ition No 259 of 1990
Under Article 32 of the Constitution of India
Yogeshwar Prasad RK Jain Satish Chandra AS Pundir Gopal Subramanium Mrs SD Dikshit Jitender Sharma R Venkataramani Mrs Rachna Gupta MP Shorawala DK Garg Pramod Swarup RN Keshwani Mrs Anil Katiyar Anis Ahmed Khan and AP Mohanty for the Appearing parties
The Judgment of the Court was delivered by KULDIP SINGH J
Before us are the members of Uttar Pradesh Higher Judicial Service hereinafter called the Service  Promotees and the direct recruits as usual are in the fray
This is their second round of litigation in this court
Earlier in PK Dixit and Others vs State of UP and Others  this court directed the preparation of fresh seniority list in accordance with the observation made therein
The Allahabad High Court thereafter framed and circulated final seniority list of the service of August 25 1988
Both promotees and direct recruits are not satisfied with the same
They have challenged the said seniority list inter alia on the ground that it is not in conformity with the directions of this court in Dixit s case
429 We may briefly state the necessary facts
The service was initially governed by statutory rules called the Uttar Pradesh Higher Judicial Service Rules 1953 hereinafter called 1953 rules 
Recruitment to the service under the said rules was from two sources by promotion and the direct recruitment
In Chandra Mohan vs State of Uttar Pradesh this court struck down the 1953 rules so far as the said rules provided direct recruitment of the service
As a consequence there was no direct recruitment to the Service till the year 1975 76
This members of the service promoted under the 1953 rules were designated as Civil and Sessions Judges
On May 8 1974 the Uttar Pradesh Higher Judicial Service abolition of cadre of the Civil and Sessions Judges Rules 1974 hereinafter called 1974 rules  came into force
Under these rules the cadre of Civil and Sessions Judges was abolished
Rules 2 and 3 of 1974 rules which are relevant are reproduced hereafter 2
Abolition of the Cadre of Civil and Sessions Judges
With effect from the date of commencement of these rules the cadre of Civil and Sessions Judges shall stand abolished and the Uttar Pradesh Higher Judicial service shall with effect from the said date consist of the posts of District and Sessions Judges and Additional District and Sessions Judges only
Creation of posts and confirmation  1 Upon the abolition of the cadre of Civil and Sessions Judges permanent and temporary posts of Additional District and Sessions Judges equal in number of the permanent and temporary posts respectively of Civil and Sessions Judges existing immediately before the date of commencement of these rules shall stand created with effect from the said date and the officers holding the posts of Civil and Sessions Judges immediately before the said date shall become Additional District and Sessions Judges and be designated accordingly
2 An officer who is confirmed on the post of Civil and Sessions Judge before the commencement of these rules shall with effect from the date of such confirmation be deemed to be confirmed on the post of Additional District and Sessions Judge
430 It is thus obvious that the cadre of Civil and Sessions Judges stood abolished and a new cadre of Additional District and Sessions Judges consisting of permanent and temporary posts equal in number of the permanent and temporary posts respectively of Civil and Sessions Judges came into existence under the 1974 rules
The Civil and Sessions Judges holding permanent or temporary posts in the Service were re designated as Additional District and Sessions Judges with effect from May 8 1974 the date when the 1974 rules were enforce
On that date 271 officers were working as Additional District and Sessions Judges against 235 posts 153 permanent and 82 temporary in the Service
The Service was reconstituted and given a freshlook by the rules framed under Article 309 read with Article 233 of the Constitution of India called the Uttar Pradesh Higher Judicial Service Rules 1975 hereinafter called the 1975 Rules
These rules came into force with effect from April 5 1975
The relevant rules 5 6 8 and 26 are reproduced hereinafter 5
Source of recruitment
The recruitment of the Service shall be made a by direct recruitment of pleaders and advocate of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published b by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa hereinafter referred to as the Nyayik Sewa who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting applications is published Provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrates confirmed officers who have put in not less than seven years service to be computed as aforesaid shall be eligible for appointment as Additional Sessions Judges in the Service
Explanation
When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken into account in computing the period of seven years under clause a
431 6
Quota
Subject to the provisions of Rule 8 the quota for various sources of recruitment shall be i direct recruitment from the Bar 15 ii Uttar Pradesh Nyayik Sewa 70 of the vacancies
iii Uttar Pradesh Judicial Officers 15 Service Judicial Magistrates
Number of appointments to be made 1 The Court shall from time to time but not later than three years the last recruitment fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years
If at any selection the number of the selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment and the quota for direct recruits may be raised accordingly so however that the percentage of direct recruits in the Service does not in any case excess 15 per cent of the total permanent strength of the service
Provided further that all the permanent vacancies existing on May 10 1974 plus 31 temporary posts existing on that date if and when they are converted into permanent posts shall be filled by promotion from amongst the members of the Nyayik Sewa and only the remaining vacancies shall be shared between the three sources under these rules Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to the Judicial Magistrates in addition to their quota of 15 per 432 cent prescribed in rule 6 and thereupon future recruitment after the promotion from amongst the members of the Nyayik Sewa against vacancies referred to in the last preceding proviso shall be so arranged that for so long as the additional 15 per cent vacancies worked out as above have been filled up from out of the Judicial Magistrates the allocation of vacancies shall be as follows i 15 by direct recruitment
ii 30 from out of the Judicial Magistrates
iii 55 from out of the members of the Nyayik Sewa
Seniority 1 Except as provided in sub rule 1 seniority of members of the service shall be determined as follows
a Seniority of the officers promoted from the Nyayik Sewa vis a vis the officers recruited for the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits
Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same the promoted officer shall be treated as senior Provided that in the case of a promoted officer the maximum period of continuous officiation in the service shall not for the purpose of determining seniority exceed three years immediately preceding the date of confirmation   
Statement of facts filed by the High Court shows that on April 5 1975 when the 1975 rules came into force there were 229 permanent and 7 temporary total 236 posts in the service
This total included 31 temporary posts mention in second proviso to rule 82 of 1975 rules
By that date these posts had become permanent
The statement further shows that 263 officers were working as Additional District and Sessions Judges on the said date
We take it that it that there were 236 posts in the Service on the commencement of the 1975 rules
433 PK Dixit and 7 other promotee officers filed two writ petitions under Article 32 of the Constitution of India challenging the seniority assigned to them on two grounds
It was contended that all the posts existing on April 5 1975 when the 1975 rules came into force should be deemed to have been filled by the officers holding the designation of Additional District and Sessions Judges on that date
Secondly it was contended that the promotees were entitled to the seniority from the date of their actual continuous officiation and not by limiting the said period to three years preceding the date of confirmation
This court by its judgment dated October 8 1987 in Dixit s case supra partly allowed the writ petitions and directed the High Court to frame the seniority list afresh keeping in view the observations made in the judgment
The promotes claim that the judgment in Dixit case is wholly in their favour on the first point
The direct recruits however contest the said claim and assert that the contention of the promotees was rejected and their claim was confined to the number of posts as provided in First Proviso to rule 82 of the 1975 Rules
Pursuant to the judgment in Dixit case the High Court issued a tentative seniority list on February 11 1988
The promotees were fully satisfied with the same as according to them the said list was drawn in conformity with the Judgment in Dixit case
Objections were invited against the tentative seniority list and thereafter the High Court constituted a five Judge committee to finalise the list
On the basis of the report of the committee final seniority list was issued on August 25 1988
OP Garg and 4 other promotees have filed writ petition No 259 of 1989 challenging the final seniority list
PK Dixit and others petitioners in the original Dixit case have filed Civil Miscellaneous Petition No 3473 of 1989 seeking clarification of the said judgment and also supporting the case of the promotees
The direct recruits have filed writ petition No 1304 of 1988 under Article 32 of the Constitution of India impugning the final seniority list issued by the High Court
It is interesting that both promotees and the direct recruits are relying on the judgment in Dixit case and are contending that the final seniority list issued by the High Court is contrary to the said judgment
The promotees the direct recruits and the High Court have sought support from Dixit case on the basis of their own interpretation of the judgment
Apparently there are diverse observations in Dixit case which are being stretched by the parties in support of their rival contentions
The promotees strongly rely on the following paragraphs from Dixit case to show that the First Point argued before the Bench was decided in their favour
434 In the written affidavit filed by the High Court it is not disputed that before these rules were brought into force all the posts which were available on the date on which these rules came into force have to be filled in by promotion as till that date there was no rule requiring direct recruitment
But unfortunately the High Court in their return have not mentioned the exact number of vacancies existing on that date also the number of officers who were officiating on the date as Civil and Sessions Judges or Additional District and Sessions Judges who were entitled to be included in that cadre of higher judicial service under these rules It is not disputed that on the date on which these rules 1975 Rules were brought into force all the posts available were to go to the promoted officers and the only thing that the High Court is expected to do is to find out how many posts were available on that date and how many persons were officiating in the higher judicial service or equivalent posts on that date and their seniority ought to be fixed on the basis of their promotion to the posts except where an officer was not found fit or where officer concerned was reverted back to the judicial posts
The documents do not disclose that any one of these judicial officers who were promotees have been reverted
The documents also do not disclose that at any time the High Court considered the question of their confirmation and any one of them was not found fit for confirmation or that it was decided to postpone the date of confirmation because the work of the officer was not upto the mark
The record produced by the High Court only shows the date from which these petitioners were promoted and started officiating as Additional District Judges and the date on which they were ultimately confirmed
During this period their case was considered at any time does not appear from the record produced in this case nor was the contention of the learned counsel appearing for the High Court
It therefore is not disputed that these petitioners who were promoted before these rules 1975 Rules were brought into force were never found unfit for confirmation and in this view of the matter therefore it is clear that all posts available on the date on which these new rules were brought into force will have to be filled in by these promoted 435 officers who were working in the officiating capacity in the post of higher judicial service on the date on which these rules were brought into force
So far as the situation before these rules were brought into force is concerned even during the course of argument not much controversy appears to exist as it is clear that the question of direct recruitment and the quota of the direct recruits vis a vis promotees was not in existence
 Based on the above quoted findings in Dixit case the promotees plausibly claim that on April 5 1975 when the 1975 rules came into force all the 236 posts in the Service had already been consumed by the existing members of the service who were working as Additional District and Sessions Judges
Till that date the recruitment to the service was only by way of promotion and as such there was no question of allocating any post to the direct recruits who had not yet born in the service
The direct recruits on the other hand assert that the Dixit case decides the controversy in their favour
Reliance in that respect is placed on the following observations in the judgment This also appears to be the intention of the rules when they were framed in 1975 as is clear from the proviso to Rule 8
It reads provided further that the permanent vacancies existing on May 10 1974 plus 31 temporary posts existing on that date if and when they are converted into permanent posts shall be filled by promotion from amongst the members of the Nyayik Sewa and only the remaining vacancies shall be shared between the three sources under these rules It therefore is clear that even these rules provided that all the posts permanent available in the Higher Judicial Service existing on May 10 1974 plus 31 temporary posts existing on that date which may become permanent later shall be filed by promotion from amongst the members of the Nyayik Sewa
It is therefore clear that all the posts in the Higher Judicial Service lying vacant on May 10 1974 plus thirty one will have to be filled in from the officers of the Nyayik Sewa
May be that some of these posts may be occupied by promotee officers who were given promotions 436 on ad hoc basis and working on those posts or that the posts may be lying vacant
Whatever may be the situation on the basis of what has been discussed above and also as has been clearly provided in these rules the matter will have to be gone into the High Court afresh and fill in all the posts in the Higher Judicial Service available on May 10 1974 plus 31 posts from the officers of the Nyayik Sewa It has therefore to be accepted that all those who were working as Civil and Sessions Judges on 8th May 1974 automatically became Additional District and Sessions Judges and what was left was only a consideration of their cases of confirmation and in so doing in view of the conclusions arrived at by us and also as has been provided in the proviso to Rule 8 quoted above all the posts available on 10th May 1974 plus 31 posts temporary on that date will have to be filled in from the cadre of Nyayik Sewa by promotion But in view of what we have discussed earlier about the appointments on the posts available before these Rules were brought into force and to fill in temporary posts we feel that the matter will have to be examined afresh by the High Court
So far as posts available on 10th May 1974 plus 31 posts are concerned they will have to be filled in only by promotees as we have discussed earlier and also in view of proviso to Rule 8 and after doing it examine the cases of promotion and direct recruitment after the coming into force of these Rules and the vacancies available and after consideration the cases in according with these Rules the High Court will prepare afresh the seniority list which may be notified so that if any objections are there they may be placed for determination in according with the Rules and in the light of the discussions above
 The precise assertion of the direct recruits thereforeis that this court interpreting the second proviso to Rule 82 of the 1975 rules in Dixist case has held that the promotees as on May 10 1974 are entitled to all the permanent posts available on that date plus 31 temporary posts and apart from that they cannot lay claim exclusively to the posts created thereafter
The High Court accepted the contention of the direct recruits 437 and gave 153 permanent posts existing on May 10 1974 plus 31 posts which became permanent subsequently to the promotees
Consequently out of the 263 Additional District and Sessions Judges who were holding the posts on April 5 1975 only 184 15331 were taken to be the existing members of the Service and remaining officers were asked to enter the service through the promotion quota under the 1975 rules
The second point in Dixit case was regarding fixation of seniority of the promotees under the 1975 rules
Whether whole of the continuous officiation or part of it is to be counted towards seniority was the moot point
Rule 261a of the 1975 rules provides that seniority of the direct recruits is to be determined from the date of their joining the service whereas that of the promotees from the date of continuous officiation in the service
But the first proviso to the said rule further limits the period of continuous officiation of a promotee for determining seniority to a maximum of three years immediately preceding the date of confirmation
The promotees contended in Dixit case that they were entitled to the counting of their total period of continuous officiation towards seniority
This court rejected the contention in the following words Having gone through these Rules it appears that the contention advanced by the petitioners in respect of proviso to Rule 26 about seniority does not appear to be justified
 The High Court while framing the impugned seniority list did not follow the seniority rule
The High Court determined the seniority of the promotees by giving them benefit of three years continuous officiation immediately preceding the date of availability of permanent vacancy whereas the rule provides three years preceding the date of confirmation
Mr Yogeshwar Prasad learned senior advocate appearing for the promotees
Mr Satish Chandra learned senior advocate for the direct recruits and Mr Gopal Subramanium learned advocate appearing for the High Court have addressed elaborate arguments before us
The learned counsel have read and re read the judgment in Dixit case in support of their respective contentions
The thrust of Mr Yogeshwar Prasad s arugment is twofold
He contended that the service consisting of Additional District and Sessions Judges was constituted under the 1974 Rules which continued till April 5 1975 when the Service was reconstituted under the 1975 rules
According to him all 438 the posts in service permanent and temporary available on April 5 1975 would be deemed to have been filled from amongst the Additional District and Sessions Judges working on that date
Only the posts created thereafter could be filed from the three sources under the 1975 rules
The second contention of Mr Prasad was that the benefit of continuous officiation towards seniority cannot be confined to three years and the promotees are entitled to the fixation of their seniority on the basis of continuous length of Service
Mr Satish Chandra on the other hand has argued that second proviso to Rule 82 of the 1975 rules which is retrospective in its application limits the number of vacancies as on May 10 1974 to be filled by promotion from amongst the members of Nyaik Sewa
According to him under the said proviso all the other posts created after May 10 1974 are to be filled from the three sources in accordance with the 1975 rules
Mr Satish Chandra further argued that the High Court acted illegally and in violation of first proviso to Rule 261 a of the 1975 rules in determining the seniority of the promotees by giving them the benefit of three years officiation immediately preceding the date of availability of permanent vacancy
According to him such period under the above proviso can only be preceding the date of confirmation
The judgment in Dixit case by and large deals with the main points raised by the learned counsel for the parties before us
But in view of divergent view point taken by the promotees the direct recruits and the High Court on the interpretation of the said judgment we are of the view that it is necessary to have a fresh look into the matter to finally settle the long drawn controversy between the parties
The service is a prestigious and sensitive service consisting of officers who form the back bone of Uttar Pradesh Judiciary
The service is the feeder cadre for appointment to High Court Judges
It is necessary to settle their rights in clear and unambiguous terms
Taking an overall view of the arguments advance by Mr Yogeshwar Prasad and Mr Satish Chandra we pose the following three questions for our determination 1
What is the scope and interpretation of second proviso to rule 82 of the 1975 rules Whether the Additional District and Sessions Judges holding the posts on April 5 1975 can claim that by operation of the 1974 rules they stood appointed to the service and as such consumed all the posts which were available 439 on April 5 1975 or they were only entitled to vacancies under the second proviso to rule 82 of the 1975 rules
Whether the period of continuous officiation in case of a promotee for determining seniority is to be counted in terms of First proviso to rule 261a0 of the 1975 rules or in accordance with the principle adopted by the High Court
Isn t it the requirement of law that a promotee is entitled to seniority in the service from the date when vacancy in his quota became available
Seniority and appointment in the service being inter linked a further question which necessarily arises for our consideration is whether rules 223 and 224 of the 1975 rules which provide appointments to temporary posts in the service from two sources of promotees excluding the direct recruits can be legally sustained
We may take up the first point for consideration
After the decision by this court in Chandra Mohan s case supra the Service consisted of only promotees with the designation of Civil and Sessions Judges
They were promoted from the lower cadre of UP Civil Services Judicial Branch called Nyayik Sewa
Thereafter under the 1974 rules which came into force on May 8 1974 the Civil and Sessions Judges holding permanent or temporary posts were redesignated as Additional District and Sessions Judges
By Operation of the 1974 Rules all the newly designated Additional District and Sessions Judges became members of the Service
Rule 2 of the 1974 Rules specifically provided that with effect from the date of commencement of those Rules the Uttar Pradesh Higher Judicial Service shall consist of the posts of District and Sessions Judges and Additional District and Sessions Judges
It is thus obvious that the service was reconstituted under the 1974 Rules and all the Additional District and Sessions Judges to the extent posts were available became members of the said service by operation of law
There were 271 officers working in the Service on May 8 1974 and there were 235 posts 153 permanent plus 82 temporary available in the service
Therefore 235 officers out of the 271 working on May 8 1974 for whom the posts were available in the service would be deemed to be members of the service under the 1974 rules
The Service as constituted under the 1974 Rules continued to operate till April 5 1975 when the 1975 rules were enforced
Till that date the only source of recruitment to the service was by way of promotion
On April 5 1975 440 the service comprised of 236 posts 229 permanent plus 7 temporary
They were 263 officers working in the service on that date
235 posts were already occupied by the officers who had become members of the service under the 1974 rules and the one additional post available would go to the 236th officer holding the post on April 5 1975
The 236 posts comprising the service on April 5 1975 have to be assigned and given to the 236 officers out of 263 who were working a Additional District and Sessions Judges and they are to be treated as existing members of the service as on April 5 1975
It is further axiomatic that the 236 officers including those holding temporary posts would en bloc rank senior to all those who were appointed to the service after April 5 1975 under the 1975 rules
The view which we have taken is also in conformity with the observations in Dixit case relied upon by the promotees which we approve
Coming to the second proviso to rule 82 of the 1975 rules relied upon by the direct recruits we are of the view that the interpretation given to the proviso by the High Court is not correct
A bare reading of the proviso shows that it was not applicable to the Service as reconstituted under the 1974 Rules consisting of Additional District and Sessions Judges
The proviso states that all the permanent vacancies existing on May 10 1974 plus 31 temporary posts existing on that date   shall be filled by promotion from amongst the members of the Nyayik Sewsa and only the remaining vacancies shall be shares between the three sources under these rules
 The Additional District and Sessions Judges working on May 10 1974 were not members of the Nyayik Sewa they had already become members of the Service on May 8 1974 under the 1974 Rules
The proviso talks of Nyayik Sewa and the three sources under the Rules which obviously means it is visualising a situation which was to exist after the enforcement of the 1975 rules on April 5 1975
Rule 8 of the 1975 rules is under the heading number of appointments to be made and various parts of the said Rule deal with different situation for making appointments from different sources at different times
Proviso 2 was enacted to meet a particular situation
The proviso talks of existing vacancies on May 10 1974
On that date the posts held by the Additional District and Sessions Judges who were members of the Service could not be termed as existing vacancies
The existing vacancies on May 10 1974 could only be those vacancies which were left over after providing posts to all the officers who were redesignated as Additional district and Sessions Judges under the 1974 Rules
The proviso was meant to deal with a situation which might have arisen in the event there had been more posts and less number of officers to occupy 441 the said posts on the reconstitution of the Service under the 1974 Rules
In that situation the balance vacancies could be the existing vacancies  falling within the mischief of the proviso
Since prior to April 5 1975 the only source of recruitment to service was by way of promotion the proviso intended to fill all those posts created before that date and available on that as existing vacancies surplus posts from amongst the members of Nyayik Sewa  in the first instance and thereafter operate the quota from three sources under the 1975 rules
The proviso was meant to carry the surplus vacancies as on May 10 1974 to April 5 1975 for the benefit of the promotees
But since the number of officers working in the service as on May 10 1974 and April 5 1975 was much more than the posts available in the service the situation envisaged by the proviso did not arise
The second proviso to rule 82 of the 1975 rules could not operate and since it was intended to meet one time eventually it has become redundant
The interpretation placed on the proviso by the direct recruits and the High Court if accepted would expose the rule to an attack on the grounds of discrimination and arbitrariness
The Additional District and Sessions Judges had not only the right to be appointed to the service but they were so appointed by the operation of 1974 rules
The proviso even though retrospective could not have taken away the vested rights of the officers who had already become members of the service
This could not be the intention of the framers of the 1975 rules
We therefore reject the contention of Mr Satish Chandra
Third proviso to Rule 82 which is dependent on second proviso must obviously meet the same fate
The net result is that on April 5 1975 all the 236 officers working against 236 posts 229 permanent7 temporary as Additional District and Sessions Judges in the Service shall be deemed to be existing members of the Higher Judicial Service as constituted under the 1975 Rules and they shall en bloc rank senior to all other officers appointed to the service thereafter from the three sources in accordance with their quota under the Rules
We may now take up the second point as to how the seniority of the promotees who have rendered continuous officiating service be fixed under the 1975 rules
Mr Satish Chandra learned counsel for the direct recruits has taken us through Rule 3d which defines member of the service 43 13 and 192 of the 1953 Rules and has contended that temporary posts cannot form part of the cadre of the Service
According to him service rendered in or against a temporary post is outside the pale of the 1975 rules and cannot be counted for seniority
He has further relied upon clauses 13 and 19 of rule 9 of the UP Fundamental Rules which define lien and officiate and 442 contended that an officiating appointment can only be made against a permanent post and as such the continuous officiation immediately prior to the date of confirmation provided in the first proviso to rule 261a of the 1975 rules can only be the officiation against a permanent post
It is not necessary for us to go into this question because the point is not res integra
It is not disputed that the service consists of permannt and temporary posts
This Court in Dixit s case after taking into consideration the scheme of the 1975 rules held as under In Rule 22 of phrase used is to make appointment to the Service on the occurrence of substantive vacancies and it was contended on the one side that substantive vacancies does not mean permanent vacancies whereas on the other hand it was contended that if only means permanent vacancies
The substantive vacancy has not been defined in the Rules but proviso to Rule 8 which has been quoted above speaks of permanent vacancies and temporary posts
In fact the scheme of the Rules clearly indicates that there are permanent posts and temporary also which are created to meet contigency and it may in due course be made permanent
It therefore could not be doubted that when appointment under Rule 22 is contemplated in the service of substantive vacancies it may be both temporary or permanent but the vacancy must be in the cadre
 We agree with the above findings and accept the position that the Service consists of permanent as well as temporary posts
The substantive vacancy has not been defined under the 1975 rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre
All temporary posts created under rule 44 of the 1975 rules are additions to the permanent strength of the cadre and as such form part of cadre
Appointments under rule 22 of the 1975 rules can be made to a permanent post as well as to a temporary post
So long as the temporary post has an independent existence and is a part of the cadre strength the appointment against the said post has to be treated as substantive appointment
There is no dispute that the seniority of a direct recruit appointment to the post in service has to be determined from the date of continuous officiation in the service
The question for our determination is whether the seniority of a promoted officer is to be counted from the date of countinuous officiation giving him benefit of full 443 period of officiation as claimed by Mr Yogeshwar Prasad or only for a maximum period of three preceding the date of confirmation as provided by first proviso to Rule 261a as agrued by Mr Satish Chandra
The High Court has not followed either of the methods and has determined the seniority by giving benefit to a promotee of three years officiation preceding the date of availability of a permanent post
We have given our thoughtful consideration to the arguments of the parties
This Court has time and again held that when an incumbent is appointed to a post in accordance with the Service Rules his seniority has to be counted on the basis of continuous length of service and not in reference to the date of confirmation
Even in present case the promotees have been confirmed long after the availability of permanent vacancies
This Court in SB Patwardhan  Others etc
vs State of Maharashtra  Others  observed that confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies
A Constitution Bench of this Court in Direct Recruit Class II Engineering Officers  Association vs State of Maharashtra and Others  approved Patwardhan s case and laid down the following propositions in this respect A Once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of his appointment and not according to the date of his confirmation
The Corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement the officiation in such post cannot be taken into account for considering the seniority
B If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules the period of officiating service will be counted
C When appointments are made from more than one source it is permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard 444 they must ordinarily be followed strictly
 Keeping in view the scheme of the 1975 rules we are of the view that first proviso to rule 261a of the 1975 rules which links the seniority with the date of confirmation is on the face of it arbitrary and as such violative of Article 16 of the Constitution of India
Since the recruitment to the service is from three sources the existence of a vacancy either permanent or temporary is the sine quo non for claiming benefit of continuous length of service towards seniority
The period of officiationservice which is not against a substantive vacancy permanent or temporary cannot be counted towards seniority
While striking down first proviso to rule 26 1a of the 1975 rules we hold that the continuous officiationservice by a promotee shall be counted for determining his seniority only from the date when a substantive vacancy against a permanent or temporary post is made available in his quota under the 1975 rules
Finally we take up the third point
Recruitment to the service under the 1975 rules is from three sources and is based on quota as provided therein
The cadre consists of permanent as well as temporary posts
We have already interpreted the seniority rule to the mean that the seniority of the direct recruit is to be determined from the date of his joining the service and that of promotee on the basis of continuous officiationservice from the date when a vacancy whether permanent or temporary becomes available in his quota
With these characteristics of the service it is obligatory that there should be equality of opportunity to enter the service for all the three sources of recruitment
The seniority in the service is consequential and dependent on appointment
If the recruitment rule gives unjustifiable preference to one source of recruitment the seniority rule is bound to become unworkable
The object of having recruitment from different sources is to have a blended service to create healthy competition and in the process achieve efficiency
If one of the sources of recruitment is dealt with unevenly under the Service Rules the said objective cannot be fulfilled
The 1975 rules permit appointment to temporary vacancies in the service by promotion and from the judicial service
No direct recruitment to the temporary vacancies is provided under the said rules
Rule 18 of the 1975 rules provides procedure for selection of the direct recruits
Rule 20 lays down the procedure for recruitment by promotion and Rule 22 provides for appointment
These Rules are reproduced as under 445 18
Procedure of selection 1 The Selection Committee referred to in Rule 16 shall scrutinize the applications received and may thereafter hold such examination as it may consider 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 recommended 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
Promotion of members of the Nyayik Sewa
1 Recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the basis of seniority cum merit
2 The field of eligibility for recruitment by promotion shall be confined to four times the number of vacancies to be filled by promotion
The Selection Committee shall prepare a list in order of seniority of the officers eligible under Rule 5b of these rules
3 The Selection Committee shall after examining the record of the officers included in the list prepared under sub rule2 of this rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of seniority cum merit
In assessing the merits of a candidate the Selection Committee have due regard to his service record ability character and seniority
The list shall contain the names of officers twice the number of 446 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 Committee 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
Appointment
1 Subject to the provisions of sub rules 2 and 3 the Governor shall on receipt from the Court of the lists mentioned in Rules 1830 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the lists in the order in which they stand in the respective list
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 thereafter 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 Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa
Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrate appoit 447 ments on temporary vacancies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrate according to the quota fixed for that source under these rules Provided further that for so long as such members of the Judicial Service as are considered suitable for appointments on temporary vacancies or in officiating capacity are not available in sufficient number the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates
4 The appointments shall be made or rotational system the first vacancy shall be filled from the list of officers of the Nyayik Sewa the second vacancy shall be filled from the list of Judicial Magistrates and so on
Is obvious from Rules 223 and 224 reproduced above that appointments to the temporary vacancies are to be made from amongst the members of the Nyayik Swea and the Judicial Magistrates
Under Rule 20 the Selection Committee has to prepare a merit list in order of seniority of the officers of Nyayik Sewa twice the number of vacancies and the said list remains operative till the next recruitment
Similarly a merit list of eligible officers from the Judicial Magistrates is prepared
Whenever temporary posts are created appointments to the said posts under Rule 223 and 224 are made from out of the lists so prepared
Rule 18 on the contrary is silent about the preparation of a similar merit list obviously because Rule 22 does not permit any appointment to the temporary posts from amongst the direct recruits
We see no justification is not applying the quota rule to the temporary posts in the service and confining appointments to said posts to the two sources of promotees
This Court in AKs Subraman vs Union of India 1975 2 SCR 979 held as under The quota rule will be enforced with reference to vacancies in all posts whether permanent or temporary included in the sanctioned strength of the cadre except such vacancies as are purely of a fortuitous of adventitious nature    This court in Ps
Mahal vs Union of India  held as under 448 It is therefore obvious that if a vacancy arises on account of an incumbent going on leave or for training or on deputation for a short period it would be a fortuitous or adventitious vacancy and the quota rule would not be attracted in case of such a vacancy
But where a vacancy arises on account of in incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the person promoted to fill such vacancy having to revert the vacancy would be subject to the quota rule
 It is therefore apparent that what has to be considered for the applicability of the quota rule is a vacancy in a post included in the sanctioned strength of the cadre  It is thus clear that the vacancies in the posts of Executive Engineer arising on account of deputation of Executive Engineers to other departments organisations and public undertakings for a period of one or more years were long term vacancies and they could not be regarded as fortutitous or adventitious in character and hence they were subject to the quota rule
When temporary posts under rule 44 of the 1975 Rule are created as addition to the cadre we see no justification to deny the direct recruits their share of the quota as provided under rule 6 of the said rules
Rules 5 of the 1975 rules specifically lays down that recruitment to the service shall be made from three sources including the direct recruits
Rule 6 fixes the quota for various sources of recruitment to the service and allocates 15 per cent of the posts in the service to the direct recruits
Rules 5 and 6 read with Rule 222 provide for appointments to the service in accordance with quota
These rules have to be read homogeneously and as a part of the same scheme
The service having comprised of three sources including the direct recruitment there is no justification to deprive the direct recruits of their share in the temporary posts in the service
Unless the direct recruits are given their due quota in the temporary posts the seniority rule cannot operate equitably
We see no justification whatsoever in having rule 223 and 224 of the 1975 rules which deprive one of the sources of recruitment the benefit of appointment to the temporary posts
The rules on the face of it are discriminatory
There is no nexus with the object sought to be achieved by framing the abovesaid rules
We therefore strike down rules 223 and 224 of the 1975 rules being 449 discriminatory and violative of Articles 14 and 16 of the Constitution of India
We however direct that the appointments already made under these rules 223 and 224 shall not be invalidated on this ground
We further direct that while selecting candidates under rule 18 the Committee shall prepare a merit list of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment
We further direct that the appointments under rules 221 and 222 of the Rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the 1975 rules
Before parting with the judgment we make it clear that the findings and observations in Dixit case to the extent those are contrary to this judgment shall be deemed to have been over ruled
We allow the writ petitions and the Civil Miscelleneous petition quash the final seniority list dated August 25 1988 and direct the High Court to prepare circulate invite objections and finalise the seniority list of the service in the light of the findings given and the observations made by us in this judgment
We reiterate our findings hereunder 1
All the 236 promotee officers against 236 posts 229 permanent plus 7 temporary as Additional District and Sessions Judges on April 5 1975 shall be deemed to be existing members of the Service as constituted under the 1975 rules and they shall en bloc senior to all other officers appointed to the service thereafter from three sources in accordance with their quota under the 1975 rules
We strike down first proviso to rule 261 of the 1975 rules and direct that the continuous officiationservice by a promotee appointed under the Rules shall be counted for determining his seniority from the date when a substantive vacancy in permanent or temporary post is made available in his quota under the 1975 rules 3
We also strike down rules 223 and 224 of the 1975 rules but the appointments already made under these rules shall not be invalidated
We further direct that while selecting candidates under rule 18 of the said Rule the committee shall prepare a 450 merit of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment
We further direct that the appointments under rules 221 and 222 of the 1975 rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the said rules There shall be no order as to costs
RSS Petition allowed


Summary:
The petitioner was convicted of murder and was sentenced to death by the Sessions Court on 13121978
His appeal to the High Court and Special Leave petition to this Court were dismissed
His mercy petitions to the Government and to the President of India were also rejected
The execution of the sentence remained stayed till it stood vacated on 11101988 on dismissal of a writ petition under Article 32 of the Constitution filed by his brother for conversion of the death sentence into one of life imprisonment on the ground of delay in its execution
On 18111988 the petitioner again filed a mercy petition before the Governor and his execution was once more stayed and since then he was awaiting the final outcome of his petition
meanwhile on 24121990 a prisoner sent a letter praying for release of the petitioner which was treated as a writ petition on behalf of the convict under Article 32 of the Constitution
It was contended on behalf of the petitioner that the death sentence awarded to him should be quashed as there had been inexcusable delay in executing the same
On consideration on nature and effect of the delay in execution of the sentence after the petitioner filed mercy petition on 18111988 in the light of the principles laid down in Triveniben s case
Allowing the appeal this Court HELD 1
Once a petition for conversion of death sentence into one of life imprisonment is rejected the plea raised in the petition so 463 rejected cannot be permitted to be raised by repeated petitions
But this does not deprive the convict of his right to renew the prayer on fresh circumstances arising later and therefore not considered
465B C 2
In the instant case the petitioner could not succeed on the basis of the delay prior to October 1988 as it had been considered in the earlier petition which was dismissed but the fact that the petitioner had been continuously detained in prison since 1972 was not rendered completely irrelevant and should be considered merely as a circumstance assuming significance as a result of the relevant circumstance arising subsequent to the judgment rendered in October 1988
465E F 467C D 3
The initial reason for the further delay has been a fresh mercy petition filed by the petitioner
Althought the stay of the execution was certainly appropriate in the event of not rejecting the prayer at once yet the matter should have been disposed of expeditiously and not kept in abeyance as was done
If the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed undoubtedly the entire process of the consideration of the questions referred would have been completed within a reasonable period without leaving any yawning or embarrassing gap
There had been an avoidable delay considerable in the totality of circumstances for which the petitioner was in no way responsible
466D E 467A B 4
The only relief a convict awaiting execution of death sentence can get from this Court on the ground of delay is conversion of the sentence into that of life imprisonment
467F 5
In view of all the circumstances of the case the petitioner s death sentence is substituted by imprisonment for life and he would be governed and dealt with as a life convict for all purposes
476E G Smt
Tribeniben vs State of Gujarat 1989 1 SCC 678 followed