# Harendra Bahadur Singh & Ors v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 942
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Writ - A No. 30173 of 2019
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harendra-bahadur-singh-ors-v-state-of-u-p-ors-51512
- **Pages:** 54

## Headnote

C.S.C., Dharmendra Kumar Dixit, Gaurav
Mehrotra,
Praneet
Kumar
Agarwal,
Shireesh Kumar, Sridhar Awasthi

A. Service Law - UP Higher Judicial
Services Rules, 1975 - Rules 5(a), 6, 7 &
8(1) - Promotion - Post of Higher Judicial
Services cadre - Determination of seats
for each three source of recruitment of the
HJS cadre - Inter-se seniority for the
recruitment year 2012 and 2014 - More
seat for promotion was claimed on the
basis of quota - How far liable to be
accepted - Phrase 'vacancy likely to occur
in next two years' is used in S. 8(1) -
Applicability
-
Held,
the
expression
'vacancies likely to occur in the next two
years' is a concept, which comes into play
only when it is decided for the recruitment
of a particular year to commence in that
year itself. If, the recruitment starts in a
particular year, Rule 8(1) of the UPHJS
Rules,
1975
mandates
that
for
determining the number of vacancies, the
Courts also take into consideration the
anticipated vacancies for the following
year - The vacancy for the recruitment
year 2012 was correctly determined by
the High Court in terms of Rule 8(1) of the
UPHJS Rules, 1975 and there was no
occasion for the High Court to consider
the appointment of the petitioners on the
unforeseen vacancies, which were created
or
came
into
existence
once
the
recruitment process started for the said
year 2012. (Para 3, 37, 38, 39 and 50)

B. Service Law - UP Higher Judicial
Services Rules, 1975 - Rules 7, 8(2) &
22(2) - UP Public Services (Reservation
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
943
for Scheduled Castes, Scheduled Tribes
and other Backward Classes) Act, 1994 -
S. (2) - Reservation Policy, extent of
application
-
Carry Forward
Rule
-
Applicability to the recruitment of UP High
Judicial Services - Held, there is no
provision under the UPHJS Rules, 1975 for
carry forward of unfilled vacancies of
reserved category as per the Section 3(2)
of the Reservation Act, 1994, as the same
has not been adopted by the High Court
on the administrative side and most
importantly, the said carry forward would
run contrary to the existing provisions of
the UPHJS Rules, 1975 - High Court found
no error in the determination of vacancies
for recruitment year 2012 and 2014 as
suggested by the petitioners by filling up
the
vacancies
by
the
unreserved
candidates. (Para 52, 83, 89, 97 and 110)

C. Service Jurisprudence - Constitution of
India - Article 226 - Writ - Maintainability
- Non-joinder of parties - All direct
recruits for recruitment year 2012 and
2014 have not been arrayed as a party
though averments have been made and
sought for quashing of their appointments
- Effect - Held, it is not essential to
implead each and every one who could be
affected but if a section of such affected
employees is impleaded then the interest
of all is represented and protected - Ajay
Kumar Shukla' case relied upon - High
Court rejected the objection regarding
maintainability of writ . (Para 65, 68 and
69)

D. Service Law - Seniority, determination
thereof - Rotational system - Applicability
- Held, seniority has to be given as per the
appointment made on a substantive post
and seniority is to be determined in
accordance with rotation of vacancies
between direct recruits and promotes
based on quota of vacancies reserved for
both the categories as per Rule 22(2) of
the UPHJS Rules, 1975. [Para 114 and 125
(vi)]

Writ petition dismissed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,751 of 186,620. This is a partial read: ask again with offset=39751 for what follows._

942 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate
appointment
makes
a
departure from the general provisions
providing for appointment to a post by
following
a
particular
procedure
of
recruitment. Since such a provision enables
appointment being made without following
the said procedure, it is in the nature of an
exception
to
the
general
provisions.
Further,
it
has
been
observed
that
compassionate appointment is not a vested
right which can be exercised at any time in
future. Compassionate employment cannot
be claimed or offered after a lapse of time.

10. As observed by Hon'ble Apex
Court in the instant case, more than 25
years have elapsed. At this juncture,
consideration of the petitioner's case under
compassionate ground would not be just
and reasonable. Accordingly, the Tribunal
rejected claim of the petitioner in the right
perspective. It is also not in dispute that the
Authority has considered the case of the
petitioner. In fact, the petitioner's case has
been considered by the respondent no.3
nearly five times and he could not be able
to provide employment for want of
inadequate vacancy.

11. In view of the above, we are not
inclined to interfere with the order of the
Tribunal. Accordingly, the writ petition is
dismissed.
----------
(2024) 2 ILRA 942
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.02.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ - A No. 30173 of 2019
connected with
Writ - A No. 2000845 of 2014
and other connected cases

Harendra Bahadur Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Varadraj Shreedutt Ojha, Amardeep Yadav

Counsel for the Respondents:
C.S.C., Dharmendra Kumar Dixit, Gaurav
Mehrotra,
Praneet
Kumar
Agarwal,
Shireesh Kumar, Sridhar Awasthi

A. Service Law - UP Higher Judicial
Services Rules, 1975 - Rules 5(a), 6, 7 &
8(1) - Promotion - Post of Higher Judicial
Services cadre - Determination of seats
for each three source of recruitment of the
HJS cadre - Inter-se seniority for the
recruitment year 2012 and 2014 - More
seat for promotion was claimed on the
basis of quota - How far liable to be
accepted - Phrase 'vacancy likely to occur
in next two years' is used in S. 8(1) -
Applicability
-
Held,
the
expression
'vacancies likely to occur in the next two
years' is a concept, which comes into play
only when it is decided for the recruitment
of a particular year to commence in that
year itself. If, the recruitment starts in a
particular year, Rule 8(1) of the UPHJS
Rules,
1975
mandates
that
for
determining the number of vacancies, the
Courts also take into consideration the
anticipated vacancies for the following
year - The vacancy for the recruitment
year 2012 was correctly determined by
the High Court in terms of Rule 8(1) of the
UPHJS Rules, 1975 and there was no
occasion for the High Court to consider
the appointment of the petitioners on the
unforeseen vacancies, which were created
or
came
into
existence
once
the
recruitment process started for the said
year 2012. (Para 3, 37, 38, 39 and 50)

B. Service Law - UP Higher Judicial
Services Rules, 1975 - Rules 7, 8(2) &
22(2) - UP Public Services (Reservation
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
943
for Scheduled Castes, Scheduled Tribes
and other Backward Classes) Act, 1994 -
S. (2) - Reservation Policy, extent of
application
-
Carry Forward
Rule
-
Applicability to the recruitment of UP High
Judicial Services - Held, there is no
provision under the UPHJS Rules, 1975 for
carry forward of unfilled vacancies of
reserved category as per the Section 3(2)
of the Reservation Act, 1994, as the same
has not been adopted by the High Court
on the administrative side and most
importantly, the said carry forward would
run contrary to the existing provisions of
the UPHJS Rules, 1975 - High Court found
no error in the determination of vacancies
for recruitment year 2012 and 2014 as
suggested by the petitioners by filling up
the
vacancies
by
the
unreserved
candidates. (Para 52, 83, 89, 97 and 110)

C. Service Jurisprudence - Constitution of
India - Article 226 - Writ - Maintainability
- Non-joinder of parties - All direct
recruits for recruitment year 2012 and
2014 have not been arrayed as a party
though averments have been made and
sought for quashing of their appointments
- Effect - Held, it is not essential to
implead each and every one who could be
affected but if a section of such affected
employees is impleaded then the interest
of all is represented and protected - Ajay
Kumar Shukla' case relied upon - High
Court rejected the objection regarding
maintainability of writ . (Para 65, 68 and
69)

D. Service Law - Seniority, determination
thereof - Rotational system - Applicability
- Held, seniority has to be given as per the
appointment made on a substantive post
and seniority is to be determined in
accordance with rotation of vacancies
between direct recruits and promotes
based on quota of vacancies reserved for
both the categories as per Rule 22(2) of
the UPHJS Rules, 1975. [Para 114 and 125
(vi)]

Writ petition dismissed. (E-1)

List of cases cited :-
1. Sri Kant Tripathi & ors.Vs St. of U. P. & ors.;
(2001) 10 SCC 237

2. All India Judges Association Vs U.O.I.; (2002)
4 SCC 247

3. V.K. Srivastava Vs Government of Uttar
Pradesh; (2008) 9 SCC 77,

4. Malik Mazahar Sultan Vs UPSC; (2008) 17
SCC 703

5. Ashok Pal Singh Vs U.P judicial Services &
ors.; (2010) 12 SCC 635

6. Nawal Kishore Mishra & ors.Vs High Court of
Judicature at Allahabad & ors.; (2015) 5 SCC
479

7. High Court of Judicature at Allahabad Vs St.
of U. P.; (2018) 15 SCC 439

8. R.K. Sabharwal & ors. Vs St. of Pun. & ors.;
(1995) 2 SCC 745

9. Prabhuji & anr..Vs St. of U.P. & ors.; 2010
SCC Online All 2410

10. Premkala Singh HJS & ors. Vs High court of
Judicature at Allahabad decided on 30.06.2017

11. Rakhi Ray Vs High Court of Delhi & ors.;
2010(2) SCR 239

12. Vivek Kaisth Vs St. of H. P.; 2023 SCC
Online 1485

13. P.S Sadasivaswamy Vs St. of T. N.; (1975) 1
SCC 152

14. U.O.I. Vs C. Girija; (2019) 15 SCC 633

15. St. of Bihar Vs Bal Mukind Sah; (2000) 4
SCC 640

16. Delhi Administration Vs Manohar Lal; (2002)
7 SCC 222

17. Natural Resources Allocation, in re: Spcial
Ref. 1 of 2012; (2012) 10 SCC 1

18. Rajasthan High Court Vs Ved Priya & anr..;
(2021) 13 SCC 151
944 INDIAN LAW REPORTS ALLAHABAD SERIES
19. Rashmi Mishra Vs MP Public Service
Commission; (2006) 12 SCC 724

20. Ranjan Kumar Vs St. of Bihar; (2014) 16
SCC 187

21. Hon'ble High Court of Punjab & Haryana at
Chandigarh Vs St. of Pun.; 2019 (12) SCC 496

22. B.S Bajwa Vs St. of Pun. & ors.; AIR 1999 SC 1510

23. Malcom Lawrence Cecil D'Souza Vs U.O.I. & ors..;
AIR 1975 SC 1269

24. H.S Vanikani & ors. Vs St. of Gujrat & ors.; (2010) 4
SCC 301

25. Malook Singh & ors.. Vs St. of Punjab & ors.; 2021
SCC Online SC 876

26. Rashi Mani Mishra & ors. Vs St. of UP & ors.; 2021
SCC Online 509

27. Anup Bhuyan Vs St. of Assam & anr.; (2023) SCC
Online SC 338

28. Indian Council for Agricultural Research Vs Central
Administrative Tribunal & anr. 2018 SCC Online All 667

29. P. Chittaranja Menon & ors.. Vs A. Balakrishnan &
ors.; (1977) 3 SCC 255

30. Vijay Kr. Kaul Vs U.O.I.; 2012 (7) SCC 610

31. KH Siraj Vs High Court of Kerala; (2006) 6 SCC 395

32. Amarjeet Singh Vs Devi Rattan; (2010) 1 SCC 417

33. Mukul Kumar Tyagi & ors. Vs The St. of U. P. & ors.;
(2020) 4 SCC 86

34. Ajay Kumar Shukla Vs Arvind Rai; (2022) 12 SCC
579

35. Writ Petition (Civil) No. 147/2021; Randheer Singh &
ors. Vs High Court of Judicature at Allahabad & ors.:
Order dated 25.10.2021 and 15.11.2021

36. Rajasthan High Court Vs Ved Priya & anr.; (2021) 13
SCC 151

37. St. of Punjab & ors. Vs Rafiq Masih (White Washer);
(2014) 8 SCC 883
38. Girish Kumar Suneja Vs Central Bureau of
Investigation; (2017) 14 SCC 809

39. Mervyn Coutindo & ors. Vs Collector of
Customs, Bombay & ors.; 1966 (3) SCR 600

40. Hon'ble Punjab & Haryana High Court at
Chandigarh Vs St. of Pun.& ors.; 2019(12) SCC
496

41. Yamini Vs St. of Andhra Pradesh; (2019) 17
SCC 228

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(1) Heard Shri Sandeep Dixit, Shri
Sudeep Seth, Shri J.N. Mathur, Shri Sanjay
Bhasin, Shri Asit Kumar Chaturvedi,
learned Senior Advocates assisted by Shri
Varadraj Shreedutt Ojha, Shri Kshitij
Mishra, Shri Shobit Mohan Shukla, Shri
Amardeep
Yadav,
representing
the
petitioner,
learned
Standing
Counsel
representing
the
State/rspondent,
Shri
Gaurav
Mehrotra,
learned
Counsel
representing the High Court/respondent and
Shri Dharmendra Kumar Dixit, Shri
Shireesh Kumar, Shri Praneet Kumar
Agarwal, Shri Sridhar Awasthi, Shri Sanjay
Hari Shukla, Shri Manoj Kumar Singh
Gautam, Shri Vivek Tripathi, Shri Jitendra
Saksena, Shri Ashwani Kumar Singh,
learned Counsel representing the private
respondents.

A. Introduction

(2) The perennial problem of
determination of number of vacancy to be
filled from each source of recruitment and
its consequential effect on the seniority list
has yet again come to haunt the recruitment
year 2012 and 2014 for the Uttar Pradesh
Higher Judicial Services. Although by now
these problems ought to have been resolved
by the authoritative decision of the Apex
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
945
Court, however these issues refuses to die
down and have a salutary burial.

(3) The Uttar Pradesh Higher Judicial
Services Rules, 1975 (hereinafter to be
referred as "UPHJS Rules, 1975") have
been framed to regulate the recruitment,
appointment and other conditions of
services for Higher Judicial Services
appointees in the State of Uttar Pradesh.
Rule 5 of UPHJS Rules, 1975 provides for
three source of recruitment; the first being
(a) by promotion from amongst the Civil
Judges (Senior Division) on the basis of
principle
of
merit-cum-seniority
and
passing a suitability test; the second being
(b) by promotion strictly on the basis of
merit
through
limited
competitive
examination of Civil Judges (Senior
Division) having not less than five years
qualifying service; and the third being ( c)
by direct recruitment from amongst the
learned 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. The
conundrum relating to the number of
available
seats
for
each
source
of
recruitment in view of the quota prescribed
under Rule 6 of UPHJS Rules, 1975 and
number of appointment to be made as per
Rule 8 of UPHJS Rules, 1975 and the
effect of reservation for posts of schedules
castes etc. as per Rule 7 of the UPHJS
Rules, 1975 and their inter-play, which also
had an eventful effect on the seniority list
prepared as per Rule 26 of the UPHJS
Rules, 1975 had been fascinated by this
Court as well as the Hon'ble Apex Court in
various judicial precedent. Some of these
judgements are being enumerated herein
below, so that this Court, while dealing
with the issues raised by the parties in the
present writ petitions, is alive to these
precedents, which holds the ground even as
on today :-

(i) Sri Kant Tripathi & Ors. Vs
State of Uttar Pradesh & Ors, (2001) 10
SCC 237,

(ii) All India Judges Association
Vs Union of India (2002) 4 SCC 247,

(iii)
V.K.
Srivastava
Vs
government of Uttar Pradesh, (2008) 9
SCC 77,

(iv) Malik Mazahar Sultan Vs
UPSC, (2008) 17 SCC 703,

(v) Ashok Pal Singh Vs U.P
judicial Services & Ors. (2010) 12 SCC
635,

(vi) Nawal Kishore Mishra &
Ors. Vs High Court of Judicature at
Allahabad, Through its Registrar general &
ors., (2015) 5 SCC 479;

(vii) High Court of Judicature at
Allahabad Vs State of Uttar Pradesh,
(2018) 15 SCC 439

(4) The determination of seats for
each source of recruitment and the inter-se
seniority for the recruitment year 2012 and
2014 is the centrifugal issue engaging the
attention of this Court in these four writ
petitions. Although, the prayer in these
petitions are not similar, however, the relief
sought and the issue raised in these
petitions are complimentary to each other
and as such they are being decided
together.

(5) All these writ petitions have been
filed
by
"promotees"
belonging
to
category/quota as per Rule 5 (a) of the
UPHJS Rules, 1975 and apparently, there is
no challenge by either the Direct Recruits
{category/quota as per Rule 5(c) of the
UPHJS Rules, 1975} or the out of turn
promote {category/quota as per Rule 5(b)
of the UPHJS Rules, 1975} and from the
946 INDIAN LAW REPORTS ALLAHABAD SERIES
memo of the writ petitions, it is apparent
that :-

1.

Writ-A
No.
200845
of
2014 (Sanjeev
Kumar
Singh
&
Ors.
Vs.
State of U.P)
amended vide
order
dated
05.07.2018
Has been filed by
Petitioners,
who
have been selected
in
U.P
Judicial
Services
on
the
basis
of
Examination-1999
and
all
the
promotees.
2.

Writ-A
No.
30173 of 2019
(Harendra
Bahadur Singh
&
Ors.
V/s
State of U.P.)

Has been filed by
Petitioner No.1 to
10, who have been
selected
in
U.P
Judicial Services on
the
basis
of
Examination-1999
& Petitioner No.11
has been selected in
U.P
Judicial
Services
on
the
basis
of
Examination-2000
and
all
are
promotees.
3.

Writ-A
No.
11453 of 2020
(Manorama &
6 others V/s
State of U.P)
Has been filed by
Petitioner
No.1,
who
has
been
selected
in
U.P
Judicial Services on
the
basis
of
Examination-1997
& Petitioner No. 2
to 7 have has been
selected
in
U.P
Judicial Services on
the
basis
of
Examination-1999
and
all
are
promotees.
4.

Writ-A
No.
28511 of 2021
(Randheer
Has been filed by
Petitioners,
who
have been selected
Singh & others
Vs
State
of
U.P)
in
U.P
Judicial
Services
on
the
basis
of
Examination-1996
and
all
are
promotees.

(6) All these petitioners, who were
initially selected and appointed under the
U.P
Judicial
Services
Examination
conducted in the year 1996 or 1997 or
1999, became entitled to promotion to the
U.P Higher Judicial Service cadre, in due
course of time. Since, their promotion was
contingent on the number of seats available
in the said UPHJS Cadre in a particular
year, it became a bone of contention,
wherein these petitioners as promotees
claimed more seats/vacancies available to
them for promotions on basis of the quota
and also raised other ancillary grounds,
which shall be discussed in the later part of
this judgment.

B. Background

(7) Apparently, the root to the present
controversy relating to determination of
vacancies for each quota, stems from the
year 2000, which came to be decided by the
Apex Court in Sri Kant Tripathi & others
vs. State of U.P. & others reported in
(2001) 10 SCC 237, wherein certain
directions for redetermination of vacancies
was given by the Hon'ble Apex Court by
interpreting the relevant provisions of the
Rules and leaving the actual numbers to be
determined by the High Court for different
recruitment years starting from 1988 to
1998. The Apex court inter-alia in Sri Kant
Tripathi's case (supra) held :

"(i) Appointments already made
to the higher judicial service, whether by
direct recruitment or by promotion, need
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
947
not be annulled and shall be continued.

(ii)
With
effect from
1988
recruitment
and
in
all
subsequent
recruitments which are the subject matter
of challenge before us, the high court shall
determine
the
number
of
vacancies
available as on the relevant year of
recruitment in terms of rule 8, as already
explained by us and then, allocate the
percentage
to
different
sources
of
recruitment, contained in rule 6, and after
such determination is made, then find out
whether the appointments of direct recruits
already made for that recruitment year are
in excess of the quota or within the quota.
If it is found that any appointment has been
made in excess of the quota, then the said
appointee would be allowed to continue,
but his or her seniority will have to be
reckoned only when he or she is adjusted in
the next recruitment.

(iii) If in each recruitment year,
posts were available in the quota of
promotees and promotion has not been
made, even though selection had been
made under rule 20, then the legitimate
right of the promotees cannot be denied and
promotion must be made with effect from
the date they should have been appointed.

(iv) This exercise has to be made
for the recruitment of 1988 as well as for
each subsequent recruitment that has been
made.

(v) Since the determination under
rule 8 is being made now, pursuant to the
directions of this court, in respect of past
recruitment years for which recruitment has
been made, the expression "vacancies
likely to occur" loses its importance and
determination has to be made, on the basis
of the actual vacancies available in any of
such recruitment year.

(vi) So far as the recruitment of
1998 is concerned, advertisements having
been issued for 38 vacancies being filled up
by direct recruitment and the process of
selection being already over, but no
appointment having been made, we think it
appropriate to direct that the appointment
of the selected candidates may be made
against the quota available to direct recruits
calculated in accordance with the rules in
the light of our decision.

(viii) For all future appointments,
the high court must take steps to fill the
vacancies of every recruitment year during
that year itself. The high court must
determine the vacancies not only on the
basis of the actual vacancies on the date of
such determination but also take into
account probable vacancies by reason of
superannuation of officers in the next two
years from that date.

(ix) Once the vacancies are so
determined, the percentage of the vacancies
available
for
recruitment
by
direct
recruitment and by promotion must be
fixed and steps taken for filling up the same
expeditiously. The number of vacancies
available for the direct recruit's quota must
be advertised without any variation clause.
The select list prepared both for direct
recruits as well as for promotees prepared
by the high court will be operative only till
the next recruitment commences with the
fixation of the vacancies for the next
recruitment year."

(8) On the heels of the aforesaid
judgment, All India Judges' Association
and others vs. Union of India and others
: (2002) 4 SCC 247 was pronounced on
21.03.2002, having an all India effect,
wherein a quota was prescribed relating to
3 sources of recruitment i.e. by promotion
on
merit-cum-seniority
based
on
a
suitability test, merit promotion on the
basis of a limited competitive examination
for
its
cadre
candidates
and
direct
recruitment, in the ratio of 50:25:25. The
948 INDIAN LAW REPORTS ALLAHABAD SERIES
said judgment also provided for a QuotaRota Rule based on a roster in terms of the
judgment pronounced in R.K. Sabharwal
and others vs. State of Punjab and others
: (1995) 2 SCC 745 case for determination
of seniority in UPHJS so as to avoid any
further litigation. The Hon'ble Supreme
Court in the All India Judges' case (Supra)
also issued directions for amendment in the
relevant Rules to all concerned State, by
specified dates as mentioned in paragraphs
27, 28, 29 and 39 of the said judgment.

(9) Although the All India Judges'
case (Supra) would had been the torchbearer in providing the guidance in
determination of the vacancy and providing
the
seniority,
however,
before
the
amendments could be made in UPHJS
Rules, 1975, an exercise was undertaken
for redetermination of vacancies in terms of
Sri Kant Tripathi's case (supra) by a
Committee of this High Court which
submitted its report on 24.08.2002 and the
said report came to be approved by the Full
Court on 01.02.2004. Even this report was
challenged by the promotees judicial
officers vide Writ Petition No.316 (SB) of
2004 (U.P. Judicial Services Association
vs. State of U.P. and another), which was
decided
on
25.08.2004
with
certain
directions for redetermination of vacancies.
After this judgment, the result of 19982000 recruitment was declared in 2004.

(10) In the meantime, the aforesaid
judgment dated 25.08.2004 (supra), which
had declared availability of 24 direct recruit
vacancy and 331 promotions seats, was
itself
challenged before
the
Hon'ble
Supreme Court in the case of Ashok Pal
Singh & others vs. U.P. Judicial Services
& others : (2010) 12 SCC 635 and since
there was no interim stay in the said case,
the High Court in compliance of judgment
dated 25.08.2004 (supra) (High Court
order) proceeded to prepare a seniority list
of pre-1998 appointees that came to be
approved by the Full Court on 24.08.2007.
The said seniority list was subjected to
challenge in Prabhuji and Anr. Vs. State
of U.P. and Ors., 2010 SCC Online All
2410 and during pendency of the said
petition, judgment in the case of Ashok Pal
Singh's case (supra) came to be delivered
on 13.09.2010, wherein the Apex Court
while considering the purport and intent of
Rule 8 (2) of UPHJS Rules, 1975, it was
held that the same was not to dilute or
change the quota of direct recruits. It
further held that its object was to ensure
that no vacancy remained unfilled for want
of adequate number of direct recruits under
the prescribed quota. While holding so, the
Apex
Court
noted
that
there
were
reasonable chances of adequate number of
candidates being not available for direct
recruitment whereas usually sufficient
number of candidates would be available
for promotion. It also made further clear
that the proviso to Rule 8(2) of UPHJS
Rules, 1975 ensures that the short fall in
quota for direct recruits in any recruitment
does not get permanently converted to
promotee quota by providing that the short
fall should be made at the next recruitment
for the direct recruitees, subject to it does
not exceeds the 25% of strength of the
service.

(11) In the interregnum, the UPHJS
Rules, 1975 were amended in terms of
paragraphs 27, 28 and 39 of the judgment
in All India Judges' Association's case
(supra) vide notification dated 09.01.2007
by which UPHJS (Sixth Amendment)
Rules 2006 (hereinafter referred to as
'UPHJS Amended Rules, 2006') came
into force with retrospective effect from
21.03.2002 i.e. the date of the All India
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
949
Judges'
Association's
case
(supra).
However, only part compliance of the
dictum was made, in as much no
amendment in terms of paragraph 29 took
place, which provided for seniority on the
basis of quota and rotational basis. In any
case, the vires of UPHJS Amended Rules,
2006 came to be challenged in V.K.
Srivastava and others Vs. Government of
U.P. and Ors. before the Hon'ble Supreme
Court under Article 32 of the Constitution
of India and while the aforesaid challenge
was pending, a determination of vacancies
took place for direct recruitment and
promotees on 15.02.2007, as approved
by Full Court on 17.02.2007 including
those existing as on 31.12.2006 and
anticipated
vacancies
upto
31.12.2008. A suitability test was also
held for purposes of promotion under
the 50% quota for promotees on
10.02.2008.

(12)

Based
on
the
aforesaid
recruitment process, a final list of direct
recruits and promotees was approved by
the Full Court on 12.07.2008. However,
instead of putting the names of direct
recruits and promotees aforesaid in the
order as envisaged in Rule 22 (1) and (2) of
the UPHJS Rules 1975 keeping in mind
paragraph 29 of All India Judges' case
(supra), separate orders of appointment for
direct recruits and promotees were issued,
even though a combined list as envisaged
in Rule 22(1) was sent to the State
Government.
Interestingly,
although
para-3 of the appointment/promotion
order mentioned that the members of HJS
selected/appointed
on
the
basis
of
selection of 2007 their inter-se placement
as per roster shall be done by the High
Court subsequently, however, nothing
was done and the appointments were
notified under Rule 25 on 10.12.2008.

(13) During the aforesaid process,
V.K.
Srivastava
and
others
Vs.
Government of U.P. and Ors. (supra) :
(2008) 9 SCC 77 came to be decided by the
Hon'ble Supreme Court on 04.09.2008 and
the challenge to the vires of UPHJS
Amended Rules, 2006 was repelled.
Thereafter, another recruitment took place
of 2009 batch based on a determination of
vacancies on 24.03.2009, as approved by
the Full Court on 10.04.2009. Final list of
selectees including direct recruits and
promotees was approved by Full Court on
09.01.2010.
In
the
interregnum,
on
24.08.2009 the UPHJS Rules, 1975 were
amended for the Seventh time so as to
comply the remaining part of the dictum in
All India Judges' Association's case (supra)
viz. paragraph 29 thereof, albeit belatedly,
so as to amend Rule 22 and introduce a
rotational system based on roster.

(14) As usual, even this Recruitment
of 2009 was impugned before this Court,
wherein the challenge was with regard to
the appointment made to the post of Direct
Recruit District Judges in the unfilled
reserve vacancies, to the extent of 34 in
number by way of promotion from the 'in
service candidates' by applying Rule 8(2)
of the UPHJS Rules, 1975. The Division
Bench of the High Court dismissed the writ
petitions on 02.03.2012. Feeling aggrieved,
the appellants filed appeal before the
Hon'ble Supreme Court, which came to be
decided in Nawal Kishore Mishra & Ors.
V/s
high
Court
of
Judicature
at
Allahabad,
through
its
Registrar
General & Ors : (2015) 5 SCC 479. The
findings of the said judgment can be
recapitulated
from
the
following
paragraphs of the judgment:

"61. It is well settled principle of
law as has been laid down by this Court in
950 INDIAN LAW REPORTS ALLAHABAD SERIES
the decision relied upon by learned counsel
for
the
High
Court,
namely,
the
Constitution Bench decision reported in
R.K. Sabharwal (supra) wherein it has
been held as under in para 4:

"No general category candidate
can be appointed against a slot in the
roster which is reserved for the backward
class."

62. Therefore, when the posts
were reserved for the SC, ST, filling up of
those posts from the general category
candidates would seriously affect the rule
of reservation, as once the posts of direct
recruit are filled up from other category
candidates even the carrying forward of
those vacancies as provided under the
proviso to Rule 8(2) cannot be operated
upon. In other words, by applying Rule 8(2)
in the event of vacancies remaining due to
non- availability of the candidates of the
reserved category and such vacancies were
filled up by the 'in service candidates' by
resorting to promotion, the proviso can be
conveniently operated upon by carrying
forward those vacancies in the future years
in the direct recruit source and by
maintaining the rule of reservation to the
extent it could not be filled up in the
relevant recruitment years. If instead of
resorting to promotion of 'in service
candidates'
those
unfilled
reserved
vacancies are filled from the general
category candidates, there would be no
scope for applying the proviso to Rule 8(2).
Such a contingency created would run
counter to the rule of reservation and,
therefore,
the
same
cannot
be
countenanced.

63. We have to, therefore, hold
that the High Court by adopting the
Reservation Act, 1994 adopted the rule of
reservation to the full extent provided for
and as prescribed under Section 3(1) of the
Reservation Act, 1994 and that in respect
of any unfilled vacancies of that category,
the High Court rightly resorted to the
prescription contained in Rule 8(2) by
resorting to filling up of such vacancies by
special recruitment in that year as directed
by this Court and in the absence of not
getting such vacancies filled up by
resorting to such filling up by promotion of
'in service candidates' and also by applying
the proviso to Rule 8(2) and thereby carry
forward those vacancies in the future years
of recruitment.

64. Keeping the said legal
principle relating to applicability of Section
3(1) of the Reservation Act, 1994 vis--vis
Rules 7 and 8(2) of the High Court Rules in
mind, when we consider the last of the
submissions made on behalf of the
appellants, it must be held that the action of
the High Court in having resorted to filling
up of the unfilled reserved vacancies by
taking umbrage under Rule 8(2) was
perfectly justified. The said action of the
High Court in having filled up those
unfilled reserved vacancies of direct
recruitment of the year 2009 was stated to
have been made by promoting the inservice candidates. Though we have found
that such a course adopted by the High
Court was in order, as the proviso to Rule
8(2) specifically mandates that while fixing
the number of vacancies to be allotted to
the quota of direct recruitment at the next
recruitment,
it
should
be
raised
accordingly. We are of the view, without
disturbing whatever promotions already
made by resorting to Rule 8(2), the High
Court can be permitted to provide that
number of vacancies which remained
unfilled in the year 2009 in the reserved
category of direct recruit source by adding
that number of vacancies in the recruitment
to be made in the future years until such
number of vacancies of unfilled reserved
category pertaining to 2009 are filled.
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
951

65. With the above limited
directions to the High Court, we do not
wish to meddle with the promotions already
made. We do not find any scope for
granting any relief to the appellants, as
none of the submissions raised on behalf of
the appellants, which were though not
considered by the Division Bench of the
High Court and which were also dealt with
by us in extenso and we find no merit.
These appeals, therefore, fail and the same
are accordingly dismissed."

(15) As aforesaid, the judgement
rendered in Nawal Kishore Mishra's case
(Supra) came to be passed on 17.02.2015,
however, in the intervening period, the
State Government again, instead of issuing
an appointment in the order of names
occurring in the combined list envisaged in
Rule 22 (1), separate orders of appointment
were issued in 2010 for the 3 sources of
recruitment, which did not reflect therein
rotational placement as per their quota.
Separate notifications were issued under
Rule 25. Paragraph 3 of the orders stated
that their seniority would be determined by
the High Court separately as per final
decision of the Hon'ble Supreme Court in
Malik Mazhar Sultan's case. Adding to
more confusion, Prabhuji's case (supra) was
decided on 16.02.2010 and the seniority list
of pre-1998 appointees was quashed by this
Court.
Thereafter,
on
20.04.2010,
directions were issued in an interim
application filed in All India Judges'
Association's
case
(supra)
permitting
variation of the Quotas of 50:25:25 to
65:10:25, 10% posts being prescribed for
LCE based promotees. Consequently, on
29.01.2014, Ninth Amendment to Rules
1975 were notified amending Rule 6 and 22
(2) accordingly and providing a new roster
based thereon, but without retrospective
effect.

(16) In compliance of the direction of
the Hon'ble Supreme Court in Ashok Pal
Singh (supra) decided on 13.09.2010, a
Committee
was
constituted,
which
undertook an exercise for determination of
seniority,
including
determination
of
vacancies and based thereon submitted its
1st tentative report dated 02.03.2011,
thereafter
2nd
tentative
report
was
submitted
on
18.05.2011
including
appointees
of
1998-2000
recruitment.
Based thereon a final seniority list dated
14.07.2011 was prepared, which was
approved by the Full Court on 30.7.2011
and notified on 1.8.2001, which contained
the determination of seats as well as the
seniority upto 1998-2000 recruitment.

(17) Another exercise for determining
seniority of subsequent recruits that of
2007 and 2009 recruitment was undertaken
in continuation of the final seniority list
dated 14.07.2011, wherein the Committee
also determined the vacancies and their
allocation to various quotas to 2007 and
2009 batches, although the same had been
determined prior to such recruitment,
which was notified on 07.02.2012 to the
members of HJS inviting objections. A
tentative seniority list was issued on
25.07.2013,
objections
were
invited.
Thereafter, another tentative seniority list
dated 10.12.2014 of 2007 and 2009 batches
was issued on 20.12.2014 and objections
were again invited from the officers. After
considering the objections, the seniority
committee prepared a final seniority
report dated 23.09.2015, which was
placed
before
the
Full
Court
on
01.12.2015. The said final seniority
report dated 23.09.2015 was followed
by a supplementary final seniority
report dated 06.04.2016 as approved by
the Full Court on 14.04.2016 and which
was published on 18.04.2016.
952 INDIAN LAW REPORTS ALLAHABAD SERIES

(18) Apparently, the seniority list,
which was drawn by the High Court, on the
administrative side in pursuance to Ashok
Pal Singh's case (supra) on 14.07.2011 was
modified on
23.9.2015
based
on a
subsequent report of the Committee of the
same date and it is this report/seniority list,
which was challenged before a Co-ordinate
Bench of this Court in a bunch of writ
petitions lead being "Premkala Singh HJS
& 4 Ors V/s High court of Judicature at
Allahabad".
Subsequently,
Premkala
Singh's case (Supra) came to be decided on
30.06.2017, wherein a Co-ordinate Bench
of this Court, after tracing the background
of the present litigation, arrived at a
conclusion that the determination of
vacancies by the Committee did not require
any interference but determination of
seniority was held to be not sustainable as
there had been a complete non-adherence
to
the
Quota-Rota
Rule
and
the
determination of seniority in accordance
thereof in terms of Rule 22 and 26 of the
UPHJS Rule, 1975. The Co-ordinate Bench
of this Court also held that the judgment
rendered in All India Judges' Case (supra)
was not followed as was mandatorily
required. The Co-ordinate Bench of this
Court in the said Premkala Singh's case,
after recording the aforesaid finding
relevant to the context, held that (a)
determination
of
vacancies
by
the
Committee did not require any interference
and (b) quashing the seniority list, directed
for redetermination of the seniority in the
light of the observations made in the said
judgment.

(19) However, an appeal came to
be filed against Premkala Singh's case
(supra) before the Hon'ble Supreme Court.
The said appeal came to be decided vide
"High Court of Judicature at Allahabad
and Ors. V/s State of U.P & Ors." (2018)
15 SCC 439, wherein the Hon'ble Supreme
Court allowed the appeal and both the
determination of seniority as well as
determination of vacancies for the UPHJS
Recruitment Years 2007 and 2009 was
upheld in the following words:

"30. With regard to the QuotaRota rule, there is no doubt that this is a
mandatory requirement of the Rules. The
said requirement has however to be seen in
the peculiar fact situation. The issue of
determination of vacancies was embroiled
in continuous litigation. The Quota-Rota
rule could not be applied in the absence of
determination of vacancies. The suitability
test though validly laid down could not be
held till 2008 for reasons already noted. No
promotion could be given in absence of
suitability test. The rule provided for
seniority of the promotees to be fixed from
the date of availability of vacancy but such
seniority could also not be given in the
present fact situation. If rota rule is
applied, it will work serious prejudice to
the promotees. Thus, the Rules will have to
be given pragmatic interpretation. As laid
down by this Court in Direct Recruit ClassII Engineering Officers' Association versus
State of Maharashtra, (1990) 2 SCC 715, if
it becomes impractical to act upon rule
fixing quota from two sources, it is no use
insisting that the authority must give effect
to such a rule. Every effort has to be made
to respect a rule but if it is not feasible to
enforce it, the rule has to be given a
practical interpretation. Thus, interference
by the High Court with the seniority given
to the promotees above the direct recruits
without following the rotation principle
cannot be sustained."

(20) Consequently, the validity and
legality of the final seniority report dated
23.09.2015 and supplementary report dated
2 All. Harendra Bahadur Singh & Ors. Vs. State of U.P. & Ors.
953
06.04.2016
corresponding
to
the
recruitment year upto 2009, has been
upheld by the Hon'ble Supreme Court in
the said case and for all intents and
purposes, the said seniority list has attained
finality. Now, in the present petitions, the
final seniority list dated 31.01.2019 relating
to the recruitment year 2012 and 2014 is a
matter of challenge basically on the ground
that the same has not been prepared as per
UPHJS Rules of 1975.

C. Relevant Rules applicable to the
present issue

(21) Part-III of the UPHJS Rules,
1975
postulates
the
various
rules
concerning recruitment of an officer to the
HJS. Rule 5 of the said Rules, describes the
various sources of recruitment as herein
below :-

"5. Source of recruitment- The
recruitment to the service shall be made---
(a) by promotion from amongst the Civil
Judges (Senior Division) on the basis of
Principle
of
merit-cum-seniority
and
passing a suitability test.

(b) by promotion strictly on the
basis of merit through limited competitive
examination of Civil Judges (Senior
Division) having not less than five
years qualifying service;

(c) by direct recruitment
from amongst the 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."

(22) The quota for various
sources of recruitment under the
Rules are prescribed in Rule 6 of
UPHJS Rules, 1975, which inter-alia
says:

"6. Quota -- Subject to the
provisions of rule 8, the quota for various
sources of recruitment shall be -

(i) Uttar Pradesh Nyayik Sewa:

(a) from amongst the Civil Judges
(Senior Division) on the basis of merit -
cum seniority and passing a suitability test -
---65%

(b) On the basis of merit through
limited competitive examination of Civil
Judges (Senior Division) having not less
than five years' service --10%

Provided that in case of there
being any shortfall in the vacancies to be
filled up on the basis of in cadre
competitive examination, the short fall of
10% reserved for such promotion will be
made good by corresponding increase in
the quota reserved for promotion of Civil
Judge (Senior Division) referred to in
Clause (i) (a).
 (ii) Direct recruitment from Bar --
-25%

Provided that where the number
of vacancies to be filled in by any of the
sources 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:"

(23) As to the reservation for
Schedules caste, Scheduled Tribe, Other
Backward Classes, Rule 7 of the UPHJS
Rules, 1975 prescribes as under :-

"7. Reservation of posts for
Scheduled Caste, etc.- Reservation to
posts in the service for the members of the
Scheduled Castes, Scheduled Tribes and
other categories including women shall be
in
accordance
with
orders
of
the
Government for reservation as adopted by
the High Court.

Provided that twenty percent
horizontal reservation for women to posts
954 INDIAN LAW REPORTS ALLAHABAD SERIES
in service in direct recruitment from Bar in
Uttar Pradesh Higher Judicial Service shall
be subject to suitability i.e.