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