HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH REGISTRAR GENERAL versus THE STATE OF UTTAR PRADESH & ORS.

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[2018] 9 S.C.R.

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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

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HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGISTRAR GENERAL v. THE STATE OF U. P.

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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

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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 [1988] 1 SCR 398 [1991] 2 SCR 424 [2001] 2 Suppl. SCR 635 [2010] 12 SCR 25 [2008] 13 SCR 24 [1995] 2 SCR 35 [1990] 2 SCR 900

followed referred to referred to referred to referred to relied on relied on relied on

Para 1 Para 2 Para 2 Para 2 Para 2 Para 2 Para 10 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

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HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGR. GENL. v. STATE OF U. P.

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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

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(2002) 4 SCC 247 (1987) 4 SCC 621 (1991) Supp. (2) SCC 51 (2001) 10 SCC 237 (2010) 12 SCC 635 (2008) 9 SCC 77 Civil Appeal No.5270 of 2012 decided on 15.9.2016

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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

HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

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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 “merit- cum 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

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(1995) 2 SCC 745

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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.

HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

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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 was substituted as under:- Sources recruitment to the service shall be made-

recruitment--The

of

(a) By promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.

through

(b) By promotion strictly on the basis of merit competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;

limited

(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.

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 Januar y 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)."

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Rule 6

U.P. Higher Judicial Service Rules, 197 5 (Prior to the Sixth A mendment in 2006)

U ttar Pradesh Higher Judicial Service (Sixth Amendment) Rules, 2006

Uttar Pradesh Higher Judicial Service (Ninth Amendment) Rules, 2014

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(come into force w.e.f 21s t Mar ch, 2002) 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-cum- sen iority an d passing a suitability test. - 50%

(b) on th e basis of merit limited

through competitive examination of Civil Judges (Senior Division ) having n ot less than five years qualifying service. - 10%

Rule 6 was substituted as under:-

Quota-6. Subject to th e provisions of rule 8, th e various for quota sources of recruitment shall be-

Uttar

(i) Nyayik Sewa:

Pradesh

on

(a) from amongst th e Civil Judges (Senior Division) the basis of merit-cum- seniority and passing a suitability test. - 65%

(b) on the basis of through merit limited competitive examination of civil Ju dges (Senior Division) having n ot less than five years service. -10%

there

being

Provided that in case of an y shortfall in th e vacancies to be filled up on the basis of in cadr e competitive examination , the shortfall of 25% reserved for such promotion will be made good by corresp on ding the quota incr ease reserved for promotion of Civil (Senior Judge Division ) referred to in Clause (i)(a).

in

in

in to

Provided th at in case of there being an y the sh ortfall vacancies be filled up on the basis of cadre competitive the examination, 10% of sh ortfall reserved such for promotion will be made by good corr esponding in crease in the quota

Rule 6. Q uota.- Subject to the provisions of Rule 8, the qu ota for various sources of recruitment shall be-

sour ces

Provided that where the number of vacancies to be filled in by any of these in accordance with the quota is in fraction, less than half shall be ignored and the fraction of h alf or more sh all ordinarily be counted as one:

(i) Direct recruits from the Bar 15% of the vacan cies

(ii) Uttar Nyayik Sewa 70%

Pradesh

(iii) Utt ar Pradesh Judicial Officers service (Judicial M agistrate) 15%

are

the

fur ther

Provided that when the stren gth in the cadre of Judicial Mag istrates gradually gets depleted or is completely suitable exh austed and candidates n ot requisite in available numbers or no candidate remains available at all, the shortfall in the number of vacan cies required to be filled from amongst Judicial Magistrates and in the long run all the vacan cies, shall be filled

Uttar Pradesh Higher Judicial Service (Ninth Amendment) Rules, 2014

Rule 6 was substituted

. Subject to th e provisions of rule 8, th e various sources of recruitment

quota

for

(i)

Uttar

Pradesh

Division)

(a) from amongst th e Civil Judges (Senior the basis of merit-cum- seniority and passing a suitability test. -

on

merit

(b) on the basis of through limited competitive examination of civil (Senior Division) having n ot less than five years

sh ortfall

Provided th at in case of there being an y the be filled up on the basis cadre

in to

vacancies

of

in

examination,

sh ortfall

reserved

of

the 10% such otion will be by good

for

made

in crease in the quota

HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

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by promotion from amongst th e members of the Nyayik Sewa an d their quota shall, in course, become 85 per cent.

due

(ii) direct from Bar - 25%

recruitment

that Provided where the number of vacan cies to be filled in by any of these sources in accordance with the quota is in fraction, less than half shall be ignored an d th e fraction of half or more shall ordinarily be coun ted as one:"

reserved for promotion of Civil Judg e (Senior Division) referred to in clause (i)(a).

(ii) Direct recruitment from Bar-25%

Provided that where th e number of vacancies to be filled in by any of the sources in accordan ce 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:

Rule 8

U.P. Higher Judicial Service Rules, 1975 (Prior to the Sixth Amendment in 2006)

from

years

Rule 8. Number of appointments to be made.---(1) The Court shall, from time to time, but not later than last three the the number of recruitment, fix officers the taken to be recruitment keeping in view th e vacancies then existing and likely to occur in the next two years.

at

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 th e 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;

Uttar Pradesh Higher Judicial Service (Sixth Amendment) Rules, 2006

(come into force w.e.f 21st March, 2002)

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 is less than th e for appointment number of recruits decided by the Court to be taken from th at source, may th e increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa;

Court

Provided that the number of vacan cies filled in as aforesaid under this sub rule sh all be taken into consideration while fixing the number of vacancies to be allotted to the quota of

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direct recruits at next the and recruitment, for the quota recruits direct may be raised so, accordingly however, th at the percentage of direct recruits in the service does not in any case exceed 25% of strength of the service.

Provided that the number of vacan cies 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 th e n ext recruitment, and the quota for direct recruits may be raised accordingly; so, h owever, that the percentage of direct recruits in the Service does not in any case exceed 1 5 per cent of stren gth of th e service.

recruits at

Provided further the perman ent th at all vacan cies existing on May 10, 1974 plus 31 temporary p osts existing on that date, if an y when they are converted into perman ent posts, shall be filled by promotion from amongst the members of the N yayik Sewa; and only th e remaining vacancies shall be shared between th e three sources under these rules;

Provided also that th e number of vacancies equal to 15 per cent of the vacan cies referred to in the last precedin g 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, an d thereupon, the future recruitment promotion from amongst th e members of the Nyayik Sewa against vacancies referred to in the last preceding proviso) shall be so arranged that for so lon g as the additional 15 per cent vacancies worked out as above h ave not been filled up from out of th e Judicial Magistrates, th e allocation of vacancies sh all as follows---

(after

(i) 15 per cent by direct recruitment. (ii) 30 per cen t from out of the Ju dicial Magistrate; (iii) 55 per cen t from out of the members of the Nyayik Sewa.

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HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

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the

the

direct

quota

may be

accordingly

recruitment,

direct recruits at next and for recruits raised so, however, th at the of direct recruits in the service does not in any case exceed 25% of the

strength of

percentage

Rule 18

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 cand idates. The committee may call for interview such of the applicants wh o in its op inion have qualified for in terview aft er scrutiny an d examination.

(2) In assessin g the merits of a candidate th e Selection Committee shall have due regard to his professi on al 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 recommendation s of the Selection Committee and havin g regard to the n umber of direct recruits to be taken, prepare a list of selected candidates in order of merit and forward the same to the Governor.

Rule 20

U.P. Higher Judicial Service R ules, 1975 (Prior to the Sixth Amendment in 2006)

Rule 20. Promotion of M emb ers of Nyayik Sewa- (1) Recruitment by promotion the members of the N yayik Sewa sh all be made by selection on the prin ciple of seniority-cum-merit.

of

The

field

(2) of eligibility for recruitment by promotion sh all be

Uttar Pradesh Higher Judicial Service (Sixth Amendment) R ules, 2006 (come into force w.e.f. 21st March, 2002)

In Rule 20- for the existing sub -rules (1) and (2), the following sub-ru les were substituted:-

(1) Recruitment by the promotion of member s the of Nyayik Sewa shall be made by selection on the prin ciple of

Uttar Pradesh Higher Judicial Service (Ninth Amendment) Rules, 2014

The existing sub-rule (3) of was substituted as under:-

rule

20

The

sh all,

20.(3) Selection after Committee examining the record of the officers included in the list prepared un der sub-rule (2) of this rule prelimin ary make selection of the officers

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have

who in its opinion are fit to be appointed on the basis of merit-cum-seniority. In assessing the merit of a the Selection candidate, Committee due regard service to his 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.

merit-cum-seniority and on passing such a suitability as prescribed in Appendix "G(1)"

test,

(2) The eligibility recruitment promotion

field

of for by

shall be confined to four times the number to be of vacancies filled by promotion. selection The Committee shall prepare a list in order the of seniority of officers eligible under Rule 5(a) of these rules.

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confined to four times the number of vacancies to be filled by promotion. The shall Selection Committee 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 sub- rule (2) of this Rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of In seniority-cum-merit. the merits of a assessing candidate, Selection the 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.

to his

candidate,

Committee

have

who in its opinion are fit to be appointed on the basis seniority. In assessing the merit of a the Selection due service character and seniority. The list shall the names of officers twice the number of vacancies required to be filled by promotion of the members of the Nyayik

contain

HIGH COURT OF JUDICATURE AT ALLAHABAD – THR. REGR. GENL. v. STATE OF U. P. [ADARSH KUMAR GOEL, J.]

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Rule 21

U.P. Higher Judicial Service Rules, 1975 (Prior to the Sixth A mendment in 2006)

of

the

cadre

Rule 21. Temporary provisions for Judicial the Magistrate.- (1) For so long as suitable officers are available from out of the dyin g cadre of the Uttar Prad esh Judicial Officers Service, confirmed officers who h ave put in not less than seven years' service shall be eligible as Addition al for Sessions Judges in the service, as provided in Rules 4, 5, 6 and 8. Such officers may also b e appointed as Addition al in Sessions temporary capacity officiating an d upto the extent of 15 per cent of the vacan cies the cadre occurring during any on e period of Selection.

appointment

Judge

in

field of eligibility

for (2) The appointment from out of the Judicial Mag istrate shall be con fined 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.

seniority. The

(3) Criterion for selection shall be seniority-cu m-merit. In assessing the merits of a candidate the Selection Committee sh all have due regard to his service record ability, ch aracter an d preliminary the selection shall be made by Selection Committee referred to in Rule 6 and th e list of the selected candidates shall be forwarded to the Chief Justice along with the n ames of the officers wh o, if an y, in the opinion of the Committee are un fit for appointment to the Service.

Uttar Pradesh Higher Judicial Service (Sixth Amendment) R ules, 2006

(come into force w.e.f 21s t March, 2002) 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) sh all be made by selection strictly on the basis o f merit through a limited competitive as examination prescribed in Appendix 'H'.

(2)App lication for recruitment to the service from such sources sh all be invited by the Court District Judges.

through

to

the Court

th e District Judge shall (3) forward all applications received by him alongwith his own estimate of each candidate's character and fitn ess for appointment to th e service.

(4) Th e Selection Committee referred to in Rule 16 shall scrutinize the applications received and shall hold competitive a examination, as prescribed in Appendix 'H'.

limited

(5) Th e Selection Committee sh all prepare a select list on th e basis of th e merit of can didates.

succes sful

th e

.

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the (4) The Court sh all examine recommendations of the Selection Committee and make a fin al selection an d prepare a list of candidates considered fit for appointment in order of seniority an d forward the n ames of list shall remain the o fficers. The n ext the till operative recruitment. (5).......... (6)..........

only

the (7) The Court sh all examine recommendations of the Selection Committee and make a fin al selection for appointmen t in HJS cadre and prepare a list in order of merit and forward the same to th e Governor. The list shall remain operative only till the next recruitment.

Rule 22

Chief

(6) The committee shall make a prelimin ary selection an d submit the record of all candidates to the and recommend th e names of the can didates in order of merit who, in its opinion are suitable for appointment to the service.

Justice

of

(7) The Court shall examine the recommendations the Selection Committee and make a final selection for appointment in HJS cadre and prepare a list in order of merit and forward th e same to th e Govern or. The list sh all 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) an d (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 by taking candidates from the lists in the order in which they stand in the respective lists.

vacancies

sub-rule

(2) shall,

. 22 Rule Appointment.-- (1) Subject to the provisions the of Governor on receipt from the Court of the in list mentioned Rules 18, 20 and 21 to make appointments the the service of occurrence substantive vacancies by taking candidates from the list in the order in wh ich they stand in the in lists respective accordance with the roster.

on

22,

the In Rule 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 fifth promotees post shall be filled up by the candidate

and

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(6) The committee shall make a prelimin ary selection an d submit the record of all candidates to and recommend th e names of the ates in order of merit who, in its opinion are suitable for

Justice

Chief

the

of

recommendations

(7) The Court sh all examine th e the Selection Committee and make a final selection for appointment in HJS cadre and prepare a list in and forward the same to th e Govern or. The list sh all remain operative only till

Uttar Pradesh Higher Judicial Service (Ninth Amendment)

In Rule

22,

the rule (2) substituted as

was

ntments 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 fifth post shall be filled up

d

to

(2) Appointments 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 remaining the vacancies, shall th erefore be filled by promotion from the list of the officers of the Nyayik Sewa.

on),

officers

Provided that for so long as suitable are available from th e cadre of the Judicial Magistrates, appoin tments to the Service shall be made in such a way that the second fifth and eighth (and so on), filled vacancy sh all be from the list of judicial Magistrates.

of

short

service

(3) In the eventuality of delay in making ap pointment under sub-rule (1) and further if exigency so requires, the Governor may, in consultation with the term Court, make appointment as a stop gap arrangement from amongst the members of Nyayik Sewa in these the vacancy in the quota services within fixed by the Court till the appointment are made under subrules (1) an d (2): Provided th at the period of service spen t by a member of Nyayik Sewa on short term appointment to the service as a stop-gap arrangement shall not from seniority under Rule 26.

computed

be

of

basis

(2) App ointments to service shall be made on roster the system, th e first and second post shall be filled from the list of promotes, the third post shall be filled up by direct recruit an d the fourth post shall be filled up by the candidate selected strictly on merit through LDCE (and so on ) according the roster as prescribed in Appendix 'I', which will cease become operative on the date the respective three streams achieve their full allotted vacancies. Th ereafter on account of arising any in quota of vacancy respective the same could be filled-up from th e same stream of which vacancy arises:

stream

to

to

Provided that while followin g the roster at no point of time the percen tage of posts direct from filled recruit and LDCE shall exceed 25% each of th e vacancies available at the time of selection. In case th e percentage is the exceeding allotted quota, in such even tuality the promotee shall occupy th e vacan cy which would have gone to the direct recruit or LDCE, had not the same been an excess of 25% of either of the two.

the

roster

on strictly selected merit through LDCE (and so on ) according to as prescribed in Appendix '1', which will cease to become operative on the date the respective three streams achieve their allotted vacan cies. Thereafter on account of arising any vacancy in quota of respective stream the same could be filled-up from the same stream of which vacan cy arises;

full

Provided that while following the roster at no point of time the respective percentage of posts filled from direct and recruit LDCE shall exceed 25% an d 10% of the strength of service. In case the percentage is exceeding the allotted such quota, in eventuality the shall promotee occupy th e vacancy which would have gone to direct recruit or LDCE, h ad not the same been in excess of 25% and 10% respectivel y of eith er of the two.

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appoin tments (4) The shall on be made rotational system, the first vacan cy sh all be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from list of Judicial Magistrates (and so on).

the

(3) In the eventuality of d elay in making app ointment under sub-rule (1) and further if exigency of service so requires the Governor may, the in constitution with term Court, make appointment as a stop-gap arrangement from amongst the promotees, in the vacancy in the these services fill appointment are made under sub-rules (1) and (2):

short

by

Provided th at the period of the spen t service promotees on a short term appointment to the service as stop-gap arrangement shall not be computed under Rule 26.

Rule 26

U.P. Higher Judicial Service Rules, 1975 (Prior to the Sixth Amendment in 2006)

Rule 26. Sen iority.--(1 ) Sen iority of the officers appoin ted in the Service shall be determined in accordance with the order of ppointment in the Service un der sub-rules (1) and (2) of Rule 22 of these rules.

(2)Seniority of members of th e service who have been confirmed in the service prior to the commencement of these rules shall be as has been determined by the order of th e Government as amended from time to time.

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),

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amendment in the Rules was carried out and notified on 9th January, 2007 and principle of suitability test and roaster system were introduced, in absence of determination of vacancies for the period from 2002 till 2007, neither the promotees could be given appointments in spite of availability of vacancies and eligibility nor direct recruitments could be made. Thus, recruitment for the relevant period was initiated belatedly in the year 2007. In the absence of suitability test, which was conducted only in the year 2008, the promotees could not be given promotion. In the circumstances, the direct recruits selected after 2007 could not be given seniority prior to their joining. Seniority for direct recruits by following the rota system would have operated unfairly for the promotees.

16. In this background, vacancies as on 31st December, 2006 and expected vacancies upto 31st December, 2008 were determined for the direct recruits and promotees on 15th February, 2007.

17. After the rules were amended in the year 2007, vacancies were worked out and advertisement was issued on 31st March, 2007. Suitability test for purposes of promotion was held on 10th February, 2008. Final list of selected direct recruits was approved by the Full Court on 12th July, 2008.

18. Vide order dated 11th August, 2008, appointments to the UPHJS by way of promotion were made. Direct recruited officers to the UPHJS were appointed between 11th September, 2008 and 24th November, 2008. Though, process for appointment was conducted simultaneously, the select lists were also forwarded to the Court simultaneously, due to observance of certain formalities, letters of appointment for direct recruits were given later to the promotion being affected.

19. For the recruitment year 2009, calculation of vacancies was finalized on 24th March, 2009. The same was approved by the Full Court on 10th April, 2009. Suitability test for promotees was held on 29th November, 2009. Select list was approved by the Full Court on 9th January, 2010. Appointments were notified on 7th September, 2010. Direct recruits for the year 2009 were appointed between 24th December, 2010 to 20th April, 2011. 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 that they had been wrongly placed junior to the promotees. The promotees claimed that their seniority should commence from the date of accrual

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(1 ) Sen iority of the officers appoin ted in the shall be determined in accordance with the order of

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of vacancy, date of their eligibility and officiation and not from the date of actual appointment.

20. The High Court appointed a Committee to go into the matter. The Committee took up determination of vacancy and fixation of seniority for the HJS officers appointed upto 1998-2000 which was finalized on 1st August, 2011. Thereafter, determination of vacancies and fixation of seniority of 2007 and 2009 recruitments was considered by the committee vide its report dated 23rd September, 2015 and 6th April, 2016. The same was approved by the Full Court on 14th June, 2016.

21. The report of the Committee dated 23rd September, 2015 was in continuation of its earlier reports finalizing seniority lists dated 6th May, 1995 and 13th July, 2011, with reference to officers recruited prior to 2007. The Committee determined vacancies vide its report dated 7th February, 2012 on the basis of which tentative seniority lists dated 25th July, 2013 and 18th December, 2014 were published. Objections to the said tentative seniority lists were considered in the said report.

22. The question considered by the Committee was whether long officiation by officers of UPNS should be given due credit so that they may not suffer on account of delay in holding suitability test. Suitability test was not held due to non amendment of the Rules upto 9th January, 2007 inspite of judgment of this Court dated 21st March, 2002. Thus, from 21st March, 2002 to 2008 since a different regime of Rules was stipulated under the judgment of this Court in All India Judges case (supra) and the Rules were amended by the High Court only on 9th January, 2007, in spite of availability of vacancies in promotion quota, the promotee officers who were eligible and were officiating against the said vacancies, could not be recruited. They were recruited only after the suitability test was held for the first time in the year 2008. The Committee thus held that they were entitled to en bloc seniority without rota system. The direct recruits could not be given seniority for the period prior to their appointment. Same was the position with regard to 2009 recruitments. The view of the Committee was that rota system will create imbalance and injustice.

23. The direct recruits as well as the promotees were aggrieved by the determination of their seniority and challenged the same by filing Writ Petitions. In Writ Petition (SB) No.1880 of 2017 filed by the direct recruits, respondents 134 to 173, along with others before the High Court,

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prayer was for quashing the final seniority Report dated 23rd September, 2015 (of Committee of High Court Judges), supplementary report dated 6th April, 2016(also of a Committee of High Court Judges) and for a direction to redetermine seniority of the writ petitioners who were the direct recruits on the basis of rotational system proportionate to their quota, apart from other incidental prayers. It was submitted that since Rule 22(2) provides for rotational basis for seniority, their date of appointment was not conclusive for the purpose of seniority. Accordingly, the writ petitioners sought determination of seniority by applying roster system. The High Court and the affected officers defended the report of the Committee as approved by the Full Court.

24. In Writ Petition (SB) No.16569 of 2016 filed by the promotees, challenge was to the validity of the Amendment Rules, 2006 in so far as the Rules were retrospective. Challenge was also to the reports of the Committees and decision of the Full Court in so far as objections to seniority list were rejected. The petitioners in the said writ petition were promoted against vacancies of the years 2002 onwards but the said vacancies were actually determined later. According to the said writ petitioners, they were entitled to seniority from the date of their eligibility, without their passing of the suitability test which was retrospectively prescribed for the first time on 9th January, 2007.

25. The High Court examined two questions : -

(i) Whether promotees were entitled to seniority prior to their appointment on the ground that requirement of suitability test was introduced for the first time in the year 2007 and they had a vested right to be promoted against the earlier vacancies without the suitability test.

(ii) Whether direct recruits were entitled to the benefit of rotation in determination of seniority. The High Court held that the promotees could not be given seniority prior to their selection. The retrospectivity of the Rules prescribed suitability test was valid particularly in view of judgment of this Court in V.K. Srivastava (supra).

26. It was held that no determination of vacancies had taken place on account of pendency of litigation which was finalized on 25th August, 2004. No direct recruitment was made after 1998-2000 upto 2005. Only after 25th August, 2004 determination of vacancies took place. Promotions

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and direct recruitments were made in respect of the said selection in the year 2005. Promotions and direct recruitments which are subject matter of the present case were made in 2008/2009. Thus, Writ Petition (SB) No.16569 of 2016 was dismissed and objection of the promotees to their seniority was rejected.

27. As regards claim of the direct recruits based on Quota-Rota rule and post based roster system, it was observed that the same was mandatory. It was accordingly, held that seniority was required to be re- determined by applying the Quota-Rota.

28. The conclusions of the High Court are as follows :

“In view of the above, we sum up our conclusions as under :

(1) The challenge to the vires of the 6th amendment Rules, 2006 already having been repelled by the Supreme Court in V.K. Srivastava’s case, is not open to reconsideration by us.

(2) There is no factual and legal basis for the petitioners claim to promotion from date of occurrence of vacancies and seniority accordingly in Writ Petition No. 16569(SB) of 2016.

(3) The determination of vacancies by the Committee does not require any interference but determination of seniority is not sustainable.

(4) Considering the facts of the present case there is no error in the appointment of direct recruits in December, 2011 and January, 2012 w.e.f. 04.01.2007 when the last of the selectees of the same selection had joined following the dictum in Dr. A.K. Sirkar and in view of Balwant Singh Narwal’s case (supra).

(5) There has been a complete non-adherence to the Quota- Rota Rule and the determination of seniority in accordance thereof in terms of Rule 22 and 26 of the Rule, 1975. The judgment rendered in All India Judges’ Cases has not been followed as was mandatorily required.

(6) The determination of seniority is patently erroneous and contrary to Rule 26 of the Rules, 1975 which envisages such determination in accordance with the order of appointment

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in the service under Sub-Rules (1) and (2) of the Rule 22 which necessarily means the order of rotational/cyclical placement of appointees from different sources of recruitment without disturbing their inter-se placement within the same stream/quota and not en bloc placement on the basis of date of appointment as has been done.”

29. We have heard learned counsel for the parties. 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. We are in agreement with the view taken by the High Court that suitability test was required in terms of judgment of this Court in All India Judges’ case (supra) and under the amended Rules applicable retrospectively which was duly upheld by this Court in V.K. Srivastava (supra). 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.

30. 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 for reasons already noted. 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. As laid down by this Court in Direct Recruit Class-II Engineering Officers’ Association versus State of Maharashtra9, 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.

9 (1990) 2 SCC 715, para 23

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31. Accordingly, we allow the appeal arising out of Special Leave Petition (Civil) No.26993 of 2017 and dismiss the Writ Petition (SB) No.1880 of 2017 on the file of the High Court filed by the direct recruits. We uphold the judgment of the High Court with regard to dismissal of Writ Petition (SB) No.16569 of 2016 filed by the promotees and dismiss the appeal arising out of Special Leave Petition (civil) D.No.39750 of 2017.

In view of the above, all other matters will stand disposed of

accordingly.

Ankit Gyan Matters disposed of.

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