No retrospective effect to Madhya Pradesh Higher Judicial Services Rules 2017: Supreme Court [Read Judgment]

The Supreme Court held that no retrospective effect can be given to the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017 (Anand Kumar Tiwari vs. High Court of Madhya Pradesh)..A Bench of Justices L Nageswara Rao and Aniruddha Bose found that the roster as per the 2017 Rules can only be prepared and maintained after the commencement of operation of the Rules..By way of background, the petitioners were appointed as District Judges by direct recruitment on September 10, 2009. As per the provisional gradation list, the petitioners were shown as seniors to those District Judges who were promoted through Limited Competitive Examination (LCE).Consequent to a representation by LCE promoted Judges, three LCE promotees were giving seniority over direct recruits.A special committee constituted for considering the inter-se seniority of judicial officers undertook the issue afresh in the light of Rule 11 of Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 1994 (1994 Rules) and resolved to recommend that the District Judges who were promoted through LCE on September 2, 2009 shall be given seniority over the directly recruited District Judges who were appointed on September 10, 2009.Therefore, the main issue put forth by the petitioners was with respect to the order dated October 27, 2015 by which the seniority list was issued showing petitioners below the District Judges who were promoted through LCE in the year 2009..As per the decision in All India Judges’ Association v. Union of India, 25% of the posts of Higher Judicial Services District Judges and Additional District Judges has to be filled by direct recruitment on the basis of a competitive exams and the remaining 75% posts has to be filled up by promotion.Further, it was held that in the 75% quota for promotees, 50% shall be filled up by promotion through merit-cum seniority and 25% of the posts by promotion directly on the basis of merit through a departmental LCE for which the qualifying service as Civil Judge (Senior Division) shall not be less than 5 years..The petitioners representations between August 2, 2010 and May 31, 2014 for determination of seniority based on the 40-point roster as per the directions of the Supreme Court in All India Judges’ Association were rejected on September 11, 2019 reasoning that the 2017 Rules came into force with effect from March 13, 2018 and were prospective in operation..The petitioners’ primary contention was that there was an inordinate delay on the High Court’s part to amend the seniority rule. Despite the Court’s direction for amendment in 2002, action was finally taken in 2018.It was argued that the delay should not act to the detriment of directly recruited judges and their seniority should be redetermined based on the roaster by way of retrospective effect of the 2017 Rules..The counsel appearing for the Madhya Pradesh High Court explained that the amendment was deferred despite several meetings of the full Court due to the pendency of a special leave petition (SLP) before the apex court relating to the issue of seniority of District Judges..However, the Court rejected the contention of the counsel for the High Court noting that the subject matter of the SLP cited by the respondents was different than the present issue.“The delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges’ Association (supra) on the ground of pendency of SLP before this Court is not justified… The question of inter-se seniority of promotees and direct recruits was not directly an issue in the said case.”.The Court, however, refused to extend retrospective effect to the 2017 Rules noting that the roster can only be prepared and maintained after the commencement of operation of the Rules. "The Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules," the judgment said. The Court concluded that petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by the Supreme Court in All India Judges’ Association case..[Read Judgment]