This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article analyses the judgment of the Madras High Court in determining the process for fixing the seniority of the candidate.
The seniority of the judges following the reservation and the roster system has long been into adjudication in various judgments. Since the placement in seniority has a huge impact on the progress of a candidate into higher positions of service, it needs a fixed rule in order to avoid repetitive conflict and a hindrance to a candidate’s future. In the present case, the Madras High Court has dealt with the issue and disapproved of the ongoing practice of fixing seniority on the basis of the roster point system.
Facts and background of the case
In the case of N. Vasudevan v. The Registrar General and 194 ors (2021), Writ Petitions bearing nos. 20449, 20451 and 20452 of 2015 and 15866 of 2021, were filed under Article 226 of the Indian Constitution in the High Court of Madras.
The subject matter of the case revolves around the existing system of promotion of civil judges to seniority. In the current system of the Indian judiciary, there is a pyramidal hierarchy. At the subordinate level is district judiciary comprising three tiers under the superintendence of the High Court, which is followed by the Supreme Court. The recruitment procedure for the entry-level post of Civil Judge (Junior Division) is conducted by the Public Service Commission which is the general practice in almost all states. Herein the 200 point roster is followed for the purpose of reservation in which the list of successful candidates in the recruitment examination is passed to the High Court for its acceptance and appointment.
Whereas another way that was introduced in the case of All India Judges’ Association v. Union of India (2002) made it even easier to climb up the hierarchy as it allowed the entrants to give the examinations directly for the District Judge level at the apex of the three-tier district level judiciary.
Reservation system in Tamil Nadu
Tamil Nadu follows a 200 point roster system where 69 percent compulsory reservation on communal footing is made along with horizontal internal reservation which is above the 50 percent reservation bar.
The State of Tamil Nadu and the Tamil Nadu Public Service Commission maintained that the inter se seniority of the candidates will be governed by the roster positions of the judicial officers recruited. Thus the issue dealt with in this case is whether the determination of inter se seniority at the Civil Judge (Junior Division) entry-level at the time of recruitment would be on the basis of the roster positions of the recruits or otherwise. The petitions specifically addressed the concern of the order of seniority for civil judges and their recruitment conducted in 2009. Subsequently, it also attracts the recruitments that took place in the year 2012, 2015 and 2018.
The primary rule in the application of the reservation policy and the roster system is that when a reserved category candidate acquires enough marks to be entitled to get a seat of general category, then that candidate is moved out of the reserved category and given the seat in the roster that was marked for the general category candidate. The reason being that the reserved candidate securing the sufficient mark proves their merit and would be entitled to the seat even without a reservation. This rule of jumping the meritorious reserved candidate (MRC) into the general category seat is challenged.
This legal issue was acknowledged and conclusively answered in two previous judgments wherein it was stated that roster positions have no nexus with the inter se seniority positions of all recruits appointed simultaneously. However, the roster is still maintained despite the judgments in Swarnam J. Natarajan v. High Court of Judicature at Madras (2015) and N.Santosh Kumar v. The Tamil Nadu Public Service Commission (2015), has had a huge impact and influence in determining the progress and elevation of the candidates into the hierarchy.
The state contended that in the case of Arvinder Sing Bains v. State of Punjab (2006), in para 39 it was stated that the prescribed roster has to be read along with the relevant rule for the determination of the seniority. Though that judgment does not apply in the present case, the later order of the Supreme Court in 2016 had endorsed the view in N. Santosh Kumar. For similar reasons the judgment of the All India Judges Association relied upon by one of the parties, is of no relevance.
The Court said that a first judgment cannot be read as a legislative enactment and a stray observation/ incidental remark though of persuasive value does not form the basis of ratio decidendi and therefore is not of binding value. Secondly, when a later case refers to the previous judgment of the Supreme Court, and if there is any variance in the interpretation of the earlier case in the later judgment, then the dictum in the later judgment becomes binding. In that case, an independent interpretation of the previous judgment is not possible. However, in circumstances where the Apex Court does not refer to any previous judgment of that Court and takes a contrary view, the High Court has the option to make a choice between the two judgments that are cited before them to apply based on the facts presented. The High Court will then choose which of the judgments is better suited and applicable to the facts of the case.
Even for the parties who contend relying on Rule 35(f) of the Tamil Nadu State and Subordinate Services Rules of 1955, the reliance is not because it has an impact on whether the roster positions should determine seniority list, but on the fact that the existing law prevents posing any objection to the seniority list after 3 years from the date of appointment to the grade/ date of the order fixing the seniority, whichever is applicable. This contention too was rejected as according to Rule 35(f), there is an exception for applying even after the lapse of 3 years if the case is for rectifying orders based on a mistake of facts.
Since the Court did not want to disturb the positions existing prior to the present case in the interest of justice and balance of convenience, it did not meddle with the promotions received by the candidates irrespective of whether it was as a result of the exercise of the High Court or pursuant to judicial officers representations. The revised seniority list will not affect the positions of the already appointed candidates.
This matter was referred by the members of the committee constituted by this Court in order to avoid any further litigation, heartburn and confusion. The present rule allows 65 per cent of the vacancies to be filled by the promotion from Civil Judge (Senior Division) based on seniority and performance, 25 per cent from the directly recruited members of the Bar based on eligibility and 10 per cent from those who are not in contention to be considered for promotion upon taking a limited competitive examination based on fulfilling the eligibility. The Court said that the revised list of seniority might alter the positions of those appointed at the same time and promoted at the same time following the inter se seniority. Thus, if the seniority position of a judge in the cadre of Civil Judge (Senior Division) is revised upwards but lacks 5-year qualification in the post to appear for the limited competitive examination he will still be eligible if another Civil Judge in lower seniority rank is eligible for the examination. This is because a systematic error should not be harmful to an individual who would have been eligible to take the limited competitive examinations seat.
In this case, the Court was dealing with a batch of petitions relating to the recruitment conducted in 2009 and the order of seniority for the Civil Judges (Junior Division) recruited in that year. It rejected the state’s stand in its analysis and explained the situation through an example that if out of 10 point roster, the 2nd, 4th, and 8th place is secured for the general category, when a reserved category candidate obtains better marks than a third-placed general category candidate, then following the MRC rule he will be jumped to the 8th position which otherwise would have been a first position in the reserved category. Thus, due to the application of this rule, a meritorious candidate of the reserved category obtains a lower slot on the roster despite getting higher marks. The roster system is a method to apply reservations to vacancies when they arise and the position of the candidates in the roster does not reflect the merit of the person.
The High Court referred to the Supreme Court judgment in Bimlesh Tanwar v. the State of Haryana (2003). Para 40 said that Article 16(4) of the Constitution is meant for the representation of classes that are economically or socially backward and Article 16 is applicable in the case of appointment and not seniority. Therefore seniority must not be fixed based on roster terms otherwise it would extend the affirmative action beyond the constitutional schemes. The Court further went on to explain that the roster point system is only a template to effectuate reservation and only determines when a person joins the post.
The principle behind the rule is to acknowledge the meritorious candidate and treat an MRC as a candidate of the general category. This in turn will lead him to vacate the slot that he would have occupied otherwise in his reserved category and give it to another socially backward candidate of the same class. This rule of an MRC jumping to the general category has been further justified by the ethos of social justice founded on the principle of equal availability of opportunities.
It referred to the cases of Swarnam J. Natarajan and K.Santosh Kumar and suggested that the legal effect of both these judgments is that the roaster positions do not determine the seniority of the candidates who gain simultaneous appointments. It meant that the practice that took place in the state till these judgments were rendered, did not affect the ordinary rule of preparation of the seniority list. Though under Article 16(4), the state can make a provision for representation of the scheduled castes and scheduled tribes if in the opinion of the state they are not adequately represented in the matters of reservation in promotion, however in the present case or the earlier ones as having been mentioned, there did not seem any valid rule in operation that said that the roaster is also the seniority list. If in a hypothetical situation, it were so, it would be in contravention of Article 14 of the Constitution.
In the Swarnam J Natarajan and the N.Santosh Kumar cases, the judgments held that the 200 point roster prescribed to implement the rule of reservation had no nexus with the seniority of lists that were to be prepared upon simultaneous appointments of several candidates for the same position.
To that end, the Court concluded that the issue is settled and it may no longer be contended that the roster position determines the seniority of the candidates in the recruitment process. From 2009 onwards, the seniority of the persons appointed for the post of Civil Judge (Junior Division) has to be determined by the marks secured by the successful candidates in the examination such that the candidate with the highest marks will be placed in the first position and the candidates with the lowest marks among the successful candidates will be placed in the last position in the list that will be prepared according to seniority and will have no nexus with the positions of the candidates in the 200 point roster.
The court then disposed of the petitions and directed :
- That the revised seniority lists that will be prepared according to the marks secured by the candidates recruited to the post of Civil Judge (Junior Division) would prevail regardless of their positions in the roster or the position shown by the Public Service Commission. In a case where two appointees secure similar marks, their age as to whoever is older/oldest will be considered to determine who will get the higher/highest position in the seniority list.
- That this direction will be applied to those appointed to the post of Civil Judge (Junior Division) from 2009 onwards.
- That though the dates of appointment are significant for the preparation of the seniority list but if a common recruitment process is undertaken then all new appointees will be deemed to be appointed on the same date and their seniority will be based on the marks secured in the recruitment examination without any consideration to the date of joining or roster position.
- Those candidates recruited as Civil Judge (Junior Division) in or after 2009, who have already been promoted will not be demoted to a lower post.
- The revised list of seniority results in higher-ranked officers remaining in lower posts than a lower rank officer; the promotion will be on the basis of prospective vacancy in promotional posts.
- If a Civil Judge (Senior Division) is eligible for taking the limited competitive examination, the judges with ranks higher than the last-placed Civil Judge (Senior Division) who are entitled to take the exam based on the time spent in the post will be eligible even if they have not spent required time in the post.
- That this order will be applicable in determining the seniority and preparation of the list will be based on descending order of marks secured in the examination for the recruitment process conducted in 2009, 2012, 2015, 2018 and 2020. The highest scorer will be given the first position and so it will be followed till the lowest scorer gets the last position irrespective of the roster slots.
- This order will not be effective on any fixation/re-fixation of seniority made according to the law for judges recruited prior to 2009.
Thus, the judges declared that the practice of fixing seniority and granting promotions to judges based on reservations falls foul to Article 14 on the ground of unreasonableness. The merit of a reserved candidate should not be of disadvantage to him in terms of pushing him behind in seniority and promotion.
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