ORISSA JUDICIAL SERVICES ASSOCIATION, CUTTACKversusSTATE OF ORISSA AND ANR.

A    ORISSA JUDICIAL SERVICES ASSOCIATION, CUTTACK
                                        v.
                      STATE OF ORISSA AND ANR.

                            NOVEMBER 26, 1990
B             [K. N. SINGH AND K. RAMASWAMY, JJ.]

          Orissa Superior Judicial Service Rules, 1963-Rule 7-Constitu-
    tional validity of-Government to fix the quota for promotees and direct
    recruits.

c       Petitioners, the Association of the inservice employees of the
  Orissa Superior Judicial Service, in their petition under Article 32
  challenged the constitutional validity of Rule 7 of t!te Orissa Superior
  Judicial Service Rules, 1963 and prayw for quashing the Notification
  dated 24.2.1987 inviting applications from members of the Bar for
  direct recruitment to the Orissa Judicial Service. It was contended that
D most of the Judicial officers have been stagnating for many years on
  account of lack of promotional avenues, and that direct recruitment of
  the members of the Bar was not permissible under the law, and that the
  State Government and the High Court were acting contrary to law in
  making the direct recruitment.

E         Dismissing the writ petition, this Court,

          HELD: 1. Article 233(1) and (2) contemplates recruitment to the
    post of District Judge in the Superior Judicial Service of the State by
    promotion from the Subordinate Judicial Service as well as by direct
    recruitment from the members of the Bar. The recruitments are made
F   by the Governor of the State in consultation and on recommendation of
    the High Court. [350G-H]

        2. The Constitution as well as the statutory rules framed under
  Article 309 provide for recruitment to the Senior Branch of Service
  by direct recruitment from the members of the Bar. The Constitu-
G tional mandate can not be challenged merely because it might adver-
  sely effect the chances of promotion of the Junior Branch of Judicial
  Service. [351C-D]

        3. The plea of frustration and stagnation raised on behalf of the
  petitioners was wrong and incorrect and their grievance against lhe
H direct recruitment was unjustified. The members of the Judicial Service

                                       348
         JUDL. SERVICES ASSCN. v. STATE OF ORISSA [SINGH, J.]            349

should_ not indulge in this kind of frivolous litigation as it does not bring   A
credit to the Judicial Administration. [351E-G; 352A]

      4. Though Rule 7 does not prescribe quota for the two sources of
recruitment, but the State Government and the High Court of Orissa
have fixed the quota of 25% for direct recruitment and 75% for promo- B
tion by administrative orders. On the material placed before the court it
is clear that recruitment by promotion to the service has been made in
excess of 75 per cent quota. Therefore, the petitioner's grievance relat-
ing to discrimination against the members of the Junior Branch of
Judicial Service is without any substance. (3520-F]

      5. Statutory rules can be supplemented by .administrative C
instructions. In the absence of Statutory provision, the State Govern-
ment in consultation with the High Court is competent to prescribe
quota for the two sources of recruitment to the service by administra-
tive orders. It would, however, be desirable and proper to prescribe
quota for recruitment to the service in the Rules. Absence of statutory D
provision in the Rules fixing the quota for the two sources of recruit-
 ment, results into a state of uncertainty leading to suspicion and litiga-
tion. The State Government should therefore take inuuediate steps in
consultation with the High Court for amending the Rules by prescribing
quota to remove the uncertainty. [352F-H]

        ORIGINAL JURISDICTION: Writ Petition (C) No. 485 of E
1987.

        (Under Article 32 of the Constitution of India).

        P. Chidambarain, P.N. Misra and P.K. Jena for the Petitioner.           F
    N. S. Hegde, Additional Solicitor General and Raj Kumar
Mehta for the Respondents.

        The Judgment of the Court was delivered by
                                                                        G
       SINGH, J. The Orissa Judicial Services Association has filed
this petition under Article 32 of the Constitution challenging the con-
stitutional validity of Rule 7 of the Orissa Superior Judicial Service
Rules, 1963 and for quashing Notification dated 24.2.1987 inviting
applications from members of the Bar for direct recruitment to the
Orissa Superior Judicial Service.                                       H
    350         SUPREME COURT REPORTS              [1990] Supp. 3 S.C.R.

A        The petitioner-Association, which represents the members of
  the Judicial Service of the State of Orissa has raised grievance that the
  Subordinate Judicial Service in the State continues to be in a pitiable
  condition and most of the judicial officers have been stagnating for
  many years for lack of promotional avenues. Though the members of
  the Subordinate Judicial Service have avenue of promotion to the
  Superior Judicial Service but since the Orissa Superior Judicial Service
  Rules, 1963 (hereinafter referred to as 'the Rules') provide for direct
  recruitment to the Superior Judicial Service from members of the Bar,
  it adversely affects the chances of promotion of the members of the
  Subordinate Judicial Service resulting into stagnation and frustration.
  Their grievance is that there ·should be no direct recruitment to the
c Superior Judicial Service and in that view they have challenged the
   Notification dated 24.2.1987 issued by the High Court inviting applica-
   tions from the members of the Bar for direct recruitment to the
   Superior Judicial Service. The petitioner has further challenged vali-
   dity of Rule 7 which confers power on the Government to decide as to
   which vacancy shall be filled up by direct recruitment or promotion. It
D is urged that Rule 7 is violative of Articles 14, 16 and 233(2) of the
   Constitution of India. The State G_ovt. as well as the High Court both
   have filed counteraffidavits contesting the petition.

        After hearing learned counsel for the parties, we do not find any
E merit in the petition. The petitioner's grievance that direct recruitment
  of the members of the Bar is not permissible under the law and that the
  State Government and the High Court are acting contrary to law in
  making direct recruitments to the Superior Judicial Service is devoid of
  any merit. Article 233 provides for appointment of District Judges.
  Clause ( 1) lays down that appointment of persons to be District Judges
F in any State shall be made by the Governor of the State in consultation
  with the High Court and Clause (2) of the Article provides, for
  appointment of a person not already in the service of the Union of the
  State as District Judge, provided, he has been for not less than seven
  years as an Advocate or a pleader and is recommended for appoint-
  ment by the High Court. These two clauses of Article 233 contemplate
G recruitment to the post of District Judge included within Superior Judi-
  cial Service of the State by promotion from the Subordinate Judicial
  Service as well as by direct recruitment from the members of the Bar.
  These recruitments are made by the Governor of the State in consulta-
  tion and on recommendation of the High Court. The Governor of
  Orissa has in consultation with the High Court, in exercise of powers
H under Article 309 read with Article 233 of the Constitution, framed the
              JUDL. SERVICES ASSCN. v. STATE OF ORISSA [SINGH, J.]          351

       Orissa Superior Judicial Service Rules, 1963 regulating the recruit-         A
       ment and conditions of service of persons appointed to the Orissa
       Superior Judicial Service. Rule 5 provides for recruitment to the
       service by two methods, namely, by direct recruitment and by promo-
       tion of officers from Junior Branch of the Service. Rule 7 provides that
       when a vacancy occurs in the Senior Branch of the Service, Govern-
                                                                                    B
       ment shall decide in consultation with the High Court whether the
       same may be filled by direct recruitment or promotion. Rule 8 pro-
       vides that direct recuitment to the Senior Branch of Service shall be
       made from the Bar. Rule 9 provides that whenever vacancy in the
       Senior Branch of Service is decided to be filled up by promotion the
       Government shall fill up the same on the recommendation of the High
       Court. It is not necessary to refer to other rules for the purposes of the   c
       present case. It is apparent that the Constitution as well ~s the statu-
       tory rules framed under Article 309 provide for recruitment to the
       Senior Branch of Service by direct recruitment from the members of
       the Bar. The Constitutional mandate cannot be challenged merely
       because it may to certain extent adversely affect the chances of promo-
                                                                                    D
       tion of the Junior Branch of Judicial Service.


             On the material placed before the Court it is amply clear that the
       plea of frustration and stagnation raised on behalf of the petitioner is
       wrong and incorrect. In the counter affidavit filed on behalf of the
                                                                                    E
       State Government and the High Court the particulars of the direct
       recruitment and promotees have been placed before the Court which
       disclose that during the period 1961 to 1987 only 12 members of the
       Bar were recruited directly to the Senior Branch of the Superior Judi-
       cial Service whereas 100 persons have been recruited by promotion
       from the Junior Branch of the Judicial Service. It is. noteworthy that
                                                                                    f
       the members of the Junior Branch of Judicial Service have been hold-
       ing exclusively the ex-cadre posts which are 10 in number, and those
       posts have not been taken into account in calculating the number of
       posts to be filled by direct recruitment on the basis of 25 per cent quota
       fixed for the direct recruitment. Thus the members of the Junior



-
       Branch of Judicial Service have been holding posts in the Senior
                                                                                    G
       Branch of Superior Judicial Service in excess of 75 per cent of the
       substantive posts for which there is no justification having regard to
- -;   the quota fixed for the purposes of recruitment to the service. These
       facts in our opinion lead us to the conclusion that the petitioner's
       grievance against the direct recruitment is unjustified. The members of
       the Judicial Service should not in our opinion indulge in this kind of       H
    352         SUPREME COURT REPORTS                (1990] Supp. 3 S.C.R.

A   frivolous litigation as it does not bring credit to the Judicial
    Administration.


          As regards the petitioner's challenge to the validity of Rule 7, we
    find no merit in that contention. Rule 7 is as under:
B
                "Rule 7-When a vacancy occurs in the Senior Branch of
                the Service, Government shall decide in consultation with
                the High Court whether it may be filled up by direct
                recruitment or promotion.

  It is urged that the above Rule confers power on the State Government
C to decide as to which of the vacancy shall be filled up by direct recruit-
  ment or promotion, but the Rule does not provide quota forrecruit-
  ment from the two sources nor it perscribes any procedure or guideline
  for deciding the question as to which vacancy should be filled up by
  direct recruitment or promotion. In this view, it is urged that Rule 7 is
D arbitrary and violative of Articles 14 and 16 of the Constitution. No
  doubt Rule 7 does not prescribe quota for the two sources of recruit-
  ment but it is conceded by the parties that the State Government and
  the High Court have fixed the quota of 25% for direct recruitment and
  75% for promotion by administrative orders. There is further no dis-
  pute between the parties that the quota of 25 per_~ent and 75 per cent
E for direct recruitment and promotees has been followed and in actual
  practice the State Government in consultation with the High Court has
  ensured that the quota of 75 per cent fixed for promotees has been
  maintained. In fact recruitment by promotion to the Service has been
  made in excess of 75 per cent quota, therefore, the grievance relating
  to discrimination against the members of the Junior Branch of Judicial
F Service is without any substance.

          While it is true that statutory rules can be supplemented by ad-
    ministrative instructions and the State Government in consultation
    with the High Court is competent to prescribe quota for the two
    sources of recruitment to the service by administrative orders but it
G   would be desirable and proper to prescribe the quota for recruitment
    to the Service in the rules themselves. Absence of statutory provision
    in the Rules fixing the quota for the two sources of recruitment, results
    into a state of uncertainty leading to suspicion and litigation. We are,
    therefore, of the opinion that the State Government should take
                                                                                -
    immediate steps in consultation with the High Court for amending the
H   Rules by prescribing the quota to remove the uncertainty. If the statu-
                 JUDL. SERVICES ASSCN, v. STATE OF ORISSA [SINGH, J.)          353

          tory rules prescribe quota fixed for the two sources of recruitment, it     A
          would eliminate the exercise which the State Government and the
          High Court have to undergo every time whenever a vacancy arises for
          determining the question whether it should be filled up from which of
          the two sources. It is, therefore, necessary tl1at provision for quota be
          made in the Rules.
                                                                                      B
               In the res~lt, we find no merit. in the petition, it is accordingly
          dismissed, but there will be no order as to costs .
 •
          V.P.R.                                               Petition dismissed .

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