KULDIP SINGH - (1.) BEFORE us are the members of Uttar Pradesh Higher Judicial Service (hereinafter called the 'Service'). Promotees and the direct recruits, as usual, are in the fray. This is their second round of litigation in this Court. Earlier in P. K. Dixit v. State of U. P., (1988) 1 SCR 398, this Court directed the preparation of fresh seniority list in accordance with the observations made, therein. The Allahabad High Court thereafter framed and circulated final seniority list of the service on 25/08/1988. Both promotees and direct recruits are not satisfied with the same. They have challenged the said seniority list, inter alia, on the ground that it is not in conformity with the directions of this Court in Dixit's case.
(2.) WE may briefly state the necessary facts. The service was initially governed by statutory rules called the Uttar Pradesh Higher Judicial Service Rules, 1953 (hereinafter called '1953 Rules'). Recruitment to the service under the said rules was from two sources, by promotion and the direct recruitment. In Chandra Mohan v. State of Uttar Pradesh, (1967) 1 SCR 77 this Court struck down the 1953 Rules so far as the said rules provided direct recruitment to the service. As a consequence there was no direct recruitment to the Service till the year 1975-76. The members of the service promoted under the 1953 rules were designated as Civil and Sessions Judges. On 8/05/1974 the Uttar Pradesh Higher Judicial Service (Abolition of Cadre of the Civil and Sessions Judges) Rules, 1974 (hereinafter called '1974 rules') came into force. Under these rules the cadre of Civil and Sessions Judges was abolished. Rules 2 and 3 of 1974 Rules, which are relevant, are reproduced hereafter: 2. Abolition of the Cadre of Civil and Sessions Judges. - With effect from the date of commencement of these rules, the cadre of Civil and Sessions Judges shall stand abolished and the Uttar Pradesh Higher Judicial Service shall, with effect from the said date, consist of the posts of District and Sessions Judges and Additional District and Sessions Judges only. 3. Creation of posts and confirmation- (1)Upon the abolition of the cadre of Civil and Sessions Judges, permanent and temporary posts of additional District and Sessions Judges equal in number of the permanent and temporary posts, respectively of Civil and Sessions Judges existing immediately before the date of commencement of these rules shall stand created with effect from the said date, and the officers holding the posts of Civil and Sessions Judges immediately before the said date shall become Additional District and Sessions Judges and be designated accordingly. (2) An officer who is confirmed on the post of Civil and Sessions Judge before the commencement of these rules shall with effect from, the date of such confirmation, be deemed to be confirmed on the post of Additional District and Sessions Judge. It is, thus, obvious that the cadre of Civil and Sessions Judges stood abolished and a new cadre of Additional District and Sessions Judges, consisting of permanent and temporary posts equal in number of the permanent and temporary posts respectively of Civil and Sessions Judges, came into existence under the 1974 Rules. The Civil and Sessions Judges holding permanent or temporary posts in the Service were re-designated as Additional District and Sessions Judges with effect from 8/05/1974, the date when the 1974 Rules were enforced. On that date 271 officers were working as Additional District and Sessions Judges against 235 posts (153 permanent and 82 temporary) in the Service.
(3.) THE Service was reconstituted and given a fresh-look by the rules framed under Article 309 read with Article 233 of the Constitution of India called the Uttar Pradesh Higher Judicial Rules, 1975 (hereinafter called 'the 1975 Rules'). THEse rules came into force with effect from 5/04/1975. THE relevant Rules 5, 6, 8 and 26 are reproduced hereinafter: 5. Sources 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 Magistrates, 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. Explanation.- When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken into account in computing the period of seven years under clause (a). Quota.- Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be- JUDGEMENT_51_SUPP2_1991Html1.htm 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. (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 vacancie 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 10/05/1974 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 Per Cent by direct recruitment. (ii) 30 Per Cent from out of the Judicial Magistrates; (iii) 55 Per Cent from out of the members of the Nyayik Sewa. 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-a-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 from 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 ... .... 6. Statement of facts filed by the High Court shows that on 5/04/1975, when the 1975 Rules came into force, there were 229 permanent and 7 temporary (total 236) posts in the service. This total included 31 temporary posts mentioned in second proviso to Rule 8(2) of 1975 Rules. By that date these posts had become permanent. The statement further shows that 263 officers were working as Additional District and Sessions Judges on the said date. We take it that there were 236 posts in the Service on the commencement of the 1975 Rules. ;