Important point
The High Court must adhere to time – frame as well as the process of selection and appointment laid down in U.P. Higher Judicial Service Rules, 1975 to avoid disputes between direct recruits and the promotees in the hierarchy of higher Judicial Service in the State of U.P. in the light of directions given in this judgment

Headnote:(i) Constitution of India—Articles Proviso to Article 309 r/w Article 233 and 32—U.P. Higher Judicial Service Rules, 1975—Dispute between the direct recruits and the promotees in the Cadre of U.P. Higher Judicial Service comprising of posts borne in Class I in different recruitment years of 1988, 1990, 1992, 1998 and for future appointments—Seven directions based on interpretation of Rules and conclusions arrived at on that interpretation.
       Held : In view of our conclusions already arrived at, we dispose of all these cases with the following directions :
       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, 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.
       4. This exercise has to be made for the recruitment of 1988 as well as for each subsequent recruitment that has been made.
       5. Since the determination under Rule 8 is being made now, pursuant to the directions of this Court, in respect of 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.
       6. 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.
       7. 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 by filling up the same expeditiously. The number of vacancies available for the direct recruits quota must be advertised without any variation clause. The Select List prepared both for direct 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. (Para 40)
       (ii) U.P. Higher Judicial Service, Rules, 1975—Rules 3(c), 4, 6, 8, 17, 20, 21, 22—Hierarchy of Judicial Service in U.P.—Recruitment Rules—Interpretation of Rules.
       Held : The hierarchy in the Judicial Service of the State is that the Civil Judge (Junior Division) is the lowest and the next promotional post is Civil Judge (Senior Division), whereafter is the post of Additional District Judge and finally the District Judge. Under the Recruitment Rules, more particularly in Rule 8, the Court is required from time to time, but not later than 3 years from the last recruitment, to fix the number of officers to be taken at the recruitment, keeping in view the vacancies then existing, and likely to occur in the next 2 years. Rule 6, which is subject to Rule 8, and which provides for quota for various sources of recruitment stipulates that 15 of the vacancies would go for direct recruitment from the Bar, 70 of the vacancies would go for promotion from Nyayik Sewa, and 15 would go by promotion from U.P. Judicial Officers Service. Second proviso to Rule 6 further provides that when the strength in the cadre of Judicial Magistrate gets completely exhausted and suitable candidates are not available or no candidate remains available, then the entire 85 of the vacancies could be filled up from the promotion from amongst the members of U.P. Nyayik Sewa. (Paras 6 & 7)
       So far as the interpretation of the rules are concerned, under sub-rule (2) of Rule 4, the strength of the service has to be determined from time to time by the Governor, in consultation with the Court, which means, as defined under Rule 3(d) to be the High Court of Judicature at Allahabad. The permanent strength of the service must be, as specified in Appendix ‘A’ in view of sub-rule (3) of Rule 4. 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 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 Sewa and 15 from Uttar Pradesh Judicial Officers 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 Bar and 85 from Uttar Pradesh Nyayik Sewa. Rule 7 provides reservation of posts for Scheduled Caste etc., and reservation has to be made in accordance with orders of the Government for reservation in force at the time of recruitment. Rule 8 is the provision which requires the Court to fix the number of officers to be taken at the recruitment, keeping in view the vacancies then existing and likely to occur in the next two years. Though the effect of the carry forward under proviso to sub-rule (2) of Rule 8 is in fact not an issue in this batch of cases, but since the rules relating to recruitment to the Higher Judicial Service from different sources are being considered, we think it appropriate also to deal with the proviso to sub-rule (2) of Rule 8. 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 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 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 per cent 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 per cent 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 recruitment at every recruitment. It would be for the High Court to decide taking all relevant factors into consideration, and ordinarily it may follow the quota provided in Rule 6. (Para 17)
       A combined reading of different rules, discussed above, therefore, leads to the conclusion that for smooth functioning of the service as well as for efficient management of the cadre, after the Court fixes the number of officers to be taken at any recruitment under sub-rule (1) of Rule 8 and then makes the allocation in favour of different sources of recruitment, as provided in Rule 6, steps should be taken for filling up of those vacancies, strictly in accordance with the prescribed procedure in Chapters IV, V and VI, by the eligible persons so that there will not be any heart burning amongst the employees. The Higher Judicial Service forms the back-bone of the judicial system and strengthening of such service with efficient people is a solution against the malady of long pending litigation in the subordinate Courts. Any discontentment amongst the members of the Judicial Service, on account of inaction on the part of the High Court, either in the matter of fixing the number of officers to be taken by way of recruitment under Rule 8 or selecting the persons for promotion by adopting the criteria of seniority-cum-merit, as provided in Rule 20 as well as Rule 21 should be avoided and the High Court must adhere to the time-frame as well as the process of selection and appointment from different sources, which alone would subserve the smooth functioning of the cadre of Higher Judicial Service. (Paras 21 and 22)
       (iii) U.P. Higher Judicial Service Rules, 1975—Recruitment for year 1988—Whether the High Court has discharged its obligation in accordance with Rules or has committed any mistake.
       Held : Mr. Srivastava, learned counsel appearing for the High Court, however, fairly concedes that the High Court had made the calculation on the basis of percentage of the cadre strength. This, on the face of it, is unsustainable, in view of the clear and unambiguous language in Rule 6, as we have discussed earlier. The very basis of calculation being incorrect, necessarily, it has resulted in gross injustice. (Para 23)
       Held also : At any rate the Selection Committee, constituted under Rule 16 by the Chief Justice has to discharge its function of scrutinizing the applications and holding of such examination, as it may consider necessary for judging the suitability of the candidates and it may call for interview such of the applicants, who in its opinion have qualified for interview and thereafter, assess the merits of the candidates, having regard to the guidelines indicated in sub-rule (2) of Rule 18. It would not have any jurisdiction to consider the question of determining the number of vacancies available for direct recruits nor could it enhance or reduce the number of vacancies, already determined by the Court under Rule 8. In the case in hand, the conceded position being that it is the Selection Committee, who determined the number of posts available for being filled up by direct recruitment, on account of the judgment of this Court in Garg’s case, holding that the quota available in favour of direct recruits in Rule 6 would also apply to the temporary vacancies, such determination must be held to be not in accordance with the Rules. (Para 24)
       Held further : The grievance of the promotees, appears to be that the procedure for recruitment by promotion under Rule 20 had not been adhered to, though the Court was taking steps to fill up the quota meant for direct recruits in the service. Such inaction, would undoubtedly bring an imbalance in the cadre. Unless the Court is unable to select suitable candidates, applying the criteria of seniority-cum-merit for being promoted to the post in Superior Judicial Service, there is no reason why the Court should not adhere to the procedure for recruitment by promotion, contained in Chapter V and prepare the list of eligible candidates for promotion and forward the same to the Governor, so that the Governor can make appointment to the Superior Judicial Service under Rule 22. (Para 25)
       But held : The two writ petitions filed under Article 32 in relation to the recruitment meant for the year 1988 with the prayer that the appointments already made of direct recruits beyond the advertised posts should be quashed and a fresh process of recruitment should be started for filling up of the quota meant for direct recruits, must be outright rejected inasmuch as we do not propose to annul any appointment already made and our sole object is to interpret the relevant Rules and require the High Court to act in accordance with the said interpretation. (Para 28)
       Held therefore, we need not make an in-depth inquiry into the legality of the aforesaid judgment, as in our view, the Court also committed the same mistake of determining the quota at 15 of the total sanctioned strength of the cadre. The determination made by the Full Bench to the effect that for the recruitment of 1990, 13 more direct recruits ought to be taken is annulled and the percentage has to be recalculated, on the basis of the interpretation given by us to the Rules. The promotees, who have been allowed to continue on ad hoc basis, shall continue as such, till the High Court determines their quota, on the basis of available vacancy position, whereafter, necessary adjustment can be made. (Para 30)
       Held consequently : We do not propose to examine various contentions raised, as in our view, the very calculations to find out the available vacancies at the time of recruitment as well as the anticipated vacancies in the two succeeding years, were arrived at on an erroneous basis. By calculating 15 of the total strength of the cadre as the quota for direct recruitment, the High Court acted contrary to Rule 6 and, therefore, any direction in relation to filling-up such number of posts, would be contrary to law. The ultimate direction we propose to issue in these cases would be one for re-calculation and re-adjustment and consequently, we are not called upon to decide the points raised by Mr. Rao. (Para 32)
       (iv) U.P. Higher Judicial Service Rules, 1975—Recruitment for year 1988 and 1990—Wait list candidate—Whether could be appointed for the recruitment of year 1990? (No)—Case law discussed.
       Held : The question whether a wait listed candidate like Avinash Kumar Sharma, for the recruitment of 1990, was an issue before the Full Bench of Allahabad High Court. The High Court did not grant the relief to the wait-listed candidate and on the other hand, requested the Chief Justice of the High Court to take necessary steps for formation of a Selection Committee, so that appropriate number of candidates be interviewed for the 13 posts of direct recruitment to the Higher Judicial Service. The aforesaid request of the Full Bench, tantamounts to have a fresh process of selection with the constitution of a Selection Committee under Rule 16 and necessarily, therefore, the claim of a wait-listed candidate for being appointed, stood negatived. This decision of the Full Bench has not been assailed in any higher forum and has become final. It would, therefore, be difficult for us to accept Mr. Rao’s contention that in view of the vacancy position, the wait listed candidate could be appointed for the recruitment of the year 1990. (Para 33)
       After referring to case law
       Held : We, do not find any infirmity with the order of the Division Bench of the Allahabad High Court dated 24.3.1999, which is the subject matter of challenge in Civil Appeal Nos. 1657 of 2001 and 1656 of 2001. The two writ petitions filed under Article 32 of the Constitution, viz. Writ Petition Nos. 97 of 2000 and 460 of 1999, challenging the Full Court Resolution dated 11.7.1998, stand disposed of accordingly. (Para 34)
       (v) U.P. Higher Judicial Service Rules, 1975—Claim advanced on behalf of handicapped persons—Left open.
       Held : In course of arguments, certain claims had been advanced on behalf of a handicapped person. The rules in question, nowhere make any provision for a handicapped person, but we do not like to examine this issue and express any final opinion, since we are told that a review petition has been filed and is pending before the High Court. (Para 35)
       (vi) U.P. Higher Judicial Service Rules, 1975—Recruitment for years 1992-1994—Interpretation of expression "the vacancies likely to occur in the next two years" in Rule 8(1)—High Court’s interpretation modified—Interpretation of Rule 6—High Court’s mistake corrected—Direct writ petitions—No relief can be given—Position of candidate in OBC class explained.
       Held : For the recruitment of 1992, covering the period 1992 to 1994, an advertisement had been issued for 19 direct recruits. When writ petitions were filed in the High Court, assailing the calculation to find out how many posts should be available for direct recruits, the Division Bench of the Allahabad High Court disposed of those writ petitions by Judgment dated 10th of May, 2000, and the Division Bench in the impugned judgment, ultimately came to the conclusion that 31 vacancies were available for being filled up by direct recruitment. The said judgment is under challenge in Civil Appeal Nos. 1658-1662 of 2001 at the behest of the High Court as well as in Civil Appeal Nos. 1663 of 2001 and 1664-1668 of 2001 at the behest of the persons, who have been empanelled and claimed to be appointed against direct recruit quota. Writ Petitions under Article 32 have been filed by Munna Lal and Mehi Lal, contending inter alia, that the High Court committed error, in not taking into account the vacancies likely to have occurred in the next two years and they are entitled to be appointed. The aforesaid Division Bench judgment of Allahabad High Court, requires little consideration, in view of the interpretation given to the expression "the vacancies likely to occur in the next two years", in Rule 8(1) of the Rules. The High Court in the impugned judgment has come to the conclusion that the vacancies on account of death, compulsory retirement, voluntary retirement, removal, dismissal and appointment of officers as Judge of the Allahabad High Court, could also come within the expression "vacancies likely to occur in the next two years". This concept is wholly unsustainable inasmuch as nobody can anticipate as to how many people would die or how many would compulsorily be retired or removed or dismissed or even would be elevated to the High Court. The expression "vacancies likely to occur in the next two years" would obviously mean the vacancies, which in all probability, would occur. In other words, it can only refer to the cases when people would superannuate within the next two years. The difficulty has arisen because of the fact that the High Court is fixing the number of officers to be taken for the recruitment of 1990 in the year 1992 or 1994 and so on and so forth for the next recruitment. If the vacancy position is calculated, at the end of the block-period, then the expression "vacancies likely to occur in the next two years" would become redundant and in such a case, the vacancies actually existing for the period, will have to be taken into account. The expression "vacancies likely to occur in the next two years" will operate only, when the High Court decides for the recruitment of 1988 in 1988 and then takes into consideration the anticipated vacancies in 1989 and 1990. The enunciation of law made by the High Court in the impugned judgment, therefore, cannot be sustained, so far as, it relates to interpretation of the expression "vacancies likely to occur in the next two years" in Rule 8(1). Then again, the Division Bench of the Allahabad High Court has committed the self-same mistake by holding that under Rule 6, the quota ought to have been worked out on the total cadre strength and thereafter, the vacancies would be apportioned by granting 15 to the direct recruits. As we have already interpreted Rule 6, the position is clear that the Court will have to find out the number of vacancies available for a given recruitment year under Rule 8(1) and then applying the quota under Rule 6, determination has to be made as to how many of those vacancies would go for direct recruitment and how many for promotion. On this score also, the impugned judgment must be held to be contrary to law and the determination made as to the posts available for direct recruitment as well as for promotion, must be held to be erroneous and cannot be sustained. Necessarily, therefore, the ultimate direction contained in the judgment, cannot be given effect to. So far as the direct writ petitions filed by the wait-listed candidates are concerned in relation to the recruitment of 1992-1994, at the outset, it must be stated that their case is based upon a re-calculation of the number of vacancies, which can be filled up by direct recruitment by an application of the percentage provided in the quota of direct recruitment under Rule 6. Since the calculation itself had been made on erroneous basis, as already stated, the question of a wait-listed candidate getting any right to be appointed, does not arise. That apart, the advertisement itself had been issued in the year 1996 and the challenge has been made by filing writ petitions under Article 32 in 1999. No reason has been given, as to why they did not assail the advertisement for more than three years. An applicant, whose name appears in the wait list, does not get an enforceable right for being appointed to a post and particularly, in a situation like the case in hand, where the determination of the number of vacancies available for recruitment as well as the respective quotas available have not been done in accordance with the rules. That being the position, no relief can be granted to such applicants. One applicant, belonging to O.B.C. Class had approached this Court and Mr. Srivastava, the learned senior counsel, appearing for him contended, that if 100 point roster is applied correctly, then his client would be entitled to be appointed. This contention also is based upon an erroneous impression about the application of the roster. The principle of application of roster has been explained by this Court in the case of R.K. Sabharwal and Ors. v. State of Punjab and Ors.,1995(2) SCC 745. It is not known, as to what is the cadre strength of direct recruits but it is certainly more than 100. In a 100 point roster, once the roster is fully operated upon, then thereafter, as and when there is a vacancy in a particular post, the same has to be filled from amongst the category to which the post belonged in the roster. At any rate, in the absence of any relevant data, indicating how there has been mis-application of the roster, it is difficult for us to issue any direction in favour of the said OBC candidate. Consequently, the prayer of the said OBC candidate for being appointed cannot be granted. (Paras 36, 37, 38 & 39)

JUDGMENT

Pattanaik, J.—This batch of cases deals with the dispute between the direct recruits and the promotees in the cadre of U.P. Higher Judicial Service comprising of posts borne in Class I. U.P. Higher Judicial Service Rules, 1975 have been framed in exercise of powers conferred by the Proviso to Article 309, read with Article 233 of the Constitution by the Governor in supersession of the earlier Recruitment Rules of 1953. The earlier Recruitment Rules of the year 1953 were struck down by this Court in the case of Chandra Mohan v. State of U.P., on a conclusion that the same was violative of Article 233 of the Constitution.

2. The present Rules govern the conditions of service including recruitment of the members of the service constituting a cadre. The dispute, in fact centers round recruitment made in different recruitment years, and is basically one on the calculation made by the High Court to find out the ratio between direct recruits and promotees in a given year. We, however do not propose to examine the calculation made by the High Court in each recruitment year, on the other hand, we propose to interpret the relevant provisions of the Rules and decide what should be the correct mode of calculation whereafter the High Court may itself re-calculate and re-adjust the appointments already made or to be made in future.

3. Under the present Recruitment Rules the expression ‘service’ has been defined in Rule 3(c) to mean, the Uttar Pradesh Higher Judicial Service. The strength of the service has been defined in Rule 4 to indicate that it constitutes a single cadre comprising of the posts of District and Sessions Judges and Additional District and Sessions Judges, The permanent strength of service was specified in Appendix ‘A’ in accordance with the provision contained in Sub-Rule (3) of Rule 4. Rule 5 provides that the recruitment to the service shall be made by direct recruitment and by promotion of confirmed members of U.P. Nyayik Sewa from amongst those members who have put in not less than 7 years, to be computed on the 1st day of January of next following year in which notice inviting applications is published, as well as from U.P. Judicial Officers Service. Rule 6 is the Rule providing quota, which is of paramount importance in the case in hand, and as such is quoted hereinbelow in extenso :-

6. Quota.—Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be–

(i) direct recruitment from the Bar 15

(ii) U.P. Nyayik Sewa of the vacancies 70

(iii) U.P. Judicial Officers 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 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 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 due course, becomes 85 per cent."

4. Rule 8 is yet another important provision which requires consideration in the case in hand and the said Rule also is extracted hereinbelow in extenso :-

"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 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.

(2) If at any selection the number of selected direct recruits available for appointment is le

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2001 Supreme(SC) 1247

Cases Referred (10)