HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH REGISTRAR GENERAL versus THE STATE OF UTTAR PRADESH & ORS. on 28 March 2018

SUPREME COURT REPO[2018] 9 S.C.. 1090RTS

[2018] 9 S.C.R.

AHON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD –THROUGH REGISTRAR GENERAL

v.

THE STATE OF UTTAR PRADESH & ORS.

B(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 ofseniority of promotees and direct recruits – Earlier, in absence ofCdetermination of vacancies for the period from 2002 till 2007, neitherpromotees were appointed in spite of availability of vacancies andeligibility nor direct recruitments were made – After the amendmentof the Rules in 2007, recruitment process was initiated, andvacancies were worked out and advertisements were issued – BothDpromotees and direct recruits were appointed – After theappointments, the dispute of seniority cropped up – The directrecruits claimed that they were entitled to be given seniority as perRota system laid down under the Rules and they had been wronglyplaced junior to the promotees – The promotees claimed that theirseniority should commence from the date of accrual of vacancy,Edate of their eligibility, without their passing of the suitablity testwhich was retrospectively prescribed for the first time after theamendment of the 2007 Rules – Held: The High Court was correctin taking the view that suitability test was required in terms ofjudgment rendered in All India Judges Association case and underFthe amended Rules applicable retrospectively – Promotees couldnot be given promotion without suitability test nor could they claimseniority without the same – They were rightly given seniority fromtheir appointments – Insofar as Quota-Rota rule is concerned, it isa mandatory requirement of the Rules – The said requirement hashowever to be seen in the peculiar fact situation – On facts, theGissue of determination of vacancies was embroiled in continuouslitigation – The Quota-Rota rule could not be applied in the absenceof determination of vacancies – The rule provided for seniority ofthe promotees to be fixed from the date of availability of vacancybut such seniority could also not be given in the present fact situationH– If Rota rule is applied, it will work serious prejudice to the promotes – Thus, the Rules will have to be given pragmaticinterpretation – If it becomes impractical to act upon rule fixingquota from two sources, it is no use insisting that the authority mustgive effect to such a rule – Every effort has to be made to respect arule but if it is not feasible to enforce it, the rule has to be given apractical interpretation – Thus, interference by the High Courtwith the seniority given to the promotees above the direct recruitswithout following the rotation principle cannot be sustained.

Disposing of the matters, the Court

HELD: 1. The first issue raised is whether the promoteesrecruited in the year 2008/2009 are entitled to seniority prior totheir selection on the ground that no suitability test was requiredprior to 9[th] January, 2007 and retrospective effect to suchrequirement was illegal. The view taken by the High Court iscorrect that suitability test was required in terms of judgment ofthis Court in All India Judges’ case and under the amended Rulesapplicable retrospectively. Thus, the promotees could not begiven promotion without suitability test nor could they claimseniority without the same. They have been rightly given seniorityfrom their appointments. [Para 29] [1111-B-D]

2. With regard to the Quota-Rota rule, there is no doubtthat this is a mandatory requirement of the Rules. The saidrequirement has however to be seen in the peculiar fact situation.The issue of determination of vacancies was embroiled incontinuous litigation. The Quota-Rota rule could not be appliedin the absence of determination of vacancies. The suitability testthough validly laid down could not be held till 2008. No promotioncould be given in absence of suitability test. The rule providedfor seniority of the promotees to be fixed from the date ofavailability of vacancy but such seniority could also not be givenin the present fact situation. If rota rule is applied, it will workserious prejudice to the promotees. Thus, the Rules will have tobe given pragmatic interpretation. If it becomes impractical toact upon rule fixing quota from two sources, it is no use insistingthat the authority must give effect to such a rule. Every efforthas to be made to respect a rule but if it is not feasible to enforceit, the rule has to be given a practical interpretation. Thus,interference by the High Court with the seniority given to the AB

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Apromotees above the direct recruits without following the rotationprinciple cannot be sustained. [Para 30] [1111-D-H]

All India Judges Association v. Union of India (2002) 4 SCC247 : [2002] 2 SCR 712 – followed.

V.K. Srivastava v. Govt. of U.P. (2008) 9 SCC 77 : [2008] 13BSCR 24; R.K. Sabharwal v. State of Punjab (1995) 2 SCC745 : [1995] 2 SCR 35; Direct Recruit Class-II EngineeringOfficers’ Association v. State of Maharashtra (1990) 2 SCC715: [1990] 2 SCR 900 – relied on.

P. K. Dixit v. State of U.P. (1987) 4 SCC 621 : [1988] 1 SCR C398; 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. CivilAppeal No. 5270 of 2012 decided on 15.9.2016 – referred to.

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Case Law Reference

FCIVIL APPELLATE JURISDICTION : Civil Appeal No. 3356

of 2018

From the Judgment and Order dated 30.06.2017 of the High Courtof Judicature at Allahabad Lucknow Bench, Lucknow in Service BenchNo. 1880 of 2017.

GWITH

C. A. No. 3355 of 2018SLP (C) Nos. 27284 and 27876 of 2017SLP (C) No. 8334 of 2018T. P. (C) No. 81 of 2018H

R. Venkataramani, P.S. Patwalia, Siddharth Luthra, RakeshDwivedi, S. R. Singh, R. Basant, Sr. Advs., Ms. Mayuri Raghuvanshi,Yashraj Singh Bundela, M. R. Shamshad, Praveen Vignesh, VyomRaghuvashi, Sangya Megi, Sakshi Kakkar, Shakti Singh, Karan S.,Ms. Mainka Verma, Ms. Preetika Dwivedi, Apoorva Garg, MangalPrasad, Ankur Yadav, Ms. Shweta Yadav, Yash Pal Dhingra, Rana RanjitSingh, Abhay Kumar S., Ravish Singh, Vivek K. Singh, Kaushal NarayanMishra, A. K. Behra, Jasbir Singh Malik, Ms. Usha Nandini. V, PraveenKumar Aggarwal, Sanjay Rastogi, Ms. Mayuri Raghuvanshi, Mohit Paul,Anugrah Niraj Ekka, Vikas Arora, Garvesh Kabra, Aviral Saxena, SanjayKumar Tyagi, Venkita Subramoniam T. R, Rakesh U. Upadhyay, Ms. AartiUpadhyay, Amar Deep Sharma, Advs. for the appearing parties.

The Judgment of the Court was delivered by ADARSH KUMAR GOEL, J. 1. Leave granted in SpecialLeave Petition (Civil) No.26993 of 2017 and SLP (Civil) D. No.39750of 2017. The question for consideration is the validity of determinationof seniority of promotee and direct recruit Higher Judicial Service (HJS)officers in the State of Uttar Pradesh. Dispute mainly relates to theprinciple to be applied for determining seniority for direct recruits andpromotees of the years 2007 and 2009 in the context of Rules 22 and 26of the Uttar Pradesh Higher Judicial Service Rules, 1975 (the Rules)and the judgment of this Court in All India Judges Association versusUnion of India[1].

2. Before giving brief facts we may note that the Rules and theissue 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 Stateof U.P.[3], Sri Kant Tripathi versus State of U.P.[4], Ashok Pal Singhversus U.P. Judicial Services Association[5], V.K. Srivastava versusGovt. 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 liston the ground that vacancies had not been properly calculated as per the 1 (2002) 4 SCC 247

2 (1987) 4 SCC 621

3 (1991) Supp. (2) SCC 51

4 (2001) 10 SCC 237

5 (2010) 12 SCC 635

6 (2008) 9 SCC 77

7 Civil Appeal No.5270 of 2012 decided on 15.9.2016

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ARules. This Court directed that matter should be examined afresh withreference to appointments on posts available before the Rules came intoforce.

4. In O.P. Garg (supra), challenge to seniority list of 1988 wasconsidered. This Court held that benefit of continuous length of serviceBfor a promote officer for a promote officer has to be with reference toavailability 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 correctnessof calculation for working out ratio between direct recruits and promotees.CThe issue had arisen with reference to recruitments for the years 1988to 1994. This Court directed that for 1988 recruitment, the High Courtshould determine number of vacancies available in the relevant year ofrecruitment and then allocate the vacancies to different sources ofrecruitment. It was also directed that vacancies should be filled up inthe year when vacancies become available. If a post is available in theDquota of promotees, selection is made but promotion is not given,promotion must take effect from the date the promotee could have beenappointed.

6. In Ashok Pal Singh (supra) one of the issues was whetherprocedure of carrying forward of vacancies adopted by the High CourtEwas erroneous. This Court held that no direct recruit at a subsequentrecruitment can claim that his seniority should be reckoned from thedate earlier to the date of his joining. The seniority of the promotee hadto commence from the date he should have been appointed against anavailable vacancy for which he had already been selected.F7.In V.K. Srivastava

7. In V.K. Srivastava (supra), challenge was to the amendmentof the Rules as notified on 9[th] January, 2007 on the ground that giving ofretrospective effect prejudiced the vested right of the candidate eligiblefor vacancies prior to the amendment. This Court dismissed the writpetition with the observation that the Rules had been duly complied withGfor the year 2008 selection.

8. In Het Singh Yadav (supra) question for consideration wasthe validity of seniority list of promotees with regard to vacancies existingprior to 15[th] March, 1996. The High Court quashed the seniority listdated 24[th] August, 2007. Correctness of the view taken before the HighCourt was subject matter of consideration before this Court. This CourtH

noted that after the judgment of the High Court dated 16[th] December,2010, seniority list had been finalized on 14[th] April, 2016 consistent withthe directions in Ashok Pal Singh (supra) against which matter waspending consideration before the High Court. This Court set aside thejudgment of the High Court leaving the merits of the matter to be goneinto by the High Court in the matter pending before it.

9. In All India Judges case (supra), it was directed thatrecruitment to HJS at the relevant time had to be as follows :

“(a) 50 per cent by promotion from amongst Civil Judges (SeniorDivision) on the principle of merit-cum-seniority and passinga suitability test;

(b) 25 per cent by promotion strictly on the basis of merit througha limited competitive departmental examination on CivilJudges (Senior Division) having not less than five yearsqualifying service, and; (c)25 per cent of the posts shall be filled directly from amongstthe eligible advocates on the basis of written and viva vocetest conducted by the respective High Courts.”

10. It was observed that to avoid litigation, seniority rules shouldprovide for roster system as laid down in R.K. Sabharwal versus Stateof Punjab[8] . Direction of this Court is as follows :

“29. Experience has shown that there has been a constantdiscontentment amongst the members of the Higher JudicialService in regard to their seniority in service. For over threedecades a large number of cases have been instituted inorder to decide the relative seniority from the officersrecruited from the two different sources, namely, promoteesand direct recruits. As a result of the decision today, therewill, in a way, be three ways of recruitment to the HigherJudicial Service. The quota for promotion which we haveprescribed is 50 per cent by following the principle “merit-cum seniority”, 25 per cent strictly on merit by limiteddepartmental competitive examination and 25 per cent bydirect recruitment. Experience has also shown that the leastamount of litigation in the country, where quota system inrecruitment exists, insofar as seniority is concerned, is where

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SUPREME COURT REPORTS

Aa roster system is followed. For example, there is, as per therules of the Central Government, a 40-point roster whichhas been prescribed which deals with the quotas forScheduled Castes and Scheduled Tribes. Hardly, if ever, therehas been a litigation amongst the members of the serviceafter their recruitment as per the quotas, the seniority is fixedBby the roster points and irrespective of the fact as to when aperson is recruited. When roster system is followed, there isno question of any dispute arising. The 40-point roster habeen considered and approved by this Court in R.K.Sabharwal v. State of Punjab (supra) One of the methods ofCavoiding any litigation and bringing about certainty in thisregard is by specifying quotas in relation to posts and not inrelation to the vacancies. This is the basic principle on thebasis of which the 40-point roster works. We direct the HighCourts to suitably amend and promulgate seniority rules onthe basis of the roster principle as approved by this Court inDR.K. Sabharwal case (supra) as early as possible. We hopethat as a result thereof there would be no further dispute inthe fixation of seniority. It is obvious that this system canonly apply prospectively except where under the relevantrules seniority is to be determined on the basis of quota andErotational system. The existing relative seniority of themembers of the Higher Judicial Service has to be protectedbut the roster has to be evolved for the future.”

(emphasis added)

11. The Rules as originally framed envisaged three sources ofFrecruitment – direct recruitment from the bar, promotion from membersof Uttar Pradesh Nyayik Sewa (UPNS) and officers out of cadre ofjudicial magistrates. There was also a provision for quota for the differentsources. Number of appointments to be made is required to be identified.Seniority is to be determined as per Rule 26.

G12. As a result of observations in the above judgments, there wasamendment in the Rules. It may not be necessary to refer all theamendments but reference to some of the amendments may benecessary.

13. Accordingly, Rule 6 was amended to give effect to theHjudgment of this Court in All India Judges’ case (supra) vide U.P.

Higher Judicial Service (Sixth Amendment) Rules, 2006 notified onJanuary 09, 2007. By the said amendment, the criteria for recruitmentby promotion was changed. Requirement of passing a suitability testwas incorporated. There was also modification about the percentage ofquota. The suitability test in pursuance of the said amended rules washeld for the first time in the year 2008. The introduction of the rosterwas introduced by U.P. Higher Judicial Service (Seventh Amendment)Rules, 2009 which was notified on 8[th] August, 2009.

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14. Reference may now be made to the relevant Rules.

Rule 5

CU.P. Higher Judicial Service Rules, 1975 Uttar Pradesh Higher Judicial Service (Prior to the Sixth Amendment in 2006) (Sixth Amendment) Rules, 2006 (come into force w.e.f 21[st] March, 2002) Rule 5. Sources of recruitment.-The Rule 5 was substituted as under:- recruitment to the Service shall be made-- Sources of recruitment--The D(a) by direct recruitment of pleaders and recruitment to the service shall be made- advocates of not less than seven years' standing on the first day of January next (a) By promotion from amongst the Civil following year in which the notice inviting Judges (Senior Division) on the basis of applications is published; Principle of merit-cum-seniority and passing a suitability test. (b) by promotion of confirmed members of Ethe Uttar Pradesh Nyayik Sewa (hereinafter (b) By promotion strictly on the basis of referred to as the Nyayik Sewa), who have merit through limited competitive put in not less than seven years service to be examination of Civil Judges (Senior computed on the first day of January next Division) having not less than five years following the year in which the notice qualifying service; inviting application is published: (c) By direct recruitment from amongst Provided that so far long as suitable officers the Advocates of not less than seven Fare available from out of the dying cadre of years standing on the first day of January the Judicial Magistrates confirmed officers next following the year in which the who have put in not less than seven years notice inviting applications is published. service to be computed as aforesaid shall be eligible for appointment as Additional Sessions Judges in the Service. GExplanation.--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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[2018] 9 S.C.R.

ARule 6U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher Service Rules, 1975 Judicial Service (Sixth Judicial Service (Prior to the Sixth Amendment) Rules, (Ninth Amendment) Amendment in 2006) 2006 Rules, 2014 (come into force w.e.f 21stBMarch, 2002) Rule 6. Q uota.- Subject Rule 6 was substituted Rule 6 was substituted to the provisions of Rule as under:- as under:- 8, the quota for various 6. Quota-Subject to the sources of recruitment provisions of rule 8, the Quota-6. Subject to the shall be- quota for various sources provisions of rule 8, the of recruitment shall be- quota for various CProvided that where the sources of recruitment number of vacancies to (i) Uttar Pradesh Nyayik shall be- be filled in by any of Sewa: these sources in (a) from amongst the (i) Uttar Pradesh accordance with the quota Civil Judges (Senior Nyayik Sewa: is in fraction, less than Division) on the basis half shall be ignored and of merit-cum-(a) from amongst the the fraction of half or seniority and passing Civil Judges (Senior Dmore shall ordinarily be a suitability test. - Division) on the counted as one: 50% basis of merit-cum-seniority and passing (i) Direct recruits from (b) on the basis of merit a suitability test. - the Bar 15% of the through limited 65% vacancies competitive (b) on the basis of examination of Civil merit through E(ii) Uttar Pradesh Judges (Senior limited competitive Nyayik Sewa 70% Division) having not examination of civil less than five years Judges (Senior (iii) Uttar Pradesh qualifying service. - Division) having not Judicial Officers 10% less than five years service (Judicial service. -10% Magistrate) 15% Provided that in case of there being any Provided that in case FProvided further that shortfall in the vacancies of there being any when the strength in the to be filled up on the basis shortfall in the cadre of the Judicial of in cadre competitive vacancies to be Magistrates gradually gets examination, the shortfall filled up on the basis depleted or is completely of 25% reserved for such of in cadre exhausted and suitable promotion will be made competitive candidates are not good by corresponding examination, the Gavailable in requisite increase in the quota shortfall of 10% numbers or no candidate reserved for promotion of reserved for such remains available at all, Civil Judge (Senior promotion will be the shortfall in the number Division) referred to in made good by of vacancies required to Clause (i)(a). corresponding be filled from amongst increase in the quota Judicial Magistrates and in the long run all the Hvacancies, shall be filled quota by promotion from (ii) direct recruitment reserved for promotion Aamongst the members from Bar - 25% of Civil Judge (Senior of the Nyayik Sewa Division) referred to in and their quota shall, Provided that clause (i)(a). in due course, where the number of become 85 per cent.vacancies to be filled in by any of these sources (ii) Direct recruitment in accordance with the from Bar-25% Bquota is in fraction, less than half shall be ignored Provided that and the fraction of half where the number of or more shall ordinarily vacancies to be filled be counted as one:" in by any of the sources in accordance with the quota is in Cfraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one:

Rule 8

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Rule 8

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U.P. Higher Judicial Service Uttar Pradesh Higher Judicial Rules, 1975 Service (Sixth Amendment) Rules, (Prior to the Sixth Amendment in 2006 2006) (come into force w.e.f 21[st] March, 2002) Rule 8. Number of appointments to In Rule 8 the existing sub rule (2) Ebe made.---(1) The Court shall, was substituted as under:- from time to time, but not later than three years from the last "8.(2) If at any selection the number recruitment, fix the number of of selected direct recruits available officers to be taken at the for recruitment keeping in view the "8.(2) If at any selection the number vacancies then existing and likely to of selected direct recruits available Foccur in the next two years. for appointment is less than the number of recruits decided by the Note---The limitation of three years Court to be taken from that source, mentioned in this sub-rule shall not the Court may increase apply to the first recruitment held correspondingly the number of after the enforcement of these rules. recruits to be taken by promotion from the Nyayik Sewa; G(2) If at any selection the number of selected direct recruits available for Provided that the number of appointment is less than the number vacancies filled in as aforesaid of recruits decided by the Court to under this sub rule shall be be taken from that source, the Court taken into consideration while may increase correspondingly the fixing the number of vacancies number of recruits to be taken by to be allotted to the quota of Hpromotion from the Nyayik Sewa; A

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 Brecruitment, and the quota for direct recruits may be raised accordingly; so, however, that the percentage of direct recruits in the Service does not in any case exceed 15 per cent of strength of the service.

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Provided further that all the permanent Cvacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if any when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be Dshared between the three sources under these rules; Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to Ethe 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 Farranged that for so long as the additional 15 per cent vacancies worked out as above have not been filled up from out of the Judicial Magistrates, the allocation of vacancies shall as follows---

(i) 15 per cent by direct recruitment.

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(ii) 30 per cent from out of the Judicial Magistrate;

(iii) 55 per cent from out of the members of the Nyayik Sewa.

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

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 candidates. The committee may call for interview such of the applicants who in its opinion have qualified for interview after scrutiny and examination.

(2) In assessing the merits of a candidate the Selection Committee shall have due regard to his professional ability,character, personality and health.

(3) The Selection Committee shall make a preliminary selection and submit the record of all candidates to the Chief Justice and recommend the names of the candidates in order of merit who, in its opinion, are suitable for appointment to the service.

(4) The Court shall examine the recommendations of the Selection Committee and having regard to the number of direct recruits to be taken, prepare a list of selected candidates in order of merit and forward the same to the Governor.

Rule 20

U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher Service Rules, 1975 Judicial Service (Sixth Judicial Service (Ninth (Prior to the Sixth Amendment) Rules, Amendment) Rules, Amendment in 2006) 2006 2014 (come into force w.e.f. 21st March, 2002) Rule 20. Promotion of In Rule 20-for theThe existing sub-rule (3) Members of Nyayik existing sub-rules (1) of rule 20 was Sewa-(1) Recruitment by and (2), the following substituted as under:- promotion of the sub-rules were members of the Nyayik substituted:- 20.(3) The Selection Sewa sh all be made by Committee shall, after selection on the principle (1) Recruitment by examining the record of of seniority-cum-merit. promotion of the the officers included in members of the the list prepared under (2) The field of Nyayik Sewa shall sub-rule (2) of this rule eligibility for recruitment be made by selection make a preliminary by promotion shall be on the principle of selection of the officers A

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Aconfined to four times the merit-cum-seniority who in its opinion are fit to number of vacancies to be and on passing such a be appointed on the basis filled by promotion. The suitability test, as of merit-cum-seniority. In Selection Committee shall prescribed in Appendix assessing the merit of a prepare a list in order of "G(1)" candidate, the Selection seniority of the officers Committee have due eligible under Rule 5(b) of (2) The field of regard to his service Bthese rules. eligibility for record, ability, character recruitment by and seniority. The list shall (3)The Selection Committee promotion contain the names of shall, after examining the officers twice the number record of the officers included shall be confined to of vacancies required to be in the list prepared under sub-four times the number filled by promotion of the rule (2) of this Rule make a of vacancies to be members of the Nyayik Cpreliminary selection of the filled by promotion. Sewa.officers who in its opinion are The selection fit to be appointed on the basis Committee shall of seniority-cum-merit. In prepare a list in order assessing the merits of a of seniority of the candidate, the Selection officers eligible under Committee have due regard to Rule 5(a) of these Dhis service record, ability, rules.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. E(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 FCommittee have been passed over for promotion to the service. (5) The Court shall examine the recommendations of the Selection and make a final Gselection 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.H

are fit to he basis ority. In it of a election due service haracter list shall mes of number ed to be n of the Nyayik

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Rule 21

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

Uttar Pradesh Higher Judicial Service (Sixth Amendment) Rules, 2006 (come into force w.e.f 21[st]BMarch, 2002) The existing Rule 21 was substituted as under:-:

Rule 21. Temporary provisions for the cadre of the Judicial Magistrate.- (1) For so long as suitable officers are available from out of the dying cadre of the Uttar Pradesh Judicial Officers Service, confirmed officers who have put in not less than seven years' service shall be eligible for appointment as Additional Sessions Judges in the service, as provided in Rules 4, 5, 6 and 8. Such officers may also be appointed as Additional Sessions Judge in officiating and temporary capacity upto the extent of 15 per cent of the vacancies in the cadre occurring during any one period of Selection.

(1) Recruitment by promotion of the members of Nyayik Sewa as referred to in Rule 5(b) shall be made by selection strictly on the basis of merit through a limited competitive examination as prescribed in Appendix 'H'.

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(2) Application for recruitment to the service from such sources shall be invited by the Court through District Judges.

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

(2) The field of eligibility for appointment from out of the Judicial Magistrate shall be confined to four times the number of vacancies to be filled from this source. The Selection Committee shall prepare a list in order of seniority of the eligible officers.

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

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(3) Criterion for selection shall be seniority-cum-merit. In assessing the merits of a candidate the Selection Committee shall have due regard to his service record ability, character and seniority. The preliminary selection shall be made by the Selection Committee referred to in Rule 6 and the list of the selected candidates shall be forwarded to the Chief Justice along with the names of the officers who, if any, in the opinion of the Committee are unfit for appointment to the Service.

(5) The Selection Committee shall prepare a select list on the basis of the merit of the successful candidates.

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A(4) The Court shall examine the (6) The committee shall make a recommendations of the Selection preliminary selection and submit Committee and make a final selection the record of all candidates to and prepare a list of candidates the Chief Justice and considered fit for appointment in order recommend the names of the of seniority and forward the names of candidates in order of merit who, Bthe officers. The list shall remain in its opinion are suitable for operative only till the next appointment to the service. recruitment. (5).......... (7) The Court shall examine the (6).......... recommendations of the Selection Committee and make a (7) The Court shall examine the final selection for appointment Crecommendations of the Selection in HJS cadre and prepare a list in Committee and make a final selection order of merit and forward the for appointment in HJS cadre and same to the Governor. The list prepare a list in order of merit and shall remain operative only till forward the same to the Governor. the next recruitment

(7) The Court shall examine the Crecommendations of the Selection Committee and make a final selection for appointment in HJS cadre and prepare a list in order of merit and forward the same to the Governor. The list shall remain operative only till the next recruitment.DRule 22

U.P. Higher Judicial Uttar Pradesh Higher Uttar Pradesh Higher Service Rules, 1975 Judicial Service Judicial Service (Prior to the Sixth (Seventh Amendment) (Ninth Amendment) EAmendment in 2006) Rules, 2009 Rules, 2014 Rule 22. Appointment-Rule 22 . In Rule 22, the (1) Subject to the provisions Appointment.--(1) existing sub-rule (2) of sub-rules (2) and (3), the Subject to the provisions was substituted as Governor shall on receipt of sub-rule (2) the under:- Ffrom the Court of the lists Governor shall, on 22.(2) Appointments to mentioned in Rule 18, 20 and receipt from the Court of the service shall be 21 make appointments to the the list mentioned in made on the basis of service on the occurrence of Rules 18, 20 and 21 roster system, the first substantive vacancies by make appointments to post shall be filled from taking candidates from the the service on the the list of promotees, lists in the order in which occurrence of the second post shall be Gthey stand in the respective substantive vacancies by filled up by direct lists. taking candidates from recruit, the third and the list in the order in fourth posts shall be which they stand in the filled up from the list of respective lists in promotees and fifth accordance with the post shall be filled up roster. by the candidate H

ake a bmit es to and f the who, e for

e the the ake a ment ist in d the e list y till igher ce ment)

nts to ll be sis of e first d from motees, hall be direct d and be list of fifth ed up

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(2) Appointments to the service shall be made on the rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa. The second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies, shall therefore be filled by promotion from the list of the officers of the Nyayik Sewa. Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrates, appointments to the Service shall be made in such a way that the second fifth and eighth (and so on), vacancy shall be filled from the list of judicial Magistrates.

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

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A(4) The appointments (3) In the eventuality ofshall be made on delay in making appointment rotational system, the first under sub-rule (1) and further vacancy shall be filled if exigency of service so from the list of officers of requires the Governor may, the Nyayik Sewa, the in constitution with the Bsecond vacancy shall be Court, make short term filled from the list of appointment as a stop-gap Judicial Magistrates (and arrangement from amongst so on).the promotees, in the vacancy in these services fill the appointment are made under Csub-rules (1) and (2): Provided that the period of service spent by the promotees on a short term appointment to the service as stop-gap arrangement shall Dnot be computed under Rule 26.

Rule 26

EU.P. Higher Judicial Service Rules, 1975

(Prior to the Sixth Amendment in 2006)

Rule 26. Seniority.--(1) Seniority of the officers appointed in the Service shall be determined in accordance with the order of Fppointment in the Service under sub-rules (1) and (2) of Rule 22 of these rules.

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

15. We may now note the necessary facts. It is clear from resumeof judgments of this Court that there is long history of seniority disputeof the members of HJS. In the process, there was complex and longdrawn effort in determination and redetermination of vacancies. Though,Hin pursuance of judgment of this Court in All India Judges’ case (supra), the of d in has from amendment in the Rules was carried out and notified on 9[th] January,2007 and principle of suitability test and roaster system were introduced,in absence of determination of vacancies for the period from 2002 till2007, neither the promotees could be given appointments in spite ofavailability of vacancies and eligibility nor direct recruitments could bemade. Thus, recruitment for the relevant period was initiated belatedlyin the year 2007. In the absence of suitability test, which was conductedonly in the year 2008, the promotees could not be given promotion. Inthe circumstances, the direct recruits selected after 2007 could not begiven seniority prior to their joining. Seniority for direct recruits byfollowing the rota system would have operated unfairly for the promotees.

16. In this background, vacancies as on 31[st] December, 2006 andexpected vacancies upto 31[st] December, 2008 were determined for thedirect recruits and promotees on 15[th] February, 2007.

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

18. Vide order dated 11[th] August, 2008, appointments to the UPHJSby way of promotion were made. Direct recruited officers to the UPHJSwere appointed between 11[th] September, 2008 and 24[th] November, 2008.Though, process for appointment was conducted simultaneously, theselect lists were also forwarded to the Court simultaneously, due toobservance of certain formalities, letters of appointment for direct recruitswere given later to the promotion being affected.

19. For the recruitment year 2009, calculation of vacancies wasfinalized on 24[th] March, 2009. The same was approved by the FullCourt on 10[th] April, 2009. Suitability test for promotees was held on 29[th]November, 2009. Select list was approved by the Full Court on 9[th]January, 2010. Appointments were notified on 7[th] September, 2010.Direct recruits for the year 2009 were appointed between 24[th] December,2010 to 20[th] April, 2011. After the appointments, the dispute of senioritycropped up. The direct recruits claimed that they were entitled to begiven seniority as per rota system laid down under the Rules and thatthey had been wrongly placed junior to the promotees. The promoteesclaimed that their seniority should commence from the date of accrual AB

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

20. The High Court appointed a Committee to go into the matter.The Committee took up determination of vacancy and fixation of seniorityfor the HJS officers appointed upto 1998-2000 which was finalized onB1[st] August, 2011. Thereafter, determination of vacancies and fixation ofseniority of 2007 and 2009 recruitments was considered by the committeevide its report dated 23[rd] September, 2015 and 6[th] April, 2016. The samewas approved by the Full Court on 14[th] June, 2016.

21. The report of the Committee dated 23[rd] September, 2015 wasCin continuation of its earlier reports finalizing seniority lists dated 6[th] May,1995 and 13[th] July, 2011, with reference to officers recruited prior to2007. The Committee determined vacancies vide its report dated 7[th]February, 2012 on the basis of which tentative seniority lists dated 25[th]July, 2013 and 18[th] December, 2014 were published. Objections to thesaid tentative seniority lists were considered in the said report.D

22. The question considered by the Committee was whether longofficiation by officers of UPNS should be given due credit so that theymay not suffer on account of delay in holding suitability test. Suitabilitytest was not held due to non amendment of the Rules upto 9[th] January,2007 inspite of judgment of this Court dated 21[st] March, 2002. Thus,Efrom 21[st] March, 2002 to 2008 since a different regime of Rules wasstipulated under the judgment of this Court in All India Judges case(supra) and the Rules were amended by the High Court only on 9[th]January, 2007, in spite of availability of vacancies in promotion quota,the promotee officers who were eligible and were officiating against theFsaid vacancies, could not be recruited. They were recruited only afterthe suitability test was held for the first time in the year 2008. TheCommittee thus held that they were entitled to en bloc seniority withoutrota system. The direct recruits could not be given seniority for the periodprior to their appointment. Same was the position with regard to 2009recruitments. The view of the Committee was that rota system willGcreate imbalance and injustice.

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

prayer was for quashing the final seniority Report dated 23[rd] September,2015 (of Committee of High Court Judges), supplementary report dated6[th] April, 2016(also of a Committee of High Court Judges) and for adirection to redetermine seniority of the writ petitioners who were thedirect recruits on the basis of rotational system proportionate to theirquota, apart from other incidental prayers. It was submitted that sinceRule 22(2) provides for rotational basis for seniority, their date ofappointment was not conclusive for the purpose of seniority. Accordingly,the writ petitioners sought determination of seniority by applying rostersystem. The High Court and the affected officers defended the reportof 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 asthe Rules were retrospective. Challenge was also to the reports of theCommittees and decision of the Full Court in so far as objections toseniority list were rejected. The petitioners in the said writ petition werepromoted against vacancies of the years 2002 onwards but the saidvacancies were actually determined later. According to the said writpetitioners, they were entitled to seniority from the date of their eligibility,without their passing of the suitability test which was retrospectivelyprescribed for the first time on 9[th] January, 2007.

25. The High Court examined two questions : -

25. The High Court examined two questions : -

(i) Whether promotees were entitled to seniority prior to theirappointment on the ground that requirement of suitability testwas introduced for the first time in the year 2007 and they had avested right to be promoted against the earlier vacancies withoutthe suitability test.

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

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

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

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

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

“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 inV.K. Srivastava’s case, is not open to reconsideration by us.

(2) There is no factual and legal basis for the petitionersclaim to promotion from date of occurrence of vacanciesand seniority accordingly in Writ Petition No. 16569(SB) of2016.

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(3) The determination of vacancies by the Committee doesnot require any interference but determination of seniorityEis not sustainable.

(4) Considering the facts of the present case there is no errorin the appointment of direct recruits in December, 2011 andJanuary, 2012 w.e.f. 04.01.2007 when the last of the selecteesof the same selection had joined following the dictum in Dr.FA.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 accordancethereof in terms of Rule 22 and 26 of the Rule, 1975. TheGjudgment rendered in All India Judges’ Cases has not beenfollowed as was mandatorily required.

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

in the service under Sub-Rules (1) and (2) of the Rule 22which necessarily means the order of rotational/cyclicalplacement of appointees from different sources of recruitmentwithout disturbing their inter-se placement within the samestream/quota and not en bloc placement on the basis of dateof appointment as has been done.”

29. We have heard learned counsel for the parties. The first issueraised is whether the promotees recruited in the year 2008/2009 areentitled to seniority prior to their selection on the ground that no suitabilitytest was required prior to 9[th] January, 2007 and retrospective effect tosuch requirement was illegal. We are in agreement with the view takenby the High Court that suitability test was required in terms of judgmentof this Court in All India Judges’ case (supra) and under the amendedRules applicable retrospectively which was duly upheld by this Court inV.K. Srivastava (supra).Thus, the promotees could not be givenpromotion without suitability test nor could they claim seniority withoutthe same. They have been rightly given seniority from their appointments.

30. With regard to the Quota-Rota rule, there is no doubt that thisis a mandatory requirement of the Rules. The said requirement hashowever to be seen in the peculiar fact situation. The issue ofdetermination of vacancies was embroiled in continuous litigation. TheQuota-Rota rule could not be applied in the absence of determination ofvacancies. The suitability test though validly laid down could not be heldtill 2008 for reasons already noted. No promotion could be given inabsence of suitability test. The rule provided for seniority of the promoteesto be fixed from the date of availability of vacancy but such senioritycould 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 haveto be given pragmatic interpretation. As laid down by this Court in Direct Recruit Class-II Engineering Officers’ Association versus State ofMaharashtra[9], if it becomes impractical to act upon rule fixing quotafrom two sources, it is no use insisting that the authority must giveeffect to such a rule. Every effort has to be made to respect a rule butif it is not feasible to enforce it, the rule has to be given a practicalinterpretation. Thus, interference by the High Court with the senioritygiven to the promotees above the direct recruits without following therotation principle cannot be sustained.

9 (1990) 2 SCC 715, para 23

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A31. Accordingly, we allow the appeal arising out of Special LeavePetition (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 ofWrit Petition (SB) No.16569 of 2016 filed by the promotees and dismissthe appeal arising out of Special Leave Petition (civil) D.No.39750 ofB2017.

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

Ankit Gyan Matters disposed of.

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