K. Jagannatha Shetty, C. J. - (1.) THIS writ petition raises an important question as to the maximum number of direct recruits to be taken to the Higher Judicial Service ('H. J. S.' for short) in the State of U. P. Petitioner no. 1 is the member of the U. P. Judicial Service which is now termed as U. P. Nyayik Sewa. He is also the Secretary of the U. P. Judicial Service Association. Petitioner no. 2 has been approved by the High Court for promotion to the H. J. S. He has been officiating in the Higher judicial Service with effect from July 16, 1983 and is awaiting confirmation in the cadre.
(2.) THE H. J. S. in U. P. consists of a single cadre comprising of the posts of District and Sessions Judge and Additional District and Sessions Judge. THE permanent strength of the service at present is 311. THEre are also 133 temporary posts created by the State Government from time to time after consulting the High Court. THE method of recruitment and appointment to the H. J. S. and the conditions of service of persons appointed there to have been provided under the Rules called 'THE Uttar Pradesh Higher Judicial Service Rules, 1975' ('Rules' for brevity). THE Rules have been made under the powers conferred by the proviso to Article 309 read with Article 233 of the Constitution. Before we examine the contentions raised in the writ petition, it will be useful to set out, in brief, the relevant Rules. Rule 3 (c) defines "the service" to mean the Uttar Pradesh H. J. S. Rule 4 (2) provides for the strength of service. It may be determined from time to time by the Governor in consultation with the High Court. Rule 4 (3) provides for permanent strength of the service as specified in Appendix 'A' unless varied by orders passed in this behalf. Rule 4 (4) empowers the Governor to create from time to time additional posts, temporary or permanent, as may be found necessary. Part III of the Rules deals with the mode of recruitment to the service. The recruitment is required to be made from two sources-(1) by direct recruitment of pleaders and advocates of not less than seven years' stand. (2) By promotion of confirmed members of the Uttar Pradesh Nyayik Sewa who have put in not less than seven years service. Provision has also been made for recruitment of suitable officers from out of the dying cadre of the Judicial Magistrate who are also called members of the Uttar Pradesh Judicial Officers Service. The appointment of direct recruits is dealt with under Rule 17 according to which a committee constituted by the High Court after selection would recommend the list to the Governor. Rules 20 deals with the appointment by promotion. The promotes are appointed to H. J. S. by selection on the basis of seniority cum merit. Rules 6 and 8 are crucial to the determination of the question raised in the petition. We will set out these Rules in detail a little later. For the present, we may state that Rule 6 lays down the quota for various sources of recruitment. That is subject to Rule 8 which provides for the number and method of recruitment whenever there is no suitable candidate available for recruitment from the Bar.
(3.) TO make the picture complete we may also deal with Rules 22, 23, 24 and 26. Rule 22 provides for appointment. The Governor upon receipt of lists from the High Court make appointments to the service against substantive vacancies by taking candidates from the lists in the order in which they stand in the respective lists. Rule 22 (2) provides that 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 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 Magistrate, appointments to the service shall be made in such a way that the second, fifth and eight (and so on), vacancy shall be filled from the list of Judicial Magistrates. Rule 22 (3) provides for appointment for temporary vacancies or in officiating capacity. Such appointments shall be made by the Governor in consultation with the High Court from amongst the members of the Nyayik Sewa. Here again provision has been made for appointment of suitable officers if available, from the cadre of the Judicial Magistrates. Rule 23 deals with probation. It provides that all persons on appointment to the service in substantive vacancies be placed on probation. The period of probation shall, in each case, be two years. The High Court, may, in special cases, extend the period of probation upto a specified date, but it shall not ordinarily exceed three years. Rule 24 provides for confirmation of probationers. Rule 26 provides for seniority of the promotes vis-a-vis direct recruits. It also deals with seniority inter-se of the officers appointed from out of the Judicial Magistrates and those promoted from the Nyayik Sewa. It will, thus, be seen that the Rules provide for permanent strength of the service and also provide for creation of additional posts, temporary or permanent. As earlier stated the strength of the service as on today consists of 311 permanent posts and 133 temporary posts. The appointments to all these posts are required to be made in accordance with the Rules.;