S.K.PHAUJDAIR,B.K.ROY,JJ. - (1.) THE above mentioned 11 writ petitions relate to the selection of candidates for recruit ­ment in the U.P. Higher Judicial Service (for short called as 'HJS'). The different petitioners made different prayers in their writ petitions and the prayers cover is ­suance of mandamus -upon the respon ­dents to fill up all existing vacancies in the quota of direct recruit, for a declaration that certain amendments in the U.P. Higher Judicial Service Rules (for short called as the 'Rules') were ultra vires and for quashing a resolution of the Full Court of the Allahabad High Court as regards appointment of direct recruits and promo ­tion of persons belonging to the J.P. Nyayik Sewa (for short called as the 'Nyayik Sewa'). In some cases prayers were made to command the respondents to carve out a fresh select list in view of the direction of the Supreme Court in the case of O.P Garg and Ors, v. State of U.P, as reported in A.I.R. 1991 SC 1202. Most of the petitioners desired that as the number of vacancies for direct recruitment was more than what was shown, they should be appointed as they had taken the examina ­tions for such recruitment and had come out successful, although they were placed below the six nominated for appointment. In one of the writ petitions, the petitioner, Vinod Kumar Verma required implemen ­tation of D.O. letter No. C -39/PA/AR/LKO 1994 dated 5 -3 -1994 and to declare him selected for appointment in the HJS.
(2.) ALL the aforesaid writ petitions were heard together as common points of fact and law arose in these matters. The facts behind these petitions relate to al ­leged anomalies in the process of recruit ­ment to the HJS. In the context of these facts certain provisions of the Rules were also sought to be challenged. Under the provisions of the Constitution of India the power of appointment to the HJS lies with the Governor on recommendation by the High Court and the Rules covering such appointment are contained in the Rules. 1975, as amended from time to time. The sources of recruitment are (1) promotion from members of the Nyayik Sewa, (2) promotion from the cadre of Judicial Magistrates and (3) direct recruitment from the Bar. An advertisement was published concerning 1990 appointment to the HJS by direct recruitment from amongst the members of the Bar. It was issued under the signature of the then Registrar of the High Court Sri Bhanwar Singh, on March 30, 1992. It was indicated that a competi ­tive examination is likely to be held some ­time in September, 1992 and the total number of vacancies for such appointment was six. Reservation for the candidates of the Scheduled Castes and Scheduled Tribes and others were to be made in ac ­cordance with the Government Orders concerning reservation from time to time. The advertisement also indicated that there could be variation in the number of vacancies without prior notice. The petitioners responded to this advertise ­ment and were successful in the written test. They were called for interview. How ­ever, they could not compete with in the number of vacancies notified and were, therefore, not selected for appointment, which is apparent from the report dated 2 -11 -1995 of the Selection Committee as reproduced below: "REPORT OF THE SELECTION COMMITTEE REGARDING, 1990 RECRUITMENT OF THE UP HIGHER JUDICIAL SERVICE BY WAY OF DIRECT RECRUITMENT AND BY WAY OF PROMOTION This Selection Committee was constituted for 1990 recruitment to the UP Higher Judicial Service for selection both through direct recruit ­ment and by way of promotion from the U.P Nyayik Sewa under the U.P Higher Judicial Service Rules, 1975. 1. Direct Recruitment 15% 2. UP Nyayik Sewa 70% of the vacancies 3. UP Judicial Officers (Dying Cadre)15% As per rules, in case of non -availability from the dying cadre (Judicial Officers) the 15% goes to the quota of the U.P Nyayik Sewa, which has gone for this year of recruitment. Thus, for the purpose of 1990 recruitment the Committee considered the quota of 15% for the direct recruits and 85% for the U.P. Nyayik Sewa. As per Rule 8, the Court has to fix the number of officers to be taken at the recruit ­ment for the year of recruitment in question keeping in view the vacancies then existing and likely to occur in the next two years. Thus, for 1990 recruitment we are considering the vacan ­cies till 31st December, 1992. While considering the matter of selection of direct recruitment from the Bar in the recruitment year 1988 the total sanctioned strength in the said cadre was worked out at 596 including deputation and leave -reserve posts. Against this 15% for the direct recruits comes to 89. prior to 1988 recruit ­ment 46 officers of direct recruits were working. Thus, in 1988 recruitment, 43 candidates of direct recruits were required to be selected, but only 24 candidates were selected. As such there are 19 remaining vacancies which remained to be filled for 1990 recruitment year. Out of the aforesaid 24 selected candidates against 1988 recruitment, one was of scheduled caste and four were of backward classes. The quota of four scheduled caste against 24 candidates was to be filled but only one belonging to scheduled caste was found suitable. Thus, the balance of these three belonging to scheduled caste were required to be filled up in the next recruitment, which is this recruitment in question. The aforesaid 19 vacancies included the deputation and leave reserve -posts, which were sub ­sequently made permanent by the Government. However, while advertising for selection through direct recruitment for 1990 the vacan ­cies of deputational and leave -reserve posts were not taken into consideration, hence only six vacancies were advertised adding Schedule cas ­tes candidates, as aforesaid, the total comes to nine. This break -up of the six advertised vacancies by way of direct recruitment according to the rule is, scheduled caste 1 (21% of six vacan ­cies advertised) OBC (27% of six vacancies), Scheduled iribes nil, non applied special, 3 physically handicapped or freedom fighter and ex - servicemen nil (5% of six vacancies). This makes up one Scheduled Castes being carried forward as aforesaid. The total vacancies for Scheduled Castes being carried forward as aforesaid. The total vacancies for Scheduled Castes candidates thus comes to four. The Com ­mittee did not enhance the vacancies from six to nineteen in view of the decision of the Supreme Court in the case of stateof Bihar v. Madan Mohan and Ors., AIR 1994 SC 765, which rejected the decision of enhancement of the recruitment beyond what was advertised. However, this balance vacancy, which could not be filled through this selection in view of limitations, is carried forward to the next recruitment. The Committee in order to maintain the minimum standard in the Higher Judicial Ser ­vice decided that the candidates, who have secured marks below 35% in the reserved category and below 45% in the general category 1 be not called in the interview. there after the Committee considered the marks obtained by various candidates and found that none of the candidates belonging to the Scheduled Castes secured qualifying marks with in the said criterion. Hence, no candidate from the Scheduled Castes was called for interview. The interview was subsequently held, for other reserved categories, as aforesaid and general candidates and such candidates were called for interview in the ratio 1:4. The Committee further scrutinized the cases of OBC to eliminate the creamy -layer from OBC by obtaining the forms from each candidate initially falling under Schedule II of UP Act No. 4 of 1994 UP Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other. Backward Classes) Act, 1994. Though the said information was obtained from each of the candidates belonging to OBC but the said Act was held ultra vires by the Supreme Court through judgment dated 4th September, 1995, with the direction for the selection of 1995 -96, to eliminate the creamy -layer form the OBCs, it should be on the basis of Office Memorandum issued by the Central Govern ­ment dated 8th Sep., 1993. In terms there of, prescribed forms were sent and information received from each candidate but the commit ­tee found none of the candidates belonging to the creamy -layer. Thus, selection through direct recruit ­ment was made for the three vacancies in the general category and two vacancies in the reserved category (OBC). The 4 candidates of Scheduled Castes did not qualify for interview, as aforesaid, the Committee recommends that the said 4 vacancies of the Scheduled Castes candidates be now filled in the next recruitment. The Committee feels, in view of inordinate delay, the next recruitment, both 1992 and 1994, be initiated at the earliest and be held com -positely. List annexed to this report is double of the vacancies both of the general category and reserved category (OBC) in order of their merit. List TT is the names of all the 12 Candidates called in interview in the general category ac ­cording to merit along with marks obtained by them and List 'II' is of all the 8 candidates in the reserved category (OBC), who were called for interview according to their merit along with marks obtained. List 'IV is the combined merit list inter se general category and OBC out of the aforesaid 20 such -candidates called for interview in their respective categories alongwith marks obtained by them. This Committee also considered the second source of recruitment viz. through promotion from amongst the members of the U.P. Nyayik Sewa with in their respective quota for the year in question. From the office report out of. the aforesaid 596 vacancies existing on 31st December, 1992 after excluding such mem ­bers of the U.P. Nyayik Sewa, who have already been absorbed in 1988 recruitment which also covered the same period upto 31st December, 1992 as per the Full Court resolution all posts in the quota of promotees have been filled up, rather one over and above the quota has been appointed. This Committee for the recruitment is recommending 5 direct recruits only as aforesaid, through the quota comes to 19, 14 are carried to the next recruitment. According to Rule 8(2) "If at any selection the number of 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." In view of this, 14 vacancies of the direct recruits which could not be filled in this recruit ­ment are allocated to the members of the Nyayik Sewa. Thus, after deducting this one already appointed over and above the quota, 13 go to the members of Nyayik Sewa.List 'A' is a list of 39 members of the U.P. Nyayik Sewa, whose cases were considered for promotion to the aforesaid 13 vacancies. In con ­sidering their cases the committee examined their annual confidential remarks including the representations as against the adverse remarks, if any and consequential orders passed on it for the last five years from the year 1989 -90 to 1993 -94 and other relevant papers. Where Court's remarks were not available for the years in question, the Committee based its assessment on the remarks given by the District Judge, the committee also considered the cases of the officers of the U.P. Nyayik Sewa who had been passed over by the earlier Selection Committee, List 'B' contains the names of the officers who are found fit to be promoted to the U.P. Higher Judicial Service. List "C" contains the names of the officers who have not been found fit to be promoted to the U .P. Higher Judicial Service. Reasons for finding fit and not finding fit for promotion have been recorded in the aforesaid two lists viz. 'B' and list 'C'. (Mr. Justice A.P. Misra) Chairman (Mr. Justice Om Prakash) Member (Mr. Justice T.P. Garg) Member.
(3.) THE Selection Committee, con ­stituted under the Rules, not only selected six persons found fit for the notified vacan ­cies, it had also directed that really the vacancies for direct recruitment were 19 and as only six could be selected in terms of the advertisement, the rest of the posts were to be utilised for promoting eligible candidates from the Nyayik Sewa. This selection was made in exercise of the powers under Rule 8(2) of the Rules as per the report of the Selection Committee.1 The aforementioned report was put up before the Full Court on 18 -11 - 1995 which resolved as follows under Resolu ­tion No. 2dated 18 -11 -1995: "2. Considered the report dated 2 -11 -95 of" the Selection Committee consisting of Hon'ble Mr. Justice A.P. Misra, Hon'ble Mr. Justice Om Prakash and Hon'ble Mr. Justice T.P. Garg relat ­ing to selection of candidates for appointment to the U.P. Higher Judicial Service. Resolved that the same be accepted. The following three candidates are selected in order of merit from the general category by direct recruitment: 1. Sri Desh Bhushan Jain, 2. Sri Mahendra Dayal, and 3. Sri Virendra Vikram Singh. The following two candidates are selected in order of merit from the OBC category by direct recruitment: 1. Sri Uma ShankerTomar and 2 Sri Het SinghYadav. The following thirteen candidates are selected by promotion in order of seniority: I. Sri Surendra Pratap Singh, 2.SriR.K.Kulshrestha, 3. Sri Suraj Prasad Shukla, 4. Sri Mohan Kumar Bansal, S.SriShriPrakashJain, 6. Sri Aditya Prasad Chauhan, 7. Sri Anant Ram Kureel, 8. Sri Suresh Kumar Srivastava, 9. Sri Hari Har Shukla, lO.SriSyedQutubUddin, I1. Sri Ashok Kumar Kacher, 12. Sri Subodh Kumar and 13. Km. Manju Rani Gupta. Further resolved that the names of the following three candidates who have been selected by the Committee by direct recruitment in order of merit under general category be placed in the waiting list: 1. Sri Avinash Kumar Sharma, 2. Sri Prem Shanker Mishra, and 3. Sri Dinesh Kumar Gupta. Also resolved that the names of the follow ­ing two candidates who have been selected by the Committee by direct recruitment in order of merit under OBC category be placed in the waiting list: 1. Sri Shitla Prasad Singh, and 2. Sri Brij Kishore Verma. Further resolved that the names of the following candidates who have been selected by the Committee by promotion in order of seniority be placed in the waiting list: 1. Sri JaiKrit Singh Negi, 2. Sri Neyaz Ahmad, II, S.SriShamshadAli, 4. Sri Prem Mohan Srivastava, 5. Sri Ram Chandra Nigam, 6.Sri Khalid Iqbal, 7. Sri Rama Kant Singh, 8. Sri Ram Lal, 9. Sri Ashok Kumar Singh II, 10. Sri Nirmal Kumar Jain, and 11. Sri Chandra Bhan II. The list shall remain operative till the next recruitment. It is further resolved that the names of the candidates selected by the Court by direct recruitment and by promotion be forwarded to the Governor as contemplated under Rules 18(4) and 20(5) of the U.P. Higher Judicial Ser ­vice Rules, 1975." ;