Allahabad High Court
Niraj Upadhyaya And Others vs High Court Of Judicature At Allahabad ... on 10 May, 2000
Equivalent citations: 2000(3)AWC2108, (2000)2UPLBEC1758
Author: Ratnakar Dash
Bench: Ratnakar Dash
JUDGMENT S. R. Singh, J.
1. This cluster of five writ petitions proceeds from selection to the Uttar Pradesh Higher Judicial Service (In short the 'service') pertaining to the recruitment years 1992-1994 held pursuant to an advertisement issued in June, 1996 thereby inviting applications for recruitment against 19 vacancies in the service in the pay scale of Rs. 4,500-5,700 attended with admissible allowances. According to the advertisement. 10 vacancies were earmarked for general candidates, four for Scheduled Castes and five for O.B.C. (Other Backward Classes). The advertisement encapsulated a clause that there might be 'variance' in the number of vacancies without prior notice.
2. The petitioners appeared in the written examination as also in the interview, which followed the written examination. The names of the petitioners glow in the select list prepared under sub-rule (4) of Rule 18 Of the U. P. Higher Judicial Service Rules. 1975 (hereinafter referred to In the abbreviated form as the 'Rules'). The select list enlisted 40 candidates in all, i.e., twice the number of vacancies required to be filled by direct recruitment as exacted by the directions of the Supreme Court in O. P. Garg and others v. State of U. P. and others, AIR 1991 SC 1202. The Court, however, transmitted to the Governor truncated lists of each category of candidates sized up to the number of vacancies.
3. We have heard S/Sri Aahok Khare, Ashok Bhushan, Anjani Kumar and Shiva Nath Singh for the petitioners and Sarva Shri Sunil Ambwani counsel appearing for the High Court, S.M.A. Kazmi for certain member of the Nyayik Sewa and standing counsel representing the State of Uttar Pradesh.
4. The first, rather the foremost, question surcharged with considerable litigious potentiality is whether the number of officers to be called at the recruitment from the bar, was correctly fixed compatible with the requirements of Rule 8 (1) read with Rule 6 of the Rules? Recruitment to the Service, it may be observed, is now made from two sources : (1) by direct recruitment of pleaders and advocates of not less than seven years' standing on the first date of January next following the year In which notice inviting application la published ; and (ii) by promotion of confirmed members of the U. P. Nyayik Sewa (In short the 'Nyayik Sewa'). who have put In not less than seven years of service to be computed on the first date of January next following the year in which the notice inviting application is published. The quota Tor direct recruitment from the bar is pegged at 15% and the one for members of the U. P. Nyayik Sewa is 85% as the total cadre strength as provided In Rule 6 of the Rules. Anteceding this, the quota prescribed under Rule 6 of the Rules for the members of the Nyayik Sewa was 70% of the vacancies and 15% was earmarked for U. P. Judicial Officers Service (Judicial Magistrates) which has since become an extinct cadre. and now the percentage fixed for them, stands subsumed in the Nyaytk Sewa. It has been held in Srikant Tripathi v. State of U. P., 1987 UPLBEC 222 (FB), that the quota prescribed under Rule 6 for direct recruitment is conditional upon and circumscribed by constraints provided under Rule 8 of the Rules.
5. The exercise for determination of vacancies available for appointments to the service in respect of the concerned recruitment, seems to have come into play with the office note dated 6.1.1996, which waded Its way through the Registrar of the Court, delineating therein the total number of sanctioned strength (permanent and temporary) of the cadre and the number of the officers working as on 1.1.1996. According to the said office note, 119 vacancies were forthcoming from before 6.1.1996 and 12 vacancies were 'likely' to arise as a sequel to retirement in 1996. By this reckoning. 131 vacancies were, according to the office note, available for appointment in the concerned recruitment years. The detailed calculation embodied in the office note dated 6.1.1996 is quoted below for ready reference.
"Registrar It has been directed by your honour that the vacancies in H.J.S. may be worked out for appointment in U. P. Higher Judicial Services upto 31.12.1996.
The required Information is as under :(1)
Total sanctioned strength (permanent/temporary) as already counted upto 31.12.1992.596 (2)
Temporary Courts/ posts created after 31.12.1995 upto till today.63
I. Court/Posts of A.D.J. 55 II; Courts/Posts of A.D.J. (C.B.I.) 5 III. Courts/Posts of D.J. (New Districts) 3 Total : 659 (3) 15% of 659-98.8 = (99) (4) Number of working H.J.S. Officers as on 1.1.1996. I. H.J.S. Direct Recruits 68 II. H.J.S. from J.O.Services 23 III. H.J.S. from Nyayik Seva. 431 Total : 522 (5) Officers proposed and moved to Government for appointment in 1990 recruitment I. H.J.S. (Direct Recruits) 5 II. H.J.S. from Nyayik Sewa 13 Total : 18 (6) Total working and proposed Officers for H.J.S. 522+18 540 (7) Vacancies for appointment In H.J.S. till date 659-540 = 119 (8) Retirements in 1996. 12 Total : 131 Submitted.
6. The office note aforestated was submitted to the Registrar who relegated it to the S.O. Admn. (F) subscribed with the note : "Please take immediate steps for recruitment for years 1992 and 1994." On 18.1.1996, the S.O. Admn. Scripted a note to the Registrar proposing the latter to place the file before the then Acting Chief Justice for constituting a Committee to conduct the U. P. Higher Judicial Service (Direct Recruitment) Examination, 1992-94. The file ten, it would seem, came to be placed before the then Acting Chief Justice, who constituted a Selection Committee comprising three Hon'ble Judges on 18.1.1996, itself. The selection committee in its meeting held on 18.3.1996 resolved that the number of vacancies for the direct recruitment be determined in terms of Rule 8 (1) of the Rules. In compliance with the aforestated resolution passed by the Selection Committee, the Joint Registrar submitted a report dated 21.3.96 to the Registrar, signifying therein that sanctioned strength of the cadre was "reported to have been 659" including 55 posts created vide G.O. dated 21.10.1994 and 5 posts created by G.O. dated 24.2.1995. The report further contained the statement that as agatnst the said sanctioned strength. 521 officers were in-harness as on 6.1.1996 and 18 were commended for appointment to the cadre in the recruitment year 1990. The total number of the existing officers in the service was reported to be 539 including 18 officers recommended for appointment in the recruitment year 1990. On the basis of this figure. It was stated in the report, 120 posts were actually lying vacant and 10 officers were likely to retire till 31.12.1996 and thus, the total number of vacancies available for appointment at the concerned recruitment, were reported to be 130 out of which 4 posts had already been advertised for Special Recruitment of Scheduled Castes to fill up the cany forward vacancies of their quota. After excising those posts, the total vacancies for recruitment years in question were reported to have dwindled to 126. the quota of direct recruits was calculated on the said number @15% which came to be 18.9. On being rounded off on principle indicated in the first proviso to Rule 6, it was equated to 19 posts falling In the quota of direct recruits. The report of the Joint Registrar was placed before the Registrar who In turn placed it before the then Chief Justice on 22.3.1996 studded with the note : "If approved, the Committee be requested to ensure the process of recruitment for these posts." The then Chief Justice lent his approval by the word 'yes'. The Selection Committee went ahead with the process of selection-recruitment taking for granted the number of vacancies available for direct recruits as 19. The questions that now arise for consideration are two-fold : Whether the exercise aforestated is tantamount to fixation of vacancies by the Court within the meaning of Rule 8 (1) of the Rules? And whether the number of vacancies for direct recruits was correctly fixed as nineteen as per requirement of Rule 6 of the Rules? We are afraid, the exercise aforestated was at the most pre-fixation exercise, which cannot be tantamount to fixation of vacancies by the Court under 8 (1) of the Rules. Rules 6 and 8 of the Rules being germane to the discussion on the point under consideration are abstracted below :
"6. Quota.--Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be-
(i) direct recruitment from the Bar
- 15%
(ii) Uttar Pradesh Nyayik Sewa
- 70% of the vacancies
(iii) Uttar Pradesh Judicial Officers Service (Judicial Magistrates)
- 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 Nyaylk 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 the total permanent strength of the service ;
Provided.....
Provided.....
7. The plain language employed in Rule 8 (1) of the Rules clearly connotes that it is the 'Court', which has to '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.' The report submitted by the Joint Registrar dated 21.3.1996 and Its approval by the Chief Justice is not tantamount to fixation of vacancies by the 'Court' within the meaning of Rule 8 ID of the Rules. The term 'Court' as defined in Rule 22 (d) of the Rules "means the High Court of Judicature at Allahabad" and as visualised by Article 216. 'Court' would mean the Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. In this view of the matter, the term 'Court' would mean the Full Court. True, the Full Court may delegate any of its functions under the Rules to the Chief Justice or a Committee of Judges provided it is permissible so to do under the Rules or the Rules of the Court. Our attention has not been drawn to any provision in the Rules, or in the Rules of the Court, permitting delegation of the function of the Court under Rule 8 (1) of the Rules to the Chief Justice or to any Committee of Judges of the Court. The Selection Committee constituted by the Chief Justice under Rule 16 of the Rules may, with the help of the Registry, do the ground work but fixation of the number of officers to be taken at a recruitment, would be accomplished only upon a resolution being passed In that regard by the Full Court.
8. Now, we may embark upon the question whether the respective quota of direct recruitment and promotion as prescribed was worked out in accordance with law. The cadre of judicial officers having become extinct, there remain only two sources of recruitment. One by direct recruitment to the extent of 15% and the other by promotion of the members of Nyayik Sewa to the extent of 85% of the cadre strength. In Shri Kant Tripathi and another v. State of U. P. and others (supra), a Full Bench of this Court has held that after fixation of the number of officers to be taken at the recruitment, the Court must revert to Rule 6 to apportion the vacancies to the respective sources of recruitment. Rules 6 and 8 of the Rules have been held forming integral part of the same scheme. A conjoint reading of Rules 6 and 8 leads to an irresistible conclusion that subject to availability, the vacancies should be so apportioned to the share of direct recruits that their total number in the cadre does not exceed 15% of the total cadre strength at the relevant time. Such allocation would, of course, be subject to upward variation due to occurrence of any vacancy In the quota of direct recruits. 'In the next two years'. The total cadre strength as on 6.1.96 was admittedly 659. The number of officers working as on the said date was 522 out of which 68 were direct recruits. 15% of the cadre strength comes to be 98.8. This figure on being round off as per principle enunciated in the first proviso to Rule 6 of the Rules comes to 99 beyond which the number of direct recruits in the cadre cannot go at any point of time. On this figure, the 15% quota of direct recruitment comes to 199-68) = 31 as on 6.1.96. Five direct recruits were recommended in 1990 recruitment and four posts were advertised to fill up the carry forward quota of Scheduled Caste candidates. Thus, the number of direct recruits to be taken at the recruitment comes to (31-9 = 22). This figure of 22 was subject to upward variation due to any vacancy in the quota of direct recruits that may occur in the next two years.
9. Now let us see as to how many vacancies actually occurred in the quota of direct recruits 'in the next two years' i.e., between 6.1.96 and 6.1.98. Admittedly, 22 'anticipated' and 36 'future' vacancies had in all occurred in the relevant period. Out of 22 officers who were superannuated during the said period, three belonged to direct recruitment quota. They were S/Sri S. K. Gupta. R. L. Ojha and S. B. Balbir who retired from service on 30.6.1997. 31.7.1997 and 31.12.1997 respectively. Thus, the number of direct recruits to be taken at the recruitment went to (22+3) = 25. And out of 36 future vacancies four that had arisen due to elevation of the incumbents to the Bench belonged to the direct recruitment quota. These were due to the elevation of S/Shri J. C. Misra. J. C. Gupta on 22.3.96 and S/Sri P. K. Jain and Bhagwan Deen on 19.11.96 to the Bench causing four more vacancies In the quota of direct recruitment. Two out of the aforestated four vacancies had in fact occurred even before the advertisement. Three more vacancies in the direct recruitment quota had occurred 'In the next two years' due to removal of Sri V. P. Singh from service on 11.7.1997 and compulsory retirement of Sri Muninendra Kumar and Sarnam Singh on 25.7.1997 and 31.12.1997 respectively. If these anticipated and future vacancies of direct recruitment quota are also to be filled from the select list prepared under Rule 18. then the number of direct recruits would go up to 32. Unfortunately. the Selection Committee proceeded with the process of recruitment sans determination of vacancies and their apportionment to the respective sources of recruitment by the Court and caused only 19 vacancies to be advertised in the newspaper in the month of June, 1996 and completed the selection process and submitted its report to the Chief Justice on October 1, 1997 without any prior fixation of the numbers of officers to be taken at the recruitment in question keeping in view the vacancies then existing and 'likely' to occur 'in the next two years'. The number of direct recruits to be taken at the recruitment was calculated @ 15% of the number of assumed vacancies (excluding the future vacancies). The Selection Committee fell into error in computing the quota of direct recruitment on 15% of the number of assumed vacancies whereas according to Rule 6, the quota ought to have been worked out on the total cadre strength and thereafter the vacancies should have been so apportioned that the percentage of the direct recruits In the service did not exceed 15% of the total cadre strength (permanent and temporary). The term 15% of the vacancies in Rule 6 means '15% of the posts in the cadre' for there can be no vacancy sans posts.
In re-vacancy position
10. The report of the Selection Committee came up for consideration before the Full Court in its meeting held on 7.3.1998 wherein the Full Court resolved that "the matter be deferred for further consideration by the Committee, particularly the question of determination of vacancies for recruitment to the Higher Judicial Service." The Selection Committee, on re-determination of vacancies, found that there were 121 'existing' vacancies as on 6.1.1996 and 16 vacancies were 'likely' to occur in the next two years, i.e., from 6.1.1996 to 6.1.1998. Thus, total number of vacancies available in the recruitment years in question, according to the Selection Committee, was 137 out of which 21 posts were allocated to the direct recruits from the bar and 116 to the members of Nyayik Sewa. The Selection Committee accordingly prepared fresh lists of direct recruits and promoters containing 40 names in the list prepared under Rule 18 and 232 In the list prepared under Rule 20. The report of the Selection Committee came up for consideration before the Full Court in its meeting held on 11.7.1998 in which the following resolution was passed in respect of direct recruits :
'Resolved that the recommendations made by the Selection Committee in list 'A' (with respect to general candidates), List 'B' (with respect to O.B.C. candidates) and List 'C' (with respect to S. C. candidates). Direct recruits approved.
Further resolved that the list submitted by the Selection Committee as approved by the Full Court shall remain operative till the next recruitment for appointment in substantive vacancies under Rule 22 (1) read with 22 (2) of the Higher Judicial Service Rules. 1975.
Further resolved that since the name of Sri Praveen Kumar Saraf mentioned at SI. No. 4 of the officers of O.B.C. in list 'B' has been recommended by the Selection Committee to be excluded from the list, the Selection Committee is requested to consider inclusion of one more candidates in the list of O.B.C. Further resolved that the result of selection be declared Immediately and follow-up action taken without any delay."
11. The full Court although approved the lists 'A', 'B' and 'C' containing the names of general candidates, O.B.C. candidates and Scheduled Caste candidates respectively but when the minutes of the meeting of Full Court held on 11.7.1998 came up for confirmation in the subsequent Full Court meeting held on 10.10.1998, it spawned a doubt as to whether the vacancies available for direct recruit were correctly fixed and allocated by the Selection Committee. The Full Court while confirming the minutes of the previous meeting held on 11.7.1998, resolved that 'if any mistake with respect to Item No. 2 in the follow-up action is detected, the same may be rectified by the Hon'ble Chief Justice. 'Pursuant to the said resolution, the Hon'ble Chief Justice, constituted a Committee of three Hon'ble Judges to determine 'whether there is any mistake in calculating the vacancies or posts to filled by direct recruitment and promotion for the last recruitment to the service. 'The Hon'ble Judges constituting the Committee differed in their views in certain respects and accordingly, two separate reports were prepared ; one is dated 10.5.1999 prepared by Hon'ble O. P. Garg, J., and the other dated 16.5.1999 drawn by Hon'ble J. C. Gupta, J., Hon'ble D. S. Sinha, J., concurred with the report prepared by Hon'ble O. P. Garg, J., and thus the report dated 10.5.1999 represented the majority view the factual substance of which is that though the figure of 121 vacancies existing as on 6.1.1996 was correct, the calculation of vacancies which were 'likely' to occur in the next two years was wrong inasmuch as the names of six officers who were to retire during the period 6.1.1996 to 6.1.1998. came to be omitted in the calculation of 'likely' vacancies. And thus, according to the majority view, the total number of vacancies available for recruitment in the relevant recruitment years as per Rule 8 (1) of the rules was 143 and by this reckoning, the quota of direct recruits was distilled to 21.45, i.e., 21 posts which was the number determined earlier by the Selection Committee. According to the minority report, one vacancy that had occurred on 1.1.1996 owing to the death of the Incumbent Mohd. Farooq too should have been taken Into reckoning In the 'existing' vacancies as on 6.1.1996 taking its number to 122 instead of 121. Sri Sunil Ambwani appearing for the High Court. In keeping with the high traditions of the Court, did. not mince words to concede that the vacancy which occurred on 1.1.1996 due to the death of the incumbent Mohd. Farooq too, ought to have been subjoined in the number of vacancies existing as on 6.1.96 and thus the total number of vacancies available for relevant recruitment years admittedly came to be 144 as against 143 indicated in the majority report. And on this reckoning, the number of vacancies to be Jilted tn from the source of direct recruits even if it is worked out & 15% of the total number of vacancies would concededly come to 21.60, i.e., 22. The report of the Joint Registrar dated 21.3.1996 displaying the number of vacancies available for direct recruits as 19 which was approved by the Chief Justice on 22.3.1996 and on the basis of which selection process had commenced, was thus on the flip-side of accuracy. In the minority report dated 16.4.1999, it has further been found as a fact which brooks no dispute at the end of the counsel for the respondents, that 'during the period of recruitment in question (6.1.96 to 6.1.98) in fact. 36 substantive vacancies had occurred on account of death, compulsory retirement, voluntary retirement, removal, dismissal and appointment of officers as Judge of Allahabad High Court, etc. in addition to the above 22 anticipated vacancies which also had occurred during the said period of recruitment.' 'These vacancies', according to the minority report, 'were available for making substantive appointment under Rule 22 (1) read with Rule 22 (2) of the Higher Judicial Service Rules. 1975. from both sources of service within their quota.' The vacancy position in relation to the recruitment in question emerging from relevant reports and the submissions made across the bar was as under:
(i) Number of vacancies actually existing as on
6. 1 .96.122
(ii) Number of anti-which occurred due to retirement between 6.1.96 and 6.1.98.
22 (iii) Number of unforeseen vacancies which actually occurred during the period of recruitment (i.e.. 6.1.96 to 6.1.98) due to death, dismissal, pre-mature retirement, elevation etc. 36 (iv) Total number of substantive vacancies available for appointment under Rule 22 (1) of the rules. 180 (v) Number of substantive vacancies available for appointment from thedirect recruitment and promotion would be as under : (a) Direct recruits @ (15% of the vacancies) 27 (b) Direct Recruits @ 15% of the cadre strength 31-9)+3+4+3 =32 (c) Member of Nyayik Sewa (85% of the vacancies) 153 (d) Member of Nyaylk Sewa 985% of the cadre strength 151
12. So far as occurrence of thirty-six vacancies due to death, compulsory retirement, dismissal, termination, elevation, etc. during the relevant period is concerned, that has not been repudiated by the learned counsel appearing for the respondents except that one of these vacancies caused due to dismissal of Sri Sarnam Singh has since ceased to exist due to his reinstatement pursuant to the judgment of the High Court which has received reinforcement from the Supreme Court. According to the respondents, however, these thirty-six vacancies being 'unforeseen' vacancies, were legally not available for appointment during the period of recruitment in question Inasmuch as. proceeds the submission of the learned counsel for the respondents, the law permits recruitment in respect of 'existing vacancies' and vacancies 'likely' to occur within two years, i.e.. anticipated vacancies as distinguished from unforeseen future vacancies. It has been submitted by Sri Sunil Ambwani that unforeseen vacancies do not come within the purview of vacancies "likely to occur within the next two years" in the visualisation of Rule 8 (1) of the rules and in any case, appointment in the unadvertlsed vacancies falling in the quota of direct recruits. If made, would violate Articles 14 and 16 of the Constitution. We will now scan the question whether appointment to Jill up the unforeseen vacancies falling in the quota of direct recruits as Indicated above could be made from the list of successful candidates prepared by the Selection Committee and approved by the Full Court even though the unforeseen vacancies falling in the quota of direct recruits were not and in fact, could not have been advertised. In order to appreciate the question, we feel called to delve into the true intendment and effect of Rule 22 (1) read with Rules 18 (4) and 20 (3) of the rules interface the Judgment of the Supreme Court in O. P. Garg case. Rule 22 of the rules, as it stood prior to O. P. Garg (supra), is excerpted below for ready reference :
"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 Rules, 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 Nyayik Sewa, the second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies shall thereafter be filled by promotion from the list of the officers of the Nyayik 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 eight (and so on), vacancy shall be filled from the list of Judicial Magistrates.
(3) Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa :
Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrate, appointments on temporary vacancies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrates according to the quota fixed for that source under these rules :
Provided further that for so long as such members of the Judicial service as are considered suitable for appointments on temporary vacancies or in officiating capacity, are not available in sufficient number, the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates.
(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).
13. Sub-rules (3) and (4) of Rule 22 of the rules came to be struck down by the Supreme Court in O. P. Gary's case. Under Rule 22 (1), as it stands, the Governor, on receipt from the Court of the lists mentioned In Rules 18 and 20 is to make appointment 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." Sub-rule (4) of Rule 18 lays down that the Court shall, 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'. Sub-rule (1) of Rule 20 visualises that the recruitment by promotion of the members of Nyayik Sewa shall be made by selection on the basis of 'seniority-cum-merit'. The field of eligibility, according to sub-rule (2), is to be circumscribed within the limit of 4 times the number of vacancies to be filled up by promotion. "The list", it is envisaged in sub-rule (3) of Rule (20), "shall contain the names of officers twice the number of vacancies required to be filled by promotion of the members of Nyayik Sewa". and according to sub-rule (5) of Rule 20. "The list shall remain operative only till the next recruitment." It would crystallise that unlike Rule 20, Rule 18 is albeit, bared of the stipulation that the list shall contain the names of selected candidates twice the number of vacancies required to be filled by direct recruitment but the Supreme Court in O. P. Garg's has held that the list of candidates selected for direct recruitments would contain names of candidates "twice the number of vacancies and the said list shall remain operative till the next recruitment" as otherwise the rule would be Infringing on Article 14. The respective lists embody the names of candidates nearly twice the number of vacancies assumed by the Selection Committee. As noticed above, the number of actual vacancies as on 6.1.1996 was 122 and the number of the vacancies, which occurred due to retirement in the next two years. i.e., between 6.1.1996 and 6.1.1998. was 22. Out of these 144 vacancies, only 19 vacancies were publicised for direct recruitment but 20 candidates came to be appointed pursuant to the recommendations made by the Court. And out of 36 vacancies which occurred during the relevant period due to death, dismissal, premature retirement and elevation, etc., there remained only 35 vacancies due to the reason that one vacancy which had, occurred by reason of dismissal of the incumbent Sarnam Singh--a direct recruit--has since ceased to exist as a necessary corollary of the judgment of this Court which came to be upheld by the Supreme Court in High Court of Judicature at Allahabad v. Sarnam Singh, JT 1999 (10) SC 99. The objection to these thirty-five vacancies being filled from the list of selected candidates approved by the Full Court, is two-fold firstly, that the expression 'likely vacancies' cannot be so construed as to bring within its sweep the 'unforeseen vacancies' which occurred owing to death, dismissal and elevation, etc.. in that Rule 8 (1) of the Rules only envisages the vacancies 'then' existing and 'likely' to occur 'in the next two years' ; and secondly, that though the vacancies had in fact occurred in the next two years, they could not be filled without the vacancies in the quota of direct recruits being advertised except on pains of infringement of Articles 14 and 16 of the Constitution. So far as the first objection is concerned, it does not commend to us to be sustained. Rule 8 (1) of the Rules provides for fixation of vacancies then existing and the vacancies 'likely' to occur in the next two years. The dictionary meaning of the word 'likely' is 'probable', 'in all probability' ; 'feasible'. It is a word of speculative import. The true meaning of the word 'likely' will have to be ascertained with reference to the context in which it has been used in sub-rule (1) of Rule 8 of the Rules. The object and purpose of keeping in view the vacancies that may occur in the next two years and keeping the list operative till the next recruitment are to be borne in mind while construing the word 'likely' used in sub-rule (1) of Rule 8 of the Rules. In our opinion, it may be construed as meaning vacancies the occurrence of which in the next two years may be reasonably probable depending on retirement on attaining the age of superannuation. Impending cases of resignation, premature retirement, dismissal, or termination (where the Court has already taken decision) and cases of elevation to the Bench (where the appointment has been announced and only oath remains to be taken) may well come within the sweep of 'likely' vacancies to be taken notice of while fixing the number of officers to be taken at the recruitment as visualised by Rule 8 (1) of the rules. It cannot be confined or narrowed down to the vacancies occurring on superannuation only. Future vacancies not falling in the above categories may not be available at the time of fixation under Rule 8 (1) of the Rules but they shall be available for appointment under Rule 22 (1) if they occur 'in the next two years'. In Dunning v. Board of Governors of the United Liverpool Hostel, 1973 All ER 454, the expression 'likely to be made' used in Section 31 of the Administration of Justice Act. 1970 was construed by Lord Denning. M. R. as meaning 'may' or 'may well be made' depending upon the outcome of the discovery from the documents, an event as uncertain as occurrence of unforeseen vacancy in the present case. In Rafat Ali v. Sugni Bai, JT (1991) 1 SC 133, the expression "such acts of waste as are likely to impair materially the value or utility of the building" was construed thus : The word 'likely' tn the above clause must be understood as a condition which is reasonably probable that such acts would cause Impairment to the value or utility of the building.' Thus, the view we are disposed to take in this case, finds reinforcement from the said decision. Therefore, the vacancies, which actually occurred during the relevant recruitment period of two years, i.e. upto 6.1.98, could well be said to be vacancies available for appointment under Rule 22 (1) of the Rules even if they may not be available at the time of fixation of vacancies under Rule 8 (1) of the Rules.
14. Now the next question to be considered is : whether anticipated and future vacancies In the quota of direct recruitment could be filled sans advertisement? In Rakesh Kumar Trivedi v. High Court of Judicature at Allahabad and another. 1994 (2) UPLBEC 1400. the vexed question that begged consideration was whether the appointments could be made in excess of advertised vacancies by Invoking aid of 'variation' clause of the advertisement. The Bench nodded in approval, It could be. The relevant observations in this regard read as under:
".....In the Instant case, since in the advertisement itself it was made clear that there may be variation in the number of vacancies hence it was well within the powers of the Court to recalculate the vacancies In the light of the observations made by the Apex Court in O. P. Garg's case and thereby no prejudice can be presumed to have been caused to the petitioner if the High Court approved and recommended the names of candidates more than the vacancies advertised. By virtue of the clause pertaining to variation in the number of vacancies inserted in the advertisement it is open for the High Court to cope with the developments which took place in between from the date of advertisement till the date of final selection. Therefore, impugned action of the High Court cannot be said to be contrary to Rules 6 and 8 of the Rules."
15. In Virendra S. Wood a and others v. State of Haryana and another, AIR 1999 SC 1701. procedure for selection to be followed by the Haryana Public Service Commission, was envisaged in the Government Circular which visualised that apart from the notified vacancies, additional vacancies arising within six months could be filled up from amongst the names recommended by the Commission in excess of the notified vacancies. The High Court held the view that administrative Instructions could not be read as making it obligatory for the appointing authority to appoint the candidates in excess of the advertised posts. The Supreme Court negatived this view holding that since the vacancies arose within a period of six months from the date of previous selection, the circulars would be attracted and hence, the view of the High Court that vacancies arose after the selection process had commenced, had no relevance and ran counter to the declared policy of the Government in the matter to fill up such posts from the waiting list.
16. In K. N. Singh and others v. State of U. P. and others, a Five Judge Bench of this Court has construed the term "then" in the expression "vacancies then existing" used in Rule 8 (1) of the Rules, to mean "the date when the Court fixed the number of vacancies". In the instant case, the number of vacancies could be said to have been fixed by the Court within the meaning of sub-rule (1) of Rule 8 for the first time on 11.7.98 when the Full Court, approved the recommendations of the Selection Committee and from this reckoning, the number of vacancies "then" existing would be (180-1) = 179. The 15% quota of direct recruitment out of 179 vacancies ought to be determined by deducting the number of existing direct recruits from the total number of posts in the cadre falling in their quota which was concededly 99 at the relevant time. As seen herein above, the number of direct recruits to be taken at the recruitment In question should be 31.
17. In Dr. Uma Kant v. Dr. Bhika Lal Jain and others, (1992) 1 SCC 105, the Supreme Court had an occasion to examine the scope of a 'reserve list' which the Selection Committee constituted under the provisions of the Rajasthan University Teachers and Officers (Selection for Appointment) Act. 1974, was required to prepare to the extent of 50 per cent of the vacancies as provided in sub-section (4) of Section 6 of the said Act. The Supreme Court held to the following effect.
"We agree with the contention of the university that a reserve list is always prepared to meet the contingency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise. This is done in view of the fact that it takes a long time in constituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appointments keeping in view the interest of the student community .....
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selection was made and which according to the High Court could only be available to the incumbents in the reserve list if the person recommended in the main list did not join such post.....
And further, "Section 6 (4) of the Act of 1974 clearly provides that the Selection Committee while making its recommendations to the Syndicate under sub-section (2) shall prepare a list of candidates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50 per cent of the vacancies for the post of teachers or officers. Thus, a reading of Section 5 with Section 6 (4) makes it quite clear that the Selection Committee constituted shall recommend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50 per cent of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any vacancy is caused during the validity period of the reserve list."
18. In Dr. Abdul Hamid Fazli and another v. Adam Malik Khan and others. 1997 (1) ESC 182 (SC). Selection Committee constituted by the University under Allgarh Muslim University Act conducted the selection for one permanent post of Lecturer in Islamic Studies in the Department of Islamic Studies. Allgarh Muslim University. Allgarh and one Abdul Hamid Fazli, a temporary lecturer was selected and posted against the said vacancy on May 19, 1994. In the select-list, three more persons were kept in the 'Reserve List'. When the temporary vacancy occurred, one of the persons of the reserve list came to be appointed in the said post. This led to filing a writ petition in the High Court canvassing the validity of the appointment and the very power of the Selection Committee to prepare the select list, to be brought to bear for appointment against a vacancy jettisoning the selection as contemplated under Section 29 of the Aligarh Muslim University Act. A Division Bench of this Court held that the recommendations of the Committee for preparing the select list and keeping that list alive for filling up the vacancies arising due to retirement etc. was in antagonism of Section 29(2)(a) of the Allgarh Muslim University Act and therefore, the resolution and the action of the Executive Council were ultra vires the power. The case of Dr. Uma Kant (supra), was distinguished on the premises that Section 6 of the Kajasthan Teachers and Officers (Selection for appointment) Act, 1974, Itself ceded power to prepare a reserve list of the 50% of the post advertised so that if any candidate selected, did not join the post after appointment, the candidates in the waiting list could be appointed. Unlike Section 6 of the said Rajasthan Act. Section 29 of the Allgarh Muslim University Act, did not contemplate preparation of a reserve list and hence, the case of Dr. Uma Kant was distinguished and the view taken by the High Court was held to be 'perfectly legal and unexceptionable' by the Supreme Court.
19. In Hoshiar Singh v. State of Haryana, 1993 (4) SCC 377. a requisition was sent to select candidates for appointment on six posts of Inspector of Police. By advertisement dated 22.1.1998, applications were Invited for the said six posts. Subsequently, a revised requisition for eight more posts were sent. The Board recommended 19 names out of which 18 persons were given appointment. Those appointments were challenged before the Punjab and Haryana High Court and it was held that appointments beyond 6 advertised posts were illegal. On appeal, the Supreme Court held as under:
"The appointment on the additional posts on the basis of such selection and recommendations would deprive the candidates who were not eligible for appointment to the post on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was therefore, right in holding that the Selection of 19 persons by the Board even though the requisition was for 8 posts (6 posts?) only was not legally sustainable."
20. Gujarat State Dy. Executive Engineer Association v. State of Gujarat and others. (1994) Supp. (2) SCC 591, was heavily relied on for the respondents to shore up their contention that the select list containing names in excess of the advertised vacancies would stand exhausted once the advertised vacancies are filled up. In that case. the question as to what should be the duration of a waiting list as also the question as to whether the waiting list should be treated as a source of recruitment from which the candidates may be drawn as and when necessary were reckoned with by the Supreme Court. The Apex Court observed that the waiting list in service matters is not a source of recruitment and that usually "it is linked with the selection or examination for which it is prepared." The Court held :
"Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the watting list in order of merit has a right to claim that he may be appointed if one or the other selected candidate does not Join but once the selected candidates Join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within the reasonable period where no specific period was provided, then the candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent indicated above or when the appointing authority acts arbitrarily and makes appointment from waiting list by picking and choosing for extraneous reasons.
21. The observation made in the above extracted passage to the effect that "once the selected candidates join...then the candidate from the waiting-list has no right to claim appointment to any future vacancy which may arise" is subject to the condition that "no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within a reasonable period when no specific period was provided." We are of the firm opinion that the decision aforesaid does not help the respondents. Rather It reinforces the view we are taking particularly in view of specific stipulation in the advertisement itself that there might be 'variance' in the number of vacancies without prior notice and also in view of the specific provision in the rule that the list will remain operative till the next recruitment. We are reinforced In our view by a Division Bench decision of this Court in R. K. Trivedi v. High Court of Judicature at Allahabad, (1994) 2 UPLBEC 1400.
22. In Ashok Kumar and others v. Chairman B. S. R. B. and others, 1996 (1) SCC 238, the Supreme Court reckoned with the question whether the recruitment of the candidates in excess of the notified vacancies could be fraught with the insidious effect of denial and deprivation of the constitutional rights under Articles 14 and 16(1) of the Constitution. The Supreme Court reasoned as under :
"Article 14 read with Article 16(1) of the Constitution enshrined fundamental rights to every citizen to claim consideration for appointment to the post under the State. Therefore, the vacant post arising are expected to be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancy is the denial and deprivation of the Constitutional rights under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards though the vacancies had arisen subsequently without being notified for recruitment is unconstitutional."
23. In Prem Singh and others v. Haryana State Electricity Board and others. JT 1996 5 SC 219, it has been held inter alia that vacancies should be advertised and selection should duly be made giving an opportunity to all the candidates and that Selection Committee cannot make selection for future vacancy and fill up the post from the reserve list of candidates. Similar view finds it echo in Union of India v. Ishwar Singh Khatri. 1992 SCC (L & S) 999 ; State of Haryana Secretariat v. Secretariat Assistant Successful Engineers Union, AIR 1994 SC 737. These decisions, in our opinion, are unavailing to construing the provisions of the Service Rules with which we are concerned herein, nor do they have any bearing with the fact situation of the present case discussed herelnabove particularly qua the specific stipulation in the advertisement that the number of vacancies might be varied and the fact that the number of vacancies came to be fixed by the Court on 11.7.1998, i.e., after completion of the entire process of selection.
24. In the conspectus of the above factual and legal position, 11 more candidates of the list prepared under Rule 18 of the Rules in order of merit are entitled to be appointed subject, of course, to the law of reservation contained in the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 read with Rule 17 of the Rules over and above the twenty persons already appointed out of the select list of forty candidates. The argument that appointment over and above the number of advertised vacancies would be Impermissible in law. cannot be countenanced in view of the 'variation' clause incorporated in the advertisement itself and also in view of the provisions of Rules discussed herelnabove. That apart, the Court recommended 20 candidates for appointment as against 19 advertised posts.
25. Another question raised at the Bar was as to--"Whether the High Court was justified in sending a truncated list to the Government? A conjoint reading of sub-rule (4) of Rule 18, sub-rules (3) and (5) of Rule 20. sub-rule (1) of Rule 22 of the Rules and the Judgment of the Supreme Court in O. P. Garg's case would make it abundantly clear that an obligation is cast on the High Court under the Rules to forward the entire select list containing names of officers twice the number of vacancies required to be filled by promotion as also by direct recruitment so as to enable the Governor to make appointments to the service on the occurrence of vacancies by taking the names from the lists in the order in which they stand in the respective lists during the period the lists remain operative. The Court, in our opinion, was not Justified in sending truncated lists of selected candidates of each source. The view we are taking finds support from the decision of the Supreme Court in Miss Neeltma Shangla v. State of Haryana, AIR 1987 SC 169. It would be apposite to quip here that the select lists prepared under Rules 18 and 20 are to 'remain operative only till the next recruitment year' as visualised by sub-rule (5) of Rule 20 and the Judgment of the Supreme Court in O. P. Garg's case. Rule 8 (1) makes it obligatory on the Court to fix the number of officers to be taken at recruitment, from time to time, "but not later than three years from the last recruitment". The scheme of the Rules thus visualises that there should not be an Interregnum of more than 3 years in between two recruitments. In such view of the matter, sub-rule (5) of Rule 20 and sub-rule (1) of Rule 8 read together would lead to an inescapable conclusion that the select lists would remain operative till the commencement of the next recruitment or expiration of a period of three years from the last recruitment whichever event recurs earlier. in other words. If the interregnum between the two consecutive recruitment spans more than 3 years, then In that eventuality the select list would lapse notwithstanding the stipulation making the list tenable till the next recruitment as contained in sub-rule 15) of Rule 20 and the direction contained in O. P. Carp's case. Any other construction may lead to perpetuation of the selection lists and violation of Articles 14 and 16 of the Constitution. Thus, the construction that we beg to put upon Rule 8 (1) read with Rule 20 (5) read with O. P. Garg's case would not be fraught with the consequence of creating any vested interest and/or perpetuation of waiting list inasmuch as the maximum period upto which the select list is to endure its tcnablllty would not exceed three years. We are further of the view that though the select lists may remain operative for a period of three years, appointments on the basis of the select lists would be confined to 'existing' vacancies and vacancies occurring 'in the next two years.' The view we are taking is in line with the well-settled law that rules should be so construed as to avoid uncertainty and friction in the system and further that a construction, which promotes the object of the rules, should be preferred. The principle has been succinctly, stated by Lord Shaw in Shannon Realities Ltd. v. St. Michael (Ville Del (1924) AC 185 (PC) 192. 193. In the following words :
"Where words of a statute are clear, they must, of course, be followed but in their Lordships' opinion, where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating ; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system."
26. In Writ Petition No. 1716L of 1998, Ram Bhawan v. State of U. P. and others, an additional point has been brought to bear. Ram Bhawan's name figures at SI. No. 6 In the list of O.B.C. candidates. Only five candidates in order of merit, belonging to O.B.C. were commended to the Governor for appointment. It is to be taken into reckoning that even if the number of direct recruits to be taken at the recruitment in question, was 21, as the report of the Selection Committee envisages, the number of O.B.C. candidates at the rate of 27% would work out to be 5.67 which on being rounded off. can be equated to 6. Though six posts fell in the quota of O.B.C. even according to the computation undertaken by the Registry, the name of Ram Bhawan was not commended for appointment predicated on the ground that it would over-reach the limit of 50% which the Apex Court has pegged in Indira Sawhney's case. According to the respondents, only 20 names were forwarded for appointment in place of 21 in order to strike balance between the rights of general candidates and candidates belonging to reserved categories as per the decision of the Supreme Court In Indira Sawhney v. Union of India. AIR 1993 SC 477. The decision in Indira Sawhney's case in our opinion, cannot be appropriated to their advantage by the respondents In the fact situation of the present case. The quintessence of what has been laid down by the Apex Court tn Indira Sawhney's case Is that no law providing for reservation in excess of 50% would be sustainable. The U. P. Public Services and Posts (Reservation in favour of S.C., S.T. & Other Backward Classes) Act, 1994, does not envisaged reservation in excess of the periphery prescribed by the Supreme Court and it brooks no dispute that strength of candidates belonging to O.B.C. In the service yet falls short of the limit of required 27% of the cadre strength. It is worthy of notice here that the facts marshalled herelnabove ex facie reveal that the number of existing and likely vacancies was 144 out of which 22 posts fell in the share of direct recruits even on the calculations of the respondents and on this reckoning also appointment of Ram Dhawan would not violate Indfra Sawhney. The Court, in our opinion, was not right in withholding recommendation of the name of the petitioner Ram Bhawan.
27. The conclusions of law deducible from the foregoing discussion, may be summed up as below :
(1) Fixation of the number of officers to be taken at the recruitment has to be made upon regard being had to the vacancies 'then' existing and the vacancies 'likely' to occur 'in the next two years' under Rule 8 (1) of the Rules. But the fixation and their allocation to the two sources' of recruitment, are subject to variation, contingent upon the occurrence of the unforeseen vacancies 'in the next two years' and, therefore, the advertisement must, of necessity, contain a variation clause ;
(2) Vacancies determined under Rule 8 (1) should be so apportioned to the respective shares of direct recruits and the members of Nyaylk Sewa that the total number of direct recruits in the cadre does not exceed 15% of the total cadre strength. Such allocation would, of course, be subject to upward variation owing to occurrence of any 'unforeseen' vacancy in the quota of direct recruits in the next two years';
(3) The select lists prepared under Rule 18 and Rule 20 may endure to be operative for a maximum period of three years but appointment on the basis of select lists so prepared shall be confined in relation to vacancies 'then existing' and vacancies occurring 'in the next two years' ;
(4) The select lists prepared under Rules 18 and 20 containing names of officers twice the number of vacancies required to be filled from each source, ought to be forwarded to the Governor as a whole so as to enable the Governor to 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." The expression 'on the occurrence of vacancies' presupposes completion of selection process well before the expiry of 'the next two years' exercise of fixation of the number of officers to be taken at the recruitment is accomplished by the Court.
28. As a result of the foregoing discussion, we hold that out of 179 vacancies which were available for recruitment. 31 vacancies fell in the share of direct recruits out of which 27%. i.e., 8.37 equated to 8 vacancies ought to be filled from amongst the select list 'B' of O.B.C. candidates, 31% i.e., 6.51 equated to seven from amongst the select list 'C' prepared for the S. C. candidates, and 16 from the list 'A' of general candidates. The rest (179-31 = 148) ought to be filled from the members of the Nyayik Sewa after adjusting the appointments already made from these lists.
29. In the result, the petitions succeed and are followed with costs in terms of the following directions :
(1) The Registrar General shall ft) forward the names of five candidates from List 'A' ; three from List 'B' and three from List 'C' in order of merit over and above the candidates already appointed out of the approved lists aforesaid ; and (ii) such number of members of the Nyayik Sewa from the approved Hat as may be necessary to complete their share of 148 posts ;
(2) The appointments to be so made pursuant to this judgment shall be subject to the decision by the Apex Court in the appeal pending before it against the judgment of this Court in Uma Kant Sharma v. State of U. P. and others, (1998) 3 UPLBEC 1805 ; and (3) The Registry shall prepare annually a list of the members of the service displaying therein the cadre strength up-to-date, date of retirement of each officer and whether such officer Is from the bar or from the service, by 31st July of each year.
(4) The petitioners are entitled to their respective costs.