ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL SERVICES ASSOCIATION AND ORS.

The Judgment of the Court was delivered by

D R. V. RAVEENDRAN J. 1. Leave granted in SLP (C) No.11476 of 2005. These appeals arise out of yet another round of litigation in the dispute between direct recruits and promotees in the Uttar Pradesh Higher Judicial Service, having its genesis in two decisions of this Court in the earlier rounds.

E 2. The recruitment and appointment to the Uttar Pradesh Higher Judicial Service consisting of a single cadre comprising the posts of District and Sessions Judges and Additional District and Sessions Judges are governed and regulated by the U.P. Higher Judicial Services Rules, 1975, ('Rules' for short) F framed under Article 309 read with Article 233 of the Constitution of India. The said Rules were amended by the UP Higher Judicial Services (Fourth Amendment) Rules, 1996, with effect from 15.3.1996. For convenience, the Rules before amendment will be referred to as the 'Unamended Rules' and G the Rules after the 1996 amendment will be referred to as the 'Amended Rules'. As we are concerned with the recruitments for the years 1988, 1990, 1992-1994 and 1998-2000, it may be necessary to refer to the unamended Rules in regard to the recruitments relating to 1988, 1990 and 1992-1994, and the H

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SERVICES ASSOCIATION [RV RAVEENDRAN, J.] amended rules with reference to the 1998-2000 recruitment. A Rules 5, 6, 8, 20, 22 and 26 are relevant and they are extracted below:

"5. Source of recruitment - The recruitment to the Service shall be made- B (a) by direct recruitment of pleaders and advocate of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published : c (b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa, who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting applications is published:

Provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrate, confirmed officers who have put in not less than seven years service to be computed as aforesaid shall be eligible for appointment as Additiooal Sessions Judges in the Service.

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6. Quota - Subject to the provisions of rule 8, the quota for various source of recruitment shall be-

(i) Direct recruitment from the Bar: 15% (ii) Uttar Pradesh Nyayik Sewa : 70% of the G (iii) Uttar Pradesh Judicial Officers vacancies. Service (Judicial Magistrates) : 15%

Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota H

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A is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one:

Provided further that when the strength in the cadre of the Judicial Magistrate gradually gets depleted or is completely B exhausted and suitable candidates are not available in requisite numbers or no candidate remains available at all, the shortfall in the number of vacancies required to be filled from amongst Judicial Magistrates and in the long run all the vacancies, shall be filled by promotion from amongst the members of the Nyayik Sewa and their quota shall, in c due course, become 85 per cent.

8. Number of appointments to be made - (1) The Court, shall, from time to time, but not later than three years from the last recruitment, fix the number of officers to be taken D at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years.

Note : The limitation of three years mentioned in this sub- rule shall not apply to the first recruitment held after the enforcement of these rules. E (2) If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa:

Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly; so, however, that the percentage of direct recruits in the Service does not in any case exceed 15 per cent of the total permanent strength of the service. H

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]

Provided further that all the permanent vacancies existing A on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules; B

Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to the Judicial magistrates in addition to their quota of 15 C per cent prescribed in rule 6, and thereupon, future recruitment (after the promotion from amongst the members of the Nyayik Sewa against vacancies referred to in the last preceding proviso) shall be so arranged that for so long as the additional 15 per cent vacancies worked out as above have not been filled up from out of the Judicial D magistrates, the allocation of vacancies shall be as follows

(i) 15% by direct recruitment. E (ii) 30% from out of the Judicial Magistrates;

(iii) 55% from out of the members of the Nyayik Sewa

[Note : The first proviso to sub-Rule (2) of Rule 8 was amended by the Amendment Rules of 1996 omitting the crucial word "permanent" when referring to "15% of the total permanent strength of the service". The first proviso as amended, reads thus :

Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly; so, however, that the percentage of direct H

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A recruits in the Service does not in any case exceed 15 per cent of the total strength of the service.]

20. Promotion of members of Nyayik Sewa :

(1) Recruitment by promotion of the members of the Nyayik B Sewa shall be made by selection on the principle of seniority-cum-merit.

xxxxxxxxx (4) The Selection Committee shall forward the list of the c candidates chosen at the preliminary selection to the Chief Justice along with the names of the officers who, if any, in the opinion of the Committee have been passed over for promotion to the service.

D (5) The Court shall examine the recommendations of the Selection Committee and make a final selection for promotion and prepare a list in order of seniority of the candidates who are considered fit for promotion and forward the same to the Governor. E The list shall remain operative only till the next recruitment.

22. Appointment- (1) Subject to the provisions of sub-rules (2) and (3), the Governor shall on receipt from the Court of the list mentioned in Rules 18, 20, and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the lists in the order in which they stand in the respective lists.

(2) Appointments to the service shall be made on the rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies shall thereafter be filled by promotion from the list of the officers of the Nyayik Sewa. H

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]

Provided that for sq long as suitable officers are available A from the cadre of the Judicial Magistrates, appointments to the service shall be made in such a way that the second fifth and eighth (and so on), vacancy shall be filled from the list of Judicial Magistrates. 8 (3) Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa.

Provided that for so long as suitable officers are available from the cadre of the Judicial magistrate, appointments on C temporary vacancies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrate according to the quota fixed for that source under these rules: D Provided further that for so long as such members of the Judicial Service as are considered suitable for appointments on temporary vacancies or in officiating capacity, are not available in sufficient number, the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates.

(4) The appointments shall be made on rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of Judicial Magistrates (and so on).

[Note : Sub-Rule (3) and its two provisos of Rule 22 were substituted by the following by the Amendment Rules of 1996 : G

(3) In the eventuality of delay in making appointment under sub-rule (1) and further if exigency of service so requires, the Governor may, in consultation with the Court, make short term appointment as a stop-gap arrangement from H

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A amongst the members of Nyayi~ Sewa in the vacancy in these services within the quota fixed by the Court till the appointments are made under sub- rules (1) and (2) :

Provided that the period of service spent by the member of Nyayik Sewa on short term appointment to the service B as a stop-gap arrangement shall not be computed for seniority under Rule 26.]

26. Seniority - (1) Except as provided in sub-rule (1 ), seniority of members of the service shall be determined c as follows:

(a) Seniority of the officers-promoted from the Nyayik Sewa vis-a-vis the officers recruited from the Bar shall be determined from the date of continuous officiation in the D service in the case of promoted officers and from the date of their joining the service in the case of direct recruits. Where the date of continuous officiation in the case of an officer promoted form the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same, the promoted officer shall be treated as senior E Provided that in the case of a promoted officer the maximum period of continuous officiation in the service shall not, for the purpose of determining seniority exceed three years immediately preceding the date of confirmation;

Provided that where any officer is not found fit for confirmation and is not confirmed in his turn, the officiating period or the probationary period, as the case may be, prior to the date of decision taken by the High Court in this behalf shall not be taken into account for purposes of computing the period of continuous officiation or for purposes of working out the date of joining of the service, as the case may be; H

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] ·

(b) Seniority inter se of the officers appointed from out of A the Judicial Magistrates shall be determined from the date of continuous officiation, provided that in the case of officers appointed on the basis of one selection, their· seniority shall be determined according to their seniority in the Uttar Pradesh Judicial Officers Service: B

Provided further that where an officer is not found fit for confirmation and is not confirmed in his turn, the officiating period prior to the date of decision taken by the High Court in this behalf shall not be taken into account for computing · C the period of continuous officiation.

(2) Seniority of members of the service who have been confirmed in the service prior to the commencement of these rules shall be as has been determined by the order of Government as amended from time to time. D

[Note : Rule 26 of 1975 Rules was substituted in entirety by the follwing by the Amendment Rules of 1996 :

26. Seniority- (1) Seniority of the officers appointed in the service shall be determined in accordance with the order of appointment in the Service under sub-rules (1) and (2) of Rule 22 of these rules.

(2) Seniority of members of the service who have been confirmed in the service prior to the commencement of these rules shall be as has been determined by the order of the Government as amended from time to time.]

3. The dispute between the promotees and direct recruits in regard to their inter-se seniority in the Uttar Pradesh Higher G Judicial Services came up before this Court at the instance of promotees in P.K. Dixit vs. State of Uttar Pradesh - 1987 (4) SCC 621. This Court allowed the petitions and directed preparation of fresh seniority list in accordance with the following directions: H

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A "(i) So far as the posts available on a particular dated i.e. May 10, 1974 are concerned the High Court will have to look into the matter afresh and decide the seniority in the light of the above position. But after the 1975 Rules came into force, the appointments to the Higher Judicial Service B either on the basis of direct recruitment or on the basis of promotion must have been in accordance with these rules and it is expected that the probation, confirmation and seniority must have been looked into by the High Court strictly in accordance with th;;se Rules. c (ii) Under Rule 22(3) appointment to temporary vacancies shall be made only from the Nyayik Sewa and as and when a substantive vacancy arises and the procedure for selection is to be followed, the officers who were appointed to fill in the temporary posts should be considered first and 0 appointed on probation, if found fit. When appointment under Rule 22 is contemplated in the service of substantive vacancies, it may be both temporary or permanent but the vacancy must be in the cadre. A person could only be confirmed when a permanent post is available for him. E (iii) If a person is appointed to officiate in the Higher Judicial Service his case for confirmation normally will be considered within three years and either he will be confirmed or will be reverted. The High Court must examine the case of a promotee officer within three years and decide whether the officer deserves to be confirmed or deserves to be reverted. It is with this view that Rule 23 provides that period of probation shall not ordinarily exceed three years and Rule 26 provides that in case of promotee officer's continuous officiation even if it is for more than three years, only three years will be counted for purpose of seniority. This itself contemplates that such an occasion shall not arise when a person may be officiating for more than three years and still his case hs not been considered for confirmation." H

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4. Pursuant to the judgment in P.K. Dixit, the High Court A issued a tentative seniority list on 11.2.1988 and objections were invited. The promotees were satisfied that the said list was drawn in conformity with the judgment in P.K.Dixit and unobjectionable. The High Court constituted a Five-Judge Committee to finalise the list. On the basis of the report of the B committee, final seniority list was issued on 25.8.1988. Aggrieved by the final seniority list, the promotees (O.P. Garg and four others) filed a writ petition. The petitioners P.K. Dixit filed an application in the said petition seeking clarification and supporting the case of the promotees. The direct recruits filed C a writ petition challenging the final seniority list issued by the High Cou11. Both sides contended, for different reasons, that the final seniority list dated 25.8.1988 was contrary to the decision in P.K. Dixit. This court found that the High Court, the direct recruits and promotees were interpreting the directions D and observations in P.K. Dixit differently. Therefore this court in its judgment dated 23.4.1991, reported in O.P. Garg v. State of UP. & Ors. - 1991 (Supp) 2 SCC 51, decided to take a fresh look into the matter in regard to aspects which were not dealt with and decided by P.K. Dixit. This court, therefore, posed the following three questions for consideration : E

1Copy pinpoint1. What is the scope and interpretation of second proviso to Rule 8(2) of the 1975 rules? Whether the Additional District and Sessions Judges, holding the posts on April 5, 1975, can claim that by operation of the 1974 Rules they F stood appointed to the service and as such consumed all the posts which were available on April 5, 1975 or they were only entitled to vacancies under the second proviso to Rule 8(2) of the 1975 rules?

2Copy pinpoint2. Whether the period of continuous officiation in case of G a promotee, for determining seniority, is to be counted in terms of First proviso to Rule 26(1 )(a) of the 1975 Rules or in accordance with the principle adopted by the High Court. Isn't it the requirement of law that a promotee is entitled to seniority in the service from the date when H

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A vacancy in his quota became available?

3Copy pinpoint3. Seniority and appointment in the service being inter- linked a further question which necessarily arises for our consideration is whether Rules 22(3) and 22(4) of the 1975 rules, which provide appointments to temporary posts in B the service from two sources of promotees excluding the direct recruits, can be legally sustained?

On consideration of the issues, this Court quashed the final seniority list dated 25.8.1988 with a direction to the High Court C to prepare, circulate, invite objections and then finalize the seniority list keeping in view the following directions, declarations and findings:

"(i) All the 236 promotee officers working against 236 D posts (229 permanent plus 7 temporary) as Additional District and Sessions Judges on April 5, 1975 shall be deemed to be existing members of the Service as constituted under the Rules with a direction that they shall en bloc rank senior to all other officers appointed to the service thereafter from three sources in accordance with their quota under the Rules.

(ii) The first proviso to Rule 26(1 )(a) of the Rules was struck down with a direction that the continuous officiation/ ser vice by a promotee appointed under the Rules shall be counted for determining his seniority from the date when a substantive vacancy in permanent or temporary post is made available in his quota under the Rules.

(iii) Sub-rules (3) and (4) of Rule 22 were struck down with the saving that the appointments already made under the said Sub-rules shall not be invalidated.

(iv) While selecting candidates under Rule 18 of the said rules, the committee shall prepare a merit list of

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]

candidates twice the number of vacancies and the said A list shall remain operative till the next recruitment; and the appointments under Rules 22(1) and 22(2) of the Rules shall be-made to permanent as well as to temporary posts from all the three sources in accordance with the quota provided under the said rules. B

5. In pursuance of the decision in O.P. Garg, the High Court calculated the vacancies under different quotas for recruitment/promotion for different periods. The dispute centering around the method of calculation made by the High Court in regard to the ratio between direct recruits and c promotees in a given year, again came up before this court in one more round between promotees and direct recruitees in Srikant Tripathi & Ors. v. State of UP. & Ors. [2001 (10) SCC 237], wherein this Court issued the following directions : D "1. Appointments already made to the Higher Judicial Service, whether by direct recruitment or by promotion, need not be annulled and shall be continued.

2. With effect from 1988 recruitment and in all subsequent recruitments which are the subject matter of challenge before us, the High Court shall determine the number of vacancies available as on the relevant year of recruitment in terms of Rule 8, as already explained by us and then, allocate the percentage to different sources of recruitment, contained in Rule 6, and after such determination is made, then find out whether the appointments of direct recruits already made for that recruitment year are in excess of the quota or within the quota. If it is found that any appointment has been made in excess of the quota, then the said appointee would be allowed to continue, but his or her seniority will have to be reckoned only when he or she is adjusted in the next recruitment.

3. If in each recruitment year, posts were available in the quota of promotees and promotion has not been made, H

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A even though selection had been made under Rule 20, then the legitimate right of the promotees cannot be denied and promotion must be made with effect from the date they should have been appointed.

4Copy pinpoint4. This exercise has to be made for the recruitment of B 1988 as well as for each subsequent recruitment that has been made.

5Copy pinpoint5. Since the determination under Rule 8 is being made now, pursuant to the directions of this Court, in respect of c past recruitment years for which recruitment has been made, the expression "vacancies likely to occur" loses its importance and determination has to be made, on the basis of the actual vacancies available in any of such recruitment year. D

6Copy pinpoint6. So far as the recruitment of 1998 is concerned, advertisements having been issued for 38 vacancies being filled up by direct recruitment and the process of selection being already over, but no appointment having been made, we think it appropriate to direct that the appointment of the selected candidates may be made against the quota available to direct recruits calculated in accordance with the Rules in the light of our decision.

7Copy pinpoint7. For all future appointments, the High Court must take steps to fill the vacancies of every recruitment year during that year itself. The High Court must determine the vacancies not only on the basis of the actual vacancies on the date of such determination but also take into account probable vacancies by reason of superannuation of officers in the next two years from that date. Once the vacancies are so determined, the percentage of the vacancies available for recruitment by direct recruitment and by promotion must be fixed and steps taken for filling up the same expeditiously. The number of vacancies available for the direct recruits quota must be advertised without any

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] variation clause. The Select List prepared both for direct A recruits as well as for promotees prepared by the High Court will be operative only till the next recruitment commences with the fixation of the vacancies for the next recruitment year. 8

6. On 30.11.2001 the Chief Justice of the High Court placed the matter before the Administrative Committee of the High Court, for implementation of the directions in Srikant Tripathi. On 5.12.2001, the Administrative Committee in turn constituted a Three Member Sub-Committee to examine and submit a report. The Sub-Committee examined the matter and C submitted a report dated 24.8.2002, determining the actual number of vacancies available for the 1988, 1990, 1992-1994 and the 1998 (initiated in 2000) and the actual recruitments made, with other details. We extract below the operative portion of the said report: D

"The office on re-examination of record has found that 13 vacancies were left out inadvertently from being incorporated in the existing Gradation List. The details of those vacancies have been given on page no.13 of the appendix attached herewith.

Before the process of 1988 recruitment could commence, 5 direct recruits were appointed in the U.P. Higher Judicial Service Cadre on different dates under the order of Hon'ble Supreme Court. Since no vacancies have been allocated to them in the existing Gradation List, we have allocated 5 vacancies out of 13 left out vacancies to these direct recruits, the details of which have been shown on page no.14. G As per direction no.5 referred to above, we have determined the vacancies after taking into account the vacancies which existed before 1.1.1988 and also the vacancies which actually occurred or accrued during the recruitment period and not on the basis of the expression H

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A 'likely to occur'. On re-calculation, we find that in all there were 314 actual vacancies available for 1988 recruitment, as shown below and whose details are indicated on page 16 of the appendix.

(A) Vacancies which remained unfilled prior to 1.1.1988 B Remaining vacancies out of 13 vacancies which were left out inadvertently in the Gradation List 08

Vacancies which occurred or accrued between- c 24.5.1984 to 31.12.1984 23 1.1.1985 to 31.12.1985 34 1.1.1986 to 31.12.1986 40 1.1.1987 to 31.12.1987 129 D Total 234

(B) Vacancies which actually occurred or accrued between - E 1.1 .1988 to 31 . 12 .1990 80

Total number of vacancies available for recruitment F Though as per quota Rule, 47 direct recruits could be appointed out of 314 vacancies but because of the ceiling imposed under the Rules, only 42 direct recruits could be appointed as their number could not at any point of time exceed 15% of the Cadre strength. Instead of 42, only 24 direct recruits were recruited from the Bar and 3 vacancies within their quota were kept reserved for SC/ST candidates which were carried forward to the next recruitment. We thus find that the appointment of the direct H

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recruits made in 1988 recruitment was not in excess of A their quota. The Apex Court observed as under:

"If it is found that any appointment has been made in excess of the quota, then the said appointee would be allowed to continue but his or her seniority will have to be 8 reckoned only when he or she is adjusted in the next recruitment."

Since from the chart prepared on page 16 it is apparent that there has been no appointment in excess of the quota of direct recruits in 1988 recruitment, no question thus C arises for the seniority of the direct recruits being adjusted in the next recruitment.

On the same basis, similar exercise was made in relation to subsequent recruitments of 1990 and 1992-94 batches .. D The position of the actual vacancies available for these recruitments has been exhibited in the charts on pages 38 and 48 respectively.

For the latest recruitment of 2000, the court has fixed the number of direct recruits to be recruited as 38. We have E worked out the total number of vacancies available for this recruitment and they have been indicated in the chart shown on page 69. From this chart it would appear that maximum number of direct recruits who could be appointed under the Rules comes to 38. Advertisement F has also been made for making 38 appointments within the quota of direct recruits. In this view of the mater 38 appointments within the quota of direct recr0ts has to be made in the 2000 recruitment. We have been told that examination has already been held but its result is awaited G as vacancies were to be calculated afresh in the light of the directions of the Apex Court in the case of Shri Kant Tripathi. Direction no. 6 was in the following term:

So far as the recruitment of 1998 is concerned H

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A advertisements having been issued for 38 vacancies being filled up by direct recruitment and the process of selection being already over, but no appointment having been made, we think it appropriate to direct that the appointment of the selected candidates may be made B against the quota available to direct recruits calculated in accordance with the Rules in the light of our decision.

As a matter of fact no recruitment was made in 1998, instead the court has initiated the recruitment process for 2000 recruitment. c On re-calculation, we have already found above that 38 vacancies are available in the quota of direct recruits for their appointment in 2000 recruitment. Advertisement was also made for the same number of posts. Therefore, 38 D appointments may be made from the members of the Bar in accordance with the Rules. Similarly 334 promoted officers, if available and found suitable, be also recruited for appointment to service in accordance with rule 22(1) read with rule 22(2). E For future recruitment, office is directed to take steps in accordance with direction no.7. Office shall immediately calculate the actual number of vacancies as are found existing on the date of such determination. It shall also work out the probable vacancies likely to occur in the next two years from that date by reason of superannuation. This figure shall be added to the number of existing vacancies and thereafter the percentage of vacancies available for both the sources shall be fixed and steps shall be taken for filling up the same expeditiously. The vacancies which are worked out in the direct recruits quota shall be advertised without any variation clause.

We may add that we have not gone into the question of inter se seniority between the promoted officers and the direct recruits because for that purpose a separate

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Committee has been constituted by the Chief Justice." A

The factual position as worked out in the annexures to the said report is as under :

Description 1988 1990 1992-94 1998 (with (with (with (with B expected expected expected) expected vacancies vacancies vacancies vacancies upto upto upto upto 31.12.1990) 31.12.1992) 31.12.1997) 2000) Total vacancies c Carried forward 8 96 117 196

Vacancies during the period 306 44 261 176 D ----- - - - Total 314 140 378 372 Allotment of vacancies E Promotees 267 119 321 316

Direct recruits 47 21 57 56

Cadre strength F Permanent 376 511 572 572

Temporary 219 85 169 226 ----- ----- ----- ---- Total 595 596 741 798 G 15% of cadre 89 89 111 120 strength (maxi- mum number of di re ct recruits permissible H

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A with reference to cadre strength)

Actual number of 47 73 66 82 direct recruits B working

Maximum number 42 16 45 38 of direct recruits who could be .

c appointed

Actual recruitment

Promotees 191 17 161(48+113) Permissib!e:334

D Direct recruits 24 5 Permissible : 38

Vacancies kept 3 1 reserved for SC/ST E Unfilled to be 96 117 196 carried forward

The said report was approved by the Administrative Committee on 4.9.2002 and was approved by the Full Court of the High F Court on 1.2.2004.

7. The promotees were aggrieved by the acceptance of the Report by the Full Court. They contended that calculations made by the Sub-Committee and the conclusion arrived by it that that the actual number of direct recruitment made for the said years was not in excess of the quota available for direct recruits, were erroneous. According to them, the posts available in the quota of promotees (Nyayik Sewa Officers) was 475 for 1998 recruitment and not 334. They also disputed the finding that 38 vacancies were available for direct recruitment in 1998.

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] Their cause was espoused by the UP Higher Judicial Service A Association by filing a writ petition (WP No.316 of 2004) seeking the following reliefs :

(i) a direction to the State and the High C.ourt not to make any appointment by direct recruitment in the UP Higher 8 Judicial Service until the posts available for promotion of members of the UP Nyayik Sewa with effect from 1988 recruitment are calculated and filled up in accordance with the Rules as directed by this Court in S.K. Tripathi;

(i) a direction to the State and the High Court to appoint C to the UP Higher Judicial Service, the members of the said Association against the 222 existing vacancies in the quota of promotees; and

(iii) quashing the decision of the Full Court of the High D Court dated 1.2.2004 accepting the recommendations of the three-member Committee dated 24.8.2004.

8Copy pinpoint8. A Division Bench of the High Court allowed the said writ petition by the impugned order dated 25.8.2004. It quashed the resolution of the Full Court dated 1.2.2004 accepting the E recommendations of the three-member Committee dated 24.8.2002 and directed a fresh exercise to be carried out in the light of Srikant Tripathi to determine the vacancies and their distribution between the three sources of recruitment as per their quota under the Rules, for the recruitment years 1988 to F 1998 in accordance with the following guidelines :

(1) The number of the officers of Nyayik Sewa and Judicial Service who were already promoted and appointed against temporary posts under Rule 22(3) or 22(4) of the G Rules and whose appointments have been protected in 0 P Garg would be taken into consideration and the number of vacancies equal to the number of such officers shall be excluded from computation.

(2) While applying the ratio of judgment in 0 P Garg and H

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A distributing temporary as well as permanent vacancies, allocation of 15% vacancies of the quota of direct recruits under rule 6 of the Rules, has further to be subject to ceiling of 15% of the permanent strength of service, till the amendment in the rules came into effect i.e. 25th B February, 1996.

(3) While making an exercise to find out (in accordance with direction no.2) as to whether the direct recruits taken into-service are in excess of the quota or not, simultaneous exercise has to be done for compliance of direction no.3 c in S.K. Tripathi and vacancies of the quota of promotees shall be deemed to have been filled up from the date they are entitled to promotion.

(4) Thirty one posts of the service which have been transferred to Uttaranchal with effect from 30.9.2001 shall be excluded while determining the strength of the service in order to work out 15% of the quota of direct recruits.

(5) Out of 13 unnoticed vacancies, found by the office in the year 1988 only two vacancies equal to 15% of the quota of direct recruits be given to them instead of adjusting five appointments en bloc and again giving one out of eight vacancies to them applying 15% quota rule.

(6) The second proviso to Rule 6 be also given effect to as and when the occasion arises.

The Division Bench issued a consequential direction that the State Government and the High Court cannot be permitted to appoint thirty eight direct recruits for the 1998 recruitment year and permitted the State and the High Court to proceed with the appointment of direct recruits for 1998 not exceeding twenty four and also fill up 334 posts by promotion subject to the final determination of vacancies in accordance with the directions contained therein. The said order is challenged in these civil appeals.

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9Copy pinpoint9. Judicial Officers belonging to U.P. Higher Judicial A Service appointed in the direct recruits quota, in the years 1988, 1990, 1992 and 1994, who were not parties before the High Court and whose seniority is adversely affected by the order of the division bench of the High Court are the appellants in C.A. No.1312/2005. B

The High Court of Allahabad which was the second respondent in the writ petition filed by the U.P. Judicial Service Association, is the appellant in C.A.No.1313/2005.

The candidates who participated in the U.P. Higher Judicial C Service Examination, 2000 for direct recruitment and whose names are found in the select list but who are not appointed in . view of the directions in the impugned order (to restrict the appointments to only 24 instead of 38), have filed the last appeal. D

10Copy pinpoint10. The appellants (direct recruits, the High Court administration and the prospective direct recruits) in their respective appeals, have contended that directions (1), (2), and (3) issued by the Division Bench as also the consequential direction to conduct a fresh exercise in the light of Srikant Tripathi are erroneous and require interference. Their contentions in brief are:

(b) The interpretation of the first proviso to Rule 8(2) is contrary to the decision in O.P. Garg and inconsistent with H

60 SUPREME COURT REPORTS [2010] 12 S.C.R.

A the views of this Court in OP Sing/a & Anr. vs. Union of India & Ors. - (1984) 4 SCC 450.

(c) The direction that the ceiling of 15% of permanent strength of the service should be given effect, till the amended Rules came into effect (15.3.1996), instead of B treating 15% of th~ cadre strength as quota for direct recruits, is contrary to the decision in O.P. Garg, holding that "all temporary posts created under Rule 4 (4) of the 1975 Rules are additions to the permanent strength of the cadre and as such form part of the cadre." c

11Copy pinpoint11. On the contentions raised, the following questions arise for our consideration :

(i) Whether the vacancies occupied by judicial officers promoted and appointed against temporary posts under Sub-Rules (3) or (4) of Rule 22 should be excluded when computing the respective quotas for promotees and direct recruits?

(ii) Whether the direct recruits are entitled to 15% of the vacancies as a fixed quota or whether the said percentage is a ceiling imposed in regard to direct recruitment meaning that the vacant posts shall not be filled up more than 15% by the direct recruits?

F (iii) Whether the words "15% of the total permanent strength of the service" occurring in first proviso to sub-Rule (2) of Rule 8 of the unamended Rules (as contrasted from "15% of the strength of the service" after the amendment), shall be given effect in computing the respective quotas of promotees and direct recruits till the amendment of Rules (effective from 15.3.1996) deleting the word "permanent" in the said first proviso?

(iv) Whether the procedure of carrying forward vacancies adopted by the full court of the High Court is erroneous having regard to the specific provisions of Rule 8(2) and

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SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]

direction no.3 issued by this Court in Srikant Tripathi? A

The answers to these questions would to a large extent depend upon the interpretation of the earlier decisions of this Court in O.P. Garg and Srikant Tripathi.

Re : Question (i) B

12Copy pinpoint12. In 0. P. Garg, this Court struck down Rules 22(3) and 22(4) which confined the appointment to temporary posts to only promotees (Nyayik Sewa and Judicial Magistrates) held that when temporary posts under Rule 4(4) of the 1975 Rules are created as addition to the cadre, the direct recruits could not be denied their share of the quota as provided under Rule 6 of the said Rules; and as the services were comprised of three sources including the direct recruitment, there was no justification to deprive the direct recruits of their share in the temporary posts in the service. This court also struck down the first proviso to Rule 26(1 )(a). As a result this Court directed :

"We also strike down Rules 22(3) and 22(4) of the 1975 Rules but the appointments already made under these rules shall not be invalidated. We further direct thatwhile selecting candidates under Rule 18 of the said Rules the Committee shall prepare a merit of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment. We further direct that the appointments under Rules 22(1) and 22(2) of the 1975 F rules shall be made to permanent as well as to temporary posts from all the three sources in accordance with the quota provided under the said rules."

Since the recruitment to the service is from three sources, G the existence of a vacancy either permanent or temporary is the sine qua non for claiming benefit of continuous length of service towards seniority. The period of officiation/ service which is not against a substantive vacancy (permanent or temporary) cannot be counted towards H

62 SUPREME COURT REPORTS [2010] 12 S.C.R.

A seniority. While striking down first proviso to Rule 26(1 )(a) of the 1975 Rules, we hold that the continuous officiation/ service by a promotee shall be counted for determining his seniority only from the date when a substantive vacancy against a permanent or temporary post is made available in his quota under the 1975 Rules."

13Copy pinpoint13. As a consequence of striking down of the sub-rules(3) and (4) of Rule 22, the appointments already made by applying those rules had to be invalidated to the extent of 15% which was the quota of direct recruits, resulting in the reversion of those who were promoted to vacancies to which direct recruits were entitled and filling those vacancies by direct recruitment. But, this Court did not want any of the appointments already made under the sub-rules 22(3) and (4) to be invalidated. It, therefore, extended limited protection to those appointments of promotees already made to the higher temporary posts which ought to have gone to the direct recruits quota by directing that appointments already made under Rules 22(3) and 22(4) shall not be invalidated. This saved such promotees from reversion. What was saved was only their appointments and not the seniority by reason of the illegal appointments. The effect of saving the promotee from invalidation of the promotion is that he would be allowed to continue, but his seniority will be reckoned only when he is adjusted against a promotee vacancy in the next recruitment. Therefore all the consequences of striking down Rules 22(3) and 22(4) followed, the only consequence that was excluded was the invalidation of appointments already made by applying the said sub-rules 22(3) and 22(4). Such protection cannot be widened or extended, to deny the quota of direct recruits in the temporary vacancies and thereby nullify the striking of the said sub-rules. Nor can the protection against invalidation of promotion be used to exclude the number of vacancies equal to the number of officers who were given protection, while computing the vacancies to be filled by different sources. Consequently, in spite of the protection against invalidation and reversion, all the

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