B. M. Lal, J. - (1.) BY present petition under Article 226 of the Constitution of India, petitioner has prayed for issuance of an order, direction or writ quashing the Full Court resolution dated 6-4-91 so far as it recommends the names of more than five candidates for the appointment to the U. P. Higher Judicial Service and the Full Court resolution dated 25-7-92 so far as it approves the names of additional sixteen candidates for the appointment to the U. P. Higher Judicial Service.
(2.) IN short the case of the petitioner is that in pursuance of the advertisement dated 26-7-89 (Annexure-2 to the writ petition), petitioner applied for recruitment to the U. P. Higher Judicial Service (hereinafter referred to as the Service). It is submitted that the advertisement was made for selection of five candidates but ultimately by Courts resolution dated 6-4-91 names of 9 direct recruits were approved for appointment to the service and further by an other resolution dated 25-7-92 approval of 16 additional candidates was granted by the Full Court. Learned counsel for the petitioner contended that selection and approval of more than five candidates for (appointment In the Service against the advertisement for five candidates is violative of Articles 14 and 16 of the Constitution of India. Learned counsel for the petitioner further contended that the Rule 6 of the Uttar Pradesh Higher Judicial Service Rules 1975 (for short the Rules) deals with the quota for various sources of recruitment and Rule 8'of the Rules deals with the number of appointments to be made but the impugned selection and approval have bean done without adhering to the provisions of these Rules, in as much as the selection process commenced without determining the actual vacancies to be filled in by direct recruits.
(3.) IN support of his contentions, learned counsel relied upon the decision of this Court in Dr. R. C. Gupta v. Chancellor Kumaun University, Rajbhawan Lucknow, 1982 UP LB EC 519, and a decision of apex Court in Hoshiar Singh v. State of Haryana., AIR 1993 SC 2606, and another decision of apex Court in O. P. Garg v. Skate of U. P., AIR 1991 SC 1202. At the outset it appears just and proper to have the provisions of Rules 6 and 8 of the Rules and they are as follows : "6. Quota-Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be- (i) direct recruitment from the Bar 15% (ii) Uttar Pradesh Nyayik Sewa 70% of 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 wiith 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 Magistrates 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 :-(I) 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 nuimber of recruits decided by the Court to be taken from that source, the count may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa : Provided that the cumber 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 he raised accordingly, so, however, that the percentage of direct recruits in the service does not in any case exceed 15 percent 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 percent 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 percent 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 at 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." ;