecessary attention has not been bestowed. The counselappearing for the High Court on instructions howeversubmitted that even from 1992 till the Administrativedecision, which is being impugned in the present case, theHigh Court has been acting in accordance with the draftrules that had been submitted and therefore, noinconvenience has been caused. This indicates the realintention of the Court as well as that of the Government.We, therefore, direct that appropriate amendment of Rule5(2) of the Recruitment Rules be made at an early date.Notwithstanding the confusion which writ large in theprovisions, as stated earlier, we have no manner of doubtthat the seniority of the direct recruit District Judges in thecadre would reckon only from the date, they are appointed towork as District Judge. The expression "to work as" both inRule 5(2)(iii)(a) and Rule 5[2][c] must carry the sameconnotation. If under Rule 5(2)(iii)(a), direct recruit cannotbe appointed as a District Judge unless he is first appointedto work as Additional District Judge for a period of twoyears, it is difficult for us to comprehended that whileinterpreting the same expression "to work as District Judge"in Rule 5[2][c] can be given a meaning that it would reckonfrom the date of appointment, as has been done by theBombay High Court in its administrative decision. In otherwords, a conjoint reading of the provisions, providing forappointment as District Judge from amongst the members ofthe Bar by nomination on the recommendation of the HighCourt as well as the embargo on such appointment, asprovided in Rule 5(2)(iii)(a) makes it explicitly clear that aperson when is selected for being appointed as DistrictJudge, he is allowed to work initially as an AdditionalDistrict Judge on probation for a period of two years and thatperiod cannot be counted as service in the cadre of DistrictJudge for seniority. His services in the cadre of DistrictJudge for seniority would start reckoning on completion ofhis probation for the period of two years or any furtherperiod, as extended by the High Court and he is allowed towork as District Judge. Incidently, it may be mentioned thatafter being selected for being appointed as District Judge,when the direct recruits are appointed to work as anAdditional District Judge on probation for two years, theyget the lesser salary as is meant for Additional District Judgeand do not get the salary of a District Judge. From therecords, it also transpires that such direct recruits, oncompletion of their probation as Additional District Judge,are appointed as District Judge, as was done in case ofrespondent No. 3 by order dated 8th of January, 1992. In theaforesaid premises, we have no hesitation to hold that theadministrative decision of the Bombay High Court dated 6thof May, 2000, on the basis of the decision of the Committeedated 12th of January, 2000, is erroneous and we accordinglystrike down the same. We further hold that the seniority of apromotee District Judge would reckon from the date of hispromotion, from which date he is appointed to work asDistrict Judge and in case of a direct recruit, the same wouldbe the date from which he is appointed to work as a DistrictJudge, after completion of the period or probation of twoyears and not from the initial appointment to work asAdditional District Judge.
This writ petition is accordingly allowed.