IMPORTANT POINTS
Promotes were not entitled to promotion or seniority without suitability test.
Promotes rightly given seniority above direct recruits without following rotation principle.

JUDGMENT

ADARSH KUMAR GOEL, J.

1.Leave granted in Special Leave Petition (Civil) No.26993 of 2017 and SLP (Civil) D. No.39750 of 2017. The question for consideration is the validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh. Dispute mainly relates to the principle to be applied for determining seniority for direct recruits and promotees of the years 2007 and 2009 in the context of Rules 22 and 26 of the Uttar Pradesh Higher Judicial Service Rules, 1975 (the Rules) and the judgment of this Court in All India Judges Association versus Union of India, (2002) 4 SCC 247.

2. Before giving brief facts we may note that the Rules and the issue of seniority of the HJS officers were subject matter of consideration, inter alia, in P.K. Dixit versus State of U.P., (1987) 4 SCC 621 O.P. Garg versus State of U.P., (1991) Supp. (2) SCC 51 Sri Kant Tripathi versus State of U.P., Ashok Pal Singh versus U.P. Judicial Services Association, (2001) 10 SCC 237 V.K. Srivastava versus Govt. of U.P., (2010) 12 SCC 665 and Het Singh Yadav versus State of U.P., (2008) 9 SCC 77 Civil Appeal No.5270 of 2012 decided on 15.9.2016.

3. In P.K. Dixit (supra), there was challenge to the seniority list on the ground that vacancies had not been properly calculated as per the Rules. This Court directed that matter should be examined afresh with reference to appointments on posts available before the Rules came into force.

4. In O.P. Garg (supra), challenge to seniority list of 1988 was considered. This Court held that benefit of continuous length of service for a promote officer for a promote officer has to be with reference to availability of a vacancy and not independent thereof. Second and third proviso to Rule 8(2) and part of Rules 22 and 26 were declared ultra vires.

5. In Sri Kant Tripathi (supra) question was about correctness of calculation for working out ratio between direct recruits and promotees. The issue had arisen with reference to recruitments for the years 1988 to 1994. This Court directed that for 1988 recruitment, the High Court should determine number of vacancies available in the relevant year of recruitment and then allocate the vacancies to different sources of recruitment. It was also directed that vacancies should be filled up in the year when vacancies become available. If a post is available in the quota of promotees, selection is made but promotion is not given, promotion must take effect from the date the promotee could have been appointed.

6. In Ashok Pal Singh (supra) one of the issues was whether procedure of carrying forward of vacancies adopted by the High Court was erroneous. This Court held that no direct recruit at a subsequent recruitment can claim that his seniority should be reckoned from the date earlier to the date of his joining. The seniority of the promotee had to commence from the date he should have been appointed against an available vacancy for which he had already been selected.

7. In V.K. Srivastava (supra), challenge was to the amendment of the Rules as notified on 9th January, 2007 on the ground that giving of retrospective effect prejudiced the vested right of the candidate eligible for vacancies prior to the amendment. This Court dismissed the writ petition with the observation that the Rules had been duly complied with for the year 2008 selection.

8. In Het Singh Yadav (supra) question for consideration was the validity of seniority list of promotees with regard to vacancies existing prior to 15th March, 1996. The High Court quashed the seniority list dated 24th August, 2007. Correctness of the view taken before the High Court was subject matter of consideration before this Court. This Court noted that after the judgment of the High Court dated 16th December, 2010, seniority list had been finalized on 14th April, 2016 co