# 3 S.C.R. 107 NAWAL KISHORE MISHRA & ORS. ETC v. HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH ITS REGISTRAR GENERAL & ORS. ETC

- **Citation:** [2015] 3 S.C.R. 107
- **Court:** Supreme Court of India
- **Decided:** 2015-02-17
- **Case number:** Civil Appeal Nos. 1956-1957 of 2015
- **Bench:** Fakkir Mohamed Ibrahim Kalifulla, c ABHAY MANOHAR SAPRE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-107-nawal-kishore-mishra-ors-etc-v-high-court-of-judicature-at-30509
- **Pages:** 55

## Headnote

Service Law: .
Judicial service. - Appointment by High Court - To the
post of Direct Recruit District Judge '- In the unfilled D
reserved vacancies - By way of promotion from the 'in
service candidates' - Applying r.8(2) of Higher Judicial
Service Rules, 1975 - Challenged by the appellant
·~'-"'
(candidates belonging to the 'direct recruit' source) - On the
E
ground that the appointment was not in strict compliance
of the procedure prescribed u/s 3(2) of Public Service
(Reservation) for Scheduled Castes and Scheduled Tribes
and Other Backward Classes Act, 1994 -
Seeking
appointment to the unfilled posts from the 'direct recruit' F
source in the first instance - Locus standi of appellants to
challenge the appointment and propriety of the appointment
- Held: In the facts of the case, the appellants had the locus
to challenge the appointment- By applying s.3(2) of 1994
Act, there is no scope of filling the unfilled vacancies of G
reserved category either from the category of the direct
recruits or from the category of in-service candidates by
regular promotion - But in the present case, s.3(2), which
107
H
108
SUPREME COURT REPORTS
(2015] 3 S.C.R.
A provides the methodology in respect of unfilled reserved
posts, cannot be. involved because, what was adopted by
the High Court by adopting the 1994 Act was reservation
simp/icitor and not other consequences - The methodology
in respect of the unfilled reserved posts of direct recruit
B District Judges is governed by r.8 of Higher Judicial Service
Rules - The High Court rightly filled up the vacancies by
way of promotion, resorting to r.8(2) of the Higher Judicial
Service Rules and also by applying proviso to r. 8(2) and
thereby carry forward those unfilled reserved vacancies in
C the future years of recruitment - Filling up the unfilled
reserved vacancies from the direct recruit general category
candidates would run counter to the rule of reservation and
hence not permissible - Uttar Pradesh Public Service
0 (Reservation) for Scheduled Castes and Scheduled Tribes
and Other Backward Classes Act, 1994 - s.3(1) and (2) -
Uttar Pradesh Higher Judicial Service Rules, 1975 - n: 7
and 8(2).
E
Dismissing the appeals, the Court
HELD: 1. The appellants had every locus to
challenge the appointment made by the High Court by
invoking Rule 8(2) of the Uttar Pradesh Higher Judicial
Service Rules, 1975. It is not the stand of the High Court
F that the posts in the reserve category were kept intact
for being considered by way of selection and
appointment from the reserve category candidates as
provided under Section 3(2) of the Uttar Pradesh Public
~ervice (Reservation) for Scheduled Castes and
G Scheduled Tribes and Other Backward Classes Act,
1994. Section 3(2) would show that in the event of
inability to fill up the reserved category posts, the
process of selection should be continued in the very
H , same year in which the selection was earlier made and
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 109.
THR. R.G.
even thereafter if it remained unfilled, the post should A
be kept vacant for the future years of recruitments.
Since the High Court has not adopted the said
procedure except making an attempt to fill up by way
of selection in that year itself, there was every ·scope
to contend that the procedure prescribed under Section B
3(2) of the Reservation Act of 1994 was not strictly
adhered to. A larger issue as to the entitlement of the
appellants as successful candidates belonging to
'direct recruit' source to seek appointment to the
unfilled posts of that very source, namely, 'direct recruit' C
though belonging to reserved category, merits
consideration and would not disentitle the appellants
to raise a challenge as made in the writ petition. [para
10-11) [121-B-H; 122-A-C)
2.1. The High Court was well justified in applying
the extent of reservation prescribed in the Reservation
Act, 1994 by invoking the existing Rule 7 of the High
Court Rules. What was provided by way of reservation
D
for

## Text

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[2015) 3 S.C.R. 107
NAWAL KISHORE MISHRA & ORS. ETC.
A
v.
HIGH COURT OF JUDICATURE AT ALLAHABAD
THROUGH ITS REGISTRAR GENERAL & ORS. ETC.
B
(Civil Appeal Nos. 1956-1957 of 2015 etc.)
FEBRUARY 17, 2015.
[FAKKIR MOHAMED IBRAHIM KALIFULLA AND
c
ABHAY MANOHAR SAPRE, JJ.]
Service Law: .
Judicial service. - Appointment by High Court - To the
post of Direct Recruit District Judge '- In the unfilled D
reserved vacancies - By way of promotion from the 'in
service candidates' - Applying r.8(2) of Higher Judicial
Service Rules, 1975 - Challenged by the appellant
·~'-"'
(candidates belonging to the 'direct recruit' source) - On the
E
ground that the appointment was not in strict compliance
of the procedure prescribed u/s 3(2) of Public Service
(Reservation) for Scheduled Castes and Scheduled Tribes
and Other Backward Classes Act, 1994 -
Seeking
appointment to the unfilled posts from the 'direct recruit' F
source in the first instance - Locus standi of appellants to
challenge the appointment and propriety of the appointment
- Held: In the facts of the case, the appellants had the locus
to challenge the appointment- By applying s.3(2) of 1994
Act, there is no scope of filling the unfilled vacancies of G
reserved category either from the category of the direct
recruits or from the category of in-service candidates by
regular promotion - But in the present case, s.3(2), which
107
H
108
SUPREME COURT REPORTS
(2015] 3 S.C.R.
A provides the methodology in respect of unfilled reserved
posts, cannot be. involved because, what was adopted by
the High Court by adopting the 1994 Act was reservation
simp/icitor and not other consequences - The methodology
in respect of the unfilled reserved posts of direct recruit
B District Judges is governed by r.8 of Higher Judicial Service
Rules - The High Court rightly filled up the vacancies by
way of promotion, resorting to r.8(2) of the Higher Judicial
Service Rules and also by applying proviso to r. 8(2) and
thereby carry forward those unfilled reserved vacancies in
C the future years of recruitment - Filling up the unfilled
reserved vacancies from the direct recruit general category
candidates would run counter to the rule of reservation and
hence not permissible - Uttar Pradesh Public Service
0 (Reservation) for Scheduled Castes and Scheduled Tribes
and Other Backward Classes Act, 1994 - s.3(1) and (2) -
Uttar Pradesh Higher Judicial Service Rules, 1975 - n: 7
and 8(2).
E
Dismissing the appeals, the Court
HELD: 1. The appellants had every locus to
challenge the appointment made by the High Court by
invoking Rule 8(2) of the Uttar Pradesh Higher Judicial
Service Rules, 1975. It is not the stand of the High Court
F that the posts in the reserve category were kept intact
for being considered by way of selection and
appointment from the reserve category candidates as
provided under Section 3(2) of the Uttar Pradesh Public
~ervice (Reservation) for Scheduled Castes and
G Scheduled Tribes and Other Backward Classes Act,
1994. Section 3(2) would show that in the event of
inability to fill up the reserved category posts, the
process of selection should be continued in the very
H , same year in which the selection was earlier made and
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 109.
THR. R.G.
even thereafter if it remained unfilled, the post should A
be kept vacant for the future years of recruitments.
Since the High Court has not adopted the said
procedure except making an attempt to fill up by way
of selection in that year itself, there was every ·scope
to contend that the procedure prescribed under Section B
3(2) of the Reservation Act of 1994 was not strictly
adhered to. A larger issue as to the entitlement of the
appellants as successful candidates belonging to
'direct recruit' source to seek appointment to the
unfilled posts of that very source, namely, 'direct recruit' C
though belonging to reserved category, merits
consideration and would not disentitle the appellants
to raise a challenge as made in the writ petition. [para
10-11) [121-B-H; 122-A-C)
2.1. The High Court was well justified in applying
the extent of reservation prescribed in the Reservation
Act, 1994 by invoking the existing Rule 7 of the High
Court Rules. What was provided by way of reservation
D
for different categories including the Scheduled Castes E
and Scheduled Tribes etc., prior to the coming into force
of 1994 Act, has been brought into an Act by way of
substantive provision under Section 3(1). Therefore, if
any Department of the State including the High Court
were to adopt the prescribed rule of reservation after F
the coming into force of the Reservation Act, 1994, such
adoption can be only by way of adopting the relevant
provision viz., Section 3(1) c:/f the Act. After the
. emergence of the Reservation Aet, 1994, the application
of Rule 7 of the Higher Judicia'I Service Rules can be G
only by way of "adopting the statutory prescription
contained in Section 3(1 ). There is no scope for the High
Court to look for any Government order for the purpose
of applying the rule of reservation. [paras 29 and 30)
[140-F-H; 141-A-C, G)
H
110
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[2015] 3 S.C.R.
A
Pashupati Nath Sukul v. Nem Chandra Jain & Ors.
1984 (1) SCR 939 = (1984) 2 SCC 404 - referred to.
2.2. For all practical purposes the usage of the
expression 'order' in Rule 7 is only referable to the
B provision for reservation as contained in Section 3(1)
of the Reservation Act, 1994. Therefore if the said Act
was adopted by the High Court in exercise of its powers
under Rule 7, that would be sufficient for applying the
rule of reservation. Therefore, in the event of valid
C adoption of the rule of reservation of the Reservation
Act of 1994 by the High Court by exercising its power
under Rule 7, the same would be valid and in
accordance with law. [para 31] [142-G-H; 143-A]
'
o
State of Bihar and Another v. Bal Mukund Sah & Others
2000 (2) SCR 299 = (2000) 4 sec 640- followed.
Ashok Pa/. Singh & Ors. v. Uttar Pradesh Judicial
Services Association & Ors. 2010 (12) SCR 25 = (2010) 12
E SCC 635 - referred to.
3. By the resolution of the Selection and
Appointment Committee dated 24,3.2009 the rule of
·reservation as prescribed under. Section 3(1) of th.e 1994
Act was decided to be followed by the High Court. Thus,
F a reading of the resolution of the Selection Commjttee
and the resolution of the Full Court together would
constitute a valid adoption as contemplated under Rule
7. Thus, it is held that the High Court adopted the rule
G of reservation as per the Reservation Act, 1994 which
was well within the prescription contained in Rule 7.
[paras 44, 46 and 47] [149.-D, G-H, 150-C]
State of Bihar and Another v. Bal Mukund Sah & Others
H 2000 (2) SCR 299 = (2000) 4 SCC 640Ashok Pal Singh &
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 111
THR. R.G.
Ors. v. Uttar Pradesh Judicial Services Association & Ors. A
2010 (12) SCR 25 = (2010) 12 sec 635 - followed.
4.1. Section 3(2) of the Reservation Act which deals
with the manner in which unfilled vacancies of different
reserved categories are to be filled up. If Rule 8(2) of B
High Court Rules were to be applied, on its own, it will
have a direct impact on the prescription contained in
Section 3(2). Sub-Section (2) of s.3 under the
Reservation Act, 1994 prescribes that any unfilled
reserved vacancy should be carried forward and filled c
through special recruitment in that very year or in
succeeding year or years of recruitment as a separate
class of vacancy. It also states that such class of
vacancy should not be considered together with the
vacancies of the year of recruitment in which it is filled, D
meaning thereby the vacancies that exist in any
subsequent year or years of recruitment. It further
stipulates that for the purpose of deciding the maximum
percentage of reservation viz., 50% of the total
vacancies such carry forward vacancies should never E
be counted. The High Court carried out the exercise of.
special recruitment in that very year, but yet the posts
could not be filled up in that very year from the reserved
category. Thereafter, the High Court should have carried
forward the unfilled vacancies of the reserved category F
in the succeeding year or years of recruitment as a
separate class of vacancy. Therefore, applying Section
3(2), there is no scope for filling up of any of those
unfilled vacancies of the reserved category of any
particular recruitment year by the candidates belonging G
to any other categories either of Direct recruitment
source or by any other source viz., from the in-service
candidates by way of regular promotion or by way of
special merit promotion. [paras 49 and 52] [150-G; 151G-H; 152-A-G]
H
112
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[2015] 3 S.C.R.
'
A
4.2. Even while applying the rule of reservation, it
must be seen as to what extent the High Court chose
to adopt the rule of reservation. The resolution passed
by the selection and appointment committee dated
24.3.2009 which was adopted by the Full Court
B specifically m!!ntioned that the 'vacancies' should be
filled up applying the 'reservation' as per the
Reservation Act of 1994 as amended up to date. Thus,
it is clear that what was adopted was ~reservation'
C simplicitor and not other consequences. Therefore,
there is no question of invoking Section 3(2) of the
·Reservation Act, 1994 relating to consequential action
to be taken if the posts of direct recruit District Judges
are not filled up. Such a consequence cannot be stated
0 while applying Rule 7 of the High Court Rules which
merely refers to provision for reservation and nothing
more. Insofar as provision for reservation is concerned,
in the absence of any Government order prescribing
reservation, the only provision available is Section 3(1).
E Section 3(2) is only a methodology to be followed for
filling up the u·nfilled reserved posts. The methodology
in respect of the unfi!led reserved posts of direct recruit
District Judges is concerned, it is governed only by
Rule 8. In fact, even by applying Rule 8(2) by virtue of
F the proviso to the said Rule, the interest of the reserved
. category candidates is sufficiently safeguarded which
is preserved and filled up in the selection to be made
in the future years. [paras 55-56] [154-F-H; 155-B-F]
G
H
state of Bihar and Another v. Bal Mukund Sah & Others
2000 (2) SCR 29~ = (2000) 4 sec 640; Ashok Pal Singh
& Ors. v. Uttar Pradesh Judicial Services Association & Ors.
2010 (12) SCR 25 = (2010) 12 SCC 635 - followed.
4.3 Thus, by virtue of the adoption of the rule of
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 113
"THR. R.G.
reservation by invoking Rule 7 when the High Court A
decided to apply only to the extent of prescribed
percentage of 'reservation' for different categories,
namely, SC, ST and OBC as provided under Section 3(1)
of the Reservation Act 1994 in all other respects, it must
be held that it would be governed by its own rule B
namely the rules of the High Court pertaining to the
judicial service. [para 58] [156-E-F]
4.4. when the posts were reserved for the SC, ST,
filling up of those posts from the general category C
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. If such D
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 E
it could not be filled up in the relevant recruitment
years. If unfilled reserved vacancies are filled from the
general category candidates, such a contingency
created would run counter to the rule of reservation, F
and, therefore, the same cannot be countenanced. [para
63] [159-B-F]
Ashok Pal Singh & Ors. v. Uttar Pradesh Judicial
Services Association & Ors. 2010 (12) SCR 25 = (2010) 12
SCC 635 - referred to.
G
4.5. 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 H
114
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[2015] 3 S.C.R.
A ·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
B 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. [para 64] [15-G-H; 160C A]
4.6. 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
0
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. [para 65]
[160-F-G]
E State of U.P. & Anr. v. Johri Mal 2004 (1) Suppl. SCR 560 =
(2004) 4 SCC 714, Union of India v. Naveen Jindal & Anr.
2004 (1) SCR 1038 = (2004) 2 SCC 510 and Sri Dwarka
Nath Tewari & Ors. v. State of Bihar & Ors. AIR 1959 SC
249; R.K. Sabharwal & Ors. v. State of Punjab & Ors.1995
F (2) SCR 35 = (1995) 2 SCC 745 - referred to.
G
H
· Case Law Reference
2004 (1) Suppl. SCR 560 referred to para 6
2004 (1) SCR 1038
referred to para 6
AIR 1959 SC 249
1995 (2) SCR 35
2000 (2) SCR 299
2010 (12) SCR 25
referred to para 6
referred to para 7
followed
para 12 and 47
fo!!owed
para 12 and 59
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 115
THR. R.G.
1984 (1) SCR 939
referred to para 30
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1956-1957 of 2015.
A
From the Judgment and Order dated 02.03.2012 of the
High Court of Judicature at Allahabad in Civil Misc. Writ B
Petition Nos. 20566 and 57625 of 2010.
with
C. A. Nos. 1992-1993 & 1958-1959 of 2015
C
Dinesh Dwivedi, Manish Shankar Shrivastav, Krishnam
Mishra, Yasharth Kanth, Minakshi Vij, P. K. Jain, Saurabh
Jain, J. N. Jha, P. K. Goswami, Vibhuti Sushant Gupta,
Mushtaq Ahmad for the Appellants.
D
. lrshad Ahmad, AAG, Abhisth Kumar, Sudeep Kumar,
Ashok K. Srivastava, Pratush Kumar for the Respondents.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
granted.
E
2. Since the issues involved in the above appeals are
identical, all these appeals are disposed of by this common
F
judgment. We, ho~ever, refer to the facts dealt with by the
Division Bench of the High Court in SLP (C) 11924-25/2012
by judgment dated 02.03.2012.
3. The challenge in the writ petitions was to the
appointment made by the High Court to the post of Direct G
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 Uttar
Pradesh Higher Judicial Service Rules, 1975 (hereinafter
referred to as "the Rules"). The Division Bench of the High H
116
SUPREME COURT REPORTS
(2015] 3 S.C.R.
A Court dismissed the writ petitions. Aggrieved, the appellants
have come forward with these appeals.
4. To trace the brieffacts, on 15.04.2009 the High Court
notified and called for applications for filling up 68 vacancies
B in the Higher Judicial Service. Of the 68 vacancies, 24
vacancies were meant for open category, 21 for Other
Backward Classes (OBC), 21 for SC and 2 for ST. It is not
in dispute that all the 24 vacancies in the open category
got filled up on merits. Of the 21 vacancies in the OBC, 1 O
C alone could be appointed leaving 11 vacancies to remain.
All the SC/ST vacancies numbering 23 were also not filled
up. In the unfilled 34 vacancies, the High Court promoted
the 'in service candidates'. The appellants were successful
in the written test and also attended the interview. According
D to the appellants, even applying Rule 8(2) of the Rules, all
the 68 vacancies were direct recruit vacancies and that in
the first instance, the unfilled vacancies should have been
filled up only from the other successful candidates from the
direct recruitment source. In other words, the contention was
E that only if no other successful candidate was available from
the direct recruit source belonging to any of the categories,
namely, open category or any other category such as OBC
or SC/ST then and then alone the High Court could have
F resorted to promotion of 'in service candidates'. To put it
differently, according to the appellants since the posts
advertised were by way of direct recruitment, it was meant
for that particular source of recruitment, namely, "direct
recruit" and all those successful candidates of that source
G ·alone, namely, 'direct recruit' were in the first instance
eligible to be considered for being appointed to the unfilled
posts of any of the categories, namely, open or OBC or SC
or ST and in the event of unavailability of any candidate
from that source then and then alone the High Court could
H have resorted to filling up of those posts by way of
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 117
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
promotion of 'in service candidates'. Since, the above A
submission of the appellants did not find favour with the
High Court, the appellants are before us.
5. We heard Mr. Dwivedi, learned Senior Counsel for
the appellants Mr. Ashok Srivastava, learned counsel for the B
High Court and Mr. lrshad Ahmad, Additional Advocate
General for the State.
6. The contentions of Mr. Dwivedi learned Senior
Counsel while assailing the judgment of the High Court were C
three-fold. The learned Senior Counsel submitted that in
order to apply the rule of reservation by the High Court, as
has been stipulated in the Uttar Pradesh Public Services
(Reservation) for Scheduled Casts and Scheduled Tribes
and Other Backward Classes Act, 1994 (hereinafter referred o
to as "the Reservation Act of 1994"), there should have been
express adoption of only orders pertaining to such
reservation passed by the Government and not the Act
itself. The said contention of learned Senior Counsel was
based upon the specific contents of Rule 7 of the Rules.
E
The learned Senior Counsel then contended that in order
to apply the rule of reservation under Rule 7, the High Court
should adopt such Order pertaining to reservation and
according to the appellants there was no adoption of either
any of the order of the Government providing for reservation F
or the application of the Reservation Act of 1994 itself as
claimed by the High Court. It was then contended that the
claim of the High Court that the High Court adopted the rule
of reservation under Rule 7 was not true. It was lastly
contended that assuming the High Court was correct in G
claiming that the whole of the Reservation Act was adopted
by it then Section 3(2) of the Reservation Act was violated
and consequently the filling up of the unfilled posts of direct
re.cruits of the year 2009 by way of promotion of 'in service H
118
SUPREME COURT REPORTS
(2015] 3 S.C.R.
A candidates' was liable to be set aside. In support of his
submissions, Fearned Senior Counsel relied upon the
Constitution Bench decision of this Court reported in State
of Bihar and Another v. Bal Mukund Sah & Others -
(2000) 4 SCC 640 (CB), as well as the decisions reported
B
::1 Ashok Pal Singh & Ors. v. Uttar Pradesh Judicial
• Services Association & Ors.- (2010) 12 SCC 635, State
of U.P. & Anr. v. Johri Mal- (2004) 4 SCC 714, Union of
India v. Naveen Jindal & Anr. - (2004) 2 SCC 510 and
Sri Dwarka Nath Tewari & Ors. v. State of Bihar & Ors.
C -AIR 1959 SC 249 (CB).
7. As against the above submissions Mr. Raghvendra
Shrivastava, learned standing counsel for the High Court
submitted that the appellants have no locus to challenge
D the appointme~ts made to the posts meant for reserved
category, that under Article 13(3) of the Constitution, a law
would include inter alia an Act, rules, regulations and orders
of the Government and, therefore, the adoption of the whole
of the Reservation Act b}' the High Court cannot be faulted.
E He placed reliance upon the decision of this Court reported
· as R.K. Sabharwal & Ors. v. State of Punjab & Ors. -
(1995) f SCC 745 and Pashupati Nath Sukul v. Nem
Chandra Jain & Ors. - (1984) 2 SCC 404. According to
F learned standing counsel, as per the proceedings of the
Selection Committee meeting, which was also approved by
the Full Court, the Reservation Act on the whole was
adopted in accordance with Rule 7 of the Rules and,
therefore, the action of the High Court could not have been
G challenged. The learned standing counsel by referring to an
order passed by this Court in the earlier round in I.A. No.87
of 2010 contended that applying Section 3(2) of the
Reservation Act and as directed by this Court in the said
order, selection was again held in the same year to fill those
H unfilled reserved vacancies and as in that process also, the
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 119
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
seats could not be filled up, the High Court invoked Rule A
8(2) of the Rules by promoting the 'in service candidates'
to those unfilled vacancies. The learned standing counsel
further contended that the proviso to Rule 8(2) was strictly
followed and those vacancies of the year 2009 which were
filled up from 'in service candidates' were subsequently B
carried forward in the subsequent years as reserved
category vacancies. The learned counsel, therefore,
contended that there was no violation in the appointment
and filling up of Direct Recruit District Judge posts of the
year 2009 and no interference is called for by this Court.
C
8. Having heard learned counsel for the respective
parties, the questions that arise for consideration in these
appeals are as under:
a) Whether the appellants have the locus standi to
challenge the· appointments made by the High Court
in the filling up of the unfilled vacancies of the reserved
categories in the Direct Recruitment Posts by way of
D
promotion of the 'in service candidates'?
E
b) Whether the High Court could have validly adopted
the Reservation Act of 1994 by relying upon Rule 7 of
the High Court Rules?
F
c) Whether the Reservation Act of 1994 or any of the
order of the Government providing for reservation was
validly adopted by the High Court as claimed by it?
d) While filling up the unfilled posts of direct recruit
vacancies by way of promotion under Rule 8(2), did the G
High Court fall into errors in not considering the
appellants who were the successful candidates and
who hailed fron:i the very same source, namely, direct
recruitment, who alone were eligible to be considered H
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SUPREME COURT REPORTS
[2015] 3 S.C.R.
A
in the first instance even as per Rule 8(2)?
e) Assuming the Reservation Act of 1994 was validly
adopted by the High Court, yet by ignoring Section 3(2)
of the said Act, was the High Court justified in filling up
B
the posts by way of promotion of 'in service
candidates'?'
9. As far as the first question is concerned, namely,
about the locus of the appellants which was raised at the
c · instance of learned standing counsel for the High Court, it
was contended that the appellants belonged to general
category and the posts which were filled up were all
reserved category posts and; therefore, appellants had no
locus to challenge the action of the High Court. In support
o of the said contention, reliance was placed upon the
Constitution Bench judgment of this Court reported in R.K.
Sabharwal (supra). In paragraph 4, this Court held that
when a percentage of reservation is fixed in respect of
particular cadre, the fact that considerable number of
E reserved categofY candidates got appointed against the
general category, the given percentage of reservation has
to be provided in addition. By relying upon the said ratio of ·
the judgment, it was contended that the appellants had no
·locus.
F
10. When we test the contention of the learned standing
counsel, it will have to be pointed out that the challenge in
the writ petition before the High Court was to the
appointment made to the unfilled vacancies of 'reserve
G category' posts by way of promotion of 'in service
candidates' in violation of Rule 8(2) of the Rules. The
contention was that while making such appointments by way
of promotion, .the High Court ignored the successful
candidates who competed in the 'direct recruit' source
H though they belonged to the general category. The
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 121
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challenge was on the ground that since the source of A
recruitment was direct recruitment, unless the candidates
available in the direct recruitment source were considered
in the first instance for appointment, the High Court could
not have resorted to filling up of those posts by way of
promotion of 'in service candidates'. In fact, it is not the B
stand of the High Court that the posts in the reserve
category were kept intact for being considered by way of
selection and appointment from the reserve category
candidates as provided under Section 3(2) of the
Reservation Act of .1994. A glance of Section 3(2) for the C
present purpose, would show that in the event of inability
to fill up the reserved category posts, the process of
selection should be continued in the very same year in
which the selection was earlier made and even thereafter 0
if it remained unfilled, the post should be kept vacant for
the future years of recruitments. Since the High Court has
not adopted the said procedure except making an attempt
to fill up by way of selection in that year itself as directed
by this Court in I.A. No.87 of 2010, it must be stated that E
there was every scope to contend that the procedure
prescribed under Section 3(2) of the Reservation Act of
1994 was not strictly adhered to. Whether Section 3(2) will
be applicable at all is one other question involved in this
appeal with which we will make a detailed consideration at F
an appropriate stage.
11. In the above stated background, when we examine
the contention of learned standing counsel for the High
Court as regards the locus of the appellants, it must be G
stated that a larger issue as to the entitlement of the
appellants as successful candidates belonging to 'direct
recruit' source to seek appointment to the unfilled posts of
that very source, namely, 'direct recruit' though belonging
to reserved category, merits consideration and would not H
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A disentitle the appellants to raise a challenge as made in the
·writ petition. If the appellants are able to make out a case
on the said contention, it will have to be stated that their
challenge to the filling up of the posts as made by the High
Court by adopting the procedure prescribed under Rule 8(2)
B can be validly raised as a point of challenge. Consequently,
it will have to be held that the appellants had every locus
to challenge the appointment made by the High Court by
invoking Rule 8(2) of the Rules. In the light of the above
special features in this case, we do not find any scope to
C apply the decision relied upon by learned counsel for the
High Court which stands on entirely different principle.
12. While examining this contention based on Rule 7
as well as Rule 8(2) of the Rules of the High Court, we feel
D it appropriate to refer to a Constitution Bench decision of
this Court reported in State of Bihar v. Bal Mukund Sah
(supra) and Ashok Pal Singh (supra). In the Constitution
Bench decision, the question which was posed for
consideration was "whether the Legislature of the appellant
E State of Bihar was competent to enact the Bihar
Reservation of Vacancies in Posts and Services (for
Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1991 (hereinafter referred to as "the Act'J,
F insofar as Section 4 thereof sought to impose reservation
for direct recruitment to the posts in the Judiciary of the
State, subordinate to the High Court of Patna, being the
posts of District Judges as well as the posts in the lower
judiciary at the grass-root level, governed by the provisions
G of the Bihar Judicial Service (Recruitment) Rules, 1955'. Civil
·Appeal No.9072 of 1996 deals with the question of
reservation in the posts in the District Judiciary while the
companion appeal deals with the posts in the Subordinate
Judiciary at grass-root level under the District Courts
H. concerned ...... "
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 123
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
13. While dealing with the said contention, the points A
for determination were formulated in paragraph 17 which
reads as under:
"17. In the light of the aforesaid rival contentions, the
following points arise for our determination:
B
1. Whether the impugned Act of 1991 on its express
language covers "Judicial Service" of Bihar State.
2. If the answer to Point 1 is in the affirmative, whether
the provisions of the impugned Act, especially, Section C
4 thereof in its application to the Subordinate Judiciary
would be ultra vires Articles 233 and 234 of the
Constitution of 1ndia and hence cannot be sustained.
3. In the alternative, whether the aforesaid provisions D
of the Act are required to be read down by holding that
Section 4 of the Act will not apply to direct recruitment
to the posts comprised in the Bihar Superior Judicial
Service as specified in the Schedule to the Bihar
Superior Judicial Service Rules, 1951 as well as to the E
Bihar Judicial Service governed by the Bihar Judicial
Service (Recruitment) Rules, 1955, comprising of the
posts of Subordinate Judges and Munsiffs under the
District Judiciary.
F
4. What final order.
Before we deal with the aforesaid points for
determination, it will be necessary to keep in view the
relevant provisions of the Constitution which have a G
direct impact on the resolution of the controversy
projected by these points."
14. On point number one, the Constitution Bench took
the view as under in paragraph 27:
H
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"27 ...... 0n the aforesaid scheme of the Act, the High
Court in the impugned judgment, has taken the view
that the operation of Section 4 for offices or
departments of the Judiciary of the state of Bihar would
cover only the Ministerial Staff of the District Courts and
courts subordinate thereto and would not include
Presiding Officers and therefore, Section 4 will not
govern the direct recruitment to the posts of Presiding
Officers of the District Judiciary as well as of the
Subordinate Judiciary. It is difficult to appreciate this line
of reasoning on the express language of the relevant
provisions of Section 4 read with the definition
provisions. It becomes obvious that the term "any office"
of the Judiciary of the state of Bihar would naturally
include not only Ministerial Staff but also officers,
including Presiding Officers of courts comprised in the
Judiciary of the State. Once that conclusion is reached
on the express language of the relevant provisions of
the Act, it cannot be held that the thrust of Section 4
would not apply to govern reservation for direct
recruitment to the posts of Presiding Officers in the
District Courts as well as courts subordinate thereto,
as all of them will form part and parcel of the Judiciary
of the State of Bihar and will have to be treated as
holders of offices in the state Judiciary. Consequently,
it is not possible to agree with the contention of learned
Senior Counsel, Shri Thakur for the High Court that on
the exprEilss provisions of the Act, Section 4 cannot
apply to govern recruitment to posts in the Subordinate
Judiciary: The first point for determination, therefore,
has to be answered in the affirmative in favour of the
appellants and against the respondents."
15. On point number two, the position was stated as
H under in paragraphs 30, 31 and 32:
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 125
THR. R.G [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
30. It has also to be kept in view that neither Article A
233 nor Article 234 contains any provision !,?f being
subject to any enactment by the appropriate Legislature
as we find in Articles 98, 146, 148, 187, 229(2) and
324(5). These latter Articles contain provisions
regarding the rule-making power of the authorities B
concerned subject to the provisions of the law made
by Parliament or the Legislature. Such a provision is
conspicuously absent in Articles 233 and 234 of the
Constitution of India. Therefore, it is not possible to
agree with the contention of learned counsel for the C
appellant State that these Articles only deal with the
rule-making power of the Governor, but do not touch
the legislative. power of the competent Legislature. J!
has to be kept in view that once the Constitution D
provides a complete code for regulating recruitment and
appointment to the District Judiciary and to the
Subordinate Judiciary, it gets insulated from the
interference of any other outside agency. We have to
keep in view the scheme of the Constitution and its E
basic framework that the Executive has to be separated
from the Judiciary. Hence. the general sweep of Article
309 has to be read subject to this complete code
regarding appointment of District Judges and Judges
in the Subordinate Judiciary.
F
31. In this connection, we have also to keep in view
Article 245 which, in its express terms, is made subject
to other provisions of the Constitution which would
include Articles 233 and 234. Consequently, as these G
twin Articles cover the entire field regarding recruitment
and appointment of District Judges and Judges of the
Subordinate Judiciary at base level pro tanto the
otherwise paramount legislative power of the State
Legislature to operate in this field clearly gets excluded H
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A
by the constitutional scheme itself. Thus both Articles
309 and 245 will have to be read subject to Articles 233
and 234 as provided in the former articles themselves.
B
c
D
E
F
G
32. It is true, as submitted by learned Senior Counsel,
Shri Dwivedi for the appellant State that under Article
16(4) the State is enabled to provide for reservations
in services. But so far as "Judicial Service" is
concerned, such reservation can be made by the
Governor, in exercise of his rule-making power only
after consultation with the High Court. The enactment
of any statutory provision dehors consultation with the
High Court for regulating the recruitment to the District
Judiciary and to the Subordinate Judiciary will clearly
fly in the face of the complete scheme of recruitment
and agpointment to the Subordinate Judiciary and the
exclusive field earmarked in connection with such
appointments by Articles 233 and 234. It is not as if that
the High Courts being constitutional functionaries may
be oblivious of the need for a scheme of reservation if
necessary in appropriate cases by resorting to the
enabling provision under Article 16(4). The High Courts
can get consulted by the Governor for framing
appropriate rules regarding reservation for governing
recruitment under Articles 233 and 234. But so long as
it is not done. the Legislature cannot. by an indirect
method. completely bypassing the High Court and
exercising its legislative power. circumvent and cut
across the verv scheme of recruitment and appointment
to the District Judiciary as envisaged by the makers of
the Constifution. Such an exercise. apart from being
totally forbidden by the constitutional scheme. will also
fall foul on the concept relating to "separation of powers
between the Legislature. the Executive and the
H
Judiciary" as well as the fundamental concept of an
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 127
THR. R.G. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
"independent Judiciary". Both these concepts are now A
elevated to the level of basic structure of the
Constitution ahd are the very heart of the constitutional
scheme."
(Emphasis added) B
16. Ultimately by referring to the Constitutional mandate
of Articles 233 and 234, it was held as under in paragraph
38:
"38. Shri Dwivedi, learned Senior Counsel for the C
appellant State was right when he contended that Article
16(4) is an enabling provision permitting the State to
lay down a scheme of reservation in State services. It
may also be true that Judicial Service can also be 0
considered to be a part of such service as laid down
by this Court .in the case of 8.S. Yadav. However. so
far as the question of exercising that enabling power
under Article 16(4) for laying down an appropriate
scheme of reservation goes, as seen earlier. we cannot E
be oblivious of the fact that the High Court. being the
high constitutional functionary, would also be alive to
its social obligations and the constitutional guideline for
having a scheme of reservation to ameliorate the lot
of deprived reserved categories like SC. ST and Other F
Backward Classes. But for that purpose. the Governor
can. in consultation with the High Court. make
appropriate rules and provide for a scheme of
reservation for appointments at grass-root level or even
at the highest level of the District Judiciary, but so long G
as this is not done. the State Legislature cannot. by
upsetting the entire apple cart and totally bypassing the
constitutional mandate of Articles 233 and 234 and
without being required to consult the High Court. lay
down a statutory scheme of reservation as a roadroller H
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straitjacket formula uniformly governing all State
services. including the Judiciary. It is easy to visualise
that the High Court may, on being properly and
effectively consulted, endorse the Governor's view to
enact a provision of reservation and lay down the
percentage of reservation in the Judicial Service, for
which it will be the appropriate authority to suggest
appropriate measures and the required percentage of
reservation, keeping in view the thrust of Article 335
which requires the consideration of the claim of
members of SC, ST and OBC for reservation in
services to be consistent with the maintenance of
efficiency of administration. It is obvious th'at
maintenance of efficiency of judicial administration is
entirely within the control and jurisdiction of the High
Court as laid down by Article 235. The State Legislature,
on its own, would obviously lack the expertise and the
knowledge based on experience of judicial
administration which is possessed by the High Court.
Consequently, bypassing the High Court. it cannot. in
exercise of its supposed paramount legislative power
enact any rule of thumb and provide a fixed percentage
of reservation for SC. ST and Other Backward Classes
in Judicial Servi::es and also lay down detailed
f
procedure to be followed as laid down by sub-sections
(3) to (6) of Section 4 for effecting such statutorily fixed
50% reservation. It is easy to visualise that if the High
Court is not consulted and obviously cannot be
consulted while enacting any law by the State
G
Legislature and en bloc 50% reservation is provided in
the Judicial Service as is sought to be done by Section
4 of the Act and which would automatically operate and
would present the High Court with· a fait accompli, it
would be deprived of the right to suggest during the
H
constitutionally guaranteed consultative process, .Qy
NAWAL KISHORE MISHRA v. HIGH COURT OF ALLAHABAD 129
THR. R.G.