# O.P. GARG AND ORS. ETC. ETC v. STATE OF U.P. AND ORS

- **Citation:** [1991] 2 S.C.R. 424
- **Court:** Supreme Court of India
- **Decided:** 1991-04-23
- **Case number:** Writ Petition No. 259 of 1990
- **Bench:** M.H. Kania, Kuldip Singh, P.B. Sawant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/o-p-garg-and-ors-etc-etc-v-state-of-u-p-and-ors-11190
- **Pages:** 27

## Headnote

c
Uttar Pradesh Higher Judicial Service Rules 1975: Rules 5, 6, 8,
18, 22, 26-Promotees and direct recruits-Fixation of seniorityValidity of rules-Considered.
The appellants as well as the respondents are members of the
Uttar Pradesh Higher Judicial Service; while the appellants are the
promotees, the respondents have been appointed direct to that service.
This is their second ronnd of litigation in this Conrt concerning their
inter se seniority in the service.
D
The Higher Jndicial Service was initially governed by statutory
rules called the Uttar Pradesh Higher Judicial Service Rules, 1953.
Recruitment to the service under the said rules was from sources, by
promotion and by direct recruitment. This Court in Chandra Mohan v.
State of Uttar Pradesh, [1967] 1 S.C.R. 77 struck down the 1953 Rules
in so far as the said Rules provided for direct recruitment to the service.
E
As a consequence, there was no direct recruitment to the Service till
1975-76, and the service consisted of only promotees with the designation of Civil and Sessions Judges.
On May 8, 1974 the Uttar Pradesh Higher Judicial Service (Abolition of Cadre of the Civil and Sessions Judges) Rules, 1974 came into
F
force. Under Rules 2 and 3 of the 1974 Rules, the existing cadre of Civil
and Sessions Judges stood abolished and a new cadre of Additional
District and Sessions Judges came into existence, the Civil and Sessions
Judges holding permanent or temporary posts in the Service were
re-designated as Additional District and Sessions Judges with effect
from the date when the 1974 Rules came into force. On that date, 271
G
officers were working as Additional District and Sessions Judges
against 235 posts (153 permanent and 82 temporary) in the service.
The Service was reconstituted and given a fresh look by the rules
framed under Article 309 read with Article 233 of the Constitution of
India, called the Uttar Pradesh Higher Judicial Service Rules, 1975
H which came into force on April 5, 1975. On that date 263 officers were
424
1
O.P. GARG v. STATE OF U.P.
425
working as Additional District and Sessions Judges, against 236 posts in
the service.
~
Recruitment to the service under the 1975 Rules is from three
A
sources and is based on quota as provided therein. The three sources of
recruitment are (i) direct recruitment from the Bar, (ii) Uttar Pradesh
Nyayik Sewa, and (iii) Uttar Pradesh Judicial Service (Judicial
B
Magistrates).
In the first round of litigation P. K. Dixit and other promo tee
officers flled two writ petitions under Article 32 of the Constitution
challenging the seniority assigned to them under the 1975 Rules. This
Court by its judgment dated October 8, 1987 in P. K. Dix it v. State of
U.P., [1988] 1 S.C.R. 398 partly allowed the writ petitions and directed C
the High Court to frame the seniority list afresh keeping in view the
observations made in that judgment.
In pursuance to the directions of this Court in Dixit case a fiveJudge committee of the High Court finalised the seniority list on August D
25, 1988. The High Court accepted the contention of direct recruits and
gave 153 permanent posts existing on May 10, 1974 plus 31 posts, which
became permanent subsequently, to the promotees. Consequently, out
of the 263 Additional District and Sessions Judges who were holding the
. posts on April 5, 1975 only 184 (153 + 31) were taken to be the existing
members of the Service and the remaining officers were asked to enter E
the service tbrongh the promotion quota under the 1975 rules.
1
In the second round, the promotees have filed writ petition challeng_ing the final seniority list. P. K. Dixit and others, petitioners in the
original Dixit-case have filed Civil Miscellaneous Petition seeking clarification of the said judgment. The direct recruits have filed writ petition F
under Article 32 impugning the final seniority list issued by the High
Court.
Before this Court, the promotees, the direct recruits as well as the
High Court have sought support fro

## Text

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A
O.P. GARG AND ORS. ETC. ETC.
V.
STATE OF U.P. AND ORS.
APRIL 23, 1991
B
[M.H. KANIA, KULDIP SINGH AND P.B. SAWANT, JJ.]
c
Uttar Pradesh Higher Judicial Service Rules 1975: Rules 5, 6, 8,
18, 22, 26-Promotees and direct recruits-Fixation of seniorityValidity of rules-Considered.
The appellants as well as the respondents are members of the
Uttar Pradesh Higher Judicial Service; while the appellants are the
promotees, the respondents have been appointed direct to that service.
This is their second ronnd of litigation in this Conrt concerning their
inter se seniority in the service.
D
The Higher Jndicial Service was initially governed by statutory
rules called the Uttar Pradesh Higher Judicial Service Rules, 1953.
Recruitment to the service under the said rules was from sources, by
promotion and by direct recruitment. This Court in Chandra Mohan v.
State of Uttar Pradesh, [1967] 1 S.C.R. 77 struck down the 1953 Rules
in so far as the said Rules provided for direct recruitment to the service.
E
As a consequence, there was no direct recruitment to the Service till
1975-76, and the service consisted of only promotees with the designation of Civil and Sessions Judges.
On May 8, 1974 the Uttar Pradesh Higher Judicial Service (Abolition of Cadre of the Civil and Sessions Judges) Rules, 1974 came into
F
force. Under Rules 2 and 3 of the 1974 Rules, the existing cadre of Civil
and Sessions Judges stood abolished and a new cadre of Additional
District and Sessions Judges came into existence, the Civil and Sessions
Judges holding permanent or temporary posts in the Service were
re-designated as Additional District and Sessions Judges with effect
from the date when the 1974 Rules came into force. On that date, 271
G
officers were working as Additional District and Sessions Judges
against 235 posts (153 permanent and 82 temporary) in the service.
The Service was reconstituted and given a fresh look by the rules
framed under Article 309 read with Article 233 of the Constitution of
India, called the Uttar Pradesh Higher Judicial Service Rules, 1975
H which came into force on April 5, 1975. On that date 263 officers were
424
1
O.P. GARG v. STATE OF U.P.
425
working as Additional District and Sessions Judges, against 236 posts in
the service.
~
Recruitment to the service under the 1975 Rules is from three
A
sources and is based on quota as provided therein. The three sources of
recruitment are (i) direct recruitment from the Bar, (ii) Uttar Pradesh
Nyayik Sewa, and (iii) Uttar Pradesh Judicial Service (Judicial
B
Magistrates).
In the first round of litigation P. K. Dixit and other promo tee
officers flled two writ petitions under Article 32 of the Constitution
challenging the seniority assigned to them under the 1975 Rules. This
Court by its judgment dated October 8, 1987 in P. K. Dix it v. State of
U.P., [1988] 1 S.C.R. 398 partly allowed the writ petitions and directed C
the High Court to frame the seniority list afresh keeping in view the
observations made in that judgment.
In pursuance to the directions of this Court in Dixit case a fiveJudge committee of the High Court finalised the seniority list on August D
25, 1988. The High Court accepted the contention of direct recruits and
gave 153 permanent posts existing on May 10, 1974 plus 31 posts, which
became permanent subsequently, to the promotees. Consequently, out
of the 263 Additional District and Sessions Judges who were holding the
. posts on April 5, 1975 only 184 (153 + 31) were taken to be the existing
members of the Service and the remaining officers were asked to enter E
the service tbrongh the promotion quota under the 1975 rules.
1
In the second round, the promotees have filed writ petition challeng_ing the final seniority list. P. K. Dixit and others, petitioners in the
original Dixit-case have filed Civil Miscellaneous Petition seeking clarification of the said judgment. The direct recruits have filed writ petition F
under Article 32 impugning the final seniority list issued by the High
Court.
Before this Court, the promotees, the direct recruits as well as the
High Court have sought support from Dixit-case on the basis of their
own interpretation of that judgment. The promotees claim that on April G
5, 1975 when the 1975 rules came into force all the 236 posts in the
Serivce had already been consumed by the existing members of the service
who were working as Additional District and Sessions Judges; till that
date the recruitment to the. service was only by way of promotion and as
such there was no question of allocating any post to the direct recruits who
had not yet been born in the service.
H
426
SUPREME COURT REPORTS
[ 1991] 2 S.C.R.
A
On the other hand, the direct recruits contend that this court
interpreting the second proviso to Rule 8(2) of the 1975 rules in Dixitcase had held that the promotees as on May 10, 1974 are entitled to-all
the permanent posts available on that date plus 31 temporary posts, and
f
apart from that they cannot lay claim exclusively to the posts created
B thereafter. In this connection it was contended that temporary posts
could not form part of the cadre of the Service, and service rendered in
or against a temporary post was outside the pale of the 1975 rules and
could not be counted for seniority and as such the continuous officiation
immediately prior to the date of confirmation provided in the rirst
proviso to rule 26(l)(a) of the 1975 rules could only be the officiation
against a permanent post.
c
Allowing the Writ Petition and the Civil Miscellaneous Petition,
quashing the seniority list and directing the High Court to prepare fresh
seniority list, this Court,
D
HELD: (1) The interpretation given by the High Court to the
second proviso to rule 8(2) of the 1975 Rules is not correct. The proviso
was not applicable to the-Service as reconstituted under the 1974 Rules
consisting of Additional District and Sessions Judges. Proviso 2 was
enacted to meet a particular situation. The proviso was meant to deal
with a situation which might have arisen in the event there had been
more posts and less number of officers to occupy the said posts on the
E reconstitution of the Service under the 1974 Rules. But siDce the
number of officers working in the service as on May 10, 1974 and April
5, 1975 was much more than the posts available in the service the situation
envisaged by the proviso did not arise. The second proviso to rule 8(2)
of the 1975 rules could not operate and since it was intended to meet
F one-time eventuality it has become redundant. [440D-441C]
(2) The Service as constituted under the 1974 Rules continued to
operate till April 5, 1975 when the 1975 rules were enforced. On April
5, 1975 the Service comprised of 236 posts (229 permanent plus 7
temporary). There were 263 officers working In the service on that date.
The 236 posts comprising the service on April 5, 1975 have to he
G assigned and given to the 236 officers out of 263 who were working as
Additional District and Sessions Judges and they are to be treated as
existing members of the service as on April 5, 1975. It is further
axiomatic that the 236 officers including those holding temporary posts
would en bloc rank senior to all those who were appointed to the
H service after April 5, 1975, under the 1975 rules. [439H-440C]
O.P. GARG v. STATE OF U.P.
427
(3) The Additional District and Sessions Judges had not only the
right to be appointed to the service but they were so appointed by the
operation of 1974 rules. The second proviso to Rule 8(2) even though
retrospective could not have taken away the vested rights of the officers
who had already become members of the service. This could not be the
intention of the framers of the 1975 rules. [441D]
(4) The substantive vacancy bas not been defined under the 1975
rules but there can also be a substantive vacancy in a temporary post
which is part of the cadre. All temporary posts created under rule 4(4)
of the 1975 rules are additions to the permanent strength of the cadre
and as such form part of the cadre. [442FJ
(5) Appointments under rule 22 of the 1975 Rules can be made to
a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadrestrength the appointment against the said post has to be treated as
substantive appointment. [442G)
A
B
c
D
(6) Recruitment to the service under the 1975 rules is from three
sources and is based on quota as provided therein. The cadre consists of
permanent as well as temporary posts. The seniority of the direct '
recruit is to be determined from the date of his joining the service and
that of promotee on the basis of continuous officiation/service from the
date when a Vacancy whether permanent or temporary, becomes availE
able in his quota. With these characteristics of the service it is obligatory that there should be equality of opportunity to enter the service for
all the three sources of recruitment. If the reeruitment rule gives
unjustifiable preference to one source of recruitment the seniority rule
is bound to become unworkable. [444E-F]
(7) When temporary posts under rule 4(4) of the 1975 rules are
created as addition to the cadre there is no justification in not applying
the quota rule to the temporary posts in the service and confming
appointments· to said posts in the service to the two sources of
promotees. [448E)
A.K. Subraman v. Union of India, [1975] 2 S.C.R. 1979 referred
to.
(8) There is no justification whatsoever in having rules 22(3) and
22( 4) of the 1975 rules which deprive one of the sources of recruitment
F
G
the benefit of appointment to the temporary posts. The rules on the face
H
428
SUPREME COURT REPORTS
[1991] 2 S.C.R.
A of it are discriminatory. There is no nexus with the object sought to be
achieved by framing these rules. [448G-H]
(9) Rules 22(3) and 22( 4) of the 1975 rules are discriminatory and
1
violative of Articles 14 and 16 of the Constitution and are accordingly
B struck down. However, the appointments already made under these
rules 22(3) and 22(4) shall not be invalidated on this ground. Further,
while selecting candidates under rule 18 the Committee shall prepare a
merit list of candidates twice the number of vacancies and the said list
shall remain operative till the next recruitment. Further, the appointments under rules 22(1) and 22(2) of the Rules shall be made to permanent as well as temporary posts from all the three sources in accorC dance with the quota provided under the 1975 rules. [449H-450B]
D
(10) The findings and observations in Dixit-case to the extent
those are contrary to this judgment shall be deemed to have been overruled. [ 449C J
ORIGINAL JURISDICTION: Writ Petition No. 259 of 1990.
(Under Article 32 of the Constitution of India).
Yogeshwar Prasad, R.K. Jain, Satish Chandra, A.S. Pundir,
E Gopal Subramanium, Mrs. S.D. Dikshit, Jitender Sharma, R.
Venkataramani, Mrs. Rachna Gupta, M.P. Shorawala, D.K. Garg,
Pramod Swamp, R.N. Keshwani, Mrs. Anil Katiyar, Anis Ahmed
Khan and A.P. Mohanty for the appearing parties.
F
The Judgment of the Court was delivered by
KULDIP SINGH, J. Before us are the members of Uttar
Pradesh Higher Judicial Service (hereinafter called the 'Service').
Promotees and the direct recruits, as usual, are in the fray. This is their
second round of litigation in this court.· Earlier in P.K. Dixit and
Others v. State of U.P. and Others, [1988] I S.C.R. 398 this court
G directed the preparation of fresh seniority list in accordance with the
observation made therein. The Allahabad High Court thereafter
framed and circulated final seniority list of the service on August 25,
1988. Both promotees and direct recruits are not satisfied with the
same. They have challenged the said seniority list, inter alia on the
ground that it is not in conformity with the directions of this court in
H Dixit's case.
- --;.
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.]
429
We may briefly state the necessary facts. The service was initially
governed by statutory rules called the Uttar Pradesh Higher Judicial
Service Rules, 1953 (hereinafter called '1953 rules'). Recruitment to
the service under the said rules was from two sources, by promotion
and the direct recruitment. In Chandra Mohan v. State of Uttar
Pradesh, [1967] 1 S.C.R. 77 this court struck-down the 1953 rules so
far as the said rules provided direct recruitment to the service: As a
consequence there was no direct recruitment to the Service till the year
1975-76. The members of the service promoted under the 1953 rules
were designated as Civil and Sessions Judges.
On May 8, 1974 the Uttar Pradesh Higher Judicial Service (abolition of cadre of the Civil and Sessions Judges) Rules, 1974 (hereinafter called '1974 rules') came into force. Under these rules the cadre
of Civil and Sessions Judges was abolished. Rules 2 and 3 of 1974 rules,
which are relevant, are reproduced hereafter:
2. Abolition of the Cadre of Civil and Sessions Judges.--
With effect from the date of commencement of these rules,
the cadre of Civil and Sessions Judges shall stand abolished
and the Uttar Pradesh Higher Judicial Service shall, with
effect from the said date, consist of the posts of District and
Sessions Judges and Additional District and Sessions
Judges only.
3. Creation of posts and confirmation .. (1) Upon the
abolition of the cadre of Civil and Sessions Judges, permanent and temporary posts of Additional District and
Sessions Judges eqbal in number of the permanent and
temporary posts, rlospectively of Civil and Sessions Judges
existing immediately before the date of commencement of
these rules shall stand created with effect from the said
date, and the officers holding the posts of Civil and
Sessions Judges immediately before the said date shall
become Additional District and Sessions Judges and be
designated accordingly.
(2) An officer who is confirmed on the post of Civil and
Sessions Judge before the commencement of these rules
shall with effect from the date of such confirmation, be
deemed to be confirmed on the post of Additional District
A
B
c
D
E
F
G
and Sessions Judge.
H
A
B
c
D
E
F
G
H
430
SUPREME COURT REPORTS
[ 1991] 2 S.C.R.
It is, thus, obvious that the cadre of Civil and Sessions Judges
stood abolished and a new cadre of Additional District and Sessions
Judges, consisting of permanent and temporary posts equal in number
of the permanent and temporary posts respectively of Civil and Sessions Judges, came into existence under the 1974 rules. The Civil and
Sessions Judges holding permanent or temporary posts in the Service
were re-designated as Additional District and Sessions Judges with
effect from May 8, 1974, the date when the 1974 rules were enforced.
On that date 271 officers were working as Additional District and
Sessions Judges against 235 posts (153 permanent and 82 temporary) in
the Service.
The Service was reconstituted and given a freshlook by the rules
framed under Article 309 read with Article 233 of the Constitution of
India called the Uttar Pradesh Higher Judicial Service Rules, 1975
(hereinafter called 'the 1975 Rules). These rules came into force with
effect from April 5, 1975. The relevant rules 5, 6, 8 and 26 are reproduced hereinafter:
5. Sources 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) 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
is published;
Provided that for so 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).
'
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.]
431
6. Quota.-- Subject to the provisions of Rule 8, the quota
for various sources of recruitment shall be--
(i) direct recruitment from the Bar 15%.
(ii) Uttar Pradesh Nyayif. Sewa 70% of the vacancies. ·
(iii) Uttar Pradesh Judicial Officers 15% Service (Judicial
Magistrates).
8.-- Number of appointments to be made.-- (1) The Court,
shall, from time to time, but not later than three years 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.
A
B
c
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,
D
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
E
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.
Provided further that all the permanent vacancies
existing 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
F
the members of the Nyayik Sewa; and only the remaining
vacancies shall be shared between the three sources under G
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 H
432
A
B
c
D
E
f
SUPREME COURT REPORTS
[1991] 2 S.C.R.
•
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 be as follows:
(i) 15% by direct recruitment.
(ii) 30% from out of the Judicial Magistrates.
(iii) 55% from out of the members of the Nyayik Sewa.
26. Seniority.-- (I) Except as provided in sub-rule (I),
seniority of members of the service shall be determined as
follows:
(a) Seniority of the officers promoted from the
Nyayik Sewa vis-a-vis the officers recruited from the
Bar shall be determined from the date of continuous
officiation in the service in the case of promoted officers and from the date of their joining the service in
the case of direct recruits. Where the date of continuous officiation in the case of an officer promoted from
the Nyayik Sewa and the date of joining the service in
the case of a direct recruit is the same, the promoted
officer shall be treated as senior;
Provided that in the case of a promoted officer the
maximum period of continuous officiation in the
service shall not, for the purpose of determining
seniority exceed three years immediately preceding
the date of confirmation ............ .
Statement of facts filed by the High Court shows that on April 5,
G
1975, when the 1975 rules came into force, there were 229 permaner.t
_,.
~
and 7 temporary (total 236) posts in the service. This total included 31
temporary posts mention in second proviso to rule 8(2) of 1975 rules.
By that date these posts had become permanent. The statement
further shows that 263 officers were working as Additional District and
Sessions Judges on the said date. We take it that there were 236 posts
H
in the Service on the commencement of the 1975 rules.
O.P. GARG v. STATE OF U.P. IKULDIP SINGH, J.]
433
P.K. Dixit and 7 other promotee officers filed two writ petitions
under Article 32 of the Constitution of India challenging the seniority
assigned to them on two grounds. It was contended that all the posts,
existing on April 5, 1975 when the 1975 rules came into force, should
be deemed t~ have been filled by the officers holding the designation
of Additional District and Sessions Judges on that date. Secondly, it
was contended that the promotees were entitled to the seniority from
the date of their actual continuous officiation and not by limiting the
said period to three years preceding the date of confirmation. This
court by its judgment dated October 8, 1987 in Dixit's case (supra)
partly allowed the writ petitions and directed the High Court to frame
the seniority list afresh keeping in view the observations made in the .
judgment.
The promotees claim that the judgment in Dixit case is wholly in
their favour on the first point. The direct recruits, however, contest
the said claim and assert that the contention of the promotees was
rejected and their claim was confined to the number of posts as provided in First Proviso to rule 8(2) of the 1975 Rules. Pursuant to the
'judgment in Dixit-case the High Court issued a tentative seniority list
on February 11, 1988. The promotees were fully satisfied with the
same as according to them the said list was drawn in conformity with
the judgment in Dixit-case. Objections were invited against the tentative seniority list and thereafter the High Court constituted a fiveJudge committee to finalise the list. On the basis of the report of the
committee final seniority list was issued on August 25, 1988. O.P.
Garg and 4 other promotees have filed writ petition No. 259 of 1989
challenging the final seniority list. P.K. Dixit and others, petitioners in
the original Di.xii-case have filed Civil Miscellaneous Petition No. 3473
of 1989 seeking clarification of the said judgment and also supporting
the case of the promotees. The direct recruits have filed writ petition
No. 1304 of 1988 under Article 32 of the Constitution of India impugning the final seniority list issued by the High Court. It is interesting that
both the promotees and the direct recruits are relying on the judgment
in Dixit-case and are contending that the final seniority list issued by
the High Court is contrary to the said judgment.
The promotees, the direct recruits and the High Court have
sought support from Dixit-case on the basis of their own interpretation
of the judgment. Apparently there are diverse observations in Dixitcase which are being stretched by the parties in support of their rival
contentions. The promotees strongly rely on the following paragraphs
from Di.xii-case to show that the First Point argued before the Bench
was decided in their favour.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
434
SUPREME COURT REPORTS
[1991] 2 S.C.R.
"In the written affidavit filed by the High Court, it is not
disputed that before these rules were brought into force, all
the posts which were available on the date on which these
rules came into force have to be filled in by promotion as
till that date there was no rule requiring direct recruitment.
But unfortunately, the High Court in their return have not
mentioned the exact number of vacancies existing on that
date also the number of officers who were officiating on
that date as Civil and Sessions Judges or Additional
District and Sessions Judges who were entitled to be
included in that cadre of higher judicial service under these
rules."
"It is not disputed that on the date on which these rules
(1915 Rules) were brought into force, all the posts available were to go to the promoted officers and the only thing
that the High Court is expected to do is to find out how
many posts were available on that date and how many
persons were officiating in the higher judicial service or
equivalent posts on that date and their seniority ought to be
fixed on the basis of their promotion to the posts except
where an officer was not found fit or where officer
concerned was reverted back to the judicial posts. The
documents do not disclose that any one of these judicial
officers· who were promotees have been reverted. The
documents also do not disclose that at any time the High
Court considered the question of their confirmation and
any one of them was not found fit for confirmation, or that
it was decided to postpone the date of confirmation
because the work of the officer was not upto the mark. The
record produced by the High Court only shows the date
from which these petitioners were promoted and started
officiating as Additional District Judges and the date on
which they were ultimately confirmed. During this period
their case was considered at any time does not appear from
the record produced in this case nor was the contention of
the learned counsel appearing for the High Court. It,
therefore, is not disputed that these petitioners who were
promoted before these rules (1975 Rules) were brought
into force were never found unfit for confirmation and in
this view of the matter, therefore, it is clear that all posts
available on the date on which these new rules were
brought into force will have to be filled in by these pro-
•
•
0.P. GARG v. STATE OF U.P. IKULDIP SINGH, J.]
435
rooted officers who were working in the officiating capacity
A
in the post of higher judicial service on the date on which
these rules were brought into force. So far as the situation
before these rules were brought into force is concerned
even during the course of argument not much controversy
appears to exist as it is clear that the question of direct
recruitment and the quota of the direct recruits vis-a-vis
B
promotees was not in existence."
Based on the above quoted findings in Dixit-case, the promotees
plausibly claim that on April 5, 1975 when the 1975 rules came into
force all the 236 posts in the Service had already been consumed by the
existing members of the service who were working as Additional c
District and Sessions Judges. Till that date the recruitment to the
service was only by way of promotion and as such there was no question of allocating any post to the direct recruits who had not yet born in
the service.
- ,-.
The direct recruits, on the other hand, assert that the Dixit-case D
decides the controversy in their favour. Reliance in that respect is
placed on the following observations in the judgment:
"This also appears to be the intention of the rules when
they were framed in 1975 as is clear from the proviso to
•.
Rule 8. It reads:
E
"Provided further that the permanent vacancies existing 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 F
shared between the three sources under these rules:
It therefore is clear that even these rules provided that all
the posts (permanent) available in the Higher Judicial
Service existing on May 10, 1974 plus 31 temporary posts
--(
existing on that date which may become permanent later G
shall be filed by promotion from amongst the members of
the Nyayik Sewa. It is therefore clear that all the posts in
the Higher Judicial Service, lying vacant on May 10, 1974
plus thirty one will have to be filled in from the officers of
the Nyayik Sewa. May be that some of these posts may be
occupied by promotee officers who were given promotions H
436
A
B
c
D
E
F
SUPREME COURT REPORTS
[ 1991] 2 S.C.R.
on ad hoc basis and working on those posts or that the posts
may be lying vacant. Whatever may be the situation on the
basis of what has been discussed above and also as has been
clearly provided in these rules the matter will have to be
gone into the High Court afresh and fill in all the posts in
the Higher Judicial Service available on May 10, 1974 plus
31 posts from the officers of the Nyayik Sewa."
"It has therfore to be accepted that all those who were
working as Civil and Sessions Judges on 8th May, 1974
automatically became Additional District and Sessions
Judges and what was left was only a consideration of their
cases of confirmation and in so doing in view of the conclusions arrived at by us and also as has been provided in the
proviso to Rule 8 quoted above all the posts available on
10th .May, 1974 plus 31 posts (temporary) on that date will
have to be filled in from the cadre of Nyayik Sewa by
promotion.''
"But in view of what we have discussed earlier about the
appointments on the posts available before these Rules
were brought into force and to fill in temporary posts, we
feel that the matter will have to be examined afresh by the
High Court. So far as posts available on 10th May, 1974
plus 31 posts are concerned they will have to be filled in
only by promotees as we have discussed earlier and also in
view of proviso to Rule 8 and after doing it examine the
cases of promotion and direct recruitment after the coming
into force of these Rules and the vacancies available and
after consideration the cases in according with these Rules
the High Court will prepare afresh the seniority list which
may be notified so that if any objections are there, they
may be placed for determination in according with the
Rules and in the light of the discussions above."
The precise assertion of the direct recruits, therefore, is that this
G
court interpreting the second proviso to Rule 8(2) of the 1975 rules in
Dixist-case has held that the promotees as on May 10, 1974, are
entitled to all the permanent posts available on that date plus 31
temporary posts and apart from that they cannot lay claim exclusively
to the posts created thereafter.
H
The High Court accepted the contention of the direct recruits
t
O.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.)
437
and gave 153 permanent posts existing on May 10, 1974 plus 31 posts,
which became permanent subsequently to the promotees. Consequently out of the 263 Additional District and Sessions Judges who
were holding the posts on April 5, 1975 only 184 ( 153 + 31) were taken
to be the existing members of the Service and the remaining officers
were asked to enter the service through the promotion quota under the
1975 rules.
The second point in Dixit-case was regarding fixation of seniority
of the promotees under the 1975 rules. Whether whole of the continuous officiation or part of it is to be counted towards seniority was the
moot-point. Rule 26(1)(a) of the 1975 rules provides that seniority of
the direct recruits is to be determined from the date of their joining the
service whereas that of the promotees from the date of continuous
officiation in the service. But the first proviso to the said rule further
limits the period of continuous officiation of a promotee for determining seniority to a maximum of three years immediately preceding the
date of confirmation. The promotees contended in Dixit-case that they
were entitled to the counting of their total period of continuous officiation towards seniority. This court rejected the contention in the
following words:
"Having gone through these Rules it appears that the contention advanced by the petitioners in respect of proviso to
Rule 26 about seniority does not appear to be justified."
A
B
c
D
E
The High Court while framing the impugned seniority list did not
follow the seniority rule. The High Court determined the seniority of
the promotees by giving them benefit of three years continuous officiation immediately preceding the date of availability of permanent
vacancy whereas the rule provides three years preceding the date of F
confirmation.
Mr. Y ogeshwar Prasad, learned senior advocate appearing for
tbe promotees. Mr. Satish Chandra, learned senior advocate for the
direct recruits and Mr. Gopal Subramanium, learned advocate appearing for the High Court have addressed elaborate arguments before us. G
The learned counsel have read and re-read the judgme!lt in Dixit-case
in support of their respective contentions. The thrust of Mr. Yogeshwar Prasad's argument is twofold. He contended that the service consisting of Additional District and Sessions Judges was constituted
under the 1974 Rules which continued till April 5, 1975 when the
Service was reconstituted under the 1975 rules. According to him all H
A
438
SUPREME COURT REPORTS
[1991] 2 S.C.R.
the posts in the service, permanent and temporary, available on April
5, 1975 would be deemed to have been filled from amongst the Additional District and Sessions Judges working on that date. Only the
posts created thereafter could be filled from the three sources under
the 1975 rules. The second contention of Mr. Prasad was that the
benefit of continuous officiation towards seniority cannot be confined
B
to three years and the promotees are entitled to the fixation of their
seniority on the basis of continuous length of Service.
c
D
E
F
Mr. Satish Chandra on the other hand has argued that second
proviso to Rule 8(2) of the 1975 rules which is retrospective in its
application, limits the number of vacancies as on May 10, 1974 to be
filled by promotion from amongst the members of Nyayik Sewa.
According to him, under the said proviso, all the other posts created
after May 10, 1974 are to be filled from the three sources in accordance
with the 1975 rules. Mr. Satish Chandra further argued that the High
Court acted illegally and in violation of first proviso to Rule 26{1)(a) of
the 1975 rules in determining the seniority of the promotees by giving
them the benefit of three years officiation immediately preceding the
datl! of availability of permanent vacancy. According to him, such
period under the above proviso can only be preceding the date of
confirmation.
The judgment in Dixit-case, by and large, deals with the main
points raised by the learned counsel for the parties before us. But in
view of divergent view-point taken by the promotees, the direct
recruits and the High Court on the interpretation of the said judgment,
we are of the view that it is necessary to have a fresh look into the
matter to finally settle the long-drawn controversy between the
parties. The service is a prestigious and sensitive service consisting of
officers who form the back-bone of Uttar Pradesh Judiciary. The
service is the feeder-cadre for appointment to High Court Judges. It is
necessary to settle their rights in clear and unambiguous terms.
Taking an overall view of t.he arguments advanced by Mr.
Y ogeshwar Prasad and Mr. Satish Chandra we pose the following
G
three questions for our determination:
1. What is the scope and interpretation of second proviso to rule
8(2) of the 1975 rules? Whether the Additional District and
Sessions Judges, holding the posts on April 5, 1975, can claim
that· by operation of the 1974 rules they stood appointed to the
H
service and as such consumed all the posts which were available
,.
·"'
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.]
439
on April 5, 1975 or they were only entitled to vacancies under the
A
second proviso to rule 8(2) of the 1975 rules.
2. Whether the period of continuous officiation in case of a
promotee, for determining seniority, is to be counted in terms of
First proviso to rule 26(1)(a) of the 1975 rules or in accordance
with the principle adopted by the High Court. Isn't it the requirement of law that a promotee is entitled to seniority in the service
from the date when vacancy in his quota became available.
3. Seniority and appointment in the service being inter-linked a
further question which necessarily arises for our consideration is
whether rules 22(3) and 22(4) of the 1975 rules, which provide
appointments to temporary posts in the service from two sources
of promotees excluding the direct recruits, can be legally
sustained.
·
We may take-up the first point for consideration.
After the decision by this court in Chandra Mohan's case
(supra), the Service consisted of only promotees with the designation
of Civil and Sessions Judges. They were promoted from the lower
cadre of U.P. Civil Services (Judicial Branch) called "Nyayik Sewa".
Thereafter under the 1974 rules which came into force on May 8, 1974
B
c
D
the Civil and Sessions Judges, holding permanent or temporary posts, B
were redesignated as Additional District and Sessions Judges. By
operation of the 1974 Rules all the newly designated Additional
District and Sessions Judges became members of the Service. Rule 2 of
the 1974 Rules specifically provided that with effect from the date of
commencement of those Rules "the Uttar Pradesh Higher Judicial
Service shall consist of the posts of District and Sessions Judges and F
Additional District and Sessions Judges". It is thus obvious that the
Service was reconstituted under the 1974 Rules and all the Additional
Distirct and Sessions Judges, to the extent posts were available,
became members of the said service by operation of law. There were
271 officers working in the Service on May 8, i974 and there were 235
posts (153 permanent plus 82 temporary) available in. the service.
G
Therefore, 235 officers out of the 271 working on May 8, 1974 for
whom the posts were available in the service would be deemed to be
members of the service under the 1974 rules. The Service as constituted under the 1974 Rules continued to operate till April 5, 1975
when the 1975 rules were enforced. Till that date the only source of
recruitment to the service was by way,of promotion. On April 5, 1975
H
440
SUPREME COURT REPORTS
[1991] 2 S.C.R.
A the service comprised of 236 posts (229 permanent plus 7 temporary).
There were 263 officers working in the service on that date. 235 posts
were already occupied by the officers who had become members of the
service under the 1974 rules and the one additional post available
would go to the 236th officer holding the post on April 5, 1975. The
B
c
236 posts comprising the service on April 5, 1975 have to be assigned
and given to the 236 officers out of 263 who were working as Additional District and Sessions Judges and they are to be treated as existing members of the service as on April 5, 1975. It is further axiomatic
that the 236 officers including those holding temporary posts would en
bloc rank senior to all those who were appointed to the service after
April 5, 1975 under the 1975 rules. The view which we have taken is
also in conformity with the observations in Dixit-case relied upon by
the promotees which we approve.
Coming to the second proviso to rule 8(2) of the 1975 rules relied
upon by the direct recruits, we are of the view that the interpretation
given to the proviso by the High Court is not correct. A bare reading of
D the proviso shows that it was not applicable to the Service as reconstituted under the 1974 Rules consisting of Additional District and
Sessions Judges. The proviso states that "all the permanent vacancies
existing on May 10, 1974 plus 31 temporary posts existing on that date
................ , shall be filled by promotion from amongst the
members of the Nyayik Sewa; and only the remaining vacancies shall
E
be shared between the three sources under these rules." The Additional District and Sessions Judges working on May 10, 1974 were not
members of the Nyayik Sewa, they had already become members of
the Service on May 8, 1974 under the 1974 Rules. The proviso talks of
"Nyayik Sewa" and "the three sources under the Rules", which obviously means it is visualising a situation which was to exist after the
F
enforcement of the 1975 rules on April 5, 1975.