Supreme Court of India
Honble High Court Of Judicature At ... vs The State Of Uttar Pradesh on 28 March, 2018
Author: Adarsh Kumar Goel
Bench: Rohinton Fali Nariman, Adarsh Kumar Goel
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE / ORIGINAL JURISDICTION
CIVIL APPEAL NO. 3356 OF 2018
(Arising out of Special Leave Petition (Civil)No. 26993 of 2017)
Hon’ble High Court of Judicature
at Allahabad – through Registrar General …Appellant
Versus
The State of Uttar Pradesh & Ors. …Respondent
WITH
CIVIL APPEAL NO. 3355 OF 2018
Special Leave Petition (Civil)No. 8312 of 2018)
(Arising out of Special Leave Petition (Civil)D.No. 39750 of 2017
Hon’ble High Court of Judicature at Allahabad
through Registrar …Appellant
versus
The State of Uttar Pradesh & Ors. …Respondent
WITH
Special Leave Petition (Civil)No. 27284 of 2017
Dr. Ajay Krishn Vishvesha & Ors. …Petitioner
Versus
Rajat Singh Jain & Ors. ...Respondent
WITH
Special Leave Petition (Civil)No. 27876 of 2017
Saroj Yadav & Ors. …Petitioner
versus
The High Court of Judicature at Allahabad & Ors.
Signature Not Verified
Digitally signed by
…Respondent
MADHU BALA
Date: 2018.03.28
15:26:58 IST
Reason:
1
WITH
Special Leave Petition (Civil)No. 8334 of 2018)
(Arising out of Special Leave Petition (Civil)D.No. 31887 of 2017
Lal Bahadur-II & Ors. …Petitioner
versus
High Court of Allahabad & Ors. …Respndent
AND
TRANSFER PETITION (CIVIL)NO. 81 OF 2018
Sanjay Shankar Pandey & ORS. …Petitioner
versus
The State of Uttar Pradesh & ORS. …Respondent
JUDGMENT
ADARSH KUMAR GOEL, J.
1.Leave granted in Special Leave Petition (Civil) No.26993 of 2017 and SLP (Civil) D. No.39750 of 2017. The question for consideration is the validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh. Dispute mainly relates to the principle to be applied for determining seniority for direct recruits and promotees of the years 2007 and 2009 in the context of Rules 22 and 26 of the Uttar Pradesh 2 Higher Judicial Service Rules, 1975 (the Rules) and the judgment of this Court in All India Judges Association versus Union of India1.
2. Before giving brief facts we may note that the Rules and the issue of seniority of the HJS officers were subject matter of consideration, inter alia, in P.K. Dixit versus State of U.P.2, O.P. Garg versus State of U.P.3, Sri Kant Tripathi versus State of U.P.4, Ashok Pal Singh versus U.P. Judicial Services Association5, V.K. Srivastava versus Govt. of U.P. 6 and Het Singh Yadav versus State of U.P.7
3. In P.K. Dixit (supra), there was challenge to the seniority list on the ground that vacancies had not been properly calculated as per the Rules. This Court directed that matter should be examined afresh with reference to appointments on posts available before the Rules came into force.
1 (2002) 4 SCC 247 2 (1987) 4 SCC 621 3 (1991) Supp. (2) SCC 51 4 (2001) 10 SCC 237 5 (2010) 12 SCC 665 6 (2008) 9 SCC 77 7 Civil Appeal No.5270 of 2012 decided on 15.9.2016 3
4. In O.P. Garg (supra), challenge to seniority list of 1988 was considered. This Court held that benefit of continuous length of service for a promote officer for a promote officer has to be with reference to availability of a vacancy and not independent thereof. Second and third proviso to Rule 8(2) and part of Rules 22 and 26 were declared ultra vires.
5. In Sri Kant Tripathi (supra) question was about correctness of calculation for working out ratio between direct recruits and promotees. The issue had arisen with reference to recruitments for the years 1988 to 1994. This Court directed that for 1988 recruitment, the High Court should determine number of vacancies available in the relevant year of recruitment and then allocate the vacancies to different sources of recruitment. It was also directed that vacancies should be filled up in the year when vacancies become available. If a post is available in the quota of promotees, selection is made but promotion is not given, promotion must take effect from the date the promotee could have been appointed.
4
6. In Ashok Pal Singh (supra) one of the issues was whether procedure of carrying forward of vacancies adopted by the High Court was erroneous. This Court held that no direct recruit at a subsequent recruitment can claim that his seniority should be reckoned from the date earlier to the date of his joining. The seniority of the promotee had to commence from the date he should have been appointed against an available vacancy for which he had already been selected.
7. In V.K. Srivastava (supra), challenge was to the amendment of the Rules as notified on 9 th January, 2007 on the ground that giving of retrospective effect prejudiced the vested right of the candidate eligible for vacancies prior to the amendment. This Court dismissed the writ petition with the observation that the Rules had been duly complied with for the year 2008 selection.
8. In Het Singh Yadav (supra) question for consideration was the validity of seniority list of promotees with regard to vacancies existing prior to 15th March, 1996. The High Court quashed the seniority list dated 24th August, 2007. Correctness of the view 5 taken before the High Court was subject matter of consideration before this Court. This Court noted that after the judgment of the High Court dated 16th December, 2010, seniority list had been finalized on 14th April, 2016 consistent with the directions in Ashok Pal Singh (supra) against which matter was pending consideration before the High Court. This Court set aside the judgment of the High Court leaving the merits of the matter to be gone into by the High Court in the matter pending before it.
9. In All India Judges case (supra), it was directed that recruitment to HJS at the relevant time had to be as follows :
“(a) 50 per cent by promotion from amongst Civil Judges (Senior Division) on the principle of merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through a limited competitive departmental examination on Civil Judges (Senior Division) having not less than five years qualifying service, and;
(c) 25 per cent of the posts shall be filled directly from amongst the eligible advocates on the basis of written and viva voce test conducted by the respective High Courts.” 6
10. It was observed that to avoid litigation, seniority rules should provide for roster system as laid down in R.K. Sabharwal versus State of Punjab8 . Direction of this Court is as follows :
“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 would be no further dispute in 8 (1995) 2 SCC 745 7 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.” (emphasis added)
11. The Rules as originally framed envisaged three sources of recruitment – direct recruitment from the bar, promotion from members of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of cadre of judicial magistrates. There was also a provision for quota for the different sources. Number of appointments to be made is required to be identified. Seniority is to be determined as per Rule 26.
12. As a result of observations in the above judgments, there was amendment in the Rules. It may not be necessary to refer all the amendments but reference to some of the amendments may be necessary.
13. Accordingly, Rule 6 was amended to give effect to the judgment of this Court in All India Judges’ case (supra) vide U.P. Higher Judicial Service (Sixth Amendment) Rules, 2006 notified on 8 January 09, 2007. By the said amendment, the criteria for recruitment by promotion was changed. Requirement of passing a suitability test was incorporated. There was also modification about the percentage of quota. The suitability test in pursuance of the said amended rules was held for the first time in the year 2008. The introduction of the roster was introduced by U.P. Higher Judicial Service (Seventh Amendment) Rules, 2009 which was notified on 8th August, 2009.
14. Reference may now be made to the relevant Rules.
Rule 5
U.P. Higher Judicial Service Rules, Uttar Pradesh Higher Judicial Service
1975 (Sixth Amendment) Rules, 2006
(Prior to the Sixth Amendment in 2006)
(come into force w.e.f 21st March, 2002)
Rule 5. Sources of recruitment.-The Rule 5 was substituted as under:-
recruitment to the Service shall be made-- Sources of recruitment--The recruitment
(a) by direct recruitment of pleaders and to the service shall be made-
advocates of not less than seven years'
standing on the first day of January next (a) By promotion from amongst the Civil
following year in which the notice inviting Judges (Senior Division) on the basis of applications is published; Principle of merit-cum-seniority and passing a suitability test.
(b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter (b) By promotion strictly on the basis of merit referred to as the Nyayik Sewa), who have through limited competitive examination of put in not less than seven years service to Civil Judges (Senior Division) having not less be computed on the first day of January than five years qualifying service; next following the year in which the notice inviting application is published: (c) By direct recruitment from amongst the Advocates of not less than seven years Provided that so far long as suitable standing on the first day of January next officers are available from out of the dying following the year in which the notice inviting cadre of the Judicial Magistrates confirmed applications is published. officers who have put in not less than 9 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)."
Rule 6 U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher Service Rules, 1975 Judicial Service (Sixth Judicial Service (Ninth (Prior to the Sixth Amendment) Rules, 2006 Amendment) Rules, 2014 Amendment in 2006) (come into force w.e.f 21st March, 2002) Rule 6. Quota.- Subject to Rule 6 was substituted as Rule 6 was substituted the provisions of Rule 8, the under:- as under:-
quota for various sources of 6. Quota-Subject to the recruitment shall be- provisions of rule 8, the quota Quota-6. Subject to the for various sources of provisions of rule 8, the Provided that where the recruitment shall be- quota for various sources number of vacancies to be of recruitment shall be-
filled in by any of these (i) Uttar Pradesh Nyayik Sewa:
sources in accordance with (a) from amongst the Civil (i) Uttar Pradesh Nyayik the quota is in fraction, less Judges (Senior Division) Sewa:
than half shall be ignored on the basis of
and the fraction of half or merit-cum-seniority (a) from amongst the
more shall ordinarily be and passing a Civil Judges
counted as one: suitability test. - 50% (Senior Division)
on the basis of
(i) Direct recruits from (b) on the basis of merit merit-cum-seniori
the Bar 15% of the through limited ty and passing a
vacancies competitive suitability test. -
examination of Civil 65%
(ii) Uttar Pradesh Nyayik Judges (Senior Division) (b) on the basis of
Sewa 70% having not less than merit through
five years qualifying limited
(iii) Uttar Pradesh service. - 10% competitive
Judicial Officers service examination of
(Judicial Magistrate) 15% Provided that in case of civil Judges
there being any (Senior Division)
Provided further that when shortfall in the having not less
the strength in the cadre of vacancies to be filled than five years
the Judicial Magistrates up on the basis of in service. -10%
gradually gets depleted or is cadre competitive
completely exhausted and examination, the Provided that in
suitable candidates are not shortfall of 25% case of there
available in requisite reserved for such being any
numbers or no candidate promotion will be made shortfall in the
remains available at all, the good by corresponding vacancies to be
shortfall in the number of increase in the quota filled up on the
10
vacancies required to be reserved for promotion basis of in cadre
filled from amongst Judicial of Civil Judge (Senior competitive
Magistrates and in the long Division) referred to in examination, the
run all the vacancies, shall Clause (i)(a). shortfall of 10%
be filled by promotion from reserved for such
amongst the members of the (ii) direct recruitment from Bar promotion will be
Nyayik Sewa and their quota - 25% made good by
shall, in due course, become corresponding
85 per cent. Provided that where the increase in the
number of vacancies to quota reserved
be filled in by any of for promotion of
these sources in Civil Judge
accordance with the (Senior Division)
quota is in fraction, less referred to in
than half shall be clause (i)(a).
ignored and the
fraction of half or more (ii) Direct recruitment from shall ordinarily be Bar-25% counted as one:"
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:
Rule 8
U.P. Higher Judicial Service Rules, 1975 Uttar Pradesh Higher Judicial Service
(Prior to the Sixth Amendment in 2006) (Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 8. Number of appointments to be In Rule 8 the existing sub rule (2) was made.---(1) The Court shall, from time to substituted as under:- time, but not later than three years from the last recruitment, fix the number of officers "8.(2) If at any selection the number of to be taken at the recruitment keeping in selected direct recruits available for view the vacancies then existing and likely "8.(2) If at any selection the number of to occur in the next two years. selected direct recruits available for appointment is less than the number of Note---The limitation of three years recruits decided by the Court to be taken mentioned in this sub-rule shall not apply to from that source, the Court may increase the first recruitment held after the correspondingly the number of recruits to be enforcement of these rules. taken by promotion from the Nyayik Sewa;11
(2) If at any selection the number of Provided that the number of selected direct recruits available for vacancies filled in as aforesaid under appointment is less than the number of this sub rule shall be taken into recruits decided by the Court to be taken consideration while fixing the number from that source, the Court may increase of vacancies to be allotted to the correspondingly the number of recruits to quota of direct recruits at the next be taken by promotion from the Nyayik recruitment, and the quota for direct Sewa; recruits may be raised accordingly so, however, that the percentage of Provided that the number of direct recruits in the service does not vacancies filled in as aforesaid under in any case exceed 25% of strength of this sub rule shall be taken into the service.
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---12
(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.13
Rule 18 U.P. Higher Judicial Service Rules, 1975 (Prior to the Sixth Amendment in 2006) Rule 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.
Rule 20 U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher Service Rules, 1975 Judicial Service (Sixth Judicial Service (Ninth (Prior to the Sixth Amendment) Rules, Amendment) Rules, Amendment in 2006) 2006 2014 (come into force w.e.f. 21st March, 2002) Rule 20. Promotion of In Rule 20- for the existing The existing sub-rule (3) Members of Nyayik sub-rules (1) and (2), the of rule 20 was substituted Sewa-(1) Recruitment by following sub-rules were as under:-
promotion of the members of substituted:-
the Nyayik Sewa shall be 20.(3) The Selection made by selection on the (1) Recruitment by Committee shall, after principle of promotion of the examining the record of the seniority-cum-merit. members of the officers included in the list Nyayik Sewa shall be prepared under sub-rule (2) of (2) The field of eligibility for made by selection on this rule make a preliminary recruitment by promotion the principle of selection of the officers who shall be confined to four times merit-cum-seniority in its opinion are fit to be the number of vacancies to and on passing such a appointed on the basis of be filled by promotion. The suitability test, as merit-cum-seniority. In Selection Committee shall prescribed in Appendix assessing the merit of a prepare a list in order of "G(1)" candidate, the Selection seniority of the officers Committee have due regard eligible under Rule 5(b) of (2) The field of to his service record, ability, these rules. eligibility for character and seniority. The recruitment by list shall contain the names of (3)The Selection Committee promotion shall be officers twice the number of shall, after examining the confined to four times vacancies required to be filled record of the officers included the number of by promotion of the members 14 in the list prepared under vacancies to be filled of the Nyayik Sewa.
sub-rule (2) of this Rule make by promotion. The a preliminary selection of the selection Committee officers who in its opinion are shall prepare a list in fit to be appointed on the order of seniority of basis of seniority-cum-merit. the officers eligible In assessing the merits of a under Rule 5(a) of candidate, the Selection these rules.
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.
Rule 21 U.P. Higher Judicial Service Rules, 1975 Uttar Pradesh Higher Judicial Service (Prior to the Sixth Amendment in 2006) (Sixth Amendment) Rules, 2006 (come into force w.e.f 21st March, 2002) Rule 21. Temporary provisions for the The existing Rule 21 was substituted as cadre of the Judicial Magistrate.- (1) For under:-:
so long as suitable officers are available from (1) Recruitment by promotion of the members out of the dying cadre of the Uttar Pradesh of Nyayik Sewa as referred to in Rule 5(b) Judicial Officers Service, confirmed officers shall be made by selection strictly on the who have put in not less than seven years' basis of merit through a limited competitive service shall be eligible for appointment as examination as prescribed in Appendix 'H'.15
Additional Sessions Judges in the service, as provided in Rules 4, 5, 6 and 8. Such officers (2)Application for recruitment to the service may also be appointed as Additional Sessions from such sources shall be Judge in officiating and temporary capacity invited by the Court through District Judges. upto the extent of 15 per cent of the vacancies in the cadre occurring during any (3) the District Judge shall forward to the one period of Selection. Court all applications received by him alongwith his own estimate of each (2) The field of eligibility for appointment from candidate's character and fitness for out of the Judicial Magistrate shall be confined appointment to the service.
to four times the number of vacancies to be filled from this source. The Selection (4) The Selection Committee referred to in Committee shall prepare a list in order of Rule 16 shall scrutinize the seniority of the eligible officers. applications received and shall hold a limited competitive examination, as (3) Criterion for selection shall be prescribed in Appendix 'H'. seniority-cum-merit. In assessing the merits of a candidate the Selection Committee shall (5) The Selection Committee shall prepare a have due regard to his service record ability, select list on the basis of the character and seniority. The preliminary merit of the successful candidates. selection shall be made by the Selection Committee referred to in Rule 6 and the list of (6) The committee shall make a preliminary the selected candidates shall be forwarded to selection and submit the record of all the Chief Justice along with the names of the candidates to the Chief Justice and officers who, if any, in the opinion of the recommend the names of the candidates in Committee are unfit for appointment to the order of merit who, in its opinion are suitable Service. for appointment to the service.
(4) The Court shall examine the (7) The Court shall examine the recommendations of the Selection Committee recommendations of the Selection Committee and make a final selection and prepare a list and make a final selection for appointment in of candidates HJS cadre and prepare a list in order of merit considered fit for appointment in order of and forward the same to the Governor. The seniority and forward the names of the list shall remain operative only till the next officers. The list shall remain operative only recruitment. 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.
Rule 22 16 U.P. Higher Judicial Service Uttar Pradesh Higher Uttar Pradesh Higher Rules, 1975 Judicial Service (Seventh Judicial Service (Ninth (Prior to the Sixth Amendment Amendment) Rules, 2009 Amendment) Rules, 2014 in 2006) Rule 22. Appointment- Rule 22 . Appointment.-- In Rule 22, the existing (1) Subject to the provisions of (1) Subject to the provisions sub-rule (2) was sub-rules (2) and (3), the of sub-rule (2) the Governor substituted as under:-
Governor shall on receipt from shall, on receipt from the 22.(2) Appointments to the the Court of the lists Court of the list mentioned in service shall be made on mentioned in Rule 18, 20 and Rules 18, 20 and 21 make the basis of roster system, 21 make appointments to the appointments to the service the first post shall be filled service on the occurrence of on the occurrence of from the list of promotees, substantive vacancies by substantive vacancies by the second post shall be taking candidates from the taking candidates from the filled up by direct recruit, lists in the order in which they list in the order in which they the third and fourth posts stand in the respective lists. stand in the respective lists in shall be accordance with the roster. filled up from the list of (2) Appointments to the promotees and fifth post service shall be made on the (2) Appointments to service shall be filled up by the rotational system, the first shall be made on the basis of candidate selected strictly vacancy shall be filled from roster system, the on merit through LDCE (and the list of officers of the Nyayik first and second post shall be so on) according to Sewa. The second vacancy filled from the list of the roster as prescribed in shall be filled from the list of promotes, the third post shall Appendix '1', which will direct recruits (and so on), the be filled up by direct recruit cease to become operative remaining vacancies, shall and the fourth post shall be on the date the respective therefore be filled by filled up by the candidate three streams achieve their promotion from the list of the selected strictly on merit full allotted vacancies.
officers of the Nyayik Sewa. through LDCE (and so on) Thereafter on account of according to the roster as arising any vacancy in quota Provided that for so prescribed in Appendix 'I', of respective stream the long as suitable officers which will cease to become same could be filled-up from are available from the operative the same stream of which cadre of the Judicial on the date the respective vacancy arises; Magistrates, three streams achieve their appointments to the full allotted vacancies. Provided that while Service shall be made Thereafter on account of following the roster in such a way that the arising any vacancy in quota at no point of time second fifth and eighth of respective stream the the respective (and so on), vacancy same could be filled-up from percentage of posts shall be filled from the the same stream of which filled from direct list of judicial vacancy arises: recruit and LDCE Magistrates. shall exceed 25% Provided that and 10% of the (3) In the eventuality of delay while following the strength of service. in making appointment under roster at no point In case the sub-rule (1) and further if of time the percentage is exigency of service so percentage of exceeding the requires, the Governor may, in posts filled from allotted quota, in consultation with the Court, direct recruit and such eventuality the make short term appointment LDCE shall exceed promotee shall as a stop gap arrangement 25% each of the occupy the vacancy from amongst the members of vacancies which would have 17 Nyayik Sewa in the vacancy in available at the gone to direct recruit these services within the time of selection. or LDCE, had not the quota fixed by the Court till In case the same been in excess the appointment are made percentage is of 25% and 10% under subrules (1) and (2): exceeding the respectively of either allotted quota, in of the two.
Provided that the such eventuality
period of service spent the promotee shall
by a member of Nyayik occupy the
Sewa on short term vacancy which
appointment to the would have gone
service as a stop-gap to the direct
arrangement shall not recruit or LDCE,
be computed from had not the same
seniority under Rule 26. been an excess of
25% of either of
(4) The appointments shall be the two.
made on rotational system,
the first vacancy shall be filled (3) In the eventuality of delay from the list of officers of the in making appointment under Nyayik Sewa, the second sub-rule (1) and further if vacancy shall be filled from exigency of service so the list of Judicial Magistrates requires the Governor may, in (and so on). 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.
18
Rule 26
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 26. Seniority.--(1) Seniority of the officers appointed in the Service shall be determined in accordance with the order of ppointment 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.
15. We may now note the necessary facts. It is clear from resume of judgments of this Court that there is long history of seniority dispute of the members of HJS. In the process, there was complex and long drawn effort in determination and redetermination of vacancies. Though, in pursuance of judgment of this Court in All India Judges’ case (supra), amendment in the Rules was carried out and notified on 9 th January, 2007 and principle of suitability test and roaster system were introduced, in absence of determination of vacancies for the period from 2002 till 2007, neither the promotees could be given appointments in spite of availability of vacancies and eligibility nor direct recruitments could be made. Thus, recruitment for the relevant period was initiated belatedly in the year 2007. In the absence of suitability test, which was conducted only in the year 2008, the 19 promotees could not be given promotion. In the circumstances, the direct recruits selected after 2007 could not be given seniority prior to their joining. Seniority for direct recruits by following the rota system would have operated unfairly for the promotees.
16. In this background, vacancies as on 31 st December, 2006 and expected vacancies upto 31st December, 2008 were determined for the direct recruits and promotees on 15 th February, 2007.
17. After the rules were amended in the year 2007, vacancies were worked out and advertisement was issued on 31 st March, 2007. Suitability test for purposes of promotion was held on 10 th February, 2008. Final list of selected direct recruits was approved by the Full Court on 12th July, 2008.
18. Vide order dated 11th August, 2008, appointments to the UPHJS by way of promotion were made. Direct recruited officers to the UPHJS were appointed between 11 th September, 2008 and 24th November, 2008. Though, process for appointment was 20 conducted simultaneously, the select lists were also forwarded to the Court simultaneously, due to observance of certain formalities, letters of appointment for direct recruits were given later to the promotion being affected.
19. For the recruitment year 2009, calculation of vacancies was finalized on 24th March, 2009. The same was approved by the Full Court on 10th April, 2009. Suitability test for promotees was held on 29th November, 2009. Select list was approved by the Full Court on 9th January, 2010. Appointments were notified on 7 th September, 2010. Direct recruits for the year 2009 were appointed between 24th December, 2010 to 20th April, 2011. After the appointments, the dispute of seniority cropped up. The direct recruits claimed that they were entitled to be given seniority as per rota system laid down under the Rules and that they had been wrongly placed junior to the promotees. The promotees claimed that their seniority should commence from the date of accrual of vacancy, date of their eligibility and officiation and not from the date of actual appointment.
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20. The High Court appointed a Committee to go into the matter. The Committee took up determination of vacancy and fixation of seniority for the HJS officers appointed upto 1998-2000 which was finalized on 1st August, 2011. Thereafter, determination of vacancies and fixation of seniority of 2007 and 2009 recruitments was considered by the committee vide its report dated 23 rd September, 2015 and 6th April, 2016. The same was approved by the Full Court on 14th June, 2016.
21. The report of the Committee dated 23 rd September, 2015 was in continuation of its earlier reports finalizing seniority lists dated 6th May, 1995 and 13th July, 2011, with reference to officers recruited prior to 2007. The Committee determined vacancies vide its report dated 7 th February, 2012 on the basis of which tentative seniority lists dated 25 th July, 2013 and 18th December, 2014 were published. Objections to the said tentative seniority lists were considered in the said report.
22. The question considered by the Committee was whether long officiation by officers of UPNS should be given due credit so that they may not suffer on account of delay in holding suitability 22 test. Suitability test was not held due to non amendment of the Rules upto 9th January, 2007 inspite of judgment of this Court dated 21st March, 2002. Thus, from 21 st March, 2002 to 2008 since a different regime of Rules was stipulated under the judgment of this Court in All India Judges case (supra) and the Rules were amended by the High Court only on 9th January, 2007, in spite of availability of vacancies in promotion quota, the promotee officers who were eligible and were officiating against the said vacancies, could not be recruited. They were recruited only after the suitability test was held for the first time in the year 2008. The Committee thus held that they were entitled to en bloc seniority without rota system. The direct recruits could not be given seniority for the period prior to their appointment. Same was the position with regard to 2009 recruitments. The view of the Committee was that rota system will create imbalance and injustice.
23. The direct recruits as well as the promotees were aggrieved by the determination of their seniority and challenged the same by filing Writ Petitions. In Writ Petition (SB) No.1880 of 2017 filed 23 by the direct recruits, respondents 134 to 173, along with others before the High Court, prayer was for quashing the final seniority Report dated 23rd September, 2015 (of Committee of High Court Judges), supplementary report dated 6 th April, 2016(also of a Committee of High Court Judges) and for a direction to redetermine seniority of the writ petitioners who were the direct recruits on the basis of rotational system proportionate to their quota, apart from other incidental prayers. It was submitted that since Rule 22(2) provides for rotational basis for seniority, their date of appointment was not conclusive for the purpose of seniority. Accordingly, the writ petitioners sought determination of seniority by applying roster system. The High Court and the affected officers defended the report of the Committee as approved by the Full Court.
24. In Writ Petition (SB) No.16569 of 2016 filed by the promotees, challenge was to the validity of the Amendment Rules, 2006 in so far as the Rules were retrospective. Challenge was also to the reports of the Committees and decision of the Full Court in so far as objections to seniority list were rejected. The 24 petitioners in the said writ petition were promoted against vacancies of the years 2002 onwards but the said vacancies were actually determined later. According to the said writ petitioners, they were entitled to seniority from the date of their eligibility, without their passing of the suitability test which was retrospectively prescribed for the first time on 9 th January, 2007.
25. The High Court examined two questions : -
(i) Whether promotees were entitled to seniority prior to their appointment on the ground that requirement of suitability test was introduced for the first time in the year 2007 and they had a vested right to be promoted against the earlier vacancies without the suitability test.
(ii) Whether direct recruits were entitled to the benefit of rotation in determination of seniority. The High Court held that the promotees could not be given seniority prior to their selection. The retrospectivity of the Rules prescribed suitability test was valid particularly 25 in view of judgment of this Court in V.K. Srivastava (supra).
26. It was held that no determination of vacancies had taken place on account of pendency of litigation which was finalized on 25th August, 2004. No direct recruitment was made after 1998-2000 upto 2005. Only after 25th August, 2004 determination of vacancies took place. Promotions and direct recruitments were made in respect of the said selection in the year 2005. Promotions and direct recruitments which are subject matter of the present case were made in 2008/2009. Thus, Writ Petition (SB) No.16569 of 2016 was dismissed and objection of the promotees to their seniority was rejected.
27. As regards claim of the direct recruits based on Quota-Rota rule and post based roster system, it was observed that the same was mandatory. It was accordingly, held that seniority was required to be re-determined by applying the Quota-Rota.
28. The conclusions of the High Court are as follows : 26
“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 27 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 en bloc placement on the basis of date of appointment as has been done.”
29. We have heard learned counsel for the parties. The first issue raised is whether the promotees recruited in the year 2008/2009 are entitled to seniority prior to their selection on the ground that no suitability test was required prior to 9 th January, 2007 and retrospective effect to such requirement was illegal. We are in agreement with the view taken by the High Court that suitability test was required in terms of judgment of this Court in All India Judges’ case (supra) and under the amended Rules applicable retrospectively which was duly upheld by this Court in V.K. Srivastava (supra). Thus, the promotees could not be given promotion without suitability test nor could they claim seniority without the same. They have been rightly given seniority from their appointments.
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30. With regard to the Quota-Rota rule, there is no doubt that this is a mandatory requirement of the Rules. The said requirement has however to be seen in the peculiar fact situation. The issue of determination of vacancies was embroiled in continuous litigation. The Quota-Rota rule could not be applied in the absence of determination of vacancies. The suitability test though validly laid down could not be held till 2008 for reasons already noted. No promotion could be given in absence of suitability test. The rule provided for seniority of the promotees to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees. Thus, the Rules will have to be given pragmatic interpretation. As laid down by this Court in Direct Recruit Class-II Engineering Officers’ Association versus State of Maharashtra9, if it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to 9 (1990) 2 SCC 715, para 23 29 be given a practical interpretation. Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained.
31. Accordingly, we allow the appeal arising out of Special Leave Petition (Civil) No.26993 of 2017 and dismiss the Writ Petition (SB) No.1880 of 2017 on the file of the High Court filed by the direct recruits. We uphold the judgment of the High Court with regard to dismissal of Writ Petition (SB) No.16569 of 2016 filed by the promotees and dismiss the appeal arising out of Special Leave Petition (civil) D.No.39750 of 2017.
In view of the above, all other matters will stand disposed of accordingly.
……………………………….J. (Adarsh Kumar Goel) ……………………………….J. (Rohinton Fali Nariman) New Delhi;
March 28, 2018.
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