Rajendra Babu, J. - (1.) In this appeal, b0y 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.
(2.) 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 v. State of U.P., (1991) 2 Suppl. 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 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 list 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.
(3.) 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 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.;