Reportable  

IN THE SUPREME COURT OF INDIA                             

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1312 OF 2005

Ashok Pal Singh & Ors.     ……. Appellants Vs.

UP Judicial Services Association & Ors.   ….… Respondents  

With

Civil Appeal No. 1313 of 2005

And

CA 7927/2010 (@ SLP(C) No. 11476/2005)

J U D G M E N T

                                                                                                        R. V. RAVEENDRAN J.

Leave granted in SLP (C) No.11476 of 2005. These appeals arise out  

of yet another round of litigation in the dispute between direct recruits and  

promotees in the Uttar Pradesh Higher Judicial Service, having its genesis in  

two decisions of this Court in the earlier rounds.

2. The recruitment and appointment to the Uttar Pradesh Higher Judicial  

Service  consisting of  a  single  cadre comprising the posts  of  District  and  

Sessions Judges and Additional District and Sessions Judges are governed  

and regulated by the U.P. Higher Judicial Services Rules, 1975, (‘Rules’ for  

short) framed under Article 309 read with Article 233 of the Constitution of  

India.  The said Rules were amended by the UP Higher Judicial Services  

(Fourth  Amendment)  Rules,  1996,  with  effect  from  15.3.1996.  For  

convenience,  the  Rules  before  amendment  will  be  referred  to  as  the  

‘Unamended Rules’ and the Rules after the 1996 amendment will be referred  

to as the ‘Amended Rules’. As we are concerned with the recruitments for  

the years 1988, 1990, 1992-1994 and 1998-2000,  it  may be necessary to  

refer to the unamended Rules in regard to the recruitments relating to 1988,  

1990 and 1992-1994, and the amended rules with reference to the 1998-2000  

recruitment. Rules 5, 6, 8, 20, 22 and 26 are relevant and they are extracted  

below :

“5.  Source  of  recruitment -  The  recruitment  to  the  Service  shall  be  made -

(a) by direct recruitment of pleaders and advocate 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 :

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(b) by promotion  of confirmed members of the Uttar Pradesh  Nyayik Sewa (hereinafter referred to as the Nyayik Sewa, who have put in  not  less  than  seven  years  service  to  be  computed  on  the  first  day  of  January next following the year in which the notice inviting applications is  published:  

Provided that for so long as suitable officers are available from out of the  dying cadre of the Judicial Magistrate, confirmed officers who have put in  not  less than seven years  service to  be computed as aforesaid shall  be  eligible for appointment as  Additional Sessions Judges in the Service.

xxx      xxx      xxx

6. Quota - Subject to the provisions of rule 8, the quota for various source  of recruitment shall be-

(i)   Direct recruitment from the Bar   : 15% (ii) Uttar Pradesh Nyayik Sewa       : 70%       of the  

vacancies. (iii) Uttar Pradesh Judicial Officers  

Service (Judicial Magistrates)       : 15%

Provided that where the number of vacancies to be filled in by any of these  sources in accordance with the quota is in fraction, less than half shall be  ignored and the fraction of half or more shall ordinarily be counted as one:

Provided  further  that  when  the  strength  in  the  cadre  of  the  Judicial  Magistrate gradually gets depleted or is completely exhausted and suitable  candidates are not available in requisite numbers or no candidate remains  available at  all,  the shortfall  in the number of vacancies required to be  filled  from  amongst  Judicial  Magistrates  and  in  the  long  run  all  the  vacancies, shall be filled by promotion from amongst the members of the  Nyayik Sewa and their quota shall, in due course, become 85 per cent.

8. Number of appointments to be made - (1) The Court, shall, from time  to time, but not later than three years from the last recruitment, fix the  number  of  officers  to  be taken at  the  recruitment  keeping in  view the  vacancies then existing and likely to occur in the next two years.

Note : The limitation of three years mentioned in this sub-rule shall not  apply to the first recruitment held after the enforcement of these rules.

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(2) If  at  any selection the number of selected direct  recruits  available for appointment is less than the number of recruits decided by  the  Court  to  be  taken  from  that  source,  the  Court  may  increase  correspondingly the number of recruits to be taken by promotion from the  Nyayik Sewa:

Provided that the number of  vacancies filled in as aforesaid under this sub  rule shall be taken into consideration while fixing the number of vacancies  to be allotted to the quota of direct recruits at the next recruitment, and the  quota for direct recruits may be raised accordingly; so, however, that the  percentage of direct recruits in the Service does not in any case exceed 15  per cent of the total permanent strength of the service.

Provided further  that  all  the  permanent  vacancies  existing  on  May 10,  1974 plus 31 temporary posts existing on that date, if and when they are  converted into permanent posts, shall be filled by promotion from amongst  the members of the Nyayik Sewa; and only the remaining vacancies shall  be shared between the three sources under these rules;

Provided also that the number of vacancies equal to 15 per cent of the  vacancies referred to in the last preceding proviso shall be worked out for  being allocated in future to the Judicial  magistrates  in addition to their  quota  of  15  per  cent  prescribed  in  rule   6,  and  thereupon,  future  recruitment (after the promotion from amongst the members of the Nyayik  Sewa against vacancies referred to in the last preceding proviso) shall be  so arranged that for so long as the additional 15 per cent vacancies worked  out as above have not been filled up from out of the Judicial magistrates,  the allocation of vacancies shall be as follows :

(i) 15% by direct recruitment. (ii) 30% from out of the Judicial Magistrates; (iii) 55% from out of the members of the Nyayik Sewa

[Note : The first proviso to sub-Rule (2) of Rule 8 was amended by the   Amendment Rules of 1996 omitting the crucial word “permanent” when   referring to “15% of the total permanent strength of the service”. The   first proviso as amended, reads thus :  

Provided that the number of  vacancies filled in as aforesaid under this   sub  rule  shall  be  taken  into  consideration  while  fixing  the  number  of   vacancies  to  be  allotted  to  the  quota  of  direct  recruits  at  the  next   recruitment, and the quota for direct recruits may be raised accordingly;   so, however, that the percentage of direct recruits in the Service does not   in any case exceed 15 per cent of the total strength of the service.]

20. Promotion of members of Nyayik Sewa :

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(1) Recruitment by promotion of the members of the Nyayik Sewa shall be  made by selection on the principle of seniority-cum-merit.

xxx      xxx      xxx

(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-rules (2) and (3),  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 lists in the order in  which they stand in the respective lists.  

(2) Appointments to the service shall be made on the rotational system, the  first vacancy shall be filled from the list of officers of the Nyayik Sewa,  the second vacancy shall be filled from the list of direct recruits (and so  on), the remaining vacancies shall thereafter be filled by promotion from  the list of the officers of the Nyayik Sewa.  

Provided that for so long as suitable officers are available from the cadre  of the Judicial Magistrates, appointments to the service shall be made in  such a way that the second fifth and eighth (and so on), vacancy shall be  filled from the list of Judicial Magistrates.  

(3) Appointment for temporary vacancies or in officiating capacity shall  be made by the Governor in consultation with the Court from amongst the  members of the Nyayik Sewa.

Provided that for so long as suitable officers are available from the cadre  of  the  Judicial  magistrate,  appointments  on  temporary  vacancies  or  in  officiating  capacity  shall  be  made in  consultation  with  the  Court  from  amongst  the  Judicial  Magistrate  according  to  the  quota  fixed  for  that  source under these rules:

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Provided further that for so long as such members of the Judicial Service  as are considered suitable for appointments on temporary vacancies or in  officiating capacity, are not available in sufficient number, the Governor  in consultation with the Court may fill in not more than 50 per cent of  such  vacancies  from  amongst  the  officers  of  the  cadre  of  Judicial  Magistrates.

(4) The  appointments  shall  be  made  on  rotational  system,  the  first  vacancy shall be filled from the list of officers of the Nyayik Sewa, the  second vacancy shall be filled from the list of Judicial Magistrates (and so  on).  

[Note : Sub-Rule (3) and its two provisos of Rule 22 were substituted by   the following by the Amendment Rules of 1996 :  

(3) In the eventuality of delay in making appointment under sub-rule (1)   and  further  if  exigency  of  service  so  requires,  the  Governor  may,  in   consultation with the Court, make short term appointment as a stop-gap  arrangement from amongst the members of Nyayik Sewa in the vacancy in   these services within the quota fixed by the Court till the appointments are   made under sub- rules (1) and (2) :

Provided that the period of service spent by the member of Nyayik Sewa   on short term appointment to the service as a stop-gap arrangement shall   not be computed for seniority under Rule 26.]

26.  Seniority  –  (1)  Except  as  provided  in  sub-rule  (1),  seniority  of  members of the service shall be determined as follows :

(a) Seniority of the officers-promoted from the Nyayik Sewa vis-à-vis the  officers  recruited  from  the  Bar  shall  be  determined  from  the  date  of  continuous officiation  in the service in the case of promoted officers and  from the date of their joining the service in the case of direct recruits.  Where the date of continuous officiation in the case of an officer promoted  form the Nyayik Sewa and the date of joining the service in the case of a  direct recruit is the same, the promoted officer shall be treated as senior

Provided that in the case of a promoted officer the maximum period of  continuous  officiation  in  the  service  shall  not,  for  the  purpose  of  determining seniority exceed three years immediately preceding the date  of confirmation;

Provided that where any officer is not found fit for confirmation and is not  confirmed in his turn, the officiating period or the probationary period, as  the case may be, prior to the date of decision taken by the High Court in  this behalf shall not be taken into account for purposes of computing the  

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period of continuous officiation or for purposes of working out the date of  joining of the service, as the case may be;

(b) Seniority inter se of the officers appointed from out of the Judicial  Magistrates shall be determined from the date of continuous officiation,  provided  that  in  the  case  of  officers  appointed  on  the  basis  of  one  selection, their seniority shall be determined according to their seniority in  the Uttar Pradesh Judicial Officers Service:

Provided further that where an officer is not found fit for confirmation and  is  not  confirmed in his  turn,  the  officiating period prior  to  the date of  decision taken by the High Court in this behalf shall not  be taken into  account for computing the period of continuous officiation.

(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 Government as amended from time to time.

[Note : Rule 26 of 1975 Rules was substituted in entirety by the follwing   by the Amendment Rules of 1996 :  

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.]

3. The dispute between the promotees and direct recruits  in regard to  

their inter-se seniority in the Uttar Pradesh Higher Judicial Services came up  

before  this  Court  at  the  instance  of  promotees  in  P.K.  Dixit  vs.  State  of   

Uttar Pradesh – 1987 (4) SCC 621. This Court allowed the petitions and  

directed preparation of fresh seniority list in accordance with the following  

directions:  

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“(i) So far as the posts available on a particular dated i.e. May 10, 1974  are concerned the High Court will have to look into the matter afresh and  decide the seniority in the light of the above position. But after the 1975  Rules came into force,  the appointments to the Higher Judicial  Service  either on the basis of direct recruitment or on the basis of promotion must  have  been  in  accordance  with  these  rules  and  it  is  expected  that  the  probation, confirmation and seniority must have been looked into by the  High Court strictly in accordance with these Rules.  

(ii) Under  Rule  22(3)  appointment  to  temporary  vacancies  shall  be  made only from the Nyayik Sewa and as and when a substantive vacancy  arises and the procedure for selection is to be followed, the officers who  were appointed to fill in the temporary posts should be considered first and  appointed on probation, if found fit. When appointment under Rule 22 is  contemplated  in  the  service  of  substantive  vacancies,  it  may  be  both  temporary or permanent but the vacancy must be in the cadre. A person  could only be confirmed when a permanent post is available for him.  

(iii) If a person is appointed to officiate in the Higher Judicial Service  his case for confirmation normally will be considered within three years  and either he will be confirmed or will be reverted. The High Court must  examine  the  case  of  a  promotee  officer  within  three  years  and decide  whether the officer deserves to be confirmed or deserves to be reverted. It  is with this view that Rule 23 provides that period of probation shall not  ordinarily  exceed  three  years  and  Rule  26  provides  that  in  case  of  promotee officer’s continuous officiation even if it is for more than three  years, only three years will be counted for purpose of seniority. This itself  contemplates that such an occasion  shall not arise when a person may be  officiating  for  more  than  three  years  and  still  his  case  hs  not  been  considered for confirmation.”  

4. Pursuant  to  the  judgment  in  P.K.  Dixit, the  High  Court  issued  a  

tentative  seniority  list  on  11.2.1988  and  objections  were  invited.  The  

promotees were satisfied that the said list was drawn in conformity with the  

judgment in  P.K.Dixit and unobjectionable.  The High Court constituted a  

Five-Judge Committee to finalise the list. On the basis of the report of the  

committee, final seniority list was issued on 25.8.1988.  Aggrieved by the  

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final seniority list, the promotees (O.P. Garg and four others) filed a writ  

petition. The petitioners  P.K. Dixit filed an application in the said petition  

seeking clarification and supporting the case of the promotees. The direct  

recruits filed a writ petition challenging the final seniority list issued by the  

High  Court.  Both  sides  contended,  for  different  reasons,  that  the  final  

seniority list dated 25.8.1988 was contrary to the decision in P.K. Dixit. This  

court  found that  the  High Court,  the  direct  recruits  and promotees  were  

interpreting  the  directions  and  observations  in  P.K.  Dixit differently.  

Therefore this court in its judgment dated 23.4.1991, reported in O.P. Garg  

v. State of U.P. & Ors. - 1991 (Supp) 2 SCC 51, decided to take a fresh look  

into the matter in regard to aspects which were not dealt with and decided by  

P.K.  Dixit.  This  court,  therefore,  posed the  following three  questions  for  

consideration :  

1. What is the scope and interpretation of second proviso to  Rule 8(2) of the 1975 rules? Whether the Additional District  and Sessions Judges, holding the posts on April 5, 1975, can  claim that by operation of the 1974 Rules they stood appointed  to the service and as such consumed all the posts which were  available  on  April  5,  1975  or  they  were  only  entitled  to  vacancies under the second proviso to Rule 8(2) of the 1975  rules?

2. Whether the period of continuous officiation in case of a  promotee, for determining seniority, is to be counted in terms of  First  proviso  to  Rule  26(1)(a)  of  the  1975  Rules  or  in  accordance with the principle adopted by the High Court. Isn't it  

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the requirement of law that a promotee is entitled to seniority in  the service from the date when vacancy in his quota became  available?

3. Seniority  and  appointment  in  the  service  being  inter- linked  a  further  question  which  necessarily  arises  for  our  consideration  is  whether  Rules  22(3)  and  22(4)  of  the  1975  rules,  which  provide  appointments  to  temporary posts  in  the  service  from two  sources  of  promotees  excluding  the  direct  recruits, can be legally sustained?

On consideration of the issues,  this  Court  quashed the final  seniority list  

dated 25.8.1988 with  a  direction  to the  High Court  to prepare,  circulate,  

invite  objections  and then  finalize  the  seniority  list  keeping  in  view the  

following directions, declarations and findings:

“(i) All  the  236  promotee  officers  working  against  236  posts  (229  permanent plus 7 temporary) as Additional District and Sessions Judges  on April 5, 1975 shall be deemed to be existing members of the Service as  constituted under the Rules with a direction that they shall en bloc rank  senior to all other officers appointed to the service thereafter from three  sources in accordance with their quota under the Rules.

(ii) The first proviso to Rule 26(1)(a) of the Rules was struck down  with  a  direction  that  the  continuous  officiation/service  by  a  promotee  appointed under the Rules shall be counted for determining his seniority  from the date when a substantive vacancy in permanent or temporary post  is made available in his quota under the Rules.  

(iii) Sub-rules (3) and (4) of Rule 22 were struck down with the saving  that the appointments already made under the said Sub-rules shall not be  invalidated.  

(iv) While  selecting candidates  under  Rule  18 of  the said rules,  the  committee  shall  prepare a merit  list  of  candidates  twice the number of  vacancies and the said list shall remain operative till the next recruitment;  and the appointments under Rules 22(1) and 22(2) of the Rules shall be  

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made to permanent as well as to temporary posts from all the three sources  in accordance with the quota provided under the said rules.

5. In pursuance of the decision in O.P. Garg, the High Court calculated  

the vacancies under different quotas for recruitment/promotion for different  

periods. The dispute centering around the method of calculation made by the  

High Court in regard to the ratio between direct recruits and promotees in a  

given year,  again came up before this  court  in  one more round between  

promotees and direct recruitees in Srikant Tripathi & Ors. v. State of U.P. &  

Ors.  [2001  (10)  SCC  237],  wherein  this  Court  issued  the  following  

directions :

“1. Appointments already made to the Higher Judicial Service, whether by  direct  recruitment  or  by promotion,  need not  be  annulled and shall  be  continued.

2. With effect from 1988 recruitment and in all subsequent 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.

3.  If  in  each  recruitment  year,  posts  were  available  in  the  quota  of  promotees and promotion has not been made, even though selection had  been  made  under  Rule  20,  then  the  legitimate  right  of  the  promotees  cannot be denied and promotion must be made with effect from the date  they should have been appointed.

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4. This exercise has to be made for the recruitment of 1988 as well as for  each subsequent recruitment that has been made.

5. Since the determination under Rule 8 is being made now, pursuant to  the directions of this Court, in respect of 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.

6. So far as the recruitment of 1998 is concerned, advertisements having  been issued for 38 vacancies being filled up by direct recruitment and the  process of selection being already over, but no appointment having been  made, we think it appropriate to direct that the appointment of the selected  candidates  may  be  made  against  the  quota  available  to  direct  recruits  calculated in accordance with the Rules in the light of our decision.

7. For all future appointments, the High Court must take steps to fill the  vacancies of every recruitment year during that year itself. The High Court  must determine the vacancies not only on the basis of the actual vacancies  on  the  date  of  such  determination  but  also  take  into  account  probable  vacancies by reason of superannuation of officers in the next two years  from that date. Once the vacancies are so determined, the percentage of  the  vacancies  available  for  recruitment  by  direct  recruitment  and  by  promotion  must  be  fixed  and  steps  taken  for  filling  up  the  same  expeditiously.  The number of vacancies available for the direct recruits  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.

6. On 30.11.2001 the Chief Justice of the High Court placed the matter  

before the Administrative Committee of the High Court, for implementation  

of  the  directions  in  Srikant  Tripathi. On  5.12.2001, the  Administrative  

Committee in turn constituted a Three Member Sub-Committee to examine  

and submit a report. The Sub-Committee examined the matter and submitted  

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a  report  dated  24.8.2002,  determining  the  actual  number  of  vacancies  

available for the 1988, 1990, 1992-1994 and the 1998 (initiated in 2000) and  

the  actual  recruitments  made,  with  other  details.  We  extract  below  the  

operative portion of the said report:  

“The office on re-examination of record has found that 13 vacancies were  left  out inadvertently from being incorporated in the existing Gradation  List. The details of those vacancies have been given on page no.13 of the  appendix attached herewith.

Before the process of 1988 recruitment could commence, 5 direct recruits  were  appointed  in the  U.P.  Higher  Judicial  Service  Cadre  on  different  dates under the order of Hon’ble Supreme Court. Since no vacancies have  been allocated to them in the existing Gradation List, we have allocated 5  vacancies out of 13 left out vacancies to these direct recruits, the details of  which have been shown on page no.14.

As per direction no.5 referred to above, we have determined the vacancies  after taking into account the vacancies which existed before 1.1.1988 and  also  the  vacancies  which  actually  occurred  or  accrued  during  the  recruitment period and not on the basis of the expression ‘likely to occur’.  On re-calculation,  we  find  that  in  all  there  were  314 actual  vacancies  available  for  1988 recruitment,  as  shown below and whose  details  are  indicated on page 16 of the appendix.  

(A) Vacancies which remained unfilled prior to 1.1.1988   

Remaining vacancies out of 13 vacancies which  were left out inadvertently in the Gradation List 08

Vacancies which occurred or accrued between-

24.5.1984 to 31.12.1984 23 1.1.1985 to 31.12.1985 34 1.1.1986 to 31.12.1986 40 1.1.1987 to 31.12.1987       129

       ______

Total                     234

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       ______

(B) Vacancies which actually occurred or accrued between   – 1.1.1988 to 31.12.1990   80

Total number of vacancies available for recruitment           314

Though as per quota Rule, 47 direct recruits could be appointed out of 314  vacancies but because of the ceiling imposed under the Rules,  only 42  direct recruits could be appointed as their number could not at any point of  time  exceed  15% of  the  Cadre  strength.  Instead  of  42,  only  24  direct  recruits were recruited from the Bar and 3 vacancies within their quota  were kept reserved for SC/ST candidates which were carried forward to  the  next  recruitment.  We  thus  find  that  the  appointment  of  the  direct  recruits made in 1988 recruitment was not in excess of their quota. The  Apex Court observed as under:  

“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.”

Since from the chart prepared on page 16 it is apparent that there has been  no  appointment  in  excess  of  the  quota  of  direct  recruits  in  1988  recruitment, no question thus arises for the seniority of the direct recruits  being adjusted in the next recruitment.

On the same basis, similar exercise was made in relation to subsequent  recruitments  of  1990  and  1992-94  batches.  The  position  of  the  actual  vacancies available for these recruitments has been exhibited in the charts  on pages 38 and 48 respectively.

For the latest recruitment of 2000, the court has fixed the number of direct  recruits to be recruited as 38. We have worked out the total number of  vacancies available for this recruitment and they have been indicated in  the  chart  shown  on  page  69.  From  this  chart  it  would  appear  that  maximum number of  direct  recruits  who could be appointed under the  Rules  comes  to  38.  Advertisement  has  also been made  for  making  38  

14

appointments within the quota of direct recruits. In this view of the mater  38 appointments within the quota of direct recruits has to be made in the  2000 recruitment. We have been told that examination has already been  held but its result is awaited as vacancies were to be calculated afresh in  the light  of the directions  of  the Apex Court  in  the case of Shri  Kant  Tripathi. Direction no. 6 was in the following term:  

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.

As a matter of fact no recruitment was made in 1998, instead the court has  initiated the recruitment process for 2000 recruitment.

On re-calculation,  we have already found above  that  38  vacancies  are  available  in  the  quota  of  direct  recruits  for  their  appointment  in  2000  recruitment. Advertisement was also made for the same number of posts.  Therefore, 38 appointments may be made from the members of the Bar in  accordance with the Rules. Similarly 334 promoted officers, if available  and  found  suitable,  be  also  recruited  for  appointment  to  service  in  accordance with rule 22(1) read with rule 22(2).

For future recruitment, office is directed to take steps in accordance with  direction no.7.  Office shall  immediately calculate  the actual  number of  vacancies as are found existing on the date of such determination. It shall  also work out the probable vacancies likely to occur in the next two years  from that date by reason of superannuation. This figure shall be added to  the  number  of  existing  vacancies  and  thereafter  the  percentage  of  vacancies available for both the sources shall be fixed and steps shall be  taken  for  filling  up  the  same  expeditiously.  The  vacancies  which  are  worked out  in the direct  recruits quota shall  be advertised without  any  variation clause.

15

We may add that we have not gone into the question of inter se seniority  between  the  promoted  officers  and  the  direct  recruits  because  for  that  purpose a separate Committee has been constituted by the Chief Justice.”

The factual position as worked out in the annexures to the said report is as  

under :

Description 1988  (with  expected  vacancies  upto  31.12.1990)

1990 (with  expected  vacancies  upto  31.12.1992)

1992-94  (with  expected  vacancies  upto  31.12.1997)

1998  (with  expected  vacancies  upto  2000)

Total vacancies

Carried forward

Vacancies during the period  

Total  

8

306 _____ 314

96

44 _____ 140

117

261 _____ 378

196

176 _____ 372

Allotment of vacancies  

Promotees  

Direct recruits

267

47

119

21

321

57

316

56

Cadre strength

Permanent

Temporary  

Total  

376

219 _____ 595

511

85 _____ 596

572

169 _____ 741

572

226 _____ 798

15%  of  cadre  strength  (maximum  number  of  direct  recruits  permissible  with  reference to cadre strength)  

89 89 111 120

Actual number of direct recruits  working  

47 73 66 82

16

Maximum  number  of  direct  recruits who could be appointed  

42 16 45 38

Actual recruitment

Promotees  

Direct recruits  

191

24

17

5

161 (48+113) Permissible:334

Permissible : 38

Vacancies  kept  reserved  for  SC/ST

3 1

Unfilled to be carried forward 96 117 196

The said report was approved by the Administrative Committee on 4.9.2002  

and was approved by the Full Court of the High Court on 1.2.2004.  

7. The promotees were aggrieved by the acceptance of the Report by the  

Full Court. They contended that calculations made by the Sub-Committee  

and  the  conclusion  arrived  by  it  that  that  the  actual  number  of  direct  

recruitment made for the said years was not in excess of the quota available  

for direct recruits, were erroneous.  According to them, the posts available in  

the  quota  of  promotees  (Nyayik  Sewa  Officers)  was  475  for  1998  

recruitment and not 334. They also disputed the finding that 38 vacancies  

were available for direct recruitment in 1998. Their cause was espoused by  

the UP Higher Judicial  Service Association by filing a writ  petition (WP  

No.316 of 2004) seeking the following reliefs :  

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(i) a  direction  to  the  State  and  the  High  Court  not  to  make  any  appointment by direct recruitment in the UP Higher Judicial Service until  the posts available for promotion of members of the UP Nyayik Sewa with  effect from 1988 recruitment are calculated and filled up in accordance with  the Rules as directed by this Court in S.K. Tripathi;   

(i) a direction to the State and the High Court to appoint to the UP Higher  Judicial  Service,  the  members  of  the  said  Association  against  the  222  existing vacancies in the quota of promotees; and   

(iii) quashing  the  decision  of  the  Full  Court  of  the  High  Court  dated  1.2.2004 accepting the recommendations  of  the three-member  Committee  dated 24.8.2004.  8. A Division Bench of the High Court allowed the said writ petition by  

the impugned order dated 25.8.2004. It quashed the resolution of the Full  

Court dated 1.2.2004 accepting the recommendations of the three-member  

Committee dated 24.8.2002 and directed a fresh exercise to be carried out in  

the light of Srikant Tripathi to determine the vacancies and their distribution  

between the three sources of recruitment as per their quota under the Rules,  

for the  recruitment  years 1988 to 1998 in accordance with the following  

guidelines :  

(1) The number of the officers of Nyayik Sewa and Judicial Service who  were already promoted and appointed against temporary posts under Rule  22(3) or 22(4) of the Rules and whose appointments have been protected in  O P Garg would be taken into consideration and the number of vacancies  equal to the number of such officers shall be excluded from computation.  

(2) While applying the ratio of judgment in  O P Garg and distributing  temporary as well as permanent vacancies, allocation of 15% vacancies of  the quota of direct recruits under rule 6 of the Rules, has further to be subject  

18

to ceiling of 15% of the permanent strength of service, till the amendment in  the rules came into effect i.e. 25th February, 1996.  

(3) While making an exercise to find out (in accordance with direction  no.2) as to whether the direct recruits taken into service are in excess of the  quota  or  not,  simultaneous  exercise  has  to  be  done  for  compliance  of  direction no.3 in S.K. Tripathi and vacancies of the quota of promotees shall  be  deemed  to  have  been  filled  up  from  the  date  they  are  entitled  to  promotion.  

(4) Thirty  one  posts  of  the  service  which  have  been  transferred  to  Uttaranchal with effect from 30.9.2001 shall be excluded while determining  the strength of the service in order to work out 15% of the quota of direct  recruits.  

(5) Out of 13 unnoticed vacancies, found by the office in the year 1988  only two vacancies equal to 15% of the quota of direct recruits be given to  them instead of adjusting five appointments en bloc and again giving one out  of eight vacancies to them applying 15% quota rule.  

(6) The second proviso to Rule 6 be also given effect to as and when the  occasion arises.  

The  Division  Bench  issued  a  consequential  direction  that  the  State  

Government and the High Court cannot be permitted to appoint thirty eight  

direct recruits for the 1998 recruitment year and permitted the State and the  

High Court to proceed with the appointment of direct recruits for 1998 not  

exceeding twenty four and also fill up 334 posts by promotion subject to the  

final determination of vacancies in accordance with the directions contained  

therein. The said order is challenged in these civil appeals.  

19

9. Judicial Officers belonging to U.P. Higher Judicial Service appointed  

in the direct recruits quota, in the years 1988, 1990, 1992 and 1994, who  

were  not  parties  before the  High Court  and whose seniority  is  adversely  

affected  by  the  order  of  the  division  bench  of  the  High  Court  are  the  

appellants in C.A. No.1312/2005.

The High Court of Allahabad which was the second respondent in the writ  

petition filed by the U.P. Judicial Service Association, is the appellant in  

C.A.No.1313/2005.

The  candidates  who  participated  in  the  U.P.  Higher  Judicial  Service  

Examination, 2000 for direct recruitment and whose names are found in the  

select  list  but  who  are  not  appointed  in  view  of  the  directions  in  the  

impugned order (to restrict the appointments to only 24 instead of 38), have  

filed the last appeal.

10. The appellants (direct recruits, the High Court administration and the  

prospective direct recruits) in their respective appeals, have contended that  

directions  (1),  (2),  and  (3)  issued  by  the  Division  Bench  as  also  the  

consequential direction to conduct a fresh exercise in the light of  Srikant  

20

Tripathi are erroneous and require interference. Their contentions in brief  

are:   

(a) The  direction  by  the  division  bench  of  the  High  Court  that  the  vacancies  occupied  by  promotees  in  excess  of  their  quota  whose  appointments were protected by the Supreme Court, shall be excluded from  the  computation  of  the  respective  quotas  for  direct  recruitments  and  promotion,  is  contrary  to  the  decision  in  Srikant  Tripathi,  but  also  inconsistent with the settled legal position vide A. K. Subraman vs. Union of   India – (1975) 1 SCC 319 and  P.S. Mahal vs. Union of India – (1984) 4  SCC 545.  

(b) The interpretation of the first proviso to Rule 8(2) is contrary to the  decision in O.P. Garg and inconsistent with the views of this Court in OP  Singla & Anr. vs. Union of India & Ors. – (1984) 4 SCC 450.  

(c) The direction that the ceiling of 15% of permanent strength of the  service  should  be  given  effect,  till  the  amended  Rules  came  into  effect  (15.3.1996),  instead of treating 15% of the cadre strength as quota for direct  recruits, is contrary to the decision in O.P. Garg, holding that “all temporary  posts  created  under  Rule  4  (4)  of  the  1975  Rules  are  additions  to  the  permanent strength of the cadre and as such form part of the cadre.”  

11. On  the  contentions  raised,  the  following  questions  arise  for  our  

consideration :  

(i) Whether  the  vacancies  occupied  by  judicial  officers  promoted  and  

appointed against  temporary posts under Sub-Rules (3) or (4) of Rule 22  

should be excluded when computing the respective quotas for promotees and  

direct recruits?  

21

(ii) Whether the direct recruits are entitled to 15% of the vacancies as a  

fixed quota or whether the said percentage is a ceiling imposed in regard to  

direct recruitment meaning that the vacant posts shall not be filled up more  

than 15% by the direct recruits?

(iii) Whether  the  words  “15%  of  the  total  permanent strength  of  the  

service”  occurring  in  first  proviso  to  sub-Rule  (2)  of  Rule  8  of  the  

unamended Rules (as contrasted from “15% of the strength of the service”  

after  the  amendment),  shall  be  given  effect  in  computing  the  respective  

quotas  of  promotees  and  direct  recruits  till  the  amendment  of  Rules  

(effective from 15.3.1996) deleting the word “permanent” in the said first  

proviso?

(iv) Whether the procedure of carrying forward vacancies adopted by the  

full  court  of  the  High  Court  is  erroneous  having  regard  to  the  specific  

provisions of Rule 8(2) and direction no.3 issued by this  Court in  Srikant  

Tripathi?

The answers to these questions would to a large extent  depend upon the  

interpretation of the earlier decisions of this Court in O.P. Garg and Srikant  

Tripathi.  

Re : Question (i)  

22

12. In O. P. Garg, this Court struck down Rules 22(3)  and 22(4) which  

confined  the  appointment  to  temporary  posts  to  only  promotees  (Nyayik  

Sewa and Judicial Magistrates) held that  when temporary posts under Rule  

4(4) of the 1975 Rules are created as addition to the cadre, the direct recruits  

could not be denied their share of the quota as provided under Rule 6 of the  

said Rules; and as the services were comprised of three sources including the  

direct recruitment, there was no justification to deprive the direct recruits of  

their share in the temporary posts in the service. This court also struck down  

the first proviso to Rule 26(1)(a).   As a result this Court directed :  

“We also strike down Rules 22(3) and 22(4) of the 1975 Rules but the  appointments already made under these rules shall not be invalidated. We  further direct  that while selecting candidates under Rule 18 of the said  Rules the Committee shall prepare a merit of candidates twice the number  of  vacancies  and  the  said  list  shall  remain  operative  till  the  next  recruitment.  We further direct  that  the appointments  under Rules 22(1)  and 22(2) of the 1975 rules  shall  be made to permanent  as well  as  to  temporary posts from all the three sources in accordance with the quota  provided under the said rules.”  

Since the recruitment to the service is from three sources, the existence of  a vacancy either permanent or temporary is the sine qua non for claiming  benefit of continuous length of service towards seniority.  The period of  officiation/service which is not against a substantive vacancy (permanent  or temporary) cannot be counted towards seniority. While striking down  first  proviso  to  Rule  26(1)(a)  of  the  1975  Rules,  we  hold  that  the  continuous  officiation/service  by  a  promotee  shall  be  counted  for  determining his seniority only from the date when a substantive vacancy  against a permanent or temporary post is made available in his quota under  the 1975 Rules.”

13. As a consequence of striking down of the sub-rules(3) and (4) of Rule  

22,  the  appointments  already  made  by  applying  those  rules  had  to  be  

23

invalidated  to  the  extent  of  15% which was the  quota  of  direct  recruits,  

resulting in the reversion of those who were promoted to vacancies to which  

direct recruits were entitled and filling those vacancies by direct recruitment.  

But, this Court did not want any of the appointments already made under the  

sub-rules  22(3)  and  (4)  to  be  invalidated.  It,  therefore,  extended  limited  

protection to those appointments of promotees already made to the higher  

temporary posts which ought to have gone to the direct recruits quota by  

directing that appointments already made under Rules 22(3) and 22(4) shall  

not be invalidated.  This saved such promotees from reversion. What was  

saved was only their appointments and not the seniority by reason of the  

illegal appointments. The effect of saving the promotee from invalidation of  

the promotion is that he would be allowed to continue, but his seniority will  

be reckoned only when he is adjusted against a promotee vacancy in the next  

recruitment.  Therefore all  the consequences of striking down Rules 22(3)  

and  22(4)  followed,  the  only  consequence  that  was  excluded  was  the  

invalidation of appointments already made by applying the said sub-rules  

22(3) and 22(4).  Such protection cannot be widened or extended, to deny  

the quota of direct recruits in the temporary vacancies and thereby nullify  

the striking of the said sub-rules. Nor can the protection against invalidation  

of  promotion  be  used  to  exclude  the  number  of  vacancies  equal  to  the  

24

number  of  officers  who  were  given  protection,  while  computing  the  

vacancies  to  be  filled by different  sources.  Consequently,  in  spite  of  the  

protection  against  invalidation  and  reversion,  all  the  appointments  of  

promotees  to  temporary  vacancies  will  have  to  be  counted  and  adjusted  

against the substantive vacancies under promotee quota under the Rules. In  

short, the direct recruits should be given quota in the temporary posts also.  

Therefore, the first direction in the impugned judgment of the High Court  

(that  vacancies  occupied  by  promotees  in  excess  of  their  quota  shall  be  

excluded from computation of respective quotas for direct recruitment and  

promotion)  is  contrary  to  the  decision  in  O.  P.  Garg,  and  cannot  be  

sustained.     

Re : Question No.(ii)

14. Rule 6 relates to quota for various sources of recruitment and provides  

the quota for direct recruitment from the Bar shall be 15% of the vacancies  

subject to the provision of Rule 8. Sub-Rule (2) of Rule 8 provides that if at  

any  selection,  the  number  of  selected  direct  recruits  available  for  

appointment is less than the number of recruits decided by the High Court to  

be taken from that source, the court may increase accordingly the number of  

recruits to be taken by promotion from the Nyayik Sewa. The first proviso to  

25

the said sub-rule provides that the number of vacancies filled in as aforesaid  

under the Sub-Rule (2) of Rule 8 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 and in so doing, the percentage of direct recruits in the service  

does not in any case exceed 15% of the  total permanent strength of the  

service. By the 1996 amendment to the Rules, with effect from 15.3.1996,  

the word total permanent was deleted and as a result the last part of the first  

proviso  to  Rule  8(2)  from 15.3.1996 reads  thus  :  “so,  however,  that  the  

percentage of direct recruits in the service does not in any case exceed 15%  

of the strength of the service”.

15. The promotees contend that having regard to the wording of Rule 8(2)  

and its first proviso, there is a ceiling of 15% of the total permanent strength  

for  direct  recruits.  They  contend  that  while  the  appointments  by  direct  

recruitment  could  not  exceed  15%  of  the  strength  of  the  service,  the  

appointment by promotion can exceed the quota of 85%. On the other hand,  

the  direct  recruits  contend that  their  quota is  15% of the  strength of  the  

service. They point out that even if any shortfall in the number of selected  

direct recruits is filled by increasing the number of promotees, at the next  

26

recruitment, the shortfall has to be made good while fixing the number of  

vacancies to be filled by direct recruits and by promotion and this showed  

that their quota was 15%.  

16. Both sides relied upon the decision of this Court in  O,P, Singla vs.   

Union  of  India –  (1984)  4  SCC  450,  in  support  of  their  respective  

contentions.  While  the  promotees  relied  upon para  16  of  O.P.  Singla to  

contend that the Rules refer to the 15% as a ceiling for appointment of direct  

recruits and there is no obligation to fill 15% of the vacancies with direct  

recruits, direct recruits relied upon para 17 of  O.P. Singla, to contend that  

the Rules prescribe a quota of 15% for direct recruits. We extract below the  

relevant observations from O.P. Singla :  

“16.  Logically,  we must  begin this  inquiry with the question as to the  interpretation of the proviso to Rule 7. Does that proviso prescribe a quota  or does it merely provide for a ceiling ? In other words, does the proviso  require that, at any given point of time, 1/3rd of the substantive posts in  the Service shall be reserved for direct recruits or does it only stipulate  that the posts held by direct recruits shall not be more than 1/3rd of the  total number of substantive posts in the Service ? The proviso reads thus:

Provided that not more than 1/3rd of the substantive posts   in the Service shall be held by direct recruits.

This language is more consistent with the contention of the promotees that  the proviso merely prescribes, by way of imposing a ceiling, that the direct  recruits  shall  not  hold  more  than  1/3rd  of  the  substantive  posts.   Experience  shows that  any  provision  which is  intended  to  prescribe  a   quota,  generally  provides  that,  for  example,  "1/3rd  of  the  substantive   posts shall be filled in by direct recruitment." A quota provision does not  

27

use the negative language, as the proviso in the instant case does, that "not  more than" one-third of the substantive posts in the Service shall be held  by direct recruits.

17. If the matter  were to rest with the proviso, its interpretation would  have to be that it does not prescribe a quota for direct recruits : it only  enables the appointment of direct recruits to substantive posts so that, they  shall not hold more than 1/3rd of the total number of substantive posts in  the Service. However, it is well recognised that, when a rule or a section   is a part of an integral scheme, it should not be considered or construed   in isolation. One must have regard to the scheme of the fasciculus of the  relevant rules or sections in order to determine the true meaning of any  one or more of them. An isolated consideration of a provision leads to the  risk of some other inter-related provision becoming otiose or devoid of  meaning. That makes it necessary to call attention to the very next rule,  namely, Rule 8. It provides by Clause 2 that :

The seniority of direct recruits vis-a-vis promotees shall be  determined  in the order of rotation of vacancies between  the direct  recruits and promotees  based on the quotas of   vacancies reserved for both categories by Rule 7 provided  that  the first  available vacancy will  be filled by a  direct  recruit and the next two vacancies by promotees and so on.

This provision leaves no doubt that the overall scheme of the rules and the  true intendment of the proviso to Rule 7 is that 1/3rd of the substantive   posts in the Service must be reserved for direct recruits. Otherwise, there   would neither be any occasion nor any justification for rotating vacancies   between  direct  recruits  and  promotees.  Rule  8(2),  which  deals  with  fixation of seniority amongst the members of the Service, provides, as it  were, a key to the interpretation of the proviso to Rule 7 by saying that the  proviso  prescribes  "quotas"  and reserves  vacancies  for  both categories.  The language of the proviso to Rule 7 is certainly not felicitous and is  unconventional if its intention was to prescribe a quota for direct recruits.  But the proviso, as I have stated earlier, must be read along with Rule 8(2)  since the two provisions are inter-related. Their combined reading yields  but  one  result,  that  the  proviso  prescribes  a  quota  of  1/3rd  for  direct  recruits.”

(emphasis supplied)

17. Whether the Rules provide for a specific fixed quota for the direct  

recruits or whether they merely indicate the ceiling for the appointment by  

28

direct recruitment would therefore depend on the wording of the Rules. Rule  

6 provides a specific quota of 15% of the vacancies for direct recruits. But as  

rule 6  provides that the same shall be subject to the provision of Rule 8, the  

question is whether rule 8 modifies the quota of direct recruits from ‘15% of  

the vacancies’ to ‘not more than 15% of the vacancies’. Rules 6 and 8 were  

interpretated in Srikant  Tripathi thus :   

“The recruitment to the service has to be made, both by direct recruitment  and  by  promotion  and  promotion  could  be  made  from  amongst  the  confirmed members of Uttar Pradesh Nyayik Sewa, who have put in, not  less than seven years of service and also from out of the dying cadre of the  U.P.  Judicial  Officers  Service.  Rule  6  which  is  subject  to  Rule  8  and  provides for the quota for various sources of recruitment,  unequivocally   indicates that 15% of the vacancies would be, by direct recruitment from  the Bar, 70% of the vacancies from the Uttar Pradesh Nyayik Sewa and  15%  from  Uttar  Pradesh  Judicial  Officers  Service.  Under  the  second  proviso to Rule 6, when the strength in the cadre of Judicial Magistrate  gets completely exhausted and no officer from that cadre is available, then  the vacancies in the cadre of Higher Judicial Service have to be filled up  by 15% from the direct  recruitment  from the Bar  and 85% from Uttar  Pradesh Nyayik Sewa.

On fixation of the number of officers to be taken at the recruitment under  sub-rule (1) of Rule 8 from different sources and after taking recourse to  the procedure contained in Part IV for making direct recruitment to the  service in respect of the vacancies advertised, if selected direct recruits for  appointment  become less  than the  number  decided by the  Court  to  be  recruited, then it would be open for the Court to correspondingly increase  the number of recruits to be taken by promotion from Nyayik Sewa. But  under the proviso, while fixing the number of vacancies to be allotted to  the quota of direct recruits at the next recruitment under sub-rule (1) of  Rule  8,  the  quota  has  to  be  raised  to  the  extent  the  number  was  not  available in the earlier recruitment. But that raising of number would in no  case exceed 15 percent of the strength of the service. It may be noted that   while  the  rules  prohibit  that  under  no  situation,  the  number  of  direct   recruits  would  exceed  15  percent  of  the  cadre  strength,  there  is  no   prohibition so far as promotees are concerned and, therefore, in a given   

29

situation, the rule contemplates of having promotees more than the quota   fixed for them viz. 85 per cent. As we have stated earlier, this issue has not  cropped up in the present batch of cases and as such, we need not further  probe  into  the  matter.  But  it  must  be  remembered  that  the  rules  only   provide  the  embargo  that  under  no  circumstances  the  Direct  Recruits   would exceed the 15% of cadre strength. But that does not compel the   High Court to recruit 15% of the vacancies by direct recruitment at every   recruitment."

(Emphasis supplied)

18. Though the Rules do not compel the High Court to recruit 15% of the  

vacancies by direct recruitment at every recruitment, they require the High  

Court  to  take  note  of  any  shortfall  in  the  number  of  direct  recruits  at  

recruitment,  during  the  next  recruitment  by  raising  the  quota  

correspondingly. Thus when the first proviso to Rule 8(2) uses the words  

that the “percentage of direct recruits in the services does not in any case  

exceed 15%”, the intention is to ensure that the direct recruits maintain their  

quota  of  15%,  that  is,  while  doing  adjustments  in  fixing  the  number  of  

vacancies to be filled by direct recruitment at a subsequent recruitment to  

make good the shortfall at a previous recruitment to maintain 15%, the quota  

of direct recruit be exceeded. This means that the quota of direct recruits is  

15% of the strength of the service. The entire purpose of the exercise is to  

maintain the 15% quota of the direct recruits.  To conclude, the following  

clear  indicators  show that  the  quota  of  direct  recruits  is  ‘15%’  and  not  

“upto 15%” :

30

(a) Rule 6 uses the words “15% of the vacancies” as the quota of direct  

recruits and does not use the words “not more than 15% of the vacancies”.

(b) The purpose and intent  of Rule 8(2) is not to dilute or  change the  

quota  of  direct  recruits.  Its  object  is  to  ensure  that  no  vacancy  remains  

unfilled  for  want  of  adequate  number  of  direct  recruits  under  their  15%  

quota. This is 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. The first  

proviso  to  Rule  8(2)  ensures  that  the  shortfall  in  15%  quota  for  direct  

recruits in any recruitment does not get permanently converted to promotee  

quota,  by  providing  that  the  shortfall  shall  be  made  good  at  the  next  

recruitment.  The  words  “does  not  in  any case  exceed  15%” are  used  to  

further ensure that while making good the shortfall of direct recruits at the  

next  recruitment,  the  direct  recruits  do  not  encroach  upon  the  quota  of  

promotees.

(c) The provision for appointment to the service by rotational system (that  

is Rule 22(2) providing that the first vacancy to be filled from the list of  

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Nyayik Sewa Officers and the second vacancy to be filled from the list of  

direct recruits and so on), makes it clear that the overall scheme of the Rules  

is to provide a clear 15% quota for direct recruits.

19. Let us illustrate with a case where the quota of direct recruits  at a  

recruitment with reference to available vacancies, was 20 and only 10 direct  

recruits were available.  Having regard to the Rule 8(2), the remaining 10  

vacancies  need  not  be  kept  unfilled.  They  can  be  filled  by  promotion.  

However, the High Court while determining the quota of direct recruits at  

the  next  recruitment,  will  take  note  of  the  shortfall  of  10  in  direct  

recruitment,  at  the  earlier  recruitment  and  correspondingly  increase  the  

quota of direct recruits. This means while fixing the vacancies to be filled by  

direct recruits at a recruitment, the fact that lesser number of direct recruits  

were  appointed  at  the  last  recruitment  has  to  be  taken  note  of  and  the  

vacancies  to  be  filled  by  direct  recruits  is  to  be  increased  to  cover  the  

previous shortfall. But such adjustment should be done in such a manner,  

that the total direct recruits in the service do not exceed 15% of the strength  

of the service. This is conveniently done by calculating the total entitlement  

of direct recruits (that is 15% out to the total strength), finding out the actual  

posts occupied by direct recruits and calculating the difference which will be  

32

the entitlement of direct recruits.  As a result,  the shortfall  is made up by  

increasing the posts to be filled by direct recruitment. Therefore when there  

has been a shortfall in direct recruits in an earlier recruitment, the number  

fixed for direct recruits at a subsequent recruitment will necessarily exceed  

15% of the vacancies for which the subsequent recruitment is being held, by  

reason of the fact that the earlier shortfall is required to be filled.  

20. Rule 8 clarifies that direct recruits are entitled to 15% quota not only  

in the vacancies to be filled, but also 15% in the strength of the service. The  

Rules also make it clear that when a shortfall in a particular recruitment is  

made up at the next recruitment, there is no question of the direct recruits  

appointed to the shortfall vacancies claiming seniority over the promotees  

who filled the shortfall  post of direct recruits at the previous recruitment.  

Though the shortfall is made good at the next recruitment, the question of  

seniority will  be governed by Rule 26.  No direct  recruit  at  a  subsequent  

recruitment  can  claim  that  as  he  is  being  appointed  against  a  direct  

recruitment  vacancy  of  previous  recruitment,  his  seniority  should  be  

reckoned from any date earlier to the date of his joining the service.  

33

21. Thus though the quota of direct recruits is fixed, there is flexibility in  

fixing the vacancies to be filled by direct recruitment and vacancies to be  

filled by promotion. The High Court  can make adjustments  in fixing the  

number of officers to be appointed by promotion and direct recruitment as  

shown in Rule 8(2) and the provisos thereto ensuring that the number of  

direct recruits does no exceed 15% of the total strength of the service.  

Re : Question No.(iii)

22. The Division Bench of the High Court has accepted the contention of  

the promotees that while applying the ratio of the judgment in  O.P. Garg  

and distributing the permanent and temporary vacancies, the allocation of  

15% vacancies of the direct recruits quota should be further subjected to the  

ceiling  of  15%  of  the  permanent strength  of  service,  till  the  1996  

amendment  to the Rules came into effect  (on 15.3.1996).  The promotees  

further contend that Rule 6 provides for quota for direct recruits as 15% of  

the vacancies subject to the provisions of Rule 8; that Rule 8 provided that  

the percentage of direct recruits should not exceed 15% of the  permanent  

strength of the service; and that therefore the quota of direct recruits could  

34

not  exceed  15%  of  the  permanent  strength  of  the  service  (excluding  

temporary posts)           till 15.3.1996.  

23. In  O.P.Garg,  this  court  held as  follows in regard to entitlement of  

direct recruits for a quota in the temporary posts :

“24. We agree with the above findings and accept the position that the  service consists of permanent as well as temporary posts. The substantive  vacancy has not been defined under the 1975 Rules but as held by this  Court in Dixit case there can also be a substantive vacancy in a temporary  post which is part of the cadre. All temporary posts created under Rule  4(4) of the 1975 Rules are additions to the permanent strength of the cadre  and as such form part of the cadre. Appointments under Rule 22 of the  1975 Rules can be made to a permanent post as well as to a temporary  post. So long as the temporary post has an independent existence and is a  part of the cadre strength the appointment against the said post has to be  treated as substantive appointment.”   

“29. Recruitment to the service under the 1976 Rules is from three sources  and is based on quota as provided therein. The cadre consists of permanent  as well as temporary posts. We have already interpreted the seniority rule  to mean that the seniority of the direct recruit is to be determined from the  date  of  his  joining  the  service  and  that  of  promotee  on  the  basis  of  continuous  officiation/service  from  the  date  when  a  vacancy  whether  permanent  or  temporary,  becomes  available  in  his  quota.  With  these  characteristics of the service it is obligatory that there should be equality  of opportunity to enter the service for all the three sources of recruitment.  The  seniority  in  the  service  is  consequential  and  dependent  on  appointment. If the recruitment rule gives unjustifiable preference to one  source of recruitment the seniority rule is bound to become unworkable.  The  object  of  having  recruitment  from  different  sources  is  to  have  a  blended service to create healthy competition and in the process achieve  efficiency.  If  one  of  the  sources  of  recruitment  is  dealt  with  unevenly  under the Service Rules the said objective cannot be fulfilled. The 1975  Rules  permit  appointment  to  temporary  vacancies  in  the  service  by  promotion  and  from the  judicial  service.  No  direct  recruitment  to  the  temporary vacancies is provided under the said rules………”   

35

….We see no justification in not applying the quota rule to the temporary  posts in the service and confining appointments to said posts to the two  sources of promotees. This Court  in A.K. Subraman vs. Union of India –  1975 (1) SCC 319, held as under :  

‘The  quota  rule  will  be  enforced  with  reference  to  vacancies  in  all  posts,  whether  permanent  or  temporary,  included  in  the  sanctioned  strength  of  the  cadre  (except  such vacancies as are purely of a fortuitous or adventitious  nature)….’

31. This Court in P.S. Mahal vs. Union of India – 1984 (4) SCC 545,  held as under :  

‘It is therefore obvious that if a vacancy arises on account  of  an  incumbent  going  on  leave  or  for  training  or  on  deputation for a short period, it would be a fortuitous or  adventitious  vacancy  and  the  quota  rule  would  not  be  attracted in case of such a vacancy. But where a vacancy  arises on account of the incumbent going on deputation for  a  reasonably  long  period  and  there  is  no  reasonable  likelihood  of  the  person  promoted  to  fill  such  vacancy  having to revert, the vacancy would be subject to the quota  rule  …..  It  is,  therefore,  apparent  that  what  has  to  be  considered  for  the  applicability  of  the  quota  rule  is  a  vacancy in a post included in the sanctioned strength of the  cadre…..’

“32. When temporary posts under Rule 4(4) of the 1975 Rules are created  as addition to the cadre we see no justification to deny the direct recruits  their share of the quota as provided under Rule 6 of the said rules. Rule 5  of the 1975 Rules specifically lays down that recruitment to the service  shall be made from three sources including the direct recruits. Rule 6 fixes  the quota for various sources of recruitment to the service and allocates 15  per cent of the posts in the service to the direct recruits. Rules 5 and 6 read  with Rule 22(2)  provide for appointments  to  the service in  accordance  with quota. These rules have to be read homogeneously and as a part of  the same scheme. The service having comprised of three sources including  the direct recruitment there is no justification to deprive the direct recruits  of  their  share  in  the  temporary  posts  in  the  service.  Unless  the  direct  recruits are given their due quota in the temporary posts the seniority rule  cannot  operate equitably.  We see no justification whatsoever  in having  Rules 22(3) and 22(4) of the 1975 Rules which deprive one of the sources  of recruitment the benefit of appointment to the temporary posts. The rules  on the face of it  are  discriminatory.  There is  no nexus with the object  sought to be achieved by framing the abovesaid rules. We, therefore, strike  

36

down Rules 22(3) and 22(4) of the 1975 Rules being discriminatory and  violative of Articles 14 and 16 of the Constitution of India. We, however,  direct that the appointments already made under these rules [Rules 22(3)  and 22(4)] shall not be invalidated on this ground. We further direct that  while selecting candidates under Rule 18 the Committee shall prepare a  merit  list of candidates twice the number of vacancies and the said list  shall remain operative till the next recruitment. We further direct that the  appointments under Rules 22(1) and 22(2) of the Rules shall be made to  permanent  as  well  as  temporary  posts  from  all  the  three  sources  in  accordance with the quota provided under the 1975 Rules.”

    24. The division bench of the High Court has accepted the contention of the  

promotees  that  while  applying  the  ratio  of  the  judgment  in  O.P.Garg and  

distributing temporary as well as permanent vacancies, the allocation of 15%  

vacancies as the quota of direct recruits under Rule 6 of the Rules has to be  

subjected to a ceiling of 15% of the permanent strength of the service till the  

amendment in the Rules came into effect (on 15.3.1996). In O.P.Garg this court  

held that the various rules will have to be homogenized as parts of the same  

scheme;  that  as  the service was  comprised of  three  sources including direct  

recruitment, there is no justification to deprive the direct recruits of their share  

of temporary posts in the service; that unless the direct recruits are given their  

due quota in the temporary posts, the seniority rule cannot operate equitably;  

that Rules 22(3) and 22(4) providing that appointment for temporary vacancies  

shall  be  made  only  from  among  the  members  of  Nyayik  Sewa/Judicial  

Magistrates were discriminatory and appointments under Rules 22(1) and 22(2)  

shall have to be made to permanent as well as temporary posts from all the three  

37

sources in accordance with the quota provided under the Rules. In spite of the  

said decision by the three Judge Bench of this court, the promotees have been  

contending  that  the  percentage  of  direct  recruits  in  the  service  should  not  

exceed 15% of the permanent strength of the service till the amendment to the  

Rules with effect from 15.3.1996, in view of the fact that this court in O.P.Garg  

while striking Rules 22(3) and 22(4) did not strike down the word “permanent”  

occurring in the first proviso of Rule 8(2) which provided: “so, however that the  

percentage of direct recruits in the service does not in any case exceed 15% of  

the total permanent strength of the service.” The words “total permanent” were  

omitted from the first proviso to Rule 8(2) only by the amendment Rules of  

1996 with effect from 15.3.1996.  

25. If Rule 8(2) is to be read in the manner suggested by the promotees, it  

would nullify the decision in O.P.Garg which held that the direct recruits were  

entitled to 15% quota not only in the permanent strength of the service but also  

in the temporary posts. This court in O.P.Garg, apparently did not strike down  

the word “permanent” in the latter part of the first proviso to Rule 8(2) while  

striking down Rule 22(3) and 22(4) as it apparently assumed that rule 8(2) and  

the first proviso thereto were applicable only in a contingency referred to in  

Rule  8(2).  The  rule  making  authority  rightly  understood  the  decision  and  

38

proceeded on the basis that if sub-rules (3) and (4) of Rule 22 were invalid and  

the direct recruits were entitled to 15% quota even in the temporary posts, then  

the word “permanent” should be deleted in the first proviso to Rule 8(2). That is  

why the rule making  authority  while substituting Rule 22 in  the rules in 1996  

in pursuance  of  the   decision  in    O.P.Garg  striking  down  sub-rules  (3)  

and  (4)  of Rule  22,  simultaneously  deleted  the  words  “total permanent”  

from the words  “total permanent  strength  of service”  in  the  first  proviso  to  

Rule 8(2).  The amendment to the first proviso to Rule 8(2) omitting the words  

‘total  permanent’  is  clearly  a  clarification/reiteration  of  the  position  which  

prevailed as a result of the decision in O.P. Garg.  

26. The Division Bench of the High Court has proceeded on the basis that  

this Court in O.P.Garg had no occasion to consider, nor considered the first  

proviso to Rule 8(2) which provided the ceiling for direct recruitment; and  

therefore the ceiling was 15% of the “permanent strength of the service” and  

not cadre strength of the service till the amendment to the Rules with effect  

from 15.3.1996. The said interpretation put forth by the promotees which  

found favour with the division bench of the High Court, is untenable as it  

would amount to ignoring the law laid down in O.P. Garg and nullifying the  

directions in O.P.Garg holding that direct recruits are entitled to 15% quota  

even in temporary posts.  The proviso to Rule 8(2) should be read in the  

39

context of the quashing of Sub-Rules (3) and (4) of Rule 22. If so read, it  

would be clear that when Sub-Rules (3) and (4) of Rule 22 were struck down  

holding that direct recruits were entitled to a quota in temporary posts also,  

the word “permanent” in the first proviso to Rule 8(2) is deemed to have  

been impliedly struck down or omitted by the decision in O.P. Garg. As the  

quota of direct recruits is 15% of the strength of the service, the number of  

appointments  of  direct  recruits  might  have  never  exceeded  their  quota.  

Therefore,  the  second  direction  of  the  Division  Bench  in  the  impugned  

judgment cannot be sustained.  

Re : Question No. (iv)

27. Direction  No.3  in  Srikant  Tripathi is  to  the  effect  that  if  in  each  

recruitment  year  posts  were  available  in  the  quota  of  promotees  and  

promotions  were  not  made even though selections  had been made  under  

Rule 20 then the legitimate right of the promotees cannot be denied and  

promotions must be made with effect from the date they should have been  

appointed. On the other hand, the third direction of the Division Bench of  

the High Court in the impugned order is that while undertaking an exercise  

as per its second direction as to whether direct recruits taken into service or  

in excess of the quota or not,  a  simultaneous exercise has to be done in  

40

compliance  with  direction  No.3 in  Srikant  Tripathi and vacancies  of  the  

quota of promotees shall be deemed to have been filled up from the date  

they were entitled to promotion.

28. The first  part  of the third direction in the impugned order depends  

upon  the  result  of  the  exercise  undertaken  in  pursuance  of  its  second  

direction. We have held that directions 1 and 2 in the impugned order of the  

High Court  are  contrary  to  the  decision  in  O.P.Garg.  In  view of  it,  the  

question  of  undertaking  any  exercise  as  per  the  second  direction  of  the  

impugned order does not arise. All that therefore remains out of the third  

direction in the impugned order is reiteration of direction No.3 of  Srikant  

Tripathi.  The  third  direction  in  the  impugned  judgment  to  the  extent  it  

reiterates direction No.3 in  Srikant Tripathi has to be upheld. There is no  

question  of  unfilled  vacancies  being  carried  forward  for  the  purpose  of  

fixing the number of officers to be taken at the next recruitment. The total  

vacancies to be filled at a recruitment shall have to be filled by applying sub-

rules (1) and (2) of Rule 8 and its provisos. In that sense all vacancies, which  

are not filled by direct recruitment, get filled by promotion and there will be  

no  carry  over.  There  is  only  a  limited  ‘carry  over’  of  unfilled  direct  

41

recruitment  vacancies  in the manner stated in the Rule 8(2) and the first  

proviso thereto.

29. We may illustrate the effect of the directions in Srikant Tripathi with  

reference  to  the  figures  arrived  at  in  the  Report  of  the  Sub-Committee,  

abstract of which is given in the Table in paragraph 6 above (by assuming  

that the figures specified are correct). For 1988 recruitment, the vacancies  

are  shown  as  314,  the  actual  recruitment  is  shown  as  24+3  by  direct  

recruitment and 191 by promotion and the carried forward unfilled vacancies  

as 96. If there were 314 vacancies and what is filled by direct recruitment  

was  27,  the  remaining  287 vacancies  should  be  filled  up  by  promotions  

instead  of  191 having  regard  to  Rule  8(2).  There  is  no  question  of  any  

vacancies  being  carried  forward  for  1990  recruitment,  unless  sufficient  

numbers  of  candidates  are  not  available  for  filling  the  posts  even  by  

promotion  also.  Therefore  the  vacancies  to  be  filled  in  1990  (with  the  

expected vacancies up to 31.12.1992) should be treated as only 44 of which  

promotees’ share would be 37 and share of direct recruits would be 7. As  

only 5 were appointed by direct recruitment, the remaining 39 ought to be  

filled by promotion. In regard to 1998 recruitment, if 15% of strength of the  

service is 120 and the number of direct recruits actually working were only  

42

82,  there  is  nothing  wrong  in  directly  recruiting  38  out  of  the  actual  

vacancies  of  176.  We  have  given  these  examples  with  reference  to  the  

figures  given  by  the  Sub-Committee  in  its  Report  and  it  should  not  be  

assumed that the figures given by the sub-committee have been accepted by  

us to be correct. In fact the figures may have to be re-worked with reference  

to the other directions of the High Court which have been upheld by us.  Be  

that as it may.   

Conclusion  

30. The  1975  Rules  are  vague  and  complicated.  The  four  rounds  of  

litigation are the result of absence of clear and simple Rules. The High Court  

administration had the difficult task of harmonizing the Rules, the directions  

of  this  Court  in  O.P.  Garg and  the  directions  of  this  court  in  Srikant  

Tripathi. The High Court Sub-Committee apparently made a sincere effort to  

implement  the Rules and the directions.  Unless the exercise by the High  

Court through its Sub-Committee (approved by the Full Court of the High  

Court), is arbitrary or is in non-compliance with any specific direction of this  

Court, it will not be open to question.  Be that as it may.

31. In view of our aforesaid findings, we allow these appeals in part as  

follows :

43

(i) Direction Nos. (1) and (2) in para 55 of the impugned order dated  25.8.2004 are set aside;

(ii) Direction No.(3) in para 55 of the impugned order dated 25.8.2004 is  restricted to reiteration of  direction No.3 issued in  Srikant Tripathi  (2001 (10) SCC 237); and

(iii) Direction Nos. (4), (5) and (6) in the impugned order dated 25.8.2004  are upheld.  

(iv) The  consequential  exercise  directed  by  the  High  Court  should  be  restricted to the directions which have been upheld.  

(v) None  of  the  appointments  already  made  to  the  Higher  Judicial  Service,  whether  by  direct  recruitment  or  by  promotion,  shall  be  annulled, but shall be continued, even if the appointment is found to  be in excess of the quota, subject to the condition that the seniority of  such excess appointee will be reckoned from the date on which he  becomes entitled to be adjusted at the subsequent recruitment/s. Any  elevation to the High Court on the basis of seniority already given  shall also not be affected.  

We request the High Court to give a quietus to the long-drawn dispute, by  

giving effect to direction nos.(4) to (6) of the impugned order and direction  

no.(3) in Srikant Tripathi, without any delay.

All pending applications stand disposed of.  

…………………………….J. (R V Raveendran)

New Delhi; …………………………..J.

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September 13, 2010. (Markandey Katju)  

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