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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 206 OF 2007

V.K.SRIVASTAVA & ORS.                     Petitioner(s)

                     VERSUS

GOVT.OF U.P.& ANR.                        Respondent(s)

WITH  W.P.(C)NOS.36/2008, 236/2007, 295/2007 AND I.A.NO.1/07 IN  I.A.204/07 IN W.P.(C)NO.1022/1989

O R D E R

W.P.(C)No.36/2008:

Learned senior counsel for the petitioners seeks permission to

withdraw the  writ  petition.   Permission  sought  for  is  granted.   The  writ

petition is  dismissed as withdrawn without prejudice to the rights of the

petitioners to seek other appropriate remedies with regard to their seniority.

 W.P.(C)Nos.206/2007, 236/2007, 295/2007 & I.A.NO.1 in I.A.NO.204/2007:

The petitioners in these writ petitions and Interim applications

are  members  of  the  Uttar  Pradesh  Judicial  Service.   Writ  Petition

No.236/2007  and  I.A.No.1/07  in  I.A.No.204/2007  are  filed  by  the

U.P.Judicial Officers Association.

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In All India Judges' Association& Ors. Vs. Union of India & Ors.,

(2002) 4 SCC p.247, this Court has directed that promotion to the cadre of

Higher  Judicial  Service  should  be  streamlined   based    on  the

recommendations of  Justice Shetty

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Commission.  Prior to the directions given by this Court for filling up the

vacancies in the cadre of Higher Judicial Service there were only two sources

i.e. one by promotion from the cadre of Civil Judge (Senior Division) i.e. the

members  of  the  Subordinate  Judicial  Service  and  the  other  by  direct

recruitment as per Article 233 of the Constitution of India from the members

of the Bar.  This Court felt that the members of the subordinate judiciary

should  also  be  given  a  fast  track  promotion  and  those  who  are  more

meritorious in service should be given an opportunity to compete for the

posts  of  higher  judicial  services  apart  from  the  ordinary  channel  of

promotion  on  seniority.   To  give  opportunity  to  the  subordinate  judicial

officers  from getting  early  promotion  to  the  Higher  Judicial  Service,  this

Court has directed that 25% of the vacancies of Higher Judicial Service shall

be  filled  up  by  a  competitive  examination  and  the  Civil  Judge  (Senior

Division) who are in the feeder category shall be given  an opportunity to get

such promotions.  Keeping in view, the following direction was given by this

Court :

“.....At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judge and District Judges.  While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and  the  process  of  recruitment  is  to  be  by  a  competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the  subordinate  judicial  officers  for  promotion  to  the  Higher Judicial Service.  Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete  with  each  other  so  as  to  excel  and  get  quicker promotion.   In  this  way,  we  expect  that  the  calibre  of  the members of the Higher Judicial Service

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will further improve. In order to achieve this, while the ratio of 75 per  cent appointment  by promotion and 25 per  cent by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned : 50 per cent of the total  posts  in  the  Higher  Judicial  Service  must  be  filled  by promotion on the basis of principle of merit-cum-seniority.  For this purpose, the High Courts should devise and evolve a test in order  to  ascertain  and  examine  the  legal  knowledge  of  those candidates and to assess their continued efficiency with adequate knowledge of case-law.  The remaining 25 per cent of the posts in the service shall  be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.

As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be :

1(a)50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;

(b) 25  per  cent  by  promotion  strictly  on  the  basis  of  merit through limited competitive  examination of Civil  Judges (Senior Division) having not less than five years' qualifying service; and

(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts;

(2) Appropriate  rules  shall  be  framed as  above  by  the  High Court as early as possible.”  

This Court has stated that the quota for promotion to the Higher

Judicial Service is 50 per cent from amongst the Civil Judges (Senior Division)

on the basis of principle of merit-cum-seniority and 25 per cent strictly on

the basis of merit through limited competitive examination and 25 per cent

by direct recruitment.

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Subsequent to this decision, the Government of Uttar Pradesh, in

consultation  with  the  High  Court,  has  amended  the  U.P.Higher  Judicial

Service Rules on 9th January, 2007.  Prior to the amended rules, for filling up

the vacancies of Higher Judicial Service there were only two sources i.e. 85

per cent of the posts would be filled up by promotion based on the principle

of seniority-cum-merit and 15 per cent of the vacancies were to be filled up

by direct recruitment from the members of the Bar.  After the judgment of

this Court in All India Judges' Association Case (supra), rules were framed to

make it in accordance  with the directions given by this Court.   Thus, there

were three sources of recruitment i.e. (i)50 per cent of the vacancies are to

be filled up by promotion from Civil Judges (Senior Division) on the basis of

principle of merit-cum-seniority and passing a suitability test;(ii) 25 per cent

by promotion strictly on the basis of merit through a limited competitive

examination of  Civil Judges (Senior Division) having not less than five years

qualifying service; and (iii) by direct recruitment from amongst the advocates

of not less than seven years experience.  Though these rules were notified

on 9th January, 2007 it was specifically stated that the amended rules would

come into effect from 21.3.2002.  It may be noted that the judgment of this

Court in All India Judges' Case (supra) was pronounced on 21.3.2002.

The grievance of these petitioners is that these rules which have

been  published  on  9th January,  2007  should  not  have    been   given

retrospective effect and since retrospective effect   had   been   given    to

these rules, it has seriously

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prejudiced the rights of the petitioners.  According to these petitioners, the

vacancies of District Judges which had arisen prior to 21.3.2002 should have

been filled up on the basis of unamended rules and the recruitment which

had taken place based on the amended rules has affected the vested rights

of the petitioners.  It is argued that had these vacancies been filled up on the

basis of the unamended rules, at least some of the petitioners would have

got promotion as of right and not based on the principle of merit-cum-

seniority which is incorporated in the amended rules.  It was also argued

that prior to the commencement of these rules 85 per cent of the vacancies

could  have  been  filled  up  by  promotion  from the  cadre  of  Civil  Judges

(Senior Division) to the post of District Judges whereas as per the amended

rules  only 75 per cent of the Civil  Judges (Senior Division)  would get  an

opportunity to get promotion to the Higher Judicial Service.  It was further

argued that when service rules for selection for appointment were amended

it would always take place prospectively and retrospective effect shall not be

given so as to prejudice the vested rights of the candidates.   

We do not find much force in the contention advanced by the

petitioners especially in view of the information furnished by the High Court

as regards the recruitment that had taken place in the year 2008. Prior to

20.3.2002, there were 22 posts of District Judges that could be filled up and

out of these 22 posts of District Judges if the 85 per cent was taken as per

the then existing rules, 19 posts had to be filled up by promotion from the

cadre of Civil Judges (Senior Division) and three posts had to be filled up by

recruitment from the Bar.  Also there were 328 vacancies to be filled up and

we are told that the selection process had already been over and the High

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Court has recommended for appointment of 245 candidates.  The break-up

of the candidates as per the selection, which is mentioned by the High Court

is as follows :

170 candidates had to be given promotion based on the principle of

“merit-cum-seniority” from the Civil Judges (Senior Division) to fill up 50 per

cent of vacancies and all the 170 vacancies had been proposed to be filled

up and for the 25 per cent of promotion of Civil  Judges (Senior Division)

based on merit none was found suitable and these 76 posts also were added

to the 50 per cent and the total number of 245 candidates in the cadre of

Civil Judges (Senior Division) had been now proposed to be promoted to the

cadre of District Judges and 82 direct recruits of District Judges have been

selected from the bar and that also is proposed to be appointed and a total

of 286 candidates have been included in the list of candidates who are to be

promoted.

Learned  senior  counsel  appearing  for  the  petitioners  had  also

contended that prior to the amendment of these rules, the promotion to the

cadre of District Judges was based on the principle of “seniority-cum-merit”

and now as per the amended rules, pursuant to the directions of this Court,

the principle has now been changed to “merit-cum-seniority”  and   this

has seriously affected the rights of the members of the Civil Judges (Senior

Division).  However, learned senior counsel appearing for the State of Uttar

Pradesh has  contended that in the process of promotion, merit alone was

not being given importance. Even if the principle of merit-cum-seniority has

to be applied the principle is that if the candidates are eligible for promotion

to the cadre of District Judges the seniority in the feeder category has to be

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maintained as regards 50 per cent of the promotions are concerned.  Of

course, in the case of 25 per cent promotions, the test must be rigorous as

held by this Court and the promotion under the 25 per cent category of Civil

Judges (Senior Division) to the category of District Judges be strictly on merit

and  that  too  subject  to  the  rigorous  selection  and  such  candidate  may

supersede some of their colleagues in the feeder category i.e. Civil Judges

(Senior Division).   Going by the information submitted by the High Court

regarding  the  2008 selection,  we  are  satisfied  that  the  rules  have  been

complied with.  Of course, as regards other objections, if any, we are not

expressing anything on merits as the recommendation itself is not under

challenge before us.  Resultantly,  we do not find any merit in these writ

petitions and the applications and the same are disposed of accordingly.   

...............CJI. (K.G. BALAKRISHNAN)

.................J.     (P. SATHASIVAM)

.................J.     (J.M. PANCHAL)

NEW DELHI; 4TH SEPTEMBER,  2008.