# HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD - THROUGH REGISTRAR GENERAL v. THE STATE OF UTTAR PRADESH & ORS

- **Citation:** [2018] 9 S.C.R. 1090
- **Court:** Supreme Court of India
- **Decided:** 2018-03-28
- **Case number:** Civil Appeal No.3356 of 2018
- **Bench:** Adarsh Kumar Goel, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hon-ble-high-court-of-judicature-at-allahabad-through-registrar-general-v-the-33799
- **Pages:** 23

## Headnote

U.P. Higher Judicial Service Rules, 1975 - Determination of
seniority of promotees and direct recruits - Earlier, in absence of
determination of vacancies for the period from 2002 till 2007, neither
promotees were appointed in spite of availability of vacancies and
eligibility nor direct recruitments were made - After the amendment
of the Rules in 2007, recruitment process was initiated, and
vacancies were worked out and advertisements were issued - Both
promotees and direct recruits were appointed - After the
appointments, the dispute of seniority cropped up - The direct
recruits claimed that they were entitled to be given seniority as per
Rota system laid down under the Rules and they had been wrongly
placed junior to the promotees - The promotees claimed that their
seniority should commence from the date of accrual of vacancy,
date of their eligibility, without their passing of the suitablity test
which was retrospectively prescribed for the first time after the
amendment of the 2007 Rules - Held: The High Court was correct
in taking the view that suitability test was required in terms of
judgment rendered in All India Judges Association case and under
the amended Rules applicable retrospectively - Promotees could
not be given promotion without suitability test nor could they claim
seniority without the same - They were rightly given seniority from
their appointments - Insofar as Quota-Rota rule is concerned, it is
a mandatory requirement of the Rules - The said requirement has
however to be seen in the peculiar fact situation - On facts, 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 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
1090
[2018] 9 S.C.R. 1090
A
B
C
D
E
F
G
H
1091
promotes - Thus, the Rules will have to be given pragmatic
interpretation - 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.
Disposing of the matters, the Court
HELD: 1. The first issue raised is whether the promotees
recruited in the year 2008/2009 are entitled to seniority prior to
their selection on the ground that no suitability test was required
prior to 9th January, 2007 and retrospective effect to such
requirement was illegal. The view taken by the High Court is
correct that suitability test was required in terms of judgment of
this Court in All India Judges' case and under the amended Rules
applicable retrospectively. Thus, the promotees could not be
given promotion without suitability test nor could they claim
seniority without the same. They have been rightly given seniority
from their appointments. [Para 29] [1111-B-D]
2. With regard to the Quota-Rota 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. 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 p

## Text

_Characters 0–39,519 of 53,061. This is a partial read: ask again with offset=39519 for what follows._

A
B
C
D
E
F
G
H
1090
SUPREME COURT REPORTS
[2018] 9 S.C.R.
HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD -
THROUGH REGISTRAR GENERAL
v.
THE STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No.3356 of 2018)
MARCH 28, 2018
[ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]
U.P. Higher Judicial Service Rules, 1975 - Determination of
seniority of promotees and direct recruits - Earlier, in absence of
determination of vacancies for the period from 2002 till 2007, neither
promotees were appointed in spite of availability of vacancies and
eligibility nor direct recruitments were made - After the amendment
of the Rules in 2007, recruitment process was initiated, and
vacancies were worked out and advertisements were issued - Both
promotees and direct recruits were appointed - After the
appointments, the dispute of seniority cropped up - The direct
recruits claimed that they were entitled to be given seniority as per
Rota system laid down under the Rules and they had been wrongly
placed junior to the promotees - The promotees claimed that their
seniority should commence from the date of accrual of vacancy,
date of their eligibility, without their passing of the suitablity test
which was retrospectively prescribed for the first time after the
amendment of the 2007 Rules - Held: The High Court was correct
in taking the view that suitability test was required in terms of
judgment rendered in All India Judges Association case and under
the amended Rules applicable retrospectively - Promotees could
not be given promotion without suitability test nor could they claim
seniority without the same - They were rightly given seniority from
their appointments - Insofar as Quota-Rota rule is concerned, it is
a mandatory requirement of the Rules - The said requirement has
however to be seen in the peculiar fact situation - On facts, 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 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
1090
[2018] 9 S.C.R. 1090
A
B
C
D
E
F
G
H
1091
promotes - Thus, the Rules will have to be given pragmatic
interpretation - 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.
Disposing of the matters, the Court
HELD: 1. The first issue raised is whether the promotees
recruited in the year 2008/2009 are entitled to seniority prior to
their selection on the ground that no suitability test was required
prior to 9th January, 2007 and retrospective effect to such
requirement was illegal. The view taken by the High Court is
correct that suitability test was required in terms of judgment of
this Court in All India Judges' case and under the amended Rules
applicable retrospectively. Thus, the promotees could not be
given promotion without suitability test nor could they claim
seniority without the same. They have been rightly given seniority
from their appointments. [Para 29] [1111-B-D]
2. With regard to the Quota-Rota 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. 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. 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
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGISTRAR GENERAL v. THE STATE OF U. P.
A
B
C
D
E
F
G
H
1092
SUPREME COURT REPORTS
[2018] 9 S.C.R.
promotees above the direct recruits without following the rotation
principle cannot be sustained. [Para 30] [1111-D-H]
All India Judges Association v. Union of India (2002) 4 SCC
247 : [2002] 2 SCR 712 - followed.
V.K. Srivastava v. Govt. of U.P. (2008) 9 SCC 77 : [2008] 13
SCR 24; R.K. Sabharwal v. State of Punjab (1995) 2 SCC
745 : [1995] 2 SCR 35; Direct Recruit Class-II Engineering
Officers' Association v. State of Maharashtra (1990) 2 SCC
715: [1990] 2 SCR 900 - relied on.
P. K. Dixit v. State of U.P. (1987) 4 SCC 621 : [1988] 1 SCR
398; O.P.Garg v. State of U.P. (1991) Supp. (2) SCC 51 :
[1991] 2 SCR 424; Sri Kant Tripathi v. State of U.P. (2001)
10 SCC 237 : [2001] 2 Suppl. SCR 635; Ashok Pal Singh v.
U.P. Judicial Services Association (2010) 12 SCC 635 : [2010]
12 SCR 25; Het Singh Yadav v. State of U.P. Civil
Appeal No. 5270 of 2012 decided on 15.9.2016 - referred to.
Case Law Reference
[2002] 2 SCR 712
followed
Para 1
[1988] 1 SCR 398
referred to
Para 2
[1991] 2 SCR 424
referred to
Para 2
[2001] 2 Suppl. SCR 635
referred to
Para 2
[2010] 12 SCR 25
referred to
Para 2
[2008] 13 SCR 24
relied on
Para 2
[1995] 2 SCR 35
relied on
Para 10
[1990] 2 SCR 900
relied on
Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3356
of 2018
From the Judgment and Order dated 30.06.2017 of the High Court
of Judicature at Allahabad Lucknow Bench, Lucknow in Service Bench
No. 1880 of 2017.
WITH
C. A. No. 3355 of 2018
SLP (C) Nos. 27284 and 27876 of 2017
SLP (C) No. 8334 of 2018
T. P. (C) No. 81 of 2018
A
B
C
D
E
F
G
H
1093
R. Venkataramani, P.S. Patwalia, Siddharth Luthra, Rakesh
Dwivedi, S. R. Singh, R. Basant, Sr. Advs., Ms. Mayuri Raghuvanshi,
Yashraj Singh Bundela, M. R. Shamshad, Praveen Vignesh, Vyom
Raghuvashi, Sangya Megi, Sakshi Kakkar, Shakti Singh, Karan S.,
Ms. Mainka Verma, Ms. Preetika Dwivedi, Apoorva Garg, Mangal
Prasad, Ankur Yadav, Ms. Shweta Yadav, Yash Pal Dhingra, Rana Ranjit
Singh, Abhay Kumar S., Ravish Singh, Vivek K. Singh, Kaushal Narayan
Mishra, A. K. Behra, Jasbir Singh Malik, Ms. Usha Nandini. V, Praveen
Kumar Aggarwal, Sanjay Rastogi, Ms. Mayuri Raghuvanshi, Mohit Paul,
Anugrah Niraj Ekka, Vikas Arora, Garvesh Kabra, Aviral Saxena, Sanjay
Kumar Tyagi, Venkita Subramoniam T. R, Rakesh U. Upadhyay, Ms. Aarti
Upadhyay, Amar Deep Sharma, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. Leave granted in Special
Leave Petition (Civil) No.26993 of 2017 and SLP (Civil) D. No.39750
of 2017. The question for consideration is the validity of determination
of seniority of promotee and direct recruit Higher Judicial Service (HJS)
officers in the State of Uttar Pradesh. Dispute mainly relates to the
principle to be applied for determining seniority for direct recruits and
promotees of the years 2007 and 2009 in the context of Rules 22 and 26
of the Uttar Pradesh Higher Judicial Service Rules, 1975 (the Rules)
and the judgment of this Court in All India Judges Association versus
Union of India1.
2. Before giving brief facts we may note that the Rules and the
issue of seniority of the HJS officers were subject matter of consideration,
inter alia, in P.K. Dixit versus State of U.P.2, O.P. Garg versus State
of U.P.3, Sri Kant Tripathi versus State of U.P.4, Ashok Pal Singh
versus U.P. Judicial Services Association5, V.K. Srivastava versus
Govt. of U.P.6 and Het Singh Yadav versus State of U.P.7
3. In P. K. Dixit (supra), there was challenge to the seniority list
on the ground that vacancies had not been properly calculated as per the
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P.
1 (2002) 4 SCC 247
2 (1987) 4 SCC 621
3 (1991) Supp. (2) SCC 51
4 (2001) 10 SCC 237
5 (2010) 12 SCC 635
6 (2008) 9 SCC 77
7 Civil Appeal No.5270 of 2012 decided on 15.9.2016
A
B
C
D
E
F
G
H
1094
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Rules. This Court directed that matter should be examined afresh with
reference to appointments on posts available before the Rules came into
force.
4.
In O.P. Garg (supra), challenge to seniority list of 1988 was
considered. This Court held that benefit of continuous length of service
for a promote officer for a promote officer has to be with reference to
availability of a vacancy and not independent thereof. Second and third
proviso to Rule 8(2) and part of Rules 22 and 26 were declared ultra vires.
5.
In Sri Kant Tripathi (supra) question was about correctness
of calculation for working out ratio between direct recruits and promotees.
The issue had arisen with reference to recruitments for the years 1988
to 1994. This Court directed that for 1988 recruitment, the High Court
should determine number of vacancies available in the relevant year of
recruitment and then allocate the vacancies to different sources of
recruitment. It was also directed that vacancies should be filled up in
the year when vacancies become available. If a post is available in the
quota of promotees, selection is made but promotion is not given,
promotion must take effect from the date the promotee could have been
appointed.
6.
In Ashok Pal Singh (supra) one of the issues was whether
procedure of carrying forward of vacancies adopted by the High Court
was erroneous. This Court held that no direct recruit at a subsequent
recruitment can claim that his seniority should be reckoned from the
date earlier to the date of his joining. The seniority of the promotee had
to commence from the date he should have been appointed against an
available vacancy for which he had already been selected.
7.
In V.K. Srivastava (supra), challenge was to the amendment
of the Rules as notified on 9th January, 2007 on the ground that giving of
retrospective effect prejudiced the vested right of the candidate eligible
for vacancies prior to the amendment. This Court dismissed the writ
petition with the observation that the Rules had been duly complied with
for the year 2008 selection.
8.
In Het Singh Yadav (supra) question for consideration was
the validity of seniority list of promotees with regard to vacancies existing
prior to 15th March, 1996. The High Court quashed the seniority list
dated 24th August, 2007. Correctness of the view taken before the High
Court was subject matter of consideration before this Court. This Court
A
B
C
D
E
F
G
H
1095
noted that after the judgment of the High Court dated 16th December,
2010, seniority list had been finalized on 14th April, 2016 consistent with
the directions in Ashok Pal Singh (supra) against which matter was
pending consideration before the High Court. This Court set aside the
judgment of the High Court leaving the merits of the matter to be gone
into by the High Court in the matter pending before it.
9. In All India Judges case (supra), it was directed that
recruitment to HJS at the relevant time had to be as follows :
"(a) 50 per cent by promotion from amongst Civil Judges (Senior
Division) on the principle of merit-cum-seniority and passing
a suitability test;
(b)
25 per cent by promotion strictly on the basis of merit through
a limited competitive departmental examination on Civil
Judges (Senior Division) having not less than five years
qualifying service, and;
(c)
25 per cent of the posts shall be filled directly from amongst
the eligible advocates on the basis of written and viva voce
test conducted by the respective High Courts."
10. It was observed that to avoid litigation, seniority rules should
provide for roster system as laid down in R.K. Sabharwal versus State
of Punjab8 . Direction of this Court is as follows :
"29. Experience has shown that there has been a constant
discontentment amongst the members of the Higher Judicial
Service in regard to their seniority in service. For over three
decades a large number of cases have been instituted in
order to decide the relative seniority from the officers
recruited from the two different sources, namely, promotees
and direct recruits. As a result of the decision today, there
will, in a way, be three ways of recruitment to the Higher
Judicial Service. The quota for promotion which we have
prescribed is 50 per cent by following the principle "meritcum seniority", 25 per cent strictly on merit by limited
departmental competitive examination and 25 per cent by
direct recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system in
recruitment exists, insofar as seniority is concerned, is where
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]
8 (1995) 2 SCC 745
A
B
C
D
E
F
G
H
1096
SUPREME COURT REPORTS
[2018] 9 S.C.R.
a roster system is followed. For example, there is, as per the
rules of the Central Government, a 40-point roster which
has been prescribed which deals with the quotas for
Scheduled Castes and Scheduled Tribes. Hardly, if ever, there
has been a litigation amongst the members of the service
after their recruitment as per the quotas, the seniority is fixed
by the roster points and irrespective of the fact as to when a
person is recruited. When roster system is followed, there is
no question of any dispute arising. The 40-point roster ha
been considered and approved by this Court in R.K.
Sabharwal v. State of Punjab (supra) One of the methods of
avoiding any litigation and bringing about certainty in this
regard is by specifying quotas in relation to posts and not in
relation to the vacancies. This is the basic principle on the
basis of which the 40-point roster works. We direct the High
Courts to suitably amend and promulgate seniority rules on
the basis of the roster principle as approved by this Court in
R.K. Sabharwal case (supra) as early as possible. We hope
that as a result thereof there would be no further dispute in
the fixation of seniority. It is obvious that this system can
only apply prospectively except where under the relevant
rules seniority is to be determined on the basis of quota and
rotational system. The existing relative seniority of the
members of the Higher Judicial Service has to be protected
but the roster has to be evolved for the future."
(emphasis added)
11. The Rules as originally framed envisaged three sources of
recruitment - direct recruitment from the bar, promotion from members
of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of cadre of
judicial magistrates. There was also a provision for quota for the different
sources. Number of appointments to be made is required to be identified.
Seniority is to be determined as per Rule 26.
12. As a result of observations in the above judgments, there was
amendment in the Rules. It may not be necessary to refer all the
amendments but reference to some of the amendments may be
necessary.
13. Accordingly, Rule 6 was amended to give effect to the
judgment of this Court in All India Judges' case (supra) vide U.P.
A
B
C
D
E
F
G
H
1097
Higher Judicial Service (Sixth Amendment) Rules, 2006 notified on
January 09, 2007. By the said amendment, the criteria for recruitment
by promotion was changed. Requirement of passing a suitability test
was incorporated. There was also modification about the percentage of
quota. The suitability test in pursuance of the said amended rules was
held for the first time in the year 2008. The introduction of the roster
was introduced by U.P. Higher Judicial Service (Seventh Amendment)
Rules, 2009 which was notified on 8th August, 2009.
14. Reference may now be made to the relevant Rules.
Rule 5
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 5. Sources of recruitment.-The
recruitment to the Service shall be made--
(a) by direct recruitment of pleaders and
advocates of not less than seven years'
standing on the first day of January next
following year in which the notice inviting
applications is published;
(b) by promotion of confirmed members of
the Uttar Pradesh Nyayik Sewa (hereinafter
referred to as the Nyayik Sewa), who have
put in not less than seven years service to be
computed on the first day of January next
following the year in which the notice
inviting application is published:
Provided that so far long as suitable officers
are available from out of the dying cadre of
the Judicial Magistrates confirmed officers
who have put in not less than seven years
service to be computed as aforesaid shall be
eligible for appointment as Additional
Sessions Judges in the Service.
Explanation.--When a person has been both
a pleader and an advocate his total standing
in both the capacities shall be taken into
account in computing the period of seven
years under clause (a)."
Rule 5 was substituted as under:-
Sources
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.
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]
A
B
C
D
E
F
G
H
1098
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Rule 6
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service (Sixth
Amendment) Rules,
2006
(come into force w.e.f 21
st
March, 2002)
Uttar Pradesh Higher
Judicial Service
(Ninth Amendment)
Rules, 2014
Rule 6. Q uota.- Subject
to the provisions of Rule
8, the quota for various
sources
of
recruitment
shall be-
Provided that where the
number of vacancies to
be filled in by any of
these
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:
(i) Direct recruits from
the Bar 15% of the
vacancies
(ii)
Uttar
Pradesh
Nyayik Sewa 70%
(iii) Uttar Pradesh
Judicial Officers
service (Judicial
Magistrate) 15%
Provided
further
that
when the strength in the
cadre
of
the
Judicial
Magistrates gradually gets
depleted or is completely
exhausted
and suitable
candidates
are
not
available
in
requisite
numbers or no candidate
remains available at all,
the shortfall in the number
of vacancies required to
be filled from amongst
Judicial Magistrates and
in the long run all the
vacancies, shall be filled
Rule 6 was substituted
as under:-
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-cumseniority and passing
a suitability test. -
50%
 (b) on the basis of merit
through
limited
competitive
examination of Civil
Judges
(Senior
Division) having not
less than five years
qualifying 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 shortfall
of 25% 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).
Rule 6 was substituted
as under:-
Quota-6. 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-cumseniority 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
shortfall
of
10%
reserved
for
such
promotion will be
made
good
by
corresponding
increase in the quota
A
B
C
D
E
F
G
H
1099
Rule 8
Higher
ice
ment)
4
tituted
to the
8, the
various
uitment
radesh
st the
Senior
n
the
t-cumassing
test. -
asis of
hrough
etitive
f civil
Senior
ng not
years
n case
g any
the
o
be
e basis
cadre
the
10%
such
ill be
by
quota
by promotion from
amongst the members
of the Nyayik Sewa
and their quota shall,
in
due
course,
become 85 per cent.
(ii) direct
recruitment
from Bar - 25%
 Provided
that
where the number of
vacancies to be filled in
by any of these 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:"
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:
U.P. Higher Judicial Service
Rules, 1975
(Prior to the Sixth Amendment in
2006)
Uttar Pradesh Higher Judicial
Service (Sixth Amendment) Rules,
2006
(come into force w.e.f 21st March,
2002)
Rule 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 sub-rule 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;
In Rule 8 the existing sub rule (2)
was substituted as under:-
"8.(2) If at any selection the number
of selected direct recruits available
for
"8.(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 allotted to the quota of
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]
A
B
C
D
E
F
G
H
1100
SUPREME COURT REPORTS
[2018] 9 S.C.R.
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 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 strength of the service.
Provided further that all the permanent
vacancies existing on May 10, 1974 plus 31
temporary posts existing on that date, if any
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;
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 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
Magistrates, the allocation of vacancies shall
as follows---
(i) 15 per cent by direct recruitment.
(ii) 30 per cent from out of the Judicial
Magistrate;
(iii) 55 per cent from out of the members
of the Nyayik Sewa.
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 25% of
strength
of
the
service.
A
B
C
D
E
F
G
H
1101
Rule 18
Rule 20
ts at
next
and
for
cruits
aised
so,
t the
of
ts in
does
case
 of
the
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 18. (1) The Selection Committee referred to in Rule 16 shall
scrutinize the applications received and may thereafter hold such
examination, as it may considered necessary for judging the suitability
of the candidates. The committee may call for interview such of the
applicants who in its opinion have qualified for interview after scrutiny
and examination.
(2) In assessing the merits of a candidate the Selection Committee shall
have due regard to his professional ability,character, personality and
health.
(3)The Selection Committee shall make a preliminary selection and
submit the record of all candidates to the Chief Justice and recommend
the names of the candidates in order of merit who, in its opinion, are
suitable for appointment to the service.
(4) The Court shall examine the recommendations of the Selection
Committee and having regard to the number of direct recruits to be
taken, prepare a list of selected candidates in order of merit and
forward the same to the Governor.
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service (Sixth
Amendment) Rules,
2006
(come into force w.e.f.
21
st March, 2002)
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules,
2014
Rule 20. Promotion of
Members
of
Nyayik
Sewa-(1) Recruitment by
promotion
of
the
members of the Nyayik
Sewa sh all be made by
selection on the principle
of seniority-cum-merit.
(2)
The
field
of
eligibility for recruitment
by promotion shall be
In Rule 20for the
existing sub-rules (1)
and (2), the following
sub-rules
were
substituted:-
(1) Recruitment by
promotion
of
the
members
of
the
Nyayik Sewa shall
be made by selection
on the principle of
The existing sub-rule (3)
of
rule
20
was
substituted as under:-
20.(3)
The
Selection
Committee
shall,
after
examining the record of
the officers included in
the list prepared under
sub-rule (2) of this rule
make
a
preliminary
selection of the officers
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]
A
B
C
D
E
F
G
H
1102
SUPREME COURT REPORTS
[2018] 9 S.C.R.
confined to four times the
number of vacancies to be
filled by promotion. The
Selection
Committee
shall
prepare a list in order of
seniority
of
the
officers
eligible under Rule 5(b) of
these rules.
(3)The Selection Committee
shall, after examining the
record of the officers included
in the list prepared under subrule (2) of this Rule make a
preliminary selection of the
officers who in its opinion are
fit to be appointed on the basis
of
seniority-cum-merit.
In
assessing the merits of a
candidate,
the
Selection
Committee have due regard to
his service record, ability,
character and seniority. The
list shall contain the name of
officers twice the number of
vacancies required to be filled
by promotion of the members
of the Nyayik Sewa.
(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 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.
merit-cum-seniority
and on passing such a
suitability
test,
as
prescribed in Appendix
"G(1)"
(2)
The
field
of
eligibility
for
recruitment
by
promotion
shall be confined to
four times the number
of vacancies to be
filled by promotion.
The
selection
Committee
shall
prepare a list in order
of seniority of the
officers eligible under
Rule 5(a) of these
rules.
who in its opinion are fit to
be appointed on the basis
of merit-cum-seniority. In
assessing the merit of a
candidate, the Selection
Committee
have
due
regard
to
his
service
record, ability, character
and seniority. The list shall
contain the names of
officers twice the number
of vacancies required to be
filled by promotion of the
members of the Nyayik
Sewa.
A
B
C
D
E
F
G
H
1103
Rule 21
are fit to
he basis
ority. In
it of a
election

due
service
haracter
list shall
mes of
number
ed to be
n of the
Nyayik
U.P. Higher Judicial Service Rules,
1975
(Prior to the Sixth Amendment in
2006)
Uttar Pradesh Higher Judicial
Service (Sixth Amendment)
Rules, 2006
(come into force w.e.f 21st
March, 2002)
Rule 21. Temporary provisions for
the
cadre
of
the
Judicial
Magistrate.- (1) For so long as
suitable officers are available from out
of the dying cadre of the Uttar Pradesh
Judicial Officers Service, confirmed
officers who have put in not less than
seven years' service shall be eligible
for
appointment
as
Additional
Sessions Judges in the service, as
provided in Rules 4, 5, 6 and 8. Such
officers may also be appointed as
Additional
Sessions
Judge
in
officiating and temporary capacity
upto the extent of 15 per cent of the
vacancies in the cadre occurring
during any one period of Selection.
(2) The field
of
eligibility for
appointment from out of the Judicial
Magistrate shall be confined to four
times the number of vacancies to be
filled from this source. The Selection
Committee shall prepare a list in order
of seniority of the eligible officers.
(3) Criterion for selection shall be
seniority-cum-merit. In assessing the
merits of a candidate the Selection
Committee shall have due regard to
his service record ability, character
and
seniority.
The
preliminary
selection shall be made by the
Selection Committee referred to in
Rule 6 and the list of the selected
candidates shall be forwarded to the
Chief Justice along with the names of
the officers who, if any, in the opinion
of the Committee are unfit for
appointment to the Service.
The existing
Rule
21 was
substituted as under:-:
(1) Recruitment by promotion of
the members of Nyayik Sewa as
referred to in Rule 5(b) shall be
made by selection strictly on the
basis of merit through a limited
competitive
examination
as
prescribed in Appendix 'H'.
(2)Application for recruitment to
the service from such sources
shall be
invited by the Court through
District Judges.
(3) the District Judge shall
forward
to
the
Court
all
applications received by him
alongwith his own estimate of
each candidate's character and
fitness for appointment to the
service.
(4) The Selection Committee
referred to in Rule 16 shall
scrutinize the
applications received and shall
hold
a
limited
competitive
examination, as
prescribed in Appendix 'H'.
(5) The Selection Committee
shall prepare a select list on the
basis of the
merit
of
the
successful
candidates.
.
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]
A
B
C
D
E
F
G
H
1104
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Rule 22
(4) The Court shall examine the
recommendations of the Selection
Committee and make a final selection
and prepare a list of candidates
considered fit for appointment in order
of seniority and forward the names of
the officers. The list shall remain
operative
only
till
the
next
recruitment.
 (5)..........
(6)..........
(7) The Court shall examine the
recommendations of the Selection
Committee and make a final selection
for appointment in HJS cadre and
prepare a list in order of merit and
forward the same to the Governor.
The list shall remain operative only till
the next recruitment.
(6) The committee shall make a
preliminary selection and submit
the record of all candidates to
the
Chief
Justice
and
recommend the names of the
candidates in order of merit who,
in its opinion are suitable for
appointment to the service.
 (7) The Court shall examine the
recommendations
of
the
Selection Committee and make a
final selection for appointment
in HJS cadre and prepare a list in
order of merit and forward the
same to the Governor. The list
shall remain operative only till
the next recruitment
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service
(Seventh Amendment)
Rules, 2009
Uttar Pradesh Higher
Judicial Service
(Ninth Amendment)
Rules, 2014
Rule 22. Appointment-
(1) Subject to the provisions
of sub-rules (2) and (3), the
Governor shall on receipt
from the Court of the lists
mentioned in Rule 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.
Rule
22
.
Appointment.--
(1)
Subject to the provisions
of
sub-rule
(2)
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 list in the order in
which they stand in the
respective
lists
in
accordance
with
the
roster.
In
Rule
22,
the
existing sub-rule (2)
was
substituted
as
under:-
22.(2) Appointments to
the service shall be
made on the basis of
roster system, the first
post shall be filled from
the list of promotees,
the second post shall be
filled
up
by
direct
recruit, the third and
fourth posts shall be
filled up from the list of
promotees
and
fifth
post shall be filled up
by the candidate
A
B
C
D
E
F
G
H
1105
ake a
bmit
es to
and
 the
who,
e for
e the
the
ake a
ment
ist in
d the
e list
y till
igher
ce
ment)
the
e (2)
d
as
nts to
ll be
sis of
e first
d from
motees,
hall be
direct
d and
be
list of
fifth
ed up
(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 therefore be
filled by promotion from the
list of the officers of the
Nyayik Sewa.
Provided that for so long as
suitable
officers
are
available from the cadre of
the Judicial Magistrates,
appointments to the Service
shall be made in such a
way that the second fifth
and eighth (and so on),
vacancy shall be filled
from the list of judicial
Magistrates.
(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 amongst
the members of Nyayik Sewa
in the vacancy in these
services within the quota
fixed by the Court till the
appointment are made under
subrules (1) and (2):
Provided that the period of
service spent by a member of
Nyayik Sewa on short term
appointment to the service as
a stop-gap arrangement shall
not
be
computed
from
seniority under Rule 26.
(2)
Appointments
to
service shall be made on
the
basis
of
roster
system, the first and
second post shall be
filled from the list of
promotes, the third post
shall be filled up by
direct recruit and the
fourth post shall be filled
up by the candidate
selected strictly on merit
through LDCE (and so
on) according to the
roster as prescribed in
Appendix 'I', which will
cease
to
become
operative on the date the
respective three streams
achieve their full allotted
vacancies. Thereafter on
account of arising any
vacancy in
quota of
respective
stream
the
same could be filled-up
from the same stream of
which vacancy arises:
Provided that while
following the roster at
no point of time the
percentage
of
posts
filled
from
direct
recruit and LDCE shall
exceed 25% each of
the vacancies available
at the time of selection.
In case the percentage
is
exceeding
the
allotted quota, in such
eventuality
the
promotee shall occupy
the
vacancy
which
would have gone to the
direct recruit or LDCE,
had not the same been
an excess of 25% of
either of the two.
selected
strictly
on
merit through LDCE
(and so on) according
to
the
roster
as
prescribed in Appendix
'1', which will cease to
become operative on
the date the respective
three streams achieve
their
full
allotted
vacancies. Thereafter
on account of arising
any vacancy in quota of
respective stream the
same could be filled-up
from the same stream
of which
vacancy arises;
Provided that while
following the roster at
no point of time the
respective percentage
of posts filled from
direct
recruit
and
LDCE shall exceed
25% and 10% of the
strength of service. In
case the percentage is
exceeding the allotted
quota,
in
such
eventuality
the
promotee
shall
occupy the vacancy
which would have
gone to direct recruit
or LDCE, had not the
same been in excess
of 25% and 10%
respectively of either
of the two.
HIGH COURT OF JUDICATURE AT ALLAHABAD - THR.
REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]
A
B
C
D
E
F
G
H
1106
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Rule 26
15. We may now note the necessary facts. It is clear from resume
of judgments of this Court that there is long history of seniority dispute
of the members of HJS. In the process, there was complex and long
drawn effort in determination and redetermination of vacancies. Though,
in pursuance of judgment of this Court in All India Judges' case (supra),
(4)
The
appointments
shall
be
made
on
rotational system, the first
vacancy shall be filled
from the list of officers of
the Nyayik Sewa, the
second vacancy shall be
filled from the list of
Judicial Magistrates (and
so on).
(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
constitution
with
the
Court,
make
short
term
appointment as a stop-gap
arrangement from amongst
the promotees, in the vacancy
in these services fill the
appointment are made under
sub-rules (1) and (2):
Provided that the period of
service
spent
by
the
promotees on a short term
appointment to the service as
stop-gap arrangement shall
not be computed under Rule
26.
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 26.