NAWAL KISHORE MISHRA & ORS. ETC. v. HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH ITS REGISTRAR GENERAL & ORS. ETC.

THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

56. We are, therefore, clear of the position that what was adopted was 'reservation' simplicitor and not other consequences. Therefore, there is no question of invoking Section 3(2) of the Reservation Act, 1994 relating to consequential action to be taken if the posts of direct recruit District Judges are not filled up. Section 3(2) only prescribes as to the manner in which unfilled reserved seats are to be filled up by resorting to fresh selection in that very year and in the event of the posts still not being filled up, continue to retain the posts in the reserved category and notify the same in the subsequent years for being filled up. Such a consequence cannot be stated while applying Rule 7 of the High Court Rules which merely refers to provision for reservation and nothing more. Insofar as provision for reservation is concerned, in the absence of any Government order prescribing reservation, the only provision available is Section 3(1). Section 3(2) is only a methodology to be followed for filling up the unfilled reserved posts. As far as the said methodology in respect of the unfilled reserved posts of direct recruit District E Judges is concerned, it is governed only by Rule 8. In fact, even by applying Rule 8(2) by virtue of the proviso to the said Rule, the interest of the reserved category candidates is sufficiently safeguarded which is preserved and filled up in the selection to be made in the future years. F

57. Therefore, if we consider the adoption made by the High Court, as regards the rule of reservation, we find that what was adopted was to apply the 'RESERVATION' as provided under the Reservation Act of 1994 while filling up G the vacancies of direct recruit District Judges. In other words, the High Court chose to adopt the prescription of various percentage of 'reservation' in the Reservation Act of 1994 and stop with that. To put it differently, what was adopted by the High Court was to the limited extent of H

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A providing· the prescribed percentage of 'reservation' under Sectioh''3(1fof"Reservatioh ~Act of 1994 and nothing beyond that;·iSinC:e the principles ·laid down; in.the Constitution 13enl::h decision of this fcourt succinctly stated as;to how Articles· 233 to 235 of the Constitution· empower B the High Codrtcto maintain' its independent functionihg by allowing' its. recruitment process by prescribing· itS 'oWn limitations 'and. not to' be affected by even 'a statUto,.Y prescl-iption relating to. reservation, it. must. be ·stated fhat in order'- to erisure that the independence of institution' of. c judiciary.is s"afeguarded, such a strict ccinstrliction' of its decision···pe·rtaining to the ·rule of reservation must 'be maintained or·otheiwise, as cautioned by this Court in the Constitution Bench decision, that Would ihlpinge'upon the veryibasic1structure of the Constitution vis-a~vis 'the 0 judiciary. . ·. ': · -< •·.-

' , 58. Therefore, ,we•hold that .bY.~Virtue of the apoption of, the rule of_reservation by invoking Rule 7 wtien the fiigh Court decided -to app.ly only. to, the extent of prescribed pe,rcentage,qf,~re~ervation',fo_r. different categories, .namely, SC; ST:a.nd OBQ as prpvide.d under, Section 3(1).ofthe Reservation.Act;.1994 in.all'.otherJespects:it must t?e t]eld that it woul<,hbe governed by)ts e>;IJlln rule. namely ·the •rules of the High C::o.u~ pertaining to ttie judicial service. Al!Jhis context, a question may arise that earlier this Court ditected'the' Hlgh'Court in:jts orde·r dated'15'.11.2010 passed in ;IA 87·of 2010 to go in· for a special recruitment .in·that -vert/year.itself which was· apparently based on the prescription contained in 'Section ·3(2) of'the Act'and by. going by that' direction sh.ould it lnot be held that the said procedure should follow for-all"time to come. it Will have tci' belstated•that the·said Otdet<passed iri an lA'cannot·be taken :as a .final statement of law when the' legal' principlel has been succinctly set ·out with reference to the

NAWAL Kl SHORE MISHRA v. HIGH COURT .OF ALLAHABAD 157 THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

application of rule of reservation in so many. words in the decision of the Constit1.1tion Bench of this Court. Therefore, based on the s(!id order, it cannot be held that various other provisions contained in the Reservation Act of 1994 would get attracted. B

59. When the said legal position can· be stated without any scope for contradict.ion, what remains to be considered is the scope 9f application of Rule 6 (2) and the proviso attached to that sab-rule. In this context, we have to go by the dec.ision of this Court reported in Ashok Pat.Singh C (supra) wherein this very Rule 8(2) came up for consideration. lnJhe .said decision while considering the purport and intent of Rule 6 (2), it was held that the same was-not to·dih.ite,or. change the quota of directrecruits,Jt fu[ther .helg ttiat,,its .object is to ensure that no vacancy D re111ains unfi~ed f0r:want of adequate number of direct re9ruits ,unger;the prescribed·quota. While holding so; this Court;noted, tjlat the,r.e were reasonable chances .of adequate number, of c:an¢id<;!tes;.being; r:iotavailable for direct recruitment where.as usu(!jly.. sufficient· number·of E candidates will be available for promotion. It also' made turther clear. thatthe~proviso to· RUie 8(2)' ehs'uresthat the short fall in·quota'for ·direct· recruits ·1n~any· recruitment aces' not; get. permanently 'convertecFto' proihotee 1tjlfota 'by' providing 'that the''shorftallfahou'taitie 1nfo-decat 'the ·riexti F• recruitment! Agaih"in·,·para'40r•;tcwas··reiterated that'alP vacand~s wliich:are:H6t filtea bydireC:t recruitmentwoulcF get filled ·up by promotion a'rid th't~lt the limited '.catfy+ovef' unfilled direct recruitment vacancies 'are' iii' the manner' G1 statedjn Rule_8(2) ang the proviso theretc>-.From - ;. . I·~~- • ~ '.".:t<· · .., , ~' .~)\ ;; . ~-~·;.I• ..ll !i !U ~~'till):-1',.;: ; • what I . has .

a~r,~~PY ,b~en,,helq ,g;¥tliis 9,o!.l~·r,}trw~s.,r:\1.ad~ .flea,r that under.Rule 6(2) since the object wasJo ensure.that no : ... • '{_>1~ ~·-~- '· ~1j. -·; ,•·~:~.;·. ~· · :• ~'.-' <·-' ~lJH 1 r. . Li ;V! , . .-,< 1~ ..

v~c~l"JC:Y. ~~m~1n,~., ~rf1[led.Jqr,.'f'2n\\~.f a,d.eq~~t~;~~m.~~r of) direct recruits ·unaer the P.~T~~n_!?,~.!;t q~o.~~.. ~llff1c;~e~t H.

158 SUPREME. COURT REPORTS [2015] 3 S.C.R.

A safeguard is provided in the proviso to Rule 8(2) by which . those unfilled vacancies to be carried forward in the future years to be filled only through direct recruitment. To that extent, there is no scope for any controversy.

B 60. In the case on hand, it is not in dispute that after the special recruitment was made in respect of unfilled reserved vacancies, the High Court proceeded to fill up all the unfilled vacancies of the direct recruits in the reserved category and those posts were all filled up by promoting the members. of the Nyayik Sewa viz., in-service candidates. While referring to Rule 8(2) Mr. Dwivedi, learned senior counsel for the appellants contended that when Rule 8(2) specifically states that 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 meaning thereby the source of direct recruitment then and then alone, the High Court was empowered to look upon the members of Nyayik Sewa viz., in-service candidates for their promotion to the post of Higher Judicial Service.

61. The question raised on behalf of the appellants was that since Rule 8(2) specifically refers to the source and when the direct recruitment source candidates belonging to general category are available, only in the absence of any candidates from the general category or any other category, then alone the High Court could have resorted to filling up the unfilled vacancies of reserved category by promotees. G

62. It is well settled principle of law as has been laid down by this Court in the decision relied upon by learned counsel for the High Court, namely, the Constitution Bench decision reported in R.K. Sabharwal (supra) wherein it has been held as under in para 4:

NAWAL KISHORE .MISHRA v. HIGH COURT OF ALLAHABAD 159 THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

"No general category candidate can be appointed against a slot in the roster which is reserved for the backward class."

63. Therefore, when the posts were reserved for the SC, ST, filling up of those posts from the general category candidates would seriously affect the rule of reservation, as once the posts of direct recruit are filled up from other category candidates even the carrying forward of those vacancies as provided under the proviso to Rule 8(2) cannot be operated upon. In other words, by applying Rule C 8(2) in the event of vacancies remaining due to non- l!lvailability of the candidates of the reserved category and such vacancies were filled up by the 'in service candidates' by resorting to promotion, the proviso can be conveniently operated upon by carrying forward those vacancies in the future years in the direct recruit source and by maintaining the rule of reservation .to the extent it could not be filled up in the relevant recruitment years. If instead of resorting to promotion of 'in service candidates' those unfilled reserved vacancies are filled from the general category candidates there would be no scope for applying the proviso to Rule 8(2). Such a contingency created would run counter to the rule of reservation and, therefore, the same cannot be countenanced. F

64. We have to, therefore, hold that the High Court by adopting the Res·ervation Act, 1994 adopted the rule of reservation to the full extent provided for and as prescribed under Section 3(1) of the Reservation Act, 1994 and that in respect of any unfilled vacancies of that category, the G High Court rightly resorted to the prescription contained in Rule 8(2) by resorting to filling up of such vacancies by special recruitment in that year as directed by this Court and in the absence of not getting such vacancies filled up H

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A by.resorting to such filling up by promotion of 'in service candidates' and also.by applying the proviso to RUie 8(2) and thereby carry forward those vacancies in the· future years of recruitment. .:,;·r ,.~~ t-~ .. '-.,~·::; .:} ·~: ·:•· · ·. f

B · "<'.1.«65: Keeping. the said Jegal ·Principle relafiii'g to· applicability of Section'3(1) of.the Resef'Vation Act,• 1994 vis~a.vis Rules•? and 8(2) of the High Court.Rules in·niind, when' we c·ons1der ,the last of the• submissions :Tnade-0 on behalf:bfthe:appellants,rif mustbe'heid tliarthe· action of the :ftigh Court iti having resorted to filling•'llp of the. unfilled, reserved vacancies by taking Umbrage under Rule 8(2) was perfectly justified: The said'acti6n ·Of the·High'Court in having filled up those unfilled reserlied vacancies of'direcf rec·tuitment of·:the year 2009 was stated to have been made by· promoting tlie in·service candidates. Though we have found that such a course:adopted by the High Court was iri 'order, 1as 'th·e proviso to Rule '8(2) specifically mandates that While fixing· the number of vacancies to be allotted to th'e quota'of'direet recruitment at the:next recruitment, it•-should be 'raised accordingly.' We are of the view, without disturbing whatever promotions already made by' resorting to Rule-8(2); the High ·Gourt can be permitted. to~provide that·nurnbet of vacaneies··which•,remained· F unfilled in the year 2009 in the reserved category of direct recr~it .~9U,~C,'? by adding that number of vacancies in the recruitment to be made in the future years until such number of vacancies of unfilled reserved category pertaining to 2009 are filled. ~ ':\1 .

Gr : 1•• 66: With the above limited directions to the High Court, we 'do ·not:wish«to meddle with the promotions already made: We do not-finCI any scope for granting any relief to the:appellants/l:iS' none of•the. submissions raised on H behalfOf the appellants; WhiCh'iWere though not considered

NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 161

. THR. R.G. [FAKKIR MOHAMED fBRAHIM KALIFULLA, J.]

by the Division Bench of the High Court and which were A also dealt with by us in extenso and we find no merit. These appeals, therefore, fail and the same are accordingly dismissed.

Kalpana K. Tripathy Appeals dismissed. B