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

SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] appointments of promotees to temporary vacancies will have to be counted and adjusted against the substantive vacancies under promotee quota under the Rules. In short, the direct recruits should be given quota in the temporary posts also. Therefore, the first direction in the impugned judgment of the High Court (that vacancies occupied by promotees in excess of their quota shall be excluded from computation of respective quotas for direct recruitment and promotion) is contrary to the decision in 0. P. Garg, and cannot be sustained.

Re : Question No.(ii) c

14Copy pinpoint14. Rule 6 relates to quota for various sources of recruitment and provides the quota for direct recruitment from the Bar shall be 15% of the vacancies subject to the provision of Rule 8. Sub-Rule (2) of Rule 8 provides that if at any selection, the number of selected direct recruits available for appointment is less than the number of recruits decided by the High Court to be taken from that source, the court may increase accordingly the number of recruits to be taken by promotion from the Nyayik Sewa. The first proviso to the said sub-rule provides that the number of vacancies filled in as aforesaid under the Sub-Rule (2) of Rule 8 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 and in so doing, the percentage of direct recruits in the service does not in any case exceed 15% of the total permanent strength of the service. By the 1996 amendment to the Rules, with effect from 15.3.1996, the word total permanent was deleted and as a result the last part of the first proviso to Rule 8(2) from 15.3.1996 reads thus : "so, however, that the percentage of direct recruits in the service does not in any case exceed 15% of the strength of the service".

15Copy pinpoint15. The promotees contend that having regard to the wording of Rule 8(2) and its first proviso, there is a ceiling of H

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A 15% of the total permanent strength for direct recruits. They contend that while the appointments by direct recruitment could not exceed 15% of the strength of the service, the appointment by promotion can exceed the quota of 85%. On the other hand, the direct recruits contend that their quota is 15% of the strength B of the service. They point out that even if any shortfall in the number of selected direct recruits is filled by increasing the number of promotees, at the next recruitment, the shortfall has to be made good while fixing the number of va~ancies to be filled by direct recruits and by promotion and this showed that c their quota was 15%.

16Copy pinpoint16. Both sides relied upon the decision of this Court in O,P, Sing/a vs. Union of India - (1984) 4 SCC 450, in support of their respective contentions. While the promotees relied upon para 16 of O.P. Sing/a to contend that the Rules refer to the D 15% as a ceiling for appointment of direct recruits and there is no obligation to fill 15% of the vacancies with direct recruits, direct recruits relied upon para 17 of O.P. Sing/a, to contend that the Rules prescribe a quota of 15% for direct recruits. We extract below the relevant observations from 0.P. Sing/a : E "16. Logically, we must begin this inquiry with the question as to the interpretation of the proviso to Rule 7. Does that proviso prescribe a quota or does it merely provide for a ceiling ? In other words, does the proviso require that, at any given point of time, 1/3rd of the substantive posts in F the Service shall be reserved for direct recruits or does it only stipulate that the posts held by direct recruits shall not be more than 1/3rd of the total number of .$Ubstantive posts in the Service ? The proviso reads thus: G Provided that not more than 1/3rd of the substantive posts in the Service shall be held by direct recruits.

This language is more consistent with the contention of the promotees that the proviso merely prescribes, by way of H imposing a ceiling, that the direct recruits shall not hold

(~SHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 65 SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] more than 1/3rd of the substantive posts. Experience A shows that any provision which is intended to prescribe a quota, generally provides that, for example, "1!3rd of the substantive posts shall be filled in by direct recruitment." A quota provision does not use the negative language, as the proviso in the instant case does, that "not B more than" one-third of the substantive posts in the Service shall be held by direct recruits.

17Copy pinpoint17. If the matter were to rest with the proviso, its interpretation would have to be that it does not prescribe C a quota for direct recruits : it only enables the appointment of direct recruits to substantive posts so that, they shall not hold more than 1/3rd of the total number of substantive posts in the Service. However, it is well recognised that, when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One D must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter-related provision becoming otiose or devoid of meaning. That makes it necessary to call attention to the very next rule, namely, Rule 8. It provides by Clause 2 that:

The seniority of direct recruits vis-a-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. G This provision leaves no doubt that the overall scheme of the rules and the true intendment of the proviso to Rule 7 is that 1!3rd of the substantive posts in the Service must be reserved for direct recruits. Otherwise, there would H

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A neither be any occasion nor any justification for rotating vacancies between direct recruits and promotees., Rule 8(2), which deals with fixation of seniority amongst the members of the Service, provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the B proviso prescribes "quotas" and reserves vacancies for both categories. The language of the proviso to Rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for direct recruits. But the proviso, as I have stated earlier, must be read along with Rule 8(2) c since the two provisions are inter-related. Their combined reading yields but one result, that the proviso prescribes a quota of 1/3rd for direct recruits."

(emphasis supplied)

D 17. Whether the Rules provide for a specific fixed quota for the direct recruits or whether they merely indicate the ceiling for the appointment by direct recruitment would therefore depend on the wording of the Rules. Rule 6 provides a specific quota of 15% of the vacancies for direct recruits. But as rule 6 E provides that the same shall be subject to the provision of Rule 8, the question is whether rule 8 modifies the quota of direct recruits from '15% of the vacancies' to 'not more than 15% of the vacancies'. Rules 6 and 8 were interpretated in Srikant Tripathi thus : F "The recruitment to the service has to be made, both by direct recruitment and by promotion and promotion could be made from amongst the confirmed members of Uttar Pradesh Nyayik Sewa, who have put in, not less than seven years of service and also from out of the dying cadre G of the U.P. Judicial Officers Service. Rule 6 which is subject to Rule 8 and provides for the quota for various sources of recruitment, unequivocally indicates that 15% of the vacancies would be, by direct recruitment from the Bar, 70% of the vacancies from the Uttar Pradesh Nyayik H

ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 67

SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] Sewa and 15% from Uttar Pradesh Judicial Officers A Service. Under the second proviso to Rule 6, when the strength in the cadre of Judicial Magistrate gets completely exhausted and no officer from that cadre is available, then the vacancies in the cadre of Higher Judicial Service have to be filled up by 15% from the direct recruitment from the B Bar and 85% from Uttar Pradesh Nyayik Sewa.

On fixation of the number of officers to be taken at the recruitment under sub-rule (1) of Rule 8 from different sources and after taking recourse to the procedure contained in Part IV for making direct recruitment to the C service in respect of the vacancies advertised, if selected direct recruits for appointment become less than the number decided by the Court to be recruited, then it would be open for the Court to correspondingly increase the number of recruits to be taken by promotion from Nyayik D Sewa. But under the proviso, while fixing the number of vacancies to be allotted to the quota of direct recruits at /the next recruitment under sub-rule (1) of Rule 8, the quota has to be raised to the extent the number was not available in the earlier recruitment. But that raising of number would in no case exceed 15 percent of the strength of the service. It may be noted that while the rules prohibit that under no situation, the number of direct recruits would exceed 15 percent of the cadre strength, there is no prohibition so far as promotees are concerned and, therefore, in a given situation, the rule contemplates of having promotees more than the quota fixed for them viz. 85 per cent. As we have stated earlier, this issue has not cropped up in the present batch of cases and as such, we need not further probe into the matter. But it must be remembered that the rules only provide the embargo that under no circumstances the Direct Recruits would exceed the 15% of cadre strength. But that does not compel the High Court to recruit 15% of the vacancies by direct H

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

A recruitment at every recruitment."

(Emphasis supplied)

18Copy pinpoint18. Though the Rules do not compel the High Court to recruit 15% of the vacancies by direct recruitment at every recruitment, they require the High Court to take note of any shortfall in the number of direct recruits at recruitment, during the next recruitment by raising the quota correspondingly. Thus when the first proviso to Rule 8(2) uses the words that the "percentage of direct recruits in the services does not in any case exceed 15%", the intention is to ensure that the direct recruits maintain their quota of 15%, that is, while doing adjustments in fixing the number of vacancies to be filled by direct recruitment at a subsequent recruitment to make good the shortfall at a previous recruitment to maintain 15%, the quota of direct recruit be exceeded. This means that the quota of direct recruits is 15% of the strength of the service. The entire purpose of the exercise is to maintain the 15% quota of the direct recruits. To conclude, the following clear indicators show that the quota of direct recruits is '15%' and not "upto 15%": E (a) Rule 6 uses the words "15% of the vacancies" as the quota of direct recruits and does not use the words "not more than 15% of the vacancies".

(b) The purpose and intent of Rule 8(2) is not to dilute or change the quota of direct recruits. Its object is to ensure that no vacancy remains unfilled for want of adequate number of direct recruits under their 15% quota. This is because there are reasonable chances of adequate number of candidates being not available for direct recruitment, whereas usually sufficient number of candidates will be available for promotion. The first proviso to Rule 8(2) ensures that the shortfall in 15% quota for direct recruits in any recruitment does not get permanently converted to promotee quota, by providing that the shortfall shall be made good at the next recruitment. The words

ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 69

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

"does not in any case exceed 15%" are used to further ensure that while making good the shortfall of direct recruits at the next recruitment, the direct recruits do not encroach upon the quota of promotees.

(c) The provision for appointment to the service by 8 rotational system (that is Rule 22(2) providing that the first vacancy to be filled from the list of Nyayik Sewa Officers and the second vacancy to be filled from the list of direct recruits and so on), makes it clear that the overall scheme of the Rules is to provide a clear 15% quota for direct recruits.

19Copy pinpoint19. Let us illustrate with a case where the quota of direct recruits at a recruitment with reference to available vacancies, was 20 and only 10 direct recruits were available. Having regard to the Rule 8(2), the remaining 10 vacancies need not be kept unfilled. They can be filled by promotion. However, the High Court while determining the quota of direct recruits at the next recruitment, will take note of the shortfall of 10 in direct recruitment, at the earlier recruitment and correspondingly increase the quota of direct recruits. This means while fixing the vacancies to be filled by direct recruits at a recruitment, the fact that lesser number of direct recruits were appointed at the last recruitment has to be taken note of and the vacancies to be filled by direct recruits is to be increased to cover the previous shortfall. But such adjustment should be done in such F a manner, that the total direct recruits in the service do not exceed 15% of the strength of the service. This is conveniently done by calculating the total entitlement of direct recruits (that is 15% out to the total strength), finding out the actual posts occupied by direct recruits and calculating the difference which G will be the entitlement of direct recruits. As a result, the shortfall is made up by increasing the posts to be filled by direct recruitment. Therefore when there has been a shortfall in direct recruits in an earlier recruitment, the number fixed for direct recruits at a subsequent recruitment will necessarily exceed H

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

A 15% of the vacancies for which the subsequent recruitment is being held, by reason of the fact that the earlier shortfall is required to be fi lied.

20Copy pinpoint20. Rule 8 clarifies that direct recruits are entitled to 15% quota not only in the vacancies to be filled, but also 15% in the 8 strength of the service. The Rules also make it clear that when a shortfall in a particular recruitment is made up at the next recruitment, there is no question of the direct recruits appointed to the shortfall vacancies claiming seniority over the promotees who filled the shortfall post of direct recruits at the pr.evious recruitment. Though the shortfall is made good at the next recruitment, the question of seniority will be governed by Rule

26. No direct recruit at a subsequent recruitment can claim that as he is being appointed against a direct recruitment vaoancy of previous recruitment, his seniority should be reckoned from any date earlier to the date of his joining the service.

21Copy pinpoint21. Thus though the quota of direct recruits is fixed, there is flexibility in fixing the vacancies to be filled by direct recruitment and vacancies to be filled by promotion. The High E Court can make adjustments in fixing the number of officers to be appointed by promotion and direct recruitment as shown in Rule 8(2) and the provisos thereto ensuring that the number of direct recruits does no exceed 15% of the total strength of the service.

F Re : Question No.(iii)

22Copy pinpoint22. The Division Bench of the High Court has accepted the contention of the promotees that while applying the ratio of the judgment in O.P. Garg and distributing the permanent and temporary vacancies, the allocation of 15% vacancies of the direct recruits quota should be further subjected to the ceiling of 15% of the permanent strength of service, till the 1996 amendment to the Rules came into effect (on 15.3.1996). The promotees further contend that Rule 6 provides for quota for direct recruits as 15% of the vacancies subject to the provisions

ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 71

SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] of Rule 8; that Rule 8 provided that the percentage of direct recruits should not exceed 15% of the permanent strength of the service; and that therefore the quota of direct recruits could not exceed 15% of the permanent strength of the service (excluding temporary posts) till 15.3.1996. B

23Copy pinpoint23. In OP.Garg, this court held as follows in regard to entitlement of direct recruits for a quota in the temporary posts

"24. We agree with the above findings and accept the position that the service consists of permanent as well as temporary posts. The substantive vacancy has not been defined under the 1975 Rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. 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. Appointments under Rule 22 of the 1975 Rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre strength the appointment against the said post has to be treated as substantive appointment."

"29. Recruitment to the service under the 1976 Rules is from three sources and is based on quota as provided therein. The cadre consists of permanent as well as temporary posts. We have already interpreted the seniority rule to mean that the seniority of the direct recruit is to be determined from the date of his joining the service and that of promotee on the basis of continuous officiation/service from the date when a vacancy whether permanent or temporary, becomes available in his quota. With these characteristics of the service it is obligatory that there should be equality of opportunity to enter the service for all the three sources of recruitment. The seniority in the H

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

A service is consequential and dependent on appointment. If the recruitment rule gives unjustifiable preference to one source of recruitment the seniority rule is bound to become unworkable. The object of having recruitment from different sources is to have a blended service to create healthy B competition and in the process achieve efficiency. If one of the sources of recruitment is dealt with unevenly under the Service Rules the said objective cannot be fulfilled. The 1975 Rules permit appointment to temporary vacancies in the service by promotion and from the judicial service. No c direct recruitment to the temporary vacancies is provided under the said rules ......... "

.... We see no justification in not applying the quota rule to the temporary posts in the service and confining appointments to said posts to the two sources of promotees. This Court in A.K. Subraman vs. Union of India - 1975 (1) SCC 319, held as under:

'The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary, included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) ... .'

31. This Court in P. S. Mahal vs. Union of India - 1984 (4) sec 545, held as under: F 'It is therefore obvious that if a vacancy arises on account of an incumbent going on leave or for training or on deputation for a short period, it would be a fortuitous or adventitious vacancy and the quota rule would not be attracted in case of such a vacancy. But where a vacancy arises on account of the incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the person promoted to fill such vacancy having to revert, the vacancy would be subject to the quota rule ..... It is, therefore, apparent that what has to be

ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 73

SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] considered for the applicability of the quota rule is a A ,(yacancy in a post included in the sanctioned strength of 'the cadre .... .'

"32. When temporary posts under Rule 4(4) of the 1975 Rules are created as addition to the cadre we see no 8 justification to deny the direct recruits their share of the quota as provided under Rule 6 of the said rules. Rule 5 of the 1975 Rules specifically lays down that recruitment to the service shall be made from three sources including the direct recruits. Rule 6 fixes the quota for various sources of recruitment to the service and allocates 15 per cent of the posts in the service to the direct recruits. Rules 5 and 6 read with Rule 22(2) provide for appointments to the service in accordance with quota. These rules have to be read homogeneously and as a part of the same scheme. The service having comprised of three sources including the direct recruitment there is no justification to deprive the direct recruits of their share in the temporary posts in the service. Unless the direct recruits are given their due quota in the temporary posts the seniority rule cannot operate equitably. We see no justification whatsoever in having Rules 22(3) and 22(4) of the 1975 Rules which deprive one of the sources of recruitment the benefit of appointment to the temporary posts. The rules on the face of it are discriminatory. There is no nexus with the object sought to be achieved by framing the abovesaid rules. We, therefore, strike down Rules 22(3) and 22(4) of the 1975 Rules being discriminatory and violative of Articles 14 and 16 of the Constitution of India. We, however, direct that the appointments already made under these rules [Rules 22(3) and 22(4)] shall not be invalidated on this ground. We further direct that while selecting candidates under Rule 18 the Committee shall prepare a merit list 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) H

74 SUPREME COURT REPORTS [2010} 12 S.C.R.

A and 22(2) of the Rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the 1975 Rules."

24Copy pinpoint24. The division bench of the High Court has accepted the 8 contention of the promotees that while applying the ratio of the judgment in OP.Garg and distributing temporary as well as permanent vacancies, the allocation of 15% vacancies as the quota of direct recruits under Rule 6 of the Rules has to be subjected to a ceiling of 15% of the permanent strength of the service till the amendment in the Rules came into effect (on 15.3.1996). In OP. Garg this court held that the various rules will have to be homogenized as parts of the same scheme; that as the service was comprised of three sources including direct recruitment, there is no justification to deprive the direct recruits of their share of temporary posts in the service; that unless the direct recruits are given their due quota in the temporary posts, the seniority rule cannot operate equitably; that Rules 22(3) and 22(4) providing that appointment for temporary vacancies shall be made only from among the members of Nyayik Sewa/ E Judicial Magistrates were discriminatory and appointments under Rules 22(1) and 22(2) shall have to be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the Rules. In spite of the said decision by the three Judge Bench of this court, the promotees have been contending that the percentage of direct recruits in the service should not exceed 15% of the permanent strength of the service till the amendment to the Rules with effect from 15.3.1996, in view of ·the fact that this court in OP.Garg while striking Rules 22(3) and 22(4) did not strike down the word "permanent" occurring in the first proviso of Rule 8(2) which provided: "so, however that the percentage of direct recruits in the service does not in any case exceed 15% of the total permanent strength of the service." The words "total permanent" were omitted from the first proviso to Rule H 8(2) only by the amendment Rules of 1996 with effect from

ASHOK PAL SINGH AND ORS. v. U,P. JUDICIAL 75 SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] 15.3.1996. A

25Copy pinpoint25. If Rule 8(2) is to be read in the manner suggested by the promotees, it would nullify the decision in O.P. Garg which held that the direct recruits were entitled to 15% quota not only in the permanent strength of the service but also in the 8 temporary posts. This court in O.P. Garg, apparently did not strike down the word "permanent" in the latter part of the first proviso to Rule 8(2) while striking down Rule 22(3) and 22(4) as it apparently assumed th!'lt rule 8(2) and the first proviso thereto were applicable only in a contingency referred to in Rule C 8(2). The rule making authority rightly understood the decision and proceeded on the basis that if sub-rules (3) and (4) of Rule 22 were invalid and the direct recruits were entitled to 15% quota even in the temporary posts, then the word "permanent" should be deleted in the first proviso to Rule 8(2). That is why the rule making authority while substituting Rule 22 in the rules D in 1996 in pursuance of the decision in O.P. Garg striking down sub-rules (3) and (4) of Rule 22, simultaneously deleted the words "total permanent" from the words "total permanent strength of service" in the first proviso to Rule 8(2). The amendment to the first proviso to Rule 8(2) omitting the words E 'total permanent' is clearly a clarification/reiteration of the position which prevailed as a result of the decision in O.P. Garg.

26Copy pinpoint26. The Division Bench of the High Court has proceeded F on the basis that this Court in O.P. Garg had no occasion to consider, nor considered the first proviso to Rule 8(2) which provided the ceiling for direct recruitmen~; and therefore the ceiling was 15% of the "permanent strength of the service" and not cadre strength of the service till the amendment to the Rules G with effect from 15.3.1996. The said interpretation put forth by the promotees which found favour with the division bench of the. High Court, is untenable as it would amount to ignoring the law laid down in O.P. Garg and nullifying the directions in O.P. Garg holding that direct recruits are entitled to 15% quota even in H

76 SUPREME COURT REPORTS (2010] 12 S.C.R.

A temporary posts. The proviso to Rule 8(2) should be read in the context of the quashing of Sub-Rules (3) and (4) of Rule 22. If so read, it would be clear that when Sub-Rules (3) and (4) of Rule 22 were struck down holding that direct recruits were entitled to a quota in temporary posts also, the word B "permanent" in the first proviso to Rule 8(2) is deemed to have been impliedly struck down or omitted by the decision in O.P. Garg. As the quota of direct recruits is 15% of the strength of the service, the number of appointments of direct recruits might have never exceeded their qu0ta. Therefore, t.he second c direction of the Division Bench in the impugned judgment cannot be sustained.

Re : Question No. (iv)

27Copy pinpoint27. Direction No.3 in Srikant Tripathi is to the effect that if in each recruitment year posts were available in the quota of promotees and promotions were not made even though selections had been made under Rule 20 then the legitimate right of the promotees cannot be denied and promotions must be made with effect from the date they should have been appointed. On the other hand, the third direction of the Division Bench of the High Court in the impugned order is that while undertaking an exercise as per its second direction as to whether direct recruits taken into service or in excess of the quota or not, a simultaneous exercise has to be done in compliance with direction No.3 in Srikant Tripathi and vacancies of the quota of promotees ·shall be deemed to have been filled up from the date they were entitled to promotion.

28Copy pinpoint28. The first part of the third direction in the impugned order depends upon the result of the exercise undertaken in pursuance of its second direction. We have held that directions 1 and 2 in the impugned order of the High Court are contrary to the decision in O.P.Garg. In view of it, the question of undertaking any exercise as per the second direction of the impugned order does not arise. All that therefore remains out H

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

of the th_ird direction in the impugned order is reiteration of A direction No.3 of Srikant Tripathi. The third direction in the impugned judgment to the extent it reiterates direction No.3 in Srikant Tripathi has to be upheld. There is no question of unfilled vacancies being carried forward for the purpose of fixing the number of officers to be taken at the next recruitment. The B total vacarteies to be filled at a recruitment shall have to be filled by applying sub-rules (1) and (2) of Rule 8 and its provisos. In that sense all vacancies, which are not filled by direct recruitment, get filled by promotion and there will be no carry over. There is only a limited 'carry over' of unfilled direct c recruitment vacancies in the manner stated in the Rule 8(2) and the first proviso thereto.

29Copy pinpoint29. We may illustrate the effect of the directions in Srikant Tripathi with reference to the figures arrived at in the Report of the Sub-Committee, abstract of which is given in the Table in paragraph 6 above (by assuming that the figures specified are correct). For 1988 recruitment, the vacancies are shown as 314, the actual recruitment is shown as 24+3 by direct recruitment and 191 by promotion and the carried forward unfilled vacancies as 96. If there were 314 vacancies and what is filled by direct recruitment was 27, the remaining 287 vacancies should be filled up by promotions instead of 191 having regard to Rule 8(2). There is no question of any vacancies being carried forward for 1990 recruitment, unless sufficient numbers of candidates are not available for filling the posts even by promotion also. Therefore the vacancies to be filled in 1990 (with the expected vacancies up to 31.12.1992) should be treated as only 44 of which promotees' share would be 37 and share of direct recruits would be 7. As only 5 were appointed by direct recruitment, the remaining 39 ought to be filled by promotion. In regard to 1998 recruitment, if 15% of strength of ·the service is 120 and the number of direct recruits actually working were only 82, there is nothing wrong in directly recruiting 38 out of the actual vacancies of 176. We have given these examples with reference to the figures given by the Sub- H

78 SUPREME COURT REPORTS (2010] 12 S.C.R.

A Committee in its Report and it should not be assumed that the figures given by the sub-committee have been accepted by us to be correct. In fact the figures may have to be re-worked with reference to the other directions of the High Court which have been upheld by us. Be that as it may.

B Conclusion

30Copy pinpoint30. The 1975 Rules are vague and complicated. The four rounds of litigation are the result of absence of clear and simple Rules. The High Court administration had the difficult task of C harmonizing the Rules, the directions of this Court in O.P. Garg and the directions of this court in Srikant Tripathi. The High Court Sub-Committee apparently made a sincere effort to implement the Rules and the directions. Unless the exercise by the High Court through its Sub-Committee (approved by the Full D Court of the High Court), is arbitrary or is in non-compliance with any specific direction of this Court, it will not be open to question. Be that as it may.

31Copy pinpoint31. In view of our aforesaid findings, we allow these appeals in part as follows :

(i) Direction Nos. (1) and (2) in para 55 of the impugned order dated 25.8.2004 are set aside;

(ii) Direction No.(3) in para 55 of the impugned order dated 25.8.2004 is restricted to reiteration of direction No.3 issued in Srikant Tripathi (2001 (10) sec 237); and (iii) Direction Nos. (4), (5) and (6) in the impugned order dated 25.8.2004 are upheld. G (iv) The consequential exercise directed by the High Court should be restricted to the directions which have been upheld.

H (v) None of the appointments already made to the

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

Higher Judicial Service, whether by direct A recruitment or by promotion, shall be annulled, but shall be continued, even if the appointment is found to be in excess of the quota, subject to the condition that the seniority of such excess appointee, will be reckoned from the date on which, he becomes 8 entitled to be adjusted at the subsequent recruitment/s. Any elevation to the High Court on the basis of seniority already given shall also not be affected.

We request the High Court to give a quietus to the long- c drawn dispute, by giving effect to direction nos.(4) to (6) of the impugned order and direction no.(3) in Srikant Tripathi, without any delay.

All pending applications stand disposed 1 of. '

8.8.8. Appeal partly allowed.