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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [CIVIL] NO. 576 OF 2003

Rajasthan Judicial Service Officers’ Assn.        ..          Petitioner

-versus-

State of Rajasthan & Anr.             ..   Respondent(s)

With    Writ Petition (Civil) 275/2007

J U D G M E N T

MARKANDEY KATJU, J.

1. This writ  petition under Article 32 of the Constitution of India is  

filed challenging the Notification No. Estt.(RJS)/118/2003 dated 20.10.2003  

wherein  19  posts  for  direct  recruitment  to  the  Rajasthan  Higher  Judicial  

Service (in short `RHJS’) were advertised.  Out of these 19 posts 11 posts were  

shown as current vacancies and 8 posts shown as backlog vacancies.  A true  

copy  of  the  notification  is  Annexure  P-1  to  the  writ  petition.   It  was  

specifically mentioned in the notification that these are subject to orders of the

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Supreme  Court  in  four  SLPs  (subsequently  numbered  as  CA No.  5699  to  

5702/2000) relating to the decision in the case of  Veena Verma.

2. On  19.7.2004  the  learned  counsel  for  the  respondent-High  Court  

stated that the actual appointments pursuant to the impugned notification dated  

20.10.2003 will not be made unless permitted by this Court.  Consequently, it  

is stated that no appointments have been made in pursuance of the impugned  

notification.

3. As noted above, the impugned notification itself mentioned that it  

was being made subject to the decision in Veena Verma’s case.  We have held  

in  Veena  Verma’s case  (in  CA Nos.  5699,  5700  and  5702/2000  decided  

today) that the strength of the service is  as mentioned in Schedule-I  of the  

Rajasthan Higher Judicial Service Rules, and for varying the strength  there  

has to be a specific order under sub-rule (2) of Rule 6.  Mere creation of posts  

without a specific order under Rule 6(2) in our opinion only creates ex cadre  

posts, but  does not amount to varying the strength of the service.  We have  

held in that decision that the Division Bench of the High Court was in error in  

its judgment dated 30.4.1999 in holding that whenever new posts are created,  

the  strength of  the  service  automatically  increases  even though there  is  no  

specific order under Rule 6(2)in this connection amending Schedule-I.   

4. In Veena Verma’s case (supra) we have also held that Rule 9 of the

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Rules  only prescribes  an upper  limit  to  the  quota  for  direct  recruits  in  the  

service, but there is no lower limit, and it is in the discretion of the authorities  

to decide what quota should be given to the direct recruits, provided it is not  

more than the maximum prescribed by Rule 9. Our decision in Veena Verma  

will  apply  to  this  case  also.    

5. No doubt this Court in  All India Judges’ Association & Ors.  vs.  

Union of India & Ors. 2002(4) SCC 247 (vide para 28) has observed that  

25% of the posts in the Higher Judicial should be filled by direct recruitment.  

This  has  been explained  by a  three  Judge Bench of  this  Court  in  a  recent  

judgment  in  Maharashtra  State  Judges  Association  &  Ors.  vs.   The  

Registrar General, High Court, High Court of Judicature at Bombay &  

Anr. (2008 (15) SCALE 320) In paragraph 14 of the said judgment it  was  

observed :

.................“Until the recommendation was accepted  and rules were framed, the integration/caderisation  was a nebulous concept incapable of being claimed  or enforced as a right.”……………….

The  above  observation  in  the  decision  in  Maharashtra  State  Judges  

Association (supra) makes it clear that until the State Government amends the  

rules, the recommendations cannot give any claim for any right.  

6. The petitioner in the present writ petition is an association of judicial  

officers functioning in the State of Rajasthan, and they are aggrieved by the

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impugned  notification  as  they  allege  that  their  chances  of  promotion  get  

reduced by the same.

7. It is alleged in para 4 of the writ petition that draft rules have been  

framed  by  the  High  Court  which  were  sent  for  approval  to  the  State  

Government,  but  pending  the  finalization  of  these  rules,  the  High  Court  

published  the  impugned  notification  for  filling  in  19  posts  of  Additional  

District & Sessions Judges by direct recruitment in the RHJS.

8. According to the petitioner the total cadre strength of RHJS is 150  

and there are already 41 direct recruits working in the RHJS.  Since the total  

cadre strength is 150 and since 25% of the posts were directed by the High  

Court to be filled in by direct recruitment, there were no vacant post available  

for direct recruits since 25% of 150 is 37, while 41 direct recruits were already  

working in RHJS.  Petitioner also submitted that if 19 vacancies should be  

treated as 25% of the direct recruitment then there must be at least 57 fresh  

appointments in RHJS by promotion, but that has not been done.

9. The  petitioner  made  a  representation  dated  3.7.2003  to  the  High  

Court, a true copy of which is Annexure P-2 to the writ petition, and he made  

another representation dated 29.10.2003 to the Chief Justice of the High Court  

praying  for  withdrawal  of  the  impugned  notification.   A  true  copy  of  the  

representation dated 29.10.2003 is Annexure P-3 to the writ petition.  Since the

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aforesaid representations failed to evoke any response the petitioner filed the  

present Writ Petition.

10. Counter  and  rejoinder  affidavits  have  been  filed  and  we  have  

perused the same.

11. It has been stated in the counter affidavit of the High Court that the  

impugned judgment and directions of the Supreme Court in All India Judges’  

Association & Ors.  vs.  Union of India & Ors. (supra) was to streamline the  

cadre  of  Higher  Judicial  Service,  and accordingly  the  Chief  Justice  of  the  

Rajasthan High Court constituted a committee to examine the entire matter.  

The said committee after considering the various aspects suggested the cadre  

strength  as  240  in  the  proposed  new  rules.   The  recommendation  of  the  

committee  was  considered  in  the  Full  Court  which  approved  the  said  

recommendation  and  the  resolution  of  the  Full  Court  on  4.4.2003  was  

forwarded  to  the  State  Government  for  formal  approval.   At  present  this  

recommendation is pending before the State Government.

12. In our opinion, as held by us in  Veena Verma’s  case (supra), the  

cadre strength is only 150 and not 240 because the strength of the service is as  

per Rule 6(2) of the Rajasthan Higher Judicial Service Rules as mentioned in

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Schedule-I  of  the  Rule.   Until  and  unless  the  Schedule  is  amended  in  

accordance with Rule 6(2) the strength of the service cannot be varied, as held  

by us in Veena Verma’s case (supra).  As yet, we are told, no order has been  

passed under Rule 6(2).

13. We have  also  perused  the  counter  affidavit  filed  by  the  State  of  

Rajasthan  and also the  rejoinder  affidavit  filed  in  the  case.   It  is  stated  in  

paragraph 3 of  the  rejoinder  affidavit   that  the  impugned notification  is  in  

violation of the stay order dated 28.9.2000 in Special Leave Petition No.9346  

of 1999,   staying the operation of the order dated 30.4.1999 in DB (c) Spl. Ap.  

410/1998.  It is stated in paragraph 6 of the rejoinder affidavit  that there are as  

on date 220 officers functioning in the cadre of District Judges and Additional  

District Judges and as such there are no existing vacancies.

14. In our opinion, this writ petition has to be allowed.  In view of our  

decision  in  Veena  Verma’s  case  (supra)  it  has  to  be  held  that  under  the  

existing rule the strength of the service of RHJS is 150 and since there are 41  

direct  recruits  already working there is  no substantive vacancy.   Hence the  

impugned notification is illegal and deserves to be quashed.

15. The  writ  petition  is  allowed  and  the  impugned  notification  is

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quashed.  However, we make it clear that it is open to the State Government in  

consultation  with  the  High  Court  to  amend  Schedule-I  to  the  Rules  in  

accordance with Rule 6(2) and thereby vary the strength of the service.

Writ Petition (Civil) 275/2007

16.The Petitioner has filed this Writ Petition seeking a direction to the  

respondents  to  complete  the  selection  process  initiated  under  

notification No. Estt. (RJS)/118/2003 dated 20.10.2003.

17. As  we  have  quashed  the  said  notification  in  WP(c)  No.  

576/2003,  this  Writ  Petition  (WP(C)  No.  275/2007)  is  dismissed  as  

having become infructuous.

                                    ………………………J. (R. V. Raveendran)

……………………….J. (Markandey Katju)

New Delhi; July 07, 2009

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