REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5699 OF 2000

The High Court of Judicature for Rajasthan                ..           Appellant(s)

-versus-

Veena Verma and another        ..       Respondent (s)

And  

Civil Appeal No. 5702 of 2000 Civil Appeal No. 5700 of 2000

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Civil Appeal No. 5701 of 2000  

J U D G M E N T

MARKANDEY KATJU, J.

C.A. Nos. 5699/2000, 5702/2000 & 5700/2000

1. These  appeals  are  directed  against  the  judgment  &  order  of  the  

Rajasthan High Court  dated 30.4.1999 in  D.B. Special  Civil  Appeal  No.  

410/1998. CA No. 5699/2000 is filed by the High Court of Rajasthan, C.A.  

No.5702/2000 is by State of Rajasthan and C.A. No. 5700 is by a promotee  

Judicial Officer.    

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2. An advertisement dated 31.10.1994 was published by the High Court  

inviting  applications  for  being  considered  for  appointment  in  the  RHJS  

against  7  vacancies  including  the  two  vacancies  reserved  for  candidates  

belonging to Scheduled Castes and one vacancy for a candidate belonging  

to  Scheduled  Tribe.   It  was  also  stipulated  in  the  advertisement  that  the  

number of posts could be increased.

3. Civil  Writ  Petition No. 4580/1996 was filed in the Rajasthan High  

Court  by  Ms. Veena Verma, (first  respondent in CA No. 5699/2000) an  

Advocate practicing in Ajmer, who was a candidate for direct recruitment in  

the Rajasthan Higher Judicial Service (‘RHJS’ for short).  She stood 8th in  

the  merit  list  of  the  selection.   In  her  petition  she  claimed that  she  was  

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entitled to be declared selected and appointed as on a correct calculation,  

the  vacancies  for  direct  recruitment  in  the  RHJS in  accordance  with  the  

applicable  rules  came  to  10  and  not  7,  and  the  petitioner  being  the  8 th  

selected candidate was entitled to appointment against the post.  The learned  

Single Judge dismissed the petition by judgment dated 30.3.1998. But by  

the impugned judgment dated 30.4.1999, the Division Bench of the High  

Court has set aside the judgment of the learned Single Judge of the High  

Court and directed the High Court to determine the number of vacancies as  

on 31.10.1994, and if the vacancies were more than seven, then consider  

Veena Verma for the post in RHJS.  

CA No. 5701/2000  

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4. Vide a Notification dated 21.12.1996, applications were invited for  

appointment to eleven posts of RHJS by direct recruitment.  The appellant  

and certain other Chief Judicial Magistrates filed WP No. 139 of 1997 for  

quashing the said notification dated 21.12.1996 on the ground that the said  

number of posts were not available for direct recruitment.  They contended  

that  ad  hoc  and  temporary  posts  were  being  counted  and  added  to  the  

sanctioned strength of RHJS service to create more posts for direct recruits.  

The  said  writ  petition  was  heard  along  with  DB(C)  Special  Appeal  No.  

410/1998.  The said writ petition was dismissed on 30.4.1999 in view of the  

judgment dated 30.4.1999 rendered in DB(C) Special Appeal No. 410/1998.  

The said order is challenged in this appeal.  

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5. The recruitment to RHJS is governed by Rajasthan Higher Judicial  

Service Rules 1969 (“the Rules” for short), as amended from time to time.  

Rule  6  of  the  Rules  provides  for  the  strength  of  the  service  and  also  

provides for varying the strength from time to time.  Rule 9 of the Rules  

provides  that  the  number  of  persons  appointed  to  the  Service  by  direct  

recruitment shall at no time exceed one third of the total strength of service.  

It  is also provided that subject to the aforesaid limit every fourth person,  

after three persons appointed by promotion in the service, has to be a direct  

recruit as far as possible.  Respondent No. 1 Veena Verma contends that on  

a correct application of the aforesaid rules the correct number of vacancies  

in  RHJS  at  the  relevant  time  came  to  10  and  not  7.   She,  therefore,  

submitted that if the vacancies had been correctly calculated by the High  

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Court she would have been among the 10 selected candidates and, therefore,  

would have been appointed as a result of the selection.

6. The appellants, on the other hand, contended that the writ petitioner  

(Veena Verma)  had no legal right to maintain a writ petition for getting  

herself declared to be selected or appointed.  According to the appellants,  

the vacancies had been correctly calculated on a proper interpretation of the  

rules and the appellant had no right to challenge the calculation of vacancies  

as she could not compel the authorities to advertise more posts or to appoint  

more persons than the authorities decided to do.   

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7. The learned Single Judge, after examining the rival contentions, came  

to the conclusion that on a correct interpretation of rule 6 of the Rules, the  

cadre strength can only be changed by orders passed under sub-rule (2) of  

Rule  6.   According  to  the  learned  Single  Judge  the  cadre  strength  is  as  

specified in Schedule-I to the Rules, and it can only be changed by an order  

under Rule 6 (2).  The plea of Veena Verma that there were ten vacancies on  

a proper calculation  on the correct interpretation of the Rules did not find  

favour with the learned Single Judge.  The learned Single Judge found that  

the selection was for a definite number of posts viz. 7 as advertised, though  

the advertisement  mentioned that  the vacancies  could be increased.   The  

learned Single Judge observed that no increase in the vacancies was ordered  

or  effected  by  the  High  Court  and,  therefore,  when  there  were  only  28  

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vacancies in the RHJS, 7 was the maximum posts that could be filled by  

direct recruitment.  Hence, the writ petition of Veena Verma was rejected as  

she was 8th in the merit list.   

8. Veena Verma challenged the order of the learned Singh Judge in DB.  

(C)  Special  Appeal  No.  410/1998.   The  Division  Bench  held  that  posts  

created beyond the number specified in Schedule I to the Rules should be  

treated  to  be an increase  in  strength  under  Rule  6(2).   It  referred  to  the  

number of posts manned by members of RHJS as under:

“We had directed the learned counsel for the High  Court to submit before us date-wise charts showing the  vacancy position from time to time.  The position which  emerges is that at the relevant time, the number of posts  in the RHJS mentioned in Schedule I to the Rules was 89  only against which factually more than 200 persons were  holding  posts  which  were  expected  to  be  manned  by  

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members of the RHJS.  On 31.7.1992, 17 direct recruits  and  66  promotees  were  occupying  posts  in  RHJS  on  substantive basis   whereas a total of 167 officers were  working  in  the  posts  of  RHJs  level  including  those  appointed on substantive basis, officiating basis and ad  hoc basis.  On the date of the advertisement the position  was  that  20  direct  recruits  and  63  promotees  were  working in  the RHJS on substantive  basis  whereas the  total number of officers manning the posts of RHJS level  was  204.   The  statistics  produced  by  the  High  Court  further  shows that  on  31.7.1992,  31  Courts  of  District  

and  Sessions  Judges,  56  Courts  of  Addl.  District  and  Sessions  Judges  and  23  Courts,  which  have   to  be  manned  by Officers  of  the  level  of  members  of  RHJS  were available in the State.  The total courts available for  members of  RHJS officers were 110.  Besides this, there  were 5 family courts and 18 other Tribunals and Courts  expected to be manned by RHJS officers available.  Also  besides  this,  three  posts  were  available  on  deputation  either at the High Court Registry or the State government  and  other  autonomous  bodies.   Thus,  the  total  courts  available  for  being  manned  by  the  RHJS  Officers  by  

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31.7.1992 were 176.  It is true that so far as deputation  on posts which are not to be exclusively manned by the  members  of  RHJS,  the  Government  or  autonomous  bodies are not obliged to take members of the RHJS on  deputation  and,  therefore,  sending  of  officers  to  such  posts  on  deputation  depends  upon  their  acceptance.  Such       posts,  therefore,  cannot  be  counted  while  counting the strength of service.  Even otherwise, such  posts  are  not  created  by  the  Governor  in  consultation  with the court under Rule 6 (2) so that they can be taken  to be variance of the strength of the service under Rule 6  

(2) of the Rules.  However, this is not the case with the  posts  for  which  qualification  for  appointment  itself  is  being  a  member  of  the  judicial  service.   Such  posts  cannot be taken to the posts which are not reckoned for  the  purpose  of  determining  vacancies  for  direct  recruitment.   The position  as  on 31.10.1994,  when the  vacancies were advertised was that, 32 courts of District  Judges,  30  posts  of  Courts  of  Addl.    District  and  Sessions  Judges,  30  posts  of  RHJS level,  5  Consumer  fora,  21  posts  in  Tribunals  and  Boards,  39  posts  for  deputation to the Registry and the State Government, 32  

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posts  in  consumer  fora,  totalling  219  were  available,  167 officers were posted to man them.  Similarly, when  219 posts, which could be filled in by appointment from  the  member  of  the  RHJS  were  available  as  on  31.10.1994, only 203 officers were posted to man them.”  

The Division Bench concluded that in such a situation, not to count such  

posts as are required to be manned by officers of the level of RHJS, for the  

purpose  of  direct  recruitment  on  the  specious  excuse  that  they  were  

temporary  posts  outside  the  cadre  for  temporary  periods  would  not  be  

justified.   The  High  Court  concluded  that  whenever  a  court  is  created,  

whatever be the nature or tenure of the post stated in the order creating it,  

irrespective of whether Rule 6 (2) is mentioned therein or not,  posts will  

have to be deemed to be created under Rule 6 (2) of the Rules enhancing the  

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cadre  strength.   It  therefore  allowed  the  appeal  holding  that  when  the  

advertisement gave the number of posts as seven, but also stated that the  

'number  of  vacancies  are  likely  to  be  increased',  no  finality  could  be  

attached  to  the  number  mentioned  in  the  advertisement  and  the  writ  

petitioner should be given appointment,  if  the number of vacancies were  

actually more than seven.  

9. The  said  order  is  under  challenge  in  these  appeals.   The  State  of  

Rajasthan and the promotee Judicial Officer contend that in the absence of  

an order under Rule 6(2) varying the strength of service, notifications or  

orders  creating courts  cannot  be treated as  increasing  the strength of the  

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service.  On  the  other  hand,  the  High  Court  of  Rajasthan  in  its  appeal  

supports the finding of the Division Bench that any order creating a court  

ought to be deemed as creating a post under Rule 6(2).  The High Court's  

challenge is limited to be direction to increase the advertised vacancies from  

seven.  On the contentions  urged,  the points  arising for decision  are :  (1)  

what  would be cadre  strength  on correct  interpretation  of  the  Rules?  (2)  

whether  the   High  Court  correctly  calculated  the  vacancies  for  direct  

recruitment at the relevant time?; (3) whether the writ-petitioner (Ms. Veena  

Verma)  could  compel  the  High  Court  to  increase  the  vacancies  to  the  

maximum permissible limit under the restrictions provided by the rule and  

to appoint or consider appointment of the appellant-petitioner to a post in  

the RHJS?

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10. Rule 6 of the Rules provide for the strength of the Service.  It reads as  

under :-

“6. Strength of the Service :

(1) The  strength  of  the  service  shall,  until  orders  varying the same have been passed under sub-rule (2), be  as specified in Schedule I.   (2) The strength of the service may be varied by the  Governor  from time  to  time,  in  consultation  with  the  court.  

(3) Notwithstanding  anything  contained  in  sub-rules  (1) and (2), the Governor may, in consultation with the  Court, hold any appointment to the service in abeyance  

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for such time as he deems fit, without thereby entitling  any person to compensation.”

11. Rule 7 of the Rules provides that for the purpose of recruitment to the  

Service  the  principles  and  procedures  of  recruitment  and  promotion  laid  

down shall be followed.  

12. Rule 8 provides that recruitment to the Service shall be made; (i) by  

promotion from amongst the members of the Rajasthan Judicial Service or  

(ii) by direct recruitment from the advocates practicing in the court or courts  

subordinate thereto for a period of not less than seven years.  

13. Rule 9 provides for appointment to the Service.  It reads as under:

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“9. Appointment to the service:-

(1) Subject  to  the  provisions  of  these  rules,  appointment of persons to the service shall be made by  the Governor on the recommendation of the court made  from time to time;

Provided  that  the  number  of  persons  appointed  to  the  service by direct recruitment shall at no time exceed one  

third of the total strength of the service.   

(2) Subject  to  the  provisions  of  sub-rule  (1),  after  every three persons appointed by promotion, the fourth  person shall,  as far as possible,  be appointed by direct  recruitment.   If  a  suitable  person  is  not  available  for  appointment by direct recruitment, the post may be filed  by  promotion  from  amongst  the  members  of  the  Rajasthan Judicial Service.”

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14. Rules  6,  7,  8  and  9  provide  the  scheme  of  recruitment.    The  

proportion  of  promotees  and  direct  recruits  in  the  RHJS  has  to  be  

maintained in accordance with rule 9.  Rule 9 provides two things: (i) the  

number of persons appointed to the Service by direct recruitment shall at no  

time exceed one third of the total strength of the service.  Thus, a maximum  

limit of one third at any given point of time is provided for appointment of  

direct  recruits  in  the  Service  in  the  RHJS;  (ii)  after  every three  persons  

appointed  by  promotion,  the  fourth  person  shall,  as  far  as  possible,  be  

appointed  by  direct  recruitment.   The  proportion  has  to  be  maintained  

keeping in view the total strength of the service.   

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15. The  strength  of  the  service  as  per  Rule  6(1)  is  that  specified  in  

Schedule-I  until  orders  varying  the  same are  passed  under  sub-rule  (2).  

Sub-rule (2) of rule 6 provides that the strength of the service may be varied  

by the  Governor  from time to  time in  consultation  with  the Court.   The  

question arises as to whether the strength of the service can be taken to be  

varied by the Governor creating courts of Addl. District Judges or naming  

the places where such courts are to be established,  in consultation with the  

Court  without  specifically varying the strength of the service under Rule  

6(2).   In our opinion the answer has to be in the negative.  

16. The  writ-petitioner  contended  that  neither  an  amendment  of  the  

Schedule to the Rules, nor an order under Rule 6(2) was  necessary, and by  

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creation  of  courts  or  posts,  the  strength  of  the  service  is  deemed  to  be  

varied.    The promotees,  however,  submitted  that  the  proper  and correct  

construction to be put on Rule 6 would be that mere orders creating posts in  

the RHJS exceeding the number of posts mentioned in the Schedule cannot  

be  taken  to  be  orders  passed  under  sub-rule  (2)  of  Rule  6  varying  the  

strength of the service.  

17. It was pointed out on behalf of the respondents that the term ‘member  

of the Service’ has been defined in Rule 3 (f) of the Rules to mean a person  

appointed in a substantive  capacity to  a post  in the  service.   It  was also  

pointed out that Rule 22 provides for temporary or officiating appointment  

of a person from amongst the persons who are eligible for appointment to  

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the Service by promotion under clause (1) or under rule 8 when temporary  

or permanent vacancies occur.   

18. It was submitted on behalf of Veena Verma, the writ petitioner, that  

in the advertisement in question, though 7 posts were mentioned it was also  

stipulated  that  the  posts  advertised  may  be  increased.   Hence  it  was  

submitted that the advertisement was not for 7 posts only.  It was further  

submitted that the respondents wrongly advertised only 7 posts and, in fact,  

10 posts should have been advertised.

19. It was submitted that the direct recruits have a quota of 33% in the  

total cadre strength.  In the schedule to the Rules, the cadre strength has  

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been specified as 89, out of which only 19 posts were held by the direct  

recruits.  In fact, 33% of 89 posts is around 30 since 19 posts were held by  

the  direct  recruits.   Hence  it  was  contended that  at  least  10  more direct  

recruits were required to be taken in the cadre of RHJS.  It is submitted that  

this was precisely the reason why although seven posts were mentioned in  

the  advertisement,  a  rider  was  put  that  the  posts  advertised  may  be  

increased.    After  the  selections  were  held,  in  which  the  petitioner  also  

appeared, a list of selected candidates was prepared and the list prepared by  

the Selection committee was placed before the Full Court.   

20. The  writ-petitioner  asserted  that  in  the  select  list  prepared  by  the  

Selection Committee, her name finds place at serial No. 8.  The Full Court  

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considering that only seven posts were to be filled, considered the case of  

the  first  seven  candidates  in  the  merit  list  and  recommended  them  for  

appointment to the Governor.  The writ-petitioner further contended that the  

petitioner is being denied appointment on wrongful interpretation of Rule 6  

of the Rajasthan Higher Judicial Service Rules, 1969.

21. The appellant contested the writ petition filed by the petitioner and  

strenuously urged that the writ  petitioner had applied knowing fully well  

that the selections were limited to seven posts only.  The mere inclusion of  

the  words  in  the  advertisement  that  “the  number  of  posts  is  likely  to  

increase” does not  mean that  she can take it  for granted that  a selection  

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which was advertised for seven posts, was intended for more posts.   We  

agree  with  this  contention.   Since  only  7  posts  were  advertised  only  7  

appointments could be made.  However,  even assuming that  more than 7  

appointments  could  be  made,  since  the  Full  Court  of  the  High  Court  

recommended only 7 persons the Government  could not appoint more than  

7.

22. The  practice  followed  by  the  authorities  in  recruitment  was  that  

vacancies  in  the  RHJS  were  determined  for  filling  every  fourth  post  by  

direct recruitment and these were advertised.  At the relevant time, when the  

vacancies  were  advertised  in  the  quota  of  direct  recruits,  there  were  28  

vacancies, therefore seven posts  were advertised for direct  recruitment in  

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RHJS.   Hence  in  our  opinion  advertisement  of  seven  vacancies  was  

rightfully  done.  The  Selection  Committee  was  called  upon  to  make  the  

recommendation  for  seven  posts.   The  list  forwarded  by  the  Selection  

Committee  was  considered  and  all  the  seven  persons  who  were  

recommended by the Selection Committee were recommended by the Full  

Court to be appointed.  

23. It may be noted that Rule 9 prescribes the maximum quota for direct  

recruits, but there is no minimum quota.  It is entirely in the discretion of the  

authorities concerned to decide how much percent of the total vacancies in  

RHJS will be allotted to direct recruits, provided the maximum prescribed is  

not exceeded.    

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24. As regards the process of selection and the provision for keeping a  

list  ready  for  appointment  on  the  fourth  post,  in  our  opinion  the  writ-

petitioner had no right to get appointment since the advertisement was only  

for seven posts and the writ-petitioner has not challenged the advertisement.  

We  extract  below  the  resolution  of  the  full  court  of  the  High  Court  

recommending seven candidates for appointment to RHJS:  

“Having  considered  the  recommendations  of  the  Committee  constituted under Rule 20 (2) of the Rajasthan Higher Judicial  Service  Rules,  1969,  resolved  to  accept  unanimously  the  recommendations  and  to  send  the  names  of  the  following  selected candidates, arranged in order of merit to the Governor  for appointment to the Rajasthan Higher Judicial Service :

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1Shri Bulaki Das Saraswati (Bikaner) 2Shri Shashital Gupta (Dholpur) 3Smt. Usha Dube, (Udaipur) 4Shri Mahendra Kumar Maheshwari (Ajmer) 5Shri Vishnu Kumar Mathur (Jaipur) 6Miss Anuradha Sharma (Bhilwara)

7Shri Sukhpal Bundel (SC) (Dausa).”

The writ-petitioner’s name was not in  list of candidates recommended by  

the Full Court.  

25. The appellants also point out that the advertisement only stated  that  

the number of posts could be increased, but no such increase in fact was  

made.  We are of the opinion that the Court cannot issue a mandamus to  

increase the posts.  The High Court had appointed a Committee to determine  

the vacancies for the period 1.8.1991 to 31.7.1992.  The Committee reported  

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that  28  vacancies  had  occurred  during  the  said  period.  On  the  

recommendation of the said Committee, the Full Court of the High Court  

resolved on 29.9.1993 that 7 vacancies were to be filled by direct recruits.  

The said resolution is extracted below:  

“Having  considered  the  report  of  the  promotion  committee,  resolve  that  seven  

vacancies are determined for direct recruitment to  the RHJS cadre keeping reservation for Schedule  Castes/Scheduled Tribes as per rules”.

26. It is evident that the selection was only for 7 posts.  In the Full Court  

Resolution it was nowhere mentioned that the posts were likely to increase.  

Subsequent ad hoc promotions were for subsequent vacancies and for that  

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there was a fresh advertisement.  In our opinion, the writ petitioner could  

not have any claim to be appointed against future vacancies in view of the  

decision  in  Shankarsan  Dash vs.  Union  of  India AIR 1991  SC 1612,  

wherein it was observed:   

“We,  therefore,  reject  the  claim  that  the  appellant  had  acquired  a  right  to  be  appointed  

against  the  vacancy  arising  later  on  the  basis  of  any of the rules”

27. We cannot  agree with the view of the Division Bench of the High  

Court  that  creation  of  posts  beyond  the  cadre  strength  mentioned  in  

Schedule-I automatically implies increase in the strength in service under  

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sub-rule (2) of Rule 6 of the Rules.  It may be noted that under sub-rule (2)  

of rule 6, the strength of the service may be varied by the Governor from  

time to time in consultation with the High Court.  No such order has been  

passed under sub-rule (2) of Rule 6.  Without such an order it cannot be said  

that the strength of the service has been increased.   It may be mentioned  

that posts can be created de hors the cadre of a service, and these are known  

as ex cadre posts.  The posts created without a specific order under Rule  

6(2) are ex cadre posts.  Hence in our opinion the temporary or permanent  

vacancies  or  posts  created  beyond  the  number  of  posts  in  Schedule-I  

without a specific order under Rule 6(2) varying Schedule-I to the Rules are  

only ex cadre posts,  and can only be filled in  by promotees,  and not  by  

direct recruitment.

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28. It may be noted that Rule 9(2) uses the words ‘as far as possible’.  In  

our opinion, this means that there is no hard and fast rule that after every  

three persons appointed by promotion, the fourth person has to be appointed  

by direct recruitment.  In our opinion, the Division Bench of the High Court  

has given a wrong interpretation of Rule 9(2) of the Rules by observing  “it  

does not give a licence to the respondents to refuse to appoint every fourth  

person by direct recruitment on the ground that it was not possible for any  

other  reason  than  the  maintenance  of  the  limit  of  one  third  of  the  total  

strength imposed by sub-rule (1) of Rule 9 on direct recruitment”.  In our  

opinion this is a wrong view taken by the Division Bench of the High Court  

as is evident  from the words ‘as far as possible’ in Rule 9(2).  These words  

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give a discretion to the authorities, and the Court cannot interfere with this  

discretion, unless it is palpably arbitrary.  

29. In our opinion, the Division Bench of the High Court erred in law in  

holding  that  for  the  purpose  of  direct  recruitment  the  temporary  or  

permanent  posts  created  outside  the  cadre  without  amending  Schedule-I  

were also to be included while calculating the strength of the service.  

30. The Division  Bench also  erred  in  holding  that  whenever  posts  are  

created, the strength of the service is deemed to have been automatically  

increased  although  there  is  no  order  under  Rule  6(2)  in  this  connection  

amending Schedule-I.  In our opinion, there has to be a specific order under  

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Rule 6(2) amending Schedule-I otherwise it cannot be  said that the strength  

of the cadre has been increased.  Hence, in our opinion, the temporary or  

permanent  posts  created  outside  the  cadre  cannot  be  taken  into  

consideration for determining the strength of the cadre.

31. For the reasons given above, CA No. 5699, 5702 and 5700 of 2000  

are allowed.  The impugned judgment of the High Court is set aside and the  

order  of  the  learned  Single  Judge  dismissing  the  writ  petitions  filed  by  

Veena Verma stands restored.  There shall be no order as to costs.

32.  Consequently,  CA No.  5701/2000  is  also  allowed.   As   the   High   

Court dismissed WP No. 139/1997 without examining the case on merits, in  

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view  of  its  judgment  in  the  case  of  Veena  Verma,  the  order  dated  

30.04.1999  in  WP  No.  139/1997  is  set  aside  and  the  writ  petition  is  

remanded to the High Court for disposal on merits in accordance with law.   

………………………J.

(R. V. Raveendran)

……………………….J. (Markandey Katju)

New Delhi; 07 July, 2009

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