1. Discordant notes of inter-se seniority imperil harmonious co-existence within a cadre and foster dissonance. It gives rise to rancor among colleagues; especially when the appointments are differently sourced, through direct recruitment and promotions from the feeder categories. The Higher Judicial Services in the various States are no exception, where appointments are from three sources; by promotions from the Civil Judge (Senior Division) (65%), by Limited Competitive Examination (LCE) again from Civil Judge (Senior Division) (10%) and from the Bar by direct recruitment (25%). The petitioners herein are all promotees, those in CWJC Nos. 11470 of 2022 and 12592 of 2022 being the promotees under the 65% quota and those in CWJC Nos. 14537 of 2022 and 16771 of 2022 being the promotees under the 10% quota of LCE. The promotees of the year 2018-19 commonly assail the seniority conferred on the direct recruits appointed in 2018 but to the vacancies that arose in and prior to 2016-2017. Those promoted under the fast-track LCE quota also have inter-se disputes of seniority amongst themselves.

2. On facts it is to be noticed that the notification for direct recruitment was issued on 22.08.2016 (Annexure-P6 in CWJC 14537 of 2022) and the selection notified was to 98 vacancies as on 31.03.2017; which were carried over vacancies of years prior to and including 2016-17. Ninety-six direct recruits were appointed to the substantive posts of Additional District Judges (for brevity 'ADJs' hereafter) on 28.05.2018. Two were appointed later on judicial orders on 12.06.2019 and 11.02.2020. Together with these 11 Civil Judges (Senior Division) were promoted against the 65% quota on 22.12.2017 and there was no LCE conducted since all those who were eligible were promoted under the 65% quota. In the very next year of recruitment, promotions under the 65% and the 10% quota were notified on 16.01.2018; the appointments to the substantive posts having been made respectively on 10.12.2018 and 25.03.2019. The persons who were appointed under the 65% and 10% quota in the year 2018 were not qualified to appear in the selection along with the 11 officers earlier appointed with the direct recruits; those under the 65% quota having qualified only in the month of December 2017, when they completed three years in the Senior Division. But for two officers under the LCE; who qualified under both the 65% & 10% quota, the other 16 under the quota for LCE qualified only as on 31.08.2018. As per the gradation list produced and challenged in the writ petitions, the direct recruits were interspersed with the eleven promotees in the selection year 2016-2017 as per the roster points; which promotees are not parties here since there is no dispute between the said promotees and direct recruits. Insofar as the persons appointed under the 65% and 10% quotas, the seniority was assigned to the persons appointed through the two different streams, as per the roster and again interspersed; de hors the date of appointment to the substantive posts, but placing them en bloc under the direct recruits of the earlier year. The petitioners who are the promotees under the two streams of selection, assail the seniority assigned to the direct recruits; who were admittedly appointed to the substantive posts prior to the appointment of the petitioners themselves. Within the promotees under the 10% LCE quota, there arise a dispute between two officers and the other 16 as to how their seniority is to be fixed inter-se. Whether it be on the basis of their seniority in the feeder category; as the rule provides or in accordance with their merit in the LCE; as declared by the Hon'ble Supreme Court.

ARGUMENTS:-

3. Shri Jitendra Singh, learned Senior Counsel appearing in CWJC No. 12592 of 2022 led the arguments, seriously assailing the validity of Explanation (2) to Rule 16(e) of the Bihar Superior Judicial Services Rules 1951 (for brevity, 'the Rules of 1951'). It was argued that Explanation (2) is ultra vires the substantive Rule 16(e) and interferes with the fundamental right of equality and equal protection under the laws as enshrined in Articles 14 and 16 of the Constitution of India. If Explanation (2) to Rule 16(e) is found ultra vires, then necessarily the gradation list produced as Annexure-G along with the counter affidavit of the High Court in CWJC 11470 of 2022, would have to be reworked and the inter-se seniority reassigned for the relevant years in accordance with Rule 16(e) and the sole Explanation remaining in the Rule Book. The learned Senior Counsel would point out that Explanation (2) to Rule 16(e), rather than clearing an ambiguity or bringing forth more clarity, frustrates the rule and the determination of seniority as per the roster points. It was emphasized that clause (e) of Rule 16 referred to the three methods of selection and mandated fixation of seniority in the cadre by roster points prepared on the basis of posts, irrespective of the date of appointment. The basis made of the posts identified and the fixation of seniority as per the roster points, in the first Explanation, should be de hors the date of appointment. If that be so, the date of setting in motion of selection or appointment process, as now introduced in Explanation (2) frustrates the working of the roster points.

4. The purpose of an Explanation is sought to be urged by relying on the decision in S. Sundaram Pillai v. V.R. Pattabiraman; (1985) 1 SCC 591 [LQ/SC/1985/23] . Explanation (2) does not serve and on the contrary, goes against the substantive provision. All India Judges' Association v. Union of India; (2002) 4 SCC 247 [LQ/SC/2001/358] is relied on to argue that while laying down the percentage of recruitment from each source, the Hon'ble Supreme Court had also taken note of the constant discontentment amongst the members of the Higher Judicial Service with regard to their seniority, which was sought to be mitigated by the roster system; whenever quota from different sources exist for recruitment. These directions led to the quota system being introduced in the higher judicial service; recruitment being from two sources, of direct recruitment and promotions and the latter again through two different streams, one of fast tracking of meritorious officers. There were also directions issued insofar as the amendment to the service rules to be carried out positively with effect from 01.01.2011. Seniority hence has to be fixed in accordance with the rules applicable to the respective States. Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission; (2008) 17 SCC 703 [LQ/SC/2007/11] stipulated a time frame within which the vacancies are to be filled on a yearly basis; which, unfortunately, insofar as the promotions from Junior Division to the Senior Division, was not adhered to. It is pointed out that this has led to the delay in the petitioners qualifying for further promotions to the higher judicial service, from the Senior Division.

5. Reliance is also placed on Zakiya Begum v. Shanaz Ali (2010) 9 SCC 280, [LQ/SC/2010/804] to further elucidate the role of Explanation, which can only harmonize with or clear up any ambiguity in the main section and normally permits no widening of its ambit. Reading Explanation (2), it is pointed out that the same would militate against the substantive provision which requires the roster points to be conceded to the recruits from the various sources without reference to the date of appointment. It is pointed out that in the present case, the notification with respect to the direct recruits was initiated, as asserted by the High Court on 14.02.2017, when the posts to which recruitment was contemplated was ascertained, and insofar as the 65% and 10% quotas, the notification was brought out on 16.01.2018. Both the direct recruits and the promotees; 65% & 10%, were appointed within a year, respectively on 28.05.2018, 10.12.2018 and 25.03.2019, in which context, there should be inter-se seniority conceded to the recruits through the three streams as per the roster points, without reference to the date of appointment.

6. It is emphasized with the aid of Pawan Pratap Singh v. Reevan Singh: (2011) 3 SCC 267 [LQ/SC/2011/236] that the words 'recruitment' and 'selection' have two connotations. The word 'selection' refers to the process which commences with a notification inviting applications and ends with the appointment, whereas recruitment has the connotation of the issuance of the formal appointment order. State of Uttar Pradesh v. Ashok Kumar Srivastava (2014) 14 SCC 720 [LQ/SC/2013/910] relied on Pawan Pratap Singh to hold that, though normally the determination of seniority should be based on the date of substantive appointment, the relevant service rules could provide for seniority from a prior date; which Rule 16(e) without Explanation (2) provides unequivocally. It is reiterated emphatically that the Bihar Superior Judicial Service Rules provides for seniority inter-se, to the three streams based on the roster points irrespective of the date of appointment and in the present case all appointments having been made in the course of 12 months, there should be inter-se seniority based on the roster points even if the roster points are taken on yearly basis in accordance with the British Calendar.

7. Learned Senior Counsel, Shri Lalit Kishore, Shri P.N. Shahi and Shri Mrigank Mauli adopted the above arguments on behalf of the promotees and also put forth further points regarding the rule and the fixation of seniority. Sri Lalit Kishore appearing in CWJC 11470 of 2022 emphasized that, introduction of Explanation (2) led to frustration of the method of assigning seniority as per the roster in the year of appointment and pointed out that both the 65% quota candidates and the direct recruits were appointed in the same year. Shri P.N. Shahi, appearing in CWJC No. 14537 of 2022 for two petitioners appointed to the higher judicial service in the 10% LCE quota, has a further contention with respect to the inter-se seniority between the promotes. There were 18 officers selected under the LCE from whom the petitioners were first appointed as ADJs at Darbhanga and Muzaffarpur respectively, on their promotion to the cadre of District Judge Entry Level against the 65% quota for the year 2017-18. The said petitioners later opted to be included under the 10% quota; having qualified the LCE. Annexure-P11 is the notification which promoted the 16 persons and posted them in the various vacancies available. However, when the roster system was implemented, the two petitioners fell below the 16 persons selected under LCE, allegedly on the basis of the lower merit in the LCE. The said exercise was illegal and in violation of principles of natural justice. Annexure-P11 and Annexure-P17 produced in the writ petition and the supplementary affidavit specifically gave the two petitioners seniority above the 16 others recruited under LCE; which is also the mandate under Rule 16(c). It was also argued that, but for the two petitioners in CWJC No. 14537 of 2022, the others did not satisfy the three-year service required for appearing in the LCE as on 31.03.2017. They were made eligible only by reason of extension of the cut-off period, granted by the Standing Committee to 31.08.2018, which was against the rules.

8. Shri Mrigank Mauli, learned Senior Counsel appearing for the other 16 promotees under LCE, at the outset pointed out that there can be no contention raised against the eligibility of the 16 LCE promotees since the matter has been settled by another Division Bench of this Court in CWJC No. 2345 of 2019 dated 18.10.2019, Arti Kumari Singh v. The Patna High Court. The regular promotees under the 65% quota, in the said case, had raised a similar contention which was rejected by the Writ Court. The two petitioners herein, were also aware of the same though they were not parties; but they chose not to file any appeal from the cited judgment. In so far as the contention raised under Rule 16(c), Dinesh Kumar Gupta v. High Court of Judicature of Rajasthan(2020) 19 SCC 604 [LQ/SC/2020/464 ;] and Prem Narayan Singh v. High Court of Madhya Pradesh (2021) 7 SCC 649 were relied on. The Hon'ble Supreme Court had categorically held and reiterated that inter-se seniority amongst candidates promoted through LCE has to be determined on the basis of merit, especially when the said measure is an incentive given to the junior officers to be promoted, based on their performance in the LCE. It is argued that Rule 5(c) speaks of the recruitment year which is not aligned with the British Calendar year and Explanation (2) has to be read in consonance with the reference to the recruitment year in Rule 5(c). It is urged that the year prescribed under Explanation (2), which refers to the British Calendar Year starts 'from' the date of selection/appointment process is set in motion; which has reference to the 12 months from which the selection is commenced. Viewed in that perspective, if the direct recruits' selection commenced on 14.02.2017, the promotions for which selection was notified on 16.01.2018 has to be found to be within 12 months from the initiation of the process for direct recruitment. In that event, the seniority of direct recruits would have to be interspersed with that of the promotees. To further this argument, the learned Senior Counsel relies on State of Himachal Pradesh v. Himachal Techno Engineers (2010) 12 SCC 210, [LQ/SC/2010/726] Bibi Salma Khatoon v. The State of Bihar; AIR 2001 SC 3516 [LQ/SC/2001/2124] , Demesh Chandra Amba Lal Joshi v. State of Gujarat (2014) 11 SCC 759 [LQ/SC/2014/171] all of which are with respect to Limitation Act but furthers the interpretation given as to the British Calendar commencing from the date of notification of selection/appointment. The definition of word 'from' is also pointed out from the 3rd Edition of P. Ramanatha Aiyar's Advanced Law Lexicon (Volume-II). The words 'in respect of' and its definition in the specific context is also elucidated placing reliance on P.V. Narsimha Rao v. State of Bihar (1998) 4 SCC 626 [LQ/SC/1998/471] . In so far as the rules of interpretation are concerned, reliance is placed on Delhi Transport Corporation v. D.T.C. Majdoor Congress (1991) Supplementary (1) SCC 6.

9. Shri Piyush Lall, learned Standing Counsel, appeared for the High Court and argued for sustaining the gradation list issued by the High Court. At the outset, it was argued that the two petitioners in CWJC No. 14537 of 2022 cannot now argue for the position that they should be placed senior to the 16 persons under LCE since their merit was below the other 16 persons. Reliance placed by the promotees on the decisions of the Hon'ble Supreme Court affirming the seniority to be determined as per the merit, under the LCE, was specifically relied on. It is also pointed out that a Committee of Hon'ble Judges of the High Court had considered the matter elaborately and based on the Supreme Court judgment a decision was taken to assign the seniority according to merit. In so far as the contention regarding the eligibility of the other 16 candidates, a Division Bench of this Court had found the measure employed by the Standing Committee to be proper and not in violation of the rules. The two LCE promotees were quite aware of the dispute raised by the 65% quota promotees and the Division Bench judgment found the measure employed by the Standing Committee and the consequent seniority conferred on the 16 candidates to be perfectly in order.

10. In so far as the challenge to Explanation (2), reliance was placed on Manish Kumar v. Union of India (2021) 5 SCC 1, [LQ/SC/2021/30] wherein it was held that unless there is a manifest arbitrariness and the effect of the statutory provision is irrelevant, illogical and capricious; it cannot be interfered with and the plain meaning flowing from it should be adopted. The counter affidavit filed in CWJC No. 11470 of 2022 is copiously read from and it is argued that the explanation has to be found to be a clarificatory one. It is pointed out that seniority is roster based and the roster is source based, but however none can be assigned a seniority prior to the date of his/her appointment as has been held in K. Meghchandra Singh v. Ningam Siro (2020) 5 SCC 689 [LQ/SC/2019/1735] . It is pointed out from the facts of the instant case that as on 14.02.2017 when the vacancies were ascertained for making direct recruitment, none of the promotees who are the petitioners in the four writ petitions were qualified to be promoted. When the persons in the feeder category attained the minimum service required for promotion; immediately thereafter a notification was issued on 16.01.2018 and the 65% quota candidates were appointed on 10.12.2018 and the 10% LCE promotees on 25.03.2019. The direct recruits who were appointed on 28.05.2018 are candidates of a selection notified in the British Calendar Year twice prior to the year of initiation of selection for promotions. However, in so far as the 65% and 10% promotees are concerned, their notifications were on the very same day and hence their seniority was determined based on the roster points as arising in the Calendar Year. It is pointed out that Rule 16(e), as it existed before introduction of Explanation (2), would have visited unintended consequences on the officers recruited to the Bihar Higher Judicial Service under the three streams of recruitment. In fact, the introduction of Explanation (2) was to ensure that, with respect to the selections commenced in a particular recruitment year, de hors the delay occasioned in making appointments for any reason, the successful appointees under the three streams should be conceded with seniority as per the roster points on a yearly basis. However, if the seniority is disturbed, as the petitioner's herein demand, then the direct recruits who are appointed to the posts identified to be vacant for a number of years prior to and upto 31.03.2017, would be pushed down in seniority and those who were not qualified to be appointed as on that date, i.e.: the promotees, would gain a march over them. In that circumstances the promotees would not only get a seniority from a date prior to their appointment but even prior to their achieving the required eligibility for promotion. This brings in unintended consequences and the resultant hardship was sought to be mitigated by introducing Explanation (2) which cannot be challenged as arbitrary nor does it impinge Article 14 or 16 of the Constitution of India. S. Sundaram Pillai is specifically referred, to point out that Explanation (2) falls within the dictum laid down by the Hon'ble Supreme Court. S. Sundaram Pillai was also considered by Manish Kumar and the principles regarding the interpretation of an explanation to a provision squarely applies to the above case. In so far as the determination of roster points without reference to the appointment dates, reference is made to Mervyn Continho v. Collector of Customs, Bombay AIR 1967 SC 52 [LQ/SC/1966/54] , which approved it only on the basis of the rule providing for it. It is specifically pointed out that the yearly basis brought about under Rule 5(c) and the introduction of Explanation (2) was by the very same amendment which was brought in to mitigate the evil of seniority being assigned prior to the date of appointment, which was also the result of the experience gained over the years from carrying out recruitments and assigning seniority. Reliance is placed on Punjab and Haryana High Court at Chandigarh v. State of Punjab and Others (2019) 12 SCC 496 [LQ/SC/2018/1279 ;] .

11. Shri Sanjay Singh, learned Senior Counsel appearing for some of the direct recruits specifically relies on the counter affidavit filed in CWJC No. 12592 of 2022. It is argued that the challenge to Explanation (2) is a mere bogie; since ideally and practically Explanation (2) is the most reasonable way of determining seniority. Role of an Explanation is sought to be clarified by reference to Bengal Immunity Co. Ltd. v. State of Bihar and others AIR 1955 SC 661 [LQ/SC/1954/175] . Reliance is also placed on Aphali Pharmaceuticals Ltd. v. State of Maharashtra and others; AIR 1989 SC 2227 [LQ/SC/1989/462] , Quebec Railway, Light, Heat and Power Company Limited v. Vandry and Others; AIR 1920 Privy Council 181, and Commissioner of Income-tax, Delhi v. S. Teja Singh AIR 1959 SC 352 [LQ/SC/1958/139] . It is argued that a slight inexactitude should be ignored and the plain intention of a provision should not be frustrated. Shri Ashish Giri, learned counsel appearing for a few of the respondents would contend based on Balsara Home products Ltd. v. Director General 2006 SCC On-line Delhi 34 that the word 'yearly' and 'British Calendar' used in Rule 5(c) and Rule 16(e) are interchangeable. Shri Ashhar Mustafa learned counsel appearing for Respondent No. 108 in CWJC No. 11470 of 2022 and 12592 of 2022 seeks for restoration of seniority of the said respondent in accordance with the seniority as available in the feeder category. It is pointed out that no notice was issued to him and the decisions in Dinesh Kumar Gupta as also Prem Narayan Singh are not applicable to the present case. Shri Bindhyachal Singh, learned Senior Counsel and Shri Akash Deep, learned counsel appearing for certain direct recruits also argued to sustain the gradation-list.

12. Shri Jitendra Singh, learned senior counsel in reply pointed out that the best interpretation is where the content as well as the context is looked into, as has been held in National Insurance Company Limited v. Kirpal Singh(2014) 5 SCC 189. Rule 16 (a) to (d) specifically provides for inter-se seniority of the candidates promoted or recruited from within one source and Rule 16(e) provides for the inter-se seniority between the three sources. The intention is very clear and Manish Kumar according to him, asserts that there is no other better guiding factor than the intention, to bring forth a reasonable interpretation of a statutory provision. K. Meghchandra Singh has been doubted by a coordinate Bench in Hariharan v. Harsh Vardhan Singh Rao. Punjab and Haryana High Court at Chandigarh is relied on to contend that statutory rules and procedure for recruitment laid down, is to achieve certainty and those recruited under different streams should be assured of their due place. It was cautioned that if seniority is fixed on the basis of continuous service or date of joining, then it would depend on the vagaries of the administrative authorities, which neither serves the interest of service nor the cause of justice. Shri Mrigank Mauli, learned senior counsel also relies on the rules of interpretation to further draw a distinction between the recruitment year and the word 'yearly' in Rule 5(c).

ADJUDICATION:-

13. We have to clear the deck off the miscellany, before we deal with the challenge to the vires of the Rule; which is the main thrust of the arguments addressed. Two LCE promotees together, had raised a dispute as to the seniority assigned to them inter-se between the 18 promoted in the 10% quota. They relied on Rule 16(d) which mandates that when more than one appointment is made by promotion at one time, the seniority inter-se of the officers promoted shall be in accordance with their respective seniority in the Bihar Judicial Service. Hence, they carry to the promoted cadre, their seniority in the feeder category; in which event, the two of them who are senior to the other 16 in the feeder category, Civil Judge (Senior Division), are to be assigned the first two positions as between the promotees under the 10% quota. An ancillary challenge is also raised insofar as the 16 persons who have participated in the LCE for promotion under the 10% quota having not been qualified as on 31.03.2017; which they assert is the cut-off date to decide the eligibility for participation in the LCE. As per Rule 5 (c) (ii) of the Rules of 1951, three years' service in the cadre of Civil Judges (Senior Division) is mandatory for appearing in the LCE and the cut-off brought in under Appendix B is as on the 31st of March of a given year. We would at the outset deal with the above two contentions.

14. Dinesh Kumar Gupta does not support the contention regarding seniority in the promoted cadre, based on the seniority in the feeder category, especially when the promotions are by LCE. One of the questions framed for consideration in the cited case was with respect to seniority of officers of the same batch promoted to the District Judge Cadre in the LCE quota; whether it should be prepared on the basis of inter-se placement in the merit list of such examination under Rule 32 (2) of the rules of the High Court of Judicature at Rajasthan or in terms of Rule 47(4), following the seniority in the Senior Civil Judge cadre. The issue was dealt with from paragraph 48 of the aforesaid decision especially relying on the decision of the Hon'ble Supreme Court in All India Judges Association (3) which directed, 25% of the posts in the cadre of District Judges to be filled up through LCE. The said directions were to provide an incentive to relatively junior, but meritorious officers to improve and to compete with each other so as to excel and get accelerated promotion. It was also noticed that the learned Judges in All India Judges Association (3) in paragraph 28, stressed upon the need to make promotions through LCE to be 'strictly on the basis of merit'. It was noticed that Rule 31(2) of the Rules of 2010 used the expression 'strictly on the basis of merit' while dealing with the posts to be filled up through LCE. The decision of the High Court assigning seniority based on the seniority in the feeder cadre placing reliance on Rule 47(4), was frowned upon, which was found to have defeated the intention to provide incentive to comparatively junior officers and reduced the entire examination process to a mere qualifying examination rather than a competitive one. This was found to frustrate the intention of affording an incentive to meritorious candidates regardless of their seniority as has been directed in All India Judges Association (3). It was held that: "The general principle appearing in Rule 47(4) must, therefore, give way to the special dispensation in Rule 31(2) of the Rules of 2010" (sic-para 49).

15. The aforesaid declaration of law was followed by a Co-ordinate Bench in Prem Narayan Singh. Therein the seniority of District Judges appointed to the higher judicial service selected in the LCE from 2007 onwards was attempted to be altered on the basis of the seniority in the lower cadre as per the amendment brought about in the Rules of 2017. In addition to the finding that the seniority of the petitioners, which was determined prior to the Rules of 2017 cannot be disturbed, it was also found that the new Rule of 2017, which altered the criteria for determination of seniority from merit to inter-se seniority in the lower cadre was contrary to the law laid down in Dinesh Kumar Gupta. It was categorically held so in paragraph 17:-

"The reason for introduction of promotion through LCE is to improve the calibre of the members of Higher Judicial Services. Such of those meritorious candidates who have been promoted on the basis of LCE cannot be deprived of their seniority on the basis of merit in the examination. In any event, 50% of the posts of District Judges shall be filled by promotion on the principle of merit-cum-seniority. The dispute in this case concerns seniority inter-se amongst those who have been promoted through LCE."

(Underlining by us for emphasis)

16. We have to bear in mind this declaration of the Hon'ble Supreme Court while looking at the Rules of the High Court. Rule 16(5)(d) speaks of assignment of seniority based on the seniority in the feeder category. However, the said Rule cannot be interpreted in isolation especially since it deals with inter-se seniority of both the promotees under the 65% and 10% quota. As noticed in the above extract from Prem Narayan Singh, 50% of the posts of District Judges, in the facts relating to the above decision; which is 65% in the instant case, are from the lower cadre based purely on the principle of merit-cum-seniority. There can be no dispute that their inter-se seniority in the promoted cadre, as per the Rule has to be assigned in the same manner as the seniority assigned in the feeder category; Civil Judge (Senior Division). Rule 16(d) in so far as the LCE, has to be read in consonance with Rule 5(c)(ii) which reads as below:-

"10 percent of the post shall be filled on the basis of merit through Limited Competitive Examination conducted by Patna High Court, Patna from amongst officers having not less than 3 years service as Civil Judge (Senior Division). Selection shall be as per the procedure and examination as specified in Appendix-B".

(Underlining above, by us, for emphasis)

17. The provision, is akin to that found in the Rules of High Court of Judicature at Rajasthan sans the word 'strictly'. The filling of 10% of posts shall be 'on the basis of merit through Limited Competitive Examination'. Hence, reading Rule 5(c)(ii) which is the special prescription for the LCE; the incentive to meritorious junior candidates from the feeder category has to be given prevalence as the special dispensation, as against the general principle appearing in Rule 16(d).

18. The other contention raised by the two officers who participated and were successful in both the selection conducted under the 65% and 10% quota is regarding the other 16 candidates having no eligibility as on the cut-off date of 31.03.2017. As has been vigorously pointed by the others who appeared in the LCE category, the issue stands settled by a Division Bench judgment of this Court in Arti Kumari Singh. Therein the candidates under the 65% quota had raised the challenge against the eligibility of the 16 persons who had not completed three years qualifying service in the Civil Judge (Senior Division) as on 31.03.2018. The contention was also raised on the ground of Appendix B to the Rules of 1951, having provided a cut-off date; i.e. 31st of March of each year. The Division Bench found that Section 5(c) of the Rules of 1951 does not specify or prescribe any cut-off date nor does Appendix A, in relation to promotion under the 65% quota. The procedure set out in Appendix-B for promotion under the 10% quota by way of LCE, on merit, only contained a schedule for intimating the vacancy and list of eligible candidates which had to be supplied as on 31st of March of the selection/recruitment year. In the present case, there is no dispute that the list was placed prior to the date of notification of the LCE; which was on 16.01.2018. The High Court, on the administrative side, approved the list of candidates found eligible up to 31.08.2018; which is not prohibited by Appendix-B. Appendix-B only prescribes that the number of vacancies and the list of eligible officers shall be placed before the Selection Committee of the High Court before 31st of March of each year. This is a mandatory prescription insofar as holding the LCE, every year and the vacancies being placed before the Standing Committee prior to 31st of March of each year. This ensures that the junior meritorious officers in the feeder category gets an opportunity every year to compete with all the eligible officers under the LCE for a fast-track promotion which is not based on merit-cum-seniority; but on merit alone. This avowed incentive given to the meritorious candidates to improve themselves to occupy higher positions in the judiciary; far before their normal incidence of promotion in accordance with seniority, as declared in All India Judges Association (3), cannot be said to be a cutoff date to decide the eligibility. We fully agree with the Division Bench judgment, as we are bound to do and reject the contention raised by the two senior officers in the Civil Judge (Senior Division) who competed with their juniors but were pushed down in the merit under the LCE quota for reason only of their comparative performance in the LCE, which is again in consonance with the declaration of law in Dinesh Kumar Gupta and Prem Narayan Singh.

19. Having cleared the deck, we are now to target the main issue urged, of Explanation (2) to Rule 16(e) being ultra vires and having frustrated the intent and purpose of the Rule. It has been argued that de hors the date of appointment, seniority has to be assigned in accordance with the roster as per the first Explanation to Rule 16(e); the 20-point roster having been further delineated in the first Explanation to Rule 16(e). The roster points have been assigned to the 65% quota for promotions, 10% quota for promotions on LCE and 25% direct recruitment in that order interspersed between the three sources. The contention urged would lead to a situation where de hors the year in which vacancies arose, the notification for appointment was issued (which is the initiation of the selection process) and the date of initial appointment to a cadre, seniority would have to be assigned as per the roster points. It cannot be disputed and remains unquestioned that this would bring about very serious consequences which are not intended by the rota-quota rule; which ensures the due position in the seniority of the appointees/promotees from the different sources of recruitment; despite an unintended or legitimate delay having occurred in carrying out recruitment from one of such sources. For example, when promotions are carried out from two sources, as in this case through LCE and one based on seniority, on an assessment of their merit-cum-seniority; there could be delay in completion of the LCE and a further interview being carried out. A promotion based on assessment of performance by way of evaluation of judgments and ACRs as also an interview may be faster than that in an LCE. However, when there is long unexplained delay, it has been recognized by Courts that there is a collapse/breakdown of the rota-quota rule; which could result in assignment of seniority in accordance with the date of appointment; decision on point is - B.S. Mathur v. Union of India (2008) 10 SCC 271 [LQ/SC/2008/2070] . It is in this background that a rule assigning specific quota, to sources of recruitment/promotion and rotation, with roster points assigned to each source should be interpreted; without loosing sight of the relevant facts as to the recruitments carried out in the recent past too. However, before going into the facts, we should first deal with the decisions on the point. It may be relevant to note at this point that, it is reckoning such natural, but unintended delay and the possibility of the breakdown of the rota-quota rule, that Explanation (2) makes the basis, the British Calendar Year, which is a 12 month period from January to December.

20. The earliest decision on the point is Mervyn Continho wherein two issues arose, one with respect to the assignment of seniority as per the roster points in the post of Appraisers of the Customs Department, wherein recruitment was sourced both by promotion from the subordinates and direct recruitment from the open market; equally i.e., 50% each. Therein, the rule provided for a system by which a direct recruit appears first in seniority and then a promotee and alternatively so on, till the lists from both sources are exhausted. The contention of the promotees was that this prejudiced them in so far as, despite their longer service, they were pushed down in seniority as against the direct recruits who had shorter service. Again, on promotion from Appraisers to Principal Appraisers the seniority in the lower cadre was directed to be maintained; which again resulted in the direct recruits subsequently promoted stealing a march over the promotees in the feeder category. On the second issue, the Hon'ble Supreme Court found that there could not be a carryover of seniority in the feeder category especially when the promotion is by selection and five years' experience as an Appraiser, which enables the promotees to rank in seniority from the date of their promotion to the Principal Appraiser's post. A direct recruit who is promoted later to the post of Principal Appraiser cannot be put above a promotee who has more service in the post of Principal Appraiser was the finding. Seniority in the grade of Principal Appraisers, being sourced from one feeder category should be irrespective of whether the person promoted from the Appraiser's Grade is a direct recruit or a promotee and should be determined in accordance with the date of continuous appointment in that grade. We are not concerned with the above declaration of law on the second issue but however, the first issue is specifically on the rota-quota rule. The Hon'ble Supreme Court found that the Circular of 1959 which determined the relative seniority of direct recruits and promotees, provided that it shall be determined according to the rotation of vacancies between the two sources, based on the quota of reservation; equally and alternatively. The plain meaning of the words in the Circular of 1959, especially that which could be assigned to 'seniority determined accordingly', emphasizes the roster to be followed alternatively between a direct recruit and a promotee with respect to assignment of seniority. It was held that this cannot be termed a denial of equality of opportunity in government service and anomalies if at all arising, was only out of the fortuitous circumstances of the direct recruitment having fallen short of the quota fixed for it; thus, giving the direct recruits subsequently appointed an edge in seniority, assigned above the promotees earlier appointed. The fortuitous circumstance of the roster points of direct recruits having remained vacant due to the short fall or insufficient recruitment from that source cannot result in striking down an otherwise valid rule was the binding declaration.

21. Pawan Pratap Singh considered the question of seniority between two groups of direct recruits, one appointed in 1991 and the other appointed in 1994; the latter appointees, by virtue of a selection initiated first, to earlier vacancies with appointments made, subsequent to the selection initiated later. The Hon'ble Supreme Court held the reliance by the High Court on the date of initiation of selection process as criterion for fixing seniority; rather than the date of substantial appointment to be invalid, especially when there was no express statutory measure for that. It was held that the date of entry in a particular service or date of substantive appointment is the safest criterion for fixing seniority. It was recognized that there could be departure therefrom when (i) it is based on an objective consideration and a valid classification consistent with requirements of Articles 14 and 16 of the Constitution and (ii) it is expressly provided for in the Statute or Rules. The decision was also urged before us to draw a distinction from 'selection and recruitment'. It was attempted to be argued that selection involves the entire process from initiation, by way of an advertisement calling for applications and ends with the preparation of the select-list for appointment. The word 'recruited' on the other hand means the appointment to the substantive post. This distinction, we are afraid has no application in the present adjudication. We have to emphasize that the relevant Explanation with which we are concerned reckons the date on which the selection/appointment process is set in motion; which we will deal with when coming to the interpretation of the rule under challenge. However, it has to be pertinently noticed that Pawan Pratap Singh noticed a number of judgments of the Hon'ble Supreme Court wherein the persons appointed earlier was assigned seniority above the subsequent appointees; even if the subsequent appointments were to earlier vacancies. Specific reliance was placed on Ram Janam Singh v. State of U.P. (1994) 2 SCC 622 [LQ/SC/1994/118] wherein it was reiterated that the date of entry into a service is the safest rule to follow, while determining the inter-se seniority of persons recruited from different sources; which also should be consistent with the requirements of Articles 14 and 16 of the Constitution. The primacy of statutory rules or rules framed under Article 309 was emphasized which could tread a different path by treating one class, on objective considerations for a preferential or beneficial treatment while fixing their seniority. We extract para 45 from Pawan Pratap Singh:

45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:

(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

22. The very same principle was followed in Ashok Kumar Srivastava and we cannot but lay stress upon the primacy of rules, consistent with Articles 14 & 16 as declared by the Hon'ble Supreme Court.

23. Now, we come to the decisions in N.R. Parmar v. Union of India and Others; (2018) 18 SCC 20, a two Judge Bench decision which was over ruled in K. Meghachandra Singh. In N.R. Parmar the seniority dispute was in the cadre of Income Tax Inspectors appointed to the Department in the ratio of 2:1 respectively by way of promotion and by direct recruitment. The vacancies for the year 1993-94 identified to be filled up by way of promotion was referred to the Departmental Promotion Committee (for brevity 'DPC') and those identified for direct recruitment were simultaneously referred to the Staff Selection Commission (for brevity 'SSC'). Against the vacancies for the year 1993-94, the promotees were appointed on various dates starting from August, 1993 to September, 1995 while the direct recruits joined the cadre between March and May, 1995. The inter-se seniority of direct recruits and promotees were based on the principle of rotation from the different sources, in a particular year of recruitment and those vacant slots in the direct recruitment quota were kept aside for later years to be bunched together after assignment of seniority on a rotational basis to the promotees and direct recruits alternately; the bunching together carried out after the interspersing of direct recruits and promotes is exhausted. The promotees relied on an OM dated 03.03.2008 which stipulated that, when appointments are made against the unfilled vacancies in subsequent years, the persons appointed would only get seniority of the year in which they are appointed on substantive basis. The Hon'ble Supreme Court relying on OM dated 07.02.1986 and 03.07.1986 found the later OM dated 03.03.2008 to be not relevant for determination of the controversy raised. It was held that as per the earlier OMs, requisition was made for promotion, and the advertisement issued for direct recruitment to the vacancies arising in the same year. The advertised vacancies for direct recruitment were filled up in the first examination conducted on the basis of the process of selection initiated and none of the direct recruits were occupying carry forward vacancies. The facts revealed that the direct recruits and the promotees were appointed to the vacancies arising in the same recruitment year and the selection process was also initiated simultaneously. The selection process of the direct recruits could not be completed in the recruitment year and materialized with appointments only in the subsequent year. It was in this circumstance that the inter-se seniority regarding rotation of quotas as carried out through the OM dated 07.02.1986 and the instructions compiled through OM dated 03.07.1986 was fully complied with, leaving no room for any doubt that the rotation of quota principle would be fully applicable to the direct recruits and they will have to be interspersed with promotees of the same recruitment year; despite the direct recruits having been appointed later to the promotees and in the subsequent year.

24. K. Meghachandra Singh overruling N.R. Parmar made the declaration of law regarding seniority being assigned only from the date of substantive appointment to a post, prospective, in so far as not affecting the inter-se seniority already settled based on N.R. Parmar. The Hon'ble Supreme Court also cautioned that "this decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/the date of recruitment" (sic-para 39). Here again we markedly notice the reckoning of date of initiation of selection process in Explanation (2); which is the mandate flowing from the rule, but as held in Pawan Pratap Singh it should be consistent with the requirements in Articles 14 & 16 of the Constitution of India.

25. What comes out from a reading of the various decisions cited is that the Rule acquires primacy and the general principle applicable to fixation of seniority is that no appointee can hope for a seniority prior to a date on which he is borne in the service; meaning a substantive appointment to that cadre or service. The caveat is in so far as the rules providing otherwise, for interspersed seniority, reckoning the delay which could occur in filling up vacancies from different sources; which again is on the individual facts. Before we dwell into those facts on the inter-se seniority between the direct recruits, the LCE candidates and the promotees on the basis of merit-cum-seniority, we have to look at the Rule as available in the Bihar Superior Judicial Services Rules, 1951.

26. We now look at the challenge raised against Explanation (2) to Rule 16 (e) alleging it to be ultra vires, which contention cannot be looked at in isolation. With respect to the contention regarding inter-se seniority between the LCE candidates required to be assigned seniority as per that in the lower cadre under Rule 16(d); we found, following the earlier Division Bench judgment of this Court, that this has to be considered together with Rule 5(c)(ii). Likewise, Rule 16 has to be considered along with Rule 5(c), both of which we extract hereunder:-

"5(c). The recruitment shall be made, as far as possible, on yearly basis, in the following manner:-

(i) 65 percent of the posts shall be filled by promotion from amongst the Civil Judges (Senior Division) on the principles of merit-cum-seniority Subject to suitability parameters indicated in Appendix-'A'.

(ii) 10 percent of the post shall be filled on the basis of merit through Limited Competitive Examination conducted by Patna High Court, Patna from amongst officers having not less than 3 years service as Civil Judge (Senior Division). Selection shall be as per the procedure and examination as specified in Appendix-'B'.

(iii) Remaining 25% of the posts shall be filled by direct recruitment from amongst the eligible Advocate on the basis of the written and Viva-voce test conducted in accordance with decision, direction of the High Court of Judicature, Patna. The High Court may decide to hold screening test with a view to short-listing the candidates. The marks obtained in the screening test will be relevant for determining eligibility to appear at the written test. Such marks will not be counted for determination of comparative merit of the candidates. Candidates approximately ten times the number of vacancies of appointment, will be called for written test on the basis of the marks obtained in screening test, if held. The Candidates, approximately three times the number of vacancies for appointment, will be called for Viva-voce test on the basis of the marks obtained in written test.

The screening, written and viva-voce test will be conducted in accordance with decision/direction of the High Court as per details specified in Appendix-'C'.

(iv) If for any reason, the posts meant for direct recruitment falling in clause 5(c)(iii) are not filled, in any year of recruitment, then the High Court may fill such vacancies from amongst the Civil Judge (Senior Division), on the principle of merit-cum-seniority from amongst eligible Officers of Civil Judge (Senior Division), but such promotion shall be ad hoc till such time their term matures for regular promotion, when they will be considered for promotion in terms of Rule 5(b).

Provided that in the next recruitment year, the vacancy, so filled, will be added back to the quota of direct recruits.

xxx xxx xxx

16. (a) Seniority inter-se of direct recruits shall be determined in accordance with the date of their substantive appointments to the Service:

Provided that a direct recruit appointed to the post of an Additional District Judge shall be Junior to direct recruit appointed to any other post in the schedule.

(b) Seniority inter-se of promoted officers shall also be determined in accordance with the dates of their substantive appointments to the Service.

(c) When more than one direct recruits is appointed at one time, the seniority inter se will be determined in accordance with the order given in the notification making their appointments.

(d) When more than one appointment is made by promotion at one time, the seniority inter se of the officers promoted shall be in accordance with their respective seniority in the Bihar Judicial Service.

(e) The seniority of the members (as per their source of appointment viz. 65% by promotion, 10% by Limited Competitive Examination and 25% by direct recruitment from Bar) of this cadre shall be fixed by roster points prepared on the basis of posts and irrespective of the fact as to when a person is appointed. The roster point shall be prepared including all the posts available in this cadre.

Explanation.-The 20 point roster for the cadre will be as follows:-

(1) For 65% of the posts-1, 2, 3, 5, 6, 9, 10, 11, 13, 14, 17, 18 & 19 by promotion.

(2) For 10% of posts-7 & 15 by Limited Competitive Examination.

(3) For 25% of posts-4, 8, 12, 16 & 20 direct recruitment from amongst eligible Advocates on the basis of Written and Viva-Voce test conducted by the High Court of Judicature at Patna.

The vacancy of any roster point has to be filled from amongst the category to which the post belongs in the roster.

Explanation (2).-The roster for the cadre will operate on yearly basis as per the British Calendar year from the date of selection/appointment process is set in motion by the High Court in respect of three different sources of promotion/appointment."

27. Rule 16 with the sole Explanation as it remained prior to 16.02.2017 specifically required inter-se seniority to be based on the roster points as available in that Explanation, irrespective of the fact as to when a person is appointed. The Rule was, as in Mervyn Continho and a mere short fall in filling up vacancies under one category cannot lead to the rule being not implemented fully. However, we have to notice that in the Bihar Superior Judicial Service, as is seen from the gradation list produced by the High Court in its counter-affidavit after 2008-2009 there was no selection conducted till the year 2015-16 to the quota of direct recruits, which would have definitely resulted in a breakdown of the rota-quota rule. We have looked at Annexure F, in its entirety and it is seen that there was no selection initiated of direct recruits in the years 2009-2010, 2010-2011, 2012-2013 & 2013-2014 and in the year 2011-12 though a selection was held none qualified. In the year 2014-2015 a selection was held for direct recruits, to 99 vacancies of which 84 were accumulated from the years prior and including 2012-2013, three of the year 2013-2014 and twelve of the year 2014-2015. But only 9 appointments could be made of direct recruits in the year 2014-15. In the year 2015-16 also there was no selection conducted for the direct recruits and then the selection was set in motion of direct recruits in the vacancies that were anticipated till 31.03.2017, on 22.08.2016. As to the 65% & 10% quota for promotees the appointments made in the respective years from 2009-2010, in which year and the next, the quota was 50% & 25%; are:-05 & 01 (2009-10), 39 (combined in both quotas for 2010-2011), 39 & 01(2011-2012), 176 & none (2012-2013), 53 & none (2013-2014), 11 & none (2014-2015) and 10 & 01 (2015-2016). This indicates a clear break down of the rota-quota rule and the 96 appointments made under direct recruitment are relating to the vacancies of the earlier years when either a selection was not carried out or there were not enough candidates obtained under that quota. It is in the perspective of these background facts that the rule and its amendment by introduction of an additional explanation has to be considered.

28. We garner support from B.S. Mathur where there was a similar break down of the rota-quota rule by reason of the delay in making appointments to the Higher Judicial Service, though steps towards such appointments were taken up earlier. We extract paragraphs 49 & 50 from the said decision:-

49. A perusal of seniority list which is based on the principle of rota-quota would show that the rota-quota remains broken down even today. It may be pertinent to mention here that steps for appointment of direct recruits were actually taken by the High Court many years before their appointment actually took place but the appointments came in place only after considerable delay. Though as per law the direct recruits cannot be faulted with for the delay caused in their appointments, the fact remains that delay in appointments should not cause any disadvantage to the incumbents appointed in the service. We need not go into all these aspects because the fact that has emerged is that the appointments of direct recruits and promotee officers in the service have not taken place simultaneously. This only shows that rota-quota has remained broken down right from the inception of service till now. There is absolutely no change in the factual position relating to breakdown of rota-quota even after the decision of this Court in O.P. Singla [ (1984) 4 SCC 450 [LQ/SC/1984/204] : 1984 SCC (L & S) 657] and Rudra Kumar Sain [ (2000) 8 SCC 25 [LQ/SC/2000/1262] : 2000 SCC (L & S) 1055] cases. There is no reason to depart from the said principle and take a shelter under the OM of DoPT dated 3-7-1986 for determining the inter se seniority of the officers of DHJS.

50. The High Court while fixing seniority of officers up to Shri K.C. Lohia including those who were appointed after amendment of the Rules and whose seniority was not determined in Rudra Kumar Sain case [ (2000) 8 SCC 25 [LQ/SC/2000/1262] : 2000 SCC (L & S) 1055], did not apply the OM dated 3-7-1986 or the principles contained therein. Their seniority was fixed essentially on the basis of "length of service". There was no good reason for the High Court to discard the principle of "continuous length of service", which it had followed for determining seniority of officers up to Shri K.C. Lohia and apply the OM dated 3-7-1986 for the purpose of fixing the seniority of officers appointed after the appointment of Shri K.C. Lohia. Rule 8(2) cannot be applied on account of gross inequity and injustice which its application is bound to produce and since this Court has already held in Suraj Prakash Gupta v. State of J & K [ (2000) 7 SCC 561 [LQ/SC/2000/839] : 2000 SCC (L & S) 977], that direct recruits cannot claim seniority from the date of occurrence of vacancy in the direct recruitment quota, the seniority should be determined on the basis of continuous length of service as was done by this Court in O.P. Singla case [ (1984) 4 SCC 450 [LQ/SC/1984/204] : 1984 SCC (L & S) 657] and Rudra Kumar Sain case [ (2000) 8 SCC 25 [LQ/SC/2000/1262] : 2000 SCC (L & S) 1055] and was also done by the Delhi High Court in case of officers up to Shri K.C. Lohia. If the seniority is fixed in this manner, it will not cause any injustice either to the promotees or to the direct recruits.

29. In the instant case also we have seen the direct recruit vacancies having not been filled up for long and hence it is safe and less prejudicial to all, that the seniority be assigned to them as on their date of appointment. The legitimacy of such assignment of seniority also assumes relevance insofar as the vacancies being prior to 31.03.2017, when none of the promotees were qualified to hold the posts in the higher judicial service. We also pertinently notice that Explanation (2) was introduced later to the initiation of selection procedure for recruitment of direct recruits.

30. We should presume that the years of experience in working out Rule 16, which went against the general principle of a person being assigned seniority on the basis of the date of his substantive appointment, could have led to introduction of Explanation (2); especially with the rota-quota rule having broken down. The apparent injustice which would have been caused insofar as a subsequent appointee being granted seniority above an earlier appointee, especially when recruitments are not conducted on yearly basis resulted in the introduction of the Explanation in the rule, to harmonize it with the circumstances, especially making it in consonance with Articles 14 & 16 of the Constitution of India. We are of the opinion that Explanation (2) was introduced in mitigation of such unintended consequences occurring and there arising unnecessary heart burn in so far as a subsequent appointee getting an edge over the earlier appointee from another source by reason only of the roster points assigned to the three sources of promotion and the seniority assigned, irrespective of the date of appointment; merely by reason of the fortuitous circumstances of an occurrence of short fall of appointments in the quota set apart from each source of appointment. In Mervyn Continho the rule permitted it and here, in the instant case, the subject Rule with Explanation (2) intended such interspacing only when the recruitment from three sources were initiated in the same year; quite in consonance with Articles 14 & 16 of the Constitution.

31. We have to emphasize that the substitution of the opening sentence in sub-rule (c) of Rule 5 and insertion of Explanation (2) was on the same day by Notification No. 1852 dated 16.02.2017. Reckoning the various factors which resulted in recruitment not being done on yearly basis and also presumably following the principle as laid down in Malik Mazhar Sultan (3), it was provided that the recruitment shall be made as far as possible on yearly basis in the manner provided thereunder. Explanation (2) also indicated that roster for the cadre will operate on yearly basis following the prescription to have recruitment on yearly basis, as far as possible; which yearly basis is indicated as per the British Calendar. It is also provided in Explanation (2) that the roster of the cadre operating on yearly basis would be from the date of selection/appointment process set in motion by the High Court in respect of three different sources of promotion/appointment. We once again refer to K. Meghachandra Singh wherein their Lordships while applying the principle laid down therein prospectively, made an exception in so far as fixation of seniority under the relevant rules being permissible from the date of vacancy or the date of advertisement. The date of selection/appointment process set in motion, has to be read as the selection or appointment process, being set in motion by the High Court. The distinction drawn between the words 'selection' and 'recruitment' (meaning the actual appointment) has no relevance since the words employed in the Explanation are 'selection' and 'appointment process' meaning the same thing and used interchangeably. The date specified is of the commencement of such selection process or recruitment process, if the recruitment/selection for appointment is from all the three sources. If the selection is set in motion within the same year, then despite unforeseen, unintended or unexpected delay having occurred, there can be no deviation from the rule that seniority is to be assigned in accordance with the roster points, without reference to the date of appointment; interspersed as per the roster points assigned to the three sources of recruitment. However, an earlier or later recruitment would not result in the roster points being followed and the appointees being interspersed with the appointees of an earlier or a subsequent year.

32. There is also a contention raised on a co-ordinate bench of the Hon'ble Supreme Court having doubted K. Meghachandra Singh in Hariharan. We have to extract the following paragraph from Hariharan:

"33. The argument made before us is that the decision in the case of K. Meghachandra will have to be ignored on the ground that it is per incuriam as the attention of the Bench which decided the case was not invited to the binding decisions of the Constitution Bench in the case of Mervyn Coutindo and a Coordinate Bench in the case of M. Subba Reddy. Prima facie, we find substance in the argument that the attention of the Bench which decided the case of K. Meghachandra was not invited to the aforesaid binding precedents. Therefore, we are of the view that the appropriate course of action will be to refer the question to a larger Bench. We are dealing with a case where the 'rotation of quota' or rota and quota system is being followed. If the promotees are recruited in the relevant recruitment year, but the process of recruitment of the direct recruits which commenced in the same recruitment year could not be completed in the same year, the direct recruits appointed subsequently will have to be interspaced between the promotees of the same recruitment year. In such a case, it cannot be said that direct recruits were not available during the recruitment year. Their appointment could not be made during the same year, though the process of appointment commenced in the same year. But, if the process of recruitment of the direct recruits is completed in the same recruitment year but an adequate number of candidates could not be selected, the shortfall should be carried forward to the next recruitment year. In such cases, the candidates who are selected against shortfall vacancies will have to be bunched below the promotees of the earlier years. Unless such a procedure is followed, the rotation of quota system will be defeated."

(Underlining above, by us, for emphasis)

33. The rule under challenge is in consonance with the above declaration of law too.

34. We agree with the contention raised by one of the parties that, what the rule indicates by the use of the word 'from', is the period of 12 months as per the British Calendar, commencing from the date of notification. If the notifications are under the three sources on the same date or within one calendar year of 12 months as per the British Calendar, then de hors the date of appointment, the appointees should be interspersed as per the roster points. This has been done as between the 10% LCE promotions and the 65% promotions based on merit-cum-seniority. This is despite the fact that the LCE promotees were appointed later, by reason only of the unintended consequence of the selection process having taken more time. They could not have been denied such interspersing of seniority though they were appointed, later to the 65% promotees, since the selection/appointment process was set in motion on the same date; 16.01.2018.

35. Now, we have to apply the rules to the facts of the present case. In the present case, the controversy as we notice regarding inter-se seniority is between the direct recruits and the promotees; both under the LCE quota and the regular stream. We have resolved the controversy with respect to the two controversial issues amongst the LCE candidates based on the earlier Division Bench judgment of this Court and the binding precedents of the Hon'ble Supreme Court. We are now only concerned with the inter-se seniority between the direct recruits and the promotees. The 65% promotees have not raised any dispute regarding the interspacing of 10% LCE promotees for determining the inter-se seniority between the promotees. The dispute is only as against the direct recruits selected and appointed prior to them.

36. The notification with respect to direct recruitment was on 22.08.2016 being Advertisement No. BSJS/1/2016 produced as Annexure-6 in CWJC No. 14537 of 2022. The High Court has filed an affidavit indicating that the date of initiation is on 14.02.2017. This is based on the identification of vacancies as on 31.03.2017 as per Annexure-F. The recommendations of the High Court to the State Government for appointment of 96 candidates was by Memo No. 24344 of 29.03.2018. The notification of the General Administration Department, Bihar appointing the aforesaid 96 candidates to the post of Additional District Judges was on 28.05.2018 by Annexure-H in CWJC No. 11470 of 2022. Two more candidates were appointed in the light of judicial orders on 21.05.2019 as per Annexure-H/1 and order dated 11.02.2020 and Annexure-H/2, produced in CWJC No. 11470 of 2022. Despite the fact that the High Court identifies the date of initiation as 14.02.2017, we are convinced that the date of initiation of the selection/appointment process was as on 22.08.2016 when the advertisement was published intending to fill up the anticipated vacancies up to 31.03.2017. At that point, Explanation (2) was neither available in the Rules of 1951, nor was there a mandate to carry out the recruitment, as far as possible, on yearly basis as later made available in Rule 5(c). Even if 14.02.2017 is considered to be the date of initiation, Explanation (2) was not available as on the said date since it came into the Rules of 1951 only on 16.02.2017 as also the prescription of yearly basis in Rule 5(c).

37. The selection process of direct recruits was initiated prior to Explanation (2) and there was simultaneous promotion carried out of 11 Civil Judges (Senior Division) who were interspersed with the 96 candidates directly appointed as ADJs. There is no dispute raised regarding the seniority between those promoted and directly recruited to the vacancies as available on 31.03.2017. In fact, when such a selection was going on, none of the persons who were later selected in the subsequent year under the 65% quota or the 10% quota were even eligible for being considered. The eligibility, with respect to those candidates who were promoted under 65% quota along with two persons who were promoted under the 10% quota, being three years in the Civil Judge (Senior Division) was acquired by them only in December, 2017. In so far as the 16 candidates under the LCE quota, as distinguished from the two who were found eligible to be promoted both under the 65% and 10% quota, they were not eligible even as on 31.03.2017. The High Court on the administrative side had enabled their participation by taking the eligibility as on 31.08.2018; which action was upheld by an earlier Division Bench of this Court, respectfully followed by us. Hence, as on the date of appointment of the 96 direct recruits to the post of ADJs on 28.05.2018, to the vacancies that arose prior to 31.03.2017 there could be no dispute raised by the candidates recruited in the subsequent selection year who were regulated by Explanation (2) of Rule 16(e).

38. There is no dispute that in so far as the initiation of promotions under the 65% and 10% quota the notifications were issued simultaneously on 16.01.2018. The date of notification inviting applications for promotions under the 65% quota and that of 10% LCE is available from Annexure-F in the counter affidavit of the High Court in CWJC No. 11470 of 2022. On 16.01.2018, Explanation (2) to the Rule had come into place and the roster points could be filled up only on yearly basis as per the British Calendar commencing from the date of initiation of selection/appointment process. The promotions under the 65% and 10% quota were initiated on the same day. The 65% quota candidates coming to 94 Civil Judge (Senior Division) were appointed to the post of ADJs on 10.12.2018 and the 10% LCE candidates were appointed to the 16 posts of ADJs on 25.03.2019. Going by the rule read with both the Explanations, the seniority position has to be assigned, in the recruitment made on yearly basis from both the streams of promotion as per the roster, irrespective of the date of appointment. The roster of the cadre operates on yearly basis as per the British Calendar Year starting from the date of setting in motion of the selection or appointment process by the High Court, which has to be reckoned as the 12 months between 16.01.2018 and 15.01.2019. It is not an imperative condition that there should be simultaneous initiation of proceedings on a particular day to ensure interspersing of candidates from two or three sources since the roster for the cadre operates on yearly basis from the date on which selection or appointment process is set in motion. The correct interpretation of Rule 16(e) read with the Explanations and Rule 5(c) would be that, if in the 12 months starting from the first notification initiating or setting in motion the selection or appointment process from one source, there is initiation of selection for the other two streams also; then those appointed from the three streams have to be interspersed in the seniority as per the roster points in the first Explanation, irrespective of the date on which the candidates from the different sources are appointed.

39. Viewed in that perspective, the appointees under the 65% quota and 10% quota; whose process of selection was set in motion after Explanation (2) came in, cannot seek for an inter-se seniority based only on Rule 16(e) and the first Explanation and it has to be necessarily decided also on the principle coming forth from Explanation (2). In this context, we have to examine the decisions which were placed before us regarding the effect of an Explanation and the scope and ambit of such an explanation.

40. As has been pointed out, Paragraph 53 of S. Sundaram Pillai is a succinct declaration of the object of an Explanation to a statutory provision, which we extract as under:-

"53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is--

"(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming a hindrance in the interpretation of the same."

41. Rule 16 provides for inter-se seniority between the persons recruited/promoted from three different sources which as it stood prior to 16.02.2017 would have resulted in the principle of none being given seniority from a date prior to the substantive appointment being violated; that too in an arbitrary manner which was an unintended consequence of the rule itself. There was a mischief in so far as the roster points determining the seniority of a person, appointed from one source, far earlier to another appointed from a different source, being pushed down only due to administrative vagaries and precarity of a selection being not held in time or there occurring unexplained delay in concluding the selection initiated. This mischief was sought to be suppressed and Explanation (2) was brought in to advance the real object of providing for a roster point assignment of seniority, quite in consonance with Articles 14 & 16 of the Constitution of India. We have also observed that the High Court presumably with its experience of making appointments brought in the Explanation, also to mitigate the heart burn brought in by the unintended consequences of Rule 16(e).

42. The petitioners have also argued that Explanation (2) modifies the roster points and restricts it to the yearly recruitment made within a period of 12 months; which an Explanation cannot achieve in the statutory scheme. We have to notice the decisions of the Hon'ble Supreme Court in Burmah Shell Oil Storage and Distributing Co., of India Ltd. v. Commercial Tax Officer (1961) 1 SCR 902 [LQ/SC/1960/221] , M/s. Hiralal Rattanlal v. State of U.P. (1973) 1 SCC 216, [LQ/SC/1972/482] and Dattatraya Govind Mahajan v. State of Maharashtra (1977) 2 SCC 548 [LQ/SC/1977/56] . Burmah Shell Oil Storage and Distributing Co., of India Ltd. held that an Explanation was meant to explain the Article and must be interpreted according to its own tenor and it was an error to explain the Explanation with the aid of the Article to which it was annexed. In M/s. Hiralal Rattanlal it was held that in construing a statutory provision the first and foremost rule of construction is the literal construction and if the provision is unambiguous making the legislative intention clear there is no necessity to call into aid the other rules of construction of statutes. It was held that though ordinarily a proviso to a Section is intended to take out a part of the main Section for special treatment, not enlarging the scope of the main Section; still cases have arisen where a proviso though called as such was construed to be a separate provision, substantially altering the main section. Referring to Bihta Co-operative Development Cane Marketing Union Ltd. v. Bank of Bihar, (1967) 1 SCR 848 [LQ/SC/1966/254] it was noticed that though on the basis of the language of the Explanation coming up in that case, it was held to have not widened the scope of the clause; it also comes forth from the said case that "if on a true reading of an Explanation it appears that it has widened the scope of the main section, effect be given to legislative intent notwithstanding the fact that the Legislature named that provision as an Explanation. In all these matters the courts have to find out the true intention of the Legislature (sic-para 25). In M/s. Hiralal Rattanlal it was held that Explanation (2) (in the cited case) to Section 3D of the subject Act widened the scope of Section 3D and though Explanation (2) is not very happily worded, the intention of the Legislature was clear and unambiguous by which the split or processed food grains were also brought to tax with retrospective effect.

43. In Dattatraya Govind Mahajan it was reiterated that the labeling of an Explanation is not always decisive. It was held in Paragraph 9-

"It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. But ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention. It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations." (sic-para-9).

(Underlining by us for emphasis)

44. The cited decisions were referred to, specifically M/s. Hiralal Rattanlal and the principles applicable with regard to an Explanation was culled out in Manish Kumar in the following words:

297. Even though, in a later decision in S. Sundaram Pillai [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591] [LQ/SC/1985/23] , this Court had adverted to this judgment when it came to culling out the propositions, the aspect about an Explanation, widening the scope of a provision, has not been expressly spelt out. It must be remembered that the legislature speaks through the medium of the words it uses. The nomenclature, it gives to the device, cannot control the express language, which it employs. If, in effect, in a particular case, an Explanation does widen the terms of the main provision, it would become the duty of the court to give effect to the will of the legislature.

45. Hence, even if Explanation (2) has widened or restricted Rule 16(e) it is to suppress a mischief in not permitting seniority to be assigned on the basis of the date of arising of such vacancies, despite no timely selection having been carried out, whether the laxity was deliberate or unintentional. It was a considered decision of the rule making authority, one informed by the experience garnered in implementing the Rule, that Explanation (2) was introduced into the Rule Book along with the mandate, as far as possible to carry out yearly selections from the three sources. The selection from the three sources being initiated within a 12-month period, then ideally the seniority would be assigned to the respective officers recruited from the three sources as per the roster points in the first Explanation to Rule 16(e); without any reference to the date of appointment and irrespective of such date of appointment. Rule 16(e) is in consonance with Articles 14 and 16 of the Constitution of India only with Explanation (2) and we are of the definite opinion that it requires no interference.

46. We do not find the Explanation to be ultra vires Rule 16(e) nor does it frustrate the intention of the Rule, especially since the amendment on 16.02.2017 mandated a recruitment on an yearly basis and ensured that those recruited in the span of 12 months starting from the initiation of the first selection or appointment process set in motion; from the three streams, and those initiated within the 12 month period starting from that date, to be assigned seniority on the basis of the roster points in the first Explanation, without reference to the date of actual appointment. On a harmonious reading of the Rule and the mitigation it offers to unnecessary heart burn and unintended consequences, we are commended to reject the contention raised. We find absolutely no reason to set aside Explanation (2) nor do we find any reason to interfere with the Gradation List. We dismiss the writ petitions leaving the parties to suffer their respective costs.

Partha Sarthy, J.

I agree.