Devi Prasad Singh, J. - (1.) THE dispute between the promotees and direct recruits in the cadre of Higher Judicial Service of the State of Uttar Pradesh, has been the unending process since decades. Either side being the member of same fraternity, has been approaching for judicial review of the action of the High Court on one or the other ground but it appears that for one or the other reasons may be, for some fault on the part of the High Court to adjudicate the controversy, justice has not been done. In pursuance of the order of Hon'ble Supreme Court to decide the dispute within six months, the present Division Bench has been constituted by Hon'ble the Chief Justice of this Court to settle the law on the question involved in the writ petition.
(2.) IT is the irony of fate that those, who impart justice to citizens or litigants, are not satisfied for one or the other reason resulting in multiplicity of litigation with regard to seniority and consequential benefits in the cadre of Higher Judicial Service (in short HJS). The petitioners were selected for the post of Munsif Magistrate in accordance with Rules and joined on the said post on 29.8.1978. According to petitioners' counsel, on 30.4.1987, the petitioners were promoted to the post of Civil and Assistant Sessions Judge. In the quota of promotees in HJS cadre, the petitioners became eligible for promotion against available vacancies in 1994. In accordance with Full Court Resolution of High Court as admitted by the respondent No. 2 in its affidavit dated 6.12.2007, the petitioners candidature was approved for promotion under Rule 20 of Uttar Pradesh Higher Judicial Service Rules, 1975 (in short 1975 Rules). In pursuance of sub -rule (3) of Rule 22 of 1975 Rules, the petitioners were promoted as Additional District and Sessions Judge on 15.6.1996. It shall be relevant to take note of the fact that Rule 22 was amended by 4th amendment on 15.3.1996. The promotional order dated 27.5.1996 (Annexure No. 3 to the writ petition), is of temporary nature. In pursuance of the order dated 5.12.1998, the petitioners were regularly promoted as Additional District Judge under Sub -rule (1) of Rule 22 of 1975 Rules and they were placed in the seniority list dated 24.8.2007 at serial Nos. 334 and 347 respectively. The petitioners were given seniority from December, 1998 from the date of their regular promotion though, they were shown to have been promoted in June, 1996. It has been submitted by the petitioners counsel that the original promotional order dated 27.5.1996 was passed in pursuance of Service Rule against the vacancies of 1992 -94 within the quota of promotees. Submission is that the order dated 27.5.1996 (Annexure No. 3 to the writ petition) was passed in pursuance of sub -rule (3) of Rule 22 of the 1975 Rules as a measure of temporary arrangement but it was passed within the promotees quota. It shall be appropriate to reproduce the relevant portion from the order dated 27.5.1996 (Annexure No. 3 to the writ petition) as under: JUDGEMENT_371_ADJ2_2011Image1.jpg It has not been disputed by the learned counsel for the respondents that the promotion was done within the quota prescribed for promotees in the HJS cadre. The petitioners promotion against the vacancy of 1992 -94, done vide order dated 27.5.1996, seems to have been reiterated while making regular promotion by notification dated 5.12.1998 (Annexure No. 4 to the writ petitioner). Relevant portion of the notification dated 5.12.1998, is reproduced as under: "GOVERNMENT OF UTTAR PRADESH Appoint Section -4 No. 2989/2 -4 -98 -32 (1)/98 Lucknow, dated 5 December, 1998 NOTIFICATION APPOINTMENT For the vacancies of the year 1992 -94 in U. P. Higher Judicial Service, the Governor on the basis of advice/recommendation of Hon'ble High Court provide regular appointment under Rule 22 (2) of U.P. Higher Judicial Service Rules, 1975 to the following officers of U.P. Nyayik Sewa, against whose names the word "Promotion" has been used, at the place mentioned against their names from the date of their taking over charge and also appoint by direct recruitment/selected from the Bar, against whose names the word "Direct Recruitment" has been used under Rule 22 (2) of the U.P. Higher Judicial Service Rules 1975 in the Districts mentioned against their names in the following table from the date of their taking over charge in the following manner:"
(3.) THE dispute arose with the release of impugned seniority list dated 24.8.2007 (Annexure Nos. 1 to the writ petition) whereby the petitioners have been placed at serial No. 334 and 347 respectively by reckoning their seniority from December, 1998 which seems to have been done from the regular promotion order dated 5.12.1998 (Annexure No. 4 to the writ petition), ignoring the petitioners claim for the reckoning of seniority from the date of temporary promotion from 1996 though, it was done against the vacancy of 1992 -94 or from the year 1992 -94 when the vacancy originated from the promotees quota. On the other hand, in the seniority list, the direct recruits of HJS cadre (respondent No. 3 to 13) who were 11 in number, joined service in the year 1994 and have been placed en bloc at serial Nos. 255 to 265. These direct recruits were selected within their quota against vacancies of the year 1988. Five direct recruits (respondent Nos. 14 to 18) were selected against the vacancy of 1990 and in the year 1996. They joined in the HJS cadre in August, 1996 i.e., two months after the petitioners promotion. They have been placed en bloc in the impugned seniority list at serial Nos. 28 to 287. Four candidates (respondent Nos. 19 to 22) selected under SC/ST quota as direct recruits who joined in August, 1997, have been placed en bloc in the impugned seniority list at serial Nos. 285 to 288. Nineteen direct recruits (respondent No. 23 to 41) against the quota/vacancies of 1992 -94 selected and appointed in HJS cadre in the year 1998, joined service after two and half years than the petitioners but they have been further placed en bloc in the seniority list at serial Nos. 289 to 300 and 302 to 316 alternatively.;