Allahabad High Court
Harendra Bahadur Singh And Ors. vs State Of U.P.Thru.Prin.Secy.Deptt.Of ... on 23 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Neutral Citation No. - 2024:AHC-LKO:16580-DB RESERVED Court No. - 1 (1) Case :- WRIT - A No. - 30173 of 2019 Petitioner :- Harendra Bahadur Singh And Ors. Respondent :- State Of U.P.Thru.Prin.Secy.Deptt.Of Appointment And Ors. Counsel for Petitioner :- Varadraj Shreedutt Ojha, Amardeep Yadav Counsel for Respondent :- C.S.C., Dharmendra Kumar Dixit,Gaurav Mehrotra, Praneet Kumar Agarwal, Shireesh Kumar, Sridhar Awasthi connected with (2) Case :- WRIT - A No. - 2000845 of 2014 Petitioner :- Sanjeev Kumar Singh And11 Others Respondent :- State Of U.P. Thru Prin. Secy. Appointement Govt. Of U.P.Andan Counsel for Petitioner :- Sandeep Dixit,Vaibhav Singh,Varadraj Shreedutt Ojha Counsel for Respondent :- C.S.C., Manish Kumar, U N Mishra, Upendra Nath Mishra with (3) Case :- WRIT - A No. - 11453 of 2020 Petitioner :- Smt. Manorama And Ors. Respondent :- Hon.High Court Of Judicature At Allahabad Throu. R.G. and Ors. Counsel for Petitioner :- Kshitij Mishra, Ramendra Kumar Yadav, Sanjeet Kumar Counsel for Respondent :- C.S.C., Anurag.S. Kaalesh, Aseem Chandra, Ashwani Kumar Singh, Dharmendra Kumar Dixit, Gaurav Mehrotra, Jitendra Saksena,Nilaya Gupta, Shireesh Kumar,Sridhar Awasthi,Vivek Kumar Singh with (4) Case :- WRIT - A No. - 28511 of 2021 Petitioner :- Randheer Singh And Ors. Respondent :- Hon'ble High Court Of Judicature At Allahabad Thru.R.G.Andors. Counsel for Petitioner :- Shobhit Mohan Shukla Counsel for Respondent :- C.S.C., Anil Kumar Srivastava, Ashwani Kumar Singh, Dharmendra Kumar Dixit, Gaurav Mehrotra, Nilaya Gupta, P.R.S. Bajpai, Sameer Singh, Sridhar Awasthi Hon'ble Attau Rahman Masoodi, J.
Hon'ble Om Prakash Shukla, J.
(Per Om Prakash Shukla, J.) INDEX OF JUDGMENT Sl. No. Contents Page Nos.
A. Introduction 3-7 B. Background 7-20 C. Relevant Rules applicable to the present issue 20-25 D. The Dispute 25-27 E. Disposal of Writ-A No. 2000845 of 2014 27-49 F. Contention of the parties in Writ-A No. 30173 of 2019, Writ-A No.11453 of 2020 and Writ-A No. 28511 of 2021 49-63 G. Discussion & Findings 63-113 H. Conclusion 110-113 (1) Heard Shri Sandeep Dixit, Shri Sudeep Seth, Shri J.N. Mathur, Shri Sanjay Bhasin, Shri Asit Kumar Chaturvedi, learned Senior Advocates assisted by Shri Varadraj Shreedutt Ojha, Shri Kshitij Mishra, Shri Shobit Mohan Shukla, Shri Amardeep Yadav, representing the petitioner, learned Standing Counsel representing the State/rspondent, Shri Gaurav Mehrotra, learned Counsel representing the High Court/respondent and Shri Dharmendra Kumar Dixit, Shri Shireesh Kumar, Shri Praneet Kumar Agarwal, Shri Sridhar Awasthi, Shri Sanjay Hari Shukla, Shri Manoj Kumar Singh Gautam, Shri Vivek Tripathi, Shri Jitendra Saksena, Shri Ashwani Kumar Singh, learned Counsel representing the private respondents.
A. Introduction (2) The perennial problem of determination of number of vacancy to be filled from each source of recruitment and its consequential effect on the seniority list has yet again come to haunt the recruitment year 2012 and 2014 for the Uttar Pradesh Higher Judicial Services. Although by now these problems ought to have been resolved by the authoritative decision of the Apex Court, however these issues refuses to die down and have a salutary burial.
(3) The Uttar Pradesh Higher Judicial Services Rules, 1975 (hereinafter to be referred as "UPHJS Rules, 1975") have been framed to regulate the recruitment, appointment and other conditions of services for Higher Judicial Services appointees in the State of Uttar Pradesh. Rule 5 of UPHJS Rules, 1975 provides for three source of recruitment; the first being (a) by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; the second being (b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; and the third being ( c) by direct recruitment from amongst the learned Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published. The conundrum relating to the number of available seats for each source of recruitment in view of the quota prescribed under Rule 6 of UPHJS Rules, 1975 and number of appointment to be made as per Rule 8 of UPHJS Rules, 1975 and the effect of reservation for posts of schedules castes etc. as per Rule 7 of the UPHJS Rules, 1975 and their inter-play, which also had an eventful effect on the seniority list prepared as per Rule 26 of the UPHJS Rules, 1975 had been fascinated by this Court as well as the Hon'ble Apex Court in various judicial precedent. Some of these judgements are being enumerated herein below, so that this Court, while dealing with the issues raised by the parties in the present writ petitions, is alive to these precedents, which holds the ground even as on today :-
(i) Sri Kant Tripathi & Ors. Vs State of Uttar Pradesh & Ors, (2001) 10 SCC 237,
(ii) All India Judges Association Vs Union of India (2002) 4 SCC 247,
(iii) V.K. Srivastava Vs government of Uttar Pradesh, (2008) 9 SCC 77,
(iv) Malik Mazahar Sultan Vs UPSC, (2008) 17 SCC 703,
(v) Ashok Pal Singh Vs U.P judicial Services & Ors. (2010) 12 SCC 635,
(vi) Nawal Kishore Mishra & Ors. Vs High Court of Judicature at Allahabad, Through its Registrar general & ors., (2015) 5 SCC 479;
(vii) High Court of Judicature at Allahabad Vs State of Uttar Pradesh, (2018) 15 SCC 439 (4) The determination of seats for each source of recruitment and the inter-se seniority for the recruitment year 2012 and 2014 is the centrifugal issue engaging the attention of this Court in these four writ petitions. Although, the prayer in these petitions are not similar, however, the relief sought and the issue raised in these petitions are complimentary to each other and as such they are being decided together.
(5) All these writ petitions have been filed by "promotees" belonging to category/quota as per Rule 5 (a) of the UPHJS Rules, 1975 and apparently, there is no challenge by either the Direct Recruits {category/quota as per Rule 5(c) of the UPHJS Rules, 1975} or the out of turn promote {category/quota as per Rule 5(b) of the UPHJS Rules, 1975} and from the memo of the writ petitions, it is apparent that :-
1.
Writ-A No. 200845 of 2014 (Sanjeev Kumar Singh & Ors. Vs. State of U.P) amended vide order dated 05.07.2018 Has been filed by Petitioners, who have been selected in U.P Judicial Services on the basis of Examination-1999 and all the promotees.
2. Writ-A No. 30173 of 2019 (Harendra Bahadur Singh & Ors. V/s State of U.P.) Has been filed by Petitioner No.1 to 10, who have been selected in U.P Judicial Services on the basis of Examination-1999 & Petitioner No.11 has been selected in U.P Judicial Services on the basis of Examination-2000 and all are promotees.
3. Writ-A No. 11453 of 2020 (Manorama & 6 others V/s State of U.P) Has been filed by Petitioner No.1, who has been selected in U.P Judicial Services on the basis of Examination-1997 & Petitioner No. 2 to 7 have has been selected in U.P Judicial Services on the basis of Examination-1999 and all are promotees.
4. Writ-A No. 28511 of 2021 (Randheer Singh & others Vs State of U.P) Has been filed by Petitioners, who have been selected in U.P Judicial Services on the basis of Examination-1996 and all are promotees.
(6) All these petitioners, who were initially selected and appointed under the U.P Judicial Services Examination conducted in the year 1996 or 1997 or 1999, became entitled to promotion to the U.P Higher Judicial Service cadre, in due course of time. Since, their promotion was contingent on the number of seats available in the said UPHJS Cadre in a particular year, it became a bone of contention, wherein these petitioners as promotees claimed more seats/vacancies available to them for promotions on basis of the quota and also raised other ancillary grounds, which shall be discussed in the later part of this judgment.
B. Background (7) Apparently, the root to the present controversy relating to determination of vacancies for each quota, stems from the year 2000, which came to be decided by the Apex Court in Sri Kant Tripathi & others vs. State of U.P. & others reported in (2001) 10 SCC 237, wherein certain directions for redetermination of vacancies was given by the Hon'ble Apex Court by interpreting the relevant provisions of the Rules and leaving the actual numbers to be determined by the High Court for different recruitment years starting from 1988 to 1998. The Apex court inter-alia in Sri Kant Tripathi's case (supra) held :
"(i) Appointments already made to the higher judicial service, whether by direct recruitment or by promotion, need not be annulled and shall be continued.
(ii) With effect from 1988 recruitment and in all subsequent recruitments which are the subject matter of challenge before us, the high court shall determine the number of vacancies available as on the relevant year of recruitment in terms of rule 8, as already explained by us and then, allocate the percentage to different sources of recruitment, contained in rule 6, and after such determination is made, then find out whether the appointments of direct recruits already made for that recruitment year are in excess of the quota or within the quota. If it is found that any appointment has been made in excess of the quota, then the said appointee would be allowed to continue, but his or her seniority will have to be reckoned only when he or she is adjusted in the next recruitment.
(iii) If in each recruitment year, posts were available in the quota of promotees and promotion has not been made, even though selection had been made under rule 20, then the legitimate right of the promotees cannot be denied and promotion must be made with effect from the date they should have been appointed.
(iv) This exercise has to be made for the recruitment of 1988 as well as for each subsequent recruitment that has been made.
(v) Since the determination under rule 8 is being made now, pursuant to the directions of this court, in respect of past recruitment years for which recruitment has been made, the expression "vacancies likely to occur" loses its importance and determination has to be made, on the basis of the actual vacancies available in any of such recruitment year.
(vi) So far as the recruitment of 1998 is concerned, advertisements having been issued for 38 vacancies being filled up by direct recruitment and the process of selection being already over, but no appointment having been made, we think it appropriate to direct that the appointment of the selected candidates may be made against the quota available to direct recruits calculated in accordance with the rules in the light of our decision.
(viii) For all future appointments, the high court must take steps to fill the vacancies of every recruitment year during that year itself. The high court must determine the vacancies not only on the basis of the actual vacancies on the date of such determination but also take into account probable vacancies by reason of superannuation of officers in the next two years from that date.
(ix) Once the vacancies are so determined, the percentage of the vacancies available for recruitment by direct recruitment and by promotion must be fixed and steps taken for filling up the same expeditiously. The number of vacancies available for the direct recruit's quota must be advertised without any variation clause. The select list prepared both for direct recruits as well as for promotees prepared by the high court will be operative only till the next recruitment commences with the fixation of the vacancies for the next recruitment year."
(8) On the heels of the aforesaid judgment, All India Judges' Association and others vs. Union of India and others : (2002) 4 SCC 247 was pronounced on 21.03.2002, having an all India effect, wherein a quota was prescribed relating to 3 sources of recruitment i.e. by promotion on merit-cum-seniority based on a suitability test, merit promotion on the basis of a limited competitive examination for its cadre candidates and direct recruitment, in the ratio of 50:25:25. The said judgment also provided for a Quota-Rota Rule based on a roster in terms of the judgment pronounced in R.K. Sabharwal and others vs. State of Punjab and others : (1995) 2 SCC 745 case for determination of seniority in UPHJS so as to avoid any further litigation. The Hon'ble Supreme Court in the All India Judges' case (Supra) also issued directions for amendment in the relevant Rules to all concerned State, by specified dates as mentioned in paragraphs 27, 28, 29 and 39 of the said judgment.
(9) Although the All India Judges' case (Supra) would had been the torch-bearer in providing the guidance in determination of the vacancy and providing the seniority, however, before the amendments could be made in UPHJS Rules, 1975, an exercise was undertaken for redetermination of vacancies in terms of Sri Kant Tripathi's case (supra) by a Committee of this High Court which submitted its report on 24.08.2002 and the said report came to be approved by the Full Court on 01.02.2004. Even this report was challenged by the promotees judicial officers vide Writ Petition No.316 (SB) of 2004 (U.P. Judicial Services Association vs. State of U.P. and another), which was decided on 25.08.2004 with certain directions for redetermination of vacancies. After this judgment, the result of 1998-2000 recruitment was declared in 2004.
(10) In the meantime, the aforesaid judgment dated 25.08.2004 (supra), which had declared availability of 24 direct recruit vacancy and 331 promotions seats, was itself challenged before the Hon'ble Supreme Court in the case of Ashok Pal Singh & others vs. U.P. Judicial Services & others : (2010) 12 SCC 635 and since there was no interim stay in the said case, the High Court in compliance of judgment dated 25.08.2004 (supra) (High Court order) proceeded to prepare a seniority list of pre-1998 appointees that came to be approved by the Full Court on 24.08.2007. The said seniority list was subjected to challenge in Prabhuji and Anr. Vs. State of U.P. and Ors., 2010 SCC Online All 2410 and during pendency of the said petition, judgment in the case of Ashok Pal Singh's case (supra) came to be delivered on 13.09.2010, wherein the Apex Court while considering the purport and intent of Rule 8 (2) of UPHJS Rules, 1975, it was held that the same was not to dilute or change the quota of direct recruits. It further held that its object was to ensure that no vacancy remained unfilled for want of adequate number of direct recruits under the prescribed quota. While holding so, the Apex Court noted that there were reasonable chances of adequate number of candidates being not available for direct recruitment whereas usually sufficient number of candidates would be available for promotion. It also made further clear that the proviso to Rule 8(2) of UPHJS Rules, 1975 ensures that the short fall in quota for direct recruits in any recruitment does not get permanently converted to promotee quota by providing that the short fall should be made at the next recruitment for the direct recruitees, subject to it does not exceeds the 25% of strength of the service.
(11) In the interregnum, the UPHJS Rules, 1975 were amended in terms of paragraphs 27, 28 and 39 of the judgment in All India Judges' Association's case (supra) vide notification dated 09.01.2007 by which UPHJS (Sixth Amendment) Rules 2006 (hereinafter referred to as 'UPHJS Amended Rules, 2006') came into force with retrospective effect from 21.03.2002 i.e. the date of the All India Judges' Association's case (supra). However, only part compliance of the dictum was made, in as much no amendment in terms of paragraph 29 took place, which provided for seniority on the basis of quota and rotational basis. In any case, the vires of UPHJS Amended Rules, 2006 came to be challenged in V.K. Srivastava and others Vs. Government of U.P. and Ors. before the Hon'ble Supreme Court under Article 32 of the Constitution of India and while the aforesaid challenge was pending, a determination of vacancies took place for direct recruitment and promotees on 15.02.2007, as approved by Full Court on 17.02.2007 including those existing as on 31.12.2006 and anticipated vacancies upto 31.12.2008. A suitability test was also held for purposes of promotion under the 50% quota for promotees on 10.02.2008.
(12) Based on the aforesaid recruitment process, a final list of direct recruits and promotees was approved by the Full Court on 12.07.2008. However, instead of putting the names of direct recruits and promotees aforesaid in the order as envisaged in Rule 22 (1) and (2) of the UPHJS Rules 1975 keeping in mind paragraph 29 of All India Judges' case (supra), separate orders of appointment for direct recruits and promotees were issued, even though a combined list as envisaged in Rule 22(1) was sent to the State Government. Interestingly, although para-3 of the appointment/promotion order mentioned that the members of HJS selected/appointed on the basis of selection of 2007 their inter-se placement as per roster shall be done by the High Court subsequently, however, nothing was done and the appointments were notified under Rule 25 on 10.12.2008.
(13) During the aforesaid process, V.K. Srivastava and others Vs. Government of U.P. and Ors. (supra) : (2008) 9 SCC 77 came to be decided by the Hon'ble Supreme Court on 04.09.2008 and the challenge to the vires of UPHJS Amended Rules, 2006 was repelled. Thereafter, another recruitment took place of 2009 batch based on a determination of vacancies on 24.03.2009, as approved by the Full Court on 10.04.2009. Final list of selectees including direct recruits and promotees was approved by Full Court on 09.01.2010. In the interregnum, on 24.08.2009 the UPHJS Rules, 1975 were amended for the Seventh time so as to comply the remaining part of the dictum in All India Judges' Association's case (supra) viz. paragraph 29 thereof, albeit belatedly, so as to amend Rule 22 and introduce a rotational system based on roster.
(14) As usual, even this Recruitment of 2009 was impugned before this Court, wherein the challenge was with regard to the appointment made to the post of Direct Recruit District Judges in the unfilled reserve vacancies, to the extent of 34 in number by way of promotion from the 'in service candidates' by applying Rule 8(2) of the UPHJS Rules, 1975. The Division Bench of the High Court dismissed the writ petitions on 02.03.2012. Feeling aggrieved, the appellants filed appeal before the Hon'ble Supreme Court, which came to be decided in Nawal Kishore Mishra & Ors. V/s high Court of Judicature at Allahabad, through its Registrar General & Ors : (2015) 5 SCC 479. The findings of the said judgment can be recapitulated from the following paragraphs of the judgment:
"61. It is well settled principle of law as has been laid down by this Court in the decision relied upon by learned counsel for the High Court, namely, the Constitution Bench decision reported in R.K. Sabharwal (supra) wherein it has been held as under in para 4:
"No general category candidate can be appointed against a slot in the roster which is reserved for the backward class."
62. Therefore, when the posts were reserved for the SC, ST, filling up of those posts from the general category candidates would seriously affect the rule of reservation, as once the posts of direct recruit are filled up from other category candidates even the carrying forward of those vacancies as provided under the proviso to Rule 8(2) cannot be operated upon. In other words, by applying Rule 8(2) in the event of vacancies remaining due to non- availability of the candidates of the reserved category and such vacancies were filled up by the 'in service candidates' by resorting to promotion, the proviso can be conveniently operated upon by carrying forward those vacancies in the future years in the direct recruit source and by maintaining the rule of reservation to the extent it could not be filled up in the relevant recruitment years. If instead of resorting to promotion of 'in service candidates' those unfilled reserved vacancies are filled from the general category candidates, there would be no scope for applying the proviso to Rule 8(2). Such a contingency created would run counter to the rule of reservation and, therefore, the same cannot be countenanced.
63. We have to, therefore, hold that the High Court by adopting the Reservation Act, 1994 adopted the rule of reservation to the full extent provided for and as prescribed under Section 3(1) of the Reservation Act, 1994 and that in respect of any unfilled vacancies of that category, the High Court rightly resorted to the prescription contained in Rule 8(2) by resorting to filling up of such vacancies by special recruitment in that year as directed by this Court and in the absence of not getting such vacancies filled up by resorting to such filling up by promotion of 'in service candidates' and also by applying the proviso to Rule 8(2) and thereby carry forward those vacancies in the future years of recruitment.
64. Keeping the said legal principle relating to applicability of Section 3(1) of the Reservation Act, 1994 vis--vis Rules 7 and 8(2) of the High Court Rules in mind, when we consider the last of the submissions made on behalf of the appellants, it must be held that the action of the High Court in having resorted to filling up of the unfilled reserved vacancies by taking umbrage under Rule 8(2) was perfectly justified. The said action of the High Court in having filled up those unfilled reserved vacancies of direct recruitment of the year 2009 was stated to have been made by promoting the in-service candidates. Though we have found that such a course adopted by the High Court was in order, as the proviso to Rule 8(2) specifically mandates that while fixing the number of vacancies to be allotted to the quota of direct recruitment at the next recruitment, it should be raised accordingly. We are of the view, without disturbing whatever promotions already made by resorting to Rule 8(2), the High Court can be permitted to provide that number of vacancies which remained unfilled in the year 2009 in the reserved category of direct recruit source by adding that number of vacancies in the recruitment to be made in the future years until such number of vacancies of unfilled reserved category pertaining to 2009 are filled.
65. With the above limited directions to the High Court, we do not wish to meddle with the promotions already made. We do not find any scope for granting any relief to the appellants, as none of the submissions raised on behalf of the appellants, which were though not considered by the Division Bench of the High Court and which were also dealt with by us in extenso and we find no merit. These appeals, therefore, fail and the same are accordingly dismissed."
(15) As aforesaid, the judgement rendered in Nawal Kishore Mishra's case (Supra) came to be passed on 17.02.2015, however, in the intervening period, the State Government again, instead of issuing an appointment in the order of names occurring in the combined list envisaged in Rule 22 (1), separate orders of appointment were issued in 2010 for the 3 sources of recruitment, which did not reflect therein rotational placement as per their quota. Separate notifications were issued under Rule 25. Paragraph 3 of the orders stated that their seniority would be determined by the High Court separately as per final decision of the Hon'ble Supreme Court in Malik Mazhar Sultan's case. Adding to more confusion, Prabhuji's case (supra) was decided on 16.02.2010 and the seniority list of pre-1998 appointees was quashed by this Court. Thereafter, on 20.04.2010, directions were issued in an interim application filed in All India Judges' Association's case (supra) permitting variation of the Quotas of 50:25:25 to 65:10:25, 10% posts being prescribed for LCE based promotees. Consequently, on 29.01.2014, Ninth Amendment to Rules 1975 were notified amending Rule 6 and 22 (2) accordingly and providing a new roster based thereon, but without retrospective effect.
(16) In compliance of the direction of the Hon'ble Supreme Court in Ashok Pal Singh (supra) decided on 13.09.2010, a Committee was constituted, which undertook an exercise for determination of seniority, including determination of vacancies and based thereon submitted its 1st tentative report dated 02.03.2011, thereafter 2nd tentative report was submitted on 18.05.2011 including appointees of 1998-2000 recruitment. Based thereon a final seniority list dated 14.07.2011 was prepared, which was approved by the Full Court on 30.7.2011 and notified on 1.8.2001, which contained the determination of seats as well as the seniority upto 1998-2000 recruitment.
(17) Another exercise for determining seniority of subsequent recruits that of 2007 and 2009 recruitment was undertaken in continuation of the final seniority list dated 14.07.2011, wherein the Committee also determined the vacancies and their allocation to various quotas to 2007 and 2009 batches, although the same had been determined prior to such recruitment, which was notified on 07.02.2012 to the members of HJS inviting objections. A tentative seniority list was issued on 25.07.2013, objections were invited. Thereafter, another tentative seniority list dated 10.12.2014 of 2007 and 2009 batches was issued on 20.12.2014 and objections were again invited from the officers. After considering the objections, the seniority committee prepared a final seniority report dated 23.09.2015, which was placed before the Full Court on 01.12.2015. The said final seniority report dated 23.09.2015 was followed by a supplementary final seniority report dated 06.04.2016 as approved by the Full Court on 14.04.2016 and which was published on 18.04.2016.
(18) Apparently, the seniority list, which was drawn by the High Court, on the administrative side in pursuance to Ashok Pal Singh's case (supra) on 14.07.2011 was modified on 23.9.2015 based on a subsequent report of the Committee of the same date and it is this report/seniority list, which was challenged before a Co-ordinate Bench of this Court in a bunch of writ petitions lead being "Premkala Singh HJS & 4 Ors V/s High court of Judicature at Allahabad". Subsequently, Premkala Singh's case (Supra) came to be decided on 30.06.2017, wherein a Co-ordinate Bench of this Court, after tracing the background of the present litigation, arrived at a conclusion that the determination of vacancies by the Committee did not require any interference but determination of seniority was held to be not sustainable as there had 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 UPHJS Rule, 1975. The Co-ordinate Bench of this Court also held that the judgment rendered in All India Judges' Case (supra) was not followed as was mandatorily required. The Co-ordinate Bench of this Court in the said Premkala Singh's case, after recording the aforesaid finding relevant to the context, held that (a) determination of vacancies by the Committee did not require any interference and (b) quashing the seniority list, directed for redetermination of the seniority in the light of the observations made in the said judgment.
(19) However, an appeal came to be filed against Premkala Singh's case (supra) before the Hon'ble Supreme Court. The said appeal came to be decided vide "High Court of Judicature at Allahabad and Ors. V/s State of U.P & Ors." (2018) 15 SCC 439, wherein the Hon'ble Supreme Court allowed the appeal and both the determination of seniority as well as determination of vacancies for the UPHJS Recruitment Years 2007 and 2009 was upheld in the following words:
"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 Maharashtra, (1990) 2 SCC 715, 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 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."
(20) Consequently, the validity and legality of the final seniority report dated 23.09.2015 and supplementary report dated 06.04.2016 corresponding to the recruitment year upto 2009, has been upheld by the Hon'ble Supreme Court in the said case and for all intents and purposes, the said seniority list has attained finality. Now, in the present petitions, the final seniority list dated 31.01.2019 relating to the recruitment year 2012 and 2014 is a matter of challenge basically on the ground that the same has not been prepared as per UPHJS Rules of 1975.
C. Relevant Rules applicable to the present issue (21) Part-III of the UPHJS Rules, 1975 postulates the various rules concerning recruitment of an officer to the HJS. Rule 5 of the said Rules, describes the various sources of recruitment as herein below :-
"5. Source of recruitment- The recruitment to the service shall be made--- (a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.
(b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;
(c) by direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published."
(22) The quota for various sources of recruitment under the Rules are prescribed in Rule 6 of UPHJS Rules, 1975, which inter-alia says:
"6. Quota -- Subject to the provisions of rule 8, the quota for various sources of recruitment shall be -
(i) Uttar Pradesh Nyayik Sewa:
(a) from amongst the Civil Judges (Senior Division) on the basis of merit -cum seniority and passing a suitability test ----65%
(b) On the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' service --10% Provided that in case of there being any shortfall in the vacancies to be filled up on the basis of in cadre competitive examination, the short fall of 10% reserved for such promotion will be made good by corresponding increase in the quota reserved for promotion of Civil Judge (Senior Division) referred to in Clause (i) (a).
(ii) Direct recruitment from Bar ---25% Provided that where the number of vacancies to be filled in by any of the sources in accordance with the quota is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one:"
(23) As to the reservation for Schedules caste, Scheduled Tribe, Other Backward Classes, Rule 7 of the UPHJS Rules, 1975 prescribes as under :-
"7. Reservation of posts for Scheduled Caste, etc.- Reservation to posts in the service for the members of the Scheduled Castes, Scheduled Tribes and other categories including women shall be in accordance with orders of the Government for reservation as adopted by the High Court.
Provided that twenty percent horizontal reservation for women to posts in service in direct recruitment from Bar in Uttar Pradesh Higher Judicial Service shall be subject to suitability i.e. if the sufficient number of women candidates is not available, then and in that event the reservation shall not have any operation to the extent of such unavailability.
Provided further that there shall be no carry forward of reservation for women."
(24) The UPHJS Rules, 1975 also provides for the number of appointment to be made in a particular recruitment year as per Rule 8, which says in the following words :-
"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 25% of strength of the service:"
(25) That as regards the promotion of Nyayik Sewa, appointment and seniority, the Rules provide for the following :-
"20. Promotion of such members of Nyayik Sewa as referred to in Rule 5(a): - (1) Recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the principle of merit-cum-seniority and on passing such a suitability test, as prescribed in Appendix "G(i)"
(2) The field of eligibility for recruitment by promotion shall be confined to four times the number of vacancies to be filled by promotion. The selection Committee shall prepare a list in order of seniority of the officers eligible under Rule 5(a) of these rules.
(3) The Selection Committee shall, after examining the record of the officers included in the list prepared under sub-rule (2) of this rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of merit-cum-seniority. In assessing the merit of a candidate, the Selection Committee have due regard to his service record, ability, character and seniority. The list shall contain the names of officers twice the number of vacancies required to be filled by promotion of the members of the Nyayik Sewa.
(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 Committee 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.
22. Appointment - (1) Subject to the provisions of sub-rule (2), the Governor shall, on receipt from the Court of the list mentioned in Rules 18, 20 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the list in the order in which they stand in the respective lists in accordance with the roster.
(2) Appointments to the service shall be made on the basis of roster system, the first post shall be filled from the list of promotees, the second post shall be filled up by direct recruit, the third and fourth posts shall be filled up from the list of promotees and fifth post shall be filled up by the candidate selected strictly on merit through LDCE (and so on) according to the roster as prescribed in Appendix '1', which will cease to become operative on the date the respective three streams achieve their full allotted vacancies. Thereafter on account of arising any vacancy in quota of respective stream the same could be filled-up from the same stream of which vacancy arises;
Provided that while following the roster at no point of time the respective percentage of posts filled from direct recruit and LDCE shall exceed 25% and 10% of the strength of service. In case the percentage is exceeding the allotted quota, in such eventuality the promotee shall occupy the vacancy which would have gone to the direct recruit or LDCE, had not the same been in excess of 25% and 10% respectively of either of the two.
(3) In the eventuality of delay in making appointment under sub-rule (1) and further if exigency of service so requires, the Governor may, in consultation with the Court, make short term appointment as a stop-gap arrangement from amongst the promotees, in the vacancy in these services till the appointments 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 a stop-gap arrangement shall not be computed under Rule 26.
26 - Seniority - (1) Seniority of the officers appointed in the Service shall be determined in accordance with the order of appointment in the Service under sub rules (1) and (2) of Rule 22 of these rules.
(2) Seniority of members of the service who have been confirmed in the service prior to the commencement of these rules shall be as has been determined by the order of the Government as amended from time to time."
D. The Dispute (26) As already recorded herein above, there are altogether four writ petitions. The common thread of facts running through these petitions, invariably denotes that these petitions are preferred by petitioners, who are promottees and have been initially selected under the U.P Judicial Services (also known as Provincial Civil Service (Judicial). The fundamental issue raised in these petitions are related to determination of the vacancies for HJS recruitment year 2012 and 2014, which has resulted in other consequential effects. Thus, these writs can be broadly divided into two categories :-
"1st Category :-
Writ Petition No. 845(S/B) of 2014 (Sanjeev Kumar Singh & Ors. V/s State of U.P), wherein the basic prayer has been sought for promoting the petitioners on approximately 32 vacancies, which according to them existed prior to 31.12.2013 and have occurred under rule 8, in the recruitment year 2012 itself, which predominantly is an issue connected to the determination of the vacancy.
2nd Category:-
In this category, three Writ Petitions being (i) Writ Petition No. 30173(S/B) of 2019 (Harendra Bahadur Singh & Ors. V/s State of U.P), (ii) Writ Petition No. 11453(S/B) of 2020 (Manorama & 6 others V/s State of U.P) and (iii) Writ Petition No. 28511 (S/B) of 2021 (Randheer Singh & others V/s State of U.P) are placed, wherein the challenge basically is to the seniority list of HJS officers of recruitment year 2012 and 2014 and final Seniority Committee Report dated 31.01.2019 circulated vide letter dated 26.08.2019 and other reliefs incidental to the said challenge has also been raised in the said petitions. Pertinently, the seniority list prepared is also indirectly related to the determination of vacancy in each quota."
This Court proposes to take the aforesaid category separately, however, issues, which overlap each other, would be dealt in the 2nd category petitions.
E. Disposal of Writ-A No. 2000845 of 2014 (27) In Writ-A No. 2000845 of 2014, Sanjeev Kumar Singh and 11 others Judicial Officers have filed the petition claiming themselves to have been selected in U.P Judicial Services on the basis of Examination-1999 and after having been recommended and selected for appointment had been working in various districts of the State of Uttar Pradesh. These promotee Judicial Officers have raised an issue, which can be traced to Rule 5 (a) of the UPHJS Rules, 1975, by means of which promotions are to be granted to the Civil Judge (Senior Division) on the principle of merit-cum-seniority and passing a suitability test. It has been submitted by them that as per Rule 8 (1) of the UPHJS Rules, 1975, the competent authority fixes the number of officers to be recruited in that particular year, keeping in view the vacancies then existing and likely to occur in the next two years and Rule 8 (2) of the UPHJS Rules, 1975 specifically directs that 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 Ccourt may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa. Thus, according to them, the number of seats available for promotion in Nyayik Sewa is a consequential product of the process of identifying the number of post available for recruitment in that particular year as per Rule 8 (1) of UPHJS Rules, 1975 and according to them, since the competent authority for the recruitment year 2012, were not able to correctly identify the number of officers to be taken into recruitment by determining the existing, as well as the vacancies likely to occur in the next two years, the number of promotional seats available to Nyayk Sewa decreased. These promotees identifying that about 32 such vacancy, which although were reported in the "next two years" for the recruitment year 2012 but were not taken into consideration for that recruitment year, has prayed for the following reliefs :-
(i) Issue a writ, order or direction in the nature of mandamus directing the opposite parties to make promotion of the petitioners on the approximately 32 vacancies existing prior to 31.12.2013 having been occurred under rule 8, in the recruitment year 2012;
(ii) Issue a writ, or order or direction in the nature of mandamus restraining the opposite parties to include 32 vacancies which had existed on 31.12.213 in any next recruitment as the same would amount to violation under the rules;
(iii) Issue a writ, order or direction in the nature of certiorari quashing any decision, if taken by the opposite parties on the representations of the petitioners denying promotions to the petitioners after summoning the same as the same will not be tenable in the eyes of law;
(iv) Issue a writ, order or direction in the nature of certiorari quashing the resolution passed by the selection and appointment committee in its meeting held on 05.03.2014 to the extent to include, the unforeseen vacancies of Recruitment year 2012 which had occurred prior to 31.12.2013, in HJS 2014 recruitment as well as the resolution passed by the selection and appointment committee in its meeting held on 19.05.2014 vide Agenda Item No. 8(a), 8(b), 8(c ), 8(f), 8(g) contained in Annexure No. 16 and 17 respectively to this writ petition."
(28) According to learned Senior Counsel representing the petitioners, altogether 78 vacancies have been notified for direct recruitment as per the advertisement dated 17.03.2012 in terms of Rule 5 (c) of the UPJHS Rules, 1975 and about 25 vacancies were notified to be filled up by limited competitive examination (LCE) vide notification dated 09.07.2012 in terms of Rule 5(b) of the UPHJS Rules, 1975.
(29) The learned Senior Counsel representing the petitioner has submitted that against 78 vacancies to be filled by direct recruitment, only 39 candidates were selected, whereas against 25 vacancies to be filled by Limited Competitive examination of the HJS 2012, about 3 candidates were selected. Thus, 39 vacancies of direct recruit and 22 vacancies of LCE were not filled for the year 2012, which as per the operation of Rule 8 (2) of the UPHJS Rules, 1975, were to be transferred to the Nyayik Sewa and accordingly the number of recruits by promotions were to be increased correspondingly by 39+22= 41 seats by the operation of Rule 8 (2) of UPHJS Rules, 1976. Further, as per Rule 5 (a) of the UPHJS Rules, 1976, about 341 candidates were declared eligible to appear in the suitability test, wherein about 205 candidates were declared successful for promotion on merit-cum-seniority basis, who essentially belonged to 1997 and 1999 batch of officers. It has been further contended that besides these 205 candidates, there was another 105 Civil judge (Senior Division), essentially belonging to the 1989 and 1990 batch, who have been exempted to appear in the suitability test on account of the fact that they were already working in the Fast Track Court as ex cadre post of Additional District Judge (ADJ) and the creation of the Fast Track Court has already come to an end. Thus, the total select list under Rule 5(a) of the UPHJS Rules, 1975 for making promotions from the post of Civil Judge (Senior Division) would be 105 + 205= 310, however since 8 candidates within the said 205 list could not qualify the suitability list, the total seats approved by the competent authority would come to 302, which according to them was the pool of suitable candidates as per Rule 20 (3) of the UPHJS Rules, 1975, who were entitled for promotion for the recruitment year 2012.
(30) It is the contention of the petitioners that during the aforesaid process of recruitment, about 94 posts were created by means of Government Orders and due to elevation of District Judges as Hon'ble Judges of this Court in the following manner :-
Government order dated 25.04.2013 3 post of HJS as special Judge, Courts 22 Posts of HJS as Anti-corruption Court Government order dated 23.05.2013 63 posts of Family court in HJS Period between 01.01.2012 to 31.12.2013 06 District Judges were elevated as Hon'ble Judges of this High Court Total 94 seats (31) According to the petitioner, as per Rule 8 (1) of the UPHJS Rules, 1975, the competent authority ought to have fixed the number of Judicial Officers to be recruited in the year 2012 by keeping in view the aforesaid 94 vacancies as these vacancies would qualify the term "likely to occur in the next two years" as mentioned in Rule 8 (1) for determining the number of vacancy. It has been further submitted that against the 94 such vacancies, although 62 candidates have been adjusted from the select list, however 32 vacancy remained unfulfilled and, as such, according to them, these 32 officers have been discriminated in not promoting them to these vacant seats. It has also been contended that their various representation sent to the competent authority also did not yield any results.
(32) This Court finds that during the pendency of Writ-A No. 2000845 of 2014, an application for amendment to the writ petition was allowed by this Court vide order dated 05.0.2018, wherein two additional grounds came to added relating to a challenge to the resolution passed by the Selection and Appointment Committee in its meeting held on 05.03.2014, wherein it was resolved to include the unforeseen vacancies of recruitment year 2012, which had occurred prior to 31.12.2013 in HJS 2014 and another resolution passed by the Selection and Appointment Committee in its meeting held on 19.05.2014, wherein it had rejected the representations of some of the petitioners. A supplementary ground has also been urged by the petitioners by filling a supplementary affidavit dated 23.10.2019 that since it was apparent from the notification of number of seats for the recruitment year of 2016 and 2018, that about 12 and 11 vacancies, respectively, of the recruitment year 2009 were being carried forward and filled in the year 2016 and 2018, respectively, these 23 vacant seats would ought to have been filled in the recruitment year of 2012 and had the same been done for that year, these petitioners would had been promoted in that year itself in view of Rule 8 (2) of the UPHJS Rules, 1975 as well as the law laid down in the case of Malik Mazhar Sultan & Another Vs. UPPSC and others : (2008) 17 SCC 703.
(33) On the other hand, the opposition to the present case has been led by the learned Special Counsel representing the High Court (administrative side) as well as the learned counsels representing the private respondents. It has been submitted by the learned Counsel that HJS Recruitment-2012 was commenced on 09.01.2012 with the calculation and finalization of 254 vacancies, then existing and likely to occur in next 2 years i.e upto 31.12.2013, wherein the break-up for vacancies would be (i) Nyayik Sewa - 151 vacancies, (ii) Direct Recruits- 78 Vacancies and (iii) LDCE - 25 Vacancies. It is the contention of the respondents that the said number of vacancies was finalized in the minutes dated 09.01.2012 of the Selections and Appointment Committee and the same was approved by the Full court in its meeting on 11.02.2012. According to them, there was no dispute as to the number of successful candidates having been reported for the Direct Recruitment or the LCDE, however, the fact of the matter remains that the Selection and Appointment Committee on 12.01.2013 prepared a select list containing names of 302 officers being twice the number of available vacancies of the Nyayik Sewa as per Rule 20 (3) of the UPHJS Rules, 1975. It has been further submitted that the Full Court has approved the select list as well as the final result of the HJS Recruitment-2012, wherein applying the provisions of Rule 6 (i) (b) and Rule 8 (2) of UPHJS Rules, 1975, unfilled vacancies of 39 vacancies from Direct Recruit and 22 vacancies from LCDE were duly credited to the quota of Nyayik Sewa, thereby increasing their number from 151 to 151+39+22= 212 and thus for the HJS Recruitment of 2012, the total vacancies of 254 was filled by 212 Nyayik Sewa, 39 by Direct Recruits and 3 by LDCE with the issuance of office memo dated 05.08.2013.
(34) It is further submission of the respondent that out of the said 254 candidates of Nyayik Sewa, 207 were immediately posted/promoted in the districts before 20.12.2013 and since in the said recruitment, vacancies likely to occur upto 31.12.2013 were also taken into account, therefore, the vacancies for rest of the 47 candidates were not available in the district and their posting promotions order could not be promptly issued, which only came to be issued subsequently.
(35) The learned Counsel for the respondent, after giving details of the creation of 93 Courts/posts after 09.01.2012 i.e the start of the recruitment year 2012, has submitted that there was urgent need for manning these Courts as seen by the High Court and as such these Courts/posts were made functional by posting from "existing HJS Officers" in these newly created Courts and even after making this posting, vacancies in the districts were available for rest of the 47 officers of Recruitment Year -2012 and as such they were promoted/posted in HJS Cadre vide Court's notification dated 20.12.2013.
(36) The submission of the respondent is thus two fold, firstly that after 2012 recruitment, even the entire exercise for the next recruitment year i.e 2014 has been completed and appointment have been made, therefore, it was practically impossible for anyone to claim appointment on the basis of select list of 2012 recruitment particularly in view of the fact that Rule 20 (5) of the UPHJS Rules, 1975 specifically says that the select list prepared for any particular recruitment year is valid only till the next recruitment year. Further, these 93 vacancies created due to creation of new Courts were later reported as "unforeseen vacancies of 2012 recruitment" for the recruitment in the 2014 HJS recruitment and promotion/recruitment against the said 93 vacancies has already been made in the HJS Recruitment, 2014.
(37) Having heard the learned Counsel for the parties, this Court finds that Rule 8 of the UPHJS Rules, 1975 provides for number of appointment to be made from time to time. The said Rule provides a guidance to the competent authority for determination of number of appointments, which are required to be made in a particular recruitment year. Rule 8(1) of the UPHJS Rules, 1975 specifically says that the competent authority shall 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. Thus, the number of vacancies would be determined in two parts, (i) the first being the existing vacancies and (ii) the second being the vacancies which are likely to occur in the next two years. There is no controversy between the parties as to the first part of ascertaining the vacancies, however, the ascertainment of the vacancy for the second part is the bone of contention between the parties.
(38) This Court finds that the said issue has already decided by various precedents and is squarely covered by the judgment of the Hon'ble Supreme Court in Sri Kant Tripathi & Ors. V/s State of Uttar Pradesh & Ors : (2001) 10 SCC 237, wherein the Apex Court, at paragraph 34 of the said judgement, while holding the interpretation given to the said expression "likely to occur in the next two years" by a Division Bench of this Court to be unsustainable, remarked in the following words;
"34.............The aforesaid Division Bench judgment of Allahabad High Court, requires little consideration, in view of the interpretation given to the expression "the vacancies likely to occur in the next two years", in rule 8(1) of the rules. The High Court in the impugned judgment has come to the conclusion that the vacancies on account of death, compulsory retirement, voluntary retirement, removal, dismissal and appointment of officers as judge of the Allahabad High Court, could also come within the expression "vacancies likely to occur in the next two years". This concept is wholly unsustainable inasmuch as nobody can anticipate as to how many people would die or how many would compulsorily be retired or removed or dismissed or even would be elevated to the High Court. The expression "vacancies likely to occur in the next two years" would obviously mean the vacancies, which in all probability, would occur. In other words, it can only refer to the cases when people would superannuate within the next two years. The difficulty has arisen because of the fact that the high court is fixing the number of officers to be taken for the recruitment of 1990 in the year 1992 or 1994 and so on and so forth for the next recruitment. If the vacancy position is calculated, at the end of the block-period, then the expression "vacancies likely to occur in the next two years" would become redundant and in such a case, the vacancies actually existing for the period, will have to be taken into account. The expression "vacancies likely to occur in the next two years" will operate only, when the high court decides for the recruitment of 1988 in 1988 and then takes into consideration the anticipated vacancies in 1989 and 1990. The enunciation of law made by the High Court in the impugned judgment, therefore, cannot be sustained, so far as, it relates to interpretation of the expression "vacancies likely to occur in the next two years" in rule 8(1)"
(39) Apparently, Recruitment Year of 2012 took into account the existing vacancy as well as the vacancy likely to occur till 31.12.2013 and as such the said recruitment process started with the notification for the number of vacancy on 09.01.2012. The vacancy notified included those seats which has all likelihood of being vacant due to retirement/superannuation till 31.12.2013, i.e the block year for recruitment. It is the case of the petitioners in this writ petition that 94 seats came to be created vide Government Order dated 25.04.2012, 23.05.2013 and due to elevation of HJS officers to High Court and as such these seats would had been also additionally be made available for the recruitment year 2012 as these seats actually came into existence prior to 31.12.2013. First and foremost, the petitioners are wrong in reading and understanding the provisions of Rule 8(1) of the UPHJS Rules, 1975. Rule 8(1) propagates the concept of likelihood of vacancy in the next two years, which has a certain amount of certainty. The creation of post in a Family Court or Anti-Corruption Court or for that matter elevation to the High Court cannot be anticipated nor any amount of certainty or likelihood can be attached to the said creation. These being unforeseen vacancies, which could not had been anticipated, has to be understood as rightly has been observed by the Hon'ble Apex Court in the S.K. Tripathi's case (Supra) that the expression "vacancies likely to occur in the next two years" is a concept, which comes into play only when it is decided for the recruitment of a particular year to commence in that year itself. If, the recruitment starts in a particular year, Rule 8(1) of the UPHJS Rules, 1975 mandates that for determining the number of vacancies, the Courts also take into consideration the anticipated vacancies for the following year. There is no concept of unforeseen vacancies to be added to the existing vacancies and suffice to say that these unforeseen vacancies occurred after the determination of vacancies for recruitment year 2012 and had to only included in the recruitment year of 2014. The process of filling up of vacancies ought to be based on the provisions of UPHJS Rules, 1975 only.
(40) Further, this Court finds that even the Selection and Appointment Committee has decided the said aspect in a correct manner, while holding that Rule 22 of UPHJS Rules, 1975 clearly states that recruitment in HJS Cadre can only be made against substantive vacancies available for a particular recruitment period as specified by the Hon'ble Court. The Committee went on to observe that although recruitment was irregular and delayed in the past due to a large number of litigation pending in the High Court as well as in the Hon'ble Supreme Court but at present, the recruitment in Higher Judicial Service cadre is being carried out at regular intervals and in accordance with the UPHJS Rules, 1975. The Committee noted the aspect that at present, process of recruitment usually commences in the month of January or so at every 2 year block period and concludes in around one and half year and after finalization of computation of vacancies for the recruitment in process, any vacancy caused due to creation of Courts/posts, death, elevation, resignation, dismissal etc. during the intervening period is taken into account in the subsequent recruitment under the head of unforeseen vacancies. After noting its observation, the Committee concluded that these vacancies cannot be taken into account in the same recruitment for practical reasons/difficulties because any change in the number of vacancies will alter the quota fixed for different sources of recruitment and once the vacancies for Direct Recruitment get advertised, it would not be possible to change the number of vacancies so advertised, on some later date in the same recruitment year.
(41) In any case, it must be noted that Rule 20 of UPHJS Rules, 1975 provides that recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the principle of merit-cum-seniority and on passing such a suitability test and the Selection Committee shall prepare a Select List containing the names of officers twice the number of vacancies required to be filled by promotion of the members of the Nyayik Sewa. The said rule, in an unambiguous manner, thereafter, says that the appointment in HJS Cadre shall be made from the select list, against substantive vacancies available in respective quota and seniority of the officers appointed in the HJS Cadre shall be determined in accordance with the order of appointment in the Service under sub rules (1) and (2) of Rule 22 of the UPHJS Rules, 1975. Appointments to the HJS Cadre shall be made on the occurrence of substantive vacancies by taking candidates from the list in the order in which they stand in the respective lists in accordance with the roster. Therefore, it is very clear that no appointment can be made in HJS Cadre without following the due selection procedure mentioned in the UPHJS Rules 1975 and availability of substantive vacancy in the quota of the respective cadre.
(42) One of the grounds taken by the petitioners in the writ petition and also vehemently argued during the oral argument is that the determination of seats was not made as per the decision of the Apex Court passed in Malik Mazhar Sultan and Another v. U.P. Public Service Commission and Others : (2008) 17 SCC 703. Having noted the said Judgment, it would be important for this Court to deal with the judgment in extenco. Pertinently, this Court finds that the Hon'ble Supreme Court in the said case was mainly concerned with the timely filling of judicial vacancies in the State. Therefore, Hon'ble Supreme Court in the said judgment had fixed a time period to be followed by each High Court so that the existing judicial vacancies are filled without any delay. Relevant to the context, in the said judgment, the Apex Court has provided a Time-Table for filling of the vacancies of the cadre of District Judges from all the three sources at paragraph-7 of the judgment, wherein invariably the Apex Court has directed that the number of vacancies to be notified by the High Court by 31st of March and the vacancies was to be calculated, which would include :
"(a) Existing vacancies.
(b) Future vacancies that may arise within one year due to retirement.
(c) Future vacancies that may arise due to elevation of the High Court, death or otherwise, say ten per cent of the number of posts.
The third category which was the "future vacancies", that may come due to reasons other than retirement, were to be 10% of the cadre strength, as this was clarified at paragraph 15 of the said judgment, in the following words:
"15. We further direct that ten per cent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year."
(43) This Court need not burden this judgment by quoting extensively the detailed Time Table and the Time line, provided in the said Judgment relating to the receiving the applications, holding of examinations, prompt declaration of results, issuance of appointment letters, joining of incumbents etc. for both the HJS as well the Civil Judge recruitments. Suffice to say that the said Time lines were implemented by various High Court, throughout India and multiple intervening applications also came to be filed in the said case for clarification, extension of time lines etc. Apparently, relevant to the context, the third category of determination of vacancies as mentioned in the category of "Future Vacancies" created some confusion in different States as there could be no clarity of what these vacancies would be or how they were to be calculated. Ultimately, in Malik Mazhar Sultan and Another v. Uttar Pradesh Public Service Commission and Others (2009) 17 SCC 24, the Apex Court clarified this aspect in its order dated 24.03.2009, while deciding IA No. 56, in the following words:
"1. On 4-1-2007 [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] , this Court had given certain directions regarding the selection and appointment of members of the subordinate judicial officers in various courts. In the tabular form, the number of vacancies are notified by the High Court/Public Service Commission. It was directed that the further vacancies that may arise due to elevation or death or otherwise, 10% of the posts shall be notified and this is referred at para 15 of the order; it is further stated: (Malik Mazhar case "15. We further direct that ten per cent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year."
2. It has been pointed out by the counsel appearing for the various High Courts that 10% of the sanctioned posts are notified in some States. A large number of posts are to be notified whereas there was corresponding number of vacancies to be filled if the candidates are selected in the select list. There may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates and it is prayed that the existing vacancies alone be notified along with the anticipated vacancies that may arise in the next one year and some candidates also be included in the wait list prepared by the High Courts/PSCs.
3. In supersession of the order passed by this Court on 4-1-2007 [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] , this Court directs that in future the High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list. To this extent earlier order is modified."
4. I.A is disposed of accordingly."
(emphasis supplied) (44) From the aforesaid observation of the Hon'ble Apex Court, it stands clarified by the Apex Court in Malik Mazhar Sultan's case [(2009) 17 SCC 24] (Supra) that the third category earlier created in Malik Mazhar's case [(2008) 17 SCC 703] (supra) did not exist any longer. Pertinently, Malik Mazhar's case (supra) has to be understood for the proposition that, now it merely directs the High Courts/PSCs to notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates, who may be included in the wait list. It is important to note that as far as the vacancies for the next one year is concerned, the Apex Court very significantly qualified the said vacancy by the word "anticipated", which is a word closely associated to "likely to occur" as used in Rule 8 (1) of the UPJHS Rules,1975. Further, according to Black's law Dictionary, 'anticipation' is the act of doing or taking something before its proper time. In common parlance, 'anticipated' means something is expected or looked forward to and generally means to imagine or expect something, which will happen and do some action in preparation for it. Creation of posts of Family Courts, Anti-Corruption Courts or elevation to the High Court, cannot be imagined nor anything can be prepared for that imagination. It has to be understood that there is some kind of certainty attached to such anticipation as held in Malik Mazhar Sultan's case (Supra). Thus, the entire edifice of the petitioners comes down crumbling as they are wrongly relying on a judgment, which stands modified by a successive order by the Apex Court and this Court expects that as an officer of this Court, it was the bounden duty of the learned Counsels appearing for the parties to bring to the notice of this Court about the said second judgment passed in Malik Mazhar Sultan's Case.
(45) In any case, this Court finds that the said unforeseen vacancies have been reported as existing vacancies for the recruitment year 2014. Since, the selection and appointment of the said recruitment process also stands culminated and this Court has been informed that these petitioners have also been promoted in the year 2014, nothing remains in the present writ petition in the absence of any illegality or irregularity in the determination of Vacancy for the recruitment year 2012 on the ground agitated by these petitioners.
(46) Further this Court finds that the representation of some of the petitioners have also been duly considered by the Selection and Appointment Committee in its meeting dated 19.05.2014, wherein the Committee while rejecting the representation observed that the newly created posts have already been calculated in the vacancies of UPHJS Recruitment, 2014. The Committee determining the seats and seniority for the Recruitment Year 2012 and 2014 has also dealt with the said issue at page nos. 11 and 12 of the said report, therefore, this Court finds that the petitioners have already ventilated their grievances and it was rightly rejected by the Committee.
(47) There is another aspect of the matter. It has also been submitted on behalf of the petitioners that against the 94 unforeseen vacancies, merely 32 seats were remaining vacant and the High Court has offered appointment to these newly created unforeseen vacancies and as such in that manner, the petitioners could not be treated with such hostile discrimination. In this regard, this Court finds that the petitioners are again at an erroneous belief that these newly created seats were not filled by any new promotee, but by existing HJS Cadre Officers and, as such, even those persons, who were promoted/appointed against the substantive post, were given late appointments. The petitioners should bear in mind that a person whose name appears in the select list, does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate and only against a substantive available post.
(48) Further, the said issue can be analysed from another angle, in as much as the recruitment year 2012 was notified on 09.01.2012 and at that point of time, these unforeseen vacancies were not available nor there were anticipated and as such these vacancies did not form a part of the notification for the recruitment year -2012. Since, these unforeseen vacancies came much later, when the recruitment process had already started, whether it is legal to accommodate the petitioners or for that matter any persons on these unforeseen vacancies, which now came into existence at a later stage on the basis of the recruitment of 2012. Answering the said proposition in negative, the Hon'ble Apex Court in the case of Rakhi Ray Vs High Court of Delhi & Ors.: 2010(2) SCR 239 observed :-
"9. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide Union of India & Ors. v. Ishwar Singh Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591; State of Bihar & Ors. v. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736; Prem Singh & Ors. v. Haryana State Electricity Board & Ors. (1996) 4 SCC 319; and Ashok Kumar & Ors. v. Chairman, Banking Service Recruitment Board & Ors. AIR 1996 SC 976)."
(49) Recently, the Hon'ble Supreme Court, while dealing with identical issue for Judicial Officers appointed in the State of Himachal Pradesh in the case of Vivek Kaisth Vs State of Himachal Pradesh : 2023 SCC Online 1485 concluded at paragraph 35 and 36 of the judgment as follows :-
"35. Having gone through the pleadings of the appellants and that of the respondents, we are of the considered view that there has been a violation of the process in making selection/ appointment of the appellants, in as much as the vacancies on which the appellants were appointed were never advertised, and strictly speaking these vacancies cannot be termed as "anticipated vacancies" for the simple reason that these vacancies were only created on 18.04.2013 i.e. after the selection process had begun and advertisement was issued on 01.02.2013.
36. What is also important for our consideration at this stage is that the appellants in the present case have been working as Judicial Officers now for nearly 10 years. They are now Civil Judge (Senior Division). These judicial officers now have a rich experience of 10 years of judicial service behind them. Therefore, unseating the present appellants from their posts would not be in public interest. Ordinarily, these factors as we have referred above, would not matter, once the very appointment is held to be wrong. But we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list. Secondly, it is nobody's case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as "blameworthy". Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants......."
(50) For all the aforesaid reasons, this Court does not find any force in the argument of the petitioners and holds that the vacancy for the recruitment year 2012 was correctly determined by the High Court in terms of Rule 8(1) of the UPHJS Rules, 1975 and there was no occasion for the High Court to consider the appointment of the petitioners on the unforeseen vacancies, which were created or came into existence once the recruitment process started for the said year 2012.
(51) As a sequel to the findings recorded herein above, the other prayers of the petitioners are inconsequential and as such the same are declined. The petitioners are not entitled for any relief as prayed for and as such Writ-A N. 2000845 of 2014 (Sanjeev Kumar Singh & Ors. Vs State of U.P) is dismissed.
F. Contention of the parties in Writ-A No. 30173 of 2019, Writ-A No. 11453 of 2020 and Writ-A No. 28511 of 2021.
(52) As far as Writ-A No. 30173 of 2019 (Harendra Bahadur Singh & Ors. Vs. State of U.P. and others) is concerned, the petitioners although have challenged the seniority list of HJS officers of recruitment year 2012 and 2014 as finalized vide the Seniority Committee's Report dated 31.01.2019 and circulated vide letter dated 26.08.2019, however, the ammunition for the said challenge has been grounded on re-calculating/re-determination of the vacancies for direct recruited HJS for recruitment year 2012 and 2014 as per law laid down by the Hon'ble Supreme Court in Nawal Kishore Mishra's case (supra) as well as Rule 8(2) of the UPHJS Rules, 1975. According to these petitioners, Section 3 (2) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (hereinafter referred to as 'Reservation Act, 1994') provides that any unfilled reserved category vacancy should be carried forward and filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and since unfilled reserved seats for the recruitment year 2009 were not carried forward in the recruitment year 2012 and similarly, the unfilled reserved seats of 2012 were not carried forward for recruitment year 2014, there was a fallacy in over determination of seats of direct recruits and in any case the general category candidates have been appointed in excess as they were the direct beneficiary of these unfilled reserved seats.
(53) Further, these petitioners have tried to interpret Rule 7 of the UPHJS Rules, 1975, which deals with reservation of posts for scheduled casts etc. to mean that since the said Rules provides that there shall be no carry forward of reservation for women and does not specifically bars any such carry forward for Scheduled Caste and Scheduled Tribes posts in similar manner. It has been sought to be argued that the unfilled reserved category vacancies are liable to be carried forward. These petitioners have relied on the judgment of the Hon'ble Supreme Court rendered in R.K. Sabharwal & Ors. Vs. State of Punjab & Ors. : (1995) 2 SCC 745 to argue that the reserved posts are to be filled amongst the members of reserved categories and the candidates belonging to the General Categories were not entitled to be considered for the reserved post. Thus, it has been argued that the determination of vacancy for direct recruitment in UPHJS for the year 2012 and 2014 were made in excess and on the post meant for reserved category and as such the determination of the vacancy for direct recruits are violative of Section 3(2) of the Reservation Act, 1994, Rule 8(2) of the UPHJS Rules, 1975 and mandate of Hon'ble Supreme Court rendered in Nawal Kishore Mishra's case (Supra).
(54) Apparently, the case of the petitioners in Writ-A No. 30173 of 2019 is not as to the exceeding numbers of direct recruits, beyond the prescribed 25% quota meant for direct recruits in HJS, but they are basically aggrieved by the erroneous calculation of vacancies for General Category candidates within the said 25% quota meant for direct recruits for the recruitment year 2012 and 2014. The petitioners have relied upon paragraph 55, 58 and 61 to 64 of the Nawal Kishore Mishra's case (Supra) and have argued that although, in the said judgment, a specific stand has been taken by the High Court on the administrative side that those unfilled reserved category vacancies of the year 2009 which were filled up from "in-service candidates" were subsequently carried forwarded in the subsequent years as reserved category vacancies with regard to direct HJS Recruitment Year 2009, however, the same was not followed by the High Court in the successive recruitment years of 2012 and 2014, which according to them, have resulted in excess appointment of direct General Category candidates in UPHJS. Thus, according to them, there is an utter violation of the Reservation Act 1994 as well as Rule 8(2) of the UPHJS Rules 1975, which had adversely effected the seniority list. It is the case of the petitioners that although they have sent representation, however, the same has not yielded to anything as the same was rejected arbitrarily by this Court on the administrative side. The petitioners have also relied upon paragraph 19 & 21 of the Nawal Kishore Mishra's case (Supra) to point out that the Seniority Committee in its report dated 31.01.2019 has itself admitted that the calculation of vacancies from 2009 to 2014 was erroneous.
(55) On the other hand, the learned Special Counsel representing for High Court on the administrative side, has sharpened his attack on the various reliefs sought by the petitioners in the aforesaid petition. The learned Counsel has assertively argued that as far as the Recruitment Year 2009 is concerned, whether it is re-determination of vacancy for direct recruit or the seniority, the same stands settled and has attained finality in view of the judgment of the Hon'ble Supreme Court in High Court of Judicature at Allahabad Vs. State of Uttar Pradesh : (2018) 15 SCC 439 and reiterated vide orders dated 25.10.2015 and 15.11.2021 passed in Writ Petition (Civil) No. 147/2021 (Randheer Singh & Ors. Vs High Court of Judicature at Allahabad & Ors.). As far as assailing the advertisement dated 09.08.2019 relating to recruitment of UPHJS for the year 2018 on the ground of non-availability of vacancies for direct recruit is concerned, the learned Counsel has argued that there was neither any pleading nor any oral argument by the petitioners as to how they were aggrieved or as to how they had locus standi to assail the said advertisement, which in any case was related to subsequent recruitment years. The learned Counsel citing the various dates on which the recruitment for the year 2012 and 2014 started and the appointments were made for that recruitment year, has drawn the attention of this Court to the proposition that the present writs suffered from laches of delay as the same has been preferred belatedly in the year 2019, whereas the recruitments were made in the year 2012 and 2014. Further, a ground of all the petitioners being in service and also being very well in knowledge of the said vacancies and appointment, have been raised by the learned Counsel to counter any relief being granted to the petitioners. The learned Counsel has relied on the judgment of P.S Sadasivaswamy Vs State of Tamil Nadu : (1975) 1 SCC 152, Union of India Vs C. Girija: (2019) 15 SCC 633 to submit that promotion order ought to be challenged between 6 months to 1 year.
(56) As regards the non-complying with Section 3(2) of the Reservation Act, 1994 read with Rule 7 of the UPHJS Rules, 1975 and resultantly failing to carry forwards reserved category direct recruits seats is concerned, the learned Counsel for the respondents, has countered the said proposition by stating that Section 3(2) of the Reservation Act, 1994 have not been adopted by this Court on the administrative side as it is section 3 (1) of the said Act, 1994, which has only been adopted and as such it was argued that the unfilled vacancies of reserved category candidates are not to be carried forward or filled through Special Recruitment in that very year or in succeeding year(s) as a separate class of vacancy. The learned Counsel has stressed on the point that the UPHJS Rules, 1975 in their letter and spirit envisages that not a single post should be left vacant as could be found in proviso to Rule 8(2) of the UPHJS Rules, 1975, rather than carrying forward the vacant seats. The learned Counsel has relied on the judgment of the Constitution Bench of the Apex Court rendered in State of Bihar Vs Bal Mukind Sah, (2000) 4 SCC 640 to fortify his argument that the rules of the executive would not apply to the High Court in the absence of adoption or consultation.
(57) It has been also submitted that although the petitioners have sought to challenge the Seniority Committee's reports dated 31.01.2019 and tentative report dated 30.07.2018 of the Seniority Committee, however, none of the grounds addresses to the said challenge and the petitioners have merely highlighted the issue of vacancies being not available for direct recruit by tracing the recruitment of the years 2007 and 2009, which according to the learned Counsel has already attained finality with the delivery of judgment in High Court of Judicature at Allahabad Vs State of Uttar Pradesh (Supra). Further, according to the learned Counsel, Nawal Kisore Mishra's case (Supra) did not decide the issue of carry forward of reserved category seats for successive year, rather has decided the carrying forward of reserved category seats for the recruitment year 2009 only. The learned Counsel has vehemently argued that the present issue for carrying forward of reserved category seats in successive years in UPHJS was not an issue before the Apex Court and has also relied on the judgment of Delhi Administration vs Manohar Lal, (2002) 7 SCC 222 and Natural Resources Allocation, in re: Spcial Ref. 1/2012, (2012) 10 SCC 1 to submit that judgment is binding on only those issues which are decided by the Court.
(58) The learned Counsel has further submitted that as far as the assailing of resolution dated 23.05.2015 passed by the Hon'ble Full Court of this Court is concerned, there had been no alleged flaws or infirmity pointed out by the petitioners either in the pleadings or at the stage of oral arguments and the same reasoning would follow for assailing resolution dated 13.01.2016 of the Rules Revision Committee by the petitioners, wherein in both the resolutions, it has been reiterated that this High Court has not adopted Section 3 (2) of the Reservation Act, 1994. The learned Counsel has relied on the judgment of Rajasthan High Court Vs Ved Priya & Anr, (2021) 13 SCC 151 for the proposition that collective wisdom of the Full Court deserves due respect and should not be interfered with lightly. An additional ground of non-joinder of parties have also been taken by the respondents, on the premises that all the persons, who are going to be effected by the writ petition, has not been impleaded as a party to the said writ petition and has relied on the judgement of Rashmi Mishra vs MP Public service Commission, (2006) 12 SCC 724 and Ranjan Kumar Vs State of Bihar, (2014) 16 SCC 187 to submit that where appointment of candidates are called in question, all appointed candidates are necessary parties.
(59) Further, as far as the Writ-A No. 11453 of 2020 (Smt. Manorama and others Vs Hon'ble High Court of Judicature at Allahabad and others) is concerned, the petition has been filed against almost 42 respondents, wherein respondent Nos. 3 to 36 are direct recruit of 2012 and respondent Nos. 37 to 42 are direct recruit of year 2014. These petitioners claim to be placed en bloc, within the quota of promotees in the seniority list of 2012 above the direct recruits, on the ground that they had been inducted in the cadre of Higher Judicial Services vide Government Memo dated 04.03.2013, whereas the direct recruits came to be appointed only on 05.08.2013. According to them, since these direct recruits were not even born in the cadre in the recruitment year 2012 i.e till 30.06.2013 (although at paragraph 37 of the petition it has been stated that the last date for recruitment year 2012 is 31.12.2013) and as such have relied on the judgment of R.K. Sabbarwal Vs. State of Punjab: 1995 (2) SCC 745, to argue that their seniority be fixed with HJS 2012 batch and not with HJS 2014 batch. A further ground for re-determination of the quota for allotment to promotees, merit based limited competitive promotions and direct recruits has been raised by these petitioners, on the ground of the judgment dated 03.10.2018 passed by the Hon'ble Supreme Court in the case of "Hon'ble High Court of Punjab and Haryana at Chandigarh Vs State of Punjab, 2019 (12) SCC 496". It has been submitted by them that after the passing of the judgment, there was no doubt that the un-amended quota of 15% for direct recruits has to be applied to the said post in the cadre prior to the date of amendment and the amended quota of 25% for the direct recruits has to be applied to the post created/ increased after the date of amendment in the rules pursuant to the judgment of the Apex Court in All India Judges' case (Supra). Thus, by the application of the said analogy, it has been submitted that 25% quota for the direct recruit is wrongly applied retrospectively by the respondent from the date when UPHJS Rules, 1975 came into existence to determine the strength of direct recruits, whereas it ought to be that 25% quota would have to be applied only on the enhanced strength, which got enhanced after the relevant date of 21.03.2022 ( i.e passing of the All India Judges' case) and 15% of the total cadre strength prior to the said date of 21.03.2022.
(60) However, later on these petitioners confined (see paragraph 39 of the writ petition) their challenge to the appointment of 35 direct recruits in the recruitment year 2012. According to them, even if by applying 25% quota of direct recruitees on the entire cadre strength, there are 64 excess direct recruits in the recruitment year 2012 and as such no direct recruits could had been given any place in the Recruitment Year 2012 and that too, over and above the petitioners, as there was existing no quota for direct recruits in for the recruitment year 2012. The petitioners have also relied upon Rule 8(2) of the UPHJS Rules, 1975 to argue that although the said rule enable filing up of unfilled post of Direct recruitees, whether belonging to reserved category or general category, by promotion from Nyayik Sewa, however it would be a breach of the said rule, in case General category of direct recruitees are selected on the posts meant for reserved category of direct recruits as it would adversely effect the promotional avenues of the promotees.
(61) The petitioners have also submitted that although they have been appointed on promotion under Rule 22(1) of the UPHJS Rules, 1975 in the recruitment year 2012 and they are entitled to be placed en bloc over and above the direct recruits of the year 2014, however with the application of roster rule they have been placed below in the seniority list. It is argued that roster cannot be applied between candidates selected in different recruitments 2012 and 2014 and in any case Rule 22 (2) of the UPHJS Rules, 1976 clearly says that roster is applicable only if selection and appointment is done in same recruitment year. Thus, it has been prayed for quashing the seniority list of HJS officers of recruitment year 2012 and 2014 dated 21.01.2019 along with the final seniority report of the judges committee dated 31.01.2019, re-fix the inter-se seniority of the petitioners qua the direct recruitees of recruitment year 2012 and 2014 of the HJS Cadre, after calculating the number of post meant for direct recruits in accordance with the judgment of the Apex Court rendered in Punjab & Haryana High Court at Chandigarh's case (Supra).
(62) On the other hand, the respondents have argued that the petitioners have assailed the seniority list after an inordinate delay of over one year, which is not permissible in law as per the judgment of the Apex Court in B.S Bajwa Vs State of Punjab & Ors. AIR 1999 SC 1510, Malcom Lawrence Cecil D'Souza Vs Union of India & Ors. AIR 1975 SC 1269 and H.S Vanikani & Ors. Vs State of Gujrat & Others, (2010) 4 SCC 301. The learned Counsel has argued that although the petitioners have sought the relief of not applying the roster rule to their promotion, however these petitioners have failed to challenge Rule 22 (2) of the UPHJS Rules, 1975, which provides for a roster system for promotions under the UPHJS Rules, 1975. Further, according to them, the judgment of the Apex Court rendered in Hon'ble Punjab & Haryana High Court at Chandigarh Vs State of Punjab (supra) relied by the petitioners is of no avail as it has been held in the said judgement that any amendment cannot be to the disadvantage of the existing recruits in a cadre. According to the respondents, all the objections have been duly taken care by this Court on the administrative side vide its final seniority report dated 31.01.2019 at paragraph 7 to 10. Other grounds relating to carrying forward of reserved category seats etc. have been repeated as has been taken in the Harendra Bahadur Singh's case.
(63) Similarly, as far as Writ-A No. 28511 of 2021 (Randheer Singh and others Vs Hon'ble High Court of Judicature at Allahabad and others) is concerned, these petitioners had earlier approached the Apex Court with the same relief, wherein vide an order dated 15.11.2021 passed in Writ Petition (Civil) No. 147/2021, the Apex Court permitted these petitioners to withdraw their writ petition before the Apex Court, so as to approach this Court by way of writ petition, keeping in view that other similar writ petitions challenging the seniority list of 31.01.2019 is engaging the attention of this Court. The case urged in the petition is that the petitioners were promoted to UPHJS under Rule 22(3) of the UPHJS Rules 1975 vide notification dated 10.12.2008 and were appointed in stop-gap arrangement as Addititonal District & Sessions Judge against Fast Track Courts after qualifying the suitability test as per the scheme of Rule 20 of the UPHJS Rules, 1975. These petitioners were placed against the temporary ex-cadre posts vide notification issued on 31.03.2011 and were subsequently promoted under Rule 22(1) of the UPHJS Rules, 1976 vide memorandum dated 04.03.2013, which came to be superseded by another memorandum dated 05.08.2013. The petitioners have taken all those grounds for upsetting the seniority list dated 31.01.2019 and seeking for re-determination of vacancies for direct HJS Recruitment 2009 and 2012 as has been taken by the petitioners in Harendra Bahadur Singh's case and Manorama Devi's case, however additional grounds of services having been rendered under principal clause of Rule 22(3) of the UPHJS Rules, 1976 and the same being not recognised for the purposes of seniority and other ancillary service benefits has been raised in the instant petition. Further, various reliefs also included to finalize the seniority list by placing the petitioners at appropriate places in the seniority list dated 23.09.2015 and 26.08.2019, keeping in view the date on which substantive vacancies occurred in their quota and that too without applying the Rota rule.
(64) Per contra, learned Counsel for the respondents have vehemently opposed the said writ petition and has taken all the defence as has been taken by them in the earlier aforesaid two petitions. As far as the submission of Rule 22(3) of UPHJS Rules, 1975 is concerned, it has been submitted that the proviso appended to the said Rule 22 (3) itself clarifies that the promotees on a short term appointment to the service as a stopgap arrangement cannot be computed under Rule 26 relating to seniority. The learned Counsel has relied on the judgment of Malook Singh and Ors. Vs State of Punjab and Ors. 2021 SCC Online SC 876 and Rashi Mani Mishra and Ors. Vs State of UP and Ors. 2021 SCC Online 509 to submit that ad hoc services cannot be counted towards determining seniority. It has been further argued by the learned Counsel that although the petitioners are challenging the proviso to Rule 22 (3) of the UPHJS Rules, 1975, however, there had been no challenge to the constitutional validity of the said rules. The learned Counsel has relied on the judgement of Anup Bhuyan Vs State of Assam & Anr, (2023) SCC Online SC 338 to submit that in the absence of challenge to the constitutional validity of a statute, the same may not be read down. The respondents have also argued that the petitioners have merely challenged the final seniority list dated 31.01.2019 and the committee report of the same date, whereas failed to challenge the tentative seniority list dated 31.07.2018, which was the very basis of the said final seniority list. The learned Counsel relying on the precedent delivered by the Apex Court in Indian Council for Agricultural Research Vs Central Administrative Tribunal and Anr. 2018 SCC Online All 667 and P. Chittaranja Menon and Ors. Vs A. Balakrishnan and Ors. (1977) 3 SCC 255 has submitted that writ petition preferred for challenging the consequential order without any challenge to the main order from which cause of action arises is not maintainable and is liable to be dismissed. Additionally, it has also been submitted by the learned Counsel that both in the writ petition filed by Manorama Devi's Case and Randhir Singh's case, although the direct recruits have bene arrayed as parties but their appointment have not been challenged. It has been argued that seniority, which is consequential to appointment/promotion, could not be challenged without challenging the appointment/promotions and has relied on the judgement of Vijay Kr. Kaul Vs Union of India, 2012 (7) SCC 610 and Ranjan Kr. Vs State of Bihar, (2014) 16 SCC 187, KH Siraj Vs High Court of Kerala, (2006) 6 SCC 395, Rashmi Mishra V/s MP Public Service Commisison, (2006) 12 SCC 724 and Amarjeet Singh V/s Devi Rattan, (2010) 1 SCC 417.
G. Discussion & Findings (65) The learned counsel for the respondents, while defending the various issues raised by the petitioners, have also taken a preliminary objection of non-maintainability of the present writ petitions. It is one of the contention in Harinder Bahadur's case that all direct recruits for recruitment year 2012 and 2014 have not been arrayed as a party though averments have been made and sought for quashing of their appointments. According to the learned counsel for the respondents, only 7 incumbents have been arrayed in representative capacity without compliance of Order I Rule 8 CPC read with Chapter V Rule 12 of the Allahabad High Court Rules, 1952 and as such it has been submitted by them that since large number of direct recruits of 2012 and 2014 have not been made a party, the writ of Harinder Bahadur's case may be dismissed for non-joinder of necessary parties.
(66) However, this Court finds that the aforesaid contention of the learned counsel for the respondents is not sustainable both in facts and under law. It has to be noted that the present petition is being heard and decided along with two other writ petitions challenging the self-same issue, wherein almost all the appointed directly recruited candidates, who are likely to be affected by a decision in the present writ petitions are respondents in that said other two writ petitions, therefore, firstly these direct recruitees are already present before this Court and secondly some of the respondents are already party-respondents in the said writ petition in representative capacity and as such there is no need of dismissing the present petition on the ground of non-joinder of parties. In any case, the sole objective of making a party-respondent in a writ petition is that (i) relief cannot be granted in the absence of such party, (ii) the said party is heard before any adverse orders are passed by the court and (iii) the interest of the party is preserved. In our view, the respondents are very much protected and well represented before this Court.
(67) Further, the Apex Court in Mukul Kumar Tyagi and Ors. Vs The state of Uttar Pradesh and others, (2020) 4 SCC 86, laid emphasis that when there is a long list of candidates against whom the case is proceeded, then it becomes unnecessary and irrelevant to implead each and every candidate. If some of the candidates are impleaded, then they will be said to be representing the interest of rest of the candidates as well. The relevant portion of paragraph 75 from the judgment is reproduced below :
"81...... We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity."
(68) Recently, the Apex Court in Ajay Kumar Shukla V/s Arvind Rai, (2022) 12 SCC 579, after tracing the various precedents on the issue of impleadment of parties, it has been held that in matters relating to service jurisprudence, it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. Thus, it was observed by the Apex Court in the following words :-
"51...........In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal."
(69) Thus, in view of the above, the ground of non-joinder of parties being not fatal, the ground of non-joinder of all the direct recruits of recruitment year 2012 and 2014 in Harinder Bahadur's case cannot take the respondents any further and as such the same is rejected.
(70) Further, as far as the other writ petitions being that of Manorama's case and Randheer Singh's Case are concerned, it has been contended that although direct recruits have been made a party, however their appointment have not been challenged. According to the respondents, since seniority is a consequential of appointment/promotions, in the absence of any challenge to the basic order of appointment, both the writs are liable to be dismissed. Various judgments including Vijay Kr. Kaul Vs union of India, (2012) 7 SCC 610, Ranjan Kr. Vs State of Bihar, (2014) 16 SCC 187, KH Siraj Vs High Court of Kerala, (2006) 6 SCC 395, Rashmi Mishra V/s MP Public Service Commission, (2006) 12 SCC 724 and Amarjeet Singh V/s Devi Rattan, (2010) 1 SCC 417 has been cited at the bar. Further, another ground of non-maintainability has been taken in Harendra Bahadur Singh's case, in as much as it has been contended by the respondents that the appointments of direct recruits have been challenged in 2019 though they were appointed in 2013 and 2015. Thus, according to them, since the appointments have been challenged in a vague manner and without impugning their respective order of appointments and details of appointees and most importantly, the challenge itself was belated by 4-6 years without any explanation for such inordinate delay, all the three writ petitioners were not maintainable. It has also been argued that order of promotion/ appointment/seniority should be challenged by a person aggrieved within 6 months or at most 1 year as has been held in various precedent.
(71) This Court finds that no doubt, the issue raised by the learned Counsel for the respondents are serious in nature and would have an adverse effect on the outcome of the writ petition, however, this Court in the facts of the present case and keeping in view the larger issue raised by the petitioners, defer the aforesaid issue to be dealt in the later part of this judgment. Thus, this Court would first take up the core issue and thereafter decide the other ancillary issues, which have been raised in these petitions.
(72) After hearing the parties at length on various issues agitated in the present writ petitions, this Court is of the view that the hinge of the argument of the Nyayik Sewa Promotees in the present petitions is relating to the re-determination of the vacancy available for the general candidates for the recruitment year 2009, 2012 and 2014 as according to them, although the High Court had been following Rule 8(2) of the UPHJS Rules, 1975 and had been increasing the number of seats for promotion from the Nyayik Sewa corresponding to the number of less candidates selected in the direct recruitment of that particular year and have also crediting back the seats to the direct recruit in the next recruitment year as per the proviso to Rule 8(2) of the UPHJS Rules, 1975, however, in crediting back the seats to the direct recruitment in the next year, the rule of carrying forward of reserved seats was not followed, which led to selection of excess general candidates in the recruitment year 2009, 2012 and 2014. In claiming that excess general candidates of direct recruits have been appointed against seats meant for reserved category, these promotee petitioners have sought to interdict the seniority list of HJS officers of Recruitment Year 2012 and 2014 and final Seniority Committee's Report dated 31.01.2019 circulated vide letter dated 26.08.2019.
(73) Before, this Court embarks on to decide the aforesaid issue, it is of paramount significance that first the benchmark or rather the reference point for deciding the said issue may be determined, particularly in view of the matter that in (i) Manorama's case, it has been sought to be agitated by the petitioners for determining the quota between the three sources of recruitment, the cadre strength which existed prior to the amendments incorporated in the rules pursuant to Judgment of the Apex Court in All India Judges' cases (Supra) and subsequent to the amended Rrules, have to be treated differently in view of the judgment of the Apex Court in Hon'ble High Court of Punjab and Haryana at Chandigarh V/s State of Punjab (supra) and (ii) Randheer Singh's case, re-determination of the vacancy for direct recruits for the year 2009 and 2012 has been prayed for in the writ petition.
(74) Having said so, this Court cannot be oblivious to the fact that the seniority report dated 23.09.2015 read with Supplementary Seniority Report dated 06.04.2016 for recruitment year 2009, which was prepared by this High Court on the administrative side came to be approved by the Hon'ble Full Court of this Court on 14.04.2016. These reports consisting of the determination of seats in each cadre and the seniority of the officers till the recruitment year of 2009 was assailed before this Hon'ble Court in Writ Petition No. 16569 (S/B) of 2016 (Smt. Premkala Singh and Others Vs. High Court of Judicature of Allahabad and Others), wherein a Co-ordinate Bench of this Court refused to interfere with the determination of vacancies in each cadre, however had set-aside the determination of seniority on the ground that no quota-rota rule was applied while preparing the seniority list till the recruitment year 2009.
(75) The said judgment of the Co-ordinate Bench came to be impugned before the Apex Court limited to the extent of quashing the seniority list by this Court on the administrative side, wherein the Hon'ble Supreme Court, while allowing the civil appeal, set-aside the directions of this Court by which the determination of seniority was made by the seniority report dated 23.09.2015 read with supplementary seniority report dated 06.04.2016 for the recruitment year 2009 was set-aside by the Co-ordinate Bench of this Court in the case reported as "High Court of Judicature at Allahabad and Ors. Vs. State of U.P & Ors." (2018) 15 SCC 439. Significantly, the Apex Court observed that from 21st of March, 2002 to 2008, since a different regime of Rules was stipulated under the judgment of All India Judges' case and the Rules came to be amended by the High Court only on 9th of January, 2007 and notwithstanding the availability of vacancies in promotion quota, the promotee officers, who were eligible and were officiating against the said vacancies, could not be recruited as they came to be recruited only after the suitability test was held for the first time in the year 2008.
(76) Thus, the Apex Court, although held that the quota-rota rule to be mandatory as per the Rules, however, in the said peculiar facts of the case that the essential suitability test was conducted for the first time in 2008 only, did not find any fault in the finding of the Committee that these promotee's were entitled to enbloc seniority without the quota-rota system. It was also held in the said judgment that the direct recruits could not be given seniority for the period prior to their appointment for both the 2007 as well as the 2009 recruitment as the same would create imbalance and injustice.
(77) Apparently, after the passing of the aforesaid judgment, the determination of vacancies in each cadre as well as the seniority list till the recruitment year 2009 as could be found in the seniority report dated 2309.2015 and supplementary seniority report dated 06.04.2016 stands finalized & settled for all intents and purposes, which has also been resonated in the report dated 31.07.2018 of the Hon'ble Five Judges Seniority Committee as well as the final seniority report dated 31.01.2019 of the Hon'ble three Judges Committee.
(78) Further, recently the said position was reiterated by the Hon'ble Apex Court in Writ Petition (Civil) No. 147/2021 (Randheer Singh & Ors. Vs High Court of Judicature at Allahabad & Ors.), wherein vide an order dated 25.10.2021 as well as Order dated 15.11.2021, the Hon'ble Supreme Court observed that the challenge to seniority list dated 23.09.2015 has attained finality in terms of decision in the case of High Court of Judicature at Allahabad Vs State of Uttar Pradesh, reported in (2018) 15 SCC 439 and categorically refused to reopen the challenge on any new ground. The Hon'ble Supreme Court in categorical terms vide an order dated 25.10.2021 held :-
" Mr. Patwalia, learned Senior counsel appearing for the petitioners, at this stage, contends that stated decision does not deal with all aspects. As noted earlier, we will not permit the petitioners to assail the seniority list dated 23.09.2015 and more so, at this distance of time, in the year 2021. The grievance of the petitioners in respect of that seniority list will have to be negated even on the principle of laches."
(79) Thus, this Court is clear in mind that the final seniority list dated 23.09.2015 as supplemented by report dated 06.04.2016, which corresponds to the recruitment year 2007 & 2009 has attained finality and in all fairness and Judicial proprietary it would be considered as the benchmark for adjudicating the present issues raised in these writ petitions pertaining to the recruitment year 2012 and 2014.
(80) Thus, as far as one of the prayers in the Randheer Singh's case for re-determination of the vacancy for direct recruits for the year 2009 is concerned, the same cannot be entertained by this court and the same is hereby rejected. That brings this court to the contention made by the petitioners in Manorama Devi's case, wherein relying on the judgment of the Hon'ble Apex Court in Hon'ble High Court of Punjab and Haryana at Chandigarh V/s State of Punjab, 2019 (12) SCC 496, it has been sought to be agitated by the petitioners therein for determining the quota between the three sources of recruitment on the basis of cadre strength which existed prior to the amendments incorporated in the rules pursuant to Judgment of the Apex Court in All India Judges' case (Supra) and subsequent to the amended Rules. Although this Court finds that during the oral argument, the said issue was not pressed and no argument has been addressed on the said point by either of the parties, as the petitioners modulated and restricted their argument to having made 35 excess direct recruit appointed in the recruitment year 2012, however it is important to note that the judgment passed by the Apex court in the case of High Court of Punjab & Haryana's Case (supra) is not helpful to the petitioners in the present context. It must be understood that in the said case, the Hon'ble Supreme Court had examined the aspect as to whether the newly introduced 25% quota of "out of turn promotion", which had only come into existence after the passing of the All India Judges case (Supra) can claim 25% quota of the cadre strength in the total cadre strength of Punjab Superior Judicial services and can the promotee Judges by virtue of the said All India Judges' case (supra) and the pursuant amendment carried by the State can suddenly become excess, so as to effect in all future vacancy. This Court finds that even the Hon'ble Apex Court in that said case has held at paragraph 49 as follows :-
"49. The judgment of this Court in All India Judges case (3) [All India Judges Assn. (3) v. Union of India, (2002) 4 SCC 247: 2002 SCC (L&S) 508] being prospective, the ratio of officers as existing before unamended rules cannot be adversely affected. A promotee before the amendment of the 2004 Rules, who was well within their quota, suddenly cannot go out of their quota and become an excess merely on the strength of amendment of Rules, which are prospective in nature. For determining the quota, the cadre strength, which existed prior to amended rules and subsequent to the amended rules have to be treated differently. Promotees quota, which was 75 per cent prior to the 2004 Rules makes 66 posts in their quota as before amendment dated 15-1-2004, when the cadre strength has been increased from 89 to 107, 18 posts have to be further added to the cadre. This increase having been made after the amendment of the Rules dated 15-1-2004, on this cadre strength, the Rules as amended will be applied for bifurcation of quota. On 18 newly created posts, 50 per cent comes to 9, for out-of-turn promotees 4.5 and for direct recruits 4.5. Thus promotee officers on or after the increase of the cadre could have been 66+9 i.e. 75. In the appeal filed by the High Court, it is also indicated that 10 promotees were effected in October 2004 under 50 per cent quota of merit-cum-seniority. The rules providing 25 per cent quota for out-of-turn promotion being in place, at least few vacancies ought to have been given to the out-of-turn promotees. There is no detail of any further promotion or appointment made after 2004 to 2008."
(emphasis supplied) (81) Relating to the present context, it is clear from the above observation of the Apex Court that the number of direct recruits, who were existing prior to the amendment, cannot be adversely effected and an officer, who was appointed as a direct recruit, cannot be suddenly termed to be in excess. The point being made in the said case, if accepted, would open a pandora box, in as much as re-determination of post and seniority in each cadre has to be worked out freshly from the very inception of the UPHJS Rules of 1975, which needless to say would not only topple the entire seniority list but would have a catastrophic effect. In any case, any re-determination of the vacancy or tinkering with the seniority list prior to the recruitment year 2009 would be in the teeth of the judgment passed by the Apex Court in "High Court of Judicature at Allahabad and Ors. Vs State of U.P & Ors." (2018) 15 SCC 439. Further, even this Court is convinced that opening of the re-determination of the vacancy would not be justifiable on the facts of the present case.
(82) According to this Court, the common ground taken in all the three petitions in sum and substance is that since the seats meant for reserved candidates belonging to direct recruits had remained vacant in the recruitment year 2009, 2012 and 2014, they ought to be carried forward as per section 3(2) of the Reservation Act, 1994 read with Rule 7 of the UPHJS Rules, 1975. It is the submission of the petitioners that Rule 7 of UPHJS Rules, 1975 relating to reservation and Rule 8 (2) of UPHJS Rules, 1975 relating to carry forward of quota of direct recruit has to be read to mean that unfilled reserved quota in direct recruits has to be carry forward to the next recruitment year and has to be dealt as per the provisions of Section 3 (2) of the Reservation Act, 1994. The learned Counsel for the petitioners had been in chorus asserting that since the respondents have in Nawal Kishore Mishra's case, have not only taken a stand before the Hon'ble Supreme Court that they have implemented the Reservation Act, 1994 in its full spirit, but also in compliance to the said judgment have identified 34 seats for reserved category, which were not carried forward for the recruitment year 2009 and have also decided to adjust these 34 seats in subsequent recruitment years, the concept of carry forward of reserved seats has to be implemented in all successive years by the High Court on the administrative side.
(83) First and foremost, it has to be understood as to whether the mandate to carry forward reserved category vacancy is applicable to the recruitment of Uttar Pradesh High Judicial Services or not in view of the applicable rules. Answer to the said question would be a condition precedent to the second question, as to whether the said carry forward was required to be implemented for the recruitment year 2012 and 2014 or as to whether re-determination of the vacancy is required for the direct recruit for the recruitment year 2012 and 2014.
(84) Since, the issue before this court is related to carrying forward of unfilled reserved category seats of direct recruit in the following years, which essentially flows from the provision contained in Section 3 (2) of the Reservation Act, 1994, it would be appropriate to first reproduce the said section:
"Section 3 (2) says If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1)]"
(85) Admittedly, Rule 7 of the UPHJS Rules, 1975 is the only rule, which provides for reservation of posts of scheduled caste etc. Apparently, Rule 7 of the UPHJS Rules, 1975 says as follows:
"7. Reservation of posts for Scheduled Caste, etc.- Reservation to posts in the service for the members of the Scheduled Castes, Scheduled Tribes and other categories including women shall be in accordance with orders of the Government for reservation as adopted by the High Court.
Provided that twenty percent horizontal reservation for women to posts in service in direct recruitment from Bar in Uttar Pradesh Higher Judicial Service shall be subject to suitability i.e. if the sufficient number of women candidates is not available, then and in that event the reservation shall not have any operation to the extent of such unavailability.
Provided further that there shall be no carry forward of reservation for women."
(86) Rule 7 of UPHJS Rules, 1975 specifically provided that all reservation to the posts for the members of SC and ST or other categories and prescribes for two conditions viz. (i) it should be in accordance with orders of the Government for reservation (ii) it should be adopted by the High Court. So, according to this Court, reservation has to be provided in terms of some order of the Government related to reservation and most importantly the said Government Order should be adopted by the High Court.
(87) As to whether the Reservation Act, 1994 was adopted by the High court or not, the Hon'ble Apex Court in Nawal Kishore Mishra's case at paragraph 32 has categorically held that :
"32. For the sake of argument, even if we ignore such an extended contention made on behalf of the High Court by relying upon Article 13(3)(a) of the Constitution, we are convinced that having regard to the specific prescription providing for reservation under Section 3(1) of the Reservation Act, 1994 and there being no other specific order of the Government providing for reservation in any other manner and as stated by us no other specific order of the Government, as was previously issued viz. the one dated 18-7-1972 after the emergence of the Reservation Act of 1994, we hold that for all practical purposes the usage of the expression "order" in Rule 7 is only referable to the provision for reservation as contained in Section 3(1) of the Reservation Act, 1994. Therefore, if the said Act was adopted by the High Court in exercise of its powers under Rule 7, that would be sufficient for applying the rule of reservation. Therefore, we hold that in the event of valid adoption of the rule of reservation of the Reservation Act of 1994 by the High Court by exercising its power under Rule 7 of the High Court Rules the same would be valid and in accordance with law."
(88) Apparently, the Apex Court has held that the usage of the expression "order" in Rule 7 of UPHJS Rules, 1975 is only referable to the provisions for reservation as contained in Section 3(1) of the Reservation Act, 1994, however the contention of the petitioners in all these three petitions had been consistently that in Nawal Kishore Mishra's case even the provisions of Section 3(2) of the Reservation Act, 1994 was accepted by the Hon'ble Apex Court and in that regard has also asserted and relied on Paragraph 55, 58 and 61 to 64 of the said judgment to contest that the Hon'ble Supreme Court had directed for carrying forward of the unfilled reserved category quota to the next year. Although the argument of the learned counsel for the petitioners appears to be attractive in the first blush, however on a deeper scrutiny of the judgment, the said contention of the petitioners cannot be countenanced for the reasons that the said proposition has been developed on a selective reading of the said judgment passed by the Apex Court. It would be appropriate to see that when a direct question was poised to the Apex Court as to whether the provision of Section 3(2) of the Reservation Act, 1994, would be applicable for recruitment of the post of direct recruit district Judges. The Hon'ble Supreme Court, while quoting extensively from the Constitutional Bench judgment of Bal Mukund's case, held in the following words at paragraphs 53 and 54 of the Nawal Kishore's judgment;
53. When we consider the application of Section 3(2) of the Reservation Act, 1994 a further question arises as to whether the application of the said section can be made in the matter of recruitment for the post of direct recruit District Judges. In this context, the principles set down by the Constitution Bench [State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640: 2000 SCC (L&S) 489] of this Court require to be noted:
"(l) Having regard to Article 16(4), the High Court being a high constitutional functionary would also be alive to its social obligations and the constitutional guideline for having a scheme of reservation to ameliorate the lot of deprived reserved categories like SC, ST and OBC. But for that the Governor in consultation with High Court should make appropriate rules and provide for a scheme of reservation for appointments at grassroots level and even at the highest level of District Judiciary. If that was not done, the State Legislature cannot upset the entire apple cart and by bypassing the constitutional mandate of Articles 233 and 234 lay down a statutory scheme of reservation governing all State services including judiciary.
(m) Even in that respect it is obvious that maintenance of efficiency of judicial administration is entirely within the control and jurisdiction of the High Court as laid down by Article 235.
(n) If the proper course of formulating the scheme in the form of a rule by the High Court to provide for reservation is not made, that would deprive of the right to suggest the consultative process by way of its own expertise that for maintenance of the efficiency of administration of judicial service controlled by it 50% reservation may not be required and/or and even lesser reservation may be required or even may not be required at all."
54. Keeping the said principles in mind when we consider, even though the High Court having taken into account the constitutional mandate as prescribed under Articles 16(1), 16(4) and 335 and specifically provided in Rule 7 for applying the rule of reservation by adopting the same, the question is as to what extent the High Court decided to adopt the rule of reservation. In this context, when we refer to the specific content of Rule 7, it specifically provides that reservation to post in the service for the members of SC, ST and other categories including women should be in accordance with the orders of the Government for reservation "as adopted" by the High Court. Therefore, even while applying the rule of reservation, it must be seen as to what extent the High Court chose to adopt the rule of reservation. When we refer to the resolution of the Full Court by which we have found that the High Court decided to apply the rule of reservation, we have to in turn refer to the resolution passed by the Selection and Appointment Committee dated 24-3-2009 which resolution was adopted by the Full Court and that is how the rule of reservation came to be implemented. The said resolution of the Selection and Appointment Committee specifically mentioned that the "vacancies" should be filled up applying the "reservation" as per the Reservation Act, 1994 as amended up to date."
(89) The Hon'ble Apex Court clearly held that even while applying the rules of reservation, it was mandatory to be seen as to what extent the High Court had chosen to adopt the rule of reservation. This court finds that even before seeing the resolution of the High Court and examine the extent it has adopted the rule of adoption, it is clear as day light that the Hon'ble Apex Court in Nawal Kishore Mishra's judgment at paragraphs 55 and 56 has clarified and held that the High Court had adopted the Reservation Act, 1994 limited to the extent of providing the prescribed percentage of reservation under Section 3(1) of the Reservation Act, 1994 and there was no question of invoking the provisions of Section 3(2) of the Reservation Act, 1994, in the following words:
55. We are, therefore, clear of the position that what was adopted was "reservation" simpliciter and not other consequences. Therefore, there is no question of invoking Section 3(2) of the Reservation Act, 1994 relating to consequential action to be taken if the posts of direct recruit District Judges are not filled up. Section 3(2) only prescribes as to the manner in which unfilled reserved seats are to be filled up by resorting to fresh selection in that very year and in the event of the posts still not being filled up, continue to retain the posts in the reserved category and notify the same in the subsequent years for being filled up. Such a consequence cannot be stated while applying Rule 7 of the High Court Rules which merely refers to provision for reservation and nothing more. Insofar as provision for reservation is concerned, in the absence of any government order prescribing reservation, the only provision available is Section 3(1). Section 3(2) is only a methodology to be followed for filling up the unfilled reserved posts. As far as the said methodology in respect of the unfilled reserved posts of direct recruit District Judges is concerned, it is governed only by Rule 8. In fact, even by applying Rule 8(2) by virtue of the proviso to the said Rule, the interest of the reserved category candidates is sufficiently safeguarded which is preserved and filled up in the selection to be made in the future years.
56. Therefore, if we consider the adoption made by the High Court, as regards the rule of reservation, we find that what was adopted was to apply the "reservation" as provided under the Reservation Act of 1994 while filling up the vacancies of direct recruit District Judges. In other words, the High Court chose to adopt the prescription of various percentage of "reservation" in the Reservation Act, 1994 and stop with that. To put it differently, what was adopted by the High Court was to the limited extent of providing the prescribed percentage of "reservation" under Section 3(1) of the Reservation Act, 1994 and nothing beyond that. Since the principles laid down in the Constitution Bench decision of this Court succinctly stated as to how Articles 233 to 235 of the Constitution empower the High Court to maintain its independent functioning by allowing its recruitment process by prescribing its own limitations and not to be affected by even a statutory prescription relating to reservation, it must be stated that in order to ensure that the independence of institution of judiciary is safeguarded, such a strict construction of its decision pertaining to the rule of reservation must be maintained or otherwise, as cautioned by this Court in the Constitution Bench decision, that would impinge upon the very basic structure of the Constitution vis-à-vis the Judiciary.
57. Therefore, we hold that by virtue of the adoption of the rule of reservation by invoking Rule 7 when the High Court decided to apply only to the extent of prescribed percentage of "reservation" for different categories, namely, SC, ST and OBC as provided under Section 3(1) of the Reservation Act, 1994 in all other respects, it must be held that it would be governed by its own rule, namely, the rules of the High Court pertaining to the judicial service. In this context, a question may arise that earlier this Court directed the High Court in its order dated 15-11-2010 passed in Malik Mazhar Sultan v. U.P. Public Service Commission [(2010) 15 SCC 47 : (2013) 1 SCC (L&S) 541] to go in for a special recruitment in that very year itself which was apparently based on the prescription contained in Section 3(2) of the Act and by going by that direction should it not be held that the said procedure should follow for all time to come. It will have to be stated that the said order passed in an IA cannot be taken as a final statement of law when the legal principle has been succinctly set out with reference to the application of rule of reservation in so many words in the decision of the Constitution Bench of this Court. Therefore, based on the said order, it cannot be held that various other provisions contained in the Reservation Act of 1994 would get attracted."
(90) Further, on a plain reading of the aforesaid paragraphs of the judgment, it is easily derivable that the Apex Court has not only clarified that the percentage of reservation was adopted by the High Court as and in operation of Rule 7 of the UPHJS Rules, 1975 but also elaborated that there was no question of invoking Section 3 (2) of the Reservation Act, 1994 relating to the methodology of carrying forward the unfilled reserved seats as the same was being taken care by Rule 8 (2) of the UPHJS Rules, 1975. As a matter of fact, the Hon'ble Apex Court went one step beyond in even holding that except for the prescribed percentage of reservation for different categories as had been adopted by the High Court, all other aspects must be governed by the own rules of High Court for this judicial service.
(91) This Court finds that the concept of "carry forward" of any seats is conspicuously missing altogether in the provisions of the UPHJS Rules, 1975. The only place, the said phrase has been used is the proviso to Rule 7, wherein it has been quite vocal in barring any 'carry forward", by saying that there shall be no carry forward of reservation for women. Although nothing has been mentioned about the reserved category, either by interpolating or extrapolating the express provisions, however, the fact of the matter remains that the said provisions must be understood that barring any "carry forward", the legislature had always intended to not enter into the rigmarole of carrying this seats to next recruitment year and rather fill all the post in that particular year itself, so that there are no seats left vacant, owing to any reasons of shortage of any candidate/women. The said intention is clear from the insertion of sub-Rule (2) of Rule 8 of the UPHJS Rules, 1975.
(92) Further this Court finds that the legislature had been very careful in not using the phrase "carry forward" in the proviso to Rule 8(2) of the UPHJS Rules, 1975 as it invariably says that the number of vacancies filled in by the promotees/Nyayik Sewa due to shortage of candidate of direct recruit shall be taken into consideration for fixing the number of vacancies to be allotted to the quota of direct recruits in the next recruitment, and the quota for direct recruits may be raised accordingly, of course to the condition that the percentage of direct recruits in the service does not in any case exceed 25% of strength of the service. In other words, the limited sense in which the concept of carry forward can be loosely connected is the proviso to Rule 8 (2) of the UPHJS Rules, 1975, which is primarily for the reasons that while making good the shortfall of direct recruits at the next recruitment, the direct recruits do not encroach upon the quota of promotees. This Court finds it profitable to note that the Hon'ble Apex Court in the case reported as Ashok Pal Singh v. U.P. Judicial Services Assn., (2010) 12 SCC 635 held that the purpose and intent of Rule 8(2) of the UPHJS Rules, 1975 is to ensure that no vacancy remains unfilled for want of adequate number of direct recruits under their quota. The Apex Court in that judgment gave reasons that because there are reasonable chances of adequate number of candidates being not available for direct recruitment, whereas usually sufficient number of candidates will be available for promotion, Rule 8(2) of the UPHJS Rules, 1975 was enacted and the right of the direct recruits were protected by enacting proviso to the said Rule. Thus, the Court in the said judgment concluded that the total vacancies to be filled at a recruitment shall have to be filled by applying sub-rules (1) and (2) of Rule 8 and its provisos and in that sense all vacancies, which are not filled by direct recruitment, get filled by promotion and there will be no carry over. Thus, it was concluded by the Hon'ble Apex Court that there is only a limited 'carry over' of unfilled direct recruitment vacancies in the manner stated in Rule 8(2) of UPHJS Rules, 1975 and the first proviso thereto.
(93) Further, it has come on records that consequent to the judgment of the Hon'ble Supreme Court of India in Naval Kishore Mishra (Supra), the issue of adoption of Section 3(2) of the Reservation Act, 1994, was considered by the Hon'ble Rules Revision Committee of this Court in its meeting convened on 31.01.2016, wherein it was resolved that the Full Court of this Hon'ble Court in its meeting held on 23.05.2015 had clearly resolved to adopt only Section 3(1) of the Reservation Act 1994 and not Section 3(2) of the Reservation Act 1994 which provides for consequential effect of carry forward of vacancies in the reserved class. The said resolution dated 31.01.2016 of the Rules Revision committee is to the following effect:
"......the High Court had not adopted Rule 3(2) of the Reservation Act, 1994, the unfilled vacancies of the HJS meant to be filled by direct recruitment will eb carried forward in terms of the judgment of the Supreme Court but the rule of carry forward contained in Section 3(2) will not apply.....
This apart, the Full court of the High Court in its meeting held on 23 May 2015 had clearly resolved to adopt only section 3(1) of the Reservation Act and not section 3(2) which provides for the consequential effect of carry forward of the vacancies in the reserved class.
No material has been placed before us which may persuade us to apply the rule of carry forward of the vacancies of the reserved categories in the subsequent year for the other posts within the purview of the High Court. We, therefore, do not consider it appropriate to recommend that section 3(2) of the Act may be adopted and the rules require any change or amendment."
(94) This Court finds that even the Hon'ble Selection Committee of Five judges has considered the said aspect extensively in its report dated 31.07.2018 and has also recorded that the aforesaid resolution of the Rules Revision Committee was also approved by the Hon'ble Chief Justice of this Court. It would be mention herein that the Hon'ble Apex Court in Ashok Pal Singh's case (Supra), while appreciating the High Court Sub-Committee in making a sincere effort to implement the Rules and the directions observed that unless the exercise by the High Court through its Sub-Committee (approved by the Full Court of the High Court), is arbitrary or is in non-compliance with any specific direction of this Court, it will not be open to question. To the same effect is the judgment reported in Rajasthan High Court Vs. Ved Priya and Another, (2021) 13 SCC 151, wherein it was held that given the responsibility and powers bestowed upon the High Court under Article 235 of the Constitution of India, the collective wisdom of the Full Court deserves due respect, weightage and consideration in the process of judicial review.
(95) Therefore, this Court is in agreement of the learned counsel for the High Court on the administrative side that firstly the said sub-section was never adopted by the High Court on the administrative side and secondly, a clarification has been made to that effect by the Full Court meeting on 23.05.2015 and subsequent Rule Revision Committee on 31.01.2016. As far as the judgment of the Hon'ble Supreme Court in Nawal Kishore Mishra's case is concerned, the same is of no help to the petitioners as has been discussed herein above. It may be mentioned also that if Nawal Kishore Mishra's case was filed by general candidates of the direct recruits praying the unfilled seats of the reserved category, the present bunch of petitions have been filed by the Promotees/Nyayik Sewa praying the unfilled seats of the reserved category in the successive year, in as much the promotees by claiming that unfilled reserved seats should be carry forward for direct recruit, very well knows that seeing the track record and availability of less reserved category seats, the promotion seats would be increased in that year by the operation of Rule 8(2) of the UPHJS Rules, 1975. This Court finds that none of the petitioners belong to the reserved category claiming a seat in the quota of direct recruitment or there is no averment to the effect that any eligible reserved category candidate did not find any place in the select merit list as the same was occupied by a general category candidate under the direct recruitment quota. Although, this Court does not find any adverse in the locus of the petitioners in filing the present petition, however the reasons appear to be far from actually showing any concern for the reserved category candidates of the direct recruitment quota.
(96) Further, as has been rightly pointed by the learned Counsel appearing for the High Court on the administrative side that the arguments of the petitioners regarding adoption of Section 3(2) of the Reservation Act, 1994 in terms of Rule 7 of the UPHJS Rules, 1975, for carry forward of vacancy of the Reserved Category to be filled by the Reserved Category only in the succeeding recruitment years is a self-defeating argument, as presently by the operation of Rule 8(2) of the UPHJS Rules, 1975, the unfilled vacancies are to be filled from the Officers of the promotees/Uttar Pradesh Nyayik Seva and in case Section 3 (2) of the Reservation Act, 1994, is applied the unfilled vacancies will have to be filled up as backlog in the same year or succeeding years and such unfilled vacancies may not be filled by UPNS Officers by adoption of Rule 8(2) of the UPHJS Rules, 1975. In fact, the operation of Rule 8(2) would run contrary to section 3(2) of the Reservation Act, 1994.
(97) For all the aforesaid reasons, this Court holds that there is no provision under the UPHJS Rules, 1975 for carry forward of unfilled vacancies of reserved category as per the Section 3(2) of the Reservation Act, 1994, as the same has not been adopted by the High Court on the administrative side and most importantly, the said carry forward would run contrary to the existing provisions of the UPHJS Rules, 1975.
(98) Since, this Court has held that Section 3(2) of the Reservation Act, 1994 was never adopted by this High Court on the administrative side and the same is not applicable on a plain reading of the UPHJS Rules, 1975, there is no need to answer the second question, as to whether the said carry forward was required to be implemented for the recruitment year 2012 and 2014. However, the quest of this court to determine as to whether the determination of the vacancy or the promotion for the direct recruit for the recruitment year 2012 and 2014 requires any interference.
(99) There is another aspect of the matter and the aforesaid issue can also be viewed from a different perspective, which is in fact the next significant question, which falls for consideration of this court. Apparently, it has also been contended by the petitioners that the Hon'ble Supreme Court in Nawal Kishore Mishra case (Supra) had directed for filling up of vacancies of unfiled reserved category seats of direct recruit for the year 2009 in the future recruitment and which has infact been complied by the High Court on the Administrative side. Thus an analogy has been sought to be drawn, by these petitioners to the effect that similar filling of vacancies ought to be of unfilled reserved category seats of direct recruit for year 2012 & 2014 and the same having been not done, the determination of vacancy & seniority list of 31.01.2019 is liable to be set-aside.
(100) In answering to the said issue, it would first be appropriate to understand the context in which the Hon'ble Apex Court came to pass the aforesaid Judgment of Nawal Kishore Mishra (Supra). Briefly stating, a Writ Petition came to be filed by a qualified but unselected candidate belonging to unreserved category before this Court, inter alia contending that quota of Direct Recruits should be filled up by Direct Recruits only and only if no other successful candidate was available from the Direct Recruits belonging to any of the categories i.e reserved or unreserved, then and then alone the High Court could have resorted to promotion of "in-service candidates" of UPNS under Rule 8(2) of the UPHJS Rules, 1975. Apparently, the said contention did not find favour with this Court and the said Writ Petition was dismissed, against which an Appeal came to be filed before the Hon'ble Apex court. The facts curled by the Hon'ble Apex Court could be found at para 2 to 4 of the judgment passed in Nawal Kishore Mishra's case (Supra), which inter-alia stated:
"2. The challenge in the writ petitions was to the appointment made by the High Court to the post of direct recruit District Judges in the unfilled reserve vacancies, to the extent of 34 in number by way of promotion from the "in-service candidates" by applying Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975 (hereinafter referred to as "the Rules"). The Division Bench of the High Court dismissed the writ petitions. Aggrieved, the appellants have come forward with these appeals.
3. To trace the brief facts, on 15-4-2009 the High Court notified and called for applications for filling up 68 vacancies in the Higher Judicial Service. Of the 68 vacancies, 24 vacancies were meant for open category, 21 for Other Backward Classes (OBC), 21 for SC and 2 for ST. It is not in dispute that all the 24 vacancies in the open category got filled up on merits. Of the 21 vacancies in the OBC category, 10 alone could be appointed leaving 11 vacancies to remain. All the SC/ST vacancies numbering 23 were also not filled up. In the unfilled 34 vacancies, the High Court promoted the "in-service candidates". The appellants were successful in the written test and also attended the interview.
4. According to the appellants, even applying Rule 8(2) of the Rules, all the 68 vacancies were direct recruit vacancies and that in the first instance, the unfilled vacancies should have been filled up only from the other successful candidates from the direct recruitment source. In other words, the contention was that only if no other successful candidate was available from the direct recruit source belonging to any of the categories, namely, open category or any other category such as OBC or SC/ST then and then alone the High Court could have resorted to promotion of "in-service candidates". To put it differently, according to the appellants since the posts advertised were by way of direct recruitment, it was meant for that particular source of recruitment, namely, "direct recruit" and all those successful candidates of that source alone, namely, "direct recruit" were in the first instance eligible to be considered for being appointed to the unfilled posts of any of the categories, namely, open or OBC or SC or ST and in the event of unavailability of any candidate from that source then and then alone the High Court could have resorted to filling up of those posts by way of promotion of "in service candidates". Since, the above submission of the appellants did not find favour with the High Court, the appellants are before us."
(101) The Hon'ble Apex Court on the aforesaid factual matrix of the case involved in Nawal Kishore Mishra (Supra) had framed the following five issues, which can be enumerated as herein below:
"i. Whether the appellants have the locus standi to challenge the appointments made by the High Court in the filling up of the unfilled vacancies of the reserved categories in the direct recruitment posts by way of promotion of the "in-service candidates"?
ii. Whether the High Court could have validly adopted the Reservation Act of 1994 by relying upon Rule 7 of the High Court Rules?
Iii. Whether the Reservation Act of 1994 or any of the orders of the Government providing for reservation was validly adopted by the High Court as claimed by it?
iv. While filling up the unfilled posts of direct recruit vacancies by way of promotion under Rule 8(2), did the High Court fall into errors in not considering the appellants who were the successful candidates and who hailed from the very same source, namely, direct recruitment, who alone were eligible to be considered in the first instance even as per Rule 8(2)?
v. Assuming the Reservation Act of 1994 was validly adopted by the High Court, yet by ignoring Section 3(2) of the said Act, was the High Court justified in filling up the posts by way of promotion of "in-service candidates?"
(102) As is apparent from the aforesaid issues framed by the Hon'ble Apex Court, the filling up of vacancies of unreserved category by the reserved category in Higher Judicial Service Selection in Uttar Pradesh or the carrying forward of reserved category seats to future recruitment years was not the issue involved before the Hon'ble Supreme Court in Nawal Kishore Mishra (Supra). Nevertheless, the Hon'ble Supreme Court made certain observations relating to the aspect, and ultimately without disturbing the determination of the Vacancies for each quota or the promotions already made by resorting to Rule 8(2) of the UPHJS Rules, 1975, a direction was issued, wherein, the Hon'ble Apex Court had permitted the High Court on the administrative side to provide that number of vacancies which remains unfilled in the Recruitment Year 2009 in the reserved category of Direct Recruit by adding that number of vacancies in the recruitment to be made in the future years until such number of vacancies of unfilled reserved category pertaining to Recruitment Year 2009 are filled, in the following words:
"64 Keeping the said legal principle relating to applicability of Section 3(1) of the Reservation Act, 1994 vis-vis Rules 1 and 8(2) of the High Court Rules in mind, when we consider the last of the submissions made on behalf of the appellants, it must be held that the action of the High Court in having resorted to filling up of the unfilled reserved vacancies by taking umbrage under Rule 8(2) was perfectly justified. The said action of the High Court in having filled up those unfilled reserved vacancies of direct recruitment of the year 2009 was stated to have been made by promoting the in-service candidates. Though we have found that such a course adopted by the High Court was in order, as the proviso to Rule 8(2) specifically mandates that while fixing the number of vacancies to be allotted to the quota of direct recruitment at the next recruitment, it should be raised accordingly. We are of the view, without disturbing whatever promotions already made by resorting to Rule 8(2), the High Court can be permitted to provide that number of vacancies which remained unfilled in the year 2009 in the reserved category of direct recruit source by adding that number of vacancies in the recruitment to be made in the future years until such number of vacancies of unfilled reserved category pertaining to 2009 are filled."
(103) This Court is informed that in compliance of the aforesaid judgment of Hon'ble the Supreme Court, the Selection and Appointment Committee of this Court resolved that 34 leftover vacancies of reserved category of the recruitment year 2009 i.e SC-21, ST02 & OBC-11, are to be filled up in accordance with the directions of the Apex Court. It has been submitted and as has also been observed in the committee report dated 31.07.2018 of Hon'ble Five Judges of this Court that since there was no binding for inclusion of entire 34 left over reserved vacancies in the same recruitment year, therefore, it was resolved to provide the aforesaid 34 vacancies from the recruitment year 2009, in the next three consecutive recruitment years, as 12 vacancies in the recruitment year 2016 and the remaining 22 unfilled vacancies of UP HJS Direct Recruitment 2009 to be divided in equal numbers in two future successive UP HJS Recruitment years i.e. 11 in the recruitment year 2018 and remaining 11 in the next recruitment year.
(104) This Court finds that the Apex Court did not decide the aspect of carry forward of unfilled reserved category seats of the direct recruit nor disturbed the determination of vacancy of the direct recruit quota of the recruitment year 2009 and as such merely since the High court on the administrative side chose to comply with the directions of the Hon'ble Apex court in Nawal Kishore Mishra's (Supra) by providing for a scheme for adjustment of the 34 leftover reserved seats, the petitioners cannot claim that to be a declaration of law. As had been rightly argued by the learned counsel for the High Court on the administrative side that the Hon'ble Supreme Court in the Nawal Kishore Mishra's case has not declared any law of universal applicability and the direction for filling of unfilled seats of reserved category in the next recruitment years was rendered under Article 142 of the Constitution of India, and not under Article 136 read with Article 141 of the Constitution of India, in as much as the aforesaid direction is not relatable to the challenge made in the Civil Appeal in its paragraph 2 of the report and the issues framed and considered as borne out from paragraph 8 of the aforesaid Judgment.
(105) This Court finds that the difference in the judgements rendered by the Hon'ble Supreme Court exercising power under Article 142 of the Constitution of India vis-a-vis the Hon'ble Supreme Court exercising power under Article 136 of the Constitution of India, which creates binding precedent under Article 141 of the Constitution of India, have been explained time and again in a number of judgements, including in State of Punjab and Ors. Vs. Rafiq Masih (White Washer), (2014) 8 SCC 883 and Girish Kumar Suneja Vs. Central Bureau of Investigation, (2017) 14 SCC 809. The Apex Court in the operative portion of the Judgment delivered in Girish Kumar Suneja (Supra) held as follows:
"54. In State of Punjab v. Rafiq Masih [State of Punjab v. Rafiq Masih, (2014) 8 SCC 883: (2014) 4 SCC (Civ) 657: (2014) 6 SCC (Cri) 154: (2014) 3 SCC (L&S) 134] this Court considered the powers under Article 142 of the Constitution. It was held that this article enables this Court to pass such an enforceable decree or order as is necessary for doing complete justice in any case or matter. While discussing the meaning of the expression "complete justice", this Court took the view that there were several decisions that have been rendered which made it clear that though the powers are wide, nevertheless, the power is ancillary and could be used when not necessary (sic necessarily) in conflict with substantive provisions of law. Article 142 of the Constitution is supplementary in nature and cannot supplant substantive provisions of the statute. It is the power that gives preference to equity over the law enabling the moulding of a relief as distinguished from a declaration of law as contemplated under Article 141 of the Constitution. While directions issued under Article 142 of the Constitution do not constitute a binding precedent, a declaration of law under Article 141 of the Constitution does constitute a binding precedent. "
(106) Thus, what this Court finds that the selection to be made by this Court regarding unfilled reserved category vacancies of Recruitment year 2009 as contained in Nawal Kishore Mishra (Supra) is a direction issued in exercise of Article 142 of the Constitution of India and which would not constitute a binding precedent. Further, it has also come on records that the judgment and order in Nawal Kishore Mishra (Supra) was passed on 17.02.2015 by which time the Direct Recruitment for the recruitment year 2012 was already over and the Direct Recruitment for the recruitment year 2014 had already commenced and was in advance stage of completion. In any case, since the judgment of the Hon'ble Apex Court would operate prospectively only, the said direction cannot be made applicable to an earlier event, which had already fructified. Thus, even on this ground no infirmity in the determination of the Vacancy and the promotions for the recruitment year 2012 and 2014 can be entertained by this Court.
(107) This Court finds that the petitioners have claimed infirmity in Direct Recruitments for the recruitment years 2012 and 2014 on the recruitment made of unreserved candidate and have in that regard placed reliance on the vacancy position and the advertisements issued for Direct Recruitment in the recruitment years 2007 and 2009 which has already attained finality vide judgement dated 28.03.2018 passed in High Court of Judicature of Allahabad through its Registrar General (Supra), and seeking aid whereof has been categorically prohibited by the Hon'ble Supreme Court vide the order dated 25.10.2021 read with order dated 15.11.2021 passed in Writ Petition(Civil) No. 147 of 2021 while requesting this Hon'ble Court to decide the present controversy expeditiously.
(108) The vacancy positions based on the cadre strength taking into account the Direct Recruits working for the relevant year as also the vacancies which were likely to occur in the next two years in respect of both Recruitment-2012 and Recruitment-2014 along with the unfilled vacancies of Direct Recruits which were filled up by UPNS incumbents, have been duly taken note of by the Hon'ble Five Judges Seniority Committee while preparing the report dated 30.07.2018. The aforesaid report running into 32 pages distinctively determines the vacancy positions for Recruitment-2012 and Recruitment-2014 by noting the various permutation & combinations. Apparently, a very exhaustive methodology has been followed in the aforesaid report and the Hon'ble Five Judges Seniority Committee has considered all the aspects related to vacancy position threadbare and has thereafter arrived at conclusions regarding the vacancies available for Recruitment-2012 and Recruitment-2014 both for Direct Recruits as well as UPNS. This Court finds that the petitioners have not been able to demonstrate before this Hon'ble Court either through the pleadings in the Writ Petition or during the course of arguments that the recruitments of the Direct Recruits for the Recruitment Year 2012 and 2014 had breached the 25% ceiling in any manner as is the mandate of proviso to Rule 8(2) of the UPHJS Rules, 1975.
(109) A feeble attempt has also been made some of the petitioners to advance their arguments on the premises that paragraph No. 19 and 21 of the Seniority Report dated 31.01.2019 prepared by Hon'ble three Judges committee of this Court has itself admitted that the calculation of vacancies from 2009 to 2014 was erroneous. However, what this Court finds that the petitioners have wrongly understood the meaning and import of the said paragraphs, in as much as the Committee in the said paragraphs have merely capitulated the exhaustive determination of vacancies explained in the seniority report dated 30.07.2018 prepared by a Committee of Hon'ble Five Judges of this Court. This Court finds that the seniority Committee in the said report at internal page No. 23-29 has categorically observed that since some promotees were found excess in quota in the recruitment year of 2009, they had to be adjusted in recruitment 2012 and accordingly the said adjustment tickled down to successive recruitment years. This Court finds that the Seniority committee was alive to the actual ground realities and the changing parameter during the recruitment process and the seniority process and has not left any stone unturned in arriving at a just decision, which is both factually and legally valid.
(110) Thus, this court finds no error in the determination of vacancies for recruitment year 2012 and 2014 as suggested by the petitioners by filling up the vacancies by the unreserved candidates and no law of universal application has been laid down by the Hon'ble Supreme Court of India in Nawal Kishore Mishra (Supra) for filling up of vacancies by suggesting previous recruitment to be bad.
(111) The petitioners in Manorama's case have also claimed to be placed en bloc, within the quota of promotees in the seniority list of 2012 above the direct recruits, on the ground that they had been inducted in the cadre of Higher Judicial Services vide Government Memo dated 04.03.2013, whereas the direct recruits came to be appointed only on 05.08.2013. According to them, since these direct recruits were not even born in the cadre in the recruitment year 2012 i.e till 30.06.2013 (although at paragraph 37 of the petition it has been stated that the last date for recruitment year 2012 is 31.12.2013) and as such have relied on the judgment of R.K. Sabbarwal V/s State of Punjab, 1995 (2) SCC 745, to argue that their seniority be fixed with HJS 2012 batch and not with HJS 2014 batch. Apparently, this Court finds that the instant contention is on the basis of mistaken belief and goes into the teeth of the rota-quota rule for promotion as prescribed under Section 22 (2) of the UPHJS Rules, 1975 and settled by the Apex Court in various cases including R.K. Sabharwal case (Supra) and High Court of Allahabad's case (Supra).
(112) It is available from records and has also been observed by the Seniority Committee report prepared by Hon'ble five judges of this Court that the aforesaid claim of the petitioners was duly considered and the Hon'ble Seniority Committee returned a finding in their report dated 30.07.2018 at page 19 of the report in the following words :-
"During recruitment year 2012, the court had recommended names of total 254 candidates vide D.O Letter dated 12.02.2018 for appointment in HJS Cadre containing candidates of all three streams i.e., promotes direct recruits as well as candidates selected through LDCE by strictly applying roster. However, Governments had mistaken and issued appointment of only 214 candidates vide Government Notification dated 04.03.2013 excluding the names of direct recruits without applying roster. The said appointment was not in accordance with the recommendation made by the High Court. Therefore, a fresh request had been sent to the Government to rectify the said mistake and pursuant thereto, Government had rectified the said mistake by superseding its earlier notification/appointment of all 254 candidates vide Notification dated 05.08.2013 in accordance with the recommendation of the High Court by applying roster. All the 254 candidates had been appointed in HJS cadre accordingly and no direct recruit has been appointed in HJS cadre accordingly and on direct recruit has been given seniority prior to the date of his/her joining the service."
(113) From the aforesaid disposal of the representation of the petitioners, it is apparent that the Government Notification dated 04.03.2013, which was the basis of contention of these petitioners, was superseded by Government Notification dated 05.08.2013. Firstly, how can the petitioners claim benefit of the notification, which itself was superseded and secondly, the said notification was superseded as rightly held by the Committee of Hon'ble Five Judges of this Court that since the said earlier notification did not follow the rota-quota principle as is to be found in Rule 22 of the UPHS Rules, 1975. Further, the basic scheme of recruitment provided under the Rules cannot be shrugged aside and the petitioners are forgetting that appointment in HJS cadre can only be made against substantive vacancies in their respective cadre. It has come on records that as substantive vacancy under Rule 22(1) of the UPHJS Rules, 1975 for these petitioners were not available in the recruitment year 2012 as per the roster and as such there was no occasion for them to be appointed with the officers of recruitment year 2012. In any case, seniority has to be given as per the appointment made in the substantive post and this court finds that these petitioners have been righty given the seniority according to their appointment to the substantive post.
(114) It is a well settled position of law that the seniority is to be determined in accordance with rotation of vacancies between direct recruits and promotees based on quota of vacancies reserved for both the categories. This court finds that the Supreme Court upheld rotational system of fixing seniority in the Constitution Bench judgment of Mervyn Coutindo & Ors. v. Collector of Customs, Bombay & Ors : 1966 (3) SCR 600. This Court cannot be oblivious to the fact that the object of rotational system of fixing seniority is to blend the talent with experience and to augment the efficiency. Further, in the case of Hon'ble Punjab & Haryana High Court at Chandigarh v. State of Punjab & Ors. : 2019(12) SCC 496, the Hon'ble Apex Court has also held that seniority has to be determined on the basis of roster and not on the basis of the date of joining of a particular stream. Thus, for all the aforesaid reasons, the aforesaid ground agitated by the petitioners are unsustainable in law and as such the same are rejected.
(115) The next question, which falls for consideration of this court is as has been raised in Randheer Singh's Case, in as much as it has been urged that these petitioners were promoted to UPHJS under Rule 22(3) of UPHJS Rules, 1975 vide notification dated 10.12.2008 and were appointed in stop-gap arrangement as Additional District & Sessions Judge against Fast Track Courts after qualifying the suitability test as per the Scheme of Rule 20 of the UPHJS Rules, 1975. These petitioners were placed against the temporary ex cadre posts vide notification issued on 31.03.2011 and were subsequently promoted under Rule 22(1) of the UPHJS Rules, 1974 vide memorandum dated 04.03.2013, which came to be superseded by another memorandum dated 05.08.2013. Thus, the fulcrum of these petitioners to upset the seniority list dated 31.01.2019 and to seek re-determination of vacancies for direct HJS recruitment 2009 and 2012, besides the aforesaid grounds as has already been dealt herewith by this Court, is that these petitioners have rendered services under principal clause of Rule 22(3) of the UPHJS Rules, 1975 and as such have claimed to be appointed at appropriate places in the seniority list dated 23.09.2015 and 26.08.2019, keeping in view the date on which substantive vacancies occurred in their quota and that too without applying the rota rule.
(116) As far as placing these petitioners at appropriate place in the seniority list dated 23.09.2015 is concerned, this Court need not remind itself that the said seniority list pertaining to the recruitment year 2009 has already attained finality vide judgement dated 28.03.2018 passed in High Court of Judicature of Allahabad through its Registrar General (Supra), and reiterated by the Hon'ble Supreme Court vide its Order dated 25.10.2021 read with Order dated 15.11.2021 passed in Writ Petition(Civil) No. 147 of 2021 (supra).
(117) Thus, the relief being sought by the petitioners stands scaled down to being placed at appropriate place in seniority list dated 26.08.2019 only and that too in case the same is found to be commensurate to the legal findings. Having said so, this Court finds that these petitioners has sought the said relief without challenging the vires of Rule 22(2) and Rule 22(3) of the UPHJS Rules, 1975, in other words can the seniority position of the petitioners be changed without applying the "Rota Rule" as mandatorily provided for in Rule 22(2) of the UPHJS Rule, 1975.
(118) Apparently, Rule 22(2) of the UPHJS Rules, 1975, provides that "appointments to service shall be made on the basis of Roster System". The petitioners have not challenged the validity of the aforesaid Rule 22 (2) of the UPHJS Rules, 1975 in the instant writ petition and neither there is any specific averments made by the petitioners against the validity of Rule 22 (2) of the UPHJS Rules, 1975. The law relating to challenging the vires of a statute stands pretty settled, as there is always a presumption in favour of the constitutionality of the enactment and the person who challenges it has to establish that there has been a clear transgression against the fundamental rights as guaranteed under the Constitution of India or the said enactment is a product of incompetent legislation. The petitioners have merely sought to change their seniority without the Rota rule, without adducing any valid grounds and this Court holds that the same cannot be granted on merely askance. Further, this Court finds that even in High Court of Judicature of Allahabad through its Registrar General (Supra), the Hon'ble Supreme C\court has held appointment to service on the basis of rota-quota to be mandatory and even in the All India Judges' case (supra), Hon'ble Supreme Court has held that "............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 and Ors., v. State of Punjab reported in [1995] 2 SCC 745. 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 's case (supra) as early as possible. We hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively except where under the relevant Rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future. Appropriate rules and methods will be adopted by the High Courts and approved by the States, wherever necessary by 31 st March, 2003.
This court finds that in view of the statement of the Hon'ble Apex court the UPHJS Rules, 1975 has been duly amended and the same has been enforced. Thus, this court finds that no justifiable grounds have been made out by the petitioners for not following the rota-quota rules."
(119) Similarly, the case of the petitioners also rests on an assumption that the proviso appended to the provision contained in Rule 22(3) of the UPHJS Rules, 1975 is allegedly ultra vires to the Constitution of India. The aforesaid proviso appended to Rule 22(3) the UPHJS Rules, 1975 lays down that the period of service spent by the promotes on a short-term appointment to the service as stop-gap arrangement shall not be computed towards determination of their seniority.
(120) Even the aforesaid proviso appended to 22(3) the UPHJS Rules, 1975 has not been challenged by the petitioners in the writ petition, however, the petitioners have made specific assertion against the validity of the same. Thus, in the absence of any challenge to the validity of the proviso appended to 22(3) the UPHJS Rules, 1975, the assertions made by the petitioners against the validity of the same does not hold any water. Even otherwise, the Hon'ble Supreme Court has time and again held that ad hoc services rendered by an employee under a stop gap arrangement cannot be counted towards determination of his seniority and as such, the contention raised by the petitioners for recognition of services rendered by them under stop gap arrangement under Rule 22(3) of the UPHJS Rules, 1975 for purpose of determination of seniority is unsustainable and de hors the settled position of law. The aforesaid view has been recently reiterated by the Hon'ble Supreme Court in Malook Singh and Others v. State of Punjab, 2021 SCC OnLine SC 876 and in Rashi Mani Mishra and Others v. State of U.P. and Others., 2021 SCC OnLine SCC 509.
(121) In any case, it has to be understood that the posting/ appointment of any officer against the temporary Fast Track Court is of no relevance for the purpose of fixation of seniority. The said Rule 22(3) itself provides that any period of service spent by the promotees on a short terms appointment to the service as a stop-gap arrangement shall not be computed under Rule 26 for determination of their seniority in HJS Cadre.
(122) Further, in an identical situation relating to seniority of Adhoc appointee vis-à-vis regular appointee, in the judgment of C. Yamini v. State of Andhra Pradesh, (2019) 17 SCC 228, a Three Judge Bench of the Hon'ble Supreme Court was dealing with the service conditions of Judicial officers of Andhra Pradesh. The Hon'ble Supreme Court, after examining their nature of appointment as a District & Sessions Judge Fast Track on ad-hoc basis under the Rules, 2001 and later appointed by Order dated 2nd July, 2013 on regular basis and becoming members of the Rules, 2007, had held that the petitioners are not entitled to claim benefit of seniority from the date of their initial appointment as District & Sessions Judge Fast Track and other consequential reliefs prayed for. However, limited benefit of service rendered as Fast Track Court, Judges was granted to them only for the purpose of pensionary and other retiral benefits. The Hon'ble Supreme Court, hence, held that since the services rendered by the petitioners as Fast Track Court Judges have not been recognized by the Court for the purpose of seniority except for pensionary and other retiral benefits, the plea raised by the petitioners to consider their service rendered as Fast Track Court Judges as a judicial service for the purpose of Article 217 (2)(a) of the Constitution, cannot be not legally sustainable. [C. Yamini v. High Court of Andhra Pradesh, 2023 SCC OnLine SC 176].
(123) Thus, this Court holds that no relief can be granted for the aforesaid grounds agitated by the petitioners and as such the seniority position of the petitioners cannot be changed without applying the "Rota Rule."
(124) These issues are decided, accordingly, in the aforesaid terms.
H. Conclusion (125) In view of the above, this Court keeping in view the facts agitated and the prevailing law, arrives at the following conclusion :-
(i) The final seniority report dated 23.09.2015 and its supplementary final seniority report dated 06.04.2016, approved by the Full Court on 14/04/2016 corresponding to the determination of vacancies and seniority for the recruitment year 2007 and 2009 has already attained finality in view of the authoritative judgement dated 28.03.2018 passed in High Court of Judicature of Allahabad through its Registrar General (Supra), and reiterated by the Hon'ble Supreme Court vide its Order dated 25.10.2021 read with Order dated 15.11.2021 passed in Writ Petition(Civil) No. 147 of 2021 (supra) and as such the same cannot be opened for re-consideration on any grounds.
(ii) There is no concept of "carry forward" of any unfilled seats to the next recruitment year, in the existing Uttar Pradesh Higher Judicial Services Rules, 1975 on the harmonious construction of the provisions of Rule 7 and Rule 8 of the said Rules. However, there is also no bar under the rules for the High Court to conduct a special drive for recruitment to the unfilled reserved category direct recruitment seats against the existing vacancies of that particular recruitment year, provided the same is prior to the corresponding increase to the number of recruits to be taken by promotion from the Nyayik Sewa by the operation of Rule 8(2) of the UPHJS Rules, 1975 for that particular recruitment year.
(iii) The High Court of Judicature at Allahabad on its administrative side has only adopted Section 3 (1) of the Reservation Act, 1994 by virtue of interpretation of "order" as could be found in Rule 7 of the UPHJS Rules, 1975.
(iv) Under the existing UPHJS Rules, 1975 and the Resolution of the Full court dated 23.05.2015 and the resolution of the Rule Revision Committee dated 13.01.2016, section 3(2) of the Reservation Act, 1994 cannot be construed to be adopted by the High Court of Judicature at Allahabad on its administrative side.
(v) Unforeseen Vacancies are not anticipated Vacancies or likely vacancies and as such these unforeseen vacancies cannot be assessed at the start of Recruitment year within the meaning of Rule 8(1) of the Uttar Pradesh Higher Judicial Services Rules, 1975.
(vi) This Court finds no error in the determination of vacancies for recruitment year 2012 and 2014 and accordingly the Seniority report and list dated 31.01.2019 is upheld.
(v) Adhoc posting/appointment of any officer against the Fast Track Courts is of no relevance for the purpose of fixation of seniority as provided under Proviso to Rule 22 (3) and Rule 26 of the UPHJS Rules, 1975.
(vi) Seniority has to be given as per the appointment made on a substantive post and seniority is to be determined in accordance with rotation of vacancies between direct recruits and promotees based on quota of vacancies reserved for both the categories as per Rule 22(2) of the UPHJS Rules, 1975.
(126) For all the aforesaid reasons and a sequel to above, all the writ petitions being Writ-A No.2000845 of 2014 (Sanjeev Kumar Singh and others Vs State of U.P. and others), (ii) Writ-A No. 30173 of 2019 (Harendra Bahadur Singh and others Vs State of U.P. and others), (iii) Writ-A No. 11453 of 2020 (Smt. Manorama and others Vs Hon'ble High Court of Judicature at Allahabad and others) and (iv) Writ-A No. 28511 of 2021 (Randheer Singh and others Vs Hon'ble High Court of Judicature at Allahabad and others) are hereby dismissed.
(127) There shall be no order as to cost.
(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)
Order Date : 23rd Feburary, 2024
Ajit/-