Ashok Pal Singh & Ors vs U.P. Judicial Services Asson. & Ors

Note : The limitation of three years mentioned in this sub-rule shall not apply to the first recruitment held after the enforcement of these rules. 4 (2) If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa:

(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.

Provided that for so long as suitable officers are available from the cadre of the Judicial magistrate, appointments 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:

(b) Seniority inter se of the officers appointed from out of the Judicial Magistrates shall be determined from the date of continuous officiation, provided that in the case of officers appointed on the basis of one selection, their seniority shall be determined according to their seniority in the Uttar Pradesh Judicial Officers Service:

(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.]

4. Pursuant to the judgment in P.K. Dixit, the High Court issued a tentative seniority list on 11.2.1988 and objections were invited. The promotees were satisfied that the said list was drawn in conformity with the judgment in P.K.Dixit and unobjectionable. 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 25.8.1988. Aggrieved by the 9 final seniority list, the promotees (O.P. Garg and four others) filed a writ petition. The petitioners P.K. Dixit filed an application in the said petition seeking clarification and supporting the case of the promotees. The direct recruits filed a writ petition challenging the final seniority list issued by the High Court. Both sides contended, for different reasons, that the final seniority list dated 25.8.1988 was contrary to the decision in P.K. Dixit. This court found that the High Court, the direct recruits and promotees were interpreting the directions and observations in P.K. Dixit differently. Therefore this court in its judgment dated 23.4.1991, reported in O.P. Garg v. State of U.P. & Ors. - 1991 (Supp) 2 SCC 51, decided to take a fresh look into the matter in regard to aspects which were not dealt with and decided by P.K. Dixit. This court, therefore, posed the following three questions for consideration :

(Emphasis supplied)

19. Let us illustrate with a case where the quota of direct recruits at a recruitment with reference to available vacancies, was 20 and only 10 direct recruits were available. Having regard to the Rule 8(2), the remaining 10 vacancies need not be kept unfilled. They can be filled by promotion. However, the High Court while determining the quota of direct recruits at the next recruitment, will take note of the shortfall of 10 in direct recruitment, at the earlier recruitment and correspondingly increase the quota of direct recruits. This means while fixing the vacancies to be filled by direct recruits at a recruitment, the fact that lesser number of direct recruits were appointed at the last recruitment has to be taken note of and the vacancies to be filled by direct recruits is to be increased to cover the previous shortfall. But such adjustment should be done in such a manner, that the total direct recruits in the service do not exceed 15% of the strength of the service. This is conveniently done by calculating the total entitlement of direct recruits (that is 15% out to the total strength), finding out the actual posts occupied by direct recruits and calculating the difference which will be 33 the entitlement of direct recruits. As a result, the shortfall is made up by increasing the posts to be filled by direct recruitment. Therefore when there has been a shortfall in direct recruits in an earlier recruitment, the number fixed for direct recruits at a subsequent recruitment will necessarily exceed 15% of the vacancies for which the subsequent recruitment is being held, by reason of the fact that the earlier shortfall is required to be filled.

20. Rule 8 clarifies that direct recruits are entitled to 15% quota not only in the vacancies to be filled, but also 15% in the strength of the service. The Rules also make it clear that when a shortfall in a particular recruitment is made up at the next recruitment, there is no question of the direct recruits appointed to the shortfall vacancies claiming seniority over the promotees who filled the shortfall post of direct recruits at the previous recruitment. Though the shortfall is made good at the next recruitment, the question of seniority will be governed by Rule 26. No direct recruit at a subsequent recruitment can claim that as he is being appointed against a direct recruitment vacancy of previous recruitment, his seniority should be reckoned from any date earlier to the date of his joining the service. 34

Re : Question No. (iv)

28. The first part of the third direction in the impugned order depends upon the result of the exercise undertaken in pursuance of its second direction. We have held that directions 1 and 2 in the impugned order of the High Court are contrary to the decision in O.P.Garg. In view of it, the question of undertaking any exercise as per the second direction of the impugned order does not arise. All that therefore remains out of the third direction in the impugned order is reiteration of direction No.3 of Srikant Tripathi. The third direction in the impugned judgment to the extent it reiterates direction No.3 in Srikant Tripathi has to be upheld. There is no question of unfilled vacancies being carried forward for the purpose of fixing the number of officers to be taken at the next recruitment. The total vacancies to be filled at a recruitment shall have to be filled by applying sub- rules (1) and (2) of Rule 8 and its provisos. In that sense all vacancies, which are not filled by direct recruitment, get filled by promotion and there will be no carry over. There is only a limited `carry over' of unfilled direct 42 recruitment vacancies in the manner stated in the Rule 8(2) and the first proviso thereto.

Conclusion

31. In view of our aforesaid findings, we allow these appeals in part as follows :

(iii) Direction Nos. (4), (5) and (6) in the impugned order dated 25.8.2004 are upheld.

(iv) The consequential exercise directed by the High Court should be restricted to the directions which have been upheld.

(v) None of the appointments already made to the Higher Judicial Service, whether by direct recruitment or by promotion, shall be annulled, but shall be continued, even if the appointment is found to be in excess of the quota, subject to the condition that the seniority of such excess appointee will be reckoned from the date on which he becomes entitled to be adjusted at the subsequent recruitment/s. Any elevation to the High Court on the basis of seniority already given shall also not be affected.

All pending applications stand disposed of.