Ashok Pal Singh &
Ors. Vs. U.P. Judicial Services Asson. & Ors. [2010] INSC 735 (13 September
2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1312 OF 2005 Ashok Pal
Singh & Ors. ....... Appellants UP Judicial Services Association & Ors.
....... Respondents With Civil Appeal No. 1313 of 2005 And CA 7927/2010 (@
SLP(C) No. 11476/2005)
R. V. RAVEENDRAN J.
Leave granted in SLP
(C) No.11476 of 2005. These appeals arise out of yet another round of
litigation in the dispute between direct recruits and promotees in the Uttar
Pradesh Higher Judicial Service, having its genesis in two decisions of this
Court in the earlier rounds.
2. The recruitment
and appointment to the Uttar Pradesh Higher Judicial Service consisting of a
single cadre comprising the posts of District and Sessions Judges and
Additional District and Sessions Judges are governed and regulated by the U.P.
Higher Judicial Services Rules, 1975, (`Rules' for short) framed under Article
309 read with Article 233 of the Constitution of India. The said Rules were
amended by the UP Higher Judicial Services (Fourth Amendment) Rules, 1996, with
effect from 15.3.1996. For convenience, the Rules before amendment will be referred
to as the `Unamended Rules' and the Rules after the 1996 amendment will be
referred to as the `Amended Rules'. As we are concerned with the recruitments
for the years 1988, 1990, 1992-1994 and 1998-2000, it may be necessary to refer
to the unamended Rules in regard to the recruitments relating to 1988, 1990 and
1992-1994, and the amended rules with reference to the 1998-2000 recruitment.
Rules 5, 6, 8, 20, 22 and 26 are relevant and they are extracted below :
"5. Source of
recruitment - The recruitment to the Service shall be made - (a) by direct
recruitment of pleaders and advocate of not less than seven years standing on
the first day of January next following the year in which the notice inviting
applications is published :
3 (b) by promotion
of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to
as the Nyayik Sewa, who have put in not less than seven years service to be
computed on the first day of January next following the year in which the
notice inviting applications is published:
Provided that for so
long as suitable officers are available from out of the dying cadre of the
Judicial Magistrate, confirmed officers who have put in not less than seven
years service to be computed as aforesaid shall be eligible for appointment as
Additional Sessions Judges in the Service.
xxx xxx xxx
6. Quota - Subject to
the provisions of rule 8, the quota for various source of recruitment shall be-
(i) Direct recruitment from the Bar : 15% (ii) Uttar Pradesh Nyayik Sewa : 70%
of the vacancies.
(iii) Uttar Pradesh
Judicial Officers Service (Judicial Magistrates) : 15% 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,
become 85 per cent.
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.
4 (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 [Note : The first proviso to sub-Rule (2) of
Rule 8 was amended by the Amendment Rules of 1996 omitting the crucial word
"permanent" when referring to "15% of the total permanent
strength of the service". The first proviso as amended, reads thus :
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 strength of the service.] 20. Promotion of members of Nyayik
Sewa :
5 (1) Recruitment by
promotion of the members of the Nyayik Sewa shall be made by selection on the
principle of seniority-cum-merit.
xxx xxx xxx (4) The
Selection Committee shall forward the list of the candidates chosen at the
preliminary selection to the Chief Justice along with the names of the officers
who, if any, in the opinion of the Committee have been passed over for
promotion to the service.
(5) The Court shall
examine the recommendations of the Selection Committee and make a final
selection for promotion and prepare a list in order of seniority of the
candidates who are considered fit for promotion and forward the same to the
Governor.
The list shall remain
operative only till the next recruitment.
22. Appointment- (1)
Subject to the provisions of sub-rules (2) and (3), the Governor shall on
receipt from the Court of the list mentioned in Rules 18, 20, and 21 make
appointments to the service on the occurrence of substantive vacancies by
taking candidates from the lists in the order in which they stand in the
respective lists.
(2) Appointments to
the service shall be made on the rotational system, the first vacancy shall be
filled from the list of officers of the Nyayik Sewa, the second vacancy shall
be filled from the list of direct recruits (and so on), the remaining vacancies
shall thereafter be filled by promotion from the list of the officers of the
Nyayik Sewa.
Provided that for so
long as suitable officers are available from the cadre of the Judicial
Magistrates, appointments to the service shall be made in such a way that the
second fifth and eighth (and so on), vacancy shall be filled from the list of
Judicial Magistrates.
(3) Appointment for
temporary vacancies or in officiating capacity shall be made by the Governor in
consultation with the Court from amongst the members of the Nyayik Sewa.
Provided that for so
long as suitable officers are available from the cadre of the Judicial
magistrate, appointments on temporary vacancies or in officiating capacity
shall be made in consultation with the Court from amongst the Judicial
Magistrate according to the quota fixed for that source under these rules:
6 Provided further
that for so long as such members of the Judicial Service as are considered
suitable for appointments on temporary vacancies or in officiating capacity,
are not available in sufficient number, the Governor in consultation with the
Court may fill in not more than 50 per cent of such vacancies from amongst the
officers of the cadre of Judicial Magistrates.
(4) The appointments
shall be made on rotational system, the first vacancy shall be filled from the
list of officers of the Nyayik Sewa, the second vacancy shall be filled from
the list of Judicial Magistrates (and so on).
[Note : Sub-Rule (3)
and its two provisos of Rule 22 were substituted by the following by the
Amendment Rules of 1996 :
(3) In the
eventuality of delay in making appointment under sub-rule (1) and further if
exigency of service so requires, the Governor may, in consultation with the
Court, make short term appointment as a stop-gap arrangement from amongst the
members of Nyayik Sewa in the vacancy in these services within the quota fixed
by the Court till the appointments are made under sub- rules (1) and (2) :
Provided that the
period of service spent by the member of Nyayik Sewa on short term appointment
to the service as a stop-gap arrangement shall not be computed for seniority
under Rule 26.]
26. Seniority - (1)
Except as provided in sub-rule (1), seniority of members of the service shall
be determined as follows :
(a) Seniority of the
officers-promoted from the Nyayik Sewa vis-`-vis the officers recruited from
the Bar shall be determined from the date of continuous officiation in the
service in the case of promoted officers and from the date of their joining the
service in the case of direct recruits.
Where the date of
continuous officiation in the case of an officer promoted form the Nyayik Sewa
and the date of joining the service in the case of a direct recruit is the
same, the promoted officer shall be treated as senior Provided that in the case
of a promoted officer the maximum period of continuous officiation in the
service shall not, for the purpose of determining seniority exceed three years
immediately preceding the date of confirmation;
Provided that where
any officer is not found fit for confirmation and is not confirmed in his turn,
the officiating period or the probationary period, as the case may be, prior to
the date of decision taken by the High Court in this behalf shall not be taken
into account for purposes of computing the 7 period of continuous officiation
or for purposes of working out the date of joining of the service, as the case
may be;
(b) Seniority inter
se of the officers appointed from out of the Judicial Magistrates shall be
determined from the date of continuous officiation, provided that in the case
of officers appointed on the basis of one selection, their seniority shall be
determined according to their seniority in the Uttar Pradesh Judicial Officers
Service:
Provided further that
where an officer is not found fit for confirmation and is not confirmed in his
turn, the officiating period prior to the date of decision taken by the High
Court in this behalf shall not be taken into account for computing the period
of continuous officiation.
(2) Seniority of
members of the service who have been confirmed in the service prior to the
commencement of these rules shall be as has been determined by the order of
Government as amended from time to time.
[Note : Rule 26 of
1975 Rules was substituted in entirety by the following by the Amendment Rules
of 1996 :
26. Seniority - (1)
Seniority of the officers appointed in the service shall be determined in
accordance with the order of appointment in the Service under sub-rules (1) and
(2) of Rule 22 of these rules.
(2) Seniority of
members of the service who have been confirmed in the service prior to the
commencement of these rules shall be as has been determined by the order of the
Government as amended from time to time.]
3. The dispute
between the promotees and direct recruits in regard to their inter-se seniority
in the Uttar Pradesh Higher Judicial Services came up before this Court at the
instance of promotees in P.K. Dixit vs. State of Uttar Pradesh - 1987 (4) SCC
621. This Court allowed the petitions and directed preparation of fresh
seniority list in accordance with the following directions:
8 "(i) So far
as the posts available on a particular dated i.e. May 10, 1974 are concerned
the High Court will have to look into the matter afresh and decide the
seniority in the light of the above position. But after the 1975 Rules came
into force, the appointments to the Higher Judicial Service either on the basis
of direct recruitment or on the basis of promotion must have been in accordance
with these rules and it is expected that the probation, confirmation and
seniority must have been looked into by the High Court strictly in accordance
with these Rules.
(ii) Under Rule 22(3)
appointment to temporary vacancies shall be made only from the Nyayik Sewa and
as and when a substantive vacancy arises and the procedure for selection is to
be followed, the officers who were appointed to fill in the temporary posts
should be considered first and appointed on probation, if found fit. When appointment
under Rule 22 is contemplated in the service of substantive vacancies, it may
be both temporary or permanent but the vacancy must be in the cadre. A person
could only be confirmed when a permanent post is available for him.
(iii) If a person is
appointed to officiate in the Higher Judicial Service his case for confirmation
normally will be considered within three years and either he will be confirmed
or will be reverted. The High Court must examine the case of a promotee officer
within three years and decide whether the officer deserves to be confirmed or
deserves to be reverted. It is with this view that Rule 23 provides that period
of probation shall not ordinarily exceed three years and Rule 26 provides that
in case of promotee officer's continuous officiation even if it is for more
than three years, only three years will be counted for purpose of seniority.
This itself contemplates that such an occasion shall not arise when a person
may be officiating for more than three years and still his case has not been
considered for confirmation."
4. Pursuant to the
judgment in P.K. Dixit, the High Court issued a tentative seniority list on
11.2.1988 and objections were invited. The promotees were satisfied that the
said list was drawn in conformity with the judgment in P.K.Dixit and
unobjectionable. The High Court constituted a Five-Judge Committee to finalise
the list. On the basis of the report of the committee, final seniority list was
issued on 25.8.1988. Aggrieved by the 9 final seniority list, the promotees
(O.P. Garg and four others) filed a writ petition. The petitioners P.K. Dixit
filed an application in the said petition seeking clarification and supporting
the case of the promotees. The direct recruits filed a writ petition
challenging the final seniority list issued by the High Court. Both sides
contended, for different reasons, that the final seniority list dated 25.8.1988
was contrary to the decision in P.K. Dixit. This court found that the High
Court, the direct recruits and promotees were interpreting the directions and
observations in P.K. Dixit differently.
Therefore this court
in its judgment dated 23.4.1991, reported in O.P. Garg v. State of U.P. &
Ors. - 1991 (Supp) 2 SCC 51, decided to take a fresh look into the matter in
regard to aspects which were not dealt with and decided by P.K. Dixit. This
court, therefore, posed the following three questions for consideration :
1. What is the scope
and interpretation of second proviso to Rule 8(2) of the 1975 rules? Whether
the Additional District and Sessions Judges, holding the posts on April 5,
1975, can claim that by operation of the 1974 Rules they stood appointed to the
service and as such consumed all the posts which were available on April 5,
1975 or they were only entitled to vacancies under the second proviso to Rule
8(2) of the 1975 rules?
2. Whether the period
of continuous officiation in case of a promotee, for determining seniority, is
to be counted in terms of First proviso to Rule 26(1)(a) of the 1975 Rules or
in accordance with the principle adopted by the High Court. Isn't it 10 the
requirement of law that a promotee is entitled to seniority in the service from
the date when vacancy in his quota became available?
3. Seniority and
appointment in the service being inter- linked a further question which
necessarily arises for our consideration is whether Rules 22(3) and 22(4) of
the 1975 rules, which provide appointments to temporary posts in the service
from two sources of promotees excluding the direct recruits, can be legally
sustained? On consideration of the issues, this Court quashed the final
seniority list dated 25.8.1988 with a direction to the High Court to prepare,
circulate, invite objections and then finalize the seniority list keeping in
view the following directions, declarations and findings:
"(i) All the 236
promotee officers working against 236 posts (229 permanent plus 7 temporary) as
Additional District and Sessions Judges on April 5, 1975 shall be deemed to be
existing members of the Service as constituted under the Rules with a direction
that they shall en bloc rank senior to all other officers appointed to the
service thereafter from three sources in accordance with their quota under the
Rules.
(ii) The first
proviso to Rule 26(1)(a) of the Rules was struck down with a direction that the
continuous officiation/service by a promotee appointed under the Rules shall be
counted for determining his seniority from the date when a substantive vacancy
in permanent or temporary post is made available in his quota under the Rules.
(iii) Sub-rules (3)
and (4) of Rule 22 were struck down with the saving that the appointments
already made under the said Sub-rules shall not be invalidated.
(iv) While selecting
candidates under Rule 18 of the said rules, the committee shall prepare a merit
list of candidates twice the number of vacancies and the said list shall remain
operative till the next recruitment;
and the appointments
under Rules 22(1) and 22(2) of the Rules shall be 11 made to permanent as well
as to temporary posts from all the three sources in accordance with the quota
provided under the said rules.
5. In pursuance of
the decision in O.P. Garg, the High Court calculated the vacancies under
different quotas for recruitment/promotion for different periods. The dispute
centering around the method of calculation made by the High Court in regard to
the ratio between direct recruits and promotees in a given year, again came up
before this court in one more round between promotees and direct recruitees in
Srikant Tripathi & Ors. v. State of U.P. & Ors. [2001 (10) SCC 237],
wherein this Court issued 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.
6. On 30.11.2001 the
Chief Justice of the High Court placed the matter before the Administrative
Committee of the High Court, for implementation of the directions in Srikant
Tripathi. On 5.12.2001, the Administrative Committee in turn constituted a
Three Member Sub-Committee to examine and submit a report. The Sub-Committee
examined the matter and submitted 13 a report dated 24.8.2002, determining the
actual number of vacancies available for the 1988, 1990, 1992-1994 and the 1998
(initiated in 2000) and the actual recruitments made, with other details. We
extract below the operative portion of the said report:
"The office on
re-examination of record has found that 13 vacancies were left out
inadvertently from being incorporated in the existing Gradation List. The
details of those vacancies have been given on page no.13 of the appendix
attached herewith.
Before the process of
1988 recruitment could commence, 5 direct recruits were appointed in the U.P.
Higher Judicial Service Cadre on different dates under the order of Hon'ble
Supreme Court. Since no vacancies have been allocated to them in the existing
Gradation List, we have allocated 5 vacancies out of 13 left out vacancies to
these direct recruits, the details of which have been shown on page no.14.
As per direction no.5
referred to above, we have determined the vacancies after taking into account
the vacancies which existed before 1.1.1988 and also the vacancies which
actually occurred or accrued during the recruitment period and not on the basis
of the expression `likely to occur'.
On re-calculation, we
find that in all there were 314 actual vacancies available for 1988
recruitment, as shown below and whose details are indicated on page 16 of the
appendix.
(A) Vacancies which
remained unfilled prior to 1.1.1988 Remaining vacancies out of 13 vacancies
which were left out inadvertently in the Gradation List 08 Vacancies which
occurred or accrued between- 24.5.1984 to 31.12.1984 23 1.1.1985 to 31.12.1985
34 1.1.1986 to 31.12.1986 40 1.1.1987 to 31.12.1987 129 ______ Total 234 14
______ (B) Vacancies which actually occurred or accrued between - 1.1.1988 to
31.12.1990 80 Total number of vacancies available for recruitment 314 Though as
per quota Rule, 47 direct recruits could be appointed out of 314 vacancies but
because of the ceiling imposed under the Rules, only 42 direct recruits could
be appointed as their number could not at any point of time exceed 15% of the
Cadre strength. Instead of 42, only 24 direct recruits were recruited from the
Bar and 3 vacancies within their quota were kept reserved for SC/ST candidates
which were carried forward to the next recruitment. We thus find that the
appointment of the direct recruits made in 1988 recruitment was not in excess
of their quota. The Apex Court observed as under:
"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."
Since from the chart
prepared on page 16 it is apparent that there has been no appointment in excess
of the quota of direct recruits in 1988 recruitment, no question thus arises
for the seniority of the direct recruits being adjusted in the next recruitment.
On the same basis,
similar exercise was made in relation to subsequent recruitments of 1990 and
1992-94 batches. The position of the actual vacancies available for these
recruitments has been exhibited in the charts on pages 38 and 48 respectively.
For the latest
recruitment of 2000, the court has fixed the number of direct recruits to be
recruited as 38. We have worked out the total number of vacancies available for
this recruitment and they have been indicated in the chart shown on page 69.
From this chart it would appear that maximum number of direct recruits who
could be appointed under the Rules comes to 38. Advertisement has also been
made for making 38 15 appointments within the quota of direct recruits. In
this view of the mater 38 appointments within the quota of direct recruits has
to be made in the 2000 recruitment. We have been told that examination has
already been held but its result is awaited as vacancies were to be calculated
afresh in the light of the directions of the Apex Court in the case of Shri
Kant Tripathi. Direction no. 6 was in the following term:
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.
As a matter of fact
no recruitment was made in 1998, instead the court has initiated the
recruitment process for 2000 recruitment.
On re-calculation, we
have already found above that 38 vacancies are available in the quota of direct
recruits for their appointment in 2000 recruitment. Advertisement was also made
for the same number of posts.
Therefore, 38
appointments may be made from the members of the Bar in accordance with the
Rules. Similarly 334 promoted officers, if available and found suitable, be
also recruited for appointment to service in accordance with rule 22(1) read
with rule 22(2).
For future
recruitment, office is directed to take steps in accordance with direction
no.7. Office shall immediately calculate the actual number of vacancies as are
found existing on the date of such determination. It shall also work out the
probable vacancies likely to occur in the next two years from that date by
reason of superannuation. This figure shall be added to the number of existing
vacancies and thereafter the percentage of vacancies available for both the
sources shall be fixed and steps shall be taken for filling up the same
expeditiously. The vacancies which are worked out in the direct recruits quota
shall be advertised without any variation clause.
16 We may add that
we have not gone into the question of inter se seniority between the promoted
officers and the direct recruits because for that purpose a separate Committee
has been constituted by the Chief Justice."
The factual position
as worked out in the annexures to the said report is as under :
Description 1988 1990
1992-94 1998 (with expected (with expected (with expected (with expected
vacancies upto vacancies upto vacancies upto vacancies upto 31.12.1990)
31.12.1992) 31.12.1997) 2000) Total vacancies Carried forward 8 96 117 196
Vacancies during the period 306 44 261 176 _____ _____ _____ _____ Total 314
140 378 372 Allotment of vacancies Promotees 267 119 321 316 Direct recruits 47
21 57 56 Cadre strength Permanent 376 511 572 572 Temporary 219 85 169 226
_____ _____ _____ _____ Total 595 596 741 798 15% of cadre strength 89 89 111
120 (maximum number of direct recruits permissible with reference to cadre
strength) Actual number of direct recruits 47 73 66 82 working 17 Maximum
number of direct 42 16 45 38 recruits who could be appointed Actual recruitment
Promotees 191 17 161 (48+113) Permissible:334 Direct recruits 24 5 Permissible
: 38 Vacancies kept reserved for 3 1 SC/ST Unfilled to be carried forward 96
117 196 The said report was approved by the Administrative Committee on
4.9.2002 and was approved by the Full Court of the High Court on 1.2.2004.
7. The promotees were
aggrieved by the acceptance of the Report by the Full Court. They contended
that calculations made by the Sub-Committee and the conclusion arrived by it
that that the actual number of direct recruitment made for the said years was
not in excess of the quota available for direct recruits, were erroneous.
According to them, the posts available in the quota of promotees (Nyayik Sewa
Officers) was 475 for 1998 recruitment and not 334. They also disputed the
finding that 38 vacancies were available for direct recruitment in 1998. Their
cause was espoused by the UP Higher Judicial Service Association by filing a
writ petition (WP No.316 of 2004) seeking the following reliefs :
18 (i) a direction
to the State and the High Court not to make any appointment by direct
recruitment in the UP Higher Judicial Service until the posts available for
promotion of members of the UP Nyayik Sewa with effect from 1988 recruitment
are calculated and filled up in accordance with the Rules as directed by this
Court in S.K. Tripathi;
(i) a direction to
the State and the High Court to appoint to the UP Higher Judicial Service, the
members of the said Association against the 222 existing vacancies in the quota
of promotees; and (iii) quashing the decision of the Full Court of the High
Court dated 1.2.2004 accepting the recommendations of the three-member
Committee dated 24.8.2004.
8. A Division Bench
of the High Court allowed the said writ petition by the impugned order dated
25.8.2004. It quashed the resolution of the Full Court dated 1.2.2004 accepting
the recommendations of the three-member Committee dated 24.8.2002 and directed
a fresh exercise to be carried out in the light of Srikant Tripathi to
determine the vacancies and their distribution between the three sources of
recruitment as per their quota under the Rules, for the recruitment years 1988
to 1998 in accordance with the following guidelines :
(1) The number of the
officers of Nyayik Sewa and Judicial Service who were already promoted and
appointed against temporary posts under Rule 22(3) or 22(4) of the Rules and
whose appointments have been protected in O P Garg would be taken into
consideration and the number of vacancies equal to the number of such officers
shall be excluded from computation.
(2) While applying
the ratio of judgment in O P Garg and distributing temporary as well as
permanent vacancies, allocation of 15% vacancies of the quota of direct
recruits under rule 6 of the Rules, has further to be subject 19 to ceiling of
15% of the permanent strength of service, till the amendment in the rules came
into effect i.e. 25th February, 1996.
(3) While making an
exercise to find out (in accordance with direction no.2) as to whether the
direct recruits taken into service are in excess of the quota or not,
simultaneous exercise has to be done for compliance of direction no.3 in S.K.
Tripathi and vacancies of the quota of promotees shall be deemed to have been
filled up from the date they are entitled to promotion.
(4) Thirty one posts
of the service which have been transferred to Uttaranchal with effect from
30.9.2001 shall be excluded while determining the strength of the service in
order to work out 15% of the quota of direct recruits.
(5) Out of 13
unnoticed vacancies, found by the office in the year 1988 only two vacancies
equal to 15% of the quota of direct recruits be given to them instead of
adjusting five appointments en bloc and again giving one out of eight vacancies
to them applying 15% quota rule.
(6) The second
proviso to Rule 6 be also given effect to as and when the occasion arises.
The Division Bench
issued a consequential direction that the State Government and the High Court
cannot be permitted to appoint thirty eight direct recruits for the 1998
recruitment year and permitted the State and the High Court to proceed with the
appointment of direct recruits for 1998 not exceeding twenty four and also fill
up 334 posts by promotion subject to the final determination of vacancies in
accordance with the directions contained therein. The said order is challenged
in these civil appeals.
9. Judicial Officers
belonging to U.P. Higher Judicial Service appointed in the direct recruits
quota, in the years 1988, 1990, 1992 and 1994, who were not parties before the
High Court and whose seniority is adversely affected by the order of the
division bench of the High Court are the appellants in C.A. No.1312/2005.
The High Court of
Allahabad which was the second respondent in the writ petition filed by the
U.P. Judicial Service Association, is the appellant in C.A.No.1313/2005.
The candidates who
participated in the U.P. Higher Judicial Service Examination, 2000 for direct
recruitment and whose names are found in the select list but who are not
appointed in view of the directions in the impugned order (to restrict the
appointments to only 24 instead of 38), have filed the last appeal.
10. The appellants
(direct recruits, the High Court administration and the prospective direct
recruits) in their respective appeals, have contended that directions (1), (2),
and (3) issued by the Division Bench as also the consequential direction to
conduct a fresh exercise in the light of Srikant 21 Tripathi are erroneous and
require interference. Their contentions in brief are:
(a) The direction by
the division bench of the High Court that the vacancies occupied by promotees
in excess of their quota whose appointments were protected by the Supreme
Court, shall be excluded from the computation of the respective quotas for
direct recruitments and promotion, is contrary to the decision in Srikant
Tripathi, but also inconsistent with the settled legal position vide A. K.
Subraman vs. Union of India - (1975) 1 SCC 319 and P.S. Mahal vs. Union of
India - (1984) 4 SCC 545.
(b) The
interpretation of the first proviso to Rule 8(2) is contrary to the decision in
O.P. Garg and inconsistent with the views of this Court in OP Singla & Anr.
vs. Union of India & Ors. - (1984) 4 SCC 450.
(c) The direction
that the ceiling of 15% of permanent strength of the service should be given
effect, till the amended Rules came into effect (15.3.1996), instead of
treating 15% of the cadre strength as quota for direct recruits, is contrary to
the decision in O.P. Garg, holding that "all temporary posts created under
Rule 4 (4) of the 1975 Rules are additions to the permanent strength of the
cadre and as such form part of the cadre."
11. On the
contentions raised, the following questions arise for our consideration :
(i) Whether the
vacancies occupied by judicial officers promoted and appointed against
temporary posts under Sub-Rules (3) or (4) of Rule 22 should be excluded when
computing the respective quotas for promotees and direct recruits? 22 (ii)
Whether the direct recruits are entitled to 15% of the vacancies as a fixed
quota or whether the said percentage is a ceiling imposed in regard to direct
recruitment meaning that the vacant posts shall not be filled up more than 15%
by the direct recruits? (iii) Whether the words "15% of the total
permanent strength of the service" occurring in first proviso to sub-Rule
(2) of Rule 8 of the unamended Rules (as contrasted from "15% of the
strength of the service"
after the amendment),
shall be given effect in computing the respective quotas of promotees and
direct recruits till the amendment of Rules (effective from 15.3.1996) deleting
the word "permanent" in the said first proviso? (iv) Whether the
procedure of carrying forward vacancies adopted by the full court of the High
Court is erroneous having regard to the specific provisions of Rule 8(2) and
direction no.3 issued by this Court in Srikant Tripathi? The answers to these
questions would to a large extent depend upon the interpretation of the earlier
decisions of this Court in O.P. Garg and Srikant Tripathi.
Re : Question (i) 23
12. In O. P. Garg,
this Court struck down Rules 22(3) and 22(4) which confined the appointment to
temporary posts to only promotees (Nyayik Sewa and Judicial Magistrates) held
that when temporary posts under Rule 4(4) of the 1975 Rules are created as
addition to the cadre, the direct recruits could not be denied their share of
the quota as provided under Rule 6 of the said Rules; and as the services were
comprised of three sources including the direct recruitment, there was no
justification to deprive the direct recruits of their share in the temporary
posts in the service. This court also struck down the first proviso to Rule
26(1)(a). As a result this Court directed :
"We also strike
down Rules 22(3) and 22(4) of the 1975 Rules but the appointments already made
under these rules shall not be invalidated. We further direct that while
selecting candidates under Rule 18 of the said Rules the Committee shall
prepare a merit of candidates twice the number of vacancies and the said list
shall remain operative till the next recruitment. We further direct that the
appointments under Rules 22(1) and 22(2) of the 1975 rules shall be made to
permanent as well as to temporary posts from all the three sources in
accordance with the quota provided under the said rules."
Since the recruitment
to the service is from three sources, the existence of a vacancy either
permanent or temporary is the sine qua non for claiming benefit of continuous
length of service towards seniority. The period of officiation/service which is
not against a substantive vacancy (permanent or temporary) cannot be counted
towards seniority. While striking down first proviso to Rule 26(1)(a) of the
1975 Rules, we hold that the continuous officiation/service by a promotee shall
be counted for determining his seniority only from the date when a substantive
vacancy against a permanent or temporary post is made available in his quota
under the 1975 Rules."
13. As a consequence
of striking down of the sub-rules(3) and (4) of Rule 22, the appointments
already made by applying those rules had to be 24 invalidated to the extent of
15% which was the quota of direct recruits, resulting in the reversion of those
who were promoted to vacancies to which direct recruits were entitled and
filling those vacancies by direct recruitment.
But, this Court did
not want any of the appointments already made under the sub-rules 22(3) and (4)
to be invalidated. It, therefore, extended limited protection to those
appointments of promotees already made to the higher temporary posts which
ought to have gone to the direct recruits quota by directing that appointments
already made under Rules 22(3) and 22(4) shall not be invalidated. This saved
such promotees from reversion. What was saved was only their appointments and
not the seniority by reason of the illegal appointments. The effect of saving
the promotee from invalidation of the promotion is that he would be allowed to
continue, but his seniority will be reckoned only when he is adjusted against a
promotee vacancy in the next recruitment. Therefore all the consequences of
striking down Rules 22(3) and 22(4) followed, the only consequence that was
excluded was the invalidation of appointments already made by applying the said
sub-rules 22(3) and 22(4). Such protection cannot be widened or extended, to
deny the quota of direct recruits in the temporary vacancies and thereby
nullify the striking of the said sub-rules. Nor can the protection against
invalidation of promotion be used to exclude the number of vacancies equal to
the 25 number of officers who were given protection, while computing the
vacancies to be filled by different sources. Consequently, in spite of the protection
against invalidation and reversion, all the appointments of promotees to
temporary vacancies will have to be counted and adjusted against the
substantive vacancies under promotee quota under the Rules. In short, the
direct recruits should be given quota in the temporary posts also.
Therefore, the first
direction in the impugned judgment of the High Court (that vacancies occupied
by promotees in excess of their quota shall be excluded from computation of
respective quotas for direct recruitment and promotion) is contrary to the
decision in O. P. Garg, and cannot be sustained.
Re : Question No.(ii)
14. Rule 6 relates to
quota for various sources of recruitment and provides the quota for direct
recruitment from the Bar shall be 15% of the vacancies subject to the provision
of Rule 8. Sub-Rule (2) of Rule 8 provides that if at any selection, the number
of selected direct recruits available for appointment is less than the number
of recruits decided by the High Court to be taken from that source, the court
may increase accordingly the number of recruits to be taken by promotion from
the Nyayik Sewa. The first proviso to 26 the said sub-rule provides that the
number of vacancies filled in as aforesaid under the Sub-Rule (2) of Rule 8
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 and in so doing, the percentage
of direct recruits in the service does not in any case exceed 15% of the total
permanent strength of the service. By the 1996 amendment to the Rules, with
effect from 15.3.1996, the word total permanent was deleted and as a result the
last part of the first proviso to Rule 8(2) from 15.3.1996 reads thus :
"so, however, that the percentage of direct recruits in the service does
not in any case exceed 15% of the strength of the service".
15. The promotees
contend that having regard to the wording of Rule 8(2) and its first proviso,
there is a ceiling of 15% of the total permanent strength for direct recruits.
They contend that while the appointments by direct recruitment could not exceed
15% of the strength of the service, the appointment by promotion can exceed the
quota of 85%. On the other hand, the direct recruits contend that their quota
is 15% of the strength of the service. They point out that even if any
shortfall in the number of selected direct recruits is filled by increasing the
number of promotees, at the next 27 recruitment, the shortfall has to be made
good while fixing the number of vacancies to be filled by direct recruits and
by promotion and this showed that their quota was 15%.
16. Both sides relied
upon the decision of this Court in O,P, Singla vs. Union of India - (1984) 4
SCC 450, in support of their respective contentions. While the promotees relied
upon para 16 of O.P. Singla to contend that the Rules refer to the 15% as a
ceiling for appointment of direct recruits and there is no obligation to fill
15% of the vacancies with direct recruits, direct recruits relied upon para 17
of O.P. Singla, to contend that the Rules prescribe a quota of 15% for direct
recruits. We extract below the relevant observations from O.P. Singla :
"16. Logically,
we must begin this inquiry with the question as to the interpretation of the
proviso to Rule 7. Does that proviso prescribe a quota or does it merely
provide for a ceiling ? In other words, does the proviso require that, at any
given point of time, 1/3rd of the substantive posts in the Service shall be
reserved for direct recruits or does it only stipulate that the posts held by
direct recruits shall not be more than 1/3rd of the total number of substantive
posts in the Service ? The proviso reads thus:
Provided that not
more than 1/3rd of the substantive posts in the Service shall be held by direct
recruits.
This language is more
consistent with the contention of the promotees that the proviso merely
prescribes, by way of imposing a ceiling, that the direct recruits shall not
hold more than 1/3rd of the substantive posts.
Experience shows that
any provision which is intended to prescribe a quota, generally provides that,
for example, "1/3rd of the substantive posts shall be filled in by direct
recruitment." A quota provision does not 28 use the negative language, as
the proviso in the instant case does, that "not more than" one-third
of the substantive posts in the Service shall be held by direct recruits.
17. If the matter
were to rest with the proviso, its interpretation would have to be that it does
not prescribe a quota for direct recruits : it only enables the appointment of
direct recruits to substantive posts so that, they shall not hold more than
1/3rd of the total number of substantive posts in the Service. However, it is
well recognised that, when a rule or a section is a part of an integral scheme,
it should not be considered or construed in isolation. One must have regard to
the scheme of the fasciculus of the relevant rules or sections in order to
determine the true meaning of any one or more of them. An isolated
consideration of a provision leads to the risk of some other inter-related
provision becoming otiose or devoid of meaning. That makes it necessary to call
attention to the very next rule, namely, Rule 8. It provides by Clause 2 that :
The seniority of
direct recruits vis-a-vis promotees shall be determined in the order of
rotation of vacancies between the direct recruits and promotees based on the
quotas of vacancies reserved for both categories by Rule 7 provided that the
first available vacancy will be filled by a direct recruit and the next two
vacancies by promotees and so on.
This provision leaves
no doubt that the overall scheme of the rules and the true intendment of the
proviso to Rule 7 is that 1/3rd of the substantive posts in the Service must be
reserved for direct recruits. Otherwise, there would neither be any occasion
nor any justification for rotating vacancies between direct recruits and
promotees. Rule 8(2), which deals with fixation of seniority amongst the
members of the Service, provides, as it were, a key to the interpretation of
the proviso to Rule 7 by saying that the proviso prescribes "quotas"
and reserves vacancies for both categories.
The language of the
proviso to Rule 7 is certainly not felicitous and is unconventional if its
intention was to prescribe a quota for direct recruits.
But the proviso, as I
have stated earlier, must be read along with Rule 8(2) since the two provisions
are inter-related. Their combined reading yields but one result, that the
proviso prescribes a quota of 1/3rd for direct recruits."
(emphasis supplied)
17. Whether the Rules
provide for a specific fixed quota for the direct recruits or whether they
merely indicate the ceiling for the appointment by direct recruitment would
therefore depend on the wording of the Rules. Rule 6 provides a specific quota
of 15% of the vacancies for direct recruits. But as rule 6 provides that the
same shall be subject to the provision of Rule 8, the question is whether rule
8 modifies the quota of direct recruits from `15% of the vacancies' to `not
more than 15% of the vacancies'. Rules 6 and 8 were interpretated in Srikant
Tripathi thus :
"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.
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 percent 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 percent of the cadre strength,
there is no prohibition so far as promotees are concerned and, therefore, in a
given 30 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."
(Emphasis supplied)
18. Though the Rules
do not compel the High Court to recruit 15% of the vacancies by direct
recruitment at every recruitment, they require the High Court to take note of
any shortfall in the number of direct recruits at recruitment, during the next
recruitment by raising the quota correspondingly. Thus when the first proviso
to Rule 8(2) uses the words that the "percentage of direct recruits in the
services does not in any case exceed 15%", the intention is to ensure that
the direct recruits maintain their quota of 15%, that is, while doing
adjustments in fixing the number of vacancies to be filled by direct
recruitment at a subsequent recruitment to make good the shortfall at a
previous recruitment to maintain 15%, the quota of direct recruit be exceeded.
This means that the quota of direct recruits is 15% of the strength of the
service. The entire purpose of the exercise is to maintain the 15% quota of the
direct recruits. To conclude, the following clear indicators show that the
quota of direct recruits is `15%' and not "upto 15%" :
31 (a) Rule 6 uses
the words "15% of the vacancies" as the quota of direct recruits and
does not use the words "not more than 15% of the vacancies".
(b) The purpose and
intent of Rule 8(2) is not to dilute or change the quota of direct recruits.
Its object is to ensure that no vacancy remains unfilled for want of adequate
number of direct recruits under their 15% quota. This is because there are
reasonable chances of adequate number of candidates being not available for
direct recruitment, whereas usually sufficient number of candidates will be
available for promotion. The first proviso to Rule 8(2) ensures that the
shortfall in 15% quota for direct recruits in any recruitment does not get
permanently converted to promotee quota, by providing that the shortfall shall
be made good at the next recruitment. The words "does not in any case
exceed 15%" are used to further ensure that while making good the
shortfall of direct recruits at the next recruitment, the direct recruits do
not encroach upon the quota of promotees.
(c) The provision for
appointment to the service by rotational system (that is Rule 22(2) providing
that the first vacancy to be filled from the list of 32 Nyayik Sewa Officers
and the second vacancy to be filled from the list of direct recruits and so
on), makes it clear that the overall scheme of the Rules is to provide a clear
15% quota for direct recruits.
19. Let us illustrate
with a case where the quota of direct recruits at a recruitment with reference
to available vacancies, was 20 and only 10 direct recruits were available.
Having regard to the Rule 8(2), the remaining 10 vacancies need not be kept
unfilled. They can be filled by promotion.
However, the High
Court while determining the quota of direct recruits at the next recruitment,
will take note of the shortfall of 10 in direct recruitment, at the earlier
recruitment and correspondingly increase the quota of direct recruits. This
means while fixing the vacancies to be filled by direct recruits at a
recruitment, the fact that lesser number of direct recruits were appointed at
the last recruitment has to be taken note of and the vacancies to be filled by
direct recruits is to be increased to cover the previous shortfall. But such
adjustment should be done in such a manner, that the total direct recruits in
the service do not exceed 15% of the strength of the service. This is
conveniently done by calculating the total entitlement of direct recruits (that
is 15% out to the total strength), finding out the actual posts occupied by
direct recruits and calculating the difference which will be 33 the
entitlement of direct recruits. As a result, the shortfall is made up by
increasing the posts to be filled by direct recruitment. Therefore when there
has been a shortfall in direct recruits in an earlier recruitment, the number
fixed for direct recruits at a subsequent recruitment will necessarily exceed
15% of the vacancies for which the subsequent recruitment is being held, by
reason of the fact that the earlier shortfall is required to be filled.
20. Rule 8 clarifies
that direct recruits are entitled to 15% quota not only in the vacancies to be
filled, but also 15% in the strength of the service. The Rules also make it
clear that when a shortfall in a particular recruitment is made up at the next
recruitment, there is no question of the direct recruits appointed to the
shortfall vacancies claiming seniority over the promotees who filled the
shortfall post of direct recruits at the previous recruitment.
Though the shortfall
is made good at the next recruitment, the question of seniority will be
governed by Rule 26. No direct recruit at a subsequent recruitment can claim
that as he is being appointed against a direct recruitment vacancy of previous
recruitment, his seniority should be reckoned from any date earlier to the date
of his joining the service.
21. Thus though the
quota of direct recruits is fixed, there is flexibility in fixing the vacancies
to be filled by direct recruitment and vacancies to be filled by promotion. The
High Court can make adjustments in fixing the number of officers to be
appointed by promotion and direct recruitment as shown in Rule 8(2) and the
provisos thereto ensuring that the number of direct recruits does no exceed 15%
of the total strength of the service.
Re : Question
No.(iii)
22. The Division
Bench of the High Court has accepted the contention of the promotees that while
applying the ratio of the judgment in O.P. Garg and distributing the permanent
and temporary vacancies, the allocation of 15% vacancies of the direct recruits
quota should be further subjected to the ceiling of 15% of the permanent
strength of service, till the 1996 amendment to the Rules came into effect (on
15.3.1996). The promotees further contend that Rule 6 provides for quota for
direct recruits as 15% of the vacancies subject to the provisions of Rule 8;
that Rule 8 provided that the percentage of direct recruits should not exceed
15% of the permanent strength of the service; and that therefore the quota of
direct recruits could 35 not exceed 15% of the permanent strength of the
service (excluding temporary posts) till 15.3.1996.
23. In O.P.Garg, this
court held as follows in regard to entitlement of direct recruits for a quota
in the temporary posts :
"24. We agree
with the above findings and accept the position that the service consists of
permanent as well as temporary posts. The substantive vacancy has not been
defined under the 1975 Rules but as held by this Court in Dixit case there can
also be a substantive vacancy in a temporary post which is part of the cadre.
All temporary posts created under Rule 4(4) of the 1975 Rules are additions to
the permanent strength of the cadre and as such form part of the cadre. Appointments
under Rule 22 of the 1975 Rules can be made to a permanent post as well as to a
temporary post. So long as the temporary post has an independent existence and
is a part of the cadre strength the appointment against the said post has to be
treated as substantive appointment."
"29. Recruitment
to the service under the 1976 Rules is from three sources and is based on quota
as provided therein. The cadre consists of permanent as well as temporary
posts. We have already interpreted the seniority rule to mean that the
seniority of the direct recruit is to be determined from the date of his
joining the service and that of promotee on the basis of continuous
officiation/service from the date when a vacancy whether permanent or
temporary, becomes available in his quota. With these characteristics of the
service it is obligatory that there should be equality of opportunity to enter
the service for all the three sources of recruitment.
The seniority in the
service is consequential and dependent on appointment. If the recruitment rule
gives unjustifiable preference to one source of recruitment the seniority rule
is bound to become unworkable.
The object of having
recruitment from different sources is to have a blended service to create
healthy competition and in the process achieve efficiency. If one of the
sources of recruitment is dealt with unevenly under the Service Rules the said
objective cannot be fulfilled. The 1975 Rules permit appointment to temporary
vacancies in the service by promotion and from the judicial service. No direct
recruitment to the temporary vacancies is provided under the said
rules........."
36 ....We see no
justification in not applying the quota rule to the temporary posts in the
service and confining appointments to said posts to the two sources of
promotees. This Court in A.K. Subraman vs. Union of India - 1975 (1) SCC 319,
held as under :
`The quota rule will
be enforced with reference to vacancies in all posts, whether permanent or
temporary, included in the sanctioned strength of the cadre (except such
vacancies as are purely of a fortuitous or adventitious nature)....'
31. This Court in
P.S. Mahal vs. Union of India - 1984 (4) SCC 545, held as under :
`It is therefore
obvious that if a vacancy arises on account of an incumbent going on leave or
for training or on deputation for a short period, it would be a fortuitous or
adventitious vacancy and the quota rule would not be attracted in case of such
a vacancy. But where a vacancy arises on account of the incumbent going on deputation
for a reasonably long period and there is no reasonable likelihood of the
person promoted to fill such vacancy having to revert, the vacancy would be
subject to the quota rule ..... It is, therefore, apparent that what has to be
considered for the applicability of the quota rule is a vacancy in a post
included in the sanctioned strength of the cadre.....' "32. When temporary
posts under Rule 4(4) of the 1975 Rules are created as addition to the cadre we
see no justification to deny the direct recruits their share of the quota as
provided under Rule 6 of the said rules. Rule 5 of the 1975 Rules specifically
lays down that recruitment to the service shall be made from three sources
including the direct recruits. Rule 6 fixes the quota for various sources of
recruitment to the service and allocates 15 per cent of the posts in the
service to the direct recruits. Rules 5 and 6 read with Rule 22(2) provide for
appointments to the service in accordance with quota. These rules have to be
read homogeneously and as a part of the same scheme. The service having
comprised of three sources including the direct recruitment there is no
justification to deprive the direct recruits of their share in the temporary
posts in the service. Unless the direct recruits are given their due quota in
the temporary posts the seniority rule cannot operate equitably. We see no
justification whatsoever in having Rules 22(3) and 22(4) of the 1975 Rules
which deprive one of the sources of recruitment the benefit of appointment to
the temporary posts. The rules on the face of it are discriminatory. There is
no nexus with the object sought to be achieved by framing the abovesaid rules.
We, therefore, strike 37 down Rules 22(3) and 22(4) of the 1975 Rules being
discriminatory and violative of Articles 14 and 16 of the Constitution of
India. We, however, direct that the appointments already made under these rules
[Rules 22(3) and 22(4)] shall not be invalidated on this ground. We further
direct that while selecting candidates under Rule 18 the Committee shall
prepare a merit list of candidates twice the number of vacancies and the said
list shall remain operative till the next recruitment. We further direct that
the appointments under Rules 22(1) and 22(2) of the Rules shall be made to
permanent as well as temporary posts from all the three sources in accordance
with the quota provided under the 1975 Rules."
24. The division
bench of the High Court has accepted the contention of the promotees that while
applying the ratio of the judgment in O.P.Garg and distributing temporary as
well as permanent vacancies, the allocation of 15% vacancies as the quota of
direct recruits under Rule 6 of the Rules has to be subjected to a ceiling of
15% of the permanent strength of the service till the amendment in the Rules
came into effect (on 15.3.1996). In O.P.Garg this court held that the various
rules will have to be homogenized as parts of the same scheme; that as the
service was comprised of three sources including direct recruitment, there is
no justification to deprive the direct recruits of their share of temporary
posts in the service; that unless the direct recruits are given their due quota
in the temporary posts, the seniority rule cannot operate equitably;
that Rules 22(3) and
22(4) providing that appointment for temporary vacancies shall be made only
from among the members of Nyayik Sewa/Judicial Magistrates were discriminatory
and appointments under Rules 22(1) and 22(2) shall have to be made to permanent
as well as temporary posts from all the three 38 sources in accordance with
the quota provided under the Rules. In spite of the said decision by the three
Judge Bench of this court, the promotees have been contending that the
percentage of direct recruits in the service should not exceed 15% of the
permanent strength of the service till the amendment to the Rules with effect
from 15.3.1996, in view of the fact that this court in O.P.Garg while striking
Rules 22(3) and 22(4) did not strike down the word "permanent"
occurring in the
first proviso of Rule 8(2) which provided: "so, however that the
percentage of direct recruits in the service does not in any case exceed 15% of
the total permanent strength of the service." The words "total
permanent" were omitted from the first proviso to Rule 8(2) only by the
amendment Rules of 1996 with effect from 15.3.1996.
25. If Rule 8(2) is
to be read in the manner suggested by the promotees, it would nullify the
decision in O.P.Garg which held that the direct recruits were entitled to 15%
quota not only in the permanent strength of the service but also in the
temporary posts. This court in O.P.Garg, apparently did not strike down the
word "permanent" in the latter part of the first proviso to Rule 8(2)
while striking down Rule 22(3) and 22(4) as it apparently assumed that rule
8(2) and the first proviso thereto were applicable only in a contingency
referred to in Rule 8(2). The rule making authority rightly understood the
decision and 39 proceeded on the basis that if sub-rules (3) and (4) of Rule
22 were invalid and the direct recruits were entitled to 15% quota even in the
temporary posts, then the word "permanent" should be deleted in the
first proviso to Rule 8(2). That is why the rule making authority while
substituting Rule 22 in the rules in 1996 in pursuance of the decision in
O.P.Garg striking down sub-rules (3) and (4) of Rule 22, simultaneously deleted
the words "total permanent"
from the words
"total permanent strength of service" in the first proviso to Rule
8(2). The amendment to the first proviso to Rule 8(2) omitting the words `total
permanent' is clearly a clarification/reiteration of the position which
prevailed as a result of the decision in O.P. Garg.
26. The Division
Bench of the High Court has proceeded on the basis that this Court in O.P.Garg
had no occasion to consider, nor considered the first proviso to Rule 8(2)
which provided the ceiling for direct recruitment; and therefore the ceiling
was 15% of the "permanent strength of the service" and not cadre
strength of the service till the amendment to the Rules with effect from
15.3.1996. The said interpretation put forth by the promotees which found
favour with the division bench of the High Court, is untenable as it would
amount to ignoring the law laid down in O.P. Garg and nullifying the directions
in O.P.Garg holding that direct recruits are entitled to 15% quota even in
temporary posts. The proviso to Rule 8(2) should be read in the 40 context of
the quashing of Sub-Rules (3) and (4) of Rule 22. If so read, it would be clear
that when Sub-Rules (3) and (4) of Rule 22 were struck down holding that direct
recruits were entitled to a quota in temporary posts also, the word
"permanent" in the first proviso to Rule 8(2) is deemed to have been
impliedly struck down or omitted by the decision in O.P. Garg. As the quota of
direct recruits is 15% of the strength of the service, the number of
appointments of direct recruits might have never exceeded their quota.
Therefore, the second
direction of the Division Bench in the impugned judgment cannot be sustained.
Re : Question No.
(iv)
27. Direction No.3 in
Srikant Tripathi is to the effect that if in each recruitment year posts were
available in the quota of promotees and promotions were not made even though
selections had been made under Rule 20 then the legitimate right of the
promotees cannot be denied and promotions must be made with effect from the
date they should have been appointed. On the other hand, the third direction of
the Division Bench of the High Court in the impugned order is that while
undertaking an exercise as per its second direction as to whether direct
recruits taken into service or in excess of the quota or not, a simultaneous
exercise has to be done in 41 compliance with direction No.3 in Srikant
Tripathi and vacancies of the quota of promotees shall be deemed to have been
filled up from the date they were entitled to promotion.
28. The first part of
the third direction in the impugned order depends upon the result of the
exercise undertaken in pursuance of its second direction. We have held that
directions 1 and 2 in the impugned order of the High Court are contrary to the
decision in O.P.Garg. In view of it, the question of undertaking any exercise
as per the second direction of the impugned order does not arise. All that
therefore remains out of the third direction in the impugned order is
reiteration of direction No.3 of Srikant Tripathi. The third direction in the
impugned judgment to the extent it reiterates direction No.3 in Srikant
Tripathi has to be upheld. There is no question of unfilled vacancies being
carried forward for the purpose of fixing the number of officers to be taken at
the next recruitment. The total vacancies to be filled at a recruitment shall
have to be filled by applying sub- rules (1) and (2) of Rule 8 and its
provisos. In that sense all vacancies, which are not filled by direct
recruitment, get filled by promotion and there will be no carry over. There is
only a limited `carry over' of unfilled direct 42 recruitment vacancies in the
manner stated in the Rule 8(2) and the first proviso thereto.
29. We may illustrate
the effect of the directions in Srikant Tripathi with reference to the figures
arrived at in the Report of the Sub-Committee, abstract of which is given in
the Table in paragraph 6 above (by assuming that the figures specified are
correct). For 1988 recruitment, the vacancies are shown as 314, the actual
recruitment is shown as 24+3 by direct recruitment and 191 by promotion and the
carried forward unfilled vacancies as 96. If there were 314 vacancies and what
is filled by direct recruitment was 27, the remaining 287 vacancies should be
filled up by promotions instead of 191 having regard to Rule 8(2). There is no
question of any vacancies being carried forward for 1990 recruitment, unless
sufficient numbers of candidates are not available for filling the posts even
by promotion also. Therefore the vacancies to be filled in 1990 (with the
expected vacancies up to 31.12.1992) should be treated as only 44 of which
promotees' share would be 37 and share of direct recruits would be 7. As only 5
were appointed by direct recruitment, the remaining 39 ought to be filled by promotion.
In regard to 1998 recruitment, if 15% of strength of the service is 120 and the
number of direct recruits actually working were only 43 82, there is nothing
wrong in directly recruiting 38 out of the actual vacancies of 176. We have
given these examples with reference to the figures given by the Sub-Committee
in its Report and it should not be assumed that the figures given by the
sub-committee have been accepted by us to be correct. In fact the figures may
have to be re-worked with reference to the other directions of the High Court
which have been upheld by us. Be that as it may.
Conclusion
30. The 1975 Rules
are vague and complicated. The four rounds of litigation are the result of
absence of clear and simple Rules. The High Court administration had the
difficult task of harmonizing the Rules, the directions of this Court in O.P.
Garg and the directions of this court in Srikant Tripathi. The High Court
Sub-Committee apparently made a sincere effort to implement the Rules and the
directions. Unless the exercise by the High Court through its Sub-Committee
(approved by the Full Court of the High Court), is arbitrary or is in
non-compliance with any specific direction of this Court, it will not be open
to question. Be that as it may.
31. In view of our
aforesaid findings, we allow these appeals in part as follows :
44 (i) Direction
Nos. (1) and (2) in para 55 of the impugned order dated 25.8.2004 are set
aside;
(ii) Direction No.(3)
in para 55 of the impugned order dated 25.8.2004 is restricted to reiteration
of direction No.3 issued in Srikant Tripathi (2001 (10) SCC 237); and (iii)
Direction Nos. (4), (5) and (6) in the impugned order dated 25.8.2004 are
upheld.
(iv) The
consequential exercise directed by the High Court should be restricted to the
directions which have been upheld.
(v) None of the
appointments already made to the Higher Judicial Service, whether by direct
recruitment or by promotion, shall be annulled, but shall be continued, even if
the appointment is found to be in excess of the quota, subject to the condition
that the seniority of such excess appointee will be reckoned from the date on
which he becomes entitled to be adjusted at the subsequent recruitment/s. Any
elevation to the High Court on the basis of seniority already given shall also
not be affected.
We request the High
Court to give a quietus to the long-drawn dispute, by giving effect to
direction nos.(4) to (6) of the impugned order and direction no.(3) in Srikant
Tripathi, without any delay.
All pending
applications stand disposed of.
..................................J.
(R V Raveendran)
................................J.
New
Delhi;
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