TMI Blog2010 (9) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... which provide appointments to temporary posts in the service from two sources of promotees excluding the direct recruits, can be legally sustained? - CIVIL APPEAL NO. 1312 OF 2005, Civil Appeal No. 1313 of 2005 And CA 7927/2010 (@ SLP(C) No. 11476/2005) - - - Dated:- 13-9-2010 - R.V. RAVEENDRAN AND KATJU, MARKANDEY, JJ. JUDGMENT 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 stre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hs 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, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recruitmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 (with expected vacancies upto 31.12.1990) 1990 (with expected vacancies upto 31.12.1992) 1992-94 (with expected vacancies upto 31.12.1997) 1998 (with expected vacancies upto 2000) Total vacancies Carried forward Vacancies during the period Total 8 306 _____ 314 96 44 _____ 140 117 261 _____ 378 196 176 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wa 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 source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said sub-rule provides that the number of vacancies filled in as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise 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% : (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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming 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 recruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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......... ....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 fortuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 82, there is nothing wrong in directly recruiting 38 out of the actual vacancies of 176. We have given these examples wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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