# SRI KANT TRIPATHI AND ORS v. STATE OF U.P. AND ORS

- **Citation:** [2001] Supp. 2 S.C.R. 635
- **Court:** Supreme Court of India
- **Decided:** 2001-09-07
- **Bench:** G.B. Pattanaik, Mrs. Ruma Pal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-kant-tripathi-and-ors-v-state-of-u-p-and-ors-18185
- **Pages:** 32

## Headnote

Service Law :
UP. Higher Judicial Service Rules, 1975-Rule 4, 6, 8, 18, 20, 21 and
22:
Appointment to the Service through direct recruitment and promoteesFixation of respective quota and recruitment in different years as per Rules
to fill up vacancies-Held, percentage of quota should be fixed on the basis
A
B
c
of actual vacancies i,7 a recruitment year and probable vacancies in next two
years-Determination of quota on the basis of total cadre strength by High D
Court is unsustainable-Directions in regard to appointments already made
and future appointments-Issued
Right of wait-listed candidates in getting appointment t<J the ServiceDiscussed-Held, since the calculation was made on erroneous basis, question E
regarding right of wait-listed candidates does not arise.
The sequence of events leading to the present Appeals and Writ Petitions
in respect of different recruitment y~ars is as under :
Recruitment year 1988 :
High Court issued an advertisement for filling up 5 vacancies in the
Higher Judicial Service for direct recruitment under the U.P. Higher Judicial
Service Rules, 1975. It was indicated in the advertisement that there may be
variation in the number of vacancies. The Selection Committee, being of the
F
.-'
opinion that more direct recruits could be appointed than the number of posts G
advertised, selected 9 persons. The High Court, however, recommended 7
persons for direct recruitment. In August 1990, the High Court approved 68
promotees from out of members of the U.P. Nyayik Sewa for promotion to the
Higher Judicial Service on a temporary basjs under Rule 22(3) of the Rules.
However, only 16 of the 68 promotees were given appointment. The
635
H
636
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
A unsuccessful promotees filed Writ Petition before High Court for filling up
th.e promotees quota as per the Rules.
In the meantime, this Court in O.P. Garg and Ors. v. State of UP.,
11991] Suppl. 2 SCC 51 struck down sub-rules (3) and (4) of Rule 22 as
being violative of Article 14 of the Constitution since the sub-rules did not
B permit appointment of direct recruits from the Bar for temporary posts. The
Selection Committee, which was in the midst of the process of selecting
persons, made necessary calculations and increased the number of posts
available for direct recruits to 25, and they were appointed by the High
Court. The High Court dismissed the Writ Petition filed by promotees as
C infructuous as according to it the promotees were given promotion by that
date and no cause of action arose.
In appeal to this Court, the promotees contended that the High Court,
instead of taking steps for filling up the promotion quota under Rule 20 of
the Rules, was concerned with filling up the quota meant for direct recruitment
D in the service. High Court submitted that the direct recruitment quota was
fixed on the basis of percentage of the total cadre strength.
The direct recruits contended that the Selection Committee and the
Full Court has not committed any infirmity in appointing direct recruits in
excess of the vacancies advertised since there was a variation clause in the
E
.. ..ivertisement; and that there would be no difference if the quota is calculated
either on the basis of the vacancies available or on the basis of the total cadre
strength.
F
G
Two Writ Petitions were filed under Article 32 of the Constitution by
two advocates assailing the power and authority of the Selection Committee
to increase the number of direct recruits and for quashing the appointment
of 24 direct recruits since the advertisement was issued for filling up only
5 vacancies; that such procedure debarred the petitioners from availing of
their chances for appointment; and that a fresh process of recruitment
should be started for filling up the direct recruitment quota.
Recruitment year 1990 :
High Court in 1992 issued an advertisement for filling up 6 vacancies
with a variation clause through direct recruitment. Applicants filed Writ
Petitions before

## Text

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SRI KANT TRIPATHI AND ORS.
v.
STATE OF U.P. AND ORS.
SEPTEMBER 7, 2001
[G.B. PATTANAIK AND MRS. RUMA PAL, JJ.]
Service Law :
UP. Higher Judicial Service Rules, 1975-Rule 4, 6, 8, 18, 20, 21 and
22:
Appointment to the Service through direct recruitment and promoteesFixation of respective quota and recruitment in different years as per Rules
to fill up vacancies-Held, percentage of quota should be fixed on the basis
A
B
c
of actual vacancies i,7 a recruitment year and probable vacancies in next two
years-Determination of quota on the basis of total cadre strength by High D
Court is unsustainable-Directions in regard to appointments already made
and future appointments-Issued
Right of wait-listed candidates in getting appointment t<J the ServiceDiscussed-Held, since the calculation was made on erroneous basis, question E
regarding right of wait-listed candidates does not arise.
The sequence of events leading to the present Appeals and Writ Petitions
in respect of different recruitment y~ars is as under :
Recruitment year 1988 :
High Court issued an advertisement for filling up 5 vacancies in the
Higher Judicial Service for direct recruitment under the U.P. Higher Judicial
Service Rules, 1975. It was indicated in the advertisement that there may be
variation in the number of vacancies. The Selection Committee, being of the
F
.-'
opinion that more direct recruits could be appointed than the number of posts G
advertised, selected 9 persons. The High Court, however, recommended 7
persons for direct recruitment. In August 1990, the High Court approved 68
promotees from out of members of the U.P. Nyayik Sewa for promotion to the
Higher Judicial Service on a temporary basjs under Rule 22(3) of the Rules.
However, only 16 of the 68 promotees were given appointment. The
635
H
636
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
A unsuccessful promotees filed Writ Petition before High Court for filling up
th.e promotees quota as per the Rules.
In the meantime, this Court in O.P. Garg and Ors. v. State of UP.,
11991] Suppl. 2 SCC 51 struck down sub-rules (3) and (4) of Rule 22 as
being violative of Article 14 of the Constitution since the sub-rules did not
B permit appointment of direct recruits from the Bar for temporary posts. The
Selection Committee, which was in the midst of the process of selecting
persons, made necessary calculations and increased the number of posts
available for direct recruits to 25, and they were appointed by the High
Court. The High Court dismissed the Writ Petition filed by promotees as
C infructuous as according to it the promotees were given promotion by that
date and no cause of action arose.
In appeal to this Court, the promotees contended that the High Court,
instead of taking steps for filling up the promotion quota under Rule 20 of
the Rules, was concerned with filling up the quota meant for direct recruitment
D in the service. High Court submitted that the direct recruitment quota was
fixed on the basis of percentage of the total cadre strength.
The direct recruits contended that the Selection Committee and the
Full Court has not committed any infirmity in appointing direct recruits in
excess of the vacancies advertised since there was a variation clause in the
E
.. ..ivertisement; and that there would be no difference if the quota is calculated
either on the basis of the vacancies available or on the basis of the total cadre
strength.
F
G
Two Writ Petitions were filed under Article 32 of the Constitution by
two advocates assailing the power and authority of the Selection Committee
to increase the number of direct recruits and for quashing the appointment
of 24 direct recruits since the advertisement was issued for filling up only
5 vacancies; that such procedure debarred the petitioners from availing of
their chances for appointment; and that a fresh process of recruitment
should be started for filling up the direct recruitment quota.
Recruitment year 1990 :
High Court in 1992 issued an advertisement for filling up 6 vacancies
with a variation clause through direct recruitment. Applicants filed Writ
Petitions before High Court alleging anomalies in the process of recruitment
H and challenging appointment of 13 promotees as being illegal as the vacancies
' .
"· .
SRI KANT TRIPA THI v. ST ATE
637
were meant for direct recruits. Full Bench of the High Court allowed the A
Writ Petitions holding that the appointment of promotees were invalid and
requested the Full Court to fill up the 13 vacancies through direct recruitment.
However, the promotees were allowed to be continued on ad hoc basis till a
final decision is taken by Full Court of the High Court. The promotees filed
appeals before this Court.
In the mean time, the Full Court passed a resolution that the 13
vacancies of direct recruits would be filled up in future recruitment years
B
as the recruitments for the current recruitment years were already over.
Applicants filed Writ Petitions before the High Court against the Full Court
resolution. High Court dismissed the Writ Petitions, against which appeals C
were before this Court.
Two more Writ Petitions were filed by wait-listed candidates under
Article 32 challenging the Full Court resolution. The wait listed candidates
contended that on the basis of the request of the Full Bench of the High
Court to the Full Court to fill up the 13 vacancies, they have to be appointed D
in view of the vacancy position.
Recruitment Year 1992 :
An advertisement was issued in 1996 for filling up 19 vacancies with
a variation clause. The Full Court approved 20 candidates out of 21 selected E
candidates. Applicants filed Writ Petitions before the High Court questioning
the calculation of the number of vacancies available for direct recruits. High
Court allowed the Writ Petitions holding that there existed 31 vacancies for
direct recruitment after taking into account the vacancies on account of
death, compulsory retirement, voluntary retirement, removal and elevation of F
persons to higher posts. Appeals were filed before this court by the High
Court and by some applicants.
Writ Petitions were filed under Article 32 in 1999 by two wait listed
candidates contending that the High Court had committed error in not
taking into account the vacancies likely to occur in the next two years; and G
for a direction to appoint candidates recommended by the Full Court.
Recruitment Year 1998 :
A Writ Petition was filed under Article 32 by a promotee against the
advertisement issued by the High Court for filling up 38 vacancies by direct H
638
SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.
A recruitment.
The promotees submitted that the High Court has committed a mistake
in calculating the number of vacancies resulting in gross injustice to the
promotees and for a direction restraining the High Court not to issue fresh
advertisement for appointment of direct recruits for the year 1998 since
B excess appointments were made in previous recruitment years.
Disposing of the matters, the Court
HELD : I.I. The Full Court determines the number of officers to be
taken at a particular recruitment, keeping in view the vacancies then existing
C as well as likely to occur in the next two years. The question of any variation
in the number of vacancies would not arise in the ordinary course. But in
any extraordinary situation, like sudden creation of posts in the cadre,
subsequent to the issuance of advertisement, but before the last date of
submission of application forms, the variation clause may become applicable,
D so that a greater number of persons than the posts advertised for, could be
considered for the said recruitment. However, such a situation will have to
be an extraordinary one. [ 655-G, H; 656-A)
1.2. For smooth functioning of the Judicial Service as well as for
efficient management of the cadre, steps should be taken for filling up of the
E vacancies, strictly in accordance with the procedure prescribed under the
i<ules by eligible persons so that there will not be any heart burning amongst
the employees. The Higher Judicial Service forms the back-bone of the
Judicial system and strengthening of such service with efficient people is
a solution against the malady of long pending litigation in the subordinate
F
Courts. Any discontentment amongst the members of the Judicial Service,
on account of inaction on the part of the High Court, either in the matter
of fixing the number of officers to be appointed by way of direct recruitment
or through promotion should be avoided and the High Court must adhere to
the time-frame as well as the process of selection and appointment from
different sources, which alone would subserve the smooth functioning of the
G cadre of Higher Judicial Service. (656-B-E]
2.1. For the purpose of recruitment for the year 1988, the High Court
was duty bound to examine and find out the number of vacancies as were ..
available in 1988 as well as the anticipated vacancies likely to occur in 1989
and 1990 and thereupon, calculate the posts available from three different
H sources, in accordance with Rule 6 of the Rules and then take steps for
SRI KANT TRIP A THI v. STA TE
639
filling up the posts in accordance with the prescribed procedure. No steps A
had been taken io fill up the posts available under the promotional quota. The
High Court had made the calculation on the basis of percentage of the total
cadre strength and not on the basis of the vacancies available for the
recruitment year and vacancies likely to occur in two succeeding years.
This, on the face of it, is unsustainable, in view of the clear and unambiguous B
language in Rule 6. The very basis of calculation being incorrect, necessarily,
it has resulted in gross injustice. [657-B, CJ
2.2 The Selection Committee took upon itself the task of finding out
the number of vacancies in the cadre available to be filled up by direct
recruitment and then selected persons on the basis of such determination. C
The determination of the number of officers to be taken at a recruitment,
keeping in view the vacancies then existing and likely to occur in the next
two years, is a statutory obligation of the High Court under Rule 8 and the
High Court cannot abdicate its obligation and leave it to be determined by
the Selection Committee constituted under Rule 16 of the Rules. The factual
fixation of the number of officers to be taken at a recruitment could be D
determined by a Committee, constituted by the Court if the administrative
exigency so requires, but then such determination would have to be approved
by the Court in its Full Court Meeting. The Selection Committee would not
have any jurisdiction to consider the question of determining the number of
vacancies available for direct recruits or it could enhance or reduce the E
number of vacancies, already determined by the Court under Rule 8. The
Selection Committee had determined the number of posts available for being
filled up by direct recruitment in view of the judgment of this Court in O.P.
Garg's case. Such determination must be held to be not in accordance with
the Rules. [657-D-G; 658-A, BJ
F
O.P. Garg and Ors. v. State of UP., [1991) Suppl. 2 SCC 51, referred
to.
2.3 In view of the submission of the High Court that the Court made
the calculation on the basis of total cadre strength, there is no force in the
submission of the direct recruits that there would be no difference, even if G
the percentage were worked out on the basis of the vacancies available on
the date and the anticipated vacancies in next two years. The High Court
committed a serious mistake in calculating the number of direct recruits to
be recruited on the basis of 15% of the cadre strength and such basis is
erroneous being in the teeth of the language in Rule 6. [659-D, E)
·
H
640
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
A
S. Prakash and Anr. v. K.M Kurian and Ors., (19991 5 SCC 624,
referred to.
2.4. This Court does not propose to annul any appointment already
made for recruitment year 1988. [659-G(
B
3.1. In respect of recruitment year 1990, the High Court committed
the same mistake of determining the quota at 15% of the total cadre strength.
The determination made by the Full Bench to the effect that for the
recruitment year 1990, 13 more direct recruits ought to be taken is annulled
and the percentage has to be recalculated on the basis of the interpretation
given to the Rules. The promotees, who have been allowed to continue on ad
C hoc basis, shall continue as such, till the High Court determines their quota
on the basis of available vacancy position, whereafter, necessary adjustment
can be made. (660-D, El
State of Bihar and Anr. v. Madan Mohan Singh and Ors., (19941 Supp.
D 3 SCC 308; 0. P. Garg and Ors. v. State of UP. and Drs., (1991 ( Supp. 2 SCC
51 and O.P. Sing/a and Anr. etc. v. Union of India and Ors., (1985( 1 SCR,
351, referred to.
3.2. The calculations to find out the available vacancies at the time of
recruitment in 1990 as well as the anticipated vacancies in the two succeeding
E years were arrived at on an erroneous basis. By calculating 15% of the total
strength of the cadre as the quota for direct recruitment, the High Court
acted contrary to Rule 6 of the Rules and, therefore, any direction in relation
to filling-up such number of posts, would be contrary to law. (661-C, DJ
3.3. The request of the Full Bench of the High Court to the Full Court
F tantamount to fresh process of selection with the constitution of a Selection
Committee under Rule 16 of the Rules and therefore the claim of the waitlisted candidates stood negatived by the Full Bench of the High Court. The
decision has not been assailed in any higher forum and has become final.
A wait listed candidate has no vested right to be appointed, except when a
{
G selected candidate does not join and the waiting list is still operative.
....
(661-F, G, HJ
H
Surinder Singh and Ors. etc. v. State of Punjab and Anr. etc., (JT
(1997) 7 SC 537and Sanjoy Bhattacharjee v. Union of India and Ors. (1997J
4 sec 283, relied on.
Virender S. Hooda and Ors. v. State of Haryana and Anr., (1999J 3
SRI KANT TRIPATHI v. STATE
641
SCC 696; A.P. Aggarwal v. Govt. of NCT of Delhi and Anr., (2000] 1 SCC A
600 and Roshni Devi and Ors. v. State of Haryana and Ors., [1998] 8 SCC
59, distinguished.
4.1. For recruitment year 1992, the High Court has come to the
conclusion that the vacancies on account of death, compulsory retirement,
voluntary retirement, removal, dismissal and elevation of an officer as a B
Judge of the High Court, could also come within the expression "vacancies
likely to occur in the next two years". This concept is wholly unsustainable
inasmuch as nobody can anticipate as to how many people would die or how
many would compulsorily be retired or removed or dismissed or would be
elevated to the High Court. The expression "vacancies likely to occur in the C
next two years" would obviously mean the vacancies, which in all probability,
would occur. In other words, it can only refer to the cases when people would
superannuate within the next two years. If the vacancy position is calculated,
at the end of the block-period, the expression "vacancies likely to occur in
the next two years" would become redundant and in such a case, the vacancies
actually existing for the period, will have to be taken into account. The D
expression "vacancies likely occur in the next two years" will operate only,
when the High Court decides for the recruitment of 1988 in 1988 itself and
then takes into consideration the anticipated vacancies in 1989 and 1990.
The enunciation oflaw made by the High Court in the impugned judgment,
therefore, cannot be sustained, so far as it relates to interpretation of the E
expression "vacancies likely to occur in the next two years" in Rule 8(1)
of the Rules. 1663-D-H; 664-A]
4.2. The High Court has committed the same mistake by calculating
the vacancies on the basis of percentage of total cadre strength. The Court
will have to find out the number of vacancies available for a given recruitment F
year under Rule 8(1) and then applying the quota under Rule 6, determination
has to be made as to how many of those vacancies would go for direct
recruitment and how many for promotion. On this score also, the High Court
had held to be contrary to law and the determination made as to the posts
available for direct recruitment as well as for promotion, must be held to be G
erroneous and cannot be sustained. [664-D-F]
5. So far as the direct writ petitions filed by the wait-listed candidates,
since the calculation was made on erroneous basis, the question of a waitlisted candidate getting any right to be appointed, does not arise. That apart,
the advertisement itself had been issued in the year 1996 and the challenge H
642
SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.
A has been made by filing writ petitions nuder Article 32 in 1999. No reason
has been given for not assailing the advertisement for more than three years.
An applicant, whose name appears in the wait list, does not get an enforceable
right for being appointed to a post. That being the position, no relief can be
granted to such applicants. 1664-G, H; 665-A, BJ
B
R.K. Sabharwal and Ors. v. State of Punjab and Ors., 119951 2 SCC
745, referred to.
6. In view of the findings arrived at, it is directed that :
(i) Appointments already made to the Higher Judicial Service, whether
C direct recruitment or by promotion, need not be annulled and shall be
continued.
(ii) With effect from 1988 recruitment and in all subsequent
recruitments, which are the subject matter of challenge, the High Court
D shall determine the number of vacancies available as on the relevant year of
recruitment in terms of Rule 8 and then allocate the percentage to different
sources of recruitment, contained in Rule 6, and after such determination
is made, then find out whether the appointments of direct recruits already
made for that recruitment year are in excess of the quota or within the quota.
If it is found that any appointment has been made in excess of the quota, then
E the said appointee would be allowed to continue, but his or her seniority will
have to be reckoned only when he or she is adjusted in the next recruitment.
F
(iii) If in each recruitment year, posts were available in the quota of
. promotees and promotion has not been made, even though selection had been
made under Rule 20, then the legitimate right of the promotees cannot be
denied and promotion must be made with effect from the date they should
have been appointed.
(iv) Since the determination under Rule 8 is being made now, pursuant
to the directions of this Court, in respect of past recruitment year for which
G recruitment has been made, the expression "vacancies likely to occur" loses
its importance and determination has to be made, on the basis of the actual
vacancies available in any of such recruitment year.
(v) So far as the recruitment of 1998 is concerned, advertisements
having been issued for 38 vacancies being filled up by direct recruitment and
H the process of selection being already over, but no appointment having been
-
SRI KANT'TRIPATHI v. STA TE
643
made, appointment of the selected candidates may be against the quota available A
to direct recruits calculated in accordance with the Rules.
(vi) For all future appointments, the High Court must take steps to
fill the vacancies of every recruitment year during that year itself. The High
Coilrt must determine the vacancies not only on the basis of the actual
vacancies on the date of such determination but also take into account B
probable vacancies by reason of superannuation of officers in t'Je next two
years from that date. Once the vacancies are so determined, the percentage
of the vacancies available for recruitment by direct recruitment and by
promotion must be fixed and steps taken for filling up the same expeditiously.
The number of vacancies available for the direct recruits quota must advertised C
without any variation clause. The Select List prepared both for direct recruits
as well as for promotees prepared by the High Court will be operative only'
till the11ext recruitment commences with the fixation of the vacancies for
the next recruitment year. [665-E-H; 666-A-G)
CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 5908of1997.
D
From the Judgment and Order dated 1 I .2.94 of the Allahabad High Court
in C.M.W.P. No. 34857of1992.
WITH
W.P. (C) No. 394, 592/94, C.A. Nos. 1656, 1657/2001, W.P. (C) No. E
460199, C.A. Nos. 1669-1680/2001, W.P. (C) No. 97/2000, C.A. Nos. 1658-1662,
1663, 1664-1668/2001, W.P. (C) Nos. 444/2000 and 203/2001.
Yogeshwar Prasad, P.P. Rao, Dinesh Dwivedi, R. Venkataramani, A.K.
Srivastava, Anup Choudhary, G.L. Sanghi, Rachna Gupta, Dr. 1.P. Singh,
Ms.Sangeeta Dhiya, J.M. Sharma, Prashant Choudhary, Sandeep Singh, Sunil F
Pundir, R. Kumar, Pramod Swarup, Ms. Pareena Swarup, Praveen Swarup,
Bharat Sangal, Ms. Sangeeta Panickar, Vishwajit Singh, P.K. Jain, R.C. Verma,
R. Ayyam Perumal, S.R. Babu, Ashok K. Srivastava, Krishnanand Pandeya,
Raj Kumar Gupta, Sheo Kmar Gupta, Jai Mangal Wadi, A.N. Baradiyar, Prashant
Bhushan, Sudhir Nandrajog, Rajendra Prasad Saxena, Vineet Sinha, Shrish G
Kumar Misra, Ranbir Singh Yadav, Anis Ahmed Khan, Shailendra Bhardwaj,
O.P. Gaggar, Rakesh Kr. Sharma, Chandra Shekhar, S.K. Verma for the appearing
parties.
In-person for Respondent in C.A. No. 5908/97 and W.P. (C) No. 394/94.
The Judgment of the Court was delivered by
H
A
B
644
SUPREME coutn REPORTS [2001] SUPP. 2 S.C.I<..
PA TT ANAIK, J. This batch of cases deals with the dispute between the
direct recruits and the promotees in the cadre of U .P. Higher Judicial Service
comprising of posts borne in Class I U.P. Higher Judicial Service tZules, 1975
have been framed in exercise of powers conferred by the Proviso to Article
309, read with Article 233 or the Constitution by the Governor in supersession
of the earlier Recruitment Rules of 1953. The earlier Recruitment Rules of the
years 1953 were struck down by this Court in the case of Chandra Mohan
v. State of U.P. on a conclusion that the same was violative of Article 233 of
the Constitution.
The present Rules govern the conditions of service including recruitment
C of the members of the service constituting a cadre. The dispute, in fact
centers round recruitment made in different recruitment years, and is basically
one on the calculation made by the High Court to find out the ratio between
direct recruits and promotees in a given year. We, however do not propose
to examine the calculation made by the High Court in each recruitment year,
on the other hand, we propose to interpret the relevant provisions of the
D Rules and decide what should be the correct mode of calculation whereafter
the High Court may itself, re-calculate and re-adjust the appointments already
made or to be made in future.
Under the present Recruitment Rules the expression 'service' has been
defined in Rule 3 ( c) to mean, the Uttar Pradesh Higher Judicial Service. The
E strength of the service has been defined in Rule 4 to indicate that it constitutes
a single cadre comprising of the posts of District and Sessions Judges and
Additional District and Session Judges, the permanent strength of service
was specified the Appendix 'A' in accordance with the provision contained
in Sub-Rule (3) of Rule 4. Rule 5 provides that the recruitment to the service
p
shall be made by direct recruitment and by promotion of confirmed members
of U.P. Nvayik Sewa from amongst those members who have put in not less
than 7 years to be computed on the 1st day of January of next following year
in which notice inviting applications is published, as well as from U.P. Judicial
Officers Service. Rule 6 is the Rule providing quota, which is of paramount
importance in the case in hand, and as such is quoted hereinbelow in extenso:-
G
H
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) U.P. Nyayik Sewa
70% of the vacancies
-
...
-
·-"'
SRI KANT TRIP A THI v. STATE (PATTANAIK, J.]
(iii) U.P. Judicial Officers Service
(Judicial Magistrates)
15%
645
A
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:
B
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, becomes 85 per cent."
c
Rule 8 is yet another important provision which requires consideration
in the case in hand and the said Rule also is extracted hereinbelow in extenso:- D
"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 E
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:
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;
F
G
so, however, that the percentage of direct recruits in the Service does H
646
A
SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.
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 temp'.lrary posts existing on that date, if and when
they are converted into permanent posts, shall be filled by promotion
B
from amongst the members of the Nyayik Sewa; and only the remaining
vacancies shall be shared between the three sources under these
rules;
c
D
E
F
Provided also that the number of vacancies equal to 15 per cent
of the vacancies referred to in the last proceeding 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 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."
Part IV, starting with Rule 17 provides the procedure for direct recruitment,
and Part V starting with Rule 20 provides the procedure for recruitment by
promotion. Part VI containing Rule 21 deals with the recruitment of Judicial
Magistrates. Rule 22, contained in Part VII deals with appointment. We are
not concerned with the other Rules in the present case.
The hierarchy in the Judicial Service of the State is that the Civil Judge
(Junior Division) is the lowest and the next promotional post is Civil Judge
(Senior Division), whereafter is the post of Additional District Judge and
G finally the District Judge.
Under the Recruitment Rules, more particularly in Rule 8, the Court is
required from time to time, but not later than 3 years from the last recruitment,
to 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 2 years. Rule 6,
H which is subject to Rule 8, and which provides for quota for various sources
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SRI KANT TRIPATHI v. STATE [PATTANAlK, J.]
647
of recruitment stipulates that 15% of the vacancies would go for direct A
recruitment from the Bar, 70% of the vacancies would go for promotion from
Nyayik Sewa, and 15% would go by promotion from U.P. Judicial Officers
Service. Second proviso to Rule 6 further provides that when the strength in
the cadre of Judicial Magistrate gets completely exhausted and suitable
candidates are not available or no candidates remains available, then the B
entire 85% of the vacancies could be filled up from the promotion from
amongst the members of U.P. Nyayik Sewa. Though the Recruitment Rules
have come into force with effect from 1976 , but in this batch of cases we are
concerned with recruitment starting from the year 1988.
The Joint Registrar, Allahabad High Court issued an advertisement for C
direct recruitment to the U.P. Higher Judicial Services on 27.7.89 and the total
number of vacancies indicated therein was 5. It was also, however, indicated
that there may be variation in the number of vacancies. The last date for
obtaining the application form was 16.8.89 and the last date for submission
of application forms was 16.9.1989. The advertisement contemplated a written
examination as well an interview. A Selection Committee was constituted D
under Rule 16, comprising of three Hon 'hie Judges of the Court. The Full
Court of Allahabad High Court in August i 990 approved the case of 68
officers from out of the members of Nyayik Sewa for promotion to Higher
Judicial Service under Sub-Rule (3) of Rule 22. Needless to mention that
appointment by promotion under Sub-Rule (3) of Rule 22 is meant as a E
temporary measure when regular appointments under Sub-Rules (!) and (2)
cannot be made from the three different sources out of the list contemplated
under Rules 18, 20 and 21. Though the Full Court had approved the names
of 68 promotees but in March 91 only 16 of theme were appointed to Higher
Judicial Service. In the meanwhile, the Selection Committee constituted under
Rule 16 for selecting personnel for direct recruitment being of the opinion, F
that more direct recruits could be appointed than the number of posts
advertised, prepared a list on 28.3.1991 of9 persons. On 6.4.1991, the Full
Court of Allahabad High Court, however, recommended 7 persons for direct
recruitment. Notwithstanding the Full Court's approval to the list ofpromotees,
.•
as no appointment was made excepting 16, as already stated, a Writ Petition G
was filed in the Allahabad High Court, by the promotees, which was registered
as Civil Misc. Writ Petition No. 3485 of 1992, contending inter alia that the
Recruitment Rules must be duly implemented and while taking steps for filling
up the post by direct recruitment from the Bar, steps should also be taken for
filling up the quota available for promotees simultaneously.
H
A
B
c
D
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G
648
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
While the said Writ Petition was pending in Allahabad High Court, this
Court disposed of Writ Petition (Civil) No. 259 of 1990 and Writ Petition Civil
No 1304of1988 on 23rd April, 1991 in the case of O.P. Garg and Ors. v. State
of UP., reported in [1991] Suppl. 2 SCC 51. In the aforesaid case this Court
held on interpreting different provisions of the Recruitment Rules that on 5th
April, 1975, the date on which 1975 Rules were enforced, all 236 officers
working against the permanent and temporary post of Additional District and
Session Judges in the service would deemed to be existing members of
service constituted under the 1975 Rules, and they shall enbloc rank senior
to officers appointed to the service thereafter from 3 sources in accordance
with their quota under the Rules. It was further held that the service under
the Rules consists of both permanent as well as temporary posts and all
temporary posts created under Rule 4(4) of 1975 Rules are in addition to the
permanent strength of the cadre and, as such form part of the cadre.
Consequently the appointments under Rule 22 can be made to a permanent
post as well to a temporary post. Sub-Rule (3) and Sub-Rule (4) of Rule 22
were struck down being violative of Article 14 as under the said Sub-Rules
appointments could be made from two other sources and not from the Bar as
direct recruits. It was, however, stated that appointments already made under
the aforesaid Sub-Rules will not be invalidated on that ground. The Court,
also stated that while selecting candidates under Rule 18 meant for selection
of direct recruits the Committee shall prepare a merit list of candidates of twice
the number of vacancies and the sa.id list shall remain operative till the next
recruitment. It may be borne in mind that, so far as the provisions of Rule 18
are concerned, it did not contain any period for which a list prepared could
remain operative, though such a provision was there in Sub-Rule 5 of Rule
20 dealing with the procedure for recruitment by promotion of the members
ofNyayik Sewa, but by virtue of the judgment of this Court in O.P. Garg's
case. the aforesaid provision contained in Sub-Rule (5) of Rule 20 stood
engrafted into Rule 18. On account of the decision of this Court in Garg 's case
since the direct recruits were entitled to have their quota against temporary
posts, the Selection Committee which was in seisin of the matter for selecting
persons for the recruitment year 1988, itself made the necessary calculation
and increased the number of posts available for direct recruits to 25.
The Writ Petition that had been filed before Allahabad High Court in
the year 1992, by the promotees, came to be disposed of on 11.2.1994 and the
same was dismissed as having become infructuous as by that date the names
of the applicants who had filed the Writ Petition, had been sent to the
H Governor by the High Court for being promoted, and the Court, therefore,
•
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I
SRI KANT TRIP A THI v. STATE [PATTANAIK, J.]
649
thought that no cause of action survived. This order of the Allahabad High A
Court dated 11.2.1994, passed in Civil Misc. Writ Petition No. 3485 of I 992,
is the subject matter of challenge in Civil Appeal No. 5908 of 1997 at the
behest of the promotee candidates.
Bishamber Singh, an advocate, who was entitled to apply for a post jn
the Higher Judicial Service, to be filled up by direct recruitment filed a Petition
under Article 32 which was registered as Writ Petition No. 394 of 1994,
assailing the power and authority of the Selection Committee to increase the
number of direct recruits, the decision of the Full Court of Allahabad High
Court dated 25.7.1992, recommending the names of those selected as well as
B
the Notification issued by the State Government dated 13 .4.1994, appointing C
24 direct recrui'.s in the cadre of Higher Judicial Service. The essential ground
of challenge was that the advertisement having been issued only for 5
vacancies, and recruitment process having already started for filling up those
advertised vacancies, it was not open for the Selection Committee to enter
into a process of calculation and enhance the number of persons to be
recruited by direct recruitment and the Full Courts was not entitled to approve D
the same. It is contended that such procedure debarred many aspirants like
the petitioner, from availing of their chances of being appointed to any of
those posts meant for direct recruitment. It was prayed in the aforesaid Writ
Petition that the appointments made of respondents Nos. 3 to 26, which were
in excess of 5 advertised vacancies should be quashed and the High Court E
should be commanded to issue a fresh advertisement in respect of the increased
vacancies in the quota of direct recruitment. Another advocate, Mr. Suman
Gupta, also filed a similar Petition under Article 32, which was registered as
Writ Petition No. 592 of 1994 for similar relief as prayed for in Writ Petition
No. 394 of 1994. The aforesaid 3 cases, therefore, relate to the recruitment
meant for the year 1988.
F
On 30th March, 1992, an advertisement was published for appointment
to the Higher Judicial Service by direct recruitmen< and the total number of
vacancies indicated therein was 6. The advertisement, however, indicated that
there could be variation in the number of vacancies. The persons who could
not be selected for being appointed within the number of vacancies notified, G
filed Writ Petitions in the Lucknow Bench of the Allahabad High Court, 11
in all, alleging anomalies in the process or recruitment to the Higher Judicial
Service and contending inter alia, that there has been an excess recruitment
from the promotion quota which ought to have been given to the direct
recruits, and as such, conversion of posts meant for direct recruits for being H
...
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650
e
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
A filled up by promotees must be held to be illegal and the promotion, thus
made should be struck down.
All the Writ Petitions were heard together and were disposed of by a
•
common judgment dated 30th June, 1998. By the said judgment the High
Court declared the recommendation of the Selection Committee dated 2.11.1995
B and the Resolution dated 18.11.1995, to be invalid and came to the conclusion
that those 13 posts could be filled up only by direct recruitment. The promotee
appointees, however, were allowed to be continued on ad hoc basis till the
Full Court took a final decision of on the matter. The Full Court was also
requested to consider the question as to how 13 posts, meant for direct
c recruitment cou Id be filled up. Civil Appeal Nos. 1669-1680 of 2001 are the
appeals against the aforesaid judgment of the Full Bench of the Allahabad
High Court.
In view of the request of the Full Bench of Allahabad High Court in its
judgment dated 30.6.98, the Full Court of Allahabad High Court in its Meeting
D dated July 11, 1998, considered the observations and requests of the Full
Bench and resolved that the 13 left over vacancies of direct recruits would
_not be filled up from out of the applicants in the previous recruitment process
of 1990, as by that date the recruitment process for 1996 had already commenced
and was almost complete. In fact the Report of the Selection Committee was
under consideration of the Full Court on that very date. The aforesaid
E Resolution of the Full Court was assailed in two Writ Petitions which were
'
registered as Civil Misc. Writ Petition No. 2830 of 1998 and Civil Misc. Writ
Petition No. 43485 of 1998. Both these writ Petitions were dismissed by the
order dated 24.3.1999, and the said judgment of dismissal is the subject matter
of challenge in Civil Appeal No. 1657 of 2001. An identical Writ Petition filed
F by one Avinash Kumar Sl:arma, which was registered as Writ Petition No.
29617 of 1998, assailing the validity of the Resolution of the Full Court was
dismissed on the very same day i.e. on 24.3.1999, which order is the subject
matter of challenge in Civil Appeal No. 1656 of200!. The Full Court Resolution
of Allahabad High Court dated 11. 7 .1998 was also challenged in this Court
_.,
by filling application under Article 32 of the Constitution, which has been
'·
G registered as Writ Petition Nos. 97 of 2000 and 460 of 99.