V.K.Srivastava & amp;
Ors. Vs. Govt. of U.P.& amp; ANR. [2008] INSC 1507 (4 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 206 OF 2007
V.K.SRIVASTAVA & amp; ORS. Petitioner(s) VERSUS GOVT.OF U.P.& amp; ANR.
Respondent(s) WITH
W.P.(C)NOS.36/2008, 236/2007, 295/2007 AND I.A.NO.1/07 IN I.A.204/07 IN
W.P.(C)NO.1022/1989 ORDER W.P.(C)No.36/2008:
Learned senior
counsel for the petitioners seeks permission to withdraw the writ petition.
Permission sought for is granted. The writ petition is dismissed as withdrawn
without prejudice to the rights of the petitioners to seek other appropriate
remedies with regard to their seniority.
W.P.(C)Nos.206/2007,
236/2007, 295/2007 & amp; I.A.NO.1 in I.A.NO.204/2007:
The petitioners in
these writ petitions and Interim applications are members of the Uttar Pradesh
Judicial Service. Writ Petition No.236/2007 and I.A.No.1/07 in I.A.No.204/2007
are filed by the U.P.Judicial Officers Association.
2 (2002) 4 SCC
p.247, this Court has directed that promotion to the cadre of Higher Judicial
Service should be streamlined based on the recommendations of Justice Shetty 3
Commission. Prior to the directions given by this Court for filling up the
vacancies in the cadre of Higher Judicial Service there were only two sources
i.e. one by promotion from the cadre of Civil Judge (Senior Division) i.e. the
members of the Subordinate Judicial Service and the other by direct recruitment
as per Article 233 of the Constitution of India from the members of the Bar.
This Court felt that the members of the subordinate judiciary should also be
given a fast track promotion and those who are more meritorious in service
should be given an opportunity to compete for the posts of higher judicial
services apart from the ordinary channel of promotion on seniority. To give
opportunity to the subordinate judicial officers from getting early promotion
to the Higher Judicial Service, this Court has directed that 25% of the
vacancies of Higher Judicial Service shall be filled up by a competitive
examination and the Civil Judge (Senior Division) who are in the feeder
category shall be given an opportunity to get such promotions. Keeping in view,
the following direction was given by this Court :
".....At the
same time, we are of the opinion that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the Higher Judicial Service
as Additional District Judge and District Judges. While we agree with the
Shetty Commission that the recruitment to the Higher Judicial Service i.e. the
District Judge cadre from amongst the advocates should be 25 per cent and the
process of recruitment is to be by a competitive examination, both written and
viva voce, we are of the opinion that there should be an objective method of
testing the suitability of the subordinate judicial officers for promotion to
the Higher Judicial Service. Furthermore, there should also be an incentive
amongst the relatively junior and other officers to improve and to compete with
each other so as to excel and get quicker promotion. In this way, we expect
that the calibre of the members of the Higher Judicial Service 4 will further
improve. In order to achieve this, while the ratio of 75 per cent appointment
by promotion and 25 per cent by direct recruitment to the Higher Judicial
Service is maintained, we are, however, of the opinion that there should be two
methods as far as appointment by promotion is concerned : 50 per cent of the
total posts in the Higher Judicial Service must be filled by promotion on the
basis of principle of merit-cum-seniority. For this purpose, the High Courts
should devise and evolve a test in order to ascertain and examine the legal
knowledge of those candidates and to assess their continued efficiency with
adequate knowledge of case-law. The remaining 25 per cent of the posts in the
service shall be filled by promotion strictly on the basis of merit through the
limited departmental competitive examination for which the qualifying service
as a Civil Judge (Senior Division) should be not less than five years. The High
Courts will have to frame a rule in this regard.
As a result of the
aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial
Service i.e. the cadre of District Judges will be :
1(a)50 per cent by
promotion from amongst the Civil Judges (Senior Division) on the basis of
principle of merit-cum-seniority and passing a suitability test;
(b) 25 per cent by
promotion strictly on the basis of merit through limited competitive
examination of Civil Judges (Senior Division) having not less than five years'
qualifying service; and (c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible advocates on the basis of the written and
viva voce test conducted by respective High Courts;
(2) Appropriate rules
shall be framed as above by the High Court as early as possible."
This Court has stated
that the quota for promotion to the Higher Judicial Service is 50 per cent from
amongst the Civil Judges (Senior Division) on the basis of principle of
merit-cum-seniority and 25 per cent strictly on the basis of merit through
limited competitive examination and 25 per cent by direct recruitment.
5 Subsequent to this
decision, the Government of Uttar Pradesh, in consultation with the High Court,
has amended the U.P.Higher Judicial Service Rules on 9th January, 2007. Prior
to the amended rules, for filling up the vacancies of Higher Judicial Service
there were only two sources i.e. 85 per cent of the posts would be filled up by
promotion based on the principle of seniority-cum-merit and 15 per cent of the
vacancies were to be filled up by direct recruitment from the members of the
Bar. After the judgment of this Court in All India Judges' Association Case
(supra), rules were framed to make it in accordance with the directions given
by this Court. Thus, there were three sources of recruitment i.e. (i)50 per
cent of the vacancies are to be filled up by promotion from Civil Judges
(Senior Division) on the basis of principle of merit-cum-seniority and passing
a suitability test;(ii) 25 per cent by promotion strictly on the basis of merit
through a limited competitive examination of Civil Judges (Senior Division)
having not less than five years qualifying service; and (iii) by direct
recruitment from amongst the advocates of not less than seven years experience.
Though these rules were notified on 9th January, 2007 it was specifically
stated that the amended rules would come into effect from 21.3.2002. It may be
noted that the judgment of this Court in All India Judges' Case (supra) was
pronounced on 21.3.2002.
The grievance of
these petitioners is that these rules which have been published on 9th January,
2007 should not have been given retrospective effect and since retrospective
effect had been given to these rules, it has seriously 6 prejudiced the rights
of the petitioners. According to these petitioners, the vacancies of District
Judges which had arisen prior to 21.3.2002 should have been filled up on the
basis of unamended rules and the recruitment which had taken place based on the
amended rules has affected the vested rights of the petitioners. It is argued
that had these vacancies been filled up on the basis of the unamended rules, at
least some of the petitioners would have got promotion as of right and not
based on the principle of merit-cum- seniority which is incorporated in the
amended rules. It was also argued that prior to the commencement of these rules
85 per cent of the vacancies could have been filled up by promotion from the
cadre of Civil Judges (Senior Division) to the post of District Judges whereas
as per the amended rules only 75 per cent of the Civil Judges (Senior Division)
would get an opportunity to get promotion to the Higher Judicial Service. It
was further argued that when service rules for selection for appointment were
amended it would always take place prospectively and retrospective effect shall
not be given so as to prejudice the vested rights of the candidates.
We do not find much
force in the contention advanced by the petitioners especially in view of the
information furnished by the High Court as regards the recruitment that had
taken place in the year 2008. Prior to 20.3.2002, there were 22 posts of
District Judges that could be filled up and out of these 22 posts of District
Judges if the 85 per cent was taken as per the then existing rules, 19 posts
had to be filled up by promotion from the cadre of Civil Judges (Senior
Division) and three posts had to be filled up by recruitment from the Bar. Also
there were 328 vacancies to be filled up and we are told that the selection
process had already been over and the High 7 Court has recommended for
appointment of 245 candidates. The break-up of the candidates as per the
selection, which is mentioned by the High Court is as follows :
170 candidates had to
be given promotion based on the principle of "merit-cum-seniority"
from the Civil Judges (Senior Division) to fill up 50 per cent of vacancies and
all the 170 vacancies had been proposed to be filled up and for the 25 per cent
of promotion of Civil Judges (Senior Division) based on merit none was found
suitable and these 76 posts also were added to the 50 per cent and the total
number of 245 candidates in the cadre of Civil Judges (Senior Division) had
been now proposed to be promoted to the cadre of District Judges and 82 direct
recruits of District Judges have been selected from the bar and that also is
proposed to be appointed and a total of 286 candidates have been included in
the list of candidates who are to be promoted.
Learned senior
counsel appearing for the petitioners had also contended that prior to the
amendment of these rules, the promotion to the cadre of District Judges was
based on the principle of "seniority-cum-merit"
and now as per the
amended rules, pursuant to the directions of this Court, the principle has now
been changed to "merit-cum-seniority" and this has seriously affected
the rights of the members of the Civil Judges (Senior Division). However, learned
senior counsel appearing for the State of Uttar Pradesh has contended that in
the process of promotion, merit alone was not being given importance. Even if
the principle of merit-cum-seniority has to be applied the principle is that if
the candidates are eligible for promotion to the cadre of District Judges the
seniority in the feeder category has to be 8 maintained as regards 50 per cent
of the promotions are concerned. Of course, in the case of 25 per cent
promotions, the test must be rigorous as held by this Court and the promotion
under the 25 per cent category of Civil Judges (Senior Division) to the
category of District Judges be strictly on merit and that too subject to the
rigorous selection and such candidate may supersede some of their colleagues in
the feeder category i.e. Civil Judges (Senior Division). Going by the
information submitted by the High Court regarding the 2008 selection, we are
satisfied that the rules have been complied with. Of course, as regards other
objections, if any, we are not expressing anything on merits as the
recommendation itself is not under challenge before us. Resultantly, we do not
find any merit in these writ petitions and the applications and the same are
disposed of accordingly.
...............CJI.
(K.G. BALAKRISHNAN)
.................J.
(P. SATHASIVAM)
.................J.
(J.M. PANCHAL)
NEW
DELHI;
4TH
SEPTEMBER, 2008.
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