Judgment

PATTANAIK, J.

( 1 ) 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 Art. 309, read with Art. 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 Art. 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 the 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 where after 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 (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 source of recruitment shall bei)DIRECT recruitment from the Bar15 Per Centii)U. P. Nyayik Sewa of the vacancies70 Per Centiii)U. P. Judicial Officers Service (Judicial Magistrate)15 Per Centprovided 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 avail