Holding

The suitability test is a mandatory prerequisite under the amended Rules and the All India Judges’ case, so promotees receive seniority from their appointment, and the quota‑rota rule, though mandatory, cannot be applied where vacancy determination is impracticable, thus seniority of promotees prevails over direct recruits.

Summary

The dispute concerned seniority of Uttar Pradesh Higher Judicial Service officers appointed as promotees (2008‑2009) and direct recruits (2007‑2009) after the Rules were amended in 2007 to introduce a suitability test and a quota‑rota system. Promotees argued that they should enjoy seniority from the date vacancies arose, even though the suitability test was introduced only in 2008, while direct recruits claimed seniority under the rota system, which would place them ahead of promotees. The Supreme Court held that the suitability test was a mandatory requirement under the All India Judges’ case and the 2007 amendment, and therefore promotees could not be granted promotion or seniority without having passed it; their seniority was correctly fixed from the date of appointment. Regarding the quota‑rota rule, the Court recognised it as mandatory but found that, because vacancies had not been determinable due to protracted litigation, applying the rule would prejudice promotees and was therefore impracticable, warranting a pragmatic interpretation. Consequently, the Court allowed the appeal, dismissed the direct recruits’ writ petition, and upheld the High Court’s dismissal of the promotees’ writ petition. The seniority list thus remains as fixed by the High Court.

Issues considered

The validity of applying the suitability test retrospectively to promotees appointed before its introduction.
Whether promotees are entitled to seniority from the date of vacancy eligibility despite the retrospective suitability test.
Whether direct recruits are entitled to seniority under the quota‑rota (roster) system, superseding promotees.
The applicability of the quota‑rota rule when vacancy determination is pending litigation.

Subjects

seniorityhigher judicial servicepromoteedirect recruitquota‑rotasuitability testretrospective amendmentpragmatic interpretation

Judgment

1090 [2018] REPORTS
SUPREME COURT 9 S.C.R. 1090 [2018] 9 S.C.R.

A HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD –
THROUGH REGISTRAR GENERAL
v.
THE STATE OF UTTAR PRADESH & ORS.
B (Civil Appeal No.3356 of 2018)
MARCH 28, 2018
[ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]
U.P. Higher Judicial Service Rules, 1975 – Determination of
seniority of promotees and direct recruits – Earlier, in absence of
C
determination of vacancies for the period from 2002 till 2007, neither
promotees were appointed in spite of availability of vacancies and
eligibility nor direct recruitments were made – After the amendment
of the Rules in 2007, recruitment process was initiated, and
vacancies were worked out and advertisements were issued – Both
D promotees and direct recruits were appointed – After the
appointments, the dispute of seniority cropped up – The direct
recruits claimed that they were entitled to be given seniority as per
Rota system laid down under the Rules and they had been wrongly
placed junior to the promotees – The promotees claimed that their
seniority should commence from the date of accrual of vacancy,
E
date of their eligibility, without their passing of the suitablity test
which was retrospectively prescribed for the first time after the
amendment of the 2007 Rules – Held: The High Court was correct
in taking the view that suitability test was required in terms of
judgment rendered in All India Judges Association case and under
F the amended Rules applicable retrospectively – Promotees could
not be given promotion without suitability test nor could they claim
seniority without the same – They were rightly given seniority from
their appointments – Insofar as Quota-Rota rule is concerned, it is
a mandatory requirement of the Rules – The said requirement has
however to be seen in the peculiar fact situation – On facts, the
G
issue of determination of vacancies was embroiled in continuous
litigation – The Quota-Rota rule could not be applied in the absence
of determination of vacancies – The rule provided for seniority of
the promotees to be fixed from the date of availability of vacancy
but such seniority could also not be given in the present fact situation
H – If Rota rule is applied, it will work serious prejudice to the
1090
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1091
REGISTRAR GENERAL v. THE STATE OF U. P.

promotes – Thus, the Rules will have to be given pragmatic A
interpretation – If it becomes impractical to act upon rule fixing
quota from two sources, it is no use insisting that the authority must
give effect to such a rule – Every effort has to be made to respect a
rule but if it is not feasible to enforce it, the rule has to be given a
practical interpretation – Thus, interference by the High Court
B
with the seniority given to the promotees above the direct recruits
without following the rotation principle cannot be sustained.
Disposing of the matters, the Court
HELD: 1. The first issue raised is whether the promotees
recruited in the year 2008/2009 are entitled to seniority prior to C
their selection on the ground that no suitability test was required
prior to 9 th January, 2007 and retrospective effect to such
requirement was illegal. The view taken by the High Court is
correct that suitability test was required in terms of judgment of
this Court in All India Judges’ case and under the amended Rules
applicable retrospectively. Thus, the promotees could not be D
given promotion without suitability test nor could they claim
seniority without the same. They have been rightly given seniority
from their appointments. [Para 29] [1111-B-D]
2. With regard to the Quota-Rota rule, there is no doubt
that this is a mandatory requirement of the Rules. The said E
requirement has however to be seen in the peculiar fact situation.
The issue of determination of vacancies was embroiled in
continuous litigation. The Quota-Rota rule could not be applied
in the absence of determination of vacancies. The suitability test
though validly laid down could not be held till 2008. No promotion F
could be given in absence of suitability test. The rule provided
for seniority of the promotees to be fixed from the date of
availability of vacancy but such seniority could also not be given
in the present fact situation. If rota rule is applied, it will work
serious prejudice to the promotees. Thus, the Rules will have to
be given pragmatic interpretation. If it becomes impractical to G
act upon rule fixing quota from two sources, it is no use insisting
that the authority must give effect to such a rule. Every effort
has to be made to respect a rule but if it is not feasible to enforce
it, the rule has to be given a practical interpretation. Thus,
interference by the High Court with the seniority given to the H
1092 SUPREME COURT REPORTS [2018] 9 S.C.R.

A promotees above the direct recruits without following the rotation
principle cannot be sustained. [Para 30] [1111-D-H]
All India Judges Association v. Union of India (2002) 4 SCC
247 : [2002] 2 SCR 712 – followed.
V.K. Srivastava v. Govt. of U.P. (2008) 9 SCC 77 : [2008] 13
B SCR 24; R.K. Sabharwal v. State of Punjab (1995) 2 SCC
745 : [1995] 2 SCR 35; Direct Recruit Class-II Engineering
Officers’ Association v. State of Maharashtra (1990) 2 SCC
715: [1990] 2 SCR 900 – relied on.
P. K. Dixit v. State of U.P. (1987) 4 SCC 621 : [1988] 1 SCR
C 398; O.P.Garg v. State of U.P. (1991) Supp. (2) SCC 51 :
[1991] 2 SCR 424; Sri Kant Tripathi v. State of U.P. (2001)
10 SCC 237 : [2001] 2 Suppl. SCR 635; Ashok Pal Singh v.
U.P. Judicial Services Association (2010) 12 SCC 635 : [2010]
12 SCR 25; Het Singh Yadav v. State of U.P. Civil
Appeal No. 5270 of 2012 decided on 15.9.2016 – referred to.
D
Case Law Reference
[2002] 2 SCR 712 followed Para 1
[1988] 1 SCR 398 referred to Para 2
[1991] 2 SCR 424 referred to Para 2
E [2001] 2 Suppl. SCR 635 referred to Para 2
[2010] 12 SCR 25 referred to Para 2
[2008] 13 SCR 24 relied on Para 2
[1995] 2 SCR 35 relied on Para 10
[1990] 2 SCR 900 relied on Para 30
F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3356
of 2018
From the Judgment and Order dated 30.06.2017 of the High Court
of Judicature at Allahabad Lucknow Bench, Lucknow in Service Bench
No. 1880 of 2017.
G WITH
C. A. No. 3355 of 2018
SLP (C) Nos. 27284 and 27876 of 2017
SLP (C) No. 8334 of 2018
T. P. (C) No. 81 of 2018
H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1093
REGR. GENL. v. STATE OF U. P.

R. Venkataramani, P.S. Patwalia, Siddharth Luthra, Rakesh A
Dwivedi, S. R. Singh, R. Basant, Sr. Advs., Ms. Mayuri Raghuvanshi,
Yashraj Singh Bundela, M. R. Shamshad, Praveen Vignesh, Vyom
Raghuvashi, Sangya Megi, Sakshi Kakkar, Shakti Singh, Karan S.,
Ms. Mainka Verma, Ms. Preetika Dwivedi, Apoorva Garg, Mangal
Prasad, Ankur Yadav, Ms. Shweta Yadav, Yash Pal Dhingra, Rana Ranjit
B
Singh, Abhay Kumar S., Ravish Singh, Vivek K. Singh, Kaushal Narayan
Mishra, A. K. Behra, Jasbir Singh Malik, Ms. Usha Nandini. V, Praveen
Kumar Aggarwal, Sanjay Rastogi, Ms. Mayuri Raghuvanshi, Mohit Paul,
Anugrah Niraj Ekka, Vikas Arora, Garvesh Kabra, Aviral Saxena, Sanjay
Kumar Tyagi, Venkita Subramoniam T. R, Rakesh U. Upadhyay, Ms. Aarti
Upadhyay, Amar Deep Sharma, Advs. for the appearing parties. C
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. Leave granted in Special
Leave Petition (Civil) No.26993 of 2017 and SLP (Civil) D. No.39750
of 2017. The question for consideration is the validity of determination
of seniority of promotee and direct recruit Higher Judicial Service (HJS) D
officers in the State of Uttar Pradesh. Dispute mainly relates to the
principle to be applied for determining seniority for direct recruits and
promotees of the years 2007 and 2009 in the context of Rules 22 and 26
of the Uttar Pradesh Higher Judicial Service Rules, 1975 (the Rules)
and the judgment of this Court in All India Judges Association versus E
Union of India1.
2. Before giving brief facts we may note that the Rules and the
issue of seniority of the HJS officers were subject matter of consideration,
inter alia, in P.K. Dixit versus State of U.P.2, O.P. Garg versus State
of U.P.3, Sri Kant Tripathi versus State of U.P.4, Ashok Pal Singh F
versus U.P. Judicial Services Association5, V.K. Srivastava versus
Govt. of U.P.6 and Het Singh Yadav versus State of U.P.7
3. In P. K. Dixit (supra), there was challenge to the seniority list
on the ground that vacancies had not been properly calculated as per the
1
(2002) 4 SCC 247
G
2
(1987) 4 SCC 621
3
(1991) Supp. (2) SCC 51
4
(2001) 10 SCC 237
5
(2010) 12 SCC 635
6
(2008) 9 SCC 77
7
Civil Appeal No.5270 of 2012 decided on 15.9.2016 H
1094 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Rules. This Court directed that matter should be examined afresh with
reference to appointments on posts available before the Rules came into
force.
4. In O.P. Garg (supra), challenge to seniority list of 1988 was
considered. This Court held that benefit of continuous length of service
B for a promote officer for a promote officer has to be with reference to
availability of a vacancy and not independent thereof. Second and third
proviso to Rule 8(2) and part of Rules 22 and 26 were declared ultra vires.
5. In Sri Kant Tripathi (supra) question was about correctness
of calculation for working out ratio between direct recruits and promotees.
C The issue had arisen with reference to recruitments for the years 1988
to 1994. This Court directed that for 1988 recruitment, the High Court
should determine number of vacancies available in the relevant year of
recruitment and then allocate the vacancies to different sources of
recruitment. It was also directed that vacancies should be filled up in
the year when vacancies become available. If a post is available in the
D quota of promotees, selection is made but promotion is not given,
promotion must take effect from the date the promotee could have been
appointed.
6. In Ashok Pal Singh (supra) one of the issues was whether
procedure of carrying forward of vacancies adopted by the High Court
E was erroneous. This Court held that no direct recruit at a subsequent
recruitment can claim that his seniority should be reckoned from the
date earlier to the date of his joining. The seniority of the promotee had
to commence from the date he should have been appointed against an
available vacancy for which he had already been selected.
F 7. In V.K. Srivastava (supra), challenge was to the amendment
of the Rules as notified on 9th January, 2007 on the ground that giving of
retrospective effect prejudiced the vested right of the candidate eligible
for vacancies prior to the amendment. This Court dismissed the writ
petition with the observation that the Rules had been duly complied with
G for the year 2008 selection.
8. In Het Singh Yadav (supra) question for consideration was
the validity of seniority list of promotees with regard to vacancies existing
prior to 15th March, 1996. The High Court quashed the seniority list
dated 24th August, 2007. Correctness of the view taken before the High
Court was subject matter of consideration before this Court. This Court
H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1095
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

noted that after the judgment of the High Court dated 16th December, A
2010, seniority list had been finalized on 14th April, 2016 consistent with
the directions in Ashok Pal Singh (supra) against which matter was
pending consideration before the High Court. This Court set aside the
judgment of the High Court leaving the merits of the matter to be gone
into by the High Court in the matter pending before it.
B
9. In All India Judges case (supra), it was directed that
recruitment to HJS at the relevant time had to be as follows :
“(a) 50 per cent by promotion from amongst Civil Judges (Senior
Division) on the principle of merit-cum-seniority and passing
a suitability test; C
(b) 25 per cent by promotion strictly on the basis of merit through
a limited competitive departmental examination on Civil
Judges (Senior Division) having not less than five years
qualifying service, and;
(c) 25 per cent of the posts shall be filled directly from amongst D
the eligible advocates on the basis of written and viva voce
test conducted by the respective High Courts.”
10. It was observed that to avoid litigation, seniority rules should
provide for roster system as laid down in R.K. Sabharwal versus State
of Punjab8 . Direction of this Court is as follows :
E
“29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher Judicial
Service in regard to their seniority in service. For over three
decades a large number of cases have been instituted in
order to decide the relative seniority from the officers
recruited from the two different sources, namely, promotees F
and direct recruits. As a result of the decision today, there
will, in a way, be three ways of recruitment to the Higher
Judicial Service. The quota for promotion which we have
prescribed is 50 per cent by following the principle “merit-
cum seniority”, 25 per cent strictly on merit by limited G
departmental competitive examination and 25 per cent by
direct recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned, is where
8
(1995) 2 SCC 745 H
1096 SUPREME COURT REPORTS [2018] 9 S.C.R.

A a roster system is followed. For example, there is, as per the
rules of the Central Government, a 40-point roster which
has been prescribed which deals with the quotas for
Scheduled Castes and Scheduled Tribes. Hardly, if ever, there
has been a litigation amongst the members of the service
after their recruitment as per the quotas, the seniority is fixed
B
by the roster points and irrespective of the fact as to when a
person is recruited. When roster system is followed, there is
no question of any dispute arising. The 40-point roster ha
been considered and approved by this Court in R.K.
Sabharwal v. State of Punjab (supra) One of the methods of
C avoiding any litigation and bringing about certainty in this
regard is by specifying quotas in relation to posts and not in
relation to the vacancies. This is the basic principle on the
basis of which the 40-point roster works. We direct the High
Courts to suitably amend and promulgate seniority rules on
the basis of the roster principle as approved by this Court in
D
R.K. Sabharwal case (supra) as early as possible. We hope
that as a result thereof there would be no further dispute in
the fixation of seniority. It is obvious that this system can
only apply prospectively except where under the relevant
rules seniority is to be determined on the basis of quota and
E rotational system. The existing relative seniority of the
members of the Higher Judicial Service has to be protected
but the roster has to be evolved for the future.”
(emphasis added)
11. The Rules as originally framed envisaged three sources of
F recruitment – direct recruitment from the bar, promotion from members
of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of cadre of
judicial magistrates. There was also a provision for quota for the different
sources. Number of appointments to be made is required to be identified.
Seniority is to be determined as per Rule 26.
G 12. As a result of observations in the above judgments, there was
amendment in the Rules. It may not be necessary to refer all the
amendments but reference to some of the amendments may be
necessary.
13. Accordingly, Rule 6 was amended to give effect to the
H judgment of this Court in All India Judges’ case (supra) vide U.P.
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1097
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

Higher Judicial Service (Sixth Amendment) Rules, 2006 notified on A
January 09, 2007. By the said amendment, the criteria for recruitment
by promotion was changed. Requirement of passing a suitability test
was incorporated. There was also modification about the percentage of
quota. The suitability test in pursuance of the said amended rules was
held for the first time in the year 2008. The introduction of the roster
B
was introduced by U.P. Higher Judicial Service (Seventh Amendment)
Rules, 2009 which was notified on 8th August, 2009.
14. Reference may now be made to the relevant Rules.
Rule 5
C
U.P. Higher Judicial Service Rules, 1975 Uttar Pradesh Higher Judicial Service
(Prior to the Sixth Amendment in 2006) (Sixth Amendment) Rules, 2006

( come into force w.e.f 21st March, 2002)

Rule 5. Sources of recruitment.-The Rule 5 was substituted as under:-
recruitment to the Service shall be made-- Sources of recruitment--The D
(a) by direct recruitment of pleaders and recruitment to the service shall be made-
advocates of not less than seven years'
standing on the first day of January next (a) By promotion from amongst the Civil
following year in which the notice inviting Judges (Senior Division) on the basis of
applications is published; Principle of merit-cum-seniority and
passing a suitability test.
(b) by promotion of confirmed members of E
the Uttar Pradesh Nyayik Sewa (hereinafter (b) By promotion strictly on the basis of
referred to as the Nyayik Sewa), who have merit through limited competitive
put in not less than seven years service to be examination of Civil Judges (Senior
computed on the first day of Januar y next Division) having not less than five years
following the year in which the notice qualifying service;
inviting application is published:
(c) By direct recruitment from amongst
Provided that so far long as suitable officers the Advocates of not less than seven F
are available from out of the dying cadre of years standing on the first day of January
the Judicial Magistrates confirmed officers next following the year in which the
who have put in not less than seven years notice inviting applications is published.
service to be computed as aforesaid shall be
eligible for appointment as Additional
Sessions Judges in the Service.
G
Explanation.--When a person has been both
a pleader and an advocate his total standing
in both the capacities shall be taken into
account in computing the period of seven
years under clause (a)."

H
1098 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Rule 6
U.P. Higher Judicial U ttar Pradesh Higher Uttar Pradesh Higher
Service Rules, 197 5 Judicial Service (Sixth Judicial Service
(Prior to the Sixth Amendment) Rules, (Ninth Amendment)
A mendment in 2006) 2006 Rules, 2014
st
(come into force w.e.f 21
B Mar ch, 2002)
Rule 6. Q uota.- Subject Rule 6 was substituted Rule 6 was substituted
to the provisions of Rule as under:- as under:-
8, the qu ota for various 6. Quota-Subject to the
sources of recruitment provisions of rule 8, the Quota-6. Subject to th e
shall be- quota for various sources provisions of rule 8, th e
of recruitment shall be- quota for various
Provided that where the sources of recruitment
C
number of vacancies to (i) Uttar Pradesh Nyayik shall be-
be filled in by any of Sewa:
these sour ces in (a) from amongst the (i) Uttar Pradesh
accordance with the quota Civil Judges (Senior Nyayik Sewa:
is in fraction, less than Division ) on the basis
half shall be ignored and of merit-cum- (a) from amongst th e
the fraction of h alf or sen iority an d passing Civil Judges (Senior
D more sh all ordinarily be a suitability test. - Division) on the
counted as one: 50% basis of merit-cum-
seniority and passing
(i) Direct recruits from (b) on th e basis of merit a suitability test. -
the Bar 15% of the through limited 65%
vacan cies competitive (b) on the basis of
examination of Civil merit through
E (ii) Uttar Pradesh Judges (Senior limited competitive
Nyayik Sewa 70% Division ) having n ot examination of civil
less than five years Ju dges (Senior
(iii) Utt ar Pradesh qualifying service. - Division) having n ot
Judicial Officers 10% less than five years
service (Judicial service. -10%
M agistrate) 15% Provided that in case
of there being an y Provided th at in case
F Provided fur ther that shortfall in th e vacancies of there being an y
when the stren gth in the to be filled up on the basis sh ortfall in the
cadre of the Judicial of in cadr e competitive vacancies to be
Mag istrates gradually gets examination , the shortfall filled up on the basis
depleted or is completely of 25% reserved for such of in cadre
exh austed and suitable promotion will be made competitive
candidates are n ot good by corresp on ding examination, the
G available in requisite incr ease in the quota sh ortfall of 10%
numbers or no candidate reserved for promotion of reserved for such
remains available at all, Civil Judge (Senior promotion will be
the shortfall in the number Division ) referred to in made good by
of vacan cies required to Clause (i)(a). corr esponding
be filled from amongst in crease in the quota
Judicial Magistrates and
in the long run all the
H vacan cies, shall be filled
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1099
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

by promotion from (ii) direct recruitment reserved for promotion A
amongst th e members from Bar - 25% of Civil Judg e (Senior
Higher
of the Nyayik Sewa Division) referred to in
ice
an d their quota shall, Provided that clause (i)(a).
ment)
4 in due course, where the number of
become 85 per cent. vacan cies to be filled in
by any of these sources (ii) Direct recruitment
in accordance with the from Bar-25% B
tituted quota is in fraction, less
than half shall be ignored Provided that
an d th e fraction of half where th e number of
to th e or more shall ordinarily vacancies to be filled
8, th e be coun ted as one:" in by any of the
various sources in accordan ce
uitment with the quota is in
fraction, less than half
C
shall be ignored and
radesh the fraction of half or
more shall ordinarily
be counted as one:
st th e
Senior Rule 8
n the
U.P. Higher Judicial Service Uttar Pradesh Higher Judicial
D
t-cum- Service (Sixth Amendment) Rules,
passing Rules, 1975
test. - (Prior to the Sixth Amendment in 2006
2006)
asis of (come into force w.e.f 21st March,
hrough 20 02)
petitive E
Rule 8. Number of appointments to In Rule 8 the existing sub rule (2)
of civil
be made.---(1) Th e Court shall, was substituted as under:-
Senior
ng n ot from time to time, but not later than
years three years from the last "8.(2) If at any selection the number
recruitment, fix th e number of of selected direct recruits available
officers to be taken at the for
n case recruitment keeping in view the "8.(2) If at any selection the number
g an y vacan cies th en existin g and likely to of selected direct recruits available F
the occur in the next two years. for appointment is less than the
o be number of recruits decided by the
e basis Note---The limitation of three years Court to be taken from that source,
cadre mentioned in this sub-rule shall not the Court may increase
apply to the first recruitment held correspondingly the number of
the after the enforcement of these rules. recruits to be taken by promotion
10% G
from the Nyayik Sewa;
such
(2) If at any selection the number of
ill be
by selected direct recruits available for Provided that the number of
appointment is less than the number vacan cies filled in as aforesaid
quota of recruits decided by th e Court to under this sub rule sh all be
be taken from that source, the Court taken into consideration while
may in crease correspondingly the fixing the number of vacancies
number of recruits to be taken by to be allotted to the quota of H
promotion from the Nyayik Sewa;
1100 SUPREME COURT REPORTS [2018] 9 S.C.R.

A
Provided that the number of vacan cies filled direct recruits at
in as aforesaid under this sub rule shall be the next
taken into consideration while fixing the recruitment, and
number of vacancies to be allotted to the the quota for
quota of direct recruits at th e n ext direct recruits
B recruitment, and the quota for direct recruits may be raised
may be raised accordingly; so, h owever, that accordingly so,
the percentage of direct recruits in the however, th at the
Service does not in any case exceed 1 5 per percentage of
cent of stren gth of th e service. direct recruits in
the service does
Provided further th at all the perman ent not in any case
C vacan cies existing on May 10, 1974 plus 31 exceed 25% of
temporary p osts existing on that date, if an y strength of the
when they are converted into perman ent service.
posts, shall be filled by promotion from
amongst the members of the N yayik Sewa;
and only th e remaining vacancies shall be
D shared between th e three sources under these
rules;

Provided also that th e number of vacancies
equal to 15 per cent of the vacan cies referred
to in the last precedin g proviso shall be
worked out for being allocated in future to
E the Judicial Magistrates in addition to their
quota of 15 per cent prescribed in Rule 6, an d
thereupon, future recruitment (after the
promotion from amongst th e members of the
Nyayik Sewa against vacancies referred to in
the last preceding proviso) shall be so
F arranged that for so lon g as the additional 15
per cent vacancies worked out as above h ave
not been filled up from out of th e Judicial
Magistrates, th e allocation of vacancies sh all
as follows---

(i) 15 per cent by direct recruitment.
G (ii) 30 per cen t from out of the Ju dicial
Magistrate;
(iii) 55 per cen t from out of the members
of the Nyayik Sewa.

H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1101
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

Rule 18 A
ts at
next U.P. Higher Judicial Service Rules, 1975
and (Prior to the Sixth Amendment in 2006)
for
cruits Rule 18. (1) The Selection Committee referred to in Rule 16 shall
aised scrutinize the applications received and may thereafter hold such B
so, examination, as it may considered necessary for judging the suitability
t the of the cand idates. The committee may call for interview such of the
of applicants wh o in its op inion have qualified for in terview aft er scrutiny
ts in an d examination.
does
case (2) In assessin g the merits of a candidate th e Selection Committee shall
of have due regard to his professi on al ability,character, personality and C
the health.

(3)The Selection Committee shall make a preliminary selection and
submit the record of all candidates to the Chief Justice and recommend
the names of the candidates in order of merit who, in its opinion, are
suitable for appointment to the service. D
(4) The Court shall examine the recommendation s of the Selection
Committee and havin g regard to the n umber of direct recruits to be
taken, prepare a list of selected candidates in order of merit and
forward the same to the Governor.

E
Rule 20

U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher
Service R ules, 1975 Judicial Service (Sixth Judicial Service (Ninth
(Prior to the Sixth Amendment) R ules, Amendment) Rules,
Amendment in 2006) 2006 2014
(come into force w.e.f. F
st
21 March, 2002)
Rule 20. Promotion of In Rule 20- for the The existing sub-rule (3)
M emb ers of Nyayik existing sub -rules (1) of rule 20 was
Sewa- (1) Recruitment by and (2), the following substituted as under:-
promotion of the sub-ru les were
members of the N yayik substituted:- 20.(3) The Selection
Sewa sh all be made by Committee sh all, after G
selection on the prin ciple (1) Recruitment by examining the record of
of seniority-cum-merit. promotion of the the officers included in
member s of the the list prepared un der
(2) The field of Nyayik Sewa shall sub-rule (2) of this rule
eligibility for recruitment be made by selection make a prelimin ary
by promotion sh all be on the prin ciple of selection of the officers

H
1102 SUPREME COURT REPORTS [2018] 9 S.C.R.

A confined to four times the merit-cum-seniority who in its opinion are fit to
number of vacancies to be and on passing such a be appointed on the basis
filled by promotion. The suitability test, as of merit-cum-seniority. In
Selection Committee shall prescribed in Appendix assessing the merit of a
prepare a list in order of "G(1)" candidate, the Selection
seniority of the officers Committee have due
eligible under Rule 5(b) of (2) The field of regard to his service
B these rules. eligibility for record, ability, character
recruitment by and seniority. The list shall
(3)The Selection Committee promotion contain the names of
shall, after examining the officers twice the number
record of the officers included shall be confined to of vacancies required to be
in the list prepared under sub- four times the number filled by promotion of the
rule (2) of this Rule make a of vacancies to be members of the Nyayik
C preliminary selection of the filled by promotion. Sewa.
officers who in its opinion are The selection
fit to be appointed on the basis Committee shall
of seniority-cum-merit. In prepare a list in order
assessing the merits of a of seniority of the
candidate, the Selection officers eligible under
Committee have due regard to Rule 5(a) of these
D his service record, ability, rules.
character and seniority. The
list shall contain the name of
officers twice the number of
vacancies required to be filled
by promotion of the members
of the Nyayik Sewa.
E (4) The Selection Committee
shall forward the list of the
candidates chosen at the
preliminary selection to the
Chief Justice along with the
names of the officers who, if
any, in the opinion of the
F Committee have been passed
over for promotion to the
service.

(5) The Court shall examine
the recommendations of the
Selection and make a final
G selection for promotion and
prepare a list in order of
seniority of the candidates
who are considered fit for
promotion and forward the
same to the Governor. The list
shall remain operative only till
the next recruitment.
H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1103
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

are fit to Rule 21 A
he basis
ority. In U.P. Higher Judicial Service Rules, Uttar Pradesh Higher Judicial
it of a Service (Sixth Amendment)
1975
Selection R ules, 2006
e due (Prior to the Sixth A mendment in
service 2006)
(come into force w.e.f 21s t
haracter B
list shall March, 2002)
mes of Rule 21. Temporary provisions for The existing Rule 21 was
number the cadre of the Judicial substituted as under:-:
ed to be Magistrate.- (1) For so long as (1) Recruitment by promotion of
n of the suitable officers are available from out the members of Nyayik Sewa as
Nyayik of the dyin g cadre of the Uttar Prad esh referred to in Rule 5(b) sh all be
Judicial Officers Service, confirmed made by selection strictly on the C
officers who h ave put in not less than basis o f merit through a limited
seven years' service shall be eligible competitive examination as
for appointment as Addition al prescribed in Appendix 'H'.
Sessions Judges in the service, as
provided in Rules 4, 5, 6 and 8. Such (2)App lication for recruitment to
officers may also b e appointed as the service from such sources
Addition al Sessions Judge in sh all be D
officiating an d temporary capacity invited by the Court through
upto the extent of 15 per cent of the District Judges.
vacan cies in the cadre occurring
during any on e period of Selection. (3) th e District Judge shall
forward to the Court all
(2) The field of eligibility for applications received by him
appointment from out of the Judicial alongwith his own estimate of E
Mag istrate shall be con fined to four each candidate's character and
times the number of vacancies to be fitn ess for appointment to th e
filled from this source. The Selection service.
Committee shall prepare a list in order
of seniority of the eligible officers. (4) Th e Selection Committee
referred to in Rule 16 shall
(3) Criterion for selection shall be scrutinize the F
seniority-cu m-merit. In assessing the applications received and shall
merits of a candidate the Selection hold a limited competitive
Committee sh all have due regard to examination, as
his service record ability, ch aracter prescribed in Appendix 'H'.
an d seniority. The preliminary
selection shall be made by the (5) Th e Selection Committee
G
Selection Committee referred to in sh all prepare a select list on th e
Rule 6 and th e list of the selected basis of th e
candidates shall be forwarded to the merit of th e succes sful
Chief Justice along with the n ames of can didates.
the officers wh o, if an y, in the opinion
of the Committee are un fit for .
appointment to the Service. H
1104 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (4) The Court sh all examine the (6) The committee shall make a
recommendations of the Selection prelimin ary selection an d submit
Committee and make a fin al selection the record of all candidates to
an d prepare a list of candidates the Chief Justice and
considered fit for appointment in order recommend th e names of the
of seniority an d forward the n ames of can didates in order of merit who,
B the o fficers. The list shall remain in its opinion are suitable for
operative only till the n ext appointment to the service.
recruitment.
(5).......... (7) The Court shall examine the
(6).......... recommendations of the
Selection Committee and make a
(7) The Court sh all examine the final selection for appointment
C recommendations of the Selection in HJS cadre and prepare a list in
Committee and make a fin al selection order of merit and forward th e
for appointmen t in HJS cadre and same to th e Govern or. The list
prepare a list in order of merit and sh all remain operative only till
forward the same to th e Governor. the next recruitment
The list shall remain operative only till
the next recruitment.
D
Rule 22

U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher
Service Rules, 1975 Judicial Service Judicial Service
(Prior to the Sixth (Seventh Amendment) (Ninth Amendment)
E Amendment in 2006) Rules, 2009 Rules, 2014

Rule 22. Appointment- Rule 22 . In Rule 22, the
(1) Subject to the provisions Appointment.-- (1) existing sub-rule (2)
of sub-rules (2) an d (3), the Subject to the provisions was substituted as
Governor shall on receipt of sub-rule (2) the under:-
F from the Court of the lists Governor shall, on 22.(2) Appointments to
mentioned in Rule 18, 20 and receipt from the Court of the service shall be
21 make appointments to the the list mentioned in made on the basis of
service on the occurrence of Rules 18, 20 and 21 roster system, the first
substantive vacancies by make appointments to post shall be filled from
taking candidates from the the service on the the list of promotees,
lists in the order in which occurrence of the second post shall be
G they stand in the respective substantive vacancies by filled up by direct
lists. taking candidates from recruit, the third and
the list in the order in fourth posts shall be
wh ich they stand in the filled up from the list of
respective lists in promotees and fifth
accordance with the post shall be filled up
roster. by the candidate
H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1105
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

ake a A
(2) Appointments to the (2) App ointments to selected strictly on
bmit service shall be made on the service shall be made on merit through LDCE
es to rotational system, the first the basis of roster (and so on ) according
and vacancy shall be filled from system, th e first and to the roster as
the the list of officers of the second post shall be prescribed in Appendix
who, Nyayik Sewa. The second filled from the list of '1', which will cease to
e for vacancy shall be filled from promotes, the third post become operative on
the list of direct recruits (and shall be filled up by the date the respective
B
so on), the remaining direct recruit an d the three streams achieve
e th e vacancies, shall th erefore be fourth post shall be filled their full allotted
filled by promotion from the up by the candidate vacan cies. Thereafter
the
list of the officers of the selected strictly on merit on account of arising
ake a Nyayik Sewa. through LDCE (and so any vacancy in quota of
ment on ) according to the respective stream the
ist in Provided that for so long as roster as prescribed in same could be filled-up C
d the suitable officers are Appendix 'I', which will from the same stream
e list available from th e cadre of cease to become of which
y till the Judicial Magistrates, operative on the date the vacan cy arises;
appoin tments to the Service respective three streams
shall be made in such a achieve their full allotted Provided that while
way that the second fifth vacancies. Th ereafter on following the roster at
and eighth (and so on), account of arising any no point of time the D
vacancy sh all be filled vacancy in quota of respective percentage
from the list of judicial respective stream the of posts filled from
Magistrates. same could be filled-up direct recruit and
igher from th e same stream of LDCE shall exceed
ce (3) In the eventuality of delay which vacancy arises: 25% an d 10% of the
ment) in making ap pointment under strength of service. In
sub-rule (1) and further if Provided that while case the percentage is E
exigency of service so followin g the roster at exceeding the allotted
requires, the Governor may, no point of time the quota, in such
the in consultation with the percen tage of posts eventuality the
e (2) Court, make short term filled from direct promotee shall
d as appointment as a stop gap recruit and LDCE shall occupy th e vacancy
arrangement from amongst exceed 25% each of which would have
nts to the members of Nyayik Sewa th e vacancies available gone to direct recruit F
ll be in the vacancy in these at the time of selection. or LDCE, h ad not the
sis of services within the quota In case th e percentage same been in excess
e first fixed by the Court till the is exceeding the of 25% and 10%
d from appointment are made under allotted quota, in such respectivel y of eith er
motees, subrules (1) an d (2): even tuality the of the two.
hall be Provided th at the period of promotee shall occupy
direct service spen t by a member of th e vacan cy which G
Nyayik Sewa on short term would have gone to the
d and
be appointment to the service as direct recruit or LDCE,
a stop-gap arrangement shall had not the same been
list of
fifth not be computed from an excess of 25% of
seniority under Rule 26. either of the two.
ed up

H
1106 SUPREME COURT REPORTS [2018] 9 S.C.R.

A
(4) The appoin tments (3) In the eventuality of
shall be made on d elay in making app ointment
rotational system, the first under sub-rule (1) and further
vacan cy sh all be filled if exigency of service so
from the list of officers of requires the Governor may,
the Nyayik Sewa, the in constitution with the
B second vacancy shall be Court, make short term
filled from the list of appointment as a stop-gap
Judicial Magistrates (and arrangement from amongst
so on). the promotees, in the vacancy
in these services fill the
appointment are made under
C sub-rules (1) and (2):

Provided th at the period of
service spen t by the
promotees on a short term
appointment to the service as
stop-gap arrangement shall
D
not be computed under Rule
26.

Rule 26

E U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)

Rule 26. Sen iority.--(1 ) Sen iority of the officers appoin ted in the
Service shall be determined in accordance with the order of
F ppointment in the Service un der
sub-rules (1) and (2) of Rule 22 of these rules.

(2)Seniority of members of th e 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 th e Government as amended from
time to time.
G
15. We may now note the necessary facts. It is clear from resume
of judgments of this Court that there is long history of seniority dispute
of the members of HJS. In the process, there was complex and long
drawn effort in determination and redetermination of vacancies. Though,
H in pursuance of judgment of this Court in All India Judges’ case (supra),
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1107
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

amendment in the Rules was carried out and notified on 9th January, A
2007 and principle of suitability test and roaster system were introduced,
in absence of determination of vacancies for the period from 2002 till
2007, neither the promotees could be given appointments in spite of
availability of vacancies and eligibility nor direct recruitments could be
made. Thus, recruitment for the relevant period was initiated belatedly
B
in the year 2007. In the absence of suitability test, which was conducted
only in the year 2008, the promotees could not be given promotion. In
the circumstances, the direct recruits selected after 2007 could not be
given seniority prior to their joining. Seniority for direct recruits by
following the rota system would have operated unfairly for the promotees.
16. In this background, vacancies as on 31st December, 2006 and C
expected vacancies upto 31st December, 2008 were determined for the
direct recruits and promotees on 15th February, 2007.
17. After the rules were amended in the year 2007, vacancies
were worked out and advertisement was issued on 31st March, 2007.
Suitability test for purposes of promotion was held on 10th February, D
2008. Final list of selected direct recruits was approved by the Full
Court on 12th July, 2008.
18. Vide order dated 11th August, 2008, appointments to the UPHJS
by way of promotion were made. Direct recruited officers to the UPHJS
were appointed between 11th September, 2008 and 24th November, 2008. E
Though, process for appointment was conducted simultaneously, the
select lists were also forwarded to the Court simultaneously, due to
the observance of certain formalities, letters of appointment for direct recruits
of were given later to the promotion being affected.
19. For the recruitment year 2009, calculation of vacancies was F
finalized on 24th March, 2009. The same was approved by the Full
d in Court on 10th April, 2009. Suitability test for promotees was held on 29 th
has November, 2009. Select list was approved by the Full Court on 9th
rom January, 2010. Appointments were notified on 7th September, 2010.
Direct recruits for the year 2009 were appointed between 24th December, G
2010 to 20th April, 2011. After the appointments, the dispute of seniority
cropped up. The direct recruits claimed that they were entitled to be
given seniority as per rota system laid down under the Rules and that
they had been wrongly placed junior to the promotees. The promotees
claimed that their seniority should commence from the date of accrual
H
1108 SUPREME COURT REPORTS [2018] 9 S.C.R.

A of vacancy, date of their eligibility and officiation and not from the date
of actual appointment.
20. The High Court appointed a Committee to go into the matter.
The Committee took up determination of vacancy and fixation of seniority
for the HJS officers appointed upto 1998-2000 which was finalized on
B 1st August, 2011. Thereafter, determination of vacancies and fixation of
seniority of 2007 and 2009 recruitments was considered by the committee
vide its report dated 23rd September, 2015 and 6th April, 2016. The same
was approved by the Full Court on 14th June, 2016.
21. The report of the Committee dated 23rd September, 2015 was
C in continuation of its earlier reports finalizing seniority lists dated 6th May,
1995 and 13th July, 2011, with reference to officers recruited prior to
2007. The Committee determined vacancies vide its report dated 7th
February, 2012 on the basis of which tentative seniority lists dated 25th
July, 2013 and 18th December, 2014 were published. Objections to the
said tentative seniority lists were considered in the said report.
D
22. The question considered by the Committee was whether long
officiation by officers of UPNS should be given due credit so that they
may not suffer on account of delay in holding suitability test. Suitability
test was not held due to non amendment of the Rules upto 9th January,
2007 inspite of judgment of this Court dated 21st March, 2002. Thus,
E from 21st March, 2002 to 2008 since a different regime of Rules was
stipulated under the judgment of this Court in All India Judges case
(supra) and the Rules were amended by the High Court only on 9 th
January, 2007, in spite of availability of vacancies in promotion quota,
the promotee officers who were eligible and were officiating against the
F said vacancies, could not be recruited. They were recruited only after
the suitability test was held for the first time in the year 2008. The
Committee thus held that they were entitled to en bloc seniority without
rota system. The direct recruits could not be given seniority for the period
prior to their appointment. Same was the position with regard to 2009
recruitments. The view of the Committee was that rota system will
G create imbalance and injustice.
23. The direct recruits as well as the promotees were aggrieved
by the determination of their seniority and challenged the same by filing
Writ Petitions. In Writ Petition (SB) No.1880 of 2017 filed by the direct
recruits, respondents 134 to 173, along with others before the High Court,
H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1109
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

prayer was for quashing the final seniority Report dated 23rd September, A
2015 (of Committee of High Court Judges), supplementary report dated
6th April, 2016(also of a Committee of High Court Judges) and for a
direction to redetermine seniority of the writ petitioners who were the
direct recruits on the basis of rotational system proportionate to their
quota, apart from other incidental prayers. It was submitted that since
B
Rule 22(2) provides for rotational basis for seniority, their date of
appointment was not conclusive for the purpose of seniority. Accordingly,
the writ petitioners sought determination of seniority by applying roster
system. The High Court and the affected officers defended the report
of the Committee as approved by the Full Court.
24. In Writ Petition (SB) No.16569 of 2016 filed by the promotees, C
challenge was to the validity of the Amendment Rules, 2006 in so far as
the Rules were retrospective. Challenge was also to the reports of the
Committees and decision of the Full Court in so far as objections to
seniority list were rejected. The petitioners in the said writ petition were
promoted against vacancies of the years 2002 onwards but the said D
vacancies were actually determined later. According to the said writ
petitioners, they were entitled to seniority from the date of their eligibility,
without their passing of the suitability test which was retrospectively
prescribed for the first time on 9th January, 2007.
25. The High Court examined two questions : - E
(i) Whether promotees were entitled to seniority prior to their
appointment on the ground that requirement of suitability test
was introduced for the first time in the year 2007 and they had a
vested right to be promoted against the earlier vacancies without
the suitability test. F
(ii) Whether direct recruits were entitled to the benefit of rotation in
determination of seniority. The High Court held that the
promotees could not be given seniority prior to their selection.
The retrospectivity of the Rules prescribed suitability test was
valid particularly in view of judgment of this Court in V.K. G
Srivastava (supra).
26. It was held that no determination of vacancies had taken place
on account of pendency of litigation which was finalized on 25 th August,
2004. No direct recruitment was made after 1998-2000 upto 2005. Only
after 25th August, 2004 determination of vacancies took place. Promotions
H
1110 SUPREME COURT REPORTS [2018] 9 S.C.R.

A and direct recruitments were made in respect of the said selection in the
year 2005. Promotions and direct recruitments which are subject matter
of the present case were made in 2008/2009. Thus, Writ Petition (SB)
No.16569 of 2016 was dismissed and objection of the promotees to their
seniority was rejected.
B 27. As regards claim of the direct recruits based on Quota-Rota
rule and post based roster system, it was observed that the same was
mandatory. It was accordingly, held that seniority was required to be re-
determined by applying the Quota-Rota.
28. The conclusions of the High Court are as follows :
C “In view of the above, we sum up our conclusions as under :
(1) The challenge to the vires of the 6th amendment Rules,
2006 already having been repelled by the Supreme Court in
V.K. Srivastava’s case, is not open to reconsideration by us.

D (2) There is no factual and legal basis for the petitioners
claim to promotion from date of occurrence of vacancies
and seniority accordingly in Writ Petition No. 16569(SB) of
2016.
(3) The determination of vacancies by the Committee does
not require any interference but determination of seniority
E
is not sustainable.
(4) Considering the facts of the present case there is no error
in the appointment of direct recruits in December, 2011 and
January, 2012 w.e.f. 04.01.2007 when the last of the selectees
of the same selection had joined following the dictum in Dr.
F
A.K. Sirkar and in view of Balwant Singh Narwal’s case
(supra).
(5) There has been a complete non-adherence to the Quota-
Rota Rule and the determination of seniority in accordance
thereof in terms of Rule 22 and 26 of the Rule, 1975. The
G judgment rendered in All India Judges’ Cases has not been
followed as was mandatorily required.
(6) The determination of seniority is patently erroneous and
contrary to Rule 26 of the Rules, 1975 which envisages such
determination in accordance with the order of appointment
H
HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. 1111
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

in the service under Sub-Rules (1) and (2) of the Rule 22 A
which necessarily means the order of rotational/cyclical
placement of appointees from different sources of recruitment
without disturbing their inter-se placement within the same
stream/quota and not en bloc placement on the basis of date
of appointment as has been done.”
B
29. We have heard learned counsel for the parties. The first issue
raised is whether the promotees recruited in the year 2008/2009 are
entitled to seniority prior to their selection on the ground that no suitability
test was required prior to 9th January, 2007 and retrospective effect to
such requirement was illegal. We are in agreement with the view taken
by the High Court that suitability test was required in terms of judgment C
of this Court in All India Judges’ case (supra) and under the amended
Rules applicable retrospectively which was duly upheld by this Court in
V.K. Srivastava (supra). Thus, the promotees could not be given
promotion without suitability test nor could they claim seniority without
the same. They have been rightly given seniority from their appointments. D
30. With regard to the Quota-Rota rule, there is no doubt that this
is a mandatory requirement of the Rules. The said requirement has
however to be seen in the peculiar fact situation. The issue of
determination of vacancies was embroiled in continuous litigation. The
Quota-Rota rule could not be applied in the absence of determination of E
vacancies. The suitability test though validly laid down could not be held
till 2008 for reasons already noted. No promotion could be given in
absence of suitability test. The rule provided for seniority of the promotees
to be fixed from the date of availability of vacancy but such seniority
could also not be given in the present fact situation. If rota rule is applied,
it will work serious prejudice to the promotees. Thus, the Rules will have F
to be given pragmatic interpretation. As laid down by this Court in Direct
Recruit Class-II Engineering Officers’ Association versus State of
Maharashtra9, if it becomes impractical to act upon rule fixing quota
from two sources, it is no use insisting that the authority must give
effect to such a rule. Every effort has to be made to respect a rule but G
if it is not feasible to enforce it, the rule has to be given a practical
interpretation. Thus, interference by the High Court with the seniority
given to the promotees above the direct recruits without following the
rotation principle cannot be sustained.
9
(1990) 2 SCC 715, para 23 H
1112 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 31. Accordingly, we allow the appeal arising out of Special Leave
Petition (Civil) No.26993 of 2017 and dismiss the Writ Petition (SB)
No.1880 of 2017 on the file of the High Court filed by the direct recruits.
We uphold the judgment of the High Court with regard to dismissal of
Writ Petition (SB) No.16569 of 2016 filed by the promotees and dismiss
the appeal arising out of Special Leave Petition (civil) D.No.39750 of
B
2017.
In view of the above, all other matters will stand disposed of
accordingly.
Ankit Gyan Matters disposed of.
C

D

E

F

G

H