# ASHOK PAL SINGH AND ORS v. U.P. JUDICIAL SERVICES ASSOCIATION AND ORS

- **Citation:** [2010] 12 S.C.R. 25
- **Court:** Supreme Court of India
- **Decided:** 2010-09-13
- **Case number:** Civil Appeal No. 1312 of 2005
- **Bench:** R.V. Raveendran, Markandey Kat Ju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-pal-singh-and-ors-v-u-p-judicial-services-association-and-ors-26370
- **Pages:** 55

## Headnote

Judicial Service:
A
B
Uttar Pradesh Higher Judicial Service Rules, 1975 (UnC
amended and amended) - Rules 6, 8 and 22 - Higher
Judicial Service - Recruitment, appointment and promotion
- Direct recruitment quota and promote quota - Dispute over
inter-se seniority of direct recruits and promotees - Four
rounds of litigation - Earlier decisions of Supreme Court and D
the Service Rules harmonized - Held: Direct recruits to be
given quota in the temporary posts also - Quota of direct
recruits is '15%' and not 'upto 15%' - Though the quota of
direct recruits is fixed, there is flexibility in fixing the vacancies
to be filled by direct recruitment and vacancies to be filled by E
promotion - High Court can make adjustments in fixing the
number of officers to be appointed by promotion and direct
recruitment as shown in Rule 8(2) and the provisos thereto
ensuring that the number of direct recruits does not exceed
15% of the total strength of the service - Proviso to Rule 8(2)
F
to be read in the context of the quashing of Sub-Rules (3) and
(4) of Rule 22 -Total vacancies to be filled up at a recruitment
by applying sub-rules (1) and (2) of Rule 8 and its provisos -
There is no question of unfilled vacancies being carried
forward for the purpose of fixing the number of officers to be
taken at the next recruitment.
G
The recruitment and appointment to the U.P. Higher
Judicial Service were governed by the U.P. Higher
Judicial Services Rules, 1975. In terms of the Rules, the
25
H
26
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A vacancies were filled by i) direct recruitment from the Bar;
and ii) by promotion from amongst a) Uttar Pradesh
Nyayik Sewa and b) Uttar Pradesh Judicial Officers
Service (Judicial Magistrates).
8
The issue of inter-se seniority between promotees
and direct recruits in the Uttar Pradesh Higher Judicial
Services was considered by the Supreme Court in two
earlier decisions viz. P.K. Dixit's case* and O.P. Garg's
case**. The issue again can:ie up in Srikant Tripathi's
C case***, wherein the Supreme Court issued a number of
directions.
The UP Higher Judicial Service Association filed a
writ petition seeking (i) a direction to the State and the
High Court not to make any appointment by direct
D recruitment in the UP Higher Judicial Service until the
posts available for promotion of members of the UP
Nyayik Sewa with effect from 1988 recruitment are
calculated and filled up in accordance with the Rules as
directed by the Supreme Court in Srikant Tripathi; (ii) a
E direction to the State and the High Court to appoint to the
UP Higher Judicial Service, the members of the said
Association against the 222 existing vacancies in the
quota of promotees; and (iii) quashing the decision of the
Full Court of the High Court accepting the recommendF
ations of the three-member Sub-Committee.
A Division Bench of the High Court allowed the writ
petition and directed a fresh exercise to be carried out in
the light of Srikant Tripathi to determine the vacancies
and their distribution between the three sources of
G recruitment as per their quota under the Rules, for the
recruitment years 1988 to 1998 in accordance with the
following guidelines: (1)the number of the officers of
Nyayik Sewa and Judicial Service who were already
promoted and appointed against temporary posts under
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
27
SERVICES ASSOCIATION
Rule 22(3) or 22(4) of the Rules and whose appointments A
have been protected in O.P. Garg would be taken into
consideration and the number of vacancies equal to the
number of such officers shall be excluded from
computation; (2) while applying the ratio of judgment in
O.P. Garg and distributing temporary as well as B
permanent vacancies, allocation of 15% vacancies of the
quota of direct recruits under Rule 6 of the Rules, has
further to be subject to ceiling of 15% of the permanent
strength of service, till the amendment in the rules came
into effect in 1996; (3) while making an exercise to find c
out

## Text

_Characters 0–39,934 of 102,293. This is a partial read: ask again with offset=39934 for what follows._

[2010] 12 S.C.R. 25
ASHOK PAL SINGH AND ORS.
V.
U.P. JUDICIAL SERVICES ASSOCIATION AND ORS.
(Civil Appeal No. 1312 of 2005)
SEPTEMBER 13, 2010
[R.V. RAVEENDRAN AND MARKANDEY KAT JU, JJ.]
Judicial Service:
A
B
Uttar Pradesh Higher Judicial Service Rules, 1975 (UnC
amended and amended) - Rules 6, 8 and 22 - Higher
Judicial Service - Recruitment, appointment and promotion
- Direct recruitment quota and promote quota - Dispute over
inter-se seniority of direct recruits and promotees - Four
rounds of litigation - Earlier decisions of Supreme Court and D
the Service Rules harmonized - Held: Direct recruits to be
given quota in the temporary posts also - Quota of direct
recruits is '15%' and not 'upto 15%' - Though the quota of
direct recruits is fixed, there is flexibility in fixing the vacancies
to be filled by direct recruitment and vacancies to be filled by E
promotion - High Court can make adjustments in fixing the
number of officers to be appointed by promotion and direct
recruitment as shown in Rule 8(2) and the provisos thereto
ensuring that the number of direct recruits does not exceed
15% of the total strength of the service - Proviso to Rule 8(2)
F
to be read in the context of the quashing of Sub-Rules (3) and
(4) of Rule 22 -Total vacancies to be filled up at a recruitment
by applying sub-rules (1) and (2) of Rule 8 and its provisos -
There is no question of unfilled vacancies being carried
forward for the purpose of fixing the number of officers to be
taken at the next recruitment.
G
The recruitment and appointment to the U.P. Higher
Judicial Service were governed by the U.P. Higher
Judicial Services Rules, 1975. In terms of the Rules, the
25
H
26
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A vacancies were filled by i) direct recruitment from the Bar;
and ii) by promotion from amongst a) Uttar Pradesh
Nyayik Sewa and b) Uttar Pradesh Judicial Officers
Service (Judicial Magistrates).
8
The issue of inter-se seniority between promotees
and direct recruits in the Uttar Pradesh Higher Judicial
Services was considered by the Supreme Court in two
earlier decisions viz. P.K. Dixit's case* and O.P. Garg's
case**. The issue again can:ie up in Srikant Tripathi's
C case***, wherein the Supreme Court issued a number of
directions.
The UP Higher Judicial Service Association filed a
writ petition seeking (i) a direction to the State and the
High Court not to make any appointment by direct
D recruitment in the UP Higher Judicial Service until the
posts available for promotion of members of the UP
Nyayik Sewa with effect from 1988 recruitment are
calculated and filled up in accordance with the Rules as
directed by the Supreme Court in Srikant Tripathi; (ii) a
E direction to the State and the High Court to appoint to the
UP Higher Judicial Service, the members of the said
Association against the 222 existing vacancies in the
quota of promotees; and (iii) quashing the decision of the
Full Court of the High Court accepting the recommendF
ations of the three-member Sub-Committee.
A Division Bench of the High Court allowed the writ
petition and directed a fresh exercise to be carried out in
the light of Srikant Tripathi to determine the vacancies
and their distribution between the three sources of
G recruitment as per their quota under the Rules, for the
recruitment years 1988 to 1998 in accordance with the
following guidelines: (1)the number of the officers of
Nyayik Sewa and Judicial Service who were already
promoted and appointed against temporary posts under
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
27
SERVICES ASSOCIATION
Rule 22(3) or 22(4) of the Rules and whose appointments A
have been protected in O.P. Garg would be taken into
consideration and the number of vacancies equal to the
number of such officers shall be excluded from
computation; (2) while applying the ratio of judgment in
O.P. Garg and distributing temporary as well as B
permanent vacancies, allocation of 15% vacancies of the
quota of direct recruits under Rule 6 of the Rules, has
further to be subject to ceiling of 15% of the permanent
strength of service, till the amendment in the rules came
into effect in 1996; (3) while making an exercise to find c
out (in accordance with direction no.2) as to whether the
direct recruits taken into service are in excess of the
quota or not, simultaneous exercise has to be done for
compliance of direction no.3 in Srikant Tripathi (to the
effect that if in each recruitment year, posts were D
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) E
and vacancies of the quota of promotees shall be deemed
to have been filled up from the date they are entitled to
promotion; (4) thirty one posts of the service which have
been transferred to Uttaranchal with effect fro11130.9.2001
shall be excluded while determining the strength of the
service in order to work out 15% of the quota of direct F
recruits; (5) out of 13 unnoticed vacancies, found by the
office in the year 1988 only two vacancies equal to 15%
of the quota of direct recruits be given to them instead
of adjusting five appointments en bloc and again giving
one out of eight vacancies to them applying 15% quota G
rule and (6) the second proviso to Rule 6 be also given
effect to as and when the occasion arises.
In the instant appeals the questions arising for
H
28
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
consideration were (i) whether the vacancies occupied by
judicial officers promoted and appointed against
temporary posts under Sub-Rule (3) or (4) of Rule 22
should be excluded when computing the respective
quotas for promotees and direct recruits; (ii) whether the
B direct recruits are entitled to 15% of the vacancies as a
fixed quota or whether the said percentage is a ceiling
imposed in regard to direct recruitment meaning that the
vacant posts shall not be filled up more than 15% by the
direct recruits; (iii) whether the words "15% of the total
c permanent strength of the service" occurring in first
proviso to sub-Ru.le (2) of Rule 8 of the unamended Rules
(as contrasted from "15% of the strength of the service"
after the amendment), shall be given effect in computing
the respective quotas of promotees and direct recruits till
0
the amendment of Rules (effective from 15.3.1996)
deleting the word "permanent" in the said first proviso
and (iv) whether the procedure of carrying forward
vacancies adopted by the full court of the High Court is
erroneous having regard to the specific provisions of
E
Rule 8(2) and direction no.3 issued by the Supreme Court
in Srikant Tripathi.
F
Partly allowing the appeal, the Court
HELD:
Re: Question (i)
1. In 0. P. Garg, this Court struck down Rules 22(3)
and 22(4) which confined the appointment to temporary
posts to only promotees (Nyayik Sewa and Judicial
G Magistrates) and held that when temporary posts under
Rule 4(4) of the Uttar Pradesh Higher Judicial Service
Rules, 1975 are created as addition to the cadre, the direct
recruits could not be denied their share of the quota as
provided under Rule 6 of the said Rules; and as the
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
29
SERVICES ASSOCIATION
services were comprised of three sources including the A
direct recruitment, there was no justification to deprive
the direct recruits of their share in the temporary posts
in the service. This court also struck down the first
proviso to Rule 26(1 )(a). As a consequence of striking
down of the sub-rules(3) and (4) of Rule 22, the B
appointments already made by applying those rules had
to be invalidated to the extent of 15% which was the
quota of direct recruits, resulting in the reversion of those
who were promoted to vacancies to which. direct recruits
were entitled and filling those vacancies by direct c
recruitment. But, this Court did not want any of the
appointments already made under the sub-rules 22(3) and
(4) to be invalidated. It, there.fore, extended limited
protection to those appointments of promotees already
made to the higher temporary posts which ought to have D
gone to the direct recruits quota by-directing that
appointments already made under Rules 22(3) and 22(4)
shall not be invalidated. This saved such promotees from
reversion. What was saved was only their appointments
and not the seniority by reason of the illegal E
appointments. The effect of saving the promotee from
invalidation of the promotion is that he would be allowed
to continue, but his seniority will be reckoned only when
he is adjusted against a promotee vacancy in the next
recruitment. Therefore, all the consequences of striking
down Rules 22(3) and 22(4) followed, the only F
consequence that was excluded was the invalidation of
appointments already made by applying the said subrules 22(3) and 22(4). Such protection cannot be widened
or extended, to deny the quota of direct recruits in the
temporary vacancies and thereby nullify the striking off G
the said sub-rules. Nor can the protection against
invalidation of promotion be used to exclude the number
of vacancies equal to the number of officers who were
given protection, while computing the vacancies to be
H
30
SUPREME COURT REPORTS
(2010] 12 S.C.R.
A
filled by different sources. Consequently, in spite of the
protection against invalidation and reversion, all the
appointments of promotees to temporary vacancies will
have to be counted and adjusted against the substantive
vacancies under promotee quota unde; the Rules. In
B short, the direct recruits should be given quota in the
temporary posts also. Therefore, the first direction in the
impugned judgment of the High Court (that vacancies
occupied by promotees in excess of their quota shall be
excluded from computation of respective quotas for direct
c recruitment and promotion) is contrary to the decision in
0. P. Garg, and cannot be sustained. [Paras 12, 13] [61--
C-D; 62-C-H; 63-A-B]
* P.K. Dixit vs. State of Uttar Pradesh 1987 (4) SCC 621
and ** O.P. Garg v. State of UP. & Ors. 1991 (Supp) 2 SCC
D 51, referred to.
·
Re : Question No.(ii)
2.1. Rule 6 relates to quota for various sources of
E recruitment and provides that the quota for direct
recruitment from the Bar shall be 15% of the vacancies
subject to the provision of Rule 8. Sub-Rule (2) of Rule 8
provides that if at any selection, the number of selected
direct recruits available for appointment is less than the
F
number of recruits decided by the High Court to be taken
from that source, the court may increase accordingly the
number of recruits to be taken by promotion from the
Nyayik Sewa. The first proviso to the said sub-rule
provides that the number of vacancies filled in as
aforesaid under the Sub-Rule (2) of Rule 8 shall be taken
G 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 and in so doing, the percentage of
direct recruits in the service does not in any case exceed
H 15% of the total permanent strength of the service. By the
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
31
SERVICES ASSOCIATION
1996 amendment to the Rules, with effect from 15.3.1996, A
the word total permanent was deleted and as a result the
last part of the first proviso to Rule 8(2) from 15.3.1996
reads thus : "so, however, that the percentage of direct
recruits in 'the service does not in any case exceed 15%
of the strength of the service". (Para 14] (63-C-G]
8
2.2. Whether the Rules provide for a specific fixed
quota for the direct recruits or whether they merely
indicate the ceiling for the appointment by direct
recruitment would, therefore, depend on the wording of
the Rules. Rule 6 provides a specific quota of 15% of the C
vacancies for direct recruits. But as Rule 6 provides that
the same shall be subject to the provision of Rule 8, the
question is whether Rule 8 modifies the quota of direct
recruits from '15% of the vacancies' to 'not more than
15% of the vacancies'. Though the Rules do not compel D
the High Court to recruit 15% of the vacancies by direct
recruitment at every recruitment, they require the High
Court to take note of any shortfall in the number of direct
recruits at recruitment, during the next recruitment by
raising the quota correspondingly. Thus when the first E
proviso to Rule 8(2) uses the words that the "percentage
of direct recruits in the services does not in any case
exceed 15%", the intention is to ensure that the direct
recruits maintain their quota of 15%, that is, while doing
adjustments in fixing the number of vacancies to be filled
F
by direct recruitment at a subsequent recruitment to
make good the shortfall at a previous recruitment to
maintain 15%, the quota of direct recruit be exceeded.
This means that the quota of direct recruits is 15% of the
strength of the service. The entire purpose of the exercise G
is to maintain the 15% quota of the direct recruits. The
following clear indicators show that the quota of,direct
recruits is '15%' and not "upto 15%": (a) Rule 6 uses the
words "15% of the vacancies" as the quota of direct
H
32
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
recruits and does not use the words "not more than 15%
of the vacancies". (b)The purpose and intent of Rule 8(2)
is not to dilute or change the quota of direct recruits. Its
object is to ensure that no vacancy remains unfilled for
want of adequate number of direct recruits under their
B 15% quota. This is because there are reasonable
chances of adequate number of candidates being not
available for direct recruitment, whereas usually sufficient
number of candidates will be available for promotion. The
first proviso to Rule 8(2) ensures that the shortfall in 15%
c quota for direct recruits in any recruitment does not get
permanently converted to promotee quota, by providing
that the shortfall shall be made good at the next
recruitment. The words "does not in any case exceed
15%" are used to further ensure that while making good
0
the shortfall of direct recruits at the next recruitment, the
direct recruits do not encroach upon the quota of
promotees. (c) The provision for appointment to the
service by rotational system (that is Rule 22(2) providing
that the first vacancy to be filled from the list of Nyayik
E Sewa Officers and the second vacancy to be filled from
the list of direct recruits and so on), makes it clear that
the overall scheme of the Rules is to provide a clear 15%
quota for direct recruits. When there has been a shortfall
in direct recruits in an earlier recruitment, the number
fixed for direct recruits at a subsequent recruitment will
F
necessarily exceed 15% of the vacancies for which the
subsequent recruitment is being held, by reason of the
fact that the earlier shortfall is required to be filled. [Paras
18, 19] [68-B-H; 69-A-H; 70-A]
G
2.3. Rule 8 clarifies that direct recruits are entitled to
15% quota not only in the vacancies to be filled, but also
15% in the strength of the service. The Rules also make
it clear that when a shortfall in a particular recruitment is
made up at the next recruitment, there is no question of
H the direct recruits appointed to the shortfall vacancies
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
33
SERVICES ASSOCIATION
claiming seniority over the promotees who filled the
A
shortfall post of direct recruits at the previous
recruitment. Though the shortfall is made good at the next
recruitment, the question of seniority will be governed by
Rule 26. No direct recruit at a subsequent recruitment can
claim that as he is being appointed against a direct
B
recruitment vacancy of previous recruitment, his seniority
should be reckoned from any date earlier to the date of
his joining the service. [Para 20] [70-B-D]
2.4. Though the quota of direct recruits is fixed, there
C
is flexibility in fixing the vacancies to be filled by direct
recruitment and vacancies to be filled by promotion. The
High Court can make adjustments in fixing the number
of officers to be appointed by promotion and direct
recruitment as shown in Rule 8(2) and the provisos
thereto ensuring that the number of direct recruits does
D
not exceed 15% of the total strength of the service. [Para
21] [70-E]
O.P. Sing/a vs. Union of India (1984) 4 SCC 450 and ***
Srikant Tripathi & Ors. v. State of UP. & Ors. 2001 (10) SCC
E
237, referred to.
Re : Question No.(iii)
3.1. In O.P.Garg this court held that the various rules
will have to be homogenized as parts of the same
F
scheme; that as the service was comprised of three
sources including di~ect recruitment, there is no
justification to deprive the direct recruits of their share of
temporary posts in the service; that unless the direct
recruits are given their due quota in the temporary posts,
G
the seniority rule cannot operate equitably; that Rules
22(3) and 22(4) providing that appointment for temporary
vacancies shall be made only from among the members
of Nyayik Sewa/Judicial Magistrates were discriminatory
and appointments under Rules 22(1) and 22(2) shall have
H
34
SUPREME COURT REPORTS
(2010] 12 S.C.R.
A
to be made to permanent as well as temporary posts from
all the three sources in accordance with the quota
provided under the Rules. In spite of the said decision
by the three Judge Bench of this court, the promotees
have been contending that the percentage of direct
B recruits in the service should not exceed 15% of the
permanent strength of the service till the amendment to
the Rules with effect from 15.3.1996, in view of the fact
that this Court in O.P.Garg while striking Rules 22(3) and
22(4) did not strike down the word "permanent"
c occurring in the first proviso of Rule 8(2) which provided:
"so, however that the percentage of direct recruits in the
service does not in any case exceed 15% of the total
permanent strength of the service." The words "total
permanent" were omitted from the first proviso to Rule
0
8(2) only by the amendment Rules of 1996 with effect
from 15.3.1996. [Para 24] [74-8-H; 75-A]
3.2. If Rule 8(2) is to be read in the manner suggested
by the promotees, it would nullify the decision in
O.P.Garg which held that the direct recruits were entitled
E to 15% quota not only in the permanent strength of the
service but also in the temporary posts. This court in
O.P.Garg, apparently did not strike down the word
"permanent" in the latter part of the first proviso to Rule
8(2) while striking down Rule 22(3) and 22(4) as it
F
apparently assumed that rule 8(2) and the first proviso
thereto were applicable only in a contingency referred to
in Rule 8(2). The rule making authority rightly
understood the decision and proceeded on the basis
that if sub-rules (3) and (4) of Rule 22 were invalid and
G the direct recruits were entitled to 15% quota even in the
temporary posts, then the word "permanent" should be
deleted in the first proviso to Rule 8(2). That is why the
rule making authority while substituting Rule 22 in the
rules in 1996 in pursuance of the decision in O.P.Garg
H striking down sub-rules (3) and (4) of Rule 22,
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
35
SERVICES ASSOCIATION
simultaneously deleted the words "total permanent" from
A
the words "total permanent strength of service" in the
first proviso to Rule 8(2). The amendment to the first
proviso to Rule 8(2) omitting the words 'total permanent'
is clearly a clarification/reiteration of the position which
prevailed as a result of the decision in O.P. Garg. [Para
B
25] [75-B-E]
3.3. The Division Bench of the High Court has
proceeded on the basis that this Court in O.P.Garg had
no occasion to consider, nor considered the first proviso
to Rule 8(2) which provided the ceiling for direct C
recruitment; and therefore the ceiling was 15% of the
"permanent strength of the service" and not cadre
strength of the service till the amendment to the Rules
with effect from 15.3.1996. The said interpretation put
forth by the promotees which found favour with the
D
division bench of the High Court, is untenable as it would
amount to ignoring the law laid down in O.P. Garg and
nullifying the directions in O.P.Garg holding that direct
recruits are entitled to 15% quota even in temporary
posts. The proviso to Rule 8(2) should be read in the
E
context of the quashing of Sub-Rules (3) and (4) of Rule
22. If so read, it would be clear that when Sub-Rules (3)
and (4) of Rule 22 were struck down holding that direct
recruits were entitled to a quota in temporary posts also,
the word "permanent" in the first proviso to Rule 8(2) is
F
deemed to have been impliedly struck down or omitted
by the decision in O.P. Garg. As the quota of direct
recruits is 15% of the strength of the service, the number
of appointments of direct recruits might have never
exceeded their quota. Therefore, the second dil'ection of G
the Division Bench in the impugned judgment cannot be
sustained. [Para 26] [75-F-H; 76-A-C]
Re : Question No. (iv)
4. The first part of the third direction in the impugned
H
36
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A order passed by the Division Bench of the High Court
depends upon the result of the exercise undertaken in
pursuance of its second direction. Since directions 1 and
2 in the impugned order of the High Court have been held
to be contrary to the decision in O.P.Garg, the question
B of undertaking any exercise as per the second direction
of the impugned order does not arise. All that, therefore,
remains out of the third direction in the impugned order
is reiteration of direction No.3 of Srikant Tripathi. The
third direction in the impugned judgment to the extent it
C reiterates direction No.3 in Srikant Tripathi has to be
upheld. There is no question of unfilled vacancies being
carried forward for the purpose of fixing the number of
officers to be taken at the next recruitment. The total
vacancies to be filled at a recruitment shall have to be
0 filled by applying sub-rules (1) and (2) of Rule 8 and its
provisos. In that sense all vacancies, which are not filled
by direct recruitment, get filled by promotion and there
will be no carry over. There is only a limited 'carry over'
of unfilled direct recruitment vacancies in the manner
stated in the Rule 8(2) and the first proviso thereto. [Para
28] [76-G-H; 77-A-C]
Conclusion
5.1. The 1975 Rules are vague and complicated. The
four rounds of litigation are the result of absence of clear
and simple Rules. The High Court administration had the
difficult task of harmonizing the Rules, the directions of
this Court in O.P. Garg and the directions of this Court in
Srikant Tripathi. [Para 30] [78-C-D]
5.2. (i) Direction Nos. (1) and (2) in para 55 of the
impugned order passed by the Division Bench of the
High Court are set aside; (ii) Direction No.(3) in para 55
of the impugned order is restricted to reiteration of
direction No.3 issued in Srikant Tripathi; (iii)Direction
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
37
SERVICES ASSOCIATION
Nos. (4), (5) and (6) in the impugned order are upheld; (iv) A
The consequential exercise directed by the High Court
should be restricted to the directions which have been
upheld. (v) None of the appointments already made to the
Higher Judicial Service, whether by direct recruitment or
by promotion, shall be annulled, but shall be continued, B
even if the appointment is found to be in excess of the
quota, subject to the condition that the seniority of such
excess appointee will be reckoned from the date on
which he becomes entitled to be adjusted at the
subsequent recruitment/s. Any elevation to the High c
Court on the basis of seniority already given shall also
not be affected. The High Court is requested to give a
quietus to the long-drawn dispute, by giving effect to
direction nos.(4) to (6) of the impugned order and
direction no.(3) in Srikant Tripathi, without any delay. 0
[Para 31] [78-E-H; 79-A-D]
Case Law Reference:
1987 (4) sec 621
referred to
1991 (Supp) 2 SCC 51 referred to
2001 (1 o) sec 231
(1984) 4 sec 450
referred to
referred to
Para 3
Para 4
Para 5
Para 16
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. F
1312 of 2005.
From the Judgment & Order dated 25.8.2004 of the High
Court of Judicature at Allahabad Lucknow Bench, Lucknow in
Writ Petition No. 316 (SB) of 2004.
WITH
C.A. Nos. 1313 of 2005 & 7927 of 2010.
P.P. Rao, Paramjit Singh Patwalia, Rakesh Dwivedi,
G
H
A
B
c
38
SUPREME COURT REPORTS
[2010] 12 S.C.R.
Nagendra Rai, Rakesh Kr. Khanna, Salman Khurshid, Shail
Kumar Dwivedi, AAG, Jitendra Mohan Sharma, Sandeep
Singh, Mohinder Jit Singh Rupal, Amanpreet Singh Rahi,
Devesh Tripathi, Tushar Bakshi, S.S. Tiwari, Ravi Prakash
Mehrotra, Shantanu Krishna, Mukti Chowdhary, Anant Prakash,
Rahul Dua, Deepti R. Mehrotra, Garvesh Kabra, Vinay Kr.
Garg, Seema Bhatt, Shailja Sinha, Shantanu Sagar, Shirish
Kumar Mishra, Vandana Mishra, Vibha Dwivedi, Tripurari Ray, ·
Ashutosh Dubey, Vishnu Sharma, S.K. Verma, lrshad Ahmad,
Pradeep Misra, Vishwajit Singh, Shiv Sagar Tiwari, lmtiaz
Ahmed, Naghma lmtiaz, Equity Lex Associates, Chander
Sheker, Manoj Swarup & Co., Sunil Dutta Mishra, Kuldip Singh
for the appearing parties.
The Judgment of the Court was delivered by
D
R. V. RAVEENDRAN J. 1. Leave granted in SLP (C)
E
F
No.11476 of 2005. These appeals arise out of yet another
round of litigation in the dispute between direct recruits and
promotees in the Uttar Pradesh Higher Judicial Service, having
its genesis in two decisions of this Court in the earlier rounds.
2. The recruitment and appointment to the Uttar Pradesh
Higher Judicial Service consisting of a single cadre comprising
the posts of District and Sessions Judges and Additional
District and Sessions Judges are governed and regulated by
the U.P. Higher Judicial Services Rules, 1975, ('Rules' for short)
framed under Article 309 read with Article 233 of the
Constitution of India. The said Rules were amended by the UP
Higher Judicial Services (Fourth Amendment) Rules, 1996, with
effect from 15.3.1996. For convenience, the Rules before
amendment will be referred to as the 'Unamended Rules' and
G
the Rules after the 1996 amendment will be referred to as the
'Amended Rules'. As we are concerned with the recruitments
for the years 1988, 1990, 1992-1994 and 1998-2000, it may
be necessary to refer to the unamended Rules in regard to the
recruitments relating to 1988, 1990 and 1992-1994, and the
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
39
SERVICES ASSOCIATION [RV RAVEENDRAN, J.]
amended rules with reference to the 1998-2000 recruitment.
A
Rules 5, 6, 8, 20, 22 and 26 are relevant and they are extracted
below:
"5. Source of recruitment - The recruitment to the Service
shall be made-
(a) by direct recruitment of pleaders and advocate 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
c
(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 be computed on the first day of January next
following the year in which the notice inviting applications
D
is published:
Provided that for so long as suitable officers are available
from out of the dying cadre of the Judicial Magistrate,
confirmed officers who have put in not less than seven
years service to be computed as aforesaid shall be eligible
E
for appointment as Additiooal Sessions Judges in the
Service.
xxxxxxxxx
6. Quota - Subject to the provisions of rule 8, the quota
for various source of recruitment shall be-
(i) Direct recruitment from the Bar: 15%
(ii) Uttar Pradesh Nyayik Sewa
: 70%
(iii) Uttar Pradesh Judicial Officers
Service (Judicial Magistrates) : 15%
of the
vacancies.
Provided that where the number of vacancies to be filled
F
G
in by any of these sources in accordance with the quota
H
A
B
c
D
E
F
40
SUPREME COURT REPORTS
[2010] 12 S.C.R.
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 Magistrate 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 required 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
due 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.
Note : The limitation of three years mentioned in this subrule shall not apply to the first recruitment held after the
enforcement of these rules.
(2) If at any selection the number of selected direct recruits
available for appointment is less than the number of recruits
decided by the Court to be taken from that source, the
Court may increase correspondingly the number of recruits
to be taken by promotion from the Nyayik Sewa:
Provided that the number of vacancies filled in as
aforesaid under this sub rule shall be taken into
consideration while fixing the number of vacancies to be
G
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 service.
H
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
41
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Provided further that all the permanent vacancies existing
A
on May 10, 1974 plus 31 temporary 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 the three sources under these rules;
B
Provided also that the number of vacancies 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
C
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 preceding 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
D
magistrates, the allocation of vacancies shall be as follows
(i)
15% by direct recruitment.
(ii)
30% from out of the Judicial Magistrates;
E
(iii)
55% from out of the members of the Nyayik Sewa
[Note : The first proviso to sub-Rule (2) of Rule 8 was
amended by the Amendment Rules of 1996 omitting the
F
crucial word "permanent" when referring to "15% of the
total permanent strength of the service". The first proviso
as amended, reads thus :
Provided that the number of vacancies filled in as
aforesaid under this sub rule shall be taken into G
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
H
42
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
recruits in the Service does not in any case exceed 15 per
cent of the total strength of the service.]
B
c
D
E
F
G
H
20. Promotion of members of Nyayik Sewa :
(1) Recruitment by promotion of the members of the Nyayik
Sewa shall be made by selection on the principle of
seniority-cum-merit.
xxxxxxxxx
(4) The Selection Committee shall forward the list of the
candidates chosen at the preliminary selection to the Chief
Justice along with the names of the officers who, if any, in
the opinion of the Committee have been passed over for
promotion to the service.
(5) The Court shall examine the recommendations of the
Selection Committee and make a final selection for
promotion and prepare a list in order of seniority of the
candidates who are considered fit for promotion and
forward the same to the Governor.
The list shall remain operative only till the next recruitment.
22. Appointment- (1) Subject to the provisions of sub-rules
(2) and (3), the Governor shall on receipt from the Court
of the list mentioned in Rules 18, 20, and 21 make
appointments to the service on the occurrence of
substantive vacancies by taking candidates from the lists
in the order in which they stand in the respective lists.
(2) Appointments to the service shall be made on the
rotational system, the first vacancy shall be filled from the
list of officers of the Nyayik Sewa, the second vacancy
shall be filled from the list of direct recruits (and so on),
the remaining vacancies shall thereafter be filled by
promotion from the list of the officers of the Nyayik Sewa.
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
43
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.]
Provided that for sq long as suitable officers are available A
from the cadre of the Judicial Magistrates, appointments
to the service shall be made in such a way that the second
fifth and eighth (and so on), vacancy shall be filled from the
list of Judicial Magistrates.
(3) Appointment for temporary vacancies or in officiating
capacity shall be made by the Governor in consultation with
the Court from amongst the members of the Nyayik Sewa.
8
Provided that for so long as suitable officers are available
from the cadre of the Judicial magistrate, appointments on
C
temporary vacancies 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:
D
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 available in sufficient number, the
Governor in consultation with the Court may fill in not more
E
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
F
the Nyayik Sewa, the second vacancy shall be filled from
the list of Judicial Magistrates (and so on).
[Note : Sub-Rule (3) and its two provisos of Rule 22 were
substituted by the following by the Amendment Rules of
1996 :
G
(3) In the eventuality of delay in making appointment under
sub-rule (1) and further if exigency of service so requires,
the Governor may, in consultation with the Court, make
short term appointment as a stop-gap arrangement from
H
A
B
c
D
E
F
G
H
44
SUPREME COURT REPORTS
[2010] 12 S.C.R.
amongst the members of Nyayi~ Sewa in the vacancy in
these services within the quota fixed by the Court till the
appointments are made under sub- rules (1) and (2) :
Provided that the period of service spent by the member
of Nyayik Sewa on short term appointment to the service
as a stop-gap arrangement shall not be computed for
seniority under Rule 26.]
26. Seniority - (1) Except as provided in sub-rule (1 ),
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 form 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 officiation in the service
shall not, for the purpose of determining seniority exceed
three years immediately preceding the date of
confirmation;
Provided that where any officer is not found fit for
confirmation and is not confirmed in his turn, the officiating
period or the probationary period, as the case may be,
prior to the date of decision taken by the High Court in this
behalf shall not be taken into account for purposes of
computing the period of continuous officiation or for
purposes of working out the date of joining of the service,
as the case may be;
ASHOK PAL SINGH AND ORS. v. U.P. JUDICIAL
45
SERVICES ASSOCIATION [R.V. RAVEENDRAN, J.] ·
(b) Seniority inter se of the officers appointed from out of
A
the Judicial Magistrates shall be determined from the date
of continuous officiation, provided that in the case of
officers appointed on the basis of one selection, their·
seniority shall be determined according to their seniority
in the Uttar Pradesh Judicial Officers Service:
B
Provided further that where an officer is not found fit for
confirmation and is not confirmed in his turn, the officiating
period prior to the date of decision taken by the High Court
in this behalf shall not be taken into account for computing · C
the period of continuous officiation.
(2) Seniority of members of the service who have been
confirmed in the service prior to the commencement of
these rules shall be as has been determined by the order
of Government as amended from time to time.
D
[Note : Rule 26 of 1975 Rules was substituted in entirety
by the follwing by the Amendment Rules of 1996 :
26. Seniority- (1) Seniority of the officers appointed in the
service shall be determined in accordance with the order
E
of appointment in the Service under sub-rules (1) and (2)
of Rule 22 of these rules.
(2) Seniority of members of the service who have been
confirmed in the service prior to the commencement of
F
these rules shall be as has been determined by the order
of the Government as amended from time to time.]
3. The dispute between the promotees and direct recruits
in regard to their inter-se seniority in the Uttar Pradesh Higher
G
Judicial Services came up before this Court at the instance of
promotees in P.K. Dixit vs. State of Uttar Pradesh - 1987 (4)
SCC 621. This Court allowed the petitions and directed
preparation of fresh seniority list in accordance with the following
directions:
H
46
SUPREME COURT REPORTS
(2010] 12 S.C.R.
A
"(i) So far as the posts available on a particular dated i.e.
May 10, 1974 are concerned the High Court will have to
look into the matter afresh and decide the seniority in the
light of the above position. But after the 1975 Rules came
into force, the appointments to the Higher Judicial Service
B
either on the basis of direct recruitment or on the basis of
promotion must have been in accordance with these rules
and it is expected that the probation, confirmation and
seniority must have been looked into by the High Court
strictly in accordance with th;;se Rules.
c
0
E
F
G
H
(ii) Under Rule 22(3) appointment to temporary vacancies
shall be made only from the Nyayik Sewa and as and when
a substantive vacancy arises and the procedure for
selection is to be followed, the officers who were appointed
to fill in the temporary posts should be considered first and
appointed on probation, if found fit. When appointment
under Rule 22 is contemplated in the service of substantive
vacancies, it may be both temporary or permanent but the
vacancy must be in the cadre. A person could only be
confirmed when a permanent post is available for him.
(iii) If a person is appointed to officiate in the Higher
Judicial Service his case for confirmation normally will be
considered within three years and either he will be
confirmed or will be reverted.