IMPORTANT POINT
Unless the recommendations in the judgment were accepted and ruled framed/ modified, the recommendations cannot be given effect to.

JUDGMENT

Markandey Katju, J.—

1. This writ petition under Article 32 of the Constitution of India is filed challenging the Notification No. Estt.(RJS)/118/2003 dated 20.10.2003 wherein 19 posts for direct recruitment to the Rajasthan Higher Judicial Service (in short ‘RHJS’) were advertised. Out of these 19 posts 11 posts were shown as current vacancies and 8 posts shown as backlog vacancies. A true copy of the notification is Annexure P-1 to the writ petition. It was specifically mentioned in the notification that these are subject to orders of the Supreme Court in four SLPs (subsequently numbered as CA No. 5699 to 5702/2000) relating to the decision in the case of Veena Verma.

2. On 19.7.2004 the learned counsel for the respondent-High Court stated that the actual appointments pursuant to the impugned notification dated 20.10.2003 will not be made unless permitted by this Court. Consequently, it is stated that no appointments have been made in pursuance of the impugned notification.

3. As noted above, the impugned notification itself mentioned that it was being made subject to the decision in Veena Verma’s case. We have held in Veena Verma’s case (in CA Nos. 5699, 5700 and 5702/2000 decided today) that the strength of the service is as mentioned in Schedule-I of the Rajasthan Higher Judicial Service Rules, and for varying the strength there has to be a specific order under sub-rule (2) of Rule 6. Mere creation of posts without a specific order under Rule 6(2) in our opinion only creates ex cadre posts, but does not amount to varying the strength of the service. We have held in that decision that the Division Bench of the High Court was in error in its judgment dated 30.4.1999 in holding that whenever new posts are created, the strength of the service automatically increases even though there is no specific order under Rule 6(2)in this connection amending Schedule-I.

4. In Veena Verma’s case (supra) we have also held that Rule 9 of the Rules only prescribes an upper limit to the quota for direct recruits in the service, but there is no lower limit, and it is in the discretion of the authorities to decide what quota should be given to the direct recruits, provided it is not more than the maximum prescribed by Rule 9. Our decision in Veena Verma will apply to this case also.

5. No doubt this Court in All India Judges’ Association & Ors. vs. Union of India & Ors.1 2002(4) SCC 247 (vide para 28) has observed that 25% of the posts in the Higher Judicial should be filled by direct recruitment. This has been explained by a three Judge Bench of this Court in a recent judgment in Maharashtra State Judges Association & Ors. vs. The Registrar General, High Court, High Court of Judicature at Bombay & Anr.2 (2008 (15) SCALE 320) In paragraph 14 of the said judgment it was observed:

.................“Until the recommendation was accepted and rules were framed, the integration/caderisation was a nebulous concept incapable of being claimed or enforced as a right.”...................

The above observation in the decision in Maharashtra State Judges Association (supra) makes it clear that until the State Government amends the rules, the recommendations cannot give any claim for any right.

6. The petitioner in the present writ petition is an association of judicial officers functioning in the State of Rajasthan, and they are aggrieved by the impugned notification as they allege that their chances of promotion get reduced by the same.

7. It is alleged in para 4 of the writ petition that draft rules have been framed by the High Court which were sent for approval to the State Government, but pending the finalization of these rules, the High Court published the impugned notification for filling in 19 posts of Additional District & Sessions Judges by direct recruitment in the RHJS.

8. According to the petitioner the total cadre strength of RHJS is 150 and there are already 41 direct recruits working in the RHJS. Since the total cadre strength is 150