Sri
Kant Tripathi & Ors Vs. State of U.P. & Ors [2001] Insc 467 (7 September 2001)
G.B.
Pattanaik & Ruma Pal Pattanaik, J.
With
W.P.(C) No. 394/94, W.P. No.(C) 592/94, C.A. No. 1656/2001, C.A. 1657/2001, W.P.(C) 460/1999, C.A.Nos.
1669-1680/2001, W.P.(C) 97/2000, C.A.
Nos. 1658- 1662/2001, C.A. No. 1663/2001, C.A.Nos. 1664-1668/2001,
W.P. (C) 444/2000 and W.P. (C) 203 of 2001.
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 vs. State of U.P.
On a
conclusion that the same was violative of article 233 of the constitution. 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.
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 70% of the vacancies.
(iii)
U.P. Judicial officers service 15% (judicial magistrates) 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." rule 8 is yet another important
provision which requires consideration in the case in hand and the said rule
Also
is extracted here in below 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 less than the number of recruits decided by the court to be taken from that
source, the court may increase correspondingly the number of recruits to be
taken by promotion from the Nyayik Sewa:
Provided
that the number of vacancies filled in as aforesaid under this sub-rule shall
be taken into consideration while fixing the number of vacancies to be allotted
to the quota of direct recruits at the next recruitment, and the quota for
direct recruits may be raised accordingly; so, however, that the percentage of
direct recruits in the service does not in any case exceed 15 per cent of the
total permanent strength of the service.
Provided
further that all the permanent vacancies existing on may 10, 1974 plus 31
temporary posts existing on that date, if and when they are converted into
permanent posts, shall be filled by promotion from amongst the members of the Nyayik
Sewa; and only the remaining vacancies shall be shared between the three
sources under these rules;
Provided
also that the number of vacancies equal to 15 per cent of the vacancies
referred to in the last preceding proviso shall be worked out for being
allocated in future to the judicial magistrates in addition to their quota of
15 per cent prescribed in rule 6, and thereupon, future recruitment (after the
promotion from amongst the members of the Nyayik sewa against vacancies
referred to in the last preceding proviso) shall be so arranged that for so
long as the additional 15 per cent vacancies worked out as above have not been
filled up from out of the judicial magistrates, the allocation of vacancies
shall be as follows :
(i)
15% by direct recruitment
(ii)
30% from out of the judicial magistrates;
(iii)
55% from out of the members of the nyayik sewa."
part
IV, starting with rule 17 provides the procedure for
direct recruitment, and part v starting with rule 20 provides
the procedure for recruitment by promotion. Part vi containing rule 21 deals
with the recruitment of judicial magistrates. Rule 22, contained in part vii
deals with
appointment. We are not concerned with the other rules in
the present case.
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), where after 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.
Though the recruitment rules have come in to force with effect from 1976, but
in this batch of cases we are concerned with recruitment starting from the year
1988.The joint registrar, Allahabad high
court issued an advertisement for direct recruitment to the U.P.
Higher
judicial services on 27.7.89 and the total number of vacancies indicated
therein was 5. It was also, however, indicated that there may be variation in
the number of vacancies. The last date for obtaining the application form was
16.8.89 and the last date for submission of application forms was 16.9.1989.the
advertisement contemplated a written examination as well an interview. A
selection committee was constituted under rule 16, comprising of three hon'ble
judges of the court. The full court of allahabad high court in august 1990
approved the case of 68 officers from out of the members of nyayik sewa for
promotion to higher judicial service under sub-rule (3) of rule 22. Needless to
mention that appointment by promotion under sub-rule (3) of rule 22 is meant as
a temporary measure when regular appointments under sub-rules (1) and (2)
cannot be made from the three different sources out of the list contemplated
under rules 18, 20 and 21. Though the full court had approved the names of 68 promotees
but in march 91 only 16 of them were appointed to higher judicial service. In
the meanwhile, the selection committee constituted under rule 16 for selecting
personnel for direct recruitment being of the opinion, that more direct
recruits could be appointed than the number of posts advertised, prepared a
list on 28.3.1991 of 9 persons. On 6.4.1991, the full court of Allahabad high
court, however, recommended 7 persons for direct recruitment. Notwithstanding
the full court's
approval to the list of promotees, as no appointment was made excepting 16, as
already stated, a writ petition was filed in the Allahabad high court, by the promotees,
which was registered as civil misc. Writ petition no. 3485 of 1992, contending
inter alia that the recruitment rules must be duly implemented and while taking
steps for filling up the post by direct recruitment from the bar, steps should
also be taken for filling up the quota available for promotees simultaneously.
While
the said writ petition was pending in allahabad high court, this court disposed of writ petition (civil) no. 259 of
1990 and writ petition civil no. 1304 of 1988 on 23rd april, 1991 in the case
of O.P. Garg & ors. Vs. State of U.P.
- reported in (1991) Suppl. 2 SCC 51. In the aforesaid case this
Court
held on interpreting different provisions of the recruitment rules that on 5th
April, 1975, the date on which 1975 rules were enforced, all 236 officers
working against the permanent and temporary post of additional district and
sessions judges in the service would deemed to be existing members of service
constituted under the 1975 rules, and they shall enbloc rank senior to officers
appointed to the service thereafter from 3 sources in accordance with their
quota
Under
the rules. It was further held that the service under the rules consists of
both permanent as well as temporary posts and all temporary posts created under
rule 4(4) of 1975 rules are in addition to the permanent strength of the cadre
and, as such form part of the cadre. Consequently the appointments under rule
22 can be made to a permanent post as well to a temporary post. Sub-rule (3)
and sub-rule(4) of rule 22 were struck down being violative of article 14 as
under the said sub-rules appointments could be made from two other sources and
not from the bar as direct recruits. It was, however, stated that appointments
already made under the aforesaid sub-rules will not be invalidated on that
ground. The court, also stated that while selecting candidates under rule 18
meant for selection of direct recruits the committee shall prepare a merit list
of candidates of twice the number of vacancies and the said list shall remain
operative till the next recruitment. It may be borne in mind that, so far as
the provisions of rule 18 are concerned, it did not contain any period for
which a list prepared could remain operative, though such a provision was there
in sub-rule 5 of rule 20 dealing with the procedure for
recruitment by promotion of the members of Nyayik
O.P. Garg's
case the aforesaid provision contained in sub-rule (5) of rule 20 stood
engrafted into rule 18.
On
account of the decision of this court in Garg's case since the direct recruits
were entitled to have their quota against temporary posts, the selection
committee which was in seisin of the matter for selecting persons for the
recruitment year 1988, itself made the necessary calculation and increased the
number of posts available for direct recruits to 25.
The
writ petition that had been filed before Allahabad high court in the year 1992,
by the promotees, came to be disposed of on 11.2.1994 and the same was
dismissed as having become infructuous as by that date the names of the
applicants who had filed the writ petition, had been sent to the governor by
the high court for being promoted, and the court,
Therefore,
thought that no cause of action survived.
This
order of the Allahabad high court dated 11.2.1994, passed in civil misc. Writ
petition no. 3485 of 1992, is the subject matter of challenge in civil appeal
no.5908 of 1997 at the behest of the promotee candidates.
Bishamber
singh, an advocate, who was entitled to apply for a post in the higher judicial
service, to be filled up by direct recruitment filed a petition under article
32 which was registered as writ petition no.394 of 1994, assailing the power and
authority of the selection committee to increase the number of direct recruits,
the decision of the full court of Allahabad high court dated 25.7.1992,
recommending the names of those selected as well as the notification issued by
the state government dated 13.4.1994, appointing 24 direct recruits in the
cadre of higher judicial service.
The
essential ground of challenge was that the advertisement having been issued
only for 5 vacancies, and recruitment process having already started for
filling up those advertised vacancies, it was not open for the selection
committee to enter into a process of calculation and enhance the number of
persons to be recruited by direct recruitment and the full court was not
entitled to approve the same. It is contended that such procedure debarred many
aspirants like the recruitment. It was prayed in the aforesaid writ vacancies
should be quashed and the high court should be commanded to issue a fresh
advertisement in respect of the increased vacancies in the quota of direct recruitment.
Another advocate, ms. Suman gupta, also filed a similar petition under article
32, which was registered as writ petition no. 592 of 1994 for similar relief as
prayed for in writ petition no. 394 of 1994.
The
aforesaid 3 cases, therefore, relate to the recruitment meant for the year
1988.
On
30th march, 1992, an advertisement was published for appointment to the higher
judicial service by direct recruitment and the total number of vacancies
indicated therein was 6. The advertisement, however, indicated that there could
be variation in the number of vacancies. The persons who could not be selected
for being appointed within the number of
vacancies notified, filed writ petitions in the Lucknow anomalies in the
process of recruitment to the higher judicial service and contending inter alia,
that there has been an excess recruitment from the promotion quota which ought
to have been given to the direct recruits, and as such, conversion of posts
meant for direct
Recruits
for being filled up by promotees must be held to be illegal and the promotion,
thus made should be struck down.
All
the writ petitions were heard together and declared the recommendation of the
selection committee dated 2.11.1995 and the resolution dated 18.11.1995, to be
invalid and came to the conclusion that those 13 posts could be filled up only
by direct recruitment. The promotee appointees, however, were allowed to be
continued on ad hoc basis till the full court took a final decision on the
matter. The full court was also requested to consider the question as to how 13
posts, meant for direct recruitment could be filled up. Civil appeal nos.
1669-1680 of 2001 are the
The
full court of Allahabad high court in its meeting dated July 11, 1998, considered the observations and
over vacancies of direct recruits would not be filled up from out of the
applicants in the previous recruitment process of 1990, as by that date the
recruitment process for 1996 had already commenced and was almost
Complete.
In fact the report of the selection
Committee
was under consideration of the full court on that very date. The aforesaid
resolution of the full court was assailed in two writ petitions which were
registered as civil misc. Writ petition no. 2830 of 1998 and civil misc. Writ
petition no. 43485 of 1998.
Both
these writ petitions were dismissed by the order
The
subject matter of challenge in civil appeal no. 1657 of 2001. An identical writ
petition filed by one avinash kumar sharma, which was registered as writ
petition no. 29617 of 1998, assailing the validity of the resolution of the
full court was dismissed on the very same day i.e. on 24.3.1999, which order is
the subject matter of challenge in civil appeal no. 1656 of 2001.
The
full court resolution of allahabad high court dated 11.7.1998 was also
challenged in this court by filing application under article 32 of the
constitution, which has been registered as writ petition nos. 97 of 2000 and
460 of 99. These cases, therefore, deal with
the selection and recruitment for the year 1990.
For
the recruitment year covering the period 1992 to 1994 an advertisement was
issued in June 1996 inviting applications for recruitment against 19 vacancies
in the higher judicial service out of which 10 were ear-marked for general
candidates, 4 for scheduled castes and 5 for Obcs. The advertisement also
contained a variation clause. A select list was prepared enlisting 21
candidates, but the full court, however, recommended only 20 persons. Five writ
petitions were filed by persons claiming direct recruitment in the high court
contending, inter alia that the high court had not properly calculated the
number of vacancies available for direct recruitment and that on a proper and
true interpretation of rule 8 read with rule 6, there existed several vacancies
which had not been taken into consideration in making the determination. The
aforesaid 5 writ petitions stood 2000 where under the high court came to hold
that in
Fact
31 vacancies were available for being filled up by direct recruits out of which
8 vacancies were to be filled up from obc candidates and 7 from scheduled
castes candidates and 16 from general candidates. The decision of the high
court of allahabad has been assailed in civil appeal
nos. 1658-62 of 2001. The 10th may, 2000, is also the subject matter of
challenge in civil appeal no. 1663 of 2001 and civil appeal nos. 1664-68 of
2001. The appellants are persons empanelled and claim to be appointed against
the direct recruits' quota. Yet another writ petition has been filed by two persons
munna lal and mehi lal under article 32 of the constitution claiming inter alia
that while calculating the vacancies' position and posts meant for direct
recruitment the high court had committed error in not taking into account the
vacancies likely to occur in the next two years.
According
to the applicants, their names having been approved and recommended by the full
court they were entitled to be appointed, and not sending their names to the
governor under rule 18(4) was an infraction of articles 14 and 16 and
appropriate directions should be issued. All these civil appeals viz. 1658-62
of 2001, 1663 of 2001, 1664-68 of 2001 and this writ petition, relate to the
recruitment of the year 1992.
The
last writ petition filed under article 32 is writ petition (c) no. 444 of 2000
and this has been filed by a promotee who had been promoted to the higher
judicial service under rule 22(3) of the rules and who has been working as
additional district judge since 25.1.2000. It has been alleged in the aforesaid
writ petition that the high court had committed a serious mistake in
calculating and finding out the number of vacancies available in a given
recruitment year, and such erroneous calculation has caused gross injustice to
the promotees. It has been prayed in the aforesaid writ petition, that a
direction should be issued not to make any fresh advertisement for recruitment
of direct recruits to the higher judicial service as they are in excess of
their quota. In support of the prayer, it was submitted that the registrar of
the high court had submitted a report on 15.11.1999 that 17 direct recruits
have been appointed in excess in the recruitment year of 1988 and 5 direct
recruits had been appointed in excess in the recruitment year of 1990, and 4
had been appointed in excess of the quota in the next recruitment year, and
thus 26 direct recruits are at present there in excess of their quota. But
notwithstanding the same,
the high court had decided to advertise 38 vacancies for being filled up by
direct recruitment. As such the present writ petition had to be filed for the
relief, as already stated. The aforesaid writ petition, therefore relates to
recruitment year 1998. An interim order has been passed by this court to the
effect that any appointment made would be subject to the final decision of this
court.
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.
The
second proviso to rule 8(2) however indicates that the permanent vacancies
existing on may 10, 1974 as well as 31 temporary posts existing on that date,
as and when they are converted into permanent posts, would be filled up by
promotion and the vacancies occurring thereafter, would be shared between the
three sources under rule 8, in accordance with the quota provided
under rule 6. Rule 8, therefore, casts an obligation on the court to determine
and fix the number of officers to be taken at a particular recruitment, keeping
in view the vacancies then existing and likely to occur in the next
Two
years. In fact the process of recruitment to the
Higher
judicial service from both sources would start only after the number is fixed
by the high court under rule 8 and that number has to be fixed, keeping in view
the vacancies existing then as well as the "vacancies likely to occur in
the next two years". The expression "vacancies likely to occur in the
next two years", requires consideration by this court, in view of a subject
matter of challenge in one of these cases, but we will advert to it at the
appropriate time. Rule 16 provides for appointment of a selection committee by
the chief justice and rule 17 prescribes the procedure for direct recruitment,
whereas rule 20 prescribes the procedure for recruitment by promotion from Nyayik
Sewa. So far as the direct recruitment is concerned, the high court is required
to publish a notice inviting applications and on receipt of such applications,
the selection committee is required to scrutinize the same, where after, the
said selection committee may hold such examination, as it may consider
necessary for judging the suitability of the candidates. The selection
committee would then call for interview of such of the applicants, who in the
opinion of the committee have qualified for interview, after scrutiny and
examination.
Sub-rule
(2) of rule 18 is the guideline for the selection committee to assess the merit
of a candidate and under the same provision, due regard has to be made to the
professional ability, character, personality and health of the applicant. The
selection made by the selection committee is preliminary in nature and the
selection committee has to submit the record of all candidates to the chief
justice and would recommend the names of the candidates in order of merit, who
in its opinion are found suitable for appointment to the service. This list of
preliminary selection, prepared by the selection committee, has to be examined
by the full court of the high court and then ultimately the court prepares a
list of selected candidates in order of merit, having regard to the number of
direct recruits to be taken and forward the same to the governor, who
ultimately appoints under rule 22.
So far
as the recruitment by promotion of the members of the nyayik sewa is concerned,
the selection has to be made on the basis of seniority-cum- merit and the field
of eligibility is confined to four times the number of vacancies to be filled
by promotion. The selection committee has to prepare a list in order of
seniority of the eligible officers, as provided under rule 5(b), and a
preliminary selection of the officers is made by the committee, who in its
opinion are found fit to be appointed, on the basis of seniority-cum-merit. The
said list of preliminary selection would contain the names of officers, twice
the number of vacancies required to be filled by promotion and that list is
forwarded to the chief justice along with
the names of officers who are superseded. The recommendation of the selection
committee then is finally considered by the full court and final selection for
promotion is made and a list is prepared in order of seniority of the
candidates, which list is forwarded to the governor, as provided under sub-rule
(5) of rule
20.
The list forwarded by the court to the governor remains operative till the next
recruitment. There is no such provision in rule 18, which is the procedure of
Of
this court in o.p.garg, even the list forwarded to the governor under sub-rule
(4) of rule 18, would remain operative till the next recruitment.
The
expression "next recruitment" used in sub- rule (5) of rule 20, has
not been defined. But having regard to the scheme of the rules and the language
of Rule 8, which in fact is the key provision, with which
The
recruitment process would start, it would be reasonable for us to hold that the
expression "till the next recruitment" would mean, till the court
fixes the number of persons to be taken by recruitment under sub-rule (1) of
rule 8. Once the number of vacancies
Is
fixed for the recruitment to be held, question of keeping the life of the
earlier list operative, would not arise. In other words, after fixation of the
vacancies to be filled at the next recruitment by the court under sub- rule (1)
of rule 8, it would not be permissible to make any further appointment from out
of the list prepared, in respect of the previous recruitment, either under sub-
rule (4) of rule 18 or under sub-rule (5) of rule 20.
Rule
22 authorises the governor to make appointment to the service and sub-rule (2)
of rule 22 provides for appointment on rotational basis. Rule 22 also has taken
care of a situation, when the governor in consultation with the court can make
appointment by
promotion to manage the cadre on a temporary basis, when an emergent situation
arises and when it is not possible to make appointments from different sources,
as contemplated under rules 18, 20 and 21. But such appointment made under
sub-rule (3) of rule 22, obviously would not be an appointment on substantive
basis in the cadre and, therefore, may not confer seniority from the date of
such appointment. One other rule, which can be taken note of, is sub-rule (4)
of rule 4, which is quoted herein-below in extenso:
"rule
4(4). The governor may, from time to time, in consultation with the court leave
unfilled
or hold in abeyance, any vacant post in the service without entitling any
person to compensation or create from time to time, additional posts, temporary
or permanent as may be found necessary." the aforesaid sub-rule
unequivocally confers power on the governor in consultation with the high
court, not
to fill up or hold in abeyance, posts in service though ordinarily, the
vacancies determined by the court should be filled up from the different
sources. Lengthy arguments had been advanced on the existence of a variation
clause in the advertisement. Since the court determines the number of officers
to be taken at a particular recruitment, keeping in view the vacancies then
existing as well as likely to occur in the next two years and from out of such
available vacancies, allocates, in respect of various sources of recruitment,
in terms of rule 6, only after which an advertisement could be published for
direct recruitment under rule 17, the question of any variation thereafter,
would not arise in the ordinary course. But in an extraordinary situation, like
sudden creation of posts in the cadre, subsequent to the issuance of
advertisement, but before the last date of submission of application forms, the
variation clause may become applicable, so that a greater number of persons,
than the posts advertised for, could be considered for the said recruitment.
However, as has been stated earlier, such a situation will have to be an extraordinary
one.
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. Having analysed the different provisions of the rules, as aforesaid,
let us now examine whether the high court has discharged its obligation in
accordance with the rules or has committed any mistake. So far as
the recruitment for the year 1988 is concerned, it is not clear as to whether
before advertising for filling up of five posts by direct recruitment, the high
court did fix the number of officers to be taken at the recruitment, keeping in
view the vacancies then existing and vacancies likely to occur in the next two
years. In the absence of any materials on that score, we assume that the high
court arrived at the figure of five, as direct recruit quota for the
recruitment in the year 1988, in keeping with the rules. It further appears
that while
taking steps for making recruitment of direct recruits, no steps had been taken
to fill up the posts available under the promotional quota. We also find from
the records, on the basis of assertions made in the counter affidavit filed by
the high court in the pending litigation, that the high court had determined
the availability of posts on the basis of a percentage of the total cadre
strength and not on the basis of the vacancies available for the recruitment as
well as the vacancies likely to occur during two succeeding years.
In
other words, for the purpose of recruitment in the year 1988, the high court
was duty bound to examine and find out the number of vacancies as were
available in 1988 as well as the anticipated vacancies likely to occur in 1989
and 1990 and thereupon, calculate the posts available from three different
sources, in accordance with rule 6 and then take steps for filling
up the posts in accordance with prescribed procedure.
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.
That
apart, from the averments made as well as materials on record, including the
resolution of the full court, it transpires that the selection committee,
constituted under rule 16 by the chief justice, took upon itself the task of
finding out the number of vacancies in the cadre available to be filled up by
direct recruitment and then selected persons on the basis of such
determination. The preliminary selection list submitted by the selection
committee under sub-rule (3) of rule 18, was for nine appointments,
Notwithstanding
the fact that the advertised vacancies were only five. The determination of the
number of officers to be taken at a recruitment, keeping in view the vacancies
then existing and likely to occur in the next two years, is a statutory
obligation of the court under rule 8 and the court cannot abdicate its
obligation and leave it to be determined by the selection committee constituted
under rule 16. The
Factual
fixation of the number of officers to be taken at a recruitment could be
determined by a committee, constituted by the court if the administrative
exigency so requires, but then such determination would have to be approved by
the court in its full court meeting.
Until
such number is fixed under rule 8, the question of taking recourse to rule 17
for direct recruitment and rules 20 and 21 for promotion would not arise. 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,
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.
It is also apparent from the records that although the court had approved the
list of 68 persons for being promoted under rule 22(3), but actually only 16 of
them were promoted. Be it be stated, that it is not clear whether the selection
committee constituted under rule 16 also made the preliminary selection of the
officers, who in its opinion were found fit to be promoted on the basis of
seniority-cum-merit in accordance with sub-rule (3) of rule 20 or whether the
said list of candidates chosen at the preliminary selection was forwarded to
the chief justice under sub- rule (4) of rule 20 and finally, whether the court
did in fact make the final selection under sub-rule (5) of rule 20. 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.
Mr. Venkataramani,
appearing for the direct recruits, vehemently contended that while the high
court advertised five posts for direct recruitment for the 1988 recruitment,
the advertisement itself contained a variation clause that "there may be
variation in number of vacancies without prior notice". That being the position,
when the selection committee recommended the names of nine persons for direct
recruitment and the full court later on approved the said recommendation of the
selection committee, there cannot be any infirmity merely because the full
court does not appear to have fixed the number of officers to be taken at the
recruitment, keeping in view the vacancies position, as contemplated under
sub-rule (1) of rule 8. He further contended that in view of
Temporary
posts were required to be included for working out the quota for direct
recruits, the variation was imminent and if the quota would not have been enhanced,
then there would be an infraction of the Direction given by this court in garg's
case. The learned counsel also urged that though in the counter affidavit, the
high court has indicated that quota was fixed on the basis of percentage of the
total cadre strength, but there would be no difference even if the quota were
calculated on the basis of percentage of the vacancies and consequently, the
determination of number of posts meant for direct quota made by the selection
committee and approved by the full court, cannot be held to be vitiated.
In
view of the positive stand of the high court in its counter affidavit and in
view of the submission of Mr. Srivastava, appearing for the high court,
conceding that the court made the calculation, on the basis of total cadre
strength, we do not find any force in the submission of mr. Venkataramani, that
there would be no difference, even if the percentage were worked out on the
basis of the vacancies available on the date and the anticipated vacancies in
next two years. As has been stated earlier, the high court committed a serious
mistake in calculating the number of direct recruits to be recruited on the
basis of 15% of the cadre strength and such basis is erroneous being in the
teeth of the language in rule 6. The submission of Mr.Venkataramani, is
therefore, unacceptable in view of the interpretation of the rules, we have
already indicated. Mr.Venkataramani in support of his contention, placed
reliance on a decision of this court in the case of S.Prakash and anr. Vs. K.M.
Kurian and ors., 1999(5) S.C.C. 624, but we fail to understand, as to how that
case has any application to the case in hand.
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.
In
relation to recruitment of 1990, for which advertisement was issued by the
registrar of the high court on 30th of march, 1992, for filling up of vacancies
of six direct recruits, 11 writ petitions had been filed, which stood disposed
of by a common committee dated 2.11.95 as well as the full court resolution
dated 18.11.1995, promoting 13 persons from Nyayik Sewa, but allowed them to
continue on ad hoc basis, till the full court took a decision with had
requested the full court to take necessary steps for recruiting 13 persons by
way of direct recruitment. The full court, however finally decided that those
13 vacancies, belonging to the quota of direct recruits, could be filled up in
the succeeding years, as the recruitment process for which had already
commenced since January, 1996. This resolution of the full court is of 11th July, 1998.
We
need not make an in-depth inquiry into the court also committed the same
mistake of determining the quota at 15% of the total sanctioned strength of 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, where
after, necessary adjustment can be made.
Mr.
P.P. Rao, appearing for the appellant in civil appeal no. 1656 of 2001, has
submitted that the dated 30th june, 1998 has not been implemented by the full
court in letter and spirit and the full court was duty bound to constitute a
selection committee to conclude the process of recruitment of 13 direct
recruits. According to Mr. Rao, the expression direction, and therefore, the
full court could not have taken the decision that those 13 persons would be
recruited in the next recruitment.
According
to Mr.Rao, issuance of a fresh advertisement for the next recruitment cannot
nullify the mandamus issued by a court in a case and the resolution of the full
court of Allahabad high court dated 11.7.1998, must be held to be in
contravention of the direction given in the full the full court dated 11th of July,
1998 was assailed in erroneously dismissed the same and such dismissal was
which was required to be given effect to by the full court on the
administrative side. According to Mr.Rao, for the recruitment of 1990, if more
posts were available in the quota for direct recruits, then the right of the
empanelled candidates for being appointed cannot be nullified, in the manner in
which the full court had passed the resolution, and therefore, this court
should interfere with the same. In support of this
contention, reliance has been placed on the decisions of this court in state of
Bihar and anr. Vs. Madan Mohan Singh and ors.,
1994 supp (3) S.C.C.. 308, O.P. Garg and ors., vs. State of U.P. and ors., 1991
supp.(2) s.c.c.51, and o.p.singla and anr.etc. Vs. Union of india & ors.,
1985(1) S.C.R.., 351.
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.
The
question whether a wait listed candidate like Avinash kumar sharma, for the
recruitment of 1990, 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 tant amounts 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 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.
A wait
listed candidate has no vested right to be appointed, except when a selected
candidate does not join and the waiting list is still operative, as was held by
this court in the case of Surinder Singh & ors. Etc.Vs. State of Punjab and
anr. Etc., jt 1997(7) S.C..537. In the case of Sanjoy Bhattacharjee vs. Union of india and ors.,
1997(4) S.C.C. 283, this court
Considered
the right of a wait-listed candidate and held that inclusion of candidates in
merit list in excess of the notified vacancies, is not justified and waiting
list candidates have no right to appointment. Reliance had been placed on the
decision of this court in virender s. Hooda and ors. Vs. State of Haryana and anr., 1999(3) S.C.C. 696, for
the proposition that a wait- listed candidate could be appointed against the
available vacancies. In our considered opinion, the aforesaid decision is of no
application to the case in hand. In the said case, there existed two
administrative circulars which in fact had been construed for conferring the
right. This court came to the conclusion that the high court was in error in
ignoring those circulars. But in the absence of any such circular or provision
in the recruitment rules of higher judicial service, the aforesaid decision is
of no assistance.
Court
in the case of A.P. Aggarwal vs. Govt. of NCT of Delhi and anr., 2000 (1)S.C.C.600,
wherein the question of filling up of the vacancy of the member of the
appellate tribunal under Delhi sales tax act was under
consideration. This court construed the provision of section 13(4) of the delhi
sales tax act, 1978 as well as the office memorandum dated 14.5.1987, issued by
the central government, and on construction of the aforesaid provisions, came
to hold that a public duty is cast to fill up the vacancy as early as possible.
We are not in a position to appreciate, how this decision will be of any
assistance to the wait listed candidates.
Reliance
had also been placed on the decision of this court in Roshni Devi and ors. Vs.
State of Haryana and ors., 1998 (8) S.C.C. 59, where
under this court had observed that some margin over the advertised vacancies is
permissible. That decision was given in the peculiar set of facts present
there. The practice of selecting and preparing an unusually large list of
candidates compared to the vacancy position, has been deprecated by this court
in no uncertain terms. But in the fact situation, the court did permit some appointments
to be made beyond the advertised vacancies, by exercising power under article 142,
as otherwise, it would have caused great injustice to many who had been
appointed. We are afraid, this decision is absolutely of no application to the
case in hand.
Several
other counsel appeared for several persons in relation to the cases concerning
appointment of 1990, but they all supported the arguments advanced by Mr. Rao
and, therefore, we need not reiterate the same. We, however, do not find any
infirmity with the order of the
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.
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.
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 vacancies were available for being filled up by direct
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 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
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
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).
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
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 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. Vs. State of Punjab and ors., 1995(2) S.C.C. 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.
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 for 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.
..........................................j.
(G.B..
Pattanaik) ..........................................j.
(Ruma
Pal) September 7, 2001.
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