- (1.) THE moot point in the above two writ petitions being the same, a challenge to the seniority list dated 6- 5-1992 for the members of the Uttar Pradesh Higher Judicial Service, the two matters were heard together and are being disposed of by this single judgment.
(2.) ON the presentation of the peti tions, the matters were placed in the usual course before a Division Bench and upon its reference of the whole matter to a Full Bench, as per order dated 30-12-92, a Full Bench was constituted under the orders of the Hon'ble the Chief Justice of the Al lahabad High Court, with changes of the Hon'ble Judges constituting the Full Bench from time to time, the matters final ly came before us and were heard by us. Arguments on behalf of petitioners in the two matters were advanced by Sri Ravi Kant and Sri Dinesh Dwivedi. Another member of the U. P. Higher Judicial Ser vice (henceforth to be described as the HJS) Sri R. G. Shukla, made a prayer for being heard as an intervener on the ground that his case was identical with that of the petitioners in the two writ petitions as he too had come to the HJS as a direct recruit. The prayer was allowed and Sri R. N. Singh was heard on his behalf. A similar prayer of intervention was inade on behalf of Sri Arvind Kumar Tripathi, another member of the HJS and we had indicated that he could not be impleaded as a party, but we were ready to hear him under the provisions of Chapter 22, Rule 5-A, of the Allahabad High Court Rules. We proposed to hear Sri Tarun Agrawal on behalf of Sri Arvind Kumar Tripathi, but Sri Agarwal had chosen not to advance any arguments Sri Rajendra Prasad Pandey, respondent No. 55 in the first mentioned writ petition, filed a power through Sri Sudhir Jaiswal on 20-10-98 during the course of hearing. He too, was allowed an opportunity of making submissions, but when his turn came, Sri Sudhir Jaiswal declined to make any submission. The first mentioned writ petition was filed by five members of the HJS, all direct recruits and in addition to the State of U. P. and the High Court of Judicature through its Registrar, 53 members of the HJS (all promotees from the U. P. Nyayik Sewa) were arrayed as respondents. The second mentioned writ petition was filed by Sri J. C. Gupta and Sri P. K. Jain, both of whom were directly recruited to the HJS and both are now Hon'ble Judges of the Allahabad High Court. In the second men tioned writ petition, in addition to the State of U. P. and the High Court of Judica ture at Allahabad through its Registrar, 22 others were arrayed as respondents who were all, at the relevant date, members of the HJS, all being promotees from the U. P. Nyayik Sewa, it is interesting to note that not only the two petitioners in the second mentioned writ petition but also a number of respondents in these two matters were now Hon'ble Judges, of the Allahabad High Court or other High Courts. It is also interesting to note that amongst the respondents who have been elevated to the High Court from the HJS, some have already retired and most of the who did not get the opportunity of elevation have also retired from the HJS. As already indicated, there is a challenge in these writ petitions to the validity of the seniority list prepared on 6-5-1992 in terms of directions of the Supreme Court given in its judgment in the case of O. P. Garg, AIR 1991 SC 1202. For appreciating the direction of the Supreme Court and the points raised in challenging the seniority list and the points raised in answer, it is necessary to give a brief description of the back-ground leading to these litigations.
(3.) THAT Uttar Pradesh Higher Judi cial Service is a service as envisaged under Article 233 of the Constitution, compris ing of District Judges and Additional Dis trict Judges. Formerly, the service was covered by the U. P. Higher Judicial Ser vice Rules, 1953, but the provisions there of relating to direct recruitment were declared ultra vires by the Supreme Court in its judgment in the case of Chandra Mohan v. State of U. P. As a sequel thereto, the U. P. Higher Judicial Service Rules of 1975 (in short, 1975 Rules) were framed in exercise of powers conferred under Article 228 read with Article 233 of the Constitu tion. Bereft of the unnecessary details, it would suffice to say that the U. P. Higher Judicial Service (in short, the HJS) comprises the post of District and Sessions Judges and the Additional District and Sessions Judge and the 1975 Rules indi cate what would be the sources of recruit ment, how appointments are to be made and how seniority amongst the members of the HJS is to be fixed. On 7-5- 1986 a seniority list was published by the High Court of Allahabad which was amended in respect of certain mistakes and a fresh publication was made on 25-8-86. This list was challenged by certain members of the HJS who had been promoted from the U. P. Nayayik Sewa and the Supreme Court struck down the seniority list in Us judg ment as reposed in AIR 1988 SC 260 P. K. Dikshit & Ors. v. State of U. P. Pursuant to the judgment of the Supreme Court in Dikshit's case the exercise was renewed at the High Court to fix seniority inter se of the HJS Officers and a Seniority list was published on 25-8-88. In reckoning the seniority of the individual officers, each promotee was given the benefit of 3 years 'continuous officiating, counting that from the date of occurrence of the vacancy instead of the date of confirmation or ap pointment in substantive vacancy. The direct recruits to the HJS felt aggrieved and some of them challenged the seniority-list in a writ petition before the Supreme Court. The list was also chal lenged by certain promotees ventilating their grievance against the method of fixing seniority. These two petitions were heard and decided together and the judg ment of the Supreme Court on these peti tions stands reported in AIR 1991 SC 1202, O. P. Garg & Ors. v. State of U. P. & Ors. . The relevant portion of this judg ment would be quoted at the proper place and time. For the present, it would only suffice to say that after this judgment of the Supreme Court, the seniority list was prepared afresh and was published on 6-5-1992 and this seniority list is again under challenge at the instance of the two sets of petitioners (all direct recruits) in the two writ petitions, as aforesaid. We propose to set out the Rules, the relevant portions of the judgment as also of the report of the committee on the basis of which the seniority list has finally been published. The Uttar Pradesh Higher Judicial Service Rules, 1975 (in short, 1975 Rules) were published in the U. P. Gazette on 5-4-1975. We may quote the relevant portion, as they stood prior to the judgment of the Supreme Court in O. P. Garg's case herein below. "partii-CADRe 4. Strength of the service.- (1) The service shall consist of a single cadre comprising the posts of: District and Sessions Judge; and Additional District and Sessions Judge: Provided that against a post of Additional District and Sessions Judge a member of the Uttar Pradesh Judicial Officers Service may be appointed to exercise the powers of Additional Sessions Judge only as laid down in Notification No. 41-13/66/appt-4, dated March 12, issued under Article 237 of the Constitution. (2) The strength of the service shall be such as may be determined from time to time by the Governor in consultation with the Court. (3) The permanent strength of the service. shall, unless varied by orders passed in this be half, be as specified in Appendix A'. (4) The Governor may, from time time, in consultation with the Court leave unfilled or hold in abeyance, any vacant post in the service without entitling any person to compensation or create from time to time, additional posts, tem porary or permanent as may be found necessary. PART-III-Recruitment 5. Sources of recruitment.-The recruit ment to the Service shall be made- (a) by direct recruitment of pleaders and advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published; (b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa), who have put in not less than seven years' service to the com puted on the first day of January next following the year in which the notice inviting application in published; Provided that for so long as suitable of ficers are available from out of the dying cadre of the Judicial Magistrates, confirmed officers who have put in not less than 7 years service to be computed as aforesaid shall be eligible for ap pointment as Additional Sessions Judges in the service. Explanation.-When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken not account in computing the period of seven years under clause (a ). 6. Quota.-Subject to the provisions of Rules 8, the quota for various sources of recruit ment shall be- (1) Direct recruitment from the Bar 15%. (ii) Uttar Pradesh Nyayik Sewa 70% of the vacancies. (iii) Uttar Pradesh Judicial Officers Ser vice (Judicial Magistrate) 15% Provided that where the number of vacan cies to be filled in by any of these source in accordance with 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 re quired 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 the course, become 85 per cent. 8. Number of appointments to be made.- (1) 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. (2) If at any selection the number of selected direct recruits available for appoint ment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the num ber of recruits to be taken by promotion from the Nyayik Sewa: Provided that the number of vacancies filled in as aforesaid under this sub-rule may 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 be raised accordingly; so, however, that the percentage of direct recruits in the service does not in any case exceed 15 per cent of the total permanent strength of the ser vice; Provided further that all the permanent vacancies existing on May 10, 1974 plus 31 temporard 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 three sources under these rules; Provided also that the number of vacan cies equal to 15 per cent 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 per cent 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 preced ing 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 vacan cies shall be as follows: (1) 15% by direct recruitment; (ii) 30% from out of the Judicial Magistrates; (iii) 55% from out of the members of the Nyayik Sewa. 22. Appointment.- (1) Subject to the pro visions of sub-rules (2) & (3), the Governor shall on receipt from the Court of the lists mentioned in Rules 18, 20 & 21 make appointments to the service on the occurrence of substantive vacan cies by taking candidates from the lists in the order in which they stand in the respective lists. (2) Appointments to 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 vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies shall, therefore, be filled by promotion in from the list of the officers of the Nyayik Sewa: Provided that for so long as suitable of ficers are available from the cadre of the Judicial Magistrates, 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. (3) Appointments for temporary vacan cies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa: Provided that for so long as suitable of ficers are available from the cadre of the Judicial Magistrate, appointments on temporary vacan cies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrate according to the quota fixed for that source under these rules: Provided further that for so long as such members of the Judicial service as are considered suitable for appointments on temporary vacancies or in officiating capacity, are not avail able in sufficient number, the Governor in con sultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates. (4) The appointments shall be made on rotational system the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of Judicial Magistrates (and so on ). 26. Seniority.- (1) Except as provided in sub-rule (2), seniority of members of the service shall be determined as follows: (a) Seniority of the officers promoted from the Nyayik Sewa vis-a-vis the officers recruited from the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits. Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same, the promoted officer shall be treated as senior: Provided that in the case of a promoted officer the maximum period of continuous of ficiation in the service shall not, for the purpose of determining seniority exceed three years im mediately preceding the date of confirmation;";