Allahabad High Court
Smt. Premkala Singh Hjs And 4 Ors. ... vs High Court Of Judicature At Allahabad ... on 30 June, 2017
Author: Rajan Roy
Bench: Amreshwar Pratap Sahi, Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Judgement reserved on: 12.05.2017
Judgment delivered on: 30.06.2017
Court No. - 1
(1) Case :- SERVICE BENCH No. - 16569 of 2016
Petitioner :- Smt. Premkala Singh Hjs And 4 Ors. {At:10:15 A.M.}
Respondent :- High Court Of Judicature At Allahabad Thru R.G. And Others
Counsel for Petitioner :- Dhruv Mathur
Counsel for Respondent :- C.S.C.,Chandra Shekhar Pandey,Neel Kamal Mishra,Saharsh,Shireesh Kumar,Upendra Nath Misra
(2) Case :- SERVICE BENCH No. - 1880 of 2017
Petitioner :- Rajat Singh Jain & 39 Ors.
Respondent :- Hon'Ble High Court Judicature At Allahabad & 133 Ors.
Counsel for Petitioner :- Shireesh Kumar
Counsel for Respondent :- C.S.C,Digvijai Singh,P.N.Singh Kaushik,Pradeep Raje,Pranshu Agarwal,Praveen Tripathi,Sandeep Dixit,Sudeep Seth,Tariq M. Khan,Upendra Nath Mishra
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajan Roy,J.
(Per Rajan Roy, J.) Heard Shri Jaideep Narain Mathur, learned Senior Advocate assisted by Shri Dhruv Mathur, Shri Asit Chaturvedi, learned Senior Advocate assisted by Shri Shireesh Kumar, for the petitioners, Shri Prashant Chandra, learned Senior Advocate assisted by Shri Chandra Shekhar Pandey, Shri H.G.S. Parihar, learned Senior Counsel assisted by Shri saharsh, Shri Sandeep Dixit, Shri Sudeep Seth, Shri Upendra Nath Mishra, Digvijai Singh,P.N.Singh Kaushik,Pradeep Raje,Pranshu Agarwal,Praveen Tripathi, Tariq M. Khan, learned counsel appearing for the contesting opposite parties and the learned Standing Counsel for the State.
This special bench was constituted by order of the Hon'ble Chief Justice for disposal of above mentioned Writ Petition No. 16569 (SB) of 2016 in terms of the directions of the Supreme Court dated 01.07.2016 passed in Writ Petition (C ) No. 322 of 2016. The other Writ Petition bearing No. 1880(SB) of 2017 was connected with it as the issues involved were inter-linked.
Both the writ petitions raise a seniority dispute with regard to the members of the Higher Judicial Service (hereinafter referred to as ''the HJS') in the State of U.P. For a clear understanding of the dispute at hand and issues involved in these petitions a narration of the factual background is necessary. In the year 2000 an advertisement was issued for selection against 38 posts under the Direct recruitment quota. For the same selection 335 vacancies were determined under the promotion quota. Written examinations for direct recruitment were held in November 2000 and interview was held in 2003. While recruitment was in process the promotees raised a dispute with regard to the determination of vacancies alleging that 38 posts for direct recruitment were in excess of the said quota and as against 335 vacancies determined for promotion, the vacancies were 475. This became part of the subject matter in issue before the Supreme Court in Sri Kant Tripathi & others vs. State of U.P. & others reported in (2001) 10 SCC 237 which was decided on 07.09.2001 with certain directions for redetermination of vacancies as would be evident from paragraph 38. In the said case the dispute centered around recruitments made in different recruitment years starting from 1988 to 1998 and was basically one relating to calculation of vacancies made by the High Court to find out the ratio between direct recruits and promotees in a given year. In para 2 of the report the Court observed that it did not propose to examine the calculation made by the High Court in each recruitment year but proposed to interpret the relevant provisions of the Rules and decide what should be the correct mode of calculation whereafter the High Court may itself recalculate and readjust the appointment already made or to be made in future.
On 21.03.2002 the Supreme Court rendered its decision in All India Judges' Association and others vs. Union of India and others reported in (2002) 4 SCC 247. It inter-alia issued directions regarding prescription of 3 sources of recruitment i.e. by promotion on merit-cum-seniority based on a suitability test, merit promotion on the basis of a limited competitive examination for its cadre candidates and direct recruitment, in the ratio of 50:25:25 and prescription of a Quota-Rota Rule based on a roster in terms of R.K. Sabharwal and others vs. State of Punjab and others reported in (1995) 2 SCC 745 case for determination of seniority so as to avoid unending litigation in this regard. It issued directions for amendment in the relevant Rules by specified dates as mentioned in paragraphs 29 and 38 of the report.
Before the amendments could be made, an exercise was undertaken for redetermination of vacancies in terms of Sri Kant Tripathi (supra) case by a committee of the High Court which submitted its report on 24.08.2002 which was approved by the Full Court on 01.02.2004.
This report was challenged by the promotees officers through their association in Writ Petition No.316 (SB) of 2004 (U.P. Judicial Services Association vs. Stae of U.P. and another) which was decided on 25.08.2004 with certain observations and directions for redetermination of vacancies, permitting only 24 appointments against 38 posts advertised for direct recruitment for 1998-2000 Recruitment. After this judgment, the result of 1998-2000 recruitment was declared in 2004 and as against 24 permitted, only 20 could be appointed, as 4 reserved seats could not be filled up. 19 were appointed on 11.07.2005, 22.09.2005, 10.11.2005 and one on 04.01.2007. Based on the selection of 1998-2000, 331 promotions were also made on 13.04.2005. These recruitments, though for 1998-2000, were against the vacancies upto 30.09.2001.
In the meantime in 2001 the petitioners of Writ Petition No. 16569 (SB) of 2016 and the like were promoted on ad-hoc basis as Additional District Judges against ad-hoc posts created in Fast Track Courts. At that time there were no substantive vacancies in the Higher Judicial Service.
Be that as it may, the judgment dated 25.08.2004 was put to challenge before the Supreme Court in the case of Ashok Pal Singh & others vs. U.P. Judicial Services & others reported in (2010) 12 SCC 635.
As there was no interim stay in the case of Ashok Pal Singh (supra) the High Court in compliance of judgment dated 25.08.2004 proceeded to prepare a seniority list of pre 1998 appointees that was approved by the Full Court on 24.08.2007. This was subjected to challenge in Writ Petition No. 1283(S/B) of 2007; Prabhuji and Anr. Vs. State of U.P. and Ors. During pendency of this petition judgment in the case of Ashok Pal Singh come to be delivered on 13.09.2010.
In the interregnum, the Rules, 1975 were amended in terms of paragraphs 27,28 and 39 of the judgment in All India Judges' Association (supra) case vide notification dated 09.01.2007 by which UP HJS (Sixth Amendment) Rules 2006 came into force with retrospective effect from 21.03.2002 i.e. the date of the aforesaid pronouncement, but, only part compliance of the dictum in All India Judges' Association (supra) was made. No amendment in terms of paragraph 29 took place.
The vires of Sixth Amendment Rules, 2006 came to be challenged in Writ Petition No. 206 of 2007; V.K. Srivastava and others Vs. Government of U.P. and Ors. filed before the Supreme Court under Article 32 of the Constitution of India.
A determination of vacancies took place for direct recruitment and promotees on 15.02.2007, as approved by Full Court on 17.02.2007 including those existing as on 31.12.2006 and anticipated vacancies upto 31.12.2008. Advertisement was issued for direct recruitment on 31.03.2007. Selections were held in November 2007 and April 2008. In the meantime a suitability test was held for purposes of promotion under the 50% quota on 10.02.2008, wherein, the petitioners of Writ Petition No. 16569 (S/B) of 2016 and respondents of Writ Petition No. 1880(S/B) of 2017 also participated along with others and succeeded. Based on the aforesaid recruitment a final list including direct recruits and promotees was approved by the Full Court on 12.07.2008. Instead of putting the names of direct recruits and promotees aforesaid in the order as envisaged in Rule 22(1) and (2) of the Rules 1975 keeping in mind paragraph 29 of All India Judges case (supra) separate orders of appointment for direct recruits and promotees were issued for reasons best known to the official respondents even though as per the High Court a combined list as envisaged in Rule 22(1) was sent to the State Government. The order of promotees were issued on 11.08.2008. 41 direct recruitments were made on 11.09.2008, 22.09.2008, 01.10.2008, 10.10.2008, 15.10.2008, 22.10.2008 and 24.11.2008. However, para 3 of the appointment/promotion order dated 11.08.2008 mentioned that the members of HJS selected/appointed on the basis of selection of 2007 their inter-se placement as per roster shall be done by the high Court subsequently. The appointments were notified under Rule 25 on 10.12.2008.
V.K. Srivastava's case was decided by the Supreme Court on 04.09.2008 and the challenge to the vires of amendment Rules, 2006 was repelled. The judgment is reported in (2008) 9 SCC 77; V.K. Srivastava and Ors. Vs. Government of U.P. and Others.
Thereafter another recruitment took place of 2009 batch based on a determination of vacancies on 24.03.2009, as approved by the Full Court on 10.04.2009. Final list of selectees including direct recruits and promotees was approved by Full Court on 09.01.2010.
In the interregnum, on 24.08.2009 the Rules, 1975 were amended for the Seventh time so as to comply remaining part of the dictum in All India Judges' Association (supra) viz; paragraph 29 thereof, albeit belatedly, so as to amend Rule 22 and introduce a rotational system based on roster.
Be that as it may, again, instead of issuing an appointment in the order of names occurring in the combined list envisaged in Rule 22(1) separate orders of appointment were issued in 2010 for the 3 sources of recruitment which did not reflect therein rotational placement as per their quota. Separate notifications were issued under Rule 25. Paragraph 3 of the orders stated that their seniority would be determined by the High Court separately as per final decision of the Supreme Court in Malik Mazhar Sultan's case. In Malik Mazhar Sultan's case on 15.11.2010 an order was passed in I.A. filed before the Supreme Court ordering that all the 18 promotees, 34 direct recruits whose names were recommended by the High Court vide its letter dated 19.01.2010 and the candidates to be appointed pursuant to this order shall be treated to have been appointed in the same 2009 batch and their inter-se seniority shall be determined accordingly under the U.P. Higher Judicial Service Rules, 1975.
Prabhuji's case (supra) was decided on 16.02.2010 and the seniority list of pre 1998 appointees was quashed.
Thereafter, on 20.04.2010 directions were issued on an I.A. filed in All India Judges' Association (supra) permitting variation of the Quotas of 50:25:25 to 65:10:25, 10% posts being prescribed for LCE based promotees. Consequently on 29.01.2014 Ninth Amendment to Rules 1975 were notified amending Rule 6 and 22(2) accordingly and providing a new roster based thereon, but without retrospective effect.
In compliance of the direction of the Supreme Court in Ashok Pal Singh (supra) decided on 13.09.2010 a Committee was constituted which undertook an exercise for determination of seniority, including determination of vacancies and based thereon submitted its Ist tentative report dated 02.03.2011, thereafter IInd tentative report was submitted on 18.05.2011 including appointees of 1998-2000 recruitment. Based thereon a final seniority list dated 14.07.2011 was prepared which was approved by the Full Court on 30.7.2011 and notified on 1.8.2001. (upto 1998-2000 recruitment).
Another exercise for determining seniority of subsequent recruits that of 2007 and 2009 recruitment was undertaken in continuation of the final seniority list dated 14.07.2011, wherein, the committee also determined the vacancies and their allocation to various quotas to 2007 and 2009 batches, although the same had been determined prior to such recruitment, which was notified on 07.02.2012 to the members of HJS inviting objections. A tentative seniority list dated 25.07.2013, was issued on 25.07.2013, objections were invited. Thereafter another tentative seniority list dated 10.12.2014 of 2007 and 2009 batches was issued on 20.12.2014.
At this stage it is said that a retired officer Sri Umesh Chandra II moved a representation that his name did not figure in the seniority list, it is then that the committee detected that though he was never regularly promoted under Rule 22 (1) and was only promoted on ad-hoc/officiating basis in Fast Tract Court, on his retirement, a regular post, which in fact he did not occupy, was treated as having fallen vacant. On further inquiry various omissions and commissions were allegedly detected in calculation of vacancies, therefore, the committee undertook a humongous exercise to have a re-look into this aspect right from the beginning that is at least 1992 if not prior to it and based on this exercise it found that a large number of officers appointed under Rule 22(3), who never got substantive appointment in HJS cadre, were taken into account for the purposes of recruitment which had caused artificial creation of vacancies as reflected in the final seniority list dated 14.07.2011 and final report dated 18.12.2014.
Objections were again invited from the officers. After considering the objections the seniority committee prepared a final seniority report dated 23.09.2015 which was placed before the Full Court on 01.12.2015. As several officers especially the promotees, such as the petitioners, who were earlier placed higher in the seniority list dated 14.07.2011 as also the tentative seniority lists issued thereafter, had no occasion to object at that time were being adversely affected, the Full Court decided to upload the report dated 23.09.2015 on the Website to facilitate objections being filed by officers, which was done on 05.12.2015. Objections were filed, personal hearing was also given, thereafter a supplementary final seniority report dated 06.04.2016 as approved by the Full Court on 14.04.2016 was published on 18.04.2016.
In the interregnum the direct recruits of 1998-2000 batch filed a Writ Petition before the Supreme Court challenging the aforesaid seniority list of 2011 which was dismissed with the observation that they should get themselves impleaded in Civil Appeal No. 5270 of 2010; Het Singh Yadav and Ors. Vs. State of U.P. and Ors. which was pending as against the Division Bench Judgment of this Court rendered in the case of Pradbhu ji (supra). The petitioners herein also filed applications for impleadment in the case of Het Singh Yadav.
It is also not out of place to mention that the petitioners herein filed a writ petition before the Supreme Court bearing No. Civil Petition 322 of 2011 claiming the same relief as has been claimed herein which was dismissed on 01.07.2016 with liberty to approach the High Court and an observation was made therein to decide the writ petition within a period of four months. This is how, as stated in the opening part of the judgment, this matter has come up before this Bench.
During pendency of these writ petitions before this Court, the appeal in Het Singh Yadav (supra) was been decided by the Supreme Court on 15.09.2016 and taking note of the fact that in pursuance to an interim order dated 04.04.2011 passed by it in the said case for preparing a seniority list in terms of Ashok Pal Singh's case, a seniority list had been drawn by the High Court which was under challenge herein in Writ Petition No. 16569(S/B) of 2016, it set aside the judgment dated 16.12.2010 in Prabhuji's case leaving all pleas open for consideration by this Court in this Petition and for a decision thereon.
In fact the seniority list which was drawn by the High Court on the administrative side in pursuance to Ashok Pal Singh's case (supra) on 14.07.2011 was modified on 23.9.2015 based on a subsequent report of the Committee of the same date and it is this report/seniority list which is challenged in these petitions. In view of the judgment in Het Singh's case all pleas are to be considered by this Court.
In Writ Petition No. 16569 (SB) of 2016 the challenge is to the vires of the Sixth amendment Rules 2006, retrospectivity given to it, the report dated 23.09.2015and seniority list dated 23.09.2015 based thereon, supplementary report dated 06.04.2016 approving the seniority list dated 23.09.2015 by rejecting the objections against it, and orders/decisions related thereto.
In Writ Petition No. 1880(S/B) of 2017 same actions/decisions have been challenged, expect vires of the Rules, 2006, primarily on the ground of non-application of Quota Rota rule and violation of All India Judges Association Case (supra).
The petitioners of Writ Petition No. 16569(S/B) of 2016 are promotee officers. The private respondents therein are direct recruits.
The petitioners of Writ Petition No. 1880(S/B) of 2017 are direct recruits of the same year as the promotee officers of the first writ petition i.e. 2007 batch. They are respondents in the first petition The respondents in the second writ petition are the promotee members of the HJS of 2007 batch who are affected by the reliefs claimed therein. Some of them are petitioners in the first petition. Notices were issued to the private opposite parties no. 4 to 134 on 25.1.2017 and again to the 6 unserved ones on 5.5.17 through the concerned District Judge under whom they were posted. Office reports in this regard are on record. Service upon respondents is sufficient. Respondent no.108 made an endorsement on the notice seeking a copy of the petition but did not pursue the matter any further before us even though the arguments were still continuing.
The reliefs claimed in Writ Petition No. 16569 (SB) of 2016 are as under:-
"(i) issue a writ order of direction in the nature of mandamus declaring the U.P. Higher Judicial Service (Sixth Amendment) Rules, 2006 notified on 09.01.2007 in so far as it has been made applicable with retrospective effect i.e. 21.03.2002; as void, non-est and ultra vires Article 14 of the Constitution of India.
(ii) issue a writ, order or direction in the nature of certiorari quashing the ''Final Seniority Report (2015)' dated 23.09.2015 and ''Supplementary Report dated 06.04.2016' issued in continuation thereof (as contained in Annexure No.2), as approved by the High Court vide Resolution dated 14.04.2016 referred to in letter No.07/S&A/05/2016 Allahabad on 18.04.2016 of the Registrar (S&A/Seniority), to the extent that it alters the seniority of the petitioners as determined by the Final Seniority List of 2011;
(iii) issue a writ, order or direction in the nature of certiorari quashing the ''Final Seniority Report (2015)' dated 23.09.2015 and ''Supplementary Report dated 06.04.2016' issued in continuation thereof, as approved by the High Court vide Resolution dated 14.04.2016 referred to in letter No. 07/S&A/05/2016 Allahabad on 18.04.2016 of the Registrar (S&A/Seniority), to the extent the seniority of the Direct Recruits, who joined in 2005 and thereafter, has been determined above the seniority of the petitioners and other similarly placed officers of Uttar Pradesh Nyayik Sewa;
(iv) issue a writ, order or direction in the nature of appropriate writ directing the Respondents not to implement the ''Final Seniority Report (2015)' dated 23.09.2015 and ''Supplementary Report dated 06.04.2016' issued in continuation thereof, as approved by the High Court vide Resolution dated 14.04.2016 referred to in letter No.07/S&A/05/2016 Allahabad on 18.04.2016 of the Registrar (S&A/Seniority), to the extent that it alters the seniority of HJS already finally determined and published vide HJS Seniority List, 2011; and
(v) any other appropriate writ, order or direction be issued which this Hon'ble Court may deem just, proper and necessary in the circumstances of the case; and
(vi) cost of the writ petition be awarded to the petitioner."
The reliefs claimed in Writ Petition No. 1880 (SB) of 2017 are as under:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the final seniority report dated 23.09.2015 as contained in Annexure No.1 to the writ petition.
(ii) issue a writ, order or direction in the nature of certiorari quashing the supplementary report dated 06.04.2016 as contained in Annexure No.-2 to the writ petition.
(iii) issue a writ, order or direction in the nature of certiorari quashing the seniority list dated 06.04.2016 of UPHJS officers from serial no. 773 to 1068 as contained in Annexure No.4 to the writ petition.
(iv) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to re-determine the seniority positions of the petitioners vis-a-vis the officers promoted from judicial service on the basis of rotational system proportionate to the quotas prescribed for their respective appointments in the ratio of 3:1 as has been determined in the order/notification of appointment dated 10.12.2008.
(v) issue a writ, order or direction in the nature of certiorari quashing the resolution dated 14.04.2016 summoning the same from the opposite party no.1 communicated vide order dated 18.04.2016 as contained in Annexure No.3 to this writ petition.
(vi) issue a writ, order or direction in the nature of certiorari quashing the order dated 28.06.2016 after summoning the same from the opposite parties 1 to 3 and the consequential order dated 06.08.2016 as contained in Annexure no.5 to this writ petition.
(vii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties that promotee officers are not entitled to seniority beyond and and in excess of their quota of 50% for promotion, but can only be given promotion in excess of their quota of 50% in respect of remaining vacancies as per Rule 22(2) of the UPHJS Rules, 1975.
(viii) issue any other appropriate writ, order or direction which is deemed just and proper in the nature and circumstances of case in favour of the petitioners in the interest of justice along with cost of this writ petition."
The petitioners of Writ Petition No. 16569(S/B) of 2016 herein are those who were promoted to the HJS vide order dated 11.08.2008 allegedly as against the vacancies which arose in the year 2002 but determined subsequently. Some of the opposite parties therein are direct recruits who were appointed in the year 2005, one of them in 2007 based on the recruitment 1998-2000 finalized in 2004 as against 24 vacancies of the period 01.01.1998 to 30.09.2001. The other opposite parties are those who were appointed subsequently in December, 2011 and January 2012, but, with retrospective effect from 04.01.2007 as against 10 of the 14 vacancies under their quota based on the same recruitment i.e. 1998-2000.
At this stage we may consider a preliminary objection raised by Sri Prashant Chandra to the very maintainability of Writ Petition No. 16569(S/B) of 2016 on the ground that petitioner no. 2 therein was also one of the petitioners in V.K. Srivastava's case where the challenge to the vires of Sixth Amendment Rule, 2006 was specifically raised but repelled by the Supreme Court, yet, concealing this material fact this petition had been filed which was liable to be thrown out at the threshold.
Sri Prashant Chandra, learned Senior Advocate appearing for some of the private respondents submitted that petitioner no.2 had earlier filed a Writ Petition directly before the Supreme Court along with other similarly situated members of the service challenging the vires of the same Rules which was numbered as Civil Misc. Writ Petition No. 206 of 2007 and was dismissed on 04.09.2008. He said that this fact has been concealed by petitioner no.2 as would be evident from a reading of the pleadings of Writ Petition No. 16569 (SB) of 2016. In fact a contrary and misleading averment had been made in the said writ petition to the effect that no other writ petition had been filed before this Court or any other Court, as stated in paragraph 1 thereof as also in paragraphs 54, 55 and 56. He alleged misrepresentation of facts and prayed for stern action against the said petitioner. He relied upon various judgments in this regard reported in (2013) 11 SCC 531(Bhaskar Laxman Jadhav & Ors. Vs. Karamveer Kakasaheb Wagh Education Society & Ors.); (2008) 12 SCC 481 (K.D. Sharma Vs. Steel Authority of India); (2010) 14 SCC 31 (Ramjas Foundation & Anr. Vs. Union of India); (2008) 17 SCC 491 (Machhaj Nahar Vs. Nilima Mandal & Anr.); (2002) 5 SCC 1 (Brij Mohan Lal Vs. Union of India and Ors.); (2016) 11 SCC 656(V. Venkata Prasad and Ors. Vs. High Court of Andhra Pradesh and Ors.); judgment pronounced by the Supreme Court in Civil Misc. Writ Petition No. 206 of 2007; V.K. Srivastava and Ors. Vs. Government of U.P. and Anr.
He also invited our attention to a copy of the memo of the said writ petition filed before the Supreme Court and the pleading and relief clause therein. The relief clause reads as under:-
(a) issue a writ of mandamus, or a writ or direction in the nature of mandamus declaring Rule 1(2) of U.P. Higher Judicial Service (6th amendment) Rules 2006, as ultra vires, in so far as it directs the rules to have come into force with effect from 21st March, 2002;
(b) issue a writ of mandamus or a writ or direction in the nature of mandamus directing the respondents to fill up the vacancies occurring prior to 31.12.2006 to be filled up in accordance with U.P. Higher Judicial Service 1975, prior to its amendment by the U.P. Higher Judicial (6th amendment) Rules, 2006;
(c) issue a writ of certiorari or writ or direction in the nature of certiorari quashing the communication dated 03.04.2007; and
(d) pass any such any further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
Thus, it is not in doubt that vires of Sixth Amendment Rules, 2006 i.e. same Rules which has been challenged herein, was also challenged by the Petitioner no.2 before the Supreme Court.
After the aforesaid objection had been raised, when confronted, Sri Mathur inquired from his client and filed her affidavit of apology. He informed the Court that petitioner no.1 had also filed a Writ Petition before the Supreme Court bearing No. 36 of 2008 which was considered along with the writ petition of V.K. Srivastava (supra), however, this petition was withdrawn with liberty to pursue other appropriate remedies with regard to seniority, a fact which could not not be disclosed in the writ petition in the context of petitioner no.1, hence, an apology was also tendered on her behalf in this regard.
Sri U.N. Mishra, however, submitted that as the petitioners 1 and 2 are Judicial Officers, therefore, he is refraining from saying anything on this issue and being counsel for the High Court he would not like to make any submission on the propriety of non disclosure of relevant facts or their concealment instead he prayed that the issues be considered on merits.
The petitioners 1 and 2 who are members of the Higher Judicial Service are supposed to know the law and the procedure better than a common litigant. Having raised a challenge to the vires of Sixth Amendment Rules, 2006 before the Supreme Court along with others in V.K. Srivastava (supra) it was obligatory under Rule 1(3) of the High Court Rules, 1952 and even otherwise for the petitioner nos. 1 and 2 to have disclosed this fact in the writ petition.
Sri J.N. Mathur learned Senior Advocate submitted that apart from the apology tendered by the petitioner 2, the petitioners being heavily burdened with judicial work and the petition having been filed hurriedly to meet the deadline fixed by the Supreme Court vide its order dated 01.07.2016, the error occurred but there was no intent to mislead or misrepresent the facts.
We do not appreciate the omission on their part in this regard but considering the apology tendered as also the fact that a decision regarding seniority cannot be taken to their exclusion as ultimately the benefit or disadvantage, as the case may be, will accrue to all who are affected, we do not dismiss their other claims in the petition on this count.
During the course of arguments on 04.05.2017 we framed issues which according to us were relevant to a complete and effectual adjudication of the controversy at hand.
The controversy involved in these petitions has two limbs. The first limb relates to the determination of vacancies for the direct recruits and promotees for the recruitment period 01.01.1998 to 30.09.2001 (referred as 1998-2000 batch) and retrospective appointment of direct recruits against such vacancies and its impact on seniority of members of the service. Issues no.v, vi, vii and viii dealt hereinafter relate to this aspect.
The second limb of the controversy is based on the dictum of the Supreme Court in All India Judge Association & others (supra) regarding the post based quota-rota rules, roster and seniority determination based thereon, as also, the retrospectivity given to the sixth amendment Rules, 2006 w.e.f. 21.03.2002, its vires etc.. This part of the controversy relates to the post 30 September 2001 period in fact 21.03.2002 and thereafter. Issues no. i, ii, iii, iv, ix discussed hereinafter relate to this aspect. Issues no.x and xi relate to validity of the impugned action based on aforesaid issues.
Before considering the issues involved it is appropriate to refer to the Rules relevant to the controversy at hand which are known as U.P. Higher Judicial Service Rules, 1975. Rules 5, 6, 8, 18, 20, 21, 22 and 26 as existing prior to the Sixth Amendment in 2006 of the Rules, 1975, read as under:-
"5. Sources of recruitment.-The recruitment to the Service shall be made--
(a) by direct recruitment of pleaders and advocates of not less than seven years' standing on the first day of January next following year in which the notice inviting applications is published;
(b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa), who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting application is published:
Provided that so far long as suitable officers are available from out of the dying cadre of the Judicial Magistrates confirmed officers who have put in not less than seven years service to be computed as aforesaid shall be eligible for appointment as Additional Sessions Judges in the Service.
Explanation.--When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken into account in computing the period of seven years under clause (a)."
6. Quota.- Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be-
(i) Direct recruits from the Bar 15% (ii) Uttar Pradesh Nyayik Sewa 70% (iii) Uttar Pradesh Judicial Officers Service (Judicial Magistrate) 15%
Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one:
Provided further that when the strength in the cadre of the Judicial Magistrates gradually gets depleted or is completely exhausted and suitable candidates are not available in requisite numbers or no candidate remains available at all, the shortfall in the number of vacancies required to be filled from amongst Judicial Magistrates and in the long run all the vacancies, shall be filled by promotion from amongst the members of the Nyayik Sewa and their quota shall, in due course, become 85 per cent.
8. Number of appointments to be made.---(1) The Court shall, from time to time, but not later than three years from the last recruitment, fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years.
Note---The limitation of three years mentioned in this sub-rule shall not apply to the first recruitment held after the enforcement of these rules.
(2) If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa;
Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly; so, however, that the percentage of direct recruits in the Service does not in any case exceed 15 per cent of strength of the service.
Provided further that all the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if any when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules;
Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to the Judicial Magistrates in addition to their quota of 15 per cent prescribed in Rule 6, and thereupon, future recruitment (after the promotion from amongst the members of the Nyayik Sewa against vacancies referred to in the last preceding proviso) shall be so arranged that for so long as the additional 15 per cent vacancies worked out as above have not been filled up from out of the Judicial Magistrates, the allocation of vacancies shall as follows---
(i) 15 per cent by direct recruitment.
(ii) 30 per cent from out of the Judicial Magistrate;
(iii) 55 per cent from out of the members of the Nyayik Sewa."
"18. (1) The Selection Committee referred to in Rule 16 shall scrutinize the applications received and may thereafter hold such examination, as it may considered necessary for judging the suitability of the candidates. The committee may call for interview such of the applicants who in its opinion have qualified for interview after scrutiny and examination.
(2) In assessing the merits of a candidate the Selection Committee shall have due regard to his professional ability, character, personality and health.
(3) The Selection Committee shall make a preliminary selection and submit the record of all candidates to the Chief Justice and recommend the names of the candidates in order of merit who, in its opinion, are suitable for appointment to the service.
(4) The Court shall examine the recommendations of the Selection Committee and having regard to the number of direct recruits to be taken, prepare a list of selected candidates in order of merit and forward the same to the Governor."
"20. Promotion of Members of Nyayik Sewa-(1) Recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the principle of seniority-cum-merit.
(2) The field of eligibility for recruitment by promotion shall be confined to four times the number of vacancies to be filled by promotion. The Selection Committee shall prepare a list in order of seniority of the officers eligible under Rule 5(b) of these rules.
(3) The Selection Committee shall, after examining the record of the officers included in the list prepared under sub-rule (2) of this Rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of seniority-cum-merit. In assessing the merits of a candidate, the Selection Committee have due regard to his service record, ability, character and seniority. The list shall contain the name of officers twice the number of vacancies required to be filled by promotion of the members of the Nyayik Sewa.
(4) The Selection Committee shall forward the list of the candidates chosen at the preliminary selection to the Chief Justice along with the names of the officers who, if any, in the opinion of the Committee have been passed over for promotion to the service.
(5) The Court shall examine the recommendations of the Selection and make a final selection for promotion and prepare a list in order of seniority of the candidates who are considered fit for promotion and forward the same to the Governor. The list shall remain operative only till the next recruitment."
"21. Temporary provisions for the cadre of the Judicial Magistrate.- (1) For so long as suitable officers are available from out of the dying cadre of the Uttar Pradesh Judicial Officers Service, confirmed officers who have put in not less than seven years' service shall be eligible for appointment as Additional Sessions Judges in the service, as provided in Rules 4, 5, 6 and 8. Such officers may also be appointed as Additional Sessions Judge in officiating and temporary capacity upto the extent of 15 per cent of the vacancies in the cadre occurring during any one period of Selection.
(2) The field of eligibility for appointment from out of the Judicial Magistrate shall be confined to four times the number of vacancies to be filled from this source. The Selection Committee shall prepare a list in order of seniority of the eligible officers.
(3) Criterion for selection shall be seniority-cum-merit. In assessing the merits of a candidate the Selection Committee shall have due regard to his service record ability, character and seniority. The preliminary selection shall be made by the Selection Committee referred to in Rule 6 and the list of the selected candidates shall be forwarded to the Chief Justice along with the names of the officers who, if any, in the opinion of the Committee are unfit for appointment to the Service.
(4) The Court shall examine the recommendations of the Selection Committee and make a final selection and prepare a list of candidates considered fit for appointment in order of seniority and forward the names of the officers. The list shall remain operative only till the next recruitment.
(5).......
(6).......
(7) The Court shall examine the recommendations of the Selection Committee and make a final selection for appointment in HJS cadre and prepare a list in order of merit and forward the same to the Governor. The list shall remain operative only till the next recruitment."
22. Appointment- (1) Subject to the provisions of sub-rules (2) and (3), the Governor shall on receipt from the Court of the lists mentioned in Rule 18, 20 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the lists in the order in which they stand in the respective lists.
(2) Appointments to the service shall be made on the rotational system, the first vacancy shall be filled from the list of officers of the Nayayik Sewa. The second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies, shall therefore be filled by promotion from the list of the officers of the Nayayik Sewa.
Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrates, appointments to the Service shall be made in such a way that the second fifth and eighth (and so on), vacancy shall be filled from the list of judicial Magistrates.
(3) In the eventuality of delay in making appointment under sub-rule (1) and further if exigency of service so requires, the Governor may, in consultation with the Court, make short term appointment as a stop gap arrangement from amongst the members of Nyayik Sewa in the vacancy in these services within the quota fixed by the Court till the appointment are made under sub-rules (1) and (2):
Provided that the period of service spent by a member of Nyayik Sewa on short term appointment to the service as a stop-gap arrangement shall not be computed from seniority under Rule 26.
(4) The appointments shall be made on rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of Judicial Magistrates (and so on)."
26. Seniority.--(1) Seniority of the officers appointed in the Service shall be determined in accordance with the order of appointment in the Service under sub-rules (1) and (2) of Rule 22 of these rules.
(2) Seniority of members of the service who have been confirmed in the service prior to the commencement of these rules shall be as has been determined by the order of the Government as amended from time to time."
The relevant amendments to the above Rules by the Uttar Pradesh Higher Judicial Service (Sixth Amendment) Rules, 2006 are as under:-
"Rules, 2006
1.(1) These rules may be called the Uttar Pradesh High Court Service (Sixth Amendment) Rules, 2006.
(2) They shall come into force with effect from March 21, 2002.
In the Uttar Pradesh High Judicial Service Rules, 1975, the existing rule 5 was substituted as under:-
5-Sources of recruitment--The recruitment to the service shall be made-
(a) By promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.
(b) By promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;
(c) By direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published.
The existing rule 6 was substituted as under:-
6.Quota -Subject to the provisions of rule 8, the quota for various sources of recruitment shall be -
(i) Uttar Pradesh Nyayik Sewa:
(a) from amongst the Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing a suitability test. -50%
(b) on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service. - 10% Provided that in case of there being any shortfall in the vacancies to be filled up on the basis of in cadre competitive examination, the shortfall of 25% reserved for such promotion will be made good by corresponding increase in the quota reserved for promotion of Civil Judge (Senior Division) referred to in Clause (i) (a).
(ii) direct recruitment from Bar - 25% Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one:"
In rule 8 the existing sub rule (2)was substituted as under:-
"8.(2) If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa;
Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly so, however, that the percentage of direct recruits in the service does not in any case exceed 25% of strength of the service.
In Rule 20- for the existing sub-rules (1) and (2), the following sub-rules were substituted:-
20-(1) Recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the principle of merit-cum-seniority and on passing such a suitability test, as prescribed in Appendix "G(1)"
(2) The field of eligibility for recruitment by promotion shall be confined to four times the number of vacancies to be filled by promotion. The selection Committee shall prepare a list in order of seniority of the officers eligible under Rule 5(a) of these rules.
The existing rule 21 was substituted as under:-:
21-(1) Recruitment by promotion of the members of Nyayik Sewa as referred to in Rule 5(b) shall be made by selection strictly on the basis of merit through a limited competitive examination as prescribed in Appendix ''H'.
(2) Application for recruitment to the service from such sources shall be invited by the Court through District Judges.
(3) the District Judge shall forward to the Court all applications received by him alongwith his own estimate of each candidate's character and fitness for appointment to the service.
(4) The Selection Committee referred to in Rule 16 shall scrutinize the applications received and shall hold a limited competitive examination, as prescribed in Appendix ''H'.
(5) The Selection Committee shall prepare a select list on the basis of the merit of the successful candidates.
(6) The committee shall make a preliminary selection and submit the record of all candidates to the Chief Justice and recommend the names of the candidates in order of merit who, in its opinion are suitable for appointment to the service.
(7) The Court shall examine the recommendations of the Selection Committee and make a final selection for appointment in HJS cadre and prepare a list in order of merit and forward the same to the Governor. The list shall remain operative only till the next recruitment.
The relevant amendments made by the Uttar Pradesh Higher Judicial Service (Seventh Amendment) Rules, 2009 are as under:-
"19. Candidates for direct recruitment to the service and candidates for promotion to the service though Limited Competitive Examination, shall pay to the Registrar General of the Court or to such other officer as may be specified by the Selection Committee appointed under Rule 16 and to the President of the Medical Board such fees as are specified by the said Selection Committee. No claim for the refund of such fees shall be entertained.
22. Appointment.-- (1) Subject to the provisions of sub-rule (2) the Governor shall, on receipt from the Court of the list mentioned in Rules 18, 20 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the list in the order in which they stand in the respective lists in accordance with the roster.
(2) Appointments to service shall be made on the basis of roster system, the first and second post shall be filled from the list of promotes, the third post shall be filled up by direct recruit and the fourth post shall be filled up by the candidate selected strictly on merit through LDCE (and so on) according to the roster as prescribed in Appendix ''I', which will cease to become operative on the date the respective three streams achieve their full allotted vacancies. Thereafter on account of arising any vacancy in quota of respective stream the same could be filled-up from the same stream of which vacancy arises :
Provided that while following the roster at no point of time the percentage of posts filled from direct recruit and LDCE shall exceed 25% each of the vacancies available at the time of selection. In case the percentage is exceeding the allotted quota, in such eventuality the promotee shall occupy the vacancy which would have gone to the direct recruit or LDCE, had not the same been an excess of 25% of either of the two.
(3) In the eventuality of delay in making appointment under sub-rule (1) and further if exigency of service so requires the Governor may, in constitution with the Court, make short term appointment as a stop-gap arrangement from amongst the promotees, in the vacancy in these services fill the appointment are made under sub-rules (1) and (2) :
Provided that the period of service spent by the promotees on a short term appointment to the service as stop-gap arrangement shall not be computed under Rule 26."
The relevant amendments made by the Uttar Pradesh Higher Judicial Service (Ninth Amendment) Rules, 2014 are as under:-
"1.(1) These rules may be called the Uttar Pradesh Higher Judicial Service (Ninth Amendment) Rules, 2013.
(2) They shall come into force at once.
The existing rule 6 was substituted as under:-
Quota- 6. Subject to the provisions of rule 8, the quota for various sources of recruitment shall be -
(i) Uttar Pradesh Nyayik Sewa:
(a) from amongst the Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing a suitability test. -65%
(b) on the basis of merit through limited competitive examination of civil Judges (Senior Division) having not less than five years service. -10% Provided that in case of there being any shortfall in the vacancies to be filled up on the basis of in cadre competitive examination, the shortfall of 10% reserved for such promotion will be made good by corresponding increase in the quota reserved for promotion of Civil Judge (Senior Division) referred to in clause (i) (a).
(ii) Direct recruitment from Bar -25% Provided that where the number of vacancies to be filled in by any of the sources in accordance with the quota is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one:
The existing sub-rule (3) of rule 20 was substituted as under:-
20.(3) The Selection Committee shall, after examining the record of the officers included in the list prepared under sub-rule (2) of this rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of merit-cum-seniority. In assessing the merit of a candidate, the Selection Committee have due regard to his service record, ability, character and seniority. The list shall contain the names of officers twice the number of vacancies required to be filled by promotion of the members of the Nyayik Sewa.
In rule 22, the existing sub-rule (2) was substituted as under:-
22.(2) Appointments to the service shall be made on the basis of roster system, the first post shall be filled from the list of promotees, the second post shall be filled up by direct recruit, the third and fourth posts shall be filled up from the list of promotees and fifth post shall be filled up by the candidate selected strictly on merit through LDCE (and so on) according to the roster as prescribed in Appendix ''1', which will cease to become operative on the date the respective three streams achieve their full allotted vacancies. Thereafter on account of arising any vacancy in quota of respective stream the same could be filled-up from the same stream of which vacancy arises;"
Provided that while following the roster at no point of time the respective percentage of posts filled from direct recruit and LDCE shall exceed 25% and 10% of the strength of service. In case the percentage is exceeding the allotted quota, in such eventuality the promotee shall occupy the vacancy which would have gone to direct recruit or LDCE, had not the same been in excess of 25% and 10% respectively of either of the two."
As per the scheme of the Rules, 1975 above mentioned three separate sources of recruitment to the service are prescribed in Rule 6 along with their ratio which determines their quota. Rule 8 deals with determination of vacancies and recruitment period, which has to be read in consonance with para 38(7) of Sri Kant Tripathi's case (supra). It also provides that if in any selection the number of selected direct recruits available for appointment is less then the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa, which, however, shall be taken into consideration while fixing the number of vacancies for the direct recruits at the next recruitment which may be raised accordingly without exceeding the 25% quota meant for them.
Rules 17, 18, 20 and 21 deal with the procedure for recruitment from the three sources referred in Rule 6. A list of selected candidates is required to be prepared in respect of all the three sources under rule 18(4), 20(5) and 21(7). Appointments are to be made under Rule 22 on receipt of the lists aforesaid by taking candidates therefrom in the order in which they stand in respective lists. This is subject to a rotational system prescribed in sub-rule (2) based on the quota prescribed for 3 sources. Sub-rule (3) deals with stop-gap arrangements in the event of delay in making appointment under sub-rule (1) and consequence thereof. All appointments and confirmations under these rules are to be notified in the State Gazette under Rule 25.
As per Rule 26 the seniority of the officers appointed in the Service is to be determined in accordance with the ''order of appointment in the service under sub-rules (1) and (2) of Rule 22'. Thus, this Rule provides for determination of seniority in keeping with the quota-rota rule prescribed in Rule 22(1) and (2).
Now to consider the issues which fall for our consideration .
Issue Nos. (i), (ii), (iii) & (iv) :-
First and foremost it is the challenge to the vires of sixth amendment rules 2006, the retrospectivity given to it w.e.f. 21.3.2002 and ancillary issues regarding denial of alleged vested right of consideration of petitioners of W.P. no. 16569 /2016 for promotion by such amendment, is required to be considered. In this regard the issues framed by us are as under:-
"(i) Whether the cut off date, i.e., 21.3.2002 from which the Uttar Pradesh Higher Judicial Service (Sixth Amendment) Rules, 2006 have been given effect, is irrational and hit by Article 14 of the Constitution of India?
(ii) Whether there was any accrued or vested right in favour of the petitioners for being considered for regular promotion under Rule 22 (1) of 1975 Rules on the date of availability of vacancies as disclosed by the High Court in para - 4 of it's counter affidavit? If so, could it be taken away by giving retrospective effect to the 2006 Rules?
(iii) Whether the retrospectivity given to the 2006 Rules would also include a right of retrospective promotion in favour of the petitioners from the date of availability of vacancies?
(iv) What is the effect of the Supreme Court judgment in All India Judges Association v. Union of India [(2002) 4 SCC 247] prescribing a suitability test for promotion based on merit-cum-seniority and the amendment in the 1975 Rules in 2007 w.e.f. 21.3.2002 on such entitlement to promotion as aforesaid, as also, on seniority?
Issues (i) to (iv) are inter-wined, therefore, they are being considered together.
As regards the challenge to the sixth amendment Rules 2006, retrospectivity given to it etc., the Supreme court pronounced its order in All India Judge Association (supra) on 21.03.2002. The relevant paragraphs of the said order i.e. paragraphs 27, 28 and 39 are as under:-
"27.Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two source of recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase of the pay scales of the subordinate judiciary, it is at the time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we expect that the calibre of the members of the Higher Judicial Service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned:50 per cent of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.
28.As a result of the aforesaid, to recapitulate, we direct the recruitment to the Higher Judicial Service i.e. the cadre of District Judge will be:
1.(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viova voce test conducted by respective High Courts.
(2) Appropriate rules shall be framed as above by the High courts as early as possible.
.................
39. The States as well as the Union of India shall submit their compliance report by 30.09.2002. Case be listed thereafter for further orders."
As would be evident from the aforesaid the observations/directions contained in paragraphs 27, 28 read with paragraph 39 of the report are with regard to prescription of quota for three different source of recruitment as also their proportion. By the said dictum 50% quota was prescribed for promotion on the basis of merit-cum-seniority based on suitability test to be conducted for the said purpose. 25% quota was prescribed for merit based promotion on the basis of a limited competitive examination, another 25% quota was prescribed for direct recruitment from the Bar.
The compliance of the aforesaid dictum was to be made by the High Court by 30.09.2002. For reasons best known to the official respondents, in the State of U.P. this was done only on 09.01.2007 by which the Sixth Amendment Rules, 2006 came into force but these were given retrospective effect from 21.03.2002, obviously in belated compliance of the aforesaid decision. An eligibility test was prescribed for promotion on the basis of merit cum suitability under the 50% quota . It is this which is the bone of contention as this test created a bar to the enforcement of petitioners' alleged right of being considered for promotion from the date of availability of vacancy in their quota for which they were allegedly eligible.
In this regard Sri Jaideep Narain Mathur, learned Senior Advocate appearing for the petitioners contended that retrospectivity could not have have been given at all to the amendment merely because State of U.P. failed to comply the dictum of the Supreme Court as aforesaid within the dead line fixed by it and complied it belatedly on 09.01.2007, as, vested rights accrued in the interregnum could not have been taken way in such a manner specially in view of paragraph 4 of the Counter affidavit of the High Court which indicates that the vacancies under the promotion quota did exist in the year 2002 against which the petitioners were entitled to be considered for promotion being eligible and within the zone of consideration but they were not considered, thereby denying them their fundamental right in this regards as declared by the Supreme Court in the case of Ajeet Singh-II and Ors. Vs. State of Punjab and Ors. reported in (1999) 7 SCC 209 and Union of India and Anr. Vs. Hemraj Singh Chauhan and Ors. reported in (2010) 4 SCC 490.
He argued that consideration for promotion, if a person is within the zone of consideration, is a fundamental right, which could not have been taken away by giving retrospectivity to the Rules and prescribing a suitability test under Rule 6 thereof which obviously could not be held prior to 09.01.2007, thus, a fait accompli could not be presented before the petitioners. In this regard he relied upon various judgments of the Supreme Court viz Shiv Shakti Coop. Housing Society Vs. Swaraj Developers reported in (2003) 6 SCC 659; T.R. Kapur Vs. State of Harayana & others reported in 1986 Supp. SCC 587; Ajit Singh-II and Ors. Vs. State of Punjab and Ors. reported in (1999) 7 SCC 209; V. K. Srivastava Vs. Government of U.P. reported in (2008) 9 SCC 77; B.S. Yadav Vs. State of Harayana reported in 1980 Supp SCC 524; Union of India and Ors. Vs. Tushar Ranjan Mohanty and Ors. reported in (1994) 5 SCC 450 and State of Gujarat and Anr. Vs. Raman Lal Keshav Lal Soni and Ors. reported in (1983) 2 SCC 33.He also contended that no other State had given retrospective effect to the amendments.
It was also the contention of Sri Mathur that cut off date 21.03.2002 for giving retrospective effect to Rules, 2006 notified on 09.01.2007, was irrational, therefore, the same was hit by Article 14 of the Constitution of India, as, it had no rational nexus with the object sought to be achieved. The catalyst in this case was the All India Judges' Association judgment, which was pronounced on 21.03.2002 directing certain amendments in the Rules and ordering compliance of these directions latest by 30.09.2002 regarding which a compliance report was to be filed, therefore, according to him there is no way that the amendment in the Rules could come into existence on the date of the judgment itself, especially when time had been granted for its compliance upto 30.09.2002. He, therefore, submitted that if at all retrospective effect had to be given, it had to be from 30.09.2002 and not prior to it.
After arguing as above, Sri Mathur alternatively argued (issue no.3) that assuming such retrospectivity could be given to the amended Rules it had to be given in toto, meaning thereby, once, as per amended Rule 6 a suitability test was held in the year 2008, wherein the petitioners participated, albeit under protest and without prejudice to their rights, based on such suitability itself, which was an eligibility condition, the petitioners should be deemed to be eligible, qualified and suitable for promotion with retrospective effect from the date the vacancies occurred in their quota as per determination of the High Court itself as reflected in paragraph 4 of the counter affidavit, as, every retrospectivity, specially in this case, creates a legal fiction which has to be taken to its logical end and respondents cannot stop from taking such fiction to its logical end in the case of the petitioners.
On the merits of the issues involved, Sri Prashant Chandra, Sri H.G.S. Parihar as also Sri U.N. Mishra and other counsel appearing for the respondents have unanimously contended that the vires of the Rules already having been up-held by the Supreme Court in V.K. Srivastava's case (supra) there is no way the said issue could be reopened in this case and this issue stands settled by the said dictum. Learned counsel invited the attention of this Court in this regard to paragraphs 8 and 9 of the said judgment. Sri Misra contended that there is no such vested right of consideration for promotion in favour of the petitioners from the date of occurrence of vacancy as the employer has a right to keep the vacancies unfilled and consequently there is at best a chance of promotion and nothing more. He also contended that accrued right is different from a vested right. In this regard Sri U.N. Mishra relied upon various decisions of the Supreme Court reported in (1993) Suppl (2) SCC 734 (A. R. Sircar Vs. State of U.P.); 1980(Suppl) SCC 449 (Roshan Lal Vs. International Airport Authority of India); (2008) 9 SCC 77 (V. K. Srivastava and Ors. Vs. Government of U.P. and Anr.); (2003) 11 SCC 614 (Prafulla Kumar Das and Ors. Vs. State of Orissa); (1997) 8 SCC 522 (S.S. Bola Vs. B.D. Sardana); (2014) 5 SCC 101 (Panchraj Tiwari Vs. M.P. SEB); (2011) 6 SCC 725 (Deepak Agarwal and another Vs. State of U.P. and Ors.); (1997) 3 SCC 57 (Dr. K. Ramalu and Anr. Vs. Dr. S. Surya Prakash Rao); (1999) 7 SCC 209 (Ajeet Singh-II and Ors. Vs. State of Punjab); (2002) 5 SCC 1 (B.M. Lal Vs. Union of India); (1988) 4 SCC 534 (Bharat Singh Vs. State of Haryana); (2010) 12 SCC 609 (Rajasthan Pradesh Vaidya Samiti Vs. Union of India); Sri Kant Tripathi's case (supra) and Ashok Pal Singh's case (supra).
Shri Misra contended that there was no question of giving retrospective promotion to the petitioners firstly as after the amendment of the Rules on 09.01.2007 the suitability test was held only in the year 2008 in which the petitioners appeared and succeeded, therefore, there is no question of giving retrospective effect to such suitability test which in fact has taken place in 2008.Further more he contended that selection of the year 2000 itself was given effect in the year 2005 by appointment through direct recruitment and promotion, therefore, there is no way the petitioners who were considered subsequently for promotion in the year 2008, consequent to re-determination of the vacancies in 2004 and 2007, could be given promotion w.e.f. a date prior to the earlier selectees of the 1998-2000 recruitment. He also contended that the cut off date for retrospective effect to the Rules had a rational basis as the dictum of the Supreme Court was pronounced on the said date. The fact that the outer limit for compliance was 30.09.2002 does not mean that this alone could have formed a basis for giving retrospectivity. The reason for such contention raised by the petitioners is the fact that there was no vacancy on 21.03.2002 against which they could claim promotion, therefore, this oblique motive has persuaded them to raise such a plea as the vacancies for them under their quota occurred between 21.03.2002 and 30.09.2002. In nut-shell it was contended that the petitioners are not entitled to any relief in this regard.
As regards the contention of Sri Mathur that the judgment in V.K. Srivastava does not impose any hurdle as regards the vires of the Rules as, even though there was a relief claimed in this regard specifically, the Supreme Court did not consider the arguments advanced nor did it give any reasons preceded by any discussion to uphold the vires nor did it do so in so many words, we would like to refer to paragraphs 8, 9, 10, and 12 of the said judgment . They are as under:-
"8. The grievance of these petitioners is that these rules which have been published on 9-1-2007 should not have been given retrospective effect and since retrospective effect had been given to these rules, it has seriously prejudiced the rights of the petitioners. According to these petitioners, the vacancies of District Judges which had arisen prior to 21-3-2002 should have been filled up on the basis of unamended rules and the recruitment which had taken place based on the amended rules has affected the vested rights of the petitioners. It is argued that had these vacancies been filled up on the basis of the unamended Rules, at least some of the petitioners would have got promotion as of right and not based on the principle of merit-cum- seniority which is incorporated in the amended Rules. It was also argued that prior to the commencement of these Rules 85 per cent of the vacancies could have been filled up by promotion from the cadre of Civil Judges (Senior Division) to the post of District Judges whereas as per the amended Rules only 75 per cent of the Civil Judges (Senior Division) would get an opportunity to get promotion to the Higher Judicial Service. It was further argued that when service rules for selection for appointment were amended, it would always take place prospectively and retrospective effect shall not be given so as to prejudice the vested rights of the candidates.
9. We do not find much force in the contention advanced by the petitioners especially in view of the information furnished by the High Court as regards the recruitment that had taken place in the year 2008. Prior to 20-3-2002, there were 22 posts of District Judges that could be filled up and out of these 22 posts of District Judges if 85 per cent was taken as per the then existing rules, 19 posts had to be filled up by promotion from the cadre of Civil Judges (Senior Division) and three posts had to be filled up by recruitment from the Bar. Also there were 328 vacancies to be filled up and we are told that the selection process had already been over and the High Court has recommended for appointment of 245 candidates. The brdeak-up of the candidates as per the selection, which is mentioned by the High Court is as follows:
"170 candidates had to be given promotion based on the principle of "merit-cum-seniority" from the Civil Judges (Senior Division) to fill up 50 per cent of vacancies and all the 170 vacancies had been proposed to be filled up and for the 25 per cent of promotion of Civil Judges (Senior Division) based on merit, none was found suitable and these 76 posts also were added to the 50 per cent and the total number of 245 candidates in the cadre of Civil Judges (Senior Division) had been now proposed to be promoted to the cadre of District Judges and 82 direct recruits of District Judges have been selected from the Bar and that also is proposed to be appointed and a total of 286 candidates have been included in the list of candidates who are to be promoted."
10. The learned Senior Counsel appearing for the petitioners had also contended that prior to the amendment of these rules, the promotion to the cadre of District Judges was based on the principle of "seniority-cum-merit" and now as per the amended rules, pursuant to the directions of this Court, the principle has now been changed to "merit-cum-seniority" and this has seriously affected the rights of the members of the Civil Judges (Senior Division).
12. Going by the information submitted by the High Court regarding the 2008 selection, we are satisfied that the Rules have been complied with. Of course, as regards other objections, if any, we are not expressing anything on merits as the recommendation itself is not under challenge before us. Resultantly, we do not find any merit in these writ petitions and the applications and the same are disposed of accordingly."
The vires of the Sixth Amendment Rules, 2006 was specifically under challenge before the Supreme Court. Specific arguments in this regard as noted in paragraph 8 were advanced and in paragraph 9 it was specifically stated by the Apex Court "we do not find much force in the contention advanced by the petitioners specially ..............."
As far as the contention of Sri Mathur that the judgment was bereft of any reasoning, with respect, whatever has been observed therein is sufficient to hold that challenge to the vires of the Rules was clearly repelled, therefore, it has to be taken as having been up-held. The said judgment, therefore, bars a challenge before us not only by the petitioner no.2, in fact, it does not leave it open for our consideration at the behest of other petitioners of this petition also.
As regards the plea regarding a vested right of petitioners having been violated, the vacancy position was itself in dispute and no determination of vacancies in terms of Rule 8 had taken place during the period 2002 till 2004 on account of pendency of litigation before the High Court, that too, at the behest of the promotee officers themselves such as the petitioners through the U.P. Judicial Officer Association, which came to be decided only on 25.08.2004, therefore, in these circumstances it cannot be said that any vested right had accrued in favour of the petitioners in the year 2002 as is being claimed, ergo, no violation thereof. The introduction of a suitability test as an eligibility condition in the interregnum with retrospective effect from 21.03.2002 and a similar argument having been repelled by the Supreme Court in V.K. Srivastava's case (supra) also come in the way of the petitioners asserting such right.
It is relevant to point out that on account of pendency of litigation regarding determination of vacancies before this Court and the Supreme Court no recruitment by promotion or direct recruitment was made by the the High Court after 1998-2000 till 2005. In fact after the judgment in the case of U.P. Judicial Officer Association (supra) on 25.08.2004, redetermination of vacancies took place as already referred hereinabove, whereupon, the result of the selection for 1998-2000 recruitment was declared in 2004 thereafter, promotions and direct recruitment were made in respect of the said selection in the year 2005 in which direct appointments were made against only 24 posts as permitted by the High Court. Consequent to a determination of vacancies in 2007 the petitioners herein were promoted substantively to HJS only on 11.08.2008 as against the vacancies of the year 2002 as disclosed in paragraph 4 of the counter affidavit of the High Court, thus, in the facts of the present case there is no factual and legal basis for acceding to such plea of the petitioners.
It is also not out of place to mention that in 2001 the petitioners were promoted on adhoc basis as Additional District and Sessions Judges against adhoc posts created in the Fast Track courts and not against regular vacancies in the Higher Judicial Service allegedly after going through the regular procedure prescribed as was required for such appointment in fast track courts. Contrary recitals regarding their promotion against posts in the HJS as contained in their order of adhoc appointment is factually incorrect. Reference needs to be made to paragraph 5.7 and 5.8 of the counter affidavit filed by the High Court before the Supreme Court in V.K. Srivastava's case, a copy of which has been filed along with a compilation by the respondents, which read as under:-
"5.7 That, the averments made in paragraph 2(viii) of the writ petition are matters of record and hence need no response. It may, however, be stated that in the year 2001, vide Government Orders dated 23.03.2001 and 29.12.2001, a total of 182 and 24 Fast Track Courts respectively were established by the State Government in the State of Uttar Pradesh. It is stated that another 36 Fast Track Courts were established by the State Government in the year 2003 vide G.O. dated 23.01.2003. In the State of U.P., for the purpose of manning these Fast Track Court, officers of the Civil Judge (S.D) cadre were given adhoc promotion as a stop-gap arrangement under Rules 22(3) of the U.P. Higher Judicial Service Rules, 1975 (hereinafter referred to as ''the Rules'). It may also be stated that for giving adhoc promotion to Judges (S.D.) under this scheme, the Hon'ble Apex Court in the case of B.M. Lal vs. Union of India AIR 2002 SC 2096, passed certain directions. In the context of the present case, direction no.1 is relevant, which reads as under:
"The first preference for appointment of Judges of the Fast Track Courts is to be given by ad-hoc promotions from amongst eligible Judicial Officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion of such posts in Superior/Higher Judicial Services."
5.8 That, the averments made in paragraph 2 (ix) of the Writ petition are a matter of record, hence no response is needed thereto,except that the Civil Judges (S.D.), who were promoted on 24.10.2001 on ad-hoc basis as a stop gap arrangement under Rule 22(3) of the said Rules to man the Fast Tract Courts, had been promoted ex-cadre posts created for a fixed period. They were not promoted against substantive posts/vacancies in the H.J.S. cadre. In view of the said direction no.1 in B.M. Lal's case quoted hereinabove, the officers who had been granted ad-hoc promotion in the year 2001did not acquire any substantive right on their promotion as Additional District & Sessions Judge to man the Fast Tract Courts.
The Civil Judges (S.D.) who were similarly promoted on 04.08.2002 and 30.04.2003 also cannot claim any benefit on the basis of their promotion as adhoc Additional District & Sessions Judges (Fast Tract Court) and services rendered by them in these courts, owing to the fact that in compliance with the said direction no.1 by the Hon'ble Apex Court in B.M. Lal's case, their approval was made by the High Court in the similar manner as is required to be made for promotion/appointment on substantive posts under Rule 22(1) of the said Rules.
It is noteworthy to state that the process for selection under Rule 20 of the U.P. H.J.S. Rules is undertaken only when vacancies in the H.J.S. cadre have been determined by the High Court under Rule 8(1) of the Rules for making recruitment in the cadre. The approval in respect of the Civil Judges (S.D.) for their adhoc promotion to Fast Track Courts was made in view of direction no.1, quoted hereinbefore given by the Hon'ble Supreme Court, and this process of approval was not preceded by the determination of vacancies in the H.J.S. cadre under Rule 8(1) of the said Rules, and therefore their approval/selection for adhoc promotion as Additional District & Sessions Judge (Fast Track Court) has not been made in accordance with the said Rules.
It is also relevant to mention here that the Hon'ble Supreme Court in B.M. Lal's case has also made the following direction (no.14):
"No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her appointment on adhoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in parent cadre. In case any Judicial Officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade."
It is stated that in view of the above position, no right can be claimed by the petitioners on the basis of the services rendered by them in Fast Track Courts."
In view of the judgment of the Supreme Court in the case of Brij Mohan Lal Vs. Union of India and Ors.(2002)5 SCC 1 and Brij Mohan Lal's case (2012) 6 SCC 502; Debbrata Dash Vs Jatindra Prasad (2013) 3 SCC 658;V. Venkataprasad Vs High court of A.P. (2016)11 SCC 56 no benefit of such ad-hoc services is available to petitioners with regard to determination of their seniority or claim to retrospective promotion nor even in terms of direction no. 3 of Shri Kant Tripathi as reiterated in Para 43(ii) in Ashok Pal Singh's case as they were not selected for adhoc promotion against a vacancy in the HJS, thus this plea, which in fact was their sheet anchor in the pleadings, also fails.
As already stated prescription of a suitability test as an eligibility condition with retrospective effect from 21.3.2002 also creates a bar to such claim, as, all the vacancies against which petitioners could have been considered for promotion occurred after 21.3.2002 and they have not been able to demonstrate to the contrary. In respect to the 17 vacancies which occurred prior to 21.3.2002 the committee has given the benefit of seniority based on retrospective promotion granted against such vacancies vide order dated 14.9.2011 with some modification in the dates, presumably as per direction no.3 in Sri Kant Tripathi's case, as, according to it such vacancies existed in the quota and Sixth Amendment Rules 2006 did not come in their way as the unamended rules were applicable at that time. The petitioners did not fall within the purview of these vacancies.
We accordingly decide issues (i) and (ii) in the negative against the petitioners.
As regards issue no. (iii) , at first blush arguments of Sri Mathur in this regards appeared to be very attractive, as, if the posts were vacant under the promotion quota and petitioners were eligible and within the zone of consideration as also the fact that such consideration was delayed merely on account of a dispute regarding determination of vacancies under the respective quotas why should the promotees be deprived of a consideration for promotion from the date the vacancies occurred once they qualified the suitability test in the year 2008 and why the consideration should not be given retrospective effect. However, we find that there is no pleading nor any relief in the writ petition regarding grant of such retrospective promotion to the petitioners. On a pointed query being put to Sri Mathur as to whether any such claim had been raised before the High Court on the administrative side or its Committee, he answered in the negative. It seems Sri Mathur developed this argument during the course of hearing based on the data disclosed by the High Court in paragraph 4 of the counter affidavit regarding availability of vacancy for promotion of petitioners. Furthermore, on a closer scrutiny we are unable to sustain this pleas for another reason also, as, the earlier selectees of the Recruitment 1998-2000 were given appointment by way of promotion and direct recruitment both, only in the year 2005, therefore, there is no way the petitioners who were subsequent selectees of 2008 (2007 batch) against vacancies of 2002 could be given retrospective promotion from a date prior to the appointment of prior selectees unless of course they were entitled to such benefit under direction no.3 of Sri Kant Tripathi (supra) which we have already held that they are not. Thus, issue no.3 is also decided in the negative and against the petitioners.
In view of the above the impact of the the directions in the case of All India Judges' Association (supra) and the sixth amendment rules 2006 with retrospective effect upon alleged entitlement of petitioners to retrospective promotion and seniority is quite obvious as in view of the said dictum and rules they are not entitled to such promotion nor seniority . Issue no.(iv) is decided accordingly.
Issue No. (v) Now to consider the plea of the petitioners of W.P. No.16569/2016 that for 1998-2000 recruitment post for direct recruitment were only 24 and not 38 as had erroneously been calculated and advertised in June, 2000. The issue framed by us in this regard is as under:-
"(v) What was the cadre strength of High Judicial Services in the State of U.P. with break-up of posts under the promotional and direct recruitment quota, as also, vacancies therein and recruitment made against such vacancies for the recruitment year 1998 and thereafter till 2011 keeping in mind Rule 8 of the 1975 Rules and the dictum of the Supreme Court in Ashok Pal Singh's case especially para 40 thereof?"
As regards the controversy regarding determination of vacancies, the judgments in Sri Kant Tripathi, U.P. Judicial Service Association and Ashok Pal Singh's case are relevant. It is this dispute which spilled over to the selections upto 30.09.2001. The Supreme Court disposed of the Appeal of Sri Kant Tripathi in the following terms :-
"38. In view of our conclusions already arrived at, we dispose of all these cases with the following directions:
1. Appointments already made to the Higher Judicial Service, whether by direct recruitment or by promotion, need not be annulled and shall be continued.
2. With effect from 1988 recruitment and in all subsequent requirements which are the subject-matter of challenge before us, the High Court shall determine the number of vacancies available as on the relevant year of recruitment in terms of Rule 8, as already explained by us and then, allocate the percentage to different sources of recruitment, contained in Rule 6, and after such determination is made, then find out whether the appointments of direct recruits already made for that recruitment year are in excess of the quota or within the quota. If it is found that any appointment has been made in excess of the quota, then the said appointee would be allowed to continue, but his or her seniority will have to be reckoned only when he or she is adjusted in the next recruitment.
3. If in each recruitment year, posts were available in the quota of promotees and promotion has not been made, even though selection had been made under Rule 20, then the legitimate right of the promotees can not be denied and promotion must be made with effect from the date they should have been appointed.
4.This exercise has to be made for the recruitment of 1988 as well as for each subsequent recruitment that has been made.
5. Since the determination under Rule 8 is being made now, pursuant to the directions of this Court, in respect of the past recruitment years for which recruitment has been made, the expression "vacancies likely to occur" loses its importance and determination has to be made on the basis of actual vacancies available in any of such recruitment year.
6.So far as the recruitment of 1998 is concerned, advertisements having been issued for 38 vacancies being filled up by direct recruitment and the process of selection being already over, but no appointment having been made, we think it appropriate to direct that the appointment of the selected candidates may be made against the quota available to direct recruits calculated in accordance with the Rules in the light of our decision.
7. For all future appointments, the High Court must take steps to fill the vacancies of every recruitment year during that year itself. The High Court must determine the vacancies not only on the basis of the actual vacancies on the date of such determination but also take into account probable vacancies by reason of superannuation of officers in the next two years from the date. Once the vacancies are so determined, the percentage of the vacancies available for recruitment by direct recruitment and by promotion must be fixed and steps taken for filling up the same expeditiously. The number of vacancies available for the direct recruit quota must be advertised without any variation clause. The select list prepared both for direct recruits as well as for promotees prepared by the High Court will be operative only till the next recruitment commences with the fixation of the vacancies for the next recruitment year."
Based on the aforesaid as already stated earlier, a report dated 28.04.2002 was prepared by the High Court on the administrative side determining the vacancies, which was approved by the Full Court on 01.02.2004. This was put to challenge in U.P. Judicial Services Association case (supra) by Promotee Officers before the High Court at Lucknow by means of Writ Petition No. 316 (S/B) of 2004 again alleging incorrect calculation of vacancies for direct recruits in excess of their quota. This writ petition was decided on 25.08.2004. Paragraphs 55 and 56 of the said judgment are as under:-
"55. We, therefore, allow the writ petition, quash the resolution/decision of the Full Court dated 1.2.2004, in which the recommendations of the committee dated 24.08.2002 were accepted and direct that a fresh exercise be done in light of S.K. Tripathi's case to determine the vacancies and their distribution between the three source of recruitment as per their quota under the Rules for the recruitment year 1988 upto 1998 in accordance with the following guidelines:
(1)The number of the officers of Nyayik Sewa and Judicial Officers service who were already promoted and appointed against temporary post under Rule 22(3) or 22(4) of the Rules and whose appointments have been protected in O.P. Garg's case would be taken into consideration and the number of vacancies equal to the number of such officers shall be excluded from computation.
(2) While applying the ratio of judgment in O.P. Garg's case and distributing temporary as well as permanent vacancies, allocation of 15% vacancies of the quota of direct recruits under Rule 6 of the Rules, has further to be subjected to ceiling of 15% of the permanent strength of service, till the amendment in the rules came into effect i.e. 25th February, 1996.
(3) Wile making an exercise to find out (in accordance with direction No.2) as to whether the direct recruits taken into service are in excess of the quota or not, simultaneous exercise has to be done for compliance of direction No.3 in S.K. Tripathi's case and vacancies of the quota of promotees shall be deemed to have been filled up from the date they are entitled to promotion.
(4) 31 posts of the service which have been transferred to Uttaranchal w.e.f. 30.09.2001 shall be excluded while determining te4h strength of the service in order to work out 15% of the quota of direct recruits.
(5) Out of 13 unnotified vacancies, found by the office in the year 1988 only two vacancies equal to 15% of the quota of direct recruits be given to them instead of adjusting 5 appointments en block and again giving one out of eight vacancies to them applying 15% quota rule.
(6) The second proviso to Rule 6 be also given effect to as and when the occasion arises.
56. Since in our view the number of vacancies determined by the committee and the High Court for direct recruits would be quite different than the number of the vacancies determined in accordance with these directions, the opposite parties cannot be permitted to make appointments of 38 direct recruits for 1998 recruitment year. We are conscious of the hardship being caused to litigants on account of the non-availability of Judicial Officers in vacant courts. It is causing undue delay in disposal and is inflating the number of pending cases. On the other hand, the fate of the candidates, who have qualified in 1998 recruitment examination is hanging in uncertainty for long. The delay in promotion of the officers of Nyayik Sewa/Judicial Officers Service, must also be generating frustration. All these factors are not conducive to the smooth flow of stream of justice, which must keep on flowing, uninterrupted and unpolluted. With this in view we have tried to find out, if any appointments can safely be made from the available sources of recruitment, without affecting the rights of the members/candidates of the other source. We have found that as per petitioners' calculation only four vacancies would be available to direct recruits in 1998 recruitment year. This has been arrived at on the assumption that 20 direct recruits were already in excess before the recruitment year 1988. As per the direction of Supreme Court in Tripathi's case, the exercise of determination of vacancies is to be done for 1988, 19990, 1992-94 and 1998 years of recruitment. Thus, going beyond 1988 to find out excess appointments of direct recruits does not appear to be justified. Considering this way we feel that opposite parties may go ahead with appointments of direct recruits for 1998, not exceeding their number beyond twenty four. Similarly held Nyayik Sewa/Judicial Officers Service may also be made. These appointments shall however be subject to final determination of vacancies as directed above. The inter-se seniority of these officers shall also be subject to allocation of vacancies of their quota to them. Until redetermination of vacancies in the manner stated the opposite parties shall not make any further appointments in recruitment years 1998, other than those permitted above."
The High Court quashed the report dated 24.08.2002 as also resolution of the Full Court dated 01.02.2004 and directed a fresh exercise to be undertaken in the light of Sri Kant Tripathi's case to determine the vacancies and their distribution between the then existing three sources of recruitment as per their quota under the Rules 1975 as amended in the year 1996 for the recruitment year 1998 as per the guidelines laid down by it in paragraph 55. In paragraph 56 it inter-alia observed that opposite parties cannot be permitted to make appointment against 38 posts for direct recruitment in the year 1998. Accordingly it permitted appointments of direct recruits against only 24 posts along with 334 promotions, which were made subject to final determination of vacancies as directed by it. It was observed that inter-se seniority of the officers shall also be subject to allocation of vacancies of their quota and until re-determination of vacancies in the manner directed by it is made the opposite parties were restrained from further appointment in respect of recruitment year 1998 other than those permitted by it. It is these 38 vacancies advertised in june 2000 which are the bone of contention.
On account of these directions 10 of the respondents-direct recruits could not be appointed though 20 others- direct recruits of the same selection who are also respondents got appointed against the aforesaid 24 vacancies (out of alleged 38), subject to the above.
The said judgment dated 28.08.2004 was put to challenge before the Supreme Court in the case of Ashok Pal Singh (supra) which was decided on 13.09.2010.
As observed in Ashok Pal Singh, the promotee officers inter alia disputed the finding of the High Court on determination of the 38 vacancies which were available in the year 1998. Some of the respondents (10 direct recruits) of Writ Petition No. 16569(SB) of 2016 before us, whose appointment had been restrained by the high court vide its judgment dated 25.8.2004, which was under challenge, had also filed an appeal against the said judgment, which was also considered along with Ashok Pal Singh's case. Relevant extract of Ashok Pal Singh (supra) are as under:-
"40. The first part of the third direction in the impugned order depends upon the result of the exercise undertaken in pursuance of its second direction. We have held that Directions (1) and (2) in the impugned order of the High Court are contrary to the decision in [O.P. Garg v State of U.P. (1991 Supp (2) SCC 51]. In view of it, the question of undertaking any exercise as per the second direction of the impugned order does not arise. All that therefore remains out of the third direction in the impugned order is reiteration of Direction (3) of Sri Kant Tripathi (supra). The third direction in the impugned judgment to the extent it reiterates Direction (3) in Sri Kant Tripathi (supra) has to be upheld. There is no question of unfilled vacancies being carried forward for the purpose of fixing the number of officers to be taken at the next recruitment. The total vacancies to be filled at a recruitment shall have to be filled by applying sub-rule (1) and (2) of Rule 8 and its proviso. In that sense all vacancies, which are not filled by direct recruitment, get filled by promotion and there will be no carry over. There is only a limited "carry over" of unfilled direct recruitment vacancies in the manner stated in Rule 8(2) and the first proviso thereto.
41. We may illustrate the effect of the directions in Sri Kant Tripathi (supra) with reference to the figures arrived at in the Report of the Sub-Committee, abstract of which is given in the Table in para 9 above (by assuming that figures specified are correct). For the 1988 recruitment, the vacancies are shown as 314, the actual recruitment is shown as 24+3 by direct recruitment and 191 by promotion and the carried forward unfilled vacnacies as 96. If there were 314 vacancies and what is filled by direct recruitment was 27, the remaining 287 vacancies should have been filled up by promotions instead of 191 having regard to Rule 8(2). There is no question of any vacancies being carried forward for the 1990 recruitment, unless sufficient numbers of candidates are not available for filling the posts even by promotion also. Therefore the vacancies to be filled in 1990 (with expected vacancies upto 31.12.1992) should be treated as only 44 of which promotees' share would be 37 and the share of direct recruits would be 7. As only 5 were appointed by direct recruitment, the remaining 39 ought to be filled by promotion. In regard to the 1998 recruitment, if 15% of the strength of the service is 120 and the number of direct recruits actually working were only 82, there is nothing wrong in directly recruiting 38 out of the actual vacancies of 176. We have given these examples with reference to the figures given by the Sub-Committee in its Report and it should not be assumed that the figures given by the Sub-Committee in its Report and it should not be assumed that the figures given by the Sub-Committee have been accepted by us to be correct. In fact the figures may have to be reworked with reference to the other directions of the High Court which have been upheld by us. Be that as it may.
Conclusion
42. The 1975 Rules are vague and complicated. The four rounds of litigation are the result of absence of clear and simple rules. The High Court Administration had the difficult task of harmonizing the Rules, the directions of this Court in O.P. Garg (supra) and the directions of this Court in Sri Kant Tripathi (supra). The High Court Sub-Committee apparently made a sincere effort to implement the Rules and the directions. Unless the exercise by the High Court through its Sub-Committee (approved by the Full Court of the High Court), is arbitrary or is in non-compliance with any specific direction of this Court, it will not be open to question. Be that as it may.
43. In view of our aforesaid findings, we all these appeals in part as follows:
(i) Directions (1) and (20 in para 55 of the impugned order dated 25.08.2004 are set aside;
(ii) Direction (3) in para 55 of the impugned order dated 25.08.2004 is restricted to reiteration of Direction (3) issued in Sri Kant Tripathi (supra) and
(iii) Directions (4), (5) and (6) in the impugned order dated 25.08.2004 are upheld.
(iv) The consequential exercise directed by the High Court should be restricted to the directions which have been upheld,
(v) None of the appointments already made to the Higher Judicial Service, whether by direct recruitment or by promotion, shall be annulled, but shall be continued, even if the appointment is found to be in excess of the quota, subject to the condition that the seniority of such excess appointee will be reckoned from the date on which he becomes entitled to be adjusted at the subsequent recruitment(s). Any elevation to the High Court on the basis of seniority already given shall not be affected.
44. We request the High Court to give a quietus to the long-drawn dispute, by giving effect to Directors (4) to (6) of the impugned order and Direction (3) in Sri Kant Tripathi (supra) without any delay.
45. All pending applications stands disposed of."
Thus,directions 1 and 2 issued by the High Court vide its judgment dated 28.5.2004 in the case of U.P. Judicial Officer Association (supra) were set aside. Direction no.(3) was restricted in its application in terms of direction (3) in Sri Kant Tripathi's case, directions no. 4, 5 and 6 were up held and were to be implemented while undertaking re-determination of vacancies .
In pursuance to the said judgment as already stated a re-determination of vacancies took place by a Committee of the High Court referred as the Committee of 2010 which inter-alia found the vacancies of direct recruits to be 34 for the selection year 1998 and based on this finding it opined that 14 direct recruits (in fact 10 respondents herein) who had been denied appointment on account of pendency of dispute in this regard and the directions of the Division Bench of the High Court dated 25.08.2004 prohibiting their appointments, should be given direct appointment with retrospective effect from the date the last of the 20 direct recruits of the same batch had been given appointment i.e. Tanveer Ahmad on 04.01.2007. It also recommended retrospective promotion of members of U.P. Nyayik Sewa to HJS w.e.f date of availability of vacancy in their quota and accordingly an order wassed on 14.9.2011, presumably in view of direction no.3 in Sri Kant Tripathi as reiterated in Asok Pal Singh.
By a subsequent report dated 23.09.2015 it was found that number of posts for DRs was only 30 for 1998-2000 Recruitment against which 30 direct recruits were adjusted. As regards promotional posts it was found that 29 fictitious vacancies (paragraph 115) had been taken into consideration by the committee-2010 on account of retirement etc. of persons who in fact had never been regularly promoted against a substantive vacancy in the service but were promoted against adhoc posts in F.T.C., for giving the benefit of retrospective promotion and seniority, which had to be rectified, meaning thereby,, 29 promotees placed above the direct recruits of 1998-2000 recruitment against such non-existent vacancies would have to go down as there were no vacancies for them on the relevant dates in their quota, however, at the same time it found 17 vacancies available under the said quota prior to 21.3.2002 i.e. prior to coming into force of the sixth amendment rules 2006, accordingly, it adjusted 14 promotees against them and recommended revocation of order dated 14.9.2011 in respect of remaining 15 including the petitioners of writ petition no. 16569/2016. Though we threw the net wide while framing the issue essentially the dispute is with regard to aforesaid vacancies.
It is not out of place to mention that recruitments to HJS which are relevant are 1998-2000, 2007 and 2009 Recruitment. Recruitment has also taken place in 2014 but it is not relevant.
On a perusal of the final seniority report, 2015 we find that the Committee determined the cadre strength of the Higher Judicial Service up to 30.09.2001 as under:-
94.The Committee-2010 noted that the facts and figures with regard to strength and vacancies were placed before Apex Court in Ashok Pal Singh (supra). However, the Supreme Court found certain inaccuracies therein and said in para 41 as under:
"It should not be assumed that the figures given by the special committee have been accepted by us to be correct. In fact the figures may have to be reworked with reference to the other directions of the High Court which have been upheld by us."
95. The Committee-2010 then also noted, as a matter of fact that figures of sanctioned strength made available by Registry before earlier Committee were not correct. Relevant Government orders either were not considered or some vacancies were duplicated or ignored and there were several other inaccuracies. Then the first exercise which was undertaken by Committee-2010 was determination of sanctioned strength of HJS from the date of enforcement of Rules, 1975 till 1998-2000 recruitment.
"96. The Committee 2010 after examining Government Orders, found sanctioned strength in HJS, commencing from enforcement of Rules, 1975 till 1998-2000 Recruitment as per the following chart. To be more precise and for more clarification, we may mentioned progressive cadre strength on and after 5.4.1975 i.e., on and after enforcement of 1975 Rules till 1988-2000 Recruitment i.e. upto 30.09.2001 as under:
Date/Year Number of posts existed/ created Progressive total 5.4.1975 236 236 31.12.1975 3 239 1976 72 311 1977-78
-311 1979 1 312 1980 48 360 1981 13 373 1982 50 423 1983 7 430 1984 5 435 1985 2 437 1986 8 445 1987 110 555 1988 2 557 1989 33 590 1990 5 595 1991 1 596 1992
-
596 1993 1 597 1994 56 653 1995 13 666 1996 4 670 1997 78 748 1998 32 780 1999 25 805 2000 9 814 2001(upto 30.09.2001) 38 852-36=816
97. Since 36 posts were allocated to Uttaranchal w.e.f. 30.09.2001, therefore, Committee-2010 took effective strength as on 30.09.2001 as 816."
This was in terms of the Judgement in Shrikant Tripathi and Ashok Pal Singh's case (supra). Relevant extracts of paragraph 104, 105 and 106 of the impugned report of the committee dated 23.9.15 are as under:-
104. Thereafter, it determined vacancies for subsequent recruitments. For Recruitment 1988, actual vacancies considered by Committee-2010, were for the period 24.05.1984 to 31.12.1990. The chart showing determination of vacancies of recruitment years from 1988 onwards by Committee-2010 is as under:
Sl.
Recruitment Year/Batch UPNS JO DR Total 1988 238 46 24 308 1990 28 3 9 40 1992-94 246
-20 266
1998-2000 171
-34 205
Grand Total 683 49 87 819
105.The committee 2010 also consumed five vacancies against 5 DR of 1978 and 1982 Recruitment who were appointed under judicial orders. Further 10 Drs of 1984 Recruitment were assigned seniority since DR of that Recruitment were not assigned seniority in SL 1992. Therefore, total number of officers whose seniority was determined by Committee 2010 was 834 which included 683 UPNS, 49 JO and 102 DR (87+5+10). At the time of finalizing Sl.2011, 14 DR of 1998-2000 Recruitment were awaiting appointments. Therefore, vacancies at sl. no. 772 to 785 were left vacant for these officers.
Present Exercise:
106. We are informed that subsequently only ten DR joined against the slots at serial no. 772 to 781. Remaining four vacancies are to be dealt with now by this Committee under Rule 8(2) of Rules, 1975. The same would go to UPNS".
Based on the aforesaid it determined the available vacancies as under:-
Sl.
Date of vacancy Now to be added To be deducted Effect Cumulative effect
1. 06.2.1986 Death of Sri Gauri Shanker, ASJ
-1
-1
2. 31.5.1989 Ret. of Sri Rati Ram
-1
-2
3. 10.8.1991 Death of Sri B.D. Kandpal
-1
-3
4. 19.6.1992 Death of Sri Ram Kishore Sagar
-1
-4
5. 5.7.1992 Death of Sri Shyam Murti Singh
-1
-5
6. 15.10.1993 Appointment of Sri Phool Singh-I in I.T. Appellate Tribunal as Judicial Member (Lien terminated on 08.10.1995) +1
-4
7. 30.4.1995 Ret. of Sri Dharam Paul
-1
-5
8. 30.06.1995 Ret. of Sri Rajeshwar Prasad Gupta-II +1
-4
9. 10.7.1995 Compulsory Ret. of Sri Kali Charan
-1
-5
10. 18.1.1996 Compulsory Ret. of Sri Kali Ram
-1
-6
11. 8.4.1996 Compulsory Ret. of Sri R.C. Shukla-II
-1
-7
12. 17.4.1997 Removal of Sri O.P. Rudra
-1
-8
13. 17.4.1997 Dismissal of Sri R.C. Shukla-I
-1
-9
14. 23.4.1997 Compulsory Ret. of Sri Bahoram Singh
-1
-10
15. 30.4.1997 Removal of Sri B.S. Yadav
-1
-11
16. 30.4.1997 Ret. of Sri Babu Singh
-1
-12
17. 5.7.1997 Removal of Sri Pooran Chandra Joshi
-1
-13
18. 11.7.1997 Removal of Sri V.P. Singh
-1
-14
19. 8.9.1997 Creation of 20 Courts/Posts of Special Judges for trial of SC/ST cases in U.P. under G.O.No. U.O./29-VII-Nya-9(Budget)-97-4(SND),97 Samaj Kalyan anubhag-3 dated 8.9.1997 (21 had been taken into account against creation of 20 Courts)
-1
-15
20. 01.12.1997 Appointment of Sri Prem Narain Parashar in I.T. Appellate Tribunal as Judicial Member (Lien terminated on 01.12.1999) +1
-14
21. 01.12.1997 Appointment of Sri Ram Bahadur-I in Ministry of Law & Justice (Lien terminated on 30.12.1999) +1
-13
22. 16.12.1997 Removal of Sri Jagdish Prasad-II
-1
-14
23. 4.3.1998 Compulsory Ret. of Sri Raj Deo
-1
-15
24. 31.5.1998 Compulsory Ret. of Sri Kapoor Chand
-1
-16
25. 31.7.1998 Compulsory Ret. of Sri S.L. Shami
-1
-17
26. 11.8.1998 Compulsory Ret. of Sri Pratap Singh-III
-1
-18
27. 30.09.1998 Ret. of Sri Daya Ram-II
-1
-19
28. 17.12.1998 Compulsory Ret. of Sri Bharihari Prasad
-1
-20
29. 25.12.1998 Compulsory Ret. of Sri Ravindra Nath Verma
-1
-21
30. 6.1.1999 Compulsory Ret. of Sri Munna Lal
-1
-22
31. 37.7.1999 Ret. of Sri Narayan Singh-I
-1
-23
32. 30.9.1999 Ret. of Sri S.K.S. Sengar
-1
-24
33. 31.12.1999 Ret. of Sri Shamshad Ali
-1
-25
34. 31.1.2000 Ret. of Sri R.L. Shankhwar
-1
-26
35. 16.3.2000 Reversion of Smt. Sushma Kumar Solanki in the cadre of Civil Judge, Sr.Div. Vide Govt. Notification No.198/II-4 2000-26/2(3)/2000 dated 16.3.2000
-1
-27
36. 31.8.2000 Ret. of Sri S.D.N. Prabhakar
-1
-28
37. 31.12.2000 Ret. of Sri Narpati Lal
-1
-29
38. 30.6.2001 Ret. of Sri P.N. Misra
-1
-30
39. 6.7.2001 Death of Sri Shital Singh
-1
-31
115. We have one vacancy to be adjusted against SL-1992 and here -31+3= -28 were to be adjusted leaving a total balance of 29 vacancies which had to be adjusted from already determined vacancies by Committee-2010 since these vacancies did not occur at all and we have to rectify the said error.
116. Revised available vacancies for 1988 Recruitment to 1998-2000 comes as under:
Sl.
Recruitment year UPNS Earlier/revised JO Earlier/revised DR Earlier/revised Total Earlier/revised
1.
1988 (31.7.1984 to 31.12.1990) 238/236 46/46 24/24 308/306
2. 1990 (01.01.1991 to 31.12.1992) 28/25 3/3 9/9 40/37
3. 1992-94 (01.01.1993 to 31.12.1997) 246/237
-
20/20 266/2574. 1998-2000 (01.01.1998 to 30.09.2001) 171/158
-
34/30 205/188GRAND TOTAL 683/656 49/49 87/83 819/788
117. The revised vacancy charts of 1988 Recruitment to 1998-2000 Recruitment are collectively enclosed as Annexure-B.
119. Rectified SL-2011, now, contains total 774 officers. It does not include 30 DR of 1998-2000 Recruitment who have been given position in combined current seniority list which now we are preparing alongwith 2007 and 2009 Recruitment."
As is evident from the aforesaid, for the period 01.01.1998 to 30.09.2001 (1998-2000), as against earlier determination of 34 vacancies vide seniority list of 2011 the figure was revised to 30. This was, as against initial figure of 38 which was in dispute as already discussed earlier.
The Committee also took into consideration the effect of Rule 8(2) of the Rules, 1975 as required by the dictum of the Supreme Court in Shrikant Tripathi and Ashok Pal Singh's case as is evident from Paragraph 105 and 106 of the Final Seniority Report, 2015.
The determination of vacancies for the recruitment 2007 and 2009 was done by the Committee vide Paragraph nos. 123 to 131 of its report, 2015 which read as under:-
"123. First of all we proceeded to determine vacancies for Recruitment 2007 and 2009. We prepared and published a report dated 07.02.2012. Subsequently, we found that certain vacancies which have been taken note of, in earlier determination of vacancies in Recruitment 2007 and 2009, actually either did not occur or some vacancies were omitted. These are shown in the following chart:
Sl.
Date of vacancy Now to be added To be deducted Effect Cumulative effect
1.
17/18.2.2002 Death of Sri Subedar Singh Nimesh
-1
-1
2. 28.2.2002 Ret. of Sri Vijai Kumar Srivastava
-1
-2
3. 31.7.2002 Ret. of Sri Shrish Chandra Gupta
-1
-3
4. 31.12.2002 Ret. of Sri S.P. Shukla (22(1) under reversion)
-1
-4
5. 31.1.2003 Ret. of Sri Madan Chandra Gupta
-1
-5
6. 28.2.2003 Ret. of Sri Shri Raj Singh
-1
-6
7. 31.5.2003 Ret. of Sri Yas Pal Luckria
-1
-7
8. 19.7.2003 Reverted to Next below rank Sri S.C. Srivastava
-1
-8
9. 31.10.2003 Ret. of Sri Pratap Singh-I +1
-7
10. 23.3.2004 Dth. of Sri Hari Singh-II
-1
-8
11. 31.3.2004 Ret. of Sri Mohd. Athar
-1
-9
12. 31.7.2007 Ret. of Sri Onkar Nath Gupta
-1
-10
13. 31.1.2005 Ret. of Sri Bhagwati Prasad
-1
-11
14. 31.3.2005 Ret. of Sri R.K. Shukla
-1
-12
15. 17.5.2005 Compulsory Ret. of Sri Radhay Shyam Gupta
-1
-13
16. 17.5.2005 Compulsory Ret. of Sri Chandrama Singh
-1
-14
17. 13.10.2005 Reversion to next below rank of Sri Krishna Deo Srivastava vide Govt. Office Memo. No. 3971/II-40 5-26/2(37)/85 dated 13.10.2005 +1
-13
18. 28.2.2006 Ret. of Sri Om Prakash Rudra
-1
-14
19. 31.7.2007 Ret. of Umesh Chandra-II
-1
-15
20. 31.1.2010 Ret. of Sri Dina Nath Prasad
-1
-16
124. The aforesaid chart would show that 16 vacancies in the aforesaid two Recruitments were wrongly included though they did not occur and could not have been included since officers who were not appointed under Rule 22(1) of 1975 Rules and were not assigned seniority in earlier seniority list, but their vacancies had been taken into account on their retirement etc., which was patently erroneous. In view thereof, we have earlier and revised determination of vacancies as under:
Earlier determination:
Sl.
Recruitment Period UPNS 85%/ 50% LCE 25% DR 15%/25% Total
1. 2007 1.10.2001 to 20.3.2002 19 (85%) 0 3/(15%) 22 21.3.2002 to 31.12.2008 155 (50%) 77 78(25%) 310
2. 2009 01.01.2009 to 31.12.2010 55(50%) 27 27(25%) 109 Grand Total 229 104 108 441 Revised determination:
Sl.
Recruitment Period UPNS 85%/ 50% LCE 25% DR 15%/25% Total
1. 2007 1.10.2001 to 20.3.2002 17 (85%) 0 3(15%) 20 21.3.2002 to 31.12.2008 148 (50%) 74 74(25%) 296
2. 2009 01.01.2009 to 31.12.2010 54(50%) 27 27(25%) 108 Grand Total 219 101 104 424
125. As a mater of fact, in Recruitment 2007 no UPNS officer could qualify in LCE and only 41 DR could be recruited. Therefore, 74 vacancies of LCE and 36 vacancies DR also became available to UPNS under Rule 8(2), hence total vacancies available to UPNS came to 275
126. Similarly in Recruitment 2009, 34 DR were recruited while only 3 UPNS could qualify in LCE. 7 vacancies from UPNS, therefore, got adjusted in DR quota and unfilled vacancies of LCE went to credit of UPNS. Thus, total available vacancies to Recruitment 2009 came to UPNS-71, DR-34 and LCE-3.
127. Revised vacancy chart of Recruitment 2007 and 2009 is appended as Annexure-D'.
128. Now we come to the question of determination of vacancies. Here it would be worthy to notice, as already said, that there is a division of period from 01.10.2001 to 20.03.2002 and from 21.03.2002 to 31.12.2008. This is on account of amendment of Rules 1975. 17 vacancies in the quota of UPNS occurred between 01.10.2001 to 20.03.2002 i.e. before aforesaid amendment of Rules 1975. In our view, maintaining the earlier principles, 17 UPNS officers should be placed against these 17 vacancies. Out of 29 officers, who have been excluded from rectified SL-2011, we find that 14 would get vacancies against these 17 vacancies. Three officers i.e. Sri Yogendra Singh-I, Sri Dinesh Kumar Sharma-I and Sri Dileep Singh who were also substantively appointed in 2005 are entitled to allocation of vacancies against these 17 vacancies. 14 officers as per recommendation of Sl.-2011 were already given substantive appointment w.e.f. 24.10.2001 vide Government Order dated 14.02.2011, though they were actually appointed substantially in 2005 and 2008. We recommend modification of the said order to the extent of these 14 officers and further substantive appointment of three other officers from the date as mentioned in the following chart:
Sl.
Name of the officer S/Sri Existing date of substantive appointment Revised date of substantive appointment
1.
Deo Kant Tyagi 24.10.2001 31.10.2001
2. Sukh Ram 24.10.2001 31.10.2001
3. Shyam Bihari Sharma 24.10.2001 31.12.2001
4. Rajendra Babu Sharma 24.10.2001 31.12.2001
5. Badrud Duja Naqvi 24.10.2001 31.12.2001
6. Pradeep Kumar Srivastava 24.10.2001 ½.01.2002
7. Richh Pal Singh 24.10.2001 31.01.2002
8. Jai Mangal Sharma 24.10.2001 31.01.2002
9. Anil Kumar 24.10.2001 31.01.2002
10. Ram Krishna Upadhyay 24.10.2001 31.01.2002
11. Ashwani Kumar Singh 24.10.2001 31.01.2002
12. Chaitanya Kumar Kulshrestha 24.10.2001 (notional) 31.01.2002
13. Shik Kumar Singh-II 24.10.2001 31.01.2002
14. Mahesh Prasad Srivastava 24.10.2001 14.02.2002
15. Yogendra Singh-I 13.04.2005 26.06.2002
16. Dinesh Kumar Sharma-I 13.04.2005 05.08.2002
17. Dileep Singh 13.04.2005 30.04.2003
129. Out of these 17 officers, 14 were already shown senior to DR of 1998-2000 Recruitment in SL-2011. Therefore, as a matter of facts, towards inter se seniority there would be no difference at all. 15 UPNS officers who were earlier above DR of 1998-2000 Recruitment in SLO-2011, would now go below them and three other UPNS officer shall be placed above. In fact, there would be no substantial difference so far as DR of 1998-2000 Recruitment are concerned and on the contrary, now they would get seniority over 15 UPNS officers, who were earlier placed senior.
130. 15 UPNS officers who were also given substantive appointment, as per recommendation of SL-2011 w.e.f. 24.10.2001 and were so actually appointed by Government Office Memo. No. 3164/II-4-2011-32(1)/2005 T.C. dated 14.09.2011, we recommend that the said Government order in respect of following 15 officers of UPNS be revoked.
Sl.
Name of the Officer S/Sri
1. Smt. Kalpana Misra
2. Smt. Saroj Yadav
3. Satish Chandra Sharma
5. Yogendra Singh-II
5. Smt. Prem Kala Singh
6. Pradeep Kumar Consul
7. Nand Lal
8. Madhu Sudan Wadhwa
9. Surendra Pal Goel
10. Mohd. Zaheer Uddin
11. Shiva Prasad
12. Raj Kumar Tewari
13. Rajiv Goel
14. Anil Kumar Pundir
15. Arvind Kumar Jain.
131. In the current seniority list, names of DR of 1998-2000 who were issued appointment letter in May 2005 onwards will be placed in the same manner as it was in Sl-2011 after 17 UPNS officers who are allocated vacancies of 2007 Recruitment occurred upto 20.03.2002.
In paragraph 128 the report states that there is a division of period from 01.10.2001 to 20.03.2002 and from 21.03.2002 to 31.12.2008. This is on account of amendment of Rules, 1975 (6th amendment Rules, 2006) w.e.f. 21.03.2002. It contains a finding that 17 vacancies in the quota of U.P. Nyayik Sewa (UPNS) occurred between 01.10.2001 to 20.03.2002 i.e. before the aforesaid amendment and accordingly placed 17 UPNS Officers against these vacancies as already discussed earlier.
Apart from the challenge to determination of vacancies having been given up, we are also of the view that as far as the determination of vacancies whether up to 30.09.2001 or thereafter, is concerned, the issues are purely factual and from the exercise conducted by the Committee and the report submitted we do not find any cause to interfere with the same on this issue. The exercise conducted by the Committee was a gigantic one and we appreciate the strenuous efforts in this regard. However, as far as the assignment of seniority based on such exercise by adjustment of direct recruits or promotees enblock against such vacancies based on date of order of their appointment or joining is concerned, we have our reservations which we shall express while considering and deciding the other issues pertaining to application of Quota- Rota Rule, adherence required to the dictum of the Supreme Court in All India Judges' Case and the purport, import and application of Rule 26 of the Rules, 1975. We decide issue No. V accordingly.
Issue Nos. (vi), (vii) and (viii) Petitioners of W.P. No. 16569/2016 who are promotees of 2008 are also aggrieved by appointment of 10 direct recruit-respondents in 2011-2012 with retrospective effect from 4.1.2007 thereby allegedly affecting their seniority as these appointees have been given seniority notionally from date of such notional appointment. In this regard the issues framed by us are as under:-
(vi) Whether the respondent direct recruits could be given seniority w.e.f. a date prior to the date of their appointment order under Sub-Rule (1) and (2) of Rule 22, i.e., before they were born in the cadre/service, in the teeth of Rule 26 of the 1975 Rules and the law laid down by the Supreme Court in a catena of decisions in this regard, if so, the factual and legal basis for the same?
(vii) Whether the vacancies in the direct recruitment quota existed on relevant dates from which the respondents-direct recruits have been given appointment and seniority, even though the appointment letters had been issued subsequently at a later date?
(viii) Whether the direct recruits were appointed in excess of their quota, if so, it's effect on seniority in view of paragraph 43 (v) of Ashok Pal Singh's case entailing denial of seniority from the date of such excess recruitment/appointment?
Even if the petitioners have failed with regard to their own claim to retrospective promotion, if, they succeed on these issues they may still get seniority over at least 10 respondents. As already noticed earlier while discussing the facts of the case an advertisement was issued in the year 2000 inviting applications for direct recruitment against 38 vacancies. Determination of these vacancies was put to challenge by the promotee officers. The matter ultimately came up before the Supreme Court in Sri Kant Tripathi's case (supra), consequently, a re-determination was made and direct recruitment vacancies were held to be 38 but it was put to challenge before a Division Bench of this Court in the case of U.P. Judicial Officer Association which was decided on 25.08.2004, wherein, only 24 appointments were permitted as against 38 vacancies advertised for direct recruitment. As regards other posts, redetermination was to take place which took place subsequently in the light of the judgment in the case of Sri Kant Tripathi's case and Ashok Pal Singh's case (decided on 13.9.2010) as already referred earlier, and the committee of the High Court in its report of 2010 arrived at the conclusion that vacancies for direct recruitment in 1998-2000 were 34. In the interregnum as against 24 appointments offered to the direct recruits against these 34 vacancies in terms of judgment dated 25.08.2004 only 20 could be appointed who are arrayed as respondents herein, but, remaining 14, even though selected in 2004, could not be appointed on account of pendency of litigation at various levels whether before the High Court or Supreme Court, that too, initially at the behest of promotee officers such as the petitioners herein, Thus, apparently the respondent-direct recruits were not at all at fault. Accordingly, a recommendation was made by the Committee-2010 for retrospective appointment of remaining 14 w.e.f. 04.01.2007 i.e. the date on which the last of the 20 appointees namely Sri Tanweer Ahmad joined. While doing so the committee of the High Court was persuaded by the judgment in the case of Dr. A.R. Sirkar Vs. State of U.P. reported in 1993 Supp (2) SCC 734, wherein, in similar circumstances when an interim order had been passed by the Court that too at the behest of promotee officers on account of which the direct recruits could not be appointed for no fault of theirs, specially as the promotees were themselves responsible for delaying their appointment, the Supreme Court sustained retrospective appointment of direct recruits with consequential seniority. It is not out of place to mention that in the case at hand out of the 20 selectees of the year 2000, 19 were appointed in 2005. In the light of the aforesaid the appointments were offered to 14 direct recruits in December 2011 and January 2012 but with retrospective effect i.e. 04.01.2007, but only 10 came to be appointed. But for the division bench judgment dated 25.8.2004 they would also have been appointed in 2005 itself along with others.
Much mileage was sought to be drawn by Sri Mathur on account of the fact that the committee while considering this aspect of the matter had mentioned that there was an interim order staying/restraining the appointment of direct recruits, whereas in fact it was a final judgment, therefore, the judgment of Dr. A.R. Sirkar was not applicable. This argument seems to have been advanced only for rejection as no substantial and material difference occurs whether appointment of direct recruits was restrained by way of an interim order or final judgment, specially when the effect is the same. What is of essence is that direct appointments were delayed on account of the challenge to the determination of vacancies by the promotee officers such as petitioners. Reference may be made in this regard to the observation of the Supreme Court in the case of Dr. A.R. Sirkar (supra) as contained in paragraph 6 of the report which is quoted below:-
"6. The decision of the High Court is primarily based on the proviso to Rule 20(1) extracted earlier which clearly states that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be the date of his substantive appointment, otherwise the relevant date will be the date of the order of appointment. The order of October 31, 1989 which has been reproduced in the judgment of the High Court does not specify any back date and, therefore, ordinarily the appellant's appointment would be taken as from the date of issuance of the order. But the order clearly states that the appointment is on the basis of selection by direct recruitment. It may be mentioned that in the counter-affidavit filed on behalf of the State Government it has been clarified in paragraph 3(k) that the direct recruitment was for the vacancy of 1982-83 but on account of a clerical omission this fact was not mentioned in the appointment order. This statement clarifies that although the appointment was made on October 31,1989, it related to the vacancy of 1982-83. That is even otherwise obvious from the fact that the advertisement issued in December 1984was for filling up the vacancy of the year 1982-83 by direct recruitment. There can, therefore, be no doubt whatsoever that the appointment of the appellant was for the vacancy of 1982-83. Had it not been for the intervening stay order granted by the High Court in Writ Petition No. 1545 of 1986, the appellant would have been appointed long before the regularization of promotion of respondents 4 and 5 under 1988 Rules. Respondents 4 and 5 who were instrumental in seeking the interim order from the High Court staying the implementation of the select list cannot be allowed to take advantage of their own wrong. The dismissal of their petition on July, 24, 1989 goes to show that they had successfully blocked the regular entry of the appellant on a substantive vacancy of the year 1982-83 by filing an untenable writ petition. The interim order passed by the High Court kept the appellant out from securing a regular appointment on a substantive vacancy and in the meantime respondents 4 and 5 by virtue of the 1988 Rules secured regularization of their ad hoc appointments as Professors of Medicine. It is therefore, obvious that on the one hand they precluded the appellant from occupying the substantive vacancy of the year 1982-83 and on the other they got their ad hoc appointments regularized under the 1988 Rules. If the intervening stay order had not prevented the appellant's appointment to the substantive vacancy, there can be no doubt that the appellant would have occupied that post earlier in point of time if Dr. Aggarwal was not prepared to join. In that case, the appellant would have been senior to respondents 4 and 5. One cannot loose sight of the fact that respondents 4 and 5 had competed along with the appellant for selection to the post as a direct recruit but had failed. It, therefore, stands to reason, both in principle and in equity that respondents 4 and 5 are not permitted to take advantage of the situation of their creation. Even if the Act is taken as non-est and the rules framed thereunder are ignored, on first principles also, there is no reason why the appellant should be denied the benefit of appointment in the vacancy of 1982-83 on Dr. Aggarwal declining to join. Throughout in the seniority list prepared by the State authorities the appellant was shown to be senior to respondents 4 and 5. The High Court, however, went strictly by the language of the proviso to Rule 20(1) and concluded that since the appointment order of the appellant did not specify the back date, the seniority of the appellant must be reckoned from the date of the order of appointment. But the High Court failed to realize that the selection of the appellant was for the vacancy of 1982-83 meant for direct recruits. The appellant was appointed under the order of October 31,1989 pursuant to his selection and empanelment in the select list. Therefore, the appellant's appointment must relate to the vacancy of 1982-83. Even the appointment order specifically states that the appointment is ''on the basis of the selection by direct recruitment'. The draftsman had, therefore, the vacancy of 1982-83 in mind. It is true that the appellant was at serial No.2 and could claim placement in the slot of 1982-83 only if Dr. Aggarwal declined to join. Unfortunately because the intervening stay order the wish of Dr. Aggarwal could not be ascertained till after the dismissal of the writ petition on July 24, 1989. We are, therefore, of the view that the High Court was not right in fixing the date of entry of the appellant into the regular service as October 31,1989."
The factual scenario in this case is not much different from the one existing in Dr. A.R. Sirkar case, not only the direct appointment was delayed on account of promotees, but, in this milieu the petitioners got promoted earlier on 11.08.2008 while claim of direct recruits was kept languishing on account of pendency of the dispute at the behest of the promotees. The judgment of this Court dated 25.08.2004 in the petition filed by promotees Officers that only 24 direct recruits of 1998-2000 could be appointed stood belied by the decision of the Supreme Court in Ashok Pal Singh's case (supra) and the exercise for determination of vacancies following it, therefore, on the same analogy the respondents were entitled to the benefit granted as no one should suffer on account of an error of the court. As regards seniority it is to be determined as per rule 26.
Apart from the above, it is also relevant to refer to the judgment in the case of Balwant Singh Narwal & others vs. State of Haryana reported in (2008) 7 SCC 728 where also a similar factual position had arisen. Reference may be made in this regard to paragraphs 7, 8,9 and 10 of the said judgment which are as under:-
"7. The High Court rejected the writ petition by the impugned order dated 5.10.2004. It held that appointments of Respondents 4 to 16 were in regard to an advertisement issued prior to the advertisement. In response to which the appellants were selected; that the actual appointment of Respondents 4 to 16 was delayed not for want of any vacancies but on account of litigation which were beyond their control; that but for the decision rendered by the learned Single Judge on 4.4.1994 declaring selections beyond 18 to be illegal, they would have been appointed on 2.6.1994 when the other candidates from the said merit list were appointed; and that therefore, the State Government was justified in giving Respondents 4 to 16 benefit of notional seniority with effect from 2.6.1994 and placing them above the appellants who were appointed against subsequent vacancies/advertisements.
8. The said decision is challenged by the appellants reiterating the contentions urged before the High Court. Reliance was also placed on the decisions of this Court in S.K. Saha v. Prem Prakash Agarwal reported in (1994) 1 SCC 431, Chandra Prakash (Dr.) v. State of U.P. reported in (2002) 10 SCC 710 and State of Uttaranchal v. Dinesh Kumar Sharma reported in (2007) 1 SCC 683 and other cases which lay down the general proposition that selection by the Public Service Commission is merely recommendatory and does not imply automatic appointment and that the appointing authorities should not give notional seniority without valid reason, from a retrospective date, which would affect the seniority of those who have already entered service.
9. There is no dispute about these general principles. But the question here is in regard to seniority of Respondents 4 to 16 selected on 1.10.1993 against certain vacancies of 1992-1993 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1.10.1993 were appointed on 2.6.1994. Considering a similar situation, this Court, in Surendra Narain Singh v. State of Bihar reported in (1998) 5 SCC 246 held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently,will have to be placed above those who were appointed against subsequent vacancies.
10. This Court while allowing the appeals by Respondents 4 to 16 by order dated 6.12.1999 made it clear that all the 30 persons recommended by the Commission as per merit list dated 01.10.1993, including Respondents 4 to 16 are entitled to be appointed. The State Government submitted that but for the order dated 4.4.1994 of the High Court, Respondents 4 to 16 would have been appointed on 2.6.1994 itself. The order dated 4.4.1994 was ultimately set aside by this Court and Respondents 4 to 16 who were consequently appointed should not be denied the benefit of seniority. Therefore, the State Government was justified in giving them only notional seniority and placing them immediately below the other 16 candidates selected in the common merit list (published on 1.10.1993) and appointed on 2.6.1994. Respondents 4 to 16 have been given retrospective seniority not from the date of their selection as wrongly assumed by the appellants, but from 2.6.1994 when other selected candidates in their merit list were appointed.
In view of above judgment of the Supreme Court and the factual scenario which has arisen in this case we do not find any fault on the part of the respondents in giving appointments to direct recruits with retrospective effect (without salary) i.e. from the date the last candidate of 1998-2000 recruitment joined, as, it balanced the equities to some extent, as, said respondents had been selected earlier in the year 2004 in pursuance to an advertisement of June, 2000 and their appointments were delayed by many years till 2011/2012 on account of pendency of the dispute aforesaid before the Courts at the behest of promotees, while others selected along with them by direct recruitment were given appointment during the year 2005-07. They have not been given appointment/ seniority from date of occurrence of vacancy nor date of selection but from date of joining of last of the other direct recruits of the same recruitment. In fact, but for the judgment dated 25.8.2004 they would have been appointed in 2005 itself, moreover, they were also before the Supreme court challenging the judgment dated 25.8.2004 along with Ashok Pal Singh. The case at hand is an exception to the general proposition prohibiting direct appointment with retrospective effect and seniority based thereon as were the case of Balwant Singh Narwal (supra) and A.K. Sirkar (supra). Thus, they are entitled to seniority accordingly alongwith other appointees of the same recruitment but in terms of Rule 26 of the Rules, 1975. Issue No.(vi) is decided accordingly The appointment of the respondent direct recruits is against 30 vacancies as ultimately determined for the year 1998-2000 recruitment by the supplementary final report dated 23.09.2015 which is not in excess of their quota. The orders appointing them w.e.f. 04.01.2007 do not suffer from any error nor have they ever been challenged. Issue Nos. (vii) and (viii) are decided accordingly in favour of the respondents.
Issue No. (ix) Now to consider the rule of seniority as contained in the rules 1975, the quota rota rule therein,the impact of All India Judges case in this regard, in the context of writ petition no. 1880/2017.In this regard we framed the issue as under:-
(ix) Whether the quota rota Rule as contained in Rules 22 and 26 of the 1975 Rules has been adhered since 1998 till 2011, if not, it's effect on determination of seniority of members of the cadre?
Sri Mathur submitted that the application of quota rota rule was not an issue in his writ petition. Well, it is very much there in the connected petition and Sri Asit Chaturvedi learned Senior Counsel appearing for the petitioners therein, who are direct recruits of 2007 batch, has pressed it in the light of paragraph 29 of All India Judges, moreover, the application of quota rota in compliance of the dictum of Supreme Court is not dependent on the pleas raised by the parties before us, as, once the dictum in All India Judges case prescribes it, we are duty bound to ensure its compliance in view of Article 141 and 144 and the authorities are also bound to do the same.
Sri Chaturvedi invited our attention to the judgment of the Supreme Court in All India Judges Association (supra) case specially paragraph 29 thereof to contend that a direction had been issued by the Supreme Court to prescribe a criteria of seniority based on quota-rota Rule by making necessary amendments by 31.03.2002 but the official respondents did not make any such amendment and this aspect of the matter was not placed before the Supreme Court in Sri Kant Tripathi and Ashok Pal Singh nor had it been considered by the High Court on the administrative side while attempting to resolve the seniority dispute, therefore, the decisions, reports and the seniority lists impugned herein are liable to be quashed on this ground alone.
He contended that the Supreme Court in the aforementioned case had categorically mentioned that experience had shown that the least amount of litigation in the country, where quota system in recruitment exists, in so far as seniority is concerned, where roster system is followed, therefore, the Supreme Court ordered for prescription of such a system of determination of seniority based on a post based roster as in the case of R.K. Sabharwal and others.
Paragraph 29 of All India Judges case is s under:-
29. Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle "merit-cum-seniority", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal v. State of Punjab (supra) One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case (supra) as early as possible. We hope that as a result thereof there there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31.03.2003.
Thus a post based roster on the lines of R.K. Sabbarwal's case was prescribed for implementation of quota rota rule and for determination of seniority accordingly by way of requisite amendments in the rules.
As per para 29 of All India Judge's case the application of such a rule as aforesaid for determination of seniority had to be prospective with effect from 31.3.2003 except where under the relevant rules seniority is to be determined on the basis of quota and rotational system, meaning thereby, in such cases, it had to be determined accordingly even prior to 31.3.2003. The existing seniority of members of the Higher Judicial Service i.e as existing prior to 31.3.2003, had to be protected but roster had to be evolved for the future i.e. w.e.f 31.3.2003 and appropriate rules and methods had to be adopted by the high courts and approved by the states where necessary by 31.3.2003. While in respect of other directions issued by it in paragraph 27,28,39 etc. the Supreme Court had fixed the deadline for compliance as 30.09.2002, the amendment in the Rules as referred in paragraph 29 was to be made by 31.03.2003.
When read conjointly with paragraph 27, 28 and 39 of the said judgment and the amendments made in the rules 1975 in 2006 we find that a belated compliance of directions contained in said paras was made which was compensated by giving it retrospective effect from 21.3.2002, i.e the date of the said pronouncement,however, while doing so, even though, Rule 6 as also Rule 21 were amended, it appears, due to over sight the consequential amendment with regard to rotational system and the prescription of a roster in Rule 22(2) was omitted. These quotas were to be specified in relation to posts and not vacancies so as to avoid any litigation and ensure certainty in this regard, therefore, the object was to avoid disputes with regard to determination of vacancy and their allocation as also seniority.
Realizing this error requisite amendments were made in the Rules 1975 vide notification dated 28.08.2009 by which Rule 19 was amended prescribing a limited competitive examination, Rule 22 was also amended accordingly so as to bring it in consonance with Rule 6 as amended by Sixth Amendment Rules, 2006 and the dictum of the Supreme Court as aforesaid and a 100 points roaster was also prescribed under the amended Rule 22(2) vide Appendix'1' thereof, but surprisingly, these rules were not given retrospective effect from 31.03.2003 i.e. the date by which these provisions were to be given effect as per the said dictum although this should have been done on the same analogy on which retrospective effect was given to the sixth amendment Rules, 2006, the validity of which had already been upheld in the case of V.K. Srivastava (supra).
In the interregnum, in view of the liberty granted by the Supreme Court in Malik Mazhar Sultan and another Vs. Uttar Pradesh Public Service Commission and others reported in (2010) 15 SCC 47, as already referred in the earlier part of the judgment, regarding variation of quotas, another amendment was brought into force vide notification dated 29.01.2014 by which Rule 6 was amended and quotas for the three sources of recruitment were prescribed in the ratio of 65: 10: 25. Rule 22(2) was also amended so as to prescribe a new rotational system/roster in-tune with the amendment in Rule 6. This amendment is not relevant to the dispute at hand.
Even prior to All India Judges case provision for application of quota rota rule and determination of seniority based thereon already existed in the rules 1975 as would be evident from rule 5,6,8,22 and 26 as existing prior to the sixth amendment, though, not strictly in terms of the above pronouncement, therefore, even in respect of pre 21.3.2002 period seniority had to be accordingly determined as per the said rules.
As already stated earlier as per the scheme of the Rules, 1975 whether before or after 21.3.2002, quota of appointment from the three sources as mentioned in rule 5 is prescribed in Rule 6. Rule 6 is subject to rule 8. Determination of vacancies and recruitment period are prescribed in rule 8. Recruitment from the three sources is to be made as per separate procedures prescribed under Rule 18, 20, 21. Three separate select lists from the three streams are to be prepared under Rule 18(4), 20(5) and 21(7). Based on the three lists a combined list is to be prepared under Rule 22(1) by placing the selectees in a cyclical order as per rota prescribed in sub-rule 2 in proportion to the ratio of their quotas but without disturbing the order in which they appear in the list of their own stream/quota prepared under Rule 18, 20, 21 so as to maintain their inter-se placement in their quota. This quota rota placement gets reflected in the order of appointment under Rule 22(1). It is this order in which the names are to be placed under Rule 22 (1) and (2) which is the basis of determination of seniority under rule 26 when it says "in accordance with order of appointment in the service under sub-rules (1) and (2) of Rule 22 of these rules". This is how the quota rota rule/roster determines the seniority of members of the service. As the quota is post based w.e.f 21.3.2002 its implementation through roster ensures adherence to quota with the result seniority disputes are minimised.
On a perusal of Rule 26 it is evident that seniority of the officers appointed in the service shall be determined "in accordance with the order of appointment in the service under sub-rules (1) and (2) of Rules 22 of these Rules". These words do not refer to the date of order of such appointment as misunderstood by the Committee, but, the cyclical order of appointment under Rule 22 (2) as also the order in which the candidates stand in the respective lists as per sub rule 1' i.e. the list referred in sub-rule 4 of Rule 18, sub-rule 5 of Rule 20 and sub-rule 7 of Rule 21, thus, it refers to the placement of appointees as per quota-rota rule without interfering with the interse placements of candidates of the same stream/quota. The contention of Sri Sudeep Seth that Rule 26 did not envisage determination of seniority based on quota-rota rule is incorrect and is also in the teeth of All India Judges' case.
On a bare reading of the scheme of the Rules including Rule 26 we are of the view that seniority inter-se of promotee and direct recruits who have been selected in the same recruitment period as per Rule 8(1) against the vacancies determined for the said period, including under sub-rule 2 thereof, has to be determined in the order in which the names of the selectees finds mention as per the quota-rota rule prescribed under sub-rule (2) of Rule 22, but, this quota rule will have no application in the matter of determination of seniority of the selectees of a prior recruitment vis-a-vis a subsequent selectee of a subsequent recruitment as a prior selectee based on earlier recruitment would be senior to a subsequent selectee of a subsequent recruitment. The scheme of the rules envisages recruitment from all sources within a recruitment period as per rule 8 subject to the 1st proviso to rule 6 and rule 8(2), therefore, the cyclical order of appointment of recruits of a particular recruitment period has to take place according to the roster irrespective of the date of appointment unless of course there is breakdown of quota rota or it is otherwise not possible to do so for unforseen and justifiable reasons. This is the scheme of the Rules.
A reference may be made in this regard to the decision of the Supreme Court in the case of Arvinder Singh Bains Vs. State of Punjab and others reported in 2006(6) SCC 673, wherein, a Rule of seniority as contained in rule 21 of the Provincial Civil Service of Punjab was applicable wherein with reference to the Constitution Bench decision of the Supreme Court in Mervyn Coutindo and Ors.
Vs. Collector of Customs, Bombay and Ors. reported in (1966) 3 SCR 600 and on a consideration of the Rules before it, it was held that the words "order of appointment" in rule 21 must be deemed to be the order prescribed in rule 18 thereof i.e the cyclical order as per application of quota rota rule and that the term ''order of appointment' was being misinterpreted by the authorities and it was confined to individual orders of appointment issued to individual members of service whereas the term ''order of appointment' referred only to the order of consequence prescribed under Rule 18 thereof .In the said case rule 21 did not even specifically refer to rule 18 yet it was assigned meaning as aforesaid. In the present case rule 26 is unambiguous in this regard.
In the aforesaid case the Supreme Court took note of its earlier decision viz by the Constitution Bench in Mervyn Coutindo's (supra); M. Subba Reddy Vs. A.P. State Road Transport Corporation and others reported in (2004) 6 SCC 729, wherein it had been held that it was mandatory to apply Rota and Quota in determining seniority where the same is provided for under the Rules. In the present case as already demonstrated above it is so provided in the Rules.
Viewed against the aforesaid backdrop we find no mention of quota-rota rule and it's applicability either in terms of the existing Rules, 1975 or the All India Judge's case, in the Final Seniority Report dated 23.09.2015 or in the seniority list of 2011in respect of 1998-2000, 2007 and 2009 recruitments. It appears the Committee primarily focused on determination of vacancies in terms of Ashok Pal Singh's case (supra) and omitted to consider this aspect, it thereby missed the woods for the trees. It is only while considering and deciding the objections by the Supplementary Report dated 06.04.2016, as allowed to be raised by the full court vide its decision dated 01.12.2015, that it's due application has been asserted, which for reasons given hereinafter, we find to be factually and legally incorrect.
As already stated the quota-rota rule did exist in the Rules 1975 prior to 21.03.2002 also vide Rule 6, 8, 22 and 26 and there is nothing in Sri Kant Tripathi or Ashok Pal Singh's case to the effect that it was not to be applied for determination of seniority, which in fact was mandatory. No such decision or order has been brought to our notice under which it was not required to be adhered. Its application w.e.f 21.03.2003 was also mandatory.
On a perusal of the supplementary report dated 06.04.2016 we find that a specific objection was raised by Shri Rajat Singh Jain, Additional District & Sessions Judge, with regard to non application of quota rota rule with reference to para 3 of the appointment letters issued to the direct recruits and UPNS dated 11.08.2008. The objection as noted by the Committee in Para 63 of its supplementary report reads as under:-
"63. Sri Rajat Singh Jain, Additional District and Sessions Judge, Bulandshahar represented that in para 3 of appointment letter of DRs and UPNS it was mentioned as follows:
" 3- ckj ls lh/kh HkrhZ }kjk mPprj U;kf;d lsok esa fu;qfDr ,oa izksUufr }kjk fu;qDr vf/kdkfj;ksa ds e/; jksLVj ds vuqlkj mudk LFkku ek0 mPp U;k;ky; }kjk ckn fu/kkZfjr fd;k tk,xkA"
"The place amongst officers appointed in Higher Judicial Serve by direct recruitment from Bar and officers appointed by promotion shall be determined by the High Court subsequently according to roster." (English translation by Court) The Committee dealt with the said objection as under:-
"64. The officer says that for the purpose of seniority, officers should be arranged by applying roster. Roster under Rule 22 is applicable by making vacancies available for appointment and that has been done by Committee. Available vacancies in a particular year of appointment have been allocated to officers of different sources by applying roster. There is no repeated application of roster at every stage. The contention, therefor, is not sustainable and is accordingly rejected."
We also find that another officer, namely, Ms. Pratima Srivastava, Additional District & Sessions Judge, Shahjahanpur raised an objection based on para 29 of the All India Judges' Association Case as has been noted by the Committee in Para 65 of its supplementary report which reads as under:-
"65. One Ms. Pratima Srivastava, Additional District & Sessions Judge, Shahjahanpur has represented that officers of UPNS who are allocated vacancies under Rule 8(2), can be given seniority after last Direct Recruit of concerned year of Recruitment and not before that. She has referred to judgment in All India Judges Association's case. Allocation of vacancies have been done, as we have already said, by applying roster etc. for Recruitment 2007 & 2009. The principle of seniority as under HJS Rules 1975 cannot be ignored for any reason otherwise. She has reproduced following excerpts from the judgment of All India Judges Association (Supra):
"29..........................."
The said objection has been dealt with by the Committee in Para 66 as under:-
"66. Apex Court has required for amendment of Rules in the light of observation made in the aforesaid judgment and Rules have been amended accordingly. There is no direction for amendment of Rule of seniority in the manner, as is being claimed by the aforesaid officer. Her claim reads something in the aforesaid judgment which is not there. Rules of Recruitment and appointment have already been suitably amended and given effect to. This contention, therefore, has no force and is rejected."
We tested the decision of the Committee in this regard as contained in Paragraph 64 and 66 of its Supplementary Report by reading the same conjointly with rule 22 and 26 and the placement of direct recruits and promotees in the final seniority list dated 23.09.2015 appended as Annexure-E to the final seniority report, 2015 and the seniority list 2011. With respect, we find that all the promotee officers of 2007 Recruitment have been placed above the direct recruits enblock from serial no. 773 to 1027. The direct recruits have been placed below, that too, enblock from serial no. 1028 to 1068. Similar is the factual position with regard to placement of 2009 Recruits as promotees have been placed enblock from serial no. 1072 to 1145 whereas direct recruits are placed en block at serial no. 1146 to 1179. Quota-rota rule, whether existing prior to 21.3.2002 or thereafter is not reflected in the seniority placements in the seniority list 2011 relating to 1998-2000 recruitment even though Rule 26 required it to be so. This is not what is meant by application of quota-rota rule for purpose of seniority determination whether it be in terms of Rules of 1975 or the All India Judges' Case. The quota-rota rule means placement of direct recruits and promotees in a rotational/ cyclical order one after the other subject to maximum posts available in the quota and not enblock placement. Placement of 17 promotee officers ''enblock' from serial no.726 to 742 above the direct recruits of 1998-2000 recruitment is also dehors the quota rota rule. We do not find any application of the aforesaid rule in the seniority lists as per Rule 26 and accordingly are unable to sustain the decision of the Committee on this count.
In fact, we find that instead of the seniority being determined as per the quota-rota rule the Committee determined the seniority on the basis of the date of order of substantive appointment which is not as per Rule 26 of the Rules, 1975 as already discussed and explained by us earlier.
In fact the observation of the Committee that All India Judges' case did not require any amendment of the Rule of seniority as per the quota-rota rule is erroneous as would be evident from a bare reading of Para 29 thereof. Rule 26 of Rules, 1975 as applicable in the state of U.P. may not have required any amendment as the effect of quota-rota rule in determination of seniority was already envisaged therein otherwise amendment was specifically ordered to be made in rule of seniority and other rules and rule 6 and 21 etc. were amended in 2006 and 2009 in State of U.P. also. Suffice it to say that the Committee erred in understanding the ratio of the dictum aforesaid.
The contention of Sri Misra that no L.C.E candidate was selected under 25% quota meant for them in 2008(2007 batch) is not relevant as firstly this is not the reason given by the committee for not applying quota rota, which in fact has said that it has been applied, secondly, it is inconsequential as the 1st proviso to rule 6 ordains the filling up of the shortfall under the said quota by promotion from the U.P. Nyayik Sewa as per the 50% quota, a fact admitted by the committee itself in para125 of its report dated 23.9.15.
The contention of Sri Sandeep Dixit that in the absence of requisite amendment in sub rule 2 of rule 22 quota rota could not be applied is not acceptable as the required amendment in sub-rule (2) of rule 22 by prescription of a roster/cyclical order in consonance with rule 6 etc. was only consequential to the amendments already made by the sixth amendment rules in 2006 in rule 6 and 21, therefore, as, in principle a rota system was already there in the unamended Rule 22 (1) and (2) also,thus, mere omission to make such consequential amendment in the said sub rule , that too a procedural one, did not come in the way, especially when there was a judicial mandate in All India judges case binding on all in view of Article 141 and 144 of the Constitution of India.
Once an amendment had been made in Rule 6 and 21 by the sixth amendment 2006 with retrospective effect, the quota-rota system should have been applied unless of-course it was shown that there was a break down of the said Rule which is not mentioned in the report of the High Court Committee. In fact, this aspect has not been considered at all. A mere omission to make a consequential procedural amendment cannot be a ground for non-application of quota-rota rule thereby frustrating the dictum of the Supreme Court, its intent and also that of the Rules, 1975, consequently, the seniority will have to be redetermined keeping in mind the application of quota-rota rule as aforesaid.
No doubt the Supreme Court in Ashok Pal Singh's case (supra) had asked the High Court to give a quietus to the controversy which related to the period prior to 30.09.2001 but it was certainly not the intention that a binding decision of a three judge Bench of the Supreme Court or the Rules 1975, be given a go-bye. As already stated, even prior to All India Judges case and prior to amendments in the rules 1975 in 2006 and thereafter, provisions containing quota rota rule and determination of seniority based thereon existed in the rules which have also not been adhered.
As regards non placement of names in cyclical order in the appointment orders dated 11.8.2008 issued by the State Government under rule 22(1), even though the High Court had allegedly done so while sending the list of selectees to it, firstly, the omission by the State was merely procedural and could have been rectified but no effort seems to have been made in this regard, secondly in point no. 3 of the said appointment orders the State Government had categorically mentioned that the seniority of appointees by direct recruitment and promotion shall be determined by the high court subsequently by application of roster, which should have been done. Neither the State nor the High court can take advantage of the omissions and commissions on each others part. The seniority inter-se ought to have been determined by application of quota rota rule and a technical plea such as the above mentioned can not be allowed to defeat the mandatory rules nor the binding affect of All India judge's case. The High Court and the State government can not be allowed to scuttle the rules by blaming each other for the lapses. Both were obliged to ensure its compliance.
The operation of quota-rota rule may throw up its own problems from time to time but these would have to be resolved as and when they occur. In the present case we do not find any attempt to apply it to the recruitments referred above in the first place.
A rule of seniority which satisfies all the members of the service is yet to be evolved. The unending litigation in this regard in HJS spanning over several decades is itself a testimony to this harsh reality. Presumably, keeping this in mind, in All India Judges Association case, obviously as the existing rules in higher judicial services of various states had failed to stem the tide of increasing seniority disputes, a direction was issued to amend the rules to incorporate a provision for application of Quota Rota Rule and determination of seniority based thereon. The harsh reality of seniority disputes among promotes and direct recruits in the higher judicial service of U.P. since 1972 demonstrates the wisdom of supreme court's observation in All India judge Association's case that quota-rota will lead to least amount of seniority disputes. Had this rule been been adopted w.e.f. 31.3.2003, as ordered, much of the litigation in this case could have been avoided. In Sri Kant Tripathi's case and in Ashokpal Singh's case the seniority dispute was primarily based on the issue of determination of vacancies and direct recruitment quota being exceeded prior to 30.9.2001. Had a roster been maintained for application of Quota Rota, the disputes which have plagued the service,thereby stalling promotions and direct recruitment ,may not have arisen at all.
In disputes relating to seniority the first and foremost thing to be seen is whether there is any provision in the rules governing the controversy, if so, the same should be adhered strictly unless there is a provision permitting deviation therefrom or its relaxation. If deviation or relaxation is not permitted then there is no escape from it and there is no scope for equitable considerations also nor for applying a criteria other than the one prescribed in the rules. In fact the very purpose of laying down a permissible criteria of seniority is that there should be uniformity and certainty in this regard, as, no rule can cater to every factual scenario likely to occur in future. The impugned reports do not mention any justifiable reason for non adherence to the rules and the law.
In view of the above the entire exercise of determination of seniority as impugned herein is based on a misreading, misunderstanding of the rules and their non-application, as also, non compliance of the dictum in All India Judges' Case. Neither the quota-rota rule as existing in the Rules, 1975, whether prior or after 21.03.2002 nor as envisaged in All India Judge's Case has been applied to the recruitments 1998-2000 nor to 2007 and 2009 recruitment, thereby rendering the determination of seniority unsustainable. Although the 2009 recruits are not before us nevertheless the same principle as is being enunciated herein will have to be applied to their case also so that there is no room left for further dispute and litigation.
Issues No. (x) and (xi) "(x) What was the justification for re-opening of the final seniority list dated 14.9.2011 resulting in another seniority list dated 14.4.2016? It is sustainable in law?
(xi) Whether the seniority list dated 24.9.2011 is sustainable in law?"
First of all the dates of the seniority lists referred above are incorrect. The relevant seniority list was prepared on 14.07.2001 and not 14.9.2011, it was approved by the full court on 30.7.2011 and published on 1.8.2011. It is this seniority determination which was reopened and modified by seniority list dated 23.09.2015. All the counsels were aware of these facts and addressed us accordingly irrespective of the errors aforesaid therefore no prejudice has been caused on this count.
We have already noted while deciding Issue No. V that re-opening of the factual controversy regarding determination of vacancies though initially assailed by the petitioners of writ petition no. 16569/2016was subsequently given up. Apart from it, we find that the kind of errors, omissions and commissions as were detected by the Committee while determining the vacancies as mentioned earlier and as is mentioned in its report which are on record, it was justified in re-opening the determination made earlier in 2011 and there is nothing in Ashok Pal Singh's case (supra) which prohibited it. The observations therein for giving a quietus to the controversy were qualified by the observations made by it regarding the correctness of the data relating to the determination of vacancies as mentioned in paragraphs 41 and 42 thereof which permitted re-opening of the same if it was arbitrary or in non compliance of any order of the Court. In the present case for the reasons mentioned by the Committee, the earlier determination can be termed as arbitrary as it was based on incorrect information supplied to the Committee and as the same Committee has rectified its error, therefore, no exception can be taken to this. There was sufficient justification for the Committee for reconsidering the final seniority list of 2011 in the light of the errors detected by it.
As regards the sustainability of the seniority list dated 23.09.2015 on the basis of the final seniority report dated 23.09.2015 and the supplementary report of 2016, for the reasons already discussed in the context of Issue No. ix, as, quota rota rule has not been followed, promotees and direct recruits have been placed enblock, that too, as per the date of order of substantive appointment which is apparently contrary to Rule 26 which envisages reflection of the rotational/ cyclical order of appointment envisaged in Rule 22(1) and (2) and as All India Judges' Case has not been adhered, as the objections raised in this regard were erroneously rejected,therefore, considering the aforesaid and the complete misunderstanding and misapplication of the aforesaid Rule and the law, the seniority list of 23.9.2015 which is in continuation of the seniority list of 2011 is not sustainable. The seniority list of 2011 suffers from same errors.
These issues are decided accordingly.
In view of the above, we sum up our conclusions as under:-
(1) The challenge to the vires of the 6th amendment Rules, 2006 already having been repelled by the Supreme Court in V.K. Srivastava's case, is not open to reconsideration by us.
(2) There is no factual and legal basis for the petitioners claim to promotion from date of occurrence of vacancies and seniority accordingly in Writ Petition No.16569(SB) of 2016.
(3) The determination of vacancies by the Committee does not require any interference but determination of seniority is not sustainable.
(4) Considering the facts of the present case there is no error in the appointment of direct recruits in December, 2011 and January, 2012 w.e.f. 04.01.2007 when the last of the selectees of the same selection had joined following the dictum in Dr. A. K. Sirkar and in view of Balwant Singh Narwal's case (supra).
(5) There has been a complete non-adherence to the Quota- Rota Rule and the determination of seniority in accordance thereof in terms of Rule 22 and 26 of the Rule, 1975. The judgment rendered in All India Judges' Cases has not been followed as was mandatorily required.
(6) The determination of seniority is patently erroneous and contrary to Rule 26 of the Rules, 1975 which envisages such determination in accordance with the order of appointment in the service under Sub-Rules (1) and (2) of the Rule 22 which necessarily means the order of rotational/ cyclical placement of appointees from different sources of recruitment without disturbing their inter-se placement within the same stream/ quota and not enblock placement on the basis of date of appointment as has been done.
In view of the above, subject to the observations made while deciding the issues, the determination of seniority by the impugned reports, seniority list(s) and decisions is hereby quashed, however, any elevation to the High Court already finalized on the basis of the seniority impugned shall remain unaffected.
As regards Relief No.6 in Writ Petition No.1880(SB) of 2017, the pleadings on record lack necessary details for adjudication of the said issue by this Court, therefore, in view of the relief claimed it is left open for the petitioner to raise this plea before the competent authority which shall consider and decide the same after giving opportunity of hearing to the affected parties, keeping in mind the observations made herein above and the law applicable, within 3 months from a representation being submitted in this regard.
The official respondents shall now proceed to redetermine the seniority in the light of the observations made by us herein above with expedition, say, within a period of three months from the date a certified copy of this judgment is submitted. All necessary actions to facilitate such determination in the light of the above shall be undertaken by the official- respondents. Needless to say that this shall entail issuance of a fresh tentative seniority list and its finalization thereafter within the aforesaid period.
Subject to the above, Writ Petition No. 1880(S/B) of 2017 is allowed.
Writ Petition No. 16569(S/B) of 2016 is disposed of in the aforesaid terms.
Order Date :- 30.06.2017
Vijay/R.K.P.
(Rajan Roy,J.) (Amreshwar Pratap Sahi,J.)