IMPORTANT POINTS
Entrustment of full control of judiciary with the High Court is a basic feature of the Constitution. Article 16(1), 16(4) has to be reconciled with Articles 233 to 235 by way of consultation of Governor with High Court and making appropriate rules following Constitutional scheme of Article 233 to 235.
If the High Court rules provide for ‘orders of the Government’ and if all such orders and provisions are consolidated in a law; adoption of that law satisfies the condition of adoption.

Headnote:(a) Uttar Pradesh Higher Judicial Service Rules, 1975 – Rule 8(2) r/w Section 3(2) of the Reservation Act of 1994 and Article 226, Constitution of India – Posts in reserved category required to be filled up by direct recruitment – High Court filling up by promotion of in service candidates – Direct recruitment candidates of general category challenging such action – Locus standi – Procedure provided in section 3(2) for filling up reserved category posts not followed – Appellants had locus standi under rule 8(2) to maintain the petition. (Para 10, 11)
       (1995) 2 SCC 745 – Distinguished
       (b) Constitution of India – Article 16(1), 16(4), and 233 to 235 – Entrustment of full control of judiciary with the High Court – A basic feature of Constitution – Reconciliation of Article 16(1), 16(4), and 233 to 235 – By way of consultation of Governor with High Court and making appropriate rules following Constitutional scheme of Article 233 to 235 – Principles of such reconciliation culled out. (Para 19, 20)
       (2000) 4 SCC 640 (CB); (2010) 12 SCC 635 – Relied upon
       (c) Uttar Pradesh Higher Judicial Service Rules, 1975 – Constitution of India– Reservation – In accordance with ‘orders of the Government’ as adopted by the High Court – No such specific order shown – High Court applying Reservation Act, 1994 as applicable – Section 3(1) of Act, 1994 consolidating all provisions and orders issued prior to 1994 – High Court adopting the ‘orders of the Government’ till date – No infirmity. (Para 29, 30, 31)
       (d) Uttar Pradesh Higher Judicial Service Rules, 1975 – Rule 7 – Selection and Appointment Committee resolving to follow rule of reservation as prescribed under Section 3(1) of Reservation Act, 1994 – Resolution of Full Court of High Court – High Court validly adopting Section 3(1). (Para 46, 47)
       (e) Uttar Pradesh Higher Judicial Service Rules, 1975 – Rule 8 and section 3(2), Reservation Act, 1994 – High Court resolving to adopt ‘reservation’ simpliciter provided under Reservation Act, 1994, i.e., prescription of various percentage of ‘reservation’ as u/s 3(1) and nothing more – Section 3(2) does not apply. (Para 57, 58)
       (f) Uttar Pradesh Higher Judicial Service Rules, 1975 – Rule 8 (2) – Filling up all vacancies – Vacancies remaining unfulfilled for want of adequate number of direct recruits under the prescribed quota – To be carried forward to be filled only by direct recruits – High Court filling up all such vacancies by promoting in-service candidates – Contention that even if adequate number of reserved category candidates were not available for direct recruitment, general category candidates ought to be appointed in view of requirement of the source of recruitment – Rejected – Rule 8(2) relating to category of posts, i.e., reservation had to be followed – No infirmity. (Para 59, 60, 63, 64)
       (2010) 12 SCC 635 – Relied upon
       (1995) 2 SCC 745 – Distinguished
       (2004) 4 SCC 714; (2004) 2 SCC 510; AIR 1959 SC 249 (CB); (1984) 2 SCC 404 – Referred
       Facts of the case:
       The challenge in the writ petitions was to the appointment made by the High Court to the post of Direct Recruit District Judges in the unfilled reserve vacancies, to the extent of 34 in number by way of promotion from the ‘in service candidates’ by applying Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975 (hereinafter referred to as “the Rules”). The Division Bench of the High Court dismissed the writ petitions.
       Finding of the Court:
       The action of the High Court in having resorted to filling up of the unfilled reserved vacancies by taking umbrage under Rule 8(2) was perfectly justified.
       Result: Appeals dismissed.

Judgment

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

2. Since the issues involved in the above appeals are identical, all these appeals are disposed of by this common judgment. We, however, refer to the facts dealt with by the Division Bench of the High Court in SLP(C) 11924-25/2012 by judgment dated 02.03.2012.

3. The challenge in the writ petitions was to the appointment made by the High Court to the post of Direct Recruit District Judges in the unfilled reserve vacancies, to the extent of 34 in number by way of promotion from the ‘in service candidates’ by applying Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975 (hereinafter referred to as “the Rules”). The Division Bench of the High Court dismissed the writ petitions. Aggrieved, the appellants have come forward with these appeals.

4. To trace the brief facts, on 15.04.2009 the High Court notified and called for applications for filling up 68 vacancies in the Higher Judicial Service. Of the 68 vacancies, 24 vacancies were meant for open category, 21 for Other Backward Classes (OBC), 21 for SC and 2 for ST. It is not in dispute that all the 24 vacancies in the open category got filled up on merits. Of the 21 vacancies in the OBC, 10 alone could be appointed leaving 11 vacancies to remain. All the SC/ST vacancies numbering 23 were also not filled up. In the unfilled 34 vacancies, the High Court promoted the ‘in service candidates’. The appellants were successful in the written test and also attended the interview. According to the appellants, even applying Rule 8(2) of the Rules, all the 68 vacancies were direct recruit vacancies and that in the first instance, the unfilled vacancies should have been filled up only from the other successful candidates from the direct recruitment source. In other words, the contention was that only if no other successful candidate was available from the direct recruit source belonging to any of the categories, namely, open category or any other category such as OBC or SC/ST then and then alone the High Court could have resorted to promotion of ‘in service candidates’. To put it differently, according to the appellants since the posts advertised were by way of direct recruitment, it was meant for that particular source of recruitment, namely, “direct recruit” and all those successful candidates of that source alone, namely, ‘direct recruit’ were in the first instance eligible to be considered for being appointed to the unfilled posts of any of the categories, namely, open or OBC or SC or ST and in the event of unavailability of any candidate from that source then and then alone the High Court could have resorted to filling up of those posts by way of promotion of ‘in service candidates’. Since, the above submission of the appellants did not find favour with the High Court, the appellants are before us.

5. We heard Mr. Dwivedi, learned Senior Counsel for the appellants Mr. Ashok Srivastava, learned counsel for the High Court and Mr. Irshad Ahmad, Additional Advocate General for the State.

6. The contentions of Mr. Dwivedi learned Senior Counsel while assailing the judgment of the High Court were three-fold. The learned Senior Counsel submitted that in order to apply the rule of reservation by the High Court, as has been stipulated in the Uttar Pradesh Public Services (Reservation) for Scheduled Casts and Scheduled Tribes and Other Backward Classes Act, 1994 (hereinafter referred to as “the Reservation Act of 1994”), there should have been express adoption of only orders pertaining to such reservation passed by the Government and not the Act itself. The said contention of learned Senior Counsel was based upon the specific contents of Rule 7 of the Rules. The learned Senior Counsel then contended that in order to apply the rule of reservation under Rule 7, the High Court should adopt such Order pertaining to reservation and according to the appellants there was no adoption of either any of the order of the Government providi

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2015 Supreme(SC) 107

Cases Referred (7)