Holding

The High Court’s adoption of the 1994 Reservation Act under Rule 7 and its use of Rule 8(2) to fill unfilled reserved vacancies by promotion complied with the statutory scheme, and the appellants' challenge fails.

Summary

The appellants, successful candidates in the direct‑recruitment exam for District Judges, challenged the Allahabad High Court’s appointment of 34 unfilled reserved vacancies by promoting in‑service candidates, alleging non‑compliance with the Uttar Pradesh Reservation Act, 1994 and that they should have been considered first. The Supreme Court held that the appellants had locus standi but the High Court was entitled to adopt the Reservation Act under Rule 7 of its rules and to apply Rule 8(2) to fill the unfilled reserved posts by promotion, with the proviso to carry forward vacancies for future recruitments. The Court clarified that Section 3(1) of the Act governs the percentage of reservation, while Section 3(2) prescribes a separate methodology for unfilled vacancies, which is governed by the service rules, not by the Act. Consequently, the High Court’s actions were lawful and the appeals were dismissed.

Issues considered

Whether the appellants have locus standi to challenge the High Court’s appointments.
Whether the High Court could validly adopt the Uttar Pradesh Reservation Act, 1994 by invoking Rule 7 of the High Court Rules.
Whether the adoption of the Reservation Act by the High Court was proper and sufficient for applying reservation percentages.
Whether the High Court erred by not first considering the direct‑recruit candidates for the unfilled reserved vacancies.
Whether the High Court was justified in filling the unfilled reserved vacancies by promotion of in‑service candidates despite Section 3(2) of the Reservation Act.

Legislation cited

Uttar Pradesh Public Service (Reservation) for Scheduled Castes, Scheduled Tribes and Other Backward Classes Act, 1994s. 3(1), s. 3(2)

Subjects

judicial servicereservationdirect recruitmentpromotionRule 8(2)Uttar Pradesh Higher Judicial Service RulesPublic Service (Reservation) Act 1994locus standiconstitutional lawArticles 233-235Article 16(4)Article 335

Judgment

[2015) 3 S.C.R. 107

NAWAL KISHORE MISHRA & ORS. ETC. A

v.

HIGH COURT OF JUDICATURE AT ALLAHABAD
THROUGH ITS REGISTRAR GENERAL & ORS. ETC.
B
(Civil Appeal Nos. 1956-1957 of 2015 etc.)

FEBRUARY 17, 2015.

[FAKKIR MOHAMED IBRAHIM KALIFULLA AND c
ABHAY MANOHAR SAPRE, JJ.]

Service Law: .

Judicial service. - Appointment by High Court - To the
post of Direct Recruit District Judge '- In the unfilled D
reserved vacancies - By way of promotion from the 'in
service candidates' - Applying r.8(2) of Higher Judicial
Service Rules, 1975 - Challenged by the appellant ·~'-"'

(candidates belonging to the 'direct recruit' source) - On the
ground that the appointment was not in strict compliance E
of the procedure prescribed u/s 3(2) of Public Service
(Reservation) for Scheduled Castes and Scheduled Tribes
and Other Backward Classes Act, 1994 - Seeking
appointment to the unfilled posts from the 'direct recruit'
F
source in the first instance - Locus standi of appellants to
challenge the appointment and propriety of the appointment
- Held: In the facts of the case, the appellants had the locus
to challenge the appointment- By applying s.3(2) of 1994
Act, there is no scope of filling the unfilled vacancies of G
reserved category either from the category of the direct
recruits or from the category of in-service candidates by
regular promotion - But in the present case, s.3(2), which

107 H
108 SUPREME COURT REPORTS (2015] 3 S.C.R.

A provides the methodology in respect of unfilled reserved
posts, cannot be. involved because, what was adopted by
the High Court by adopting the 1994 Act was reservation
simp/icitor and not other consequences - The methodology
in respect of the unfilled reserved posts of direct recruit
B District Judges is governed by r.8 of Higher Judicial Service
Rules - The High Court rightly filled up the vacancies by
way of promotion, resorting to r.8(2) of the Higher Judicial
Service Rules and also by applying proviso to r. 8(2) and
thereby carry forward those unfilled reserved vacancies in
C the future years of recruitment - Filling up the unfilled
reserved vacancies from the direct recruit general category
candidates would run counter to the rule of reservation and
hence not permissible - Uttar Pradesh Public Service
(Reservation) for Scheduled Castes and Scheduled Tribes
0
and Other Backward Classes Act, 1994 - s.3(1) and (2) -
Uttar Pradesh Higher Judicial Service Rules, 1975 - n: 7
and 8(2).

Dismissing the appeals, the Court
E
HELD: 1. The appellants had every locus to
challenge the appointment made by the High Court by
invoking Rule 8(2) of the Uttar Pradesh Higher Judicial
Service Rules, 1975. It is not the stand of the High Court
F that the posts in the reserve category were kept intact
for being considered by way of selection and
appointment from the reserve category candidates as
provided under Section 3(2) of the Uttar Pradesh Public
~ervice (Reservation) for Scheduled Castes and
G Scheduled Tribes and Other Backward Classes Act,
1994. Section 3(2) would show that in the event of
inability to fill up the reserved category posts, the
process of selection should be continued in the very
H , same year in which the selection was earlier made and
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 109.
THR. R.G.

even thereafter if it remained unfilled, the post should A
be kept vacant for the future years of recruitments.
Since the High Court has not adopted the said
procedure except making an attempt to fill up by way
of selection in that year itself, there was every ·scope
to contend that the procedure prescribed under Section B
3(2) of the Reservation Act of 1994 was not strictly
adhered to. A larger issue as to the entitlement of the
appellants as successful candidates belonging to
'direct recruit' source to seek appointment to the
unfilled posts of that very source, namely, 'direct recruit' C
though belonging to reserved category, merits
consideration and would not disentitle the appellants
to raise a challenge as made in the writ petition. [para
10-11) [121-B-H; 122-A-C)
D
2.1. The High Court was well justified in applying
the extent of reservation prescribed in the Reservation
Act, 1994 by invoking the existing Rule 7 of the High
Court Rules. What was provided by way of reservation
for different categories including the Scheduled Castes E
and Scheduled Tribes etc., prior to the coming into force
of 1994 Act, has been brought into an Act by way of
substantive provision under Section 3(1). Therefore, if
any Department of the State including the High Court
were to adopt the prescribed rule of reservation after F
the coming into force of the Reservation Act, 1994, such
adoption can be only by way of adopting the relevant
provision viz., Section 3(1) c:/f the Act. After the
. emergence of the Reservation Aet, 1994, the application
of Rule 7 of the Higher Judicia'I Service Rules can be G
only by way of "adopting the statutory prescription
contained in Section 3(1 ). There is no scope for the High
Court to look for any Government order for the purpose
of applying the rule of reservation. [paras 29 and 30)
[140-F-H; 141-A-C, G) H
110 SUPREME COURT REPORTS [2015] 3 S.C.R.

A Pashupati Nath Sukul v. Nem Chandra Jain & Ors.
=
1984 (1) SCR 939 (1984) 2 SCC 404 - referred to.

2.2. For all practical purposes the usage of the
expression 'order' in Rule 7 is only referable to the
B provision for reservation as contained in Section 3(1)
of the Reservation Act, 1994. Therefore if the said Act
was adopted by the High Court in exercise of its powers
under Rule 7, that would be sufficient for applying the
rule of reservation. Therefore, in the event of valid
C adoption of the rule of reservation of the Reservation
Act of 1994 by the High Court by exercising its power
under Rule 7, the same would be valid and in
accordance with law. [para 31] [142-G-H; 143-A]
'
o State of Bihar and Another v. Bal Mukund Sah & Others
2000 (2) SCR 299 = (2000) 4 sec 640- followed.

Ashok Pa/. Singh & Ors. v. Uttar Pradesh Judicial
=
Services Association & Ors. 2010 (12) SCR 25 (2010) 12
E SCC 635 - referred to.

3. By the resolution of the Selection and
Appointment Committee dated 24,3.2009 the rule of
·reservation as prescribed under. Section 3(1) of th.e 1994
Act was decided to be followed by the High Court. Thus,
F a reading of the resolution of the Selection Commjttee
and the resolution of the Full Court together would
constitute a valid adoption as contemplated under Rule
7. Thus, it is held that the High Court adopted the rule
G of reservation as per the Reservation Act, 1994 which
was well within the prescription contained in Rule 7.
[paras 44, 46 and 47] [149.-D, G-H, 150-C]

State of Bihar and Another v. Bal Mukund Sah & Others
=
H 2000 (2) SCR 299 (2000) 4 SCC 640Ashok Pal Singh &
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 111
THR. R.G.

Ors. v. Uttar Pradesh Judicial Services Association & Ors. A
2010 (12) SCR 25 =(2010) 12 sec 635 - followed.
4.1. Section 3(2) of the Reservation Act which deals
with the manner in which unfilled vacancies of different
reserved categories are to be filled up. If Rule 8(2) of B
High Court Rules were to be applied, on its own, it will
have a direct impact on the prescription contained in
Section 3(2). Sub-Section (2) of s.3 under the
Reservation Act, 1994 prescribes that any unfilled
reserved vacancy should be carried forward and filled c
through special recruitment in that very year or in
succeeding year or years of recruitment as a separate
class of vacancy. It also states that such class of
vacancy should not be considered together with the
vacancies of the year of recruitment in which it is filled, D
meaning thereby the vacancies that exist in any
subsequent year or years of recruitment. It further
stipulates that for the purpose of deciding the maximum
percentage of reservation viz., 50% of the total
vacancies such carry forward vacancies should never E
be counted. The High Court carried out the exercise of.
special recruitment in that very year, but yet the posts
could not be filled up in that very year from the reserved
category. Thereafter, the High Court should have carried
forward the unfilled vacancies of the reserved category F
in the succeeding year or years of recruitment as a
separate class of vacancy. Therefore, applying Section
3(2), there is no scope for filling up of any of those
unfilled vacancies of the reserved category of any
particular recruitment year by the candidates belonging G
to any other categories either of Direct recruitment
source or by any other source viz., from the in-service
candidates by way of regular promotion or by way of
special merit promotion. [paras 49 and 52] [150-G; 151-
G-H; 152-A-G] H
112 SUPREME COURT REPORTS [2015] 3 S.C.R.

A ' rule of reservation, it
4.2. Even while applying the
must be seen as to what extent the High Court chose
to adopt the rule of reservation. The resolution passed
by the selection and appointment committee dated
24.3.2009 which was adopted by the Full Court
B specifically m!!ntioned that the 'vacancies' should be
filled up applying the 'reservation' as per the
Reservation Act of 1994 as amended up to date. Thus,
it is clear that what was adopted was ~reservation'
C simplicitor and not other consequences. Therefore,
there is no question of invoking Section 3(2) of the
·Reservation Act, 1994 relating to consequential action
to be taken if the posts of direct recruit District Judges
are not filled up. Such a consequence cannot be stated
while applying Rule 7 of the High Court Rules which
0
merely refers to provision for reservation and nothing
more. Insofar as provision for reservation is concerned,
in the absence of any Government order prescribing
reservation, the only provision available is Section 3(1).
E Section 3(2) is only a methodology to be followed for
filling up the u·nfilled reserved posts. The methodology
in respect of the unfi!led reserved posts of direct recruit
District Judges is concerned, it is governed only by
Rule 8. In fact, even by applying Rule 8(2) by virtue of
F the proviso to the said Rule, the interest of the reserved
. category candidates is sufficiently safeguarded which
is preserved and filled up in the selection to be made
in the future years. [paras 55-56] [154-F-H; 155-B-F]

G state of Bihar and Another v. Bal Mukund Sah & Others
=
2000 (2) SCR 29~ (2000) 4 sec 640; Ashok Pal Singh
& Ors. v. Uttar Pradesh Judicial Services Association & Ors.
2010 (12) SCR 25 = (2010) 12 SCC 635 - followed.

4.3 Thus, by virtue of the adoption of the rule of
H
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 113
"THR. R.G.

reservation by invoking Rule 7 when the High Court A
decided to apply only to the extent of prescribed
percentage of 'reservation' for different categories,
namely, SC, ST and OBC as provided under Section 3(1)
of the Reservation Act 1994 in all other respects, it must
be held that it would be governed by its own rule B
namely the rules of the High Court pertaining to the
judicial service. [para 58] [156-E-F]

4.4. when the posts were reserved for the SC, ST,
filling up of those posts from the general category C
candidates would seriously affect the rule of
reservation, as once the posts of direct recruit are filled
up from other category candidates even the carrying
forward of those vacancies as provided under the
proviso to Rule 8(2) cannot be operated upon. If such D
vacancies were filled up by the 'in service candidates'
by resorting to promotion, the proviso can be
conveniently operated upon by carrying forward those
vacancies in the future years in the direct recruit source
and by maintaining the rule of reservation to the extent E
it could not be filled up in the relevant recruitment
years. If unfilled reserved vacancies are filled from the
general category candidates, such a contingency
created would run counter to the rule of reservation, F
and, therefore, the same cannot be countenanced. [para
63] [159-B-F]

Ashok Pal Singh & Ors. v. Uttar Pradesh Judicial
=
Services Association & Ors. 2010 (12) SCR 25 (2010) 12
SCC 635 - referred to. G

4.5. The High Court by adopting the Reservation
Act, 1994 adopted the rule of reservation to the full
extent provided for and as prescribed under Section
3(1) of the Reservation Act, 1994 and that in respect of H
114 SUPREME COURT REPORTS [2015] 3 S.C.R.

A ·any unfilled vacancies of that category, the High Court
rightly resorted to the prescription contained in Rule
8(2) by resorting to filling up of such vacancies by
special recruitment in that year as directed by this Court
and in the absence of not getting such vacancies filled
B up by resorting to such filling up by promotion of 'in
service candidates' and also by applying the proviso to
Rule 8(2) and thereby carry forward those vacancies in
the future years of recruitment. [para 64] [15-G-H; 160-
C A]
4.6. Without ,disturbing whatever promotions already
made by resorting to Rule 8(2), the High Court can be
permitted to provide that number of vacancies which
remained unfilled in the year 2009 in the reserved
0 category of direct recruit source by adding that number
of vacancies in the recruitment to be made in the future
years until such number of vacancies of unfilled
reserved category pertaining to 2009 are filled. [para 65]
[160-F-G]
E State of U.P. &Anr. v. Johri Mal 2004 (1) Suppl. SCR 560 =
(2004) 4 SCC 714, Union of India v. Naveen Jindal & Anr.
=
2004 (1) SCR 1038 (2004) 2 SCC 510 and Sri Dwarka
Nath Tewari & Ors. v. State of Bihar & Ors. AIR 1959 SC
249; R.K. Sabharwal & Ors. v. State of Punjab & Ors.1995
=
F (2) SCR 35 (1995) 2 SCC 745 - referred to.
· Case Law Reference
2004 (1) Suppl. SCR 560 referred to para 6
2004 (1) SCR 1038 referred to para 6
G AIR 1959 SC 249 referred to para 6
1995 (2) SCR 35 referred to para 7
2000 (2) SCR 299 followed para 12 and 47
2010 (12) SCR 25 fo!!owed para 12 and 59
H
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 115
THR. R.G.

1984 (1) SCR 939 referred to para 30 A
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1956-1957 of 2015.

From the Judgment and Order dated 02.03.2012 of the
High Court of Judicature at Allahabad in Civil Misc. Writ B
Petition Nos. 20566 and 57625 of 2010.

with

C. A. Nos. 1992-1993 & 1958-1959 of 2015 C

Dinesh Dwivedi, Manish Shankar Shrivastav, Krishnam
Mishra, Yasharth Kanth, Minakshi Vij, P. K. Jain, Saurabh
Jain, J. N. Jha, P. K. Goswami, Vibhuti Sushant Gupta,
Mushtaq Ahmad for the Appellants. D

. lrshad Ahmad, AAG, Abhisth Kumar, Sudeep Kumar,
Ashok K. Srivastava, Pratush Kumar for the Respondents.

The Judgment of the Court was delivered by
E
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
granted.
2. Since the issues involved in the above appeals are
identical, all these appeals are disposed of by this common F
judgment. We, ho~ever, refer to the facts dealt with by the
Division Bench of the High Court in SLP (C) 11924-25/2012
by judgment dated 02.03.2012.
3. The challenge in the writ petitions was to the
appointment made by the High Court to the post of Direct G
Recruit District Judges in the unfilled reserve vacancies, to
the extent of 34 in number by way of promotion from the
'in service candidates' by applying Rule 8(2) of the Uttar
Pradesh Higher Judicial Service Rules, 1975 (hereinafter
referred to as "the Rules"). The Division Bench of the High H
116 SUPREME COURT REPORTS (2015] 3 S.C.R.

A Court dismissed the writ petitions. Aggrieved, the appellants
have come forward with these appeals.

4. To trace the brieffacts, on 15.04.2009 the High Court
notified and called for applications for filling up 68 vacancies
B in the Higher Judicial Service. Of the 68 vacancies, 24
vacancies were meant for open category, 21 for Other
Backward Classes (OBC), 21 for SC and 2 for ST. It is not
in dispute that all the 24 vacancies in the open category
got filled up on merits. Of the 21 vacancies in the OBC, 1O
C alone could be appointed leaving 11 vacancies to remain.
All the SC/ST vacancies numbering 23 were also not filled
up. In the unfilled 34 vacancies, the High Court promoted
the 'in service candidates'. The appellants were successful
in the written test and also attended the interview. According
D to the appellants, even applying Rule 8(2) of the Rules, all
the 68 vacancies were direct recruit vacancies and that in
the first instance, the unfilled vacancies should have been
filled up only from the other successful candidates from the
direct recruitment source. In other words, the contention was
E that only if no other successful candidate was available from
the direct recruit source belonging to any of the categories,
namely, open category or any other category such as OBC
or SC/ST then and then alone the High Court could have
F resorted to promotion of 'in service candidates'. To put it
differently, according to the appellants since the posts
advertised were by way of direct recruitment, it was meant
for that particular source of recruitment, namely, "direct
recruit" and all those successful candidates of that source
G ·alone, namely, 'direct recruit' were in the first instance
eligible to be considered for being appointed to the unfilled
posts of any of the categories, namely, open or OBC or SC
or ST and in the event of unavailability of any candidate
from that source then and then alone the High Court could
H have resorted to filling up of those posts by way of
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 117
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

promotion of 'in service candidates'. Since, the above A
submission of the appellants did not find favour with the
High Court, the appellants are before us.

5. We heard Mr. Dwivedi, learned Senior Counsel for
the appellants Mr. Ashok Srivastava, learned counsel for the B
High Court and Mr. lrshad Ahmad, Additional Advocate
General for the State.

6. The contentions of Mr. Dwivedi learned Senior
Counsel while assailing the judgment of the High Court were C
three-fold. The learned Senior Counsel submitted that in
order to apply the rule of reservation by the High Court, as
has been stipulated in the Uttar Pradesh Public Services
(Reservation) for Scheduled Casts and Scheduled Tribes
and Other Backward Classes Act, 1994 (hereinafter referred o
to as "the Reservation Act of 1994"), there should have been
express adoption of only orders pertaining to such
reservation passed by the Government and not the Act
itself. The said contention of learned Senior Counsel was
based upon the specific contents of Rule 7 of the Rules. E
The learned Senior Counsel then contended that in order
to apply the rule of reservation under Rule 7, the High Court
should adopt such Order pertaining to reservation and
according to the appellants there was no adoption of either
any of the order of the Government providing for reservation F
or the application of the Reservation Act of 1994 itself as
claimed by the High Court. It was then contended that the
claim of the High Court that the High Court adopted the rule
of reservation under Rule 7 was not true. It was lastly
contended that assuming the High Court was correct in G
claiming that the whole of the Reservation Act was adopted
by it then Section 3(2) of the Reservation Act was violated
and consequently the filling up of the unfilled posts of direct
re.cruits of the year 2009 by way of promotion of 'in service H
118 SUPREME COURT REPORTS (2015] 3 S.C.R.

A candidates' was liable to be set aside. In support of his
submissions, Fearned Senior Counsel relied upon the
Constitution Bench decision of this Court reported in State
of Bihar and Another v. Bal Mukund Sah & Others -
(2000) 4 SCC 640 (CB), as well as the decisions reported
B ::1 Ashok Pal Singh & Ors. v. Uttar Pradesh Judicial
• Services Association & Ors.- (2010) 12 SCC 635, State
of U.P. & Anr. v. Johri Mal- (2004) 4 SCC 714, Union of
India v. Naveen Jindal & Anr. - (2004) 2 SCC 510 and
Sri Dwarka Nath Tewari & Ors. v. State of Bihar & Ors.
C -AIR 1959 SC 249 (CB).

7. As against the above submissions Mr. Raghvendra
Shrivastava, learned standing counsel for the High Court
submitted that the appellants have no locus to challenge
D the appointme~ts made to the posts meant for reserved
category, that under Article 13(3) of the Constitution, a law
would include inter alia an Act, rules, regulations and orders
of the Government and, therefore, the adoption of the whole
of the Reservation Act b}' the High Court cannot be faulted.
E He placed reliance upon the decision of this Court reported
· as R.K. Sabharwal & Ors. v. State of Punjab & Ors. -
(1995) f SCC 745 and Pashupati Nath Sukul v. Nem
Chandra Jain & Ors. - (1984) 2 SCC 404. According to
F learned standing counsel, as per the proceedings of the
Selection Committee meeting, which was also approved by
the Full Court, the Reservation Act on the whole was
adopted in accordance with Rule 7 of the Rules and,
therefore, the action of the High Court could not have been
G challenged. The learned standing counsel by referring to an
order passed by this Court in the earlier round in I.A. No.87
of 2010 contended that applying Section 3(2) of the
Reservation Act and as directed by this Court in the said
order, selection was again held in the same year to fill those
H unfilled reserved vacancies and as in that process also, the
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 119
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

seats could not be filled up, the High Court invoked Rule A
8(2) of the Rules by promoting the 'in service candidates'
to those unfilled vacancies. The learned standing counsel
further contended that the proviso to Rule 8(2) was strictly
followed and those vacancies of the year 2009 which were
filled up from 'in service candidates' were subsequently B
carried forward in the subsequent years as reserved
category vacancies. The learned counsel, therefore,
contended that there was no violation in the appointment
and filling up of Direct Recruit District Judge posts of the
year 2009 and no interference is called for by this Court. C

8. Having heard learned counsel for the respective
parties, the questions that arise for consideration in these
appeals are as under:
D
a) Whether the appellants have the locus standi to
challenge the· appointments made by the High Court
in the filling up of the unfilled vacancies of the reserved
categories in the Direct Recruitment Posts by way of
promotion of the 'in service candidates'? E

b) Whether the High Court could have validly adopted
the Reservation Act of 1994 by relying upon Rule 7 of
the High Court Rules?
F
c) Whether the Reservation Act of 1994 or any of the
order of the Government providing for reservation was
validly adopted by the High Court as claimed by it?

d) While filling up the unfilled posts of direct recruit
vacancies by way of promotion under Rule 8(2), did the G
High Court fall into errors in not considering the
appellants who were the successful candidates and
who hailed fron:i the very same source, namely, direct
recruitment, who alone were eligible to be considered H
120 SUPREME COURT REPORTS [2015] 3 S.C.R.

A in the first instance even as per Rule 8(2)?

e) Assuming the Reservation Act of 1994 was validly
adopted by the High Court, yet by ignoring Section 3(2)
of the said Act, was the High Court justified in filling up
B the posts by way of promotion of 'in service
candidates'?'

9. As far as the first question is concerned, namely,
about the locus of the appellants which was raised at the
c ·instance of learned standing counsel for the High Court, it
was contended that the appellants belonged to general
category and the posts which were filled up were all
reserved category posts and; therefore, appellants had no
locus to challenge the action of the High Court. In support
o of the said contention, reliance was placed upon the
Constitution Bench judgment of this Court reported in R.K.
Sabharwal (supra). In paragraph 4, this Court held that
when a percentage of reservation is fixed in respect of
particular cadre, the fact that considerable number of
E reserved categofY candidates got appointed against the
general category, the given percentage of reservation has
to be provided in addition. By relying upon the said ratio of ·
the judgment, it was contended that the appellants had no
·locus.
F
10. When we test the contention of the learned standing
counsel, it will have to be pointed out that the challenge in
the writ petition before the High Court was to the
appointment made to the unfilled vacancies of 'reserve
G category' posts by way of promotion of 'in service
candidates' in violation of Rule 8(2) of the Rules. The
contention was that while making such appointments by way
of promotion, .the High Court ignored the successful
candidates who competed in the 'direct recruit' source
H though they belonged to the general category. The
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 121
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

challenge was on the ground that since the source of A
recruitment was direct recruitment, unless the candidates
available in the direct recruitment source were considered
in the first instance for appointment, the High Court could
not have resorted to filling up of those posts by way of
promotion of 'in service candidates'. In fact, it is not the B
stand of the High Court that the posts in the reserve
category were kept intact for being considered by way of
selection and appointment from the reserve category
candidates as provided under Section 3(2) of the
Reservation Act of .1994. A glance of Section 3(2) for the C
present purpose, would show that in the event of inability
to fill up the reserved category posts, the process of
selection should be continued in the very same year in
which the selection was earlier made and even thereafter
0
if it remained unfilled, the post should be kept vacant for
the future years of recruitments. Since the High Court has
not adopted the said procedure except making an attempt
to fill up by way of selection in that year itself as directed
by this Court in I.A. No.87 of 2010, it must be stated that E
there was every scope to contend that the procedure
prescribed under Section 3(2) of the Reservation Act of
1994 was not strictly adhered to. Whether Section 3(2) will
be applicable at all is one other question involved in this
appeal with which we will make a detailed consideration at F
an appropriate stage.

11. In the above stated background, when we examine
the contention of learned standing counsel for the High
Court as regards the locus of the appellants, it must be G
stated that a larger issue as to the entitlement of the
appellants as successful candidates belonging to 'direct
recruit' source to seek appointment to the unfilled posts of
that very source, namely, 'direct recruit' though belonging
to reserved category, merits consideration and would not H
122 SUPREME·COURT REPORTS [2015] 3 S.C.R.

A disentitle the appellants to raise a challenge as made in the
·writ petition. If the appellants are able to make out a case
on the said contention, it will have to be stated that their
challenge to the filling up of the posts as made by the High
Court by adopting the procedure prescribed under Rule 8(2)
B can be validly raised as a point of challenge. Consequently,
it will have to be held that the appellants had every locus
to challenge the appointment made by the High Court by
invoking Rule 8(2) of the Rules. In the light of the above
special features in this case, we do not find any scope to
C apply the decision relied upon by learned counsel for the
High Court which stands on entirely different principle.

12. While examining this contention based on Rule 7
as well as Rule 8(2) of the Rules of the High Court, we feel
D it appropriate to refer to a Constitution Bench decision of
this Court reported in State of Bihar v. Bal Mukund Sah
(supra) and Ashok Pal Singh (supra). In the Constitution
Bench decision, the question which was posed for
consideration was "whether the Legislature of the appellant
E State of Bihar was competent to enact the Bihar
Reservation of Vacancies in Posts and Services (for
Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1991 (hereinafter referred to as "the Act'J,
F insofar as Section 4 thereof sought to impose reservation
for direct recruitment to the posts in the Judiciary of the
State, subordinate to the High Court of Patna, being the
posts of District Judges as well as the posts in the lower
judiciary at the grass-root level, governed by the provisions
G of the Bihar Judicial Service (Recruitment) Rules, 1955'. Civil
·Appeal No.9072 of 1996 deals with the question of
reservation in the posts in the District Judiciary while the
companion appeal deals with the posts in the Subordinate
Judiciary at grass-root level under the District Courts
H. concerned ......"
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 123
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

13. While dealing with the said contention, the points A
for determination were formulated in paragraph 17 which
reads as under:

"17. In the light of the aforesaid rival contentions, the
following points arise for our determination: B

1. Whether the impugned Act of 1991 on its express
language covers "Judicial Service" of Bihar State.

2. If the answer to Point 1 is in the affirmative, whether
the provisions of the impugned Act, especially, Section C
4 thereof in its application to the Subordinate Judiciary
would be ultra vires Articles 233 and 234 of the
Constitution of 1ndia and hence cannot be sustained.

3. In the alternative, whether the aforesaid provisions D
of the Act are required to be read down by holding that
Section 4 of the Act will not apply to direct recruitment
to the posts comprised in the Bihar Superior Judicial
Service as specified in the Schedule to the Bihar
Superior Judicial Service Rules, 1951 as well as to the E
Bihar Judicial Service governed by the Bihar Judicial
Service (Recruitment) Rules, 1955, comprising of the
posts of Subordinate Judges and Munsiffs under the
District Judiciary.
F
4. What final order.
Before we deal with the aforesaid points for
determination, it will be necessary to keep in view the
relevant provisions of the Constitution which have a G
direct impact on the resolution of the controversy
projected by these points."

14. On point number one, the Constitution Bench took
the view as under in paragraph 27: H
124 SUPREME COURT REPORTS (2015] 3 S.C.R.

A "27 ...... 0n the aforesaid scheme of the Act, the High
Court in the impugned judgment, has taken the view
that the operation of Section 4 for offices or
departments of the Judiciary of the state of Bihar would
cover only the Ministerial Staff of the District Courts and
8 courts subordinate thereto and would not include
Presiding Officers and therefore, Section 4 will not
govern the direct recruitment to the posts of Presiding
Officers of the District Judiciary as well as of the
Subordinate Judiciary. It is difficult to appreciate this line
c of reasoning on the express language of the relevant
provisions of Section 4 read with the definition
provisions. It becomes obvious that the term "any office"
of the Judiciary of the state of Bihar would naturally
include not only Ministerial Staff but also officers,
D
including Presiding Officers of courts comprised in the
Judiciary of the State. Once that conclusion is reached
on the express language of the relevant provisions of
the Act, it cannot be held that the thrust of Section 4
E would not apply to govern reservation for direct
recruitment to the posts of Presiding Officers in the
District Courts as well as courts subordinate thereto,
as all of them will form part and parcel of the Judiciary
of the State of Bihar and will have to be treated as
f holders of offices in the state Judiciary. Consequently,
it is not possible to agree with the contention of learned
Senior Counsel, Shri Thakur for the High Court that on
the exprEilss provisions of the Act, Section 4 cannot
' apply to govern recruitment to posts in the Subordinate
IG Judiciary: The first point for determination, therefore,
has to be answered in the affirmative in favour of the
appellants and against the respondents."

15. On point number two, the position was stated as
H under in paragraphs 30, 31 and 32:
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 125
THR. R.G [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

30. It has also to be kept in view that neither Article A
233 nor Article 234 contains any provision !,?f being
subject to any enactment by the appropriate Legislature
as we find in Articles 98, 146, 148, 187, 229(2) and
324(5). These latter Articles contain provisions
regarding the rule-making power of the authorities B
concerned subject to the provisions of the law made
by Parliament or the Legislature. Such a provision is
conspicuously absent in Articles 233 and 234 of the
Constitution of India. Therefore, it is not possible to
agree with the contention of learned counsel for the C
appellant State that these Articles only deal with the
rule-making power of the Governor, but do not touch
the legislative. power of the competent Legislature. J!
has to be kept in view that once the Constitution
D
provides a complete code for regulating recruitment and
appointment to the District Judiciary and to the
Subordinate Judiciary, it gets insulated from the
interference of any other outside agency. We have to
keep in view the scheme of the Constitution and its E
basic framework that the Executive has to be separated
from the Judiciary. Hence. the general sweep of Article
309 has to be read subject to this complete code
regarding appointment of District Judges and Judges
in the Subordinate Judiciary. F

31. In this connection, we have also to keep in view
Article 245 which, in its express terms, is made subject
to other provisions of the Constitution which would
include Articles 233 and 234. Consequently, as these G
twin Articles cover the entire field regarding recruitment
and appointment of District Judges and Judges of the
Subordinate Judiciary at base level pro tanto the
otherwise paramount legislative power of the State
Legislature to operate in this field clearly gets excluded H
126 SUPREME COURT REPORTS [2015] 3 S.C.R.

A by the constitutional scheme itself. Thus both Articles
309 and 245 will have to be read subject to Articles 233
and 234 as provided in the former articles themselves.

32. It is true, as submitted by learned Senior Counsel,
B Shri Dwivedi for the appellant State that under Article
16(4) the State is enabled to provide for reservations
in services. But so far as "Judicial Service" is
concerned, such reservation can be made by the
Governor, in exercise of his rule-making power only
c after consultation with the High Court. The enactment
of any statutory provision dehors consultation with the
High Court for regulating the recruitment to the District
Judiciary and to the Subordinate Judiciary will clearly
fly in the face of the complete scheme of recruitment
D and agpointment to the Subordinate Judiciary and the
exclusive field earmarked in connection with such
appointments by Articles 233 and 234. It is not as if that
the High Courts being constitutional functionaries may
be oblivious of the need for a scheme of reservation if
E necessary in appropriate cases by resorting to the
enabling provision under Article 16(4). The High Courts
can get consulted by the Governor for framing
appropriate rules regarding reservation for governing
recruitment under Articles 233 and 234. But so long as
F
it is not done. the Legislature cannot. by an indirect
method. completely bypassing the High Court and
exercising its legislative power. circumvent and cut
across the verv scheme of recruitment and appointment
G to the District Judiciary as envisaged by the makers of
the Constifution. Such an exercise. apart from being
totally forbidden by the constitutional scheme. will also
fall foul on the concept relating to "separation of powers
between the Legislature. the Executive and the
H Judiciary" as well as the fundamental concept of an
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 127
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

"independent Judiciary". Both these concepts are now A
elevated to the level of basic structure of the
Constitution ahd are the very heart of the constitutional
scheme."

(Emphasis added) B
16. Ultimately by referring to the Constitutional mandate
of Articles 233 and 234, it was held as under in paragraph
38:

"38. Shri Dwivedi, learned Senior Counsel for the C
appellant State was right when he contended that Article
16(4) is an enabling provision permitting the State to
lay down a scheme of reservation in State services. It
may also be true that Judicial Service can also be
0
considered to be a part of such service as laid down
by this Court .in the case of 8.S. Yadav. However. so
far as the question of exercising that enabling power
under Article 16(4) for laying down an appropriate
scheme of reservation goes, as seen earlier. we cannot E
be oblivious of the fact that the High Court. being the
high constitutional functionary, would also be alive to
its social obligations and the constitutional guideline for
having a scheme of reservation to ameliorate the lot
of deprived reserved categories like SC. ST and Other F
Backward Classes. But for that purpose. the Governor
can. in consultation with the High Court. make
appropriate rules and provide for a scheme of
reservation for appointments at grass-root level or even
at the highest level of the District Judiciary, but so long G
as this is not done. the State Legislature cannot. by
upsetting the entire apple cart and totally bypassing the
constitutional mandate of Articles 233 and 234 and
without being required to consult the High Court. lay
down a statutory scheme of reservation as a roadroller H
128 SUPREME COURT REPORTS [2015] 3 S.C.R.

A straitjacket formula uniformly governing all State
services. including the Judiciary. It is easy to visualise
that the High Court may, on being properly and
effectively consulted, endorse the Governor's view to
enact a provision of reservation and lay down the
B percentage of reservation in the Judicial Service, for
which it will be the appropriate authority to suggest
appropriate measures and the required percentage of
reservation, keeping in view the thrust of Article 335
which requires the consideration of the claim of
c members of SC, ST and OBC for reservation in
services to be consistent with the maintenance of
efficiency of administration. It is obvious th'at
maintenance of efficiency of judicial administration is
entirely within the control and jurisdiction of the High
D
Court as laid down by Article 235. The State Legislature,
on its own, would obviously lack the expertise and the
knowledge based on experience of judicial
administration which is possessed by the High Court.
E Consequently, bypassing the High Court. it cannot. in
exercise of its supposed paramount legislative power
enact any rule of thumb and provide a fixed percentage
of reservation for SC. ST and Other Backward Classes
in Judicial Servi::es and also lay down detailed
f procedure to be followed as laid down by sub-sections
(3) to (6) of Section 4 for effecting such statutorily fixed
50% reservation. It is easy to visualise that if the High
Court is not consulted and obviously cannot be
consulted while enacting any law by the State
G Legislature and en bloc 50% reservation is provided in
the Judicial Service as is sought to be done by Section
4 of the Act and which would automatically operate and
would present the High Court with· a fait accompli, it
would be deprived of the right to suggest during the
H constitutionally guaranteed consultative process, .Qy
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 129
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

way of its own expertise that for maintenance of A
efficiency of administration in the Judicial Service
controlled by it 50% reservation may not be required,
and/or an even lesser percentage may be required or
even may not be required at all. Even that opportunity
will not be available to the High Court if it is held that B
the State Legislature can enact the law of reservation
and make it automatically applicable to the Judicial
Service bypassing the High Court completely. Such an
exercise vehemently canvassed for our approval by
learned Senior Counsel for the appellant State cannot C
be countenanced on the express scheme of the
Constitution, as discussed by us earlier. Even
proceeding on the basis that the scheme of Article 16(1)
read with Article 16(4) may be treated to be forming a
0
part of the basic feature of the Constitution, it has to
be appreciated that for fructifying such a constitutional
scheme Article 335 has to be kept in view by the
authority concerned before such a scheme of
reservation c<!n be promulgated. Once Article 335 has E
to be given its full play while enacting such a scheme
of reservation, the High Court, entrusted with the full
control of the Subordinate Judiciary as per Article 235
by the Constitution, has got to be consulted and cannot
be treated to be a stranger to the said exercise as F
envisaged by the impugned statutory provision.

(Emphasis added)

17. While thus highlighting the basic features of the
Constitution which aimed at preserving the independence G
of judiciary as mandated in Articles 233 to 235 of the
Constitution, this Court had the occasion to deal with the
Rules of the High Court in the subsequent decision reported
in Ashok Pal Sin!J.h (supra). In the said decision, the points H
130 SUPREME COURT REPORTS [2015) 3 S.C.R.

A for consideration have been set out in paragraph 16 and
what are relevant for our purpose are sub-paragraphs (ii),
(iii) and (iv) which reads as under:

"16.(ii) Whether the direct recruits are entitled to 15%
B 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?

c (iii) Whether the words "15% of the total permanent
strength of the service" occurring in the 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
D computing the respective quotas of promotees and
direct recruits till the amendment of the Rules (effective
from 15-3-1996) deleting the word "permanent" in the
said first proviso?

E (iv) Whether the procedure of carrying forward
vacancies adopted by the Full Court of the High Court
is erroneous having regard to the specific provisions of
Rule 8(2) and Direction (3) issued by this Court in Sri
Kant Tripathi?"
F
18. While dealing with the said questions, this Court
has held as under in paragraphs 28 and 40:

"28. To conclude, the following clear indicators show
that the quota of direct recruits is "15%" and not "up to
G 15%":

(a) Rule 6 uses the words "15% of the vacancies" as
the quota of direct recruits and does not use the words
"not more than 15% of the vacancies".
H
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 131
THR. R.G [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

(b) The purpose and intent of Rule 8(2) is not to dilute A
or change the quota of direct recruits. Its object is to
ensure that no vacancy remains unfilled for want of
adequate number of direct recruits under their 15%
quota. This is because there are reasonable chances
of adequate number of candidates being not available B
for direct recruitment, whereas usually sufficient number
of candidates will be available for promotion. The first
proviso to Rule 8(2) ensures that the shortfall in 15%
quota for direct recruits in any recruitment does not get
permanently converted to promotee quota. by providing C
that the shortfall shall be made good at the next
recruitment. The words "does not in any case exceed
15%" are used to further ensure that while making good
the shortfall of direct recruits at the next recruitment, D
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 Sewa E
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.
F
40 ..... .. The total vacancies to be filled at a recruitment
shall have to be filled by applying sub-rules (1) and (2)
of Rule 8 and its provisos. In that sense all vacancies'.
which are not filled by direct recruitment, get filled by
promotion and there will be no carry over. There is only G
a limited "carry over" of unfilled direct recruitment
vacancies in the manner stated in Rule 8(2) and the
first proviso thereto." (Emphasis added)

19. Since the Constitution Bench of this Court has dealt H
132 SUPREME COURT REPORTS [2015] 3 S.C.R.

A with the larger question as to how the constitutional
mandate as provided under Article 16(1) and (4) qua Article
335 on the one hand and Articles 233 to 235 on the other
is to be reconciled made it clear that while the scheme of
Article 16(1) read with Article 16(4) may be treated to be
B forming part of the basic feature of the Constitution, by
Articles 233 to 235 of the Constitution, full control of the
judiciary having been entrusted with the High Court is also
equally a basic feature of the Constitution and both can be
reconciled only by way of a consultation of the Governor
C with the High Court and by making appropriate rules to
provide for a sc[leme of reservation and unless such a
provision is made by following the constitutional scheme
under Articles 233 to 235, it would be well-neigh possible
to thrust upon the rule of reservation by the State Legislature
0
even by way of a legislation. Inasmuch as the Constitution
Bench has dealt with this vital issue in an elaborate manner
and laid down the principles relating to application of
reservation in the matter of appointments to be made to the
E post of direct recruit District Judges, in fitness of things, it
will be profitable for us to note the salient principles laid
down therein as that would throw much light for us to
resolve the question raised in these appeals.

F 20. Such principles can be culled out and stated as
under:

(a) Neither Article 233 nor Article 234 contain any provision
of being subject to any enactment by the appropriate
legislature as is provided in certain other Articles of
G the Constitution.

(b) Articles 233 and 234 of the Constitution are not subject
to the provisions of law made by the Parliament or the
Legislature as no such provision is found in Articles
H
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 133
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

233 and 234 of the Constitution. A
(c) Articles 233 to 235 provide a complete code for
regulating recruitment and appointment to the District
Judiciary and the subordinate judiciary and thereby it
gets insulated from interference of any other outside B
agency.

(d) The general sweep of Article 309 has to be read subject
to the complete code regarding appointment of District
Judges and Judges in the subordinate judiciary c
governed by.Articles 233 and 234.

(e) Even under Article 245, it is specifically provided that
the same would be subject to other provisions of the
Constitution which would include Articles 233 and 234.
D
(f) As the twin Articles cover entire field regarding
recruitment and appointment of District Judges and
Judges in the subordinate judiciary at base level pro
tanto the otherwise paramount legislative power of
State Legislature to operate in this field clearly gets E
excluded by the constitutional scheme itself.

(g) Both Articles 309 and 245 will have to be read subject
to Articles 233 and 234 as provided in the former
Articles themselves. F

(h) Though under Article 16 (4), the state is enabled to
provide for reservations in services, insofar as judicial
service is concerned such reservation can be made
by the government in exercise of its rule making power G
only after consultation with the High Court.

(i) The enac:tment of any statutory provision de hors
consultation with the High Court for regulating the
recruitment to the District Judiciary and the H
134 SUPREME COURT REPORTS [2015] 3 S.C.R.

A subordinate judiciary will clearly fly in the face of
complete scheme of recruitment and appointment to
the subordinate judiciary and the exclusive field
earmarked in connection with such appointments
under Articles 233 and 234.
B
Ol Realising the need for a scheme of reservation in
appropriate cases by resorting to the enabling
provision under Article 16(4), the High Court can be
consulted by the Government for framing appropriate
c rules regarding reservation for governing recruitment
under Articles 233 and 234. But so long as it is not
done, the legislature cannot by an indirect method
completely bypass the High Court and by exercising
its legislative power circumvent and cut across the very
D scheme of recruitment and appointment to the District
Judiciary as envisaged by the makers of the
Constitution.

(k) Any such attempt by the legislature would be forbidden
E by the constitutional scheme a!! that was found on the
concept relating to separation of powers between the
legislature, the executive and the judiciary as well as
the fundamental concept of an independent judiciary
as both the concepts having been elevated to the level
F of basic structure of the Constitution and are the very
heart of the Constitution scheme.

(I) Having regard to Article 16(4), the High Court being a
high constitutional functionary would also be alive to
G its social obligations and the constitutional guideline
for having a scheme of reservation to ameliorate the
lot of deprived reserved categories like SC, ST and
OBC. But for that the Governor in consultation with
High Court should make appropriate rules and provide
H for a scheme of reservation for appointments at grass
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 135
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

root level arid even at the highest level of District A
Judiciary. If that was not done, the State Legislature
cannot upset the entire apple cart and by bypassing
the constitutional mandate of Articles 233 and 234 lay
down a statutory scheme of reservation governing all
state services including judiciary. B

(m) Even in that respect it is obvious that maintenance of
efficiency of judicial administration is entirely within the
control and jurisdiction of High Court as laid down by
Article 235. C

(n) If the proper course of formulating the scheme in the
form of a rule by the High Court to provide for
reservation is not made, that would deprive of the right
to suggest ttie consultative process by way of its own o
expertise that for maintenance of the efficiency of
administration· of judicial service controlled by it 50%
reservation may not be required and/or and even
lesser reservation may be required or even may not
be required at all. E

(o) To give Article 335 its full play for enacting a scheme
of reservation, the High Court entrusted with the full
control of the subordinate judiciary as per Article 235
of the Constitution has got to be consulted and cannot F
be treated to be a stranger to the said service by trying
to apply the whole of the Reservation Act.

21. Having noted the above salient principles laid down
in the Constitution Bench decision, when we refer to the G
subsequent decision reported in Ashok Pal Singh (supra)
wherein this very Rule 8(2) came up for consideration, this
~ourt has held that the purpose and intent of Rule 8(2) is
not to dilute or change the quota of direct recruits. It also
m~de it clear that its object must be to ensure that though H
136 SUPREME COURT REPORTS (2015] 3 S.C.R.

A vacancy remained unfilled for want of adequate number of
direct recruits u.nder 15% quota, it also highlighted that the
first proviso to Rule 8(2) would ensure that any shortfall in
15% quota for direct recruit in any recruitment cannot be
permanently converted to promotee quota and that such a
B short fall should be made good in the next recruitment. In
other words, it will be a limited carrying over of unfilled direct
recruitment vacancies in the manner set out in Rule 8(2)
and the first proviso thereto.

C 22. Keeping the above principles in mind, we go to
the next contention. The next contention of the appellants
is whether the High Court could have validly adopted the
Reservation Act, 1994 by relying upon Rule 7 of the High
Court Rules. To appreciate the said contention, Rule 7
D requires to be noted, which reads as under:

"Rule 7. Reservation of posts for Scheduled Caste,
etc.- Reservation to posts in the service for the
members of the Scheduled Castes, Scheduled Tribes
E and other categories including women shall be in
accordance with orders of the Government for
reservation as adopted by the High Court.

Provided that twenty percent horizontal reservation for
F women to posts in service in direct recruitment from Bar
in Uttar Pradesh Higher Judicial Service shall be subject
to suitability i.e. if the sufficient number of women
candidates is not available, then and in that event, the
reservation shall not have any operation to the extent
G of such unavailability.

Provided further that there shall be no carry forward of
reservation for women."

23. A reading of the said Rule makes it clear that
H
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 137
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

application of the rule of reservation is permissible under A
the High Court Rules provided such reservation is in
accordance with government orders as adopted by the High
Court. At present we are not concerned with the nature of
reservation specified in the proviso to the said Rule. We
are only concerned· with the validity of rule of reservation B
in the Higher Judicial Service of the High Court. When we
meticulously consider the said rule, we will have to state
that such reservation of posts should be in accordance with
the orders of the government as adopted by the High Court.
The contention of the learned senior counsel for the C
appellants was that in Rule 7 what was permissible by way
of adoption was only the orders of the Government
prescribing the extent of reservation for various categories
such as Scheduled Castes, Scheduled Tribes including
0
women. In that context, the learned counsel in the first
instance made a reference to what was the position prior
to the present selection viz., 2009. The learned senior
counsel referred to Rule 7 as it previously existed. The un-
amended Rule can ·also be noted by extracting the same, E
which was as under:

"Rule 7. Reservation of posts for Scheduled Caste
etc.~ Reservation to posts in the Service for Members
of the Scheduled Castes, Scheduled Tribes and others F
shall be in accordance with the orders of the
Government for reservation in force at the time of
recruitment."

24. Appendix 'B' which was part of un-amended rule
was the Official Memorandum of the Uttar Pradesh G
Government Recruitment Department - 4, dated
18.07.1972. The r~levant part of the said Appendix 'B' with
which we are concerned is as under:

"Hence, the government has reconsidered all the H
138 SUPREME COURT REPORTS (2015] 3 S.C.R.

A questions in respect of the reservation and has taken
the following decisions:

1. In any service by direct recruitment, upon including
the carried forward reserved vacancies, if any, the
B reservation shall not be more than total of 50%.

2. In all the services, there will be 18% and 2%
reservation for the Scheduled Castes and Scheduled
Tribes, respectively but for the Class 3 clerical services
c and Class 4 service, there will be 25% and 36%
reservation respectively, for the Scheduled Castes, until
when their quota of 18% is not completed in these
services."

25. By referring to the said rules which prevailed prior
0
to the amendment, Mr. Dwivedi, learned senior counsel
contended that as the High Court having understood the
extent to which the rule of reservation can be adopted, as
could be seen from the un-amended Rule by which the
E relevant Gove·rnment Order prescribed the extent of
reservation for Scheduled Castes and Scheduled Tribes
etc., was specifically adopted by way of Appendix 'B'. The
Government order itself was annexed as Appendix 'B' to
Rule 7 and thereby, there was no scope for any controversy.
F . According to learned counsel similar such method should
have been followed if the rule of reservation is to be applied.

26. According to the learned senior counsel, after Rule
7 was amended, when the Rule specifically stated that it
G would be in order for the High Court to apply the rule of
reservation in accordance with the order of the Government
as adopted by the High Court, the extent to which any
application of rule of reservation could have been only by
way of adoptiori of any order of the Government of Uttar
H Pradesh prescribing the rule of reservation and not the
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 139
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

adoption of the whole of Reservation Act, 1994. The learned A
senior counsel, therefore, contended that the High Court
could not have validly adopted the Reservation Act, 1994
by applying Rule 7 of the High Court Rules.

27. Though in the first blush, such a contention of the B
learned senior counsel appears to be appealing, on a
deeper scrutiny, it must be stated that the said contention
cannot be countenanced. It is true that in the present Rule
7 also it is specifically mentioned that adoption of the rule
of reservation can be made in accordance with the 'orders C
of the Government' as adopted by the High Court. It must
be stated, at the very outset, that it is not the case of the
appellants that there were any specific orders of the
Government providing for the extent of reservation for
different categories, in particular, for Scheduled Castes, D
Scheduled Tribes and Other Backward Classes. No such
specific Government order was either referred to or relied
upon before the High Court. No such orders were also
brought to our notice to support the said contention.
E
28. Be that as it may, as far as the High Court was
concerned, the s.tand was that the entirety of the
Reservation Act, 1994 was adopted and, therefore,
whatever stipulations contained in the Act relating to
reservation was applicable as adopted. It will be relevant F
to note the extent of reservation provided after the
Reservation Act, 1994 came into force. Section 3(1) of the
said Act with the relevant provisos is relevant for our
purpose which reads as under:
G
"3(1) Reservation in favour of Scheduled Castes,
Scheduled Tribes and Other Backward Classes- (1)
In public services and posts, there shall be reserved
at the stage of direct recruitment, the following
percentage of vacancies to which recruitments are to H
140 SUPREME COURT REPORTS [2015] 3 S.C.R.

A be made in accordance with the roster referred to in
sub-section (5) in favour of the persons belonging to
Scheduled Castes, Scheduled Tribes and Other
Backward Classes of citizens,-

B (a) in the case of Scheduled Castes Twenty one
per cent;

(b) in the case of Scheduled Tribes Two per
cent;
c (c) in case of Other Backward Classes Of citizens
Twenty
seven per cent:

Provided that the reseNation under clause (c) shall not
D apply to the category of Other Backward Classes of
citizens specified in Schedule II:

Provided further that reseNation of vacancies for all
categories of persons shall not exceed in any year of
E recruitment fifty per cent of the total vacancies of that
year as also fifty per cent of the cadre strength of the
seNice to which the recruitment is to be made."

29. It must be stated that what was provided by way of
F reservation for different categories including the Scheduled
Castes and Scheduled Tribes etc., prior to the coming into
force of 1994 Act, has been brought into an Act by way of
·substantive provision under Section 3(1). It must, therefore,
be stated that what was provided in the form of Government
G Order prior to the Reservation Act, 1994 apparently
appeared to have been specifically spelt out in Section 3(1)
itself, by providing a reservation of 21% for Scheduled
Castes, 2% for Scheduled Tribes and 27% for Other
Backward Class citizens. Therefore, if any Department of
H the State including the High Court were to adopt the
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 141
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

prescribed rule of ·reservation after the coming into force of A
the Reservation Act, 1994, such adoption can be only by
way of adopting the relevant provision viz., Section 3(1) of
the Act. After the emergence of the Reservation Act, 1994,
the application of Rule 7 of the High Court rules can be only
by way of adopting the statutory prescription contained in B
Section 3(1). Therefore, it will have to be held that the High
Court would be well in order in adopting the said statutory
prescription contained in the Reservation Act 1994 f9r the
purpose of complying with the rules of reservation. We do
not find any other scope for the High Court to look for any C
Government order for the purpose of applying the rule of
reservation. Further when Section 3(1) of the Reservation
Act, 1994 specifically provides for the extent of reservation
for Scheduled Castes and Scheduled Tribes and Other
0
Backward Classes in the matter of said services, there is
no reason why the High Court should search for any other
Government Order for the purpose of complying with the
rules of reservation.

30. As was stated by us earlier, our attention was not E
drawn to any other Government Orders other than what was
found in appendix 'B' under the erstwhile Rule 7 which
prescribes the rule of reservation or the extent of reservation
for Scheduled Castes and Scheduled Tribes and Other F
Backward Classes in order to state that the High Court could
have only adopted any such order and not looked for the
Reservation Act 1994 for the purpose of applying the rule
of reservation. Therefore it must be stated that the High
Court was well justified in applying the extent of reservation G
prescribed in the Reservation Act, 1994 by invoking the
existing Rule 7 of the High Court Rules. By relying upon
the judgment reported in Pashupati Nath Sukut (supra)
para 13, the learned standing counsel for the High Court
contended that when the expression "Government" under H
142 SUPREME COURT REPORTS (2015] 3 S.C.R.

A the Constitution would include the Legislature, Executive
and the Judiciary and the j\Ct passed by the Legislature
should nonetheless be construed and held on par with the
orders of the Government. In support of the said
submission, the learned counsel also relied upon Article
B 13(3)(a) of the Constitution of India, which states that the
"law" would include any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law. The learned standing
C counsel therefore contended that as per Article 13(3)(a), the
order of the Government would include the laws of the State
as in force and when the Reservation Act, 1994 is a Jaw, it
must be stated that such a law can very well be held to be
one which falls within the scope of amended Rule 7 of the
High Court Rules.
0
31. For the sake of argument, even if we ignore such
an extended contention made on behalf of the High Court
by relying upon Article 13(3)(1) of the Constitution, we are
convinced that having regard to the specific prescription
E providing for reservation under Section 3(1) of the
Reservation Act, 1994 and there being no other specific
order of the Government providing for reservation in any
other manner and as stated by us no other specific order
F of the Government, as was previously issued viz., the one
dated 18.07.1972 after the emergence of the Reservation
Act of 1994, we hold that for all practical purposes the
usage of the expression 'order' in Rule 7 is only referable
to the provision for reservation as contained in Section 3(1)
G of the Reservation Act, 1994. Therefore if the said Act was
adopted by the.High Court in exercise of its powers under
Rule 7, that would be sufficient for applying the rule of
reservation. Therefore, we hold that in the event of valid
adoption of the rule of reservation ofthe Reservation Act
H of 1994 by the High Court by exercising its power under
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 143
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Rule 7 of the High Court Rules the same would be valid A
and in accordance with law.
32. The next i;ontention of the learned senior counsel
for the appellants is that the High Court cannot be said to
have validly adopted the provision for reservation as B '.
provided under the Reservation Act of 1994 in order to gain
any advantage for applying the rule of reservation with
reference to the recruitment made in the year 2009.
33. When we consider the said question, it is necessary
to deal with the grievance of the appellants as to the non- C
consideration of their stand by the Division Bench about
there being no adoption of rule of reservation by the High
Court as provided in Rule 7 of the High Court Rules. In that
context, the learned senior counsel for the appellants
referred to certain earlier orders passed by the High Court. D
While expressing the said grievance Mr. Dwivedi, the
learned senior counsel for the appellants brought to our
notice the order passed by the Division Bench of the High
Court dated 21.12.2011, 02.01.2012 and 03.01.2012. In the
order dated 21.12.2011, the Division Berich referred to the E
stand of the appellants based on Section 3(2) & (3) of the
Reservation Act, 1994 and the amended Rule 7 of the High
Court Rules to the effect that whatever provision for
reservation has been adopted earlier by the High Court F
would alone apply and that vacancies of the direct recruit
could not be carried forward, and that the unfilled reserved
category vacancies of the direct recruit could be filled up
from the general category candidates. The Division Bench
after noticing the said submission also referred to the Full G
Court resolution and directed the High Court to place the
Full Court resolution for consideration on the next hearing
date. Thereafter iffthe order dated 02.01.2012, the excerpts
of the Full Court meeting dated 09.01.2010, containing the
resolution on Agenda Item No.2 was taken on record and H
144 SUPREME COURT REPORTS (2015] 3 S.C.R.

A it was further directed that the report dated 24.12.2009 and
supplementary report dated 09.01.2010 along with the note
dated 24.12.2009 of the Registrar (Selection and
Appointment) was directed to be produced to appreciate the
arguments as to whether the carry forward rule was adopted
B by the High Court or not. But on 03.01.2012, the order of
the Division Bench merely mentioned.that the matter was
heard and the judgment was reserved.

34. While referring to the above referred to proceedings
C ·of the Division Bench of the High Court, the learned senior
counsel brought to our notice the reference to proceedings
of the Full Court dated 11.12.2012, which was relied upon
by the Division Bench in the impugned judgment and
contended that such reliance was placed upon by the
D Division Bench without giving due opportunities to the
appellants.

35. The learned senior coun-sel contended that the
appellants were unaware of any of the said resolutions
E passed by the Full Court in order to place their submissions
as to whether such Full Court proceedings really fulfilled the
requirements of valid adoption of the rule of reservation as
stipulated in Rule 7 of the High Court Rules.

F 36. Initially, when we heard the Special Leave Petitions,
we directed the learned standing counsel appearing for the
High Court by our order dated 28.10.2014 after taking note
of the stand of the learned standing counsel for the High
Court that on 10.04.2004 by the Full Court Resolution the
G report of a Committee constituted earlier to provide for
reservation in the appointment of v.arious posts in the
subordinate judiciary was accepted, we directed the High
Court to place it before us. The appellants were given time
to examine the said report filed before this Court for the first
H time on behalf of the High Court and thereafter make the
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 145
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

submissions. A
37.~~ubsequently, when these appeals came up for
hearing on 05.11.2014, Mr: Ashok. Srivastava learned
standing counsel for the High Court offered his apologies
for not filing the proper proceedings of the High Court and B
contended that he would file the ·relevant documents by
which the rule of reservation was accepted and adopted by
the High Court in the Full Court proceedings and sought
for time. We could have very Well set aside the order of the
Division Bench and remanded the.matter back to the High C
Court for consideration of the said issue on merits after
giving due opportunity to both the parties. Since the issue
pertains to the recruitment and appointment of candidates
to Higher Judicial Service of the vacancies notified in the
year 2009, we thought it fit to direct.the,learned standing D
counsel•for the High Court to produce the relevant
proceedings before us with a view to give full fledged
opportunity for the learned senior counsel for the appellants
to make his submission based on any such materials that
may· be placed before us in order to decide the issue once E
and for all in these proceedings. We, therefore, directed the
. learned standing ·counsel for the High· Court to file
necessary affidavit along.with ttie documents by serving
advance copies on the counsel for the appellants.
F
38. Pursuant to OUf orders, the High Court filed its
affidavit sworn to by the Registrar Gener?I of the High Court
at Allahabad dated 28.11.2014, along with annexures 1 to
9. By placing reliance on these annexures, the learned
standing counsel for the High Court submitted that the G
provision for reservation was validly adopted by the High
Court as provided under Rule 7 of the High Court Rules.
Since whatever proceedings relating to the adoption of the
rules of the reservation based on which the selection and H
146 SUPREME COURT REPORTS (2015] 3 S.C.R.

A appointment of the year 2009 of the higher judicial service
was made by the High Court, we asked the learned senior
counsel for the appellants to make his submissions based
on the said materials placed before this Court.

B 39. Before considering any submissions, it will be
worthwhile to refer to the proceedings placed before us on
behalf of the High Court vide Annexure - II viz., the minutes
of the meeting of the Selection and Appointments
Committee dated 24.03.2009. In Agenda Item No.Ill, the
C various vacant positions in different categories viz., General
Turn, Scheduled Castes, Scheduled Tribes and Other
Backward Classes alongside the existing strength were all
noted and ultimately the Committee resolved to initiate the
process of recruitment for all the three streams as per the
D Uttar Pradesh Higher Judicial Service Rules, 1995 including
the carry forward of 41 vacancies. Ultimately the resolution
further stated as under:-

"To break up of 41 carry forward vacancies, details of
E which have been given above, shall also be filed up
by simultaneous recruitment. The recruitment of carry
forward vacancies shall be made in their respective
reserve category as indicated in the chart mentioned
above. The vacancies shall be filled up app/ving
F reservation as per the Uttar Pradesh Public Services
(Reservation for Scheduled Castes. Scheduled Tribes
and Other Backward Classes) Act. 1994 as amended
up to date. The current vacancies in different categories
should be reserved are like this."
G
(emphasis added)

40. Lastly, the resolution stated that the Committee
resolved to the extent that after the Full Court determine
H the vacancies, necessary advertisement informing
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 147
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

applications against 41 carry forward + 27 vacancies would A
be published.

41. Thereafter, under Annexure No.3, the proceedings
of the Full Court by way of circulation to consider the
Agenda viz., the determination of vacancy under Rule 8 of B
the Uttar Pradesh Higher Judicial Service Rules, 1975 was
circulated. Under the said annexure, the proceedings of the
Selection and Appointment Committee dated 24.03.2009,
along with the office note was circulated for the opinion of
the Hon'ble Judges. Out of 71 Judges, 50 Judges C
expressed their opinion agreeing to the whole of the
resolution of the Selection and Appointment Committee
while 21 of them did not express any opinion. Under Rule
7 ·of Chapter Ill of the Rules of the Court, if a Judge failed
to send his opinion in writing within a week, he shall be D
deemed to have declined to express any opinion in the
matter. Based on the opinion of the majority of the Hon'ble
Judges approving of the resolution of the Selection and
Appointment Committee, the whole proceedings was
approved by the Chief Justice signifying the approval E
expressed by the Full Court.

42. We heard the submissions based on the above
proceedings placed before this Court on behalf of the High
Court to find out whether such a course adopted by the High F
Court can be said to have validly adopted the provisions
for reservation in the matter of appointment for the post of
Higher Judicial Services which was held in the year 2009.
Mr. Dwivedi, learned senior counsel for the appellants
contended that there was no specific adoption made by the G
Full Court with reference to the nature of reservation to be·
provided in the matter of filling up of the post of Higher
Judicial Service.

43. According to the learned senior counsel under Rule H
148 · r;'°"SUPREME·COURT REPORTS . [2015] 3 S.C.R.
' '

A: 7:icof 1the High Court Rules, it.is ,$pecifically provided :that
such adoption should be for reservation in accordance with
the Order of the Government. The learned senior counsel
co•flnfntletfltl'lat there is' ho specific refe'rehce to the
percentage~oFreser\/atiori in 'respect of Scfieduled Casts~
~ ScReduleaeottibelFor Othe'f- Backward Classes having beeh
aaopteC:i' 'eittter Bfthe· ·seie<ition1•committee ·or by' the Fun
e:&urt·wi{H5 pa'rficular'·refefehcertb:anY Orde{'.of'the
govern'ifi'eh'f trhe :1ear~a1 'sehio~ 'cdi1nsel would',· therefore';
C'ontena·thatifni effect;:'tnere was no'ad6ptiori1 macie· b"fthe
Q High'·cbuft~to provide forreser\iatiori'and'consequeriuyn-o
su'ch1reservation 'can be 11~10 fcY'have:ciame iflto ettect.<flere
ag·ahi',1 though'th~·submi§sion'af:ii:>ear~·t6 aeisotirfd;1having
regard·to the proceedings otth'e selection an'a1\ppoi1ltment
0 00~,~~ee~~~·w,:1.ras~~~t:~f the Fu1~~o~rt·-~~s~,1yt~~~ ~th~
·· . deta11s1of 'Wh1Ch'twhen •we• refer to W1tfflsome'atnount 6l
seridus'looR:to tl'iose~proce-edirigs·,r wEP~re ·cohvincl:id tnat
th'€riHvasrstifficient.comp1iarfoe· of ttie re_,quifement§' otRii1e·
7' of the:'Hi~t\Zcourt 'Rules~•rrnhe ma'tter eMidoptian·:at..the
E rUles offesefvation.'The\'felevant 'p\irt 'of~mefiaeet 'RUie 7'
is'fo'theFfdlldwing'effect:· · ·. ,, · ·e1r1') '..i"i x J bsv•nqac
,. •:. ,-, •' ,• ::1 c,,~.,.
,,.._..,_, ,_., -;"" ;.,--.-.:i.-,;i?.:::S.1f"-"'F1
•.rf'.! ._,'J.._,v"'I:·"'""
" .... shall be in accordance with the orders of the
·;Jvof3ove'inmehrYof:lrese1vatidnVas a'doptei:J 'by YtufHigh
-iqit·colifi~,:? ~!~.r 1 '~{j ~~- • i:tjo:J · ~; .. ~ :, ._..,"3ij L·e"Gi(~ agni..;sooo~r~
F-, .ipd·..z tsr·; v ..~ ·_;:;.';tqc~t)f.: ··12.1~.. ---~- . h t!::;UP; ~7rtter:vv !Lie) L.11t cl t1uoJ
"nt":;,,
""""' . , •·__ ,_.~
,,,, "'
-'·:J , "'.,;.·.~~-
1../-• ·:· ,,, ,J;
· ,-. ,~!-.!·,.
•hi"'". . .",. ..\lo::"· - 1 emnhasis
"''' •.,J' ·added'•
._, _'J'!". ~ . . • !'<~- ,.IJ.. • , ..

!·) i~:'-J':) '..'.\,..1.-ic}j :.r:,,r:-~tr~r~'",('r.c \c- 10. 1 11£-~r~-j ·~~rit r1 ~ n0itsvtfJG'3~ 1r..t
~,, 1 (4!:1.i~0 11!;,REff.11np;~1!Q,th~:.i~~evo~q, 1~~,b,i;:i1s~,19i:i"~~~,!f,p,r2.
~-, ~~r.!t&l1~~~~~h~)i~!g~k~1if~·c~j~~2~~~~~t~;rn~s~9bt~ k
0

t1!~'; ~: 1 • 91"·,6~;·! ;"jt.'!J::'L·-.:}-; :':·11J~°i'...).;, f"~' ·:;S,!1: ~.::..'"i8!"·' ib{f) t..1f!.;H1'd•t1\(l
SP,~9~fi~~l,ly, SP$)t p~t rn,~,e9$10~ 30 ),PfJh~;R,e;se,rv~~19,n~c;t,,
~elathat~ s'tfcn
11
nl94'.. we 'havei"'also 'art tro!TI- p}e~'briptil:l'n ·
"i5fl!_·~!··i ~~}.,·,t-:!·>.; "/' :i~ ···u ~it'ftli~ ·u '•Sf;Gr:· ~~r~t ti:!~:-_'.'\, v(f: 1:

contained rri Sectron 3(1) of the Reservatro.~1~p~.)~~~·,,~.?i:
other Government order or any other prescrrl5ed notificatron
H, was placed before us-in ,order tq.noJg :that,~l;i[le.. applying
NAWAL KiSl-IORE .MISHRA v. HIGH COURT OF ALLAHABAD 149
THR. R.G. [FAKKI~ MOHAMED IBRAHIM KALIFULLA, J.]

Rule 7, the High Court was expected to consider any such A
order or notification issued by the Government. Therefore,
while invoking Rule 7 of the High Cour;t Rules, if at all the
High 'court.wanted to 'adopt the rule.of reserv'ation, the
same
I ._
can' on!Y'
.
relate
-_, ·-
to what., has
-_.' ;.·
been
.
prescribed
. , . l
under
' ·a
the .Reservation Act of 1994, in particular Section 3(1) of
the said Act The said conclusion of ours is ine'scapable fn
the
. .
conteXt-~.
i,.,'! '' '
oi the·provisions
" ' .
rel~ting
, -
to rule
.
of. reservation
:·· > - •

in the State. of Uttar Pradesh. .
· ··
..
; ~

· 45: The only other aspect to be considered is what was C
the rule relating to· reseritation which was adopted by the
High Court. In that context, when we read the resolution of
the Selection· an.d Appointment Committee, ·dated
24'.03.2009, afterreferring to the vacancies that existed
which were to be filled up in the·year 2009, the·St:ilEiclion D
Committee expressly resolved as under: · ··-· • · •• rt\a ',ry

" ........ :.The vacancies shall be filled up applying
' ' reservation as per the Uttar Pradesh Public' Services
(ReseNation for•Scheduled Casts, Scheduleai!Tribes E
· and OtherBackward·Classes)Act, 1994 as amended
up to date ..... " .irw ;_:ti!!•'
-:..,, ~ .~i 11 ~· :i(.,:.:·d·,·:.1·'
46. In the light of the said resolution passed by the
Selection and Appointment Comniitte·e constituted by the F
High Court, there-can be no two opll'lions:thatoyithe .said
resolution the rule of reservation :as prescribed under
Sedio'n 3(1) of the Act was decided'to 'be followed'by the
High Court. Consequently; if the-;pfoceedirtgs of ·the' Full
Court pursuant to the direction ofttie'·1earnad'Chief Justice G
dated 31.03:2009, approved the resokitiori of.the Selection
and Appointment Comryiittee, 11s f)er the . . Rules of the
' l•. .. 'l' <\ '"'':'(.. ;~ .• ~ ' 1 1\ •"
Courts, it must be held that a reading of the resolution of
the Selection Committee and 1th~ tes6iai16ri'of tn\tF'offCourt
together ·would. constitute 'a ~alilf adoption
:a~r,cotftetnpfated H .
150 SUPREME COURT REPORTS [2015] 3 S.C.R.

A under Rule 7 of the High Court Rules .

47. We have elaborately set out the nature of the
resolution passed by the Full Court by way of circulation.
Out of 71 Judges, 50 Judges of the High Court expressed
B their support to the resolution of the Selection and
Appointment Committee dated 24.03.2009 and such an
expression made by majority of the Judges was ultimately
approved by the learned Chief Justice by affixing his
signature on 10.04.2009. In the light of the said
C proceedings, we hold that the High Court adopted the rule
of reservation as per the Reservation Act, 1994 which was
well within the prescription contained in Rule 7 of the High
Court Rules. The said course adopted by High Court is also
in consonance with the various principles laid down in the
D Constitution Bench decision of this Court reported in State
of Bihar v. Bal Mukund Sah (supra).

48. Once we are able to satisfactorily reach the said
· conclusion what falls for consideration is the next
E submission of the learned senior counsel appearing for the
appellants as to whether the High Court was justified in
filling up unfilled posts of reserved category by way of
promotion of in-service candidates.

F 49. In order to appreciate the submissions so made on
behalf of the appellants, the relevant provisions contained
in the Reservation Act, 1994 as well as Rule 8 of the High
Court Rules are required to be examined. Section 3(2) of
the Reservation Act which deals with the manner in which
G unfilled vacancies of different reserved. categories are to be
filled up has been set out, which reads as under:

"3(2) If, in respect of any year of recruitment any
vacancy reserved for any category of persons under
H sub-section (1) remains unfilled, such vacancy shall be
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 151
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

carried forward and be filled through special recruitment A
in that very year or in succeeding year or years of
recruitment as a separate class of vacancy and such
class of vacancy shall not be considered together with
the vacancies of the year of recruitment in which it is
filled and also for the purpose of determining the ceiling B
of fifty per cent reservation of the total vacancies of that
year notwithstanding anything to the contrary contained
in sub-section (1 ). "

50. -While referring to Section 3(2) of the Reservation C
Act, 1994, we should also simultaneously refer to Rule 8(2)
of the High Court Rules which reads as under:

"8(2) If at any selection the number of selected direct
recruits available for appointment is less than the o
number of recruits decided by the Court to be taken
from that source, the Court· may increase
correspondingly the number of recruits to be. takvn by
promotion from the Nyayik Sewa.
E
Provided that the number of vacancies filled in as
aforesaid under this sub-Rule shall be taken into
consideration while fixing the number of vacancies to
be allotted to the quota of direct recruits at the next
recruitment, and the quota for direct recruits may be F
raised accordingly; so, however, that the percentage of
•
direct recruits in the service does not in any case
exceed 25% of strength of the service."

51. At the very outset, it must be stated that if Rule 8(2) G
were to be applied, on its own, it will have a direct impact
on the prescription contained in Section 3(2) of the
Reservation Act, 1994. When we consider Section 3(2), a
little more elaborately, the said sub-Section under the
Reservation Act, 1994 prescribes that any unfilled reserved H
152 SUPREME COURT REPORTS
'.
A vacancy should be ca,rried forward and filled through special
recruitment in that very: yea~ or .in succeeding year G>ryears
of recruitment as .a separate class of vacancy. It also states
that such. class 'of vacancy,should ,not·be considered
together with the vacancies of the year of recruitment in
e which itis filled, meaning thereby the vacandes that exist
. in· any subsequent· year· or years. of ..recruitment. It. further
stipulatel) .that for the purpose ·0fdeciding .the maximum
percentage of reservation viz., 50% of the.total vacancies
such carry forward vacancies should never be counted. At
C fhei risk of fepetition, it will have be stated that in the first to
ins"iance' going by' $'ection 3(2); any unfilled res~rved
vacancies arising in the process of recruitment,' a' special
recruitn:ient sho!Jld be made in that very year itself. In fact
·~-'>..: ' - . . ,,. .
it1y.ras, brough,t to our notice that,.by an order passed in
0
L~.N_o.8,7 qf~RJ.O. d~ted 15.11.,2?10 of this Court, th~,High
Court was
·'., . ':-> ' - '
dire.cted that.the.l' special
'I ,:. ' - - ·' -_ •'
recruitment
. . ' -.- .- -
. '
should
• • •, \
be
made in that
-~2
very. yearjtself.
· · :, • I· .•.. · I .· .. ;
According
: ·,. _' - •. ,
to 'tile.- learned
· ·.. _ ;
senior
....- J
counsel for the High Court, . : ·
such- I -
an.,exercist;!
'.
was carried
.... ',' 'L·' J. i < 1 ~i

E out but yet the posts could not be filled up in that very year
from.the reserved category. , · ·· · ·.· · · ,.,· 0
'52. · When we come to the·riext ~fage:fo'·fie'c'arried.
out as provided under Section 3(2), :the High'Couitshould
·-"'' --·· • -•. t _ . ., , . .. . . . . . . " ' .... ' . , .• - .. ·.•, •• ,._,.J
have earned forward the·anfilled vacancies of the 'reserved
F category in the succ'E!'edirig year: ofyeai's'o( recruitment as
a separate ·class\)f vadilicy. lhefofore:''a'pplying ~$e"ction •
3(2), there is· no scope fciFfilling up ·ofariy -~:• ,.-.•
i:lf'.tlios'e\lnfilled
__ _.<j-~ -~--1- ···~•'\~---.-.~

vacancies of the' reserved category of·any particular
recruitment year by the candidates belonging to any,other
G c~tegol-ies
- - 'W '..• ' ,:
.either
._ • '
of0irect
.' ; . - ;
recruitm~nt
- ' .•_ . • . . . ' I;. •,'
so~i:ce
-,,. : .. ,j;, --~ ~
by any 4
or-
" ; ... ';.. '-.. '

other source viz., from the in-servi<;:~ canqidates by way of
'.". -~ ; , ' ._ 7 . . ,, .>.J ·._,, ·~,.
.' •' ''"~· .1'~· -~

reigula,r promotion p[,pY way of.speci,alp1erit promotion. ,:.
~ ... ' .,. -- '" ••.. - • - . ' .1 .• ~ . ',, - ' - t .- - •

-.•: . 53. Keeping the said prescription as.provided in Section·
H 3(2) in mind,: when•we .examine·the~provision.·Contained•1ri1
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 153
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Rule. 8(2) of the High Court·Rules, it is specifically provided A
that in .respect·of direct recruitment if the selected
candidates· from·the direct recruitment available for
appointment was less than the number ofcandidates to be
recruited 1from that source;·,,the.High: Court·· could
correspondingly increase the . numtier of recruits-to. be taken B
by way of promotion from the·Nyayik Sewa viz,~ in-service
candidates. , ..
. ,
54. When we consider the application of Section 3(2)
of the reseryation Act of 1994 a further question arises as c·
to whether, t~e application of the saidl$ection can be made
in.the matter,;uf,recruitment for'the post of direct recruit
District Judges,sln :this:context,'..the principles set down by
the Constitution, Bench .of this Court .require. to be .noted:
q.'r-""' ..-f,, ,, .•. -j~ .. iJx--- .. :_ .,.f .jf ~F ,~; .·,1_~- •.-~- ·, ~ • ~~-· D
Having regard toArticle..16(4), the High Court being a
(I), ··.;:;?'\ ,! _,;- l .·' -<~•¥ •H_.-•, ., .. }· ,. ' ' ~ • •• ·

, . high ~constitutional. flmqtionary would also be alive to its,
. . ' "-' • '.,.;,) ( \ -..,..._.. ·'I ' •. . _.. . . • '

social
:-.:;;:.
obligatlons.
--;,·. '
and the constitutional. guideline for
\ ' ·;·. •::<.- -····'''!
.-.~----; ;.i.,.;, ... _,~,,,_ -- ... -

..-~ . .._.,_.,
having. a sc;;l;leme -~'of.reservation
_: .:; -·h;•(_.,:•J,.,;·, •. '' ' - ·-
to ·ameliorate
'
.the
-
lot
'\ 1of dep;!y~p:r~serytid CC!tegpries ,like SC,, 9;T~~~d O,BC. E
• t•i ~ut, for th::it thJ; r9.,o~';?r~2r in. 9orsultati9n with High qo1,1_rt .
1
. · ~h_ould make. ,appropriate rul.e.s and p_rqvide for, a
~ .. ~i ,·•. \:., ..... ' -.·. ··- ; ~--·· ~-
,, ,s,cher:ne ,<?!, reserv~ticm for -~ppoi~tments !3t. f:lrass rc;iot
. :;\
., level and even.
. '-!ii ,
at the highest level of d!stric;:tjudiciary
~-'- "'-'·-.> - ,~, 'J J
.
•'''• -'. ·····'""'"'' •.• - ·-·

j
. , If that was not done, the $tate Legislature cannot upset F
... , .,...·• ,._,, . ,.. 1l.~· . . '' • , . . . ,,.;~-~ -~~·'j ,_, - ,, ''

. , the· · entire _· l/
apple
Ii · "
cart and by bypassing the constitutional,:!,.- · · · · ·, . • . ~·· • • • ~' ~-

• ffi~~-d~tepf Arti9les, 23,3 and 2~4 ,lay d~wn a stat~,tpry .
. ,scheme
; :I ,, ·'
of.- ·'reserv~tion
' • ,._ ' ' .'
governing_
. - -
all
--
state services.
- . -~

.,,_)~cl,y,di.ng jud.i.ciary,!''' . _.· . . ._ G
: ~ • ~ • . ' . 'l • - •• . . . •. . ' '. ~ •

(m) Even in that respect it is obvious that maintenance ·of'
,; ' effici~ncy of judicial administration is entirely within ttie.
' -- . --. -~ . . '· . ~ ._, ._ -~·' ... : .. .. - . ... ''. . - - ' ' -
· control and jurisdiction of High~Collit as laid dowri' by
·Article 235. ·, · '"" · • •": , " ·· · ·· · ~-
:H·
154 SUPREME COURT REPORTS [2015] 3 S.C.R.

A (n) If the proper course of formulating the scheme in the
form of a rule by the High Court to provide for
reservation is not made, that would deprive of the right
to suggest the consultative process by way Qf its own
expertise that for maintenance of the efficiency of
B administration of judicial service controlled by it 50%
reservation may not be required and/or and even lesser
reservation may be required or even may not be
required at all."

C 55. Keeping the said principles in mind when we
consider, even though the High Court having taken into
account the constitutional mandate as prescribed under
Articles 16(1), 16(4) and 335 and specifically provided in
Rule 7 for applying the rule of reservation by adopting the
D same, the question is as to what extent the High Court
decided to adopt the rule of reservation. In this context,
when we refer to the specific content of Rule 7, it
specifically provides that reservation to post in the service
for the members of SC, ST and other categories including
E women should be in accordance with the orders of the
Government for reservation "as adopted" by the High
Court. Therefore, even while applying the rule of
reservation, it must be seen as to what extent the High
F Court chose to adopt the rule of reservation. When we
refer to the resolution of the Full Court by which we have
found that the High Court decided to apply the rule of
reservation, we have to in turn refer to the resolution
passed by the selection and appointment committee dated
G 24.3.2009 which resolution was adopted by the Full Court
and that is how the rule of reservation came to be
implemented. The said resolution of the selection and
appointment committee specifically mentioned that the
'vacancies' should be filled up applying the 'reservation' as
H per the Reservation Act of 1994 as amended up to date.
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 155
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

56. We are, therefore, clear of the position that what A
was adopted was 'reservation' simplicitor and not other
consequences. Therefore, there is no question of invoking
Section 3(2) of the Reservation Act, 1994 relating to
consequential action to be taken if the posts of direct
recruit District Judges are not filled up. Section 3(2) only B
prescribes as to the manner in which unfilled reserved
seats are to be filled up by resorting to fresh selection in
that very year and in the event of the posts still not being
filled up, continue to retain the posts in the reserved
category and notify the same in the subsequent years for C
being filled up. Such a consequence cannot be stated
while applying Rule 7 of the High Court Rules which merely
refers to provision for reservation and nothing more. Insofar
as provision for reservation is concerned, in the absence D
of any Government order prescribing reservation, the only
provision available is Section 3(1). Section 3(2) is only a
methodology to be followed for filling up the unfilled
reserved posts. As far as the said methodology in respect
of the unfilled reserved posts of direct recruit District E
Judges is concerned, it is governed only by Rule 8. In fact,
even by applying Rule 8(2) by virtue of the proviso to the
said Rule, the interest of the reserved category candidates
is sufficiently safeguarded which is preserved and filled up
in the selection to be made in the future years. F

57. Therefore, if we consider the adoption made by the
High Court, as regards the rule of reservation, we find that
what was adopted was to apply the 'RESERVATION' as
provided under the Reservation Act of 1994 while filling up G
the vacancies of direct recruit District Judges. In other
words, the High Court chose to adopt the prescription of
various percentage of 'reservation' in the Reservation Act
of 1994 and stop with that. To put it differently, what was
adopted by the High Court was to the limited extent of H
156 ·: ·· SUPREME COURT REPORTS ·
' .·; .. , [2015] 3 S:C.R.'

A providing· the prescribed percentage of 'reservation' under
Sectioh''3(1fof"Reservatioh ~Act of 1994 and nothing
beyond that;·iSinC:e the principles ·laid down; in.the
Constitution 13enl::h decision of this fcourt succinctly stated
as;to how Articles· 233 to 235 of the Constitution· empower
B the High Codrtcto maintain' its independent functionihg by
allowing' its. recruitment process by prescribing· itS 'oWn
limitations 'and. not to' be affected by even 'a statUto,.Y
prescl-iption relating to. reservation, it. must. be ·stated fhat
in order'- to erisure that the independence of institution' of.
c judiciary.is s"afeguarded, such a strict ccinstrliction' of its
decision···pe·rtaining to the ·rule of reservation must 'be
maintained or·otheiwise, as cautioned by this Court in the
Constitution Bench decision, that Would ihlpinge'upon the
veryibasic1structure of the Constitution vis-a~vis 'the
0
judiciary. . ·. ': ·
-< •·.-

' , 58. Therefore, ,we•hold that .bY.~Virtue of the apoption
of, the rule of_reservation by invoking Rule 7 wtien the fiigh
Court decided -to app.ly only. to, the extent of prescribed
E pe,rcentage,qf,~re~ervation',fo_r. different categories, .namely,
SC; ST:a.nd OBQ as prpvide.d under, Section 3(1).ofthe
Reservation.Act;.1994 in.all'.otherJespects:it must t?e t]eld
that it woul<,hbe governed by)ts e>;IJlln rule. namely ·the •rules
F of the High C::o.u~ pertaining to ttie judicial service. Al!Jhis
context, a question may arise that earlier this Court
ditected'the' Hlgh'Court in:jts orde·r dated'15'.11.2010
passed in ;IA 87·of 2010 to go in· for a special recruitment
.in·that -vert/year.itself which was· apparently based on the
G prescription contained in 'Section ·3(2) of'the Act'and by.
going by that' direction sh.ould it lnot be held that the said
procedure should follow for-all"time to come. it Will have tci'
belstated•that the·said Otdet<passed iri an lA'cannot·be
taken :as a .final statement of law when the' legal' principlel
H has been succinctly set ·out with reference to the
NAWAL Kl SHORE MISHRA v. HIGH COURT .OF ALLAHABAD 157
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

application of rule of reservation in so many. words in the A
decision of the Constit1.1tion Bench of this Court. Therefore,
based on the s(!id order, it cannot be held that various
other provisions contained in the Reservation Act of 1994
would get attracted.
B
59. When the said legal position can· be stated without
any scope for contradict.ion, what remains to be considered
is the scope 9f application of Rule 6 (2) and the proviso
attached to that sab-rule. In this context, we have to go by
the dec.ision of this Court reported in Ashok Pat.Singh C
(supra) wherein this very Rule 8(2) came up for
consideration. lnJhe .said decision while considering the
purport and intent of Rule 6 (2), it was held that the same
was-not to·dih.ite,or. change the quota of directrecruits,Jt
fu[ther .helg ttiat,,its .object is to ensure that no vacancy D
re111ains unfi~ed f0r:want of adequate number of direct
re9ruits ,unger;the prescribed·quota. While holding so; this
Court;noted, tjlat the,r.e were reasonable chances .of
adequate number, of c:an¢id<;!tes;.being; r:iotavailable for
direct recruitment where.as usu(!jly.. sufficient· number·of E
candidates will be available for promotion. It also' made
turther clear. thatthe~proviso to· RUie 8(2)' ehs'uresthat the
short fall in·quota'for ·direct· recruits ·1n~any· recruitment aces'
not; get. permanently 'convertecFto' proihotee 1tjlfota 'by'
providing 'that the''shorftallfahou'taitie 1nfo-decat 'the ·riexti F•
recruitment! Agaih"in·,·para'40r•;tcwas··reiterated that'alP
vacand~s wliich:are:H6t filtea bydireC:t recruitmentwoulcF
get filled ·up by promotion a'rid th't~lt the limited '.catfy+ovef'
unfilled direct recruitment vacancies 'are' iii' the manner' G1
statedjn Rule_8(2) ang the proviso theretc>-.From
- ;. . I·~~- • ~ '.".:t<· · .., , ~' .~)\ ;; . ~-~·;.I• ..ll !i !U ~~'till):-1',.;: ; •
what
I .
has
.

a~r,~~PY ,b~en,,helq ,g;¥tliis 9,o!.l~·r,}trw~s.,r:\1.ad~ .flea,r that
under.Rule 6(2) since the object wasJo ensure.that no
: ... • '{_>1~ ~·-~- '· ~1j. -·; ,•·~:~.;·. ~· · :• ~'.-' <·-' ~lJH 1 r. . Li ;V! , . .-,< 1~ ..

v~c~l"JC:Y. ~~m~1n,~., ~rf1[led.Jqr,.'f'2n\\~.f a,d.eq~~t~;~~m.~~r of)
direct recruits ·unaer the P.~T~~n_!?,~.!;t q~o.~~.. ~llff1c;~e~t H.
158 SUPREME. COURT REPORTS [2015] 3 S.C.R.

A safeguard is provided in the proviso to Rule 8(2) by which
. those unfilled vacancies to be carried forward in the future
years to be filled only through direct recruitment. To that
extent, there is no scope for any controversy.

B 60. In the case on hand, it is not in dispute that after
the special recruitment was made in respect of unfilled
reserved vacancies, the High Court proceeded to fill up all
the unfilled vacancies of the direct recruits in the reserved
category and those posts were all filled up by promoting
C the members. of the Nyayik Sewa viz., in-service
candidates. While referring to Rule 8(2) Mr. Dwivedi,
learned senior counsel for the appellants contended that
when Rule 8(2) specifically states that at any selection the
number of selected direct recruits available for appointment
D is less than the number of recruits decided by the High
Court to be taken from that source meaning thereby the
source of direct recruitment then and then alone, the High
Court was empowered to look upon the members of
Nyayik Sewa viz., in-service candidates for their promotion
E to the post of Higher Judicial Service.

61. The question raised on behalf of the appellants
was that since Rule 8(2) specifically refers to the source
and when the direct recruitment source candidates
F belonging to general category are available, only in the
absence of any candidates from the general category or
any other category, then alone the High Court could have
resorted to filling up the unfilled vacancies of reserved
category by promotees.
G
62. It is well settled principle of law as has been laid
down by this Court in the decision relied upon by learned
counsel for the High Court, namely, the Constitution Bench
decision reported in R.K. Sabharwal (supra) wherein it
H has been held as under in para 4:
NAWAL KISHORE .MISHRA v. HIGH COURT OF ALLAHABAD 159
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

"No general category candidate can be appointed A
against a slot in the roster which is reserved for the
backward class."

63. Therefore, when the posts were reserved for the
SC, ST, filling up of those posts from the general category B
candidates would seriously affect the rule of reservation, as
once the posts of direct recruit are filled up from other
category candidates even the carrying forward of those
vacancies as provided under the proviso to Rule 8(2)
cannot be operated upon. In other words, by applying Rule C
8(2) in the event of vacancies remaining due to non-
l!lvailability of the candidates of the reserved category and
such vacancies were filled up by the 'in service candidates'
by resorting to promotion, the proviso can be conveniently
operated upon by carrying forward those vacancies in the D
future years in the direct recruit source and by maintaining
the rule of reservation .to the extent it could not be filled up
in the relevant recruitment years. If instead of resorting to
promotion of 'in service candidates' those unfilled reserved
vacancies are filled from the general category candidates E
there would be no scope for applying the proviso to Rule
8(2). Such a contingency created would run counter to the
rule of reservation and, therefore, the same cannot be
countenanced.
F
64. We have to, therefore, hold that the High Court by
adopting the Res·ervation Act, 1994 adopted the rule of
reservation to the full extent provided for and as prescribed
under Section 3(1) of the Reservation Act, 1994 and that
in respect of any unfilled vacancies of that category, the G
High Court rightly resorted to the prescription contained in
Rule 8(2) by resorting to filling up of such vacancies by
special recruitment in that year as directed by this Court
and in the absence of not getting such vacancies filled up H
160 ·SUPREME COURT REPORTS · · [2015] 3 S.C.R.

A by.resorting to such filling up by promotion of 'in service
candidates' and also.by applying the proviso to RUie 8(2)
and thereby carry forward those vacancies in the· future
years of recruitment.
.:,;·r ,.~~ t-~ .. '-.,~·::; .:} ·~: ·:•· · ·. f
B · "<'.1.«65: Keeping. the said Jegal ·Principle relafiii'g to·
applicability of Section'3(1) of.the Resef'Vation Act,• 1994
vis~a.vis Rules•? and 8(2) of the High Court.Rules in·niind,
when' we c·ons1der ,the last of the• submissions :Tnade-0 on
behalf:bfthe:appellants,rif mustbe'heid tliarthe· action of
C the :ftigh Court iti having resorted to filling•'llp of the. unfilled,
reserved vacancies by taking Umbrage under Rule 8(2)
was perfectly justified: The said'acti6n ·Of the·High'Court in
having filled up those unfilled reserlied vacancies of'direcf
rec·tuitment of·:the year 2009 was stated to have been
D made by· promoting tlie in·service candidates. Though we
have found that such a course:adopted by the High Court
was iri 'order, 1as 'th·e proviso to Rule '8(2) specifically
mandates that While fixing· the number of vacancies to be
allotted to th'e quota'of'direet recruitment at the:next
E recruitment, it•-should be 'raised accordingly.' We are of the
view, without disturbing whatever promotions already made
by' resorting to Rule-8(2); the High ·Gourt can be permitted.
to~provide that·nurnbet of
vacaneies··which•,remained·
F unfilled in the year 2009 in the reserved category of direct
recr~it .~9U,~C,'? by adding that number of vacancies in the
recruitment to be made in the future years until such
number of vacancies of unfilled reserved category
pertaining to 2009 are filled.
~ ':\1 .

Gr : 1•• 66: With the above limited directions to the High Court,
we 'do ·not:wish«to meddle with the promotions already
made: We do not-finCI any scope for granting any relief to
the:appellants/l:iS' none of•the. submissions raised on
H behalfOf the appellants; WhiCh'iWere though not considered
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 161
. THR. R.G. [FAKKIR MOHAMED fBRAHIM KALIFULLA, J.]

by the Division Bench of the High Court and which were A
also dealt with by us in extenso and we find no merit.
These appeals, therefore, fail and the same are
accordingly dismissed.

Kalpana K. Tripathy Appeals dismissed. B