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PETITIONER: ORISSA JUDICIAL SERVICES ASSOCIATION, CUTTACK

       Vs.

RESPONDENT: STATE OF ORISSA AND ANR.

DATE OF JUDGMENT26/11/1990

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) RAMASWAMY, K.

CITATION:  1991 AIR  386            1990 SCR  Supl. (3) 348  1992 SCC  Supl.  (1) 187 JT 1990 (4)   726  1990 SCALE  (2)1220

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

HEADNOTE:     Petitioners, the Association of the inservice  employees of  the Orissa Superior Judicial Service, in their  petition under  Article 32 challenged the constitutional validity  of Rule  7 of the Orissa Superior Judicial Service Rules,  1963 and  prayed  for quashing the Notification  dated  24.2.1987 inviting  applications  from members of the Bar  for  direct recruitment to the Orissa Judicial Service. It was contended that most of the Judicial officers have been stagnating  for many  years on account of lack of promotional  avenues,  and that  direct recruitment of the members of the Bar  was  not permissible under the law, and that the State Government and the  High  Court were acting contrary to law in  making  the direct recruitment. ï73 Dismissing the writ petition, this Court,     HELD: 1. Article 233(1) and (2) contemplates recruitment to  the  post  of District Judge in  the  Superior  Judicial Service  of  the  State by promotion  from  the  Subordinate Judicial  Service as well as by direct recruitment from  the members of the Bar. The recruitments are made by the  Gover- nor  of the State in consultation and on  recommendation  of the High Court. [350G-H]     2.  The  Constitution  as well as  the  statutory  rules framed  under  Article 309 provide for  recruitment  to  the Senior  Branch  of Service by direct  recruitment  from  the members  of the Bar. The Constitutional mandate can  not  be challenged  merely  because it might  adversely  effect  the chances of promotion of the Junior Branch of Judicial  Serv- ice. [351C-D]     3.  The  plea of frustration and  stagnation  raised  on behalf of the petitioners was wrong and incorrect and  their grievance  against the direct recruitment  was  unjustified. The members of the Judicial Service 349 should  not indulge in this kind of frivolous litigation  as it  does  not bring credit to the  Judicial  Administration.

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[351E-G; 352A]     4.  Though Rule 7 does not prescribe quota for  the  two sources  of  recruitment, but the State Government  and  the High Court of Orissa have fixed the quota of 25% for  direct recruitment and 75% for promotion by administrative  orders. On  the  material placed before the court it is  clear  that recruitment  by  promotion to the service has been  made  in excess  of  75 per cent quota. Therefore,  the  petitioner’s grievance relating to discrimination against the members  of the  Junior Branch of Judicial Service is without  any  sub- stance. [352D-F]     5. Statutory rules can be supplemented by administrative instructions.  In  the absence of Statutory  provision,  the State  Government  in consultation with the  High  Court  is competent to prescribe quota for the two sources of recruit- ment  to  the service by administrative  orders.  It  would, however,  be  desirable and proper to  prescribe  quota  for recruitment to the service in the Rules. Absence of statuto- ry  provision  in  the Rules fixing the quota  for  the  two sources of recruitment, results into a state of  uncertainty leading  to suspicion and litigation. The  State  Government should  therefore take immediate steps in consultation  with the  High Court for amending the Rules by prescribing  quota to remove the uncertainty.

JUDGMENT: