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PETITIONER: RAM KISHORE GUPTA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT:       24/03/1999

BENCH: S.N.Phukan, S.R.Babu

JUDGMENT:

RAJENDRA BABU, J.  :

     In  this appeal, by special leave, the order made by a Full Bench of the High Court of Judicature at Allahabad in a writ petition raising a question as to whether in the matter of  determining the quota of (i) 15% by direct  recruitment; (ii)  30%  from out of the Judicial Magistrates;  and  (iii) 55%  from  out  of the members of the  Nyayik  Sewa  whether temporary  vacancies  in  addition  to  permanent  vacancies should  also be taken note of is challenged.  The High Court in  the  judgment  under  appeal  took  the  view  that  the provision  of  the relevant rules requires that  the  direct recruits  should  not  exceed  15% of  the  total  permanent strength  of  the  service.  On that basis  the  matter  was disposed  of  by  directing  not to appoint  more  than  six persons   amongst  the  candidates   selected   for   direct recruitment  inasmuch as there are only 311 permanent  posts and,  therefore, direct recruits could not get more than 47. The  High  Court  in  those cases  was  concerned  with  the interpretation  of the Uttar Pradesh Higher Judicial Service Rules,  1975.  The effect of these rules was considered by a three  Judge  Bench of this Court in O.P.  Garg &  Ors.   v. State  of U.P.  & Ors., 1991 Supp.  (2) SCC 51.  This Court, after  examination  of the relevant rules, took the view  as follows :-

     We   allow   the  writ   petitions  and   the   civil miscellaneous petition, quash the final seniority list dated August  25,  1988  and  direct the High  Court  to  prepare, circulate, invite objections and finalise the seniority list of  the  service in the light of the findings given and  the observations  made by us in this judgment.  We reiterate our findings hereunder:

     (1)  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 1975 Rules and 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 1975 rules.

     (2)  We strike down first proviso to Rule 26(1)(a)  of the   1975   Rules   and    direct   that   the   continuous

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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 1975 rules.

     (3)  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.

     This  Court  took  the view that  both  temporary  and permanent  service will be taken note of in determining  the quota available for direct recruits.  It was also made clear that  the service consists of permanent as well as temporary posts  and Rule 22 of the Rules required to make appointment to service on the occurrence of substantive vacancies and it would  not  mean that it would exclude temporary  vacancies. The  scheme of the rules indicates that there are  permanent and   temporary  posts  which  are   created  to  meet   the contingencies and they may, no doubt, be made permanent and, therefore,  it cannot be doubted that when appointment under Rule  22 is contemplated substantive vacancies would include both  temporary or permanent but the vacancy must be in  the cadre.   Therefore,  the  decision taken by the  High  Court cannot be sustained at all.  However, on that basis there is no  need  for  us to give any particular direction  in  this present  case  inasmuch  as  during the  pendency  of  these proceedings  on December 16, 1987 an interim order was  made in  this appeal by this Court the relevant portion of  which is reproduced as under :-

     As  it appears 48 temporary posts have been  made permanent  and,  therefore, to the existing permanent  posts these 48 posts are to be added.  The dispute involved in the appeal  is as to whether the temporary posts shall be  taken into account for working out the quota.  Four candidates had been  selected  from  the Bar in 1984  after  complying  the procedure  for recruitment, but on account of the dispute as to  whether the temporary posts shall be taken into  account or  not,  their appointments were not made.  We are  of  the view  that in the facts and circumstances of the case, these four  appointments  should be given effect to and if at  the ultimate  hearing  the court takes one or other view,  these four appointees can be appropriately adjusted.

     There  is apprehension that if these four appointments are  given  effect to at this stage, the promotees  who  may come later may loose seniority.  To clarify the position and to  remove  any  doubt, we direct that even  if  these  four persons  are allowed to join duty, the question of seniority shall  be finally determined by the Court.  The appointments be made within one month from today.

     This  Court  proceeded on the basis that 48  temporary posts  have  been  made  permanent and,  therefore,  to  the

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existing  permanent posts 48 posts have been added.  In view of  the  fact  that 48 temporary posts have  now  been  made permanent  the  four  advocates   selected  should  also  be appointed,  however, subject to the seniority being adjusted at a later stage.  It is now pointed out that originally six direct  recruits  had been selected and appointed  in  1986, whereas  four direct recruits were appointed pursuant to the interim  order  made by this Court on December 16, 1987  and they  appear  to have reported to duty between  January  25, 1988  to  January 27, 1988 and have also been  confirmed  on April  16, 1992.  It appears that during the pendency of the case before the High Court an interim order had been granted on  July 4, 1986 stating that the last four persons selected in  the  direct  recruits  shall not be  appointed  and  the appointment  of the last four persons in the direct recruits was  stayed and by a modification made on September 18, 1986 the  same  was  confined to two general  vacancies  and  two Scheduled  Caste/Scheduled Tribes vacancies.  Subsequent  to the  judgment  of the High Court which was made on  February 10,  1987  55 persons had been promoted on  temporary  basis before the four direct recruits were appointed as ordered by this  Court on December 16, 1987.  Various contentions  have been  raised  as  to  the seniority  of  these  four  direct recruits  and whether they will rank above these 55  persons now  appointed or they should be ranked along with those who were  appointed  in  1986  because these  persons  who  were recruited  subsequently  were entitled to be  appointed  but wrongly  excluded by reason of the interim and final  orders of  the  High Court.  A number of decisions have been  cited before  us as to the manner in which the direct recruits and the  promotees  have  to  be   adjusted  in  the  matter  of seniority.   We are afraid to determine the seniority of the direct  recruits  appointed pursuant to the orders  made  by this  Court on December 16, 1987 viz-a-viz the promotees who are  not  before the Court would be hazardous,  particularly when  the question of seniority was not an issue before  the High  Court out of which this appeal arises.  Therefore,  we must  confine ourselves to the issue before us as to whether these  appellants could have been appointed or not and  they having  been appointed now and in the light of the  decision of  this Court in O.P.  Garg (supra) they ought to have been appointed.   There  is  no  need for us  to  consider  these matters  any more.  It is no doubt true that this Court  has stated  in the interim orders made on December 16, 1987 that to  clarify the position and to remove any doubt, we direct that  even  if these four persons are allowed to join  duty, the question of seniority shall be finally determined by the Court.   This  observation was made not with the object  of determining  the seniority of these four persons over any of the  promotees  or  vice  versa,  but  only  to  offset  any difficulty arising in the matter of adjusting seniority at a subsequent  date.  We are of the view that the proper course is  for  the High Court to determine the seniority of  these persons  on  its administrative side.  In doing so the  High Court will have to prepare, circulate, invite objections and finalise  the seniority of these persons in the light of the law  and  the decision of this Court in O.P.  Garg  (supra), including the present decision as well as the interim orders made  by  this Court pursuant to which appointment of  these four persons has been made.  Let action be taken by the High Court  as  expeditiously  as possible.  This  appeal  stands disposed of accordingly.

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