Supreme Court of India
ASHOK PAL SINGH AND ORS.versusU.P. JUDICIAL SERVICES ASSOCIATION AND ORS.
- Citation
- 2010 INSC 604
- Decided
- 13 September 2010
- Disposal
- Case Partly allowed
- Bench
- R V RAVEENDRAN
Holding
The Court held that direct recruits are entitled to a fixed 15% quota (not merely a ceiling), applicable to both permanent and temporary posts, and that the first proviso to Rule 8(2) must be read in light of O.P. Garg, effectively treating the quota as 15% of the total service strength.
Summary
The Supreme Court examined a long‑standing dispute in the Uttar Pradesh Higher Judicial Service concerning the inter‑seniority of officers appointed by direct recruitment from the Bar and those promoted from the Nyayik Sewa and Judicial Magistrates. The petitioners sought to prevent direct recruit appointments until the promotee quota was filled, to have promotees appointed to existing vacancies, and to set aside a High Court order that excluded promotee‑filled temporary posts from quota calculations. The Court held that the 15% quota for direct recruits is a fixed entitlement, not merely a ceiling, and applies to both permanent and temporary posts. It clarified that the first proviso to Rule 8(2) must be read in the context of the O.P. Garg judgment, effectively deleting the word “permanent” and treating the quota as 15% of the total service strength. The High Court directions that excluded promotee vacancies from quota computation were set aside, while the direction reiterating Srikant Tripathi’s third direction was upheld. All existing appointments, whether by direct recruitment or promotion, were to continue, with seniority of any excess appointee to be reckoned from the date of adjustment in a subsequent recruitment.
Issues considered
- Whether vacancies occupied by promotees appointed under sub‑rules 22(3) or 22(4) should be excluded when computing the quotas for direct recruits and promotees.
- Whether the 15% quota for direct recruits is a fixed quota or merely a ceiling on appointments.
- Whether the wording “15% of the total permanent strength of the service” in the first proviso to Rule 8(2) (pre‑1996 amendment) should continue to apply until the amendment deleting “permanent”.
- Whether the High Court’s procedure of carrying forward vacancies complies with Rule 8(2) and the direction in Srikant Tripathi.
Legislation cited
- Constitution of Indias. Article 233, s. Article 309
- U.P. Higher Judicial Services (Fourth Amendment) Rules, 1996
- U.P. Higher Judicial Services Rules, 1975s. Rule 20, s. Rule 22, s. Rule 26, s. Rule 5, s. Rule 6, s. Rule 8
Subjects
Judicial service recruitmentquotadirect recruitmentpromotionseniorityU.P. Higher Judicial ServiceRule 6Rule 8Rule 22temporary postsSrikant TripathiO.P. GargP.K. Dixitconstitutional lawArticle 309Article 233
Judgment
[2010] 12 S.C.R. 25
ASHOK PAL SINGH AND ORS. A
V.
U.P. JUDICIAL SERVICES ASSOCIATION AND ORS.
(Civil Appeal No. 1312 of 2005)
SEPTEMBER 13, 2010
B
[R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ.]
Judicial Service:
Uttar Pradesh Higher Judicial Service Rules, 1975 (Un- C
amended and amended) - Rules 6, 8 and 22 - Higher
Judicial Service - Recruitment, appointment and promotion
- Direct recruitment quota and promote quota - Dispute over
inter-se seniority of direct recruits and promotees - Four
rounds of litigation - Earlier decisions of Supreme Court and D
the Service Rules harmonized - Held: Direct recruits to be
given quota in the temporary posts also - Quota of direct
recruits is '15%' and not 'upto 15%' - 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 E
promotion - 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 not exceed
15% of the total strength of the service - Proviso to Rule 8(2) F
to be read in the context of the quashing of Sub-Rules (3) and
(4) of Rule 22 -Total vacancies to be filled up at a recruitment
by applying sub-rules (1) and (2) of Rule 8 and its provisos -
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. G
The recruitment and appointment to the U.P. Higher
Judicial Service were governed by the U.P. Higher
Judicial Services Rules, 1975. In terms of the Rules, the
25 H
26 SUPREME COURT REPORTS [2010] 12 S.C.R.
A vacancies were filled by i) direct recruitment from the Bar;
and ii) by promotion from amongst a) Uttar Pradesh
Nyayik Sewa and b) Uttar Pradesh Judicial Officers
Service (Judicial Magistrates).
8 The issue of inter-se seniority between promotees
and direct recruits in the Uttar Pradesh Higher Judicial
Services was considered by the Supreme Court in two
earlier decisions viz. P.K. Dixit's case* and O.P. Garg's
case**. The issue again can:ie up in Srikant Tripathi's
C case***, wherein the Supreme Court issued a number of
directions.
The UP Higher Judicial Service Association filed a
writ petition seeking (i) a direction to the State and the
High Court not to make any appointment by direct
D 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 the Supreme Court in Srikant Tripathi; (ii) a
E 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 accepting the recommend-
F ations of the three-member Sub-Committee.
A Division Bench of the High Court allowed the writ
petition 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
G 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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 27
SERVICES ASSOCIATION
Rule 22(3) or 22(4) of the Rules and whose appointments A
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 B
permanent vacancies, allocation of 15% vacancies of the
quota of direct recruits under Rule 6 of the Rules, has
further to be subject to ceiling of 15% of the permanent
strength of service, till the amendment in the rules came
into effect in 1996; (3) while making an exercise to find c
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 Srikant Tripathi (to the
effect that if in each recruitment year, posts were D
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) E
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 fro11130.9.2001
shall be excluded while determining the strength of the
service in order to work out 15% of the quota of direct F
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 G
rule and (6) the second proviso to Rule 6 be also given
effect to as and when the occasion arises.
In the instant appeals the questions arising for
H
28 SUPREME COURT REPORTS [2010] 12 S.C.R.
A consideration were (i) whether the vacancies occupied by
judicial officers promoted and appointed against
temporary posts under Sub-Rule (3) or (4) of Rule 22
should be excluded when computing the respective
quotas for promotees and direct recruits; (ii) whether the
B 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
c permanent strength of the service" occurring in first
proviso to sub-Ru.le (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
0 the amendment of Rules (effective from 15.3.1996)
deleting the word "permanent" in the said first proviso
and (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
E Rule 8(2) and direction no.3 issued by the Supreme Court
in Srikant Tripathi.
Partly allowing the appeal, the Court
HELD:
F Re: Question (i)
1. In 0. 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
G Magistrates) and held that when temporary posts under
Rule 4(4) of the Uttar Pradesh Higher Judicial Service
Rules, 1975 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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 29
SERVICES ASSOCIATION
services were comprised of three sources including the A
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 consequence of striking
down of the sub-rules(3) and (4) of Rule 22, the B
appointments already made by applying those rules had
to be 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 c
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, there.fore, extended limited
protection to those appointments of promotees already
made to the higher temporary posts which ought to have D
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 E
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 F
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 off G
the said sub-rules. Nor can the protection against
invalidation of promotion be used to exclude the number
of vacancies equal to the number of officers who were
given protection, while computing the vacancies to be
H
30 SUPREME COURT REPORTS (2010] 12 S.C.R.
A 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 unde; the Rules. In
B 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
c recruitment and promotion) is contrary to the decision in
0. P. Garg, and cannot be sustained. [Paras 12, 13] [61--
C-D; 62-C-H; 63-A-B]
* P.K. Dixit vs. State of Uttar Pradesh 1987 (4) SCC 621
and ** O.P. Garg v. State of UP. & Ors. 1991 (Supp) 2 SCC
D 51, referred to. ·
Re : Question No.(ii)
2.1. Rule 6 relates to quota for various sources of
E recruitment and provides that 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
F 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
aforesaid under the Sub-Rule (2) of Rule 8 shall be taken
G 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
H 15% of the total permanent strength of the service. By the
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 31
SERVICES ASSOCIATION
1996 amendment to the Rules, with effect from 15.3.1996, A
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". (Para 14] (63-C-G] 8
2.2. 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 C
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'. Though the Rules do not compel D
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 E
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 F
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 G
is to maintain the 15% quota of the direct recruits. 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
H
32 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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%
c 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
0 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 Nyayik
E 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. When there has been a shortfall
in direct recruits in an earlier recruitment, the number
fixed for direct recruits at a subsequent recruitment will
F 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. [Paras
18, 19] [68-B-H; 69-A-H; 70-A]
G 2.3. 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
H the direct recruits appointed to the shortfall vacancies
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 33
SERVICES ASSOCIATION
claiming seniority over the promotees who filled the A
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 B
recruitment vacancy of previous recruitment, his seniority
should be reckoned from any date earlier to the date of
his joining the service. [Para 20] [70-B-D]
2.4. Though the quota of direct recruits is fixed, there C
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 D
not exceed 15% of the total strength of the service. [Para
21] [70-E]
O.P. Sing/a vs. Union of India (1984) 4 SCC 450 and ***
Srikant Tripathi & Ors. v. State of UP. & Ors. 2001 (10) SCC E
237, referred to.
Re : Question No.(iii)
3.1. In O.P.Garg this court held that the various rules
will have to be homogenized as parts of the same F
scheme; that as the service was comprised of three
sources including di~ect 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, G
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 H
34 SUPREME COURT REPORTS (2010] 12 S.C.R.
A to be made to permanent as well as temporary posts from
all the three 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
B 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"
c 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
0 8(2) only by the amendment Rules of 1996 with effect
from 15.3.1996. [Para 24] [74-8-H; 75-A]
3.2. 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
E 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
F 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 proceeded on the basis
that if sub-rules (3) and (4) of Rule 22 were invalid and
G 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
H striking down sub-rules (3) and (4) of Rule 22,
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 35
SERVICES ASSOCIATION
simultaneously deleted the words "total permanent" from A
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. [Para B
25] [75-B-E]
3.3. 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 C
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 D
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 E
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 F
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 dil'ection of G
the Division Bench in the impugned judgment cannot be
sustained. [Para 26] [75-F-H; 76-A-C]
Re : Question No. (iv)
4. The first part of the third direction in the impugned H
36 SUPREME COURT REPORTS [2010] 12 S.C.R.
A order passed by the Division Bench of the High Court
depends upon the result of the exercise undertaken in
pursuance of its second direction. Since directions 1 and
2 in the impugned order of the High Court have been held
to be contrary to the decision in O.P.Garg, the question
B 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
C 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
0
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 recruitment vacancies in the manner
stated in the Rule 8(2) and the first proviso thereto. [Para
28] [76-G-H; 77-A-C]
Conclusion
5.1. 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. [Para 30] [78-C-D]
5.2. (i) Direction Nos. (1) and (2) in para 55 of the
impugned order passed by the Division Bench of the
High Court are set aside; (ii) Direction No.(3) in para 55
of the impugned order is restricted to reiteration of
direction No.3 issued in Srikant Tripathi; (iii)Direction
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 37
SERVICES ASSOCIATION
Nos. (4), (5) and (6) in the impugned order are upheld; (iv) A
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, B
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 c
Court on the basis of seniority already given shall also
not be affected. The High Court is requested 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.
0
[Para 31] [78-E-H; 79-A-D]
Case Law Reference:
1987 (4) sec 621 referred to Para 3
1991 (Supp) 2 SCC 51 referred to Para 4 E
2001 (1 o) sec 231 referred to Para 5
(1984) 4 sec 450 referred to Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No. F
1312 of 2005.
From the Judgment & Order dated 25.8.2004 of the High
Court of Judicature at Allahabad Lucknow Bench, Lucknow in
Writ Petition No. 316 (SB) of 2004.
G
WITH
C.A. Nos. 1313 of 2005 & 7927 of 2010.
P.P. Rao, Paramjit Singh Patwalia, Rakesh Dwivedi,
H
38 SUPREME COURT REPORTS [2010] 12 S.C.R.
A Nagendra Rai, Rakesh Kr. Khanna, Salman Khurshid, Shail
Kumar Dwivedi, AAG, Jitendra Mohan Sharma, Sandeep
Singh, Mohinder Jit Singh Rupal, Amanpreet Singh Rahi,
Devesh Tripathi, Tushar Bakshi, S.S. Tiwari, Ravi Prakash
Mehrotra, Shantanu Krishna, Mukti Chowdhary, Anant Prakash,
B Rahul Dua, Deepti R. Mehrotra, Garvesh Kabra, Vinay Kr.
Garg, Seema Bhatt, Shailja Sinha, Shantanu Sagar, Shirish
Kumar Mishra, Vandana Mishra, Vibha Dwivedi, Tripurari Ray, ·
Ashutosh Dubey, Vishnu Sharma, S.K. Verma, lrshad Ahmad,
Pradeep Misra, Vishwajit Singh, Shiv Sagar Tiwari, lmtiaz
Ahmed, Naghma lmtiaz, Equity Lex Associates, Chander
c Sheker, Manoj Swarup & Co., Sunil Dutta Mishra, Kuldip Singh
for the appearing parties.
The Judgment of the Court was delivered by
D R. V. RAVEENDRAN J. 1. 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.
E 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)
F 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
G 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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 39
SERVICES ASSOCIATION [RV RAVEENDRAN, J.]
amended rules with reference to the 1998-2000 recruitment. A
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-
B
(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 :
c
(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 D
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 E
for appointment as Additiooal Sessions Judges in the
Service.
xxxxxxxxx
F
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
G
(iii) Uttar Pradesh Judicial Officers vacancies.
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 H
40 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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
c 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
D 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.
E
(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
F 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
G 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.
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 41
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Provided further that all the permanent vacancies existing A
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; B
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 C
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 D
magistrates, the allocation of vacancies shall be as follows
(i) 15% by direct recruitment.
E
(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 F
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 G
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
H
42 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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 :
(1) Recruitment by promotion of the members of the Nyayik
B Sewa shall be made by selection on the principle of
seniority-cum-merit.
xxxxxxxxx
(4) The Selection Committee shall forward the list of the
c 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.
D (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.
E
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
F 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
G 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.
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 43
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Provided that for sq long as suitable officers are available A
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.
8
(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 C
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:
D
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 E
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 F
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 : G
(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 H
44 SUPREME COURT REPORTS [2010] 12 S.C.R.
A amongst the members of Nyayi~ 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
B
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
c as follows:
(a) Seniority of the officers-promoted from the Nyayik Sewa
vis-a-vis the officers recruited from the Bar shall be
determined from the date of continuous officiation in the
D 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
E
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
F 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,
G 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;
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 45
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] ·
(b) Seniority inter se of the officers appointed from out of A
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: B
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 · C
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. D
[Note : Rule 26 of 1975 Rules was substituted in entirety
by the follwing 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 E
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 F
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 G
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:
H
46 SUPREME COURT REPORTS (2010] 12 S.C.R.
A "(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
B 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 th;;se Rules.
c (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
0 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.
E
(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
F 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
G
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."
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 47
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
4. Pursuant to the judgment in P.K. Dixit, the High Court A
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 B
committee, final seniority list was issued on 25.8.1988.
Aggrieved by the 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 C
a writ petition challenging the final seniority list issued by the
High Cou11. 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 D
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 UP. & 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 : E
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 F
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 G
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 the requirement of law that a promotee is
entitled to seniority in the service from the date when H
48 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B
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
C 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
D 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
E
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/
ser vice by a promotee appointed under the Rules shall
F 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
G
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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 49
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
candidates twice the number of vacancies and the said A
list shall remain operative till the next recruitment; and the
appointments under Rules 22(1) and 22(2) of the 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. B
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
c
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 UP. & Ors. [2001 (10) SCC
237], wherein this Court issued the following directions :
D
"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 E
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,
F
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 G
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, H
50 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B
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
c 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.
D
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
E
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
F 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
G 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
H the direct recruits quota must be advertised without any
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 51
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
variation clause. The Select List prepared both for direct A
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.
8
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 C
submitted 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: D
"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 E
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 F
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.
G
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 H
52 SUPREME COURT REPORTS (2010] 12 S.C.R.
A '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
B
Remaining vacancies out of 13 vacancies which
were left out inadvertently in the Gradation List 08
Vacancies which occurred or accrued between-
c
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
D
Total 234
(B) Vacancies which actually occurred or
accrued between -
E
1.1 .1988 to 31 . 12 .1990 80
Total number of vacancies available for
recruitment
F
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
G 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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 53
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
recruits made in 1988 recruitment was not in excess of A
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 8
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 C
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 .. D
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 E
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 F
has also been made for making 38 appointments within
the quota of direct recruits. In this view of the mater 38
appointments within the quota of direct recr0ts has to be
made in the 2000 recruitment. We have been told that
examination has already been held but its result is awaited G
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 H
54 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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.
c
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
D 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).
E
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
F 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
G 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
H direct recruits because for that purpose a separate
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 55
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Committee has been constituted by the Chief Justice." A
The factual position as worked out in the annexures to the
said report is as under :
Description 1988 1990 1992-94 1998
(with (with (with (with B
expected expected expected) expected
vacancies vacancies vacancies vacancies
upto upto upto upto
31.12.1990) 31.12.1992) 31.12.1997) 2000)
Total vacancies c
Carried forward 8 96 117 196
Vacancies
during the
period 306 44 261 176
D
----- - - -
Total 314 140 378 372
Allotment of
vacancies
E
Promotees 267 119 321 316
Direct recruits 47 21 57 56
Cadre strength
F
Permanent 376 511 572 572
Temporary 219 85 169 226
----- ----- ----- ----
Total 595 596 741 798
G
15% of cadre 89 89 111 120
strength (maxi-
mum number of
di re ct recruits
permissible
H
56 SUPREME COURT REPORTS [2010] 12 S.C.R.
A with reference
to cadre
strength)
Actual number of 47 73 66 82
direct recruits
B
working
Maximum number 42 16 45 38
of direct recruits
who could be .
c appointed
Actual recruitment
Promotees 191 17 161(48+113) Permissib!e:334
D Direct recruits 24 5 Permissible : 38
Vacancies kept 3 1
reserved for
SC/ST
E
Unfilled to be 96 117 196
carried forward
The said report was approved by the Administrative Committee
on 4.9.2002 and was approved by the Full Court of the High
F 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
G 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
H that 38 vacancies were available for direct recruitment in 1998.
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 57
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Their cause was espoused by the UP Higher Judicial Service A
Association by filing a writ petition (WP No.316 of 2004)
seeking the following reliefs :
(i) a direction to the State and the High C.ourt not to make
any appointment by direct recruitment in the UP Higher
8
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 C
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 D
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 E
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 F
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 G
Rules and whose appointments have been protected in 0
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 0 P Garg and H
58 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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 to ceiling
of 15% of the permanent strength of service, till the
amendment in the rules came into effect i.e. 25th
B 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
c 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
D 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
E
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
F 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
G 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
H appeals.
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 59
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
9. Judicial Officers belonging to U.P. Higher Judicial A
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. B
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 C
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. D
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 E
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 F
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. G
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 H
60 SUPREME COURT REPORTS [2010] 12 S.C.R.
A the views of this Court in OP Sing/a & 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
B
treating 15% of th~ 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."
c
11. On the contentions raised, the following questions arise
for our consideration :
(i) Whether the vacancies occupied by judicial officers
D 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?
(ii) Whether the direct recruits are entitled to 15% of the
E 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?
F (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
G 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
H having regard to the specific provisions of Rule 8(2) and
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 61
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
direction no.3 issued by this Court in Srikant Tripathi? A
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) B
12. In 0. 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 C
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 D
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 thatwhile E
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 F
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, G
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 H
62 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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 invalidated to the extent of 15% which
was the quota of direct recruits, resulting in the reversion of those
C 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
D 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
E 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
F 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
G 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 number
of officers who were given protection, while computing the
vacancies to be filled by different sources. Consequently, in
H spite of the protection against invalidation and reversion, all the
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 63
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
appointments of promotees to temporary vacancies will have A
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 B
of their quota shall be excluded from computation of respective
quotas for direct recruitment and promotion) is contrary to the
decision in 0. P. Garg, and cannot be sustained.
Re : Question No.(ii)
c
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 D
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 aforesaid E
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 F
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 G
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
H
64 SUPREME COURT REPORTS (2010] 12 S.C.R.
A 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
B 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 recruitment, the shortfall has
to be made good while fixing the number of va~ancies to be
filled by direct recruits and by promotion and this showed that
c their quota was 15%.
16. Both sides relied upon the decision of this Court in O,P,
Sing/a vs. Union of India - (1984) 4 SCC 450, in support of
their respective contentions. While the promotees relied upon
para 16 of O.P. Sing/a to contend that the Rules refer to the
D 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. Sing/a, to contend
that the Rules prescribe a quota of 15% for direct recruits. We
extract below the relevant observations from 0.P. Sing/a :
E
"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
F
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 .$Ubstantive posts
in the Service ? The proviso reads thus:
G 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
H imposing a ceiling, that the direct recruits shall not hold
(~SHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 65
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
more than 1/3rd of the substantive posts. Experience A
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 B
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 C
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 D
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 E
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 F
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.
G
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
H
66 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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)
c 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)
D 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
E 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 :
F "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
G 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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 67
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Sewa and 15% from Uttar Pradesh Judicial Officers A
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 B
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 C
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 D
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 E
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, F
therefore, in a given situation, the rule contemplates of
having promotees more than the quota fixed for them viz.
85 per cent. As we have stated earlier, this issue has not
cropped up in the present batch of cases and as such, we
need not further probe into the matter. But it must be G
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
H
68 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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
C 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
D 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%":
E
(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
F 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
G 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
H shall be made good at the next recruitment. The words
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 69
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
"does not in any case exceed 15%" are used to further A
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 8
rotational system (that is Rule 22(2) providing that the first
vacancy to be filled from the list of 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 C
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 D
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 E
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 F
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 G
will be 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
H
70 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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 fi lied.
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
8
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
C who filled the shortfall post of direct recruits at the pr.evious
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 vaoancy
of previous recruitment, his seniority should be reckoned from
D 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
E 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.
F 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
G 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
H direct recruits as 15% of the vacancies subject to the provisions
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 71
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
of Rule 8; that Rule 8 provided that the percentage of direct A
recruits should not exceed 15% of the permanent strength of
the service; and that therefore the quota of direct recruits could
not exceed 15% of the permanent strength of the service
(excluding temporary posts) till 15.3.1996.
B
23. In OP.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 C
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 D
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 E
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
F
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 G
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
H
72 SUPREME COURT REPORTS [2010] 12 S.C.R.
A 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
B 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
c 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
D 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
E 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) sec 545, held as under:
F
'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
G 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
H rule ..... It is, therefore, apparent that what has to be
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 73
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
considered for the applicability of the quota rule is a A
,(yacancy 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 8
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 C
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 D
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 E
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 F
rules. We, therefore, strike 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 G
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) H
74 SUPREME COURT REPORTS [2010} 12 S.C.R.
A 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
8
contention of the promotees that while applying the ratio of the
judgment in OP.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
C 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 OP. 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
D 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/
E 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
sources in accordance with the quota provided under the Rules.
In spite of the said decision by the three Judge Bench of this
F 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 OP.Garg while striking Rules 22(3) and 22(4) did not
G 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
H 8(2) only by the amendment Rules of 1996 with effect from
ASHOK PAL SINGH AND ORS. v. U,P. JUDICIAL 75
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
15.3.1996. A
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 8
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 th!'lt rule 8(2) and the first proviso
thereto were applicable only in a contingency referred to in Rule C
8(2). The rule making authority rightly understood the decision
and 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 D
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 E
'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 F
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 recruitmen~; 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 G
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
H
76 SUPREME COURT REPORTS (2010] 12 S.C.R.
A 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
B "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 qu0ta. Therefore, t.he second
c 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
D 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
E 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
F 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
G 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
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 77
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
of the th_ird direction in the impugned order is reiteration of A
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 B
total vacarteies 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 c
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 D
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 E
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 F
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 G
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 with reference to the figures given by the Sub- H
78 SUPREME COURT REPORTS (2010] 12 S.C.R.
A 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.
B 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
C 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
D 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
E appeals in part as follows :
(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
F dated 25.8.2004 is restricted to reiteration of
direction No.3 issued in Srikant Tripathi (2001 (10)
sec 237); and
(iii) Direction Nos. (4), (5) and (6) in the impugned order
dated 25.8.2004 are upheld.
G
(iv) The consequential exercise directed by the High
Court should be restricted to the directions which
have been upheld.
H (v) None of the appointments already made to the
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL 79
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Higher Judicial Service, whether by direct A
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 8
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-
c
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 1 of. '
8.8.8. Appeal partly allowed.
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