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Thursday, February 19, 2015

appointment made by the High Court to the post of Direct Recruit District Judges in the unfilled reserve vacancies, to the extent of 34 in number by way of promotion from the 'in service candidates' by applying Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975 (hereinafter referred to as "the Rules").="No general category candidate can be appointed against a slot in the roster which is reserved for the backward class." Therefore, when the posts were reserved for the SC, ST, filling up of those posts from the general category candidates would seriously affect the rule of reservation, as once the posts of direct recruit are filled up from other category candidates even the carrying forward of those vacancies as provided under the proviso to Rule 8(2) cannot be operated upon. In other words, by applying Rule 8(2) in the event of vacancies remaining due to non- availability of the candidates of the reserved category and such vacancies were filled up by the 'in service candidates' by resorting to promotion, the proviso can be conveniently operated upon by carrying forward those vacancies in the future years in the direct recruit source and by maintaining the rule of reservation to the extent it could not be filled up in the relevant recruitment years. If instead of resorting to promotion of 'in service candidates' those unfilled reserved vacancies are filled from the general category candidates there would be no scope for applying the proviso to Rule 8(2). Such a contingency created would run counter to the rule of reservation and, therefore, the same cannot be countenanced.=We have to, therefore, hold that the High Court by adopting the Reservation Act, 1994 adopted the rule of reservation to the full extent provided for and as prescribed under Section 3(1) of the Reservation Act, 1994 and that in respect of any unfilled vacancies of that category, the High Court rightly resorted to the prescription contained in Rule 8(2) by resorting to filling up of such vacancies by special recruitment in that year as directed by this Court and in the absence of not getting such vacancies filled up by resorting to such filling up by promotion of 'in service candidates' and also by applying the proviso to Rule 8(2) and thereby carry forward those vacancies in the future years of recruitment. Keeping the said legal principle relating to applicability of Section 3(1) of the Reservation Act, 1994 vis--vis Rules 7 and 8(2) of the High Court Rules in mind, when we consider the last of the submissions made on behalf of the appellants, it must be held that the action of the High Court in having resorted to filling up of the unfilled reserved vacancies by taking umbrage under Rule 8(2) was perfectly justified. The said action of the High Court in having filled up those unfilled reserved vacancies of direct recruitment of the year 2009 was stated to have been made by promoting the in-service candidates. Though we have found that such a course adopted by the High Court was in order, as the proviso to Rule 8(2) specifically mandates that while fixing the number of vacancies to be allotted to the quota of direct recruitment at the next recruitment, it should be raised accordingly. We are of the view, without disturbing whatever promotions already made by resorting to Rule 8(2), the High Court can be permitted to provide that number of vacancies which remained unfilled in the year 2009 in the reserved category of direct recruit source by adding that number of vacancies in the recruitment to be made in the future years until such number of vacancies of unfilled reserved category pertaining to 2009 are filled. With the above limited directions to the High Court, we do not wish to meddle with the promotions already made. We do not find any scope for granting any relief to the appellants, as none of the submissions raised on behalf of the appellants, which were though not considered by the Division Bench of the High Court and which were also dealt with by us in extenso and we find no merit. These appeals, therefore, fail and the same are accordingly dismissed.


                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                    CIVIL APPEAL NOS.  1956-1957  OF 2015
                     (@ SLP (C) Nos.11924-11925 of 2012)


Nawal Kishore Mishra & Ors. Etc.                     ...Appellant (s)

                                   VERSUS


High Court of Judicature at Allahabad               ...Respondent(s)
Through its Registrar General & Ors. Etc.

                                    WITH

                    CIVIL APPEAL NOS. 1992-1993  OF 2015
                     (@ SLP (C) Nos.18597-18598 of 2012)



Udai Bhanu Mishra & Ors. Etc.                        ...Appellant (s)

                                   VERSUS

High Court of Judicature at Allahabad
Through its Registrar General & Ors. Etc.           ...Respondent(s)

                             &


                    CIVIL APPEAL NOS.  1958-1959  OF 2015
                      (@ SLP (C) Nos.26015-16 of 2012)

Arvind Kumar Sudhanshu & Ors.                        ...Appellant (s)

                                   VERSUS

High Court of Judicature at Allahabad
Through its Registrar General & Ors. Etc.           ...Respondent(s)

                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

Leave granted.

Since the issues involved in the above  appeals  are  identical,  all  these
appeals are disposed of by this common judgment.  We, however, refer to  the
facts dealt with by the Division Bench of the High Court in SLP  (C)  11924-
25/2012 by judgment dated 02.03.2012.

The challenge in the writ petitions was to the appointment made by the  High
Court to the post of Direct Recruit District Judges in the unfilled  reserve
vacancies, to the extent of 34 in number by way of promotion  from  the  'in
service candidates' by applying  Rule  8(2)  of  the  Uttar  Pradesh  Higher
Judicial Service Rules, 1975 (hereinafter referred to as "the  Rules").  The
Division Bench of the High Court dismissed the  writ  petitions.  Aggrieved,
the appellants have come forward with these appeals.

To trace the brief facts, on 15.04.2009 the High Court notified  and  called
for applications  for  filling  up  68  vacancies  in  the  Higher  Judicial
Service. Of the 68 vacancies, 24 vacancies were meant for open category,  21
for Other Backward Classes (OBC), 21 for SC and 2  for  ST.  It  is  not  in
dispute that all the 24 vacancies in the open  category  got  filled  up  on
merits. Of the 21 vacancies in the OBC, 10 alone could be appointed  leaving
11 vacancies to remain. All the SC/ST vacancies numbering 23 were  also  not
filled up. In the unfilled 34 vacancies, the High  Court  promoted  the  'in
service candidates'. The appellants were successful in the written test  and
also attended the interview. According  to  the  appellants,  even  applying
Rule 8(2) of the Rules, all the 68 vacancies were direct  recruit  vacancies
and that in the first instance, the  unfilled  vacancies  should  have  been
filled up  only  from  the  other  successful  candidates  from  the  direct
recruitment source. In other words, the  contention  was  that  only  if  no
other successful candidate was available  from  the  direct  recruit  source
belonging to any of the categories,  namely,  open  category  or  any  other
category such as OBC or SC/ST then and then alone the High Court could  have
resorted to promotion of 'in service candidates'.  To  put  it  differently,
according to the appellants since  the  posts  advertised  were  by  way  of
direct recruitment, it was meant for that particular source of  recruitment,
namely, "direct recruit" and all those successful candidates of that  source
alone, namely, 'direct recruit' were in the first instance  eligible  to  be
considered for  being  appointed  to  the  unfilled  posts  of  any  of  the
categories,  namely,  open  or  OBC  or  SC  or  ST  and  in  the  event  of
unavailability of any candidate from that source then  and  then  alone  the
High Court could have resorted to filling  up  of  those  posts  by  way  of
promotion of 'in service candidates'. Since, the  above  submission  of  the
appellants did not find favour with  the  High  Court,  the  appellants  are
before us.

We heard Mr. Dwivedi, learned Senior Counsel for the  appellants  Mr.  Ashok
Srivastava, learned counsel  for  the  High  Court  and  Mr.  Irshad  Ahmad,
Additional Advocate General for the State.

The contentions of Mr. Dwivedi learned Senior Counsel  while  assailing  the
judgment of the High Court were  three-fold.   The  learned  Senior  Counsel
submitted that in order to apply the rule of reservation by the High  Court,
as has been stipulated in the Uttar Pradesh  Public  Services  (Reservation)
for Scheduled Casts and Scheduled Tribes and  Other  Backward  Classes  Act,
1994 (hereinafter referred to as  "the  Reservation  Act  of  1994"),  there
should have  been  express  adoption  of  only  orders  pertaining  to  such
reservation passed by the Government  and  not  the  Act  itself.  The  said
contention of learned Senior Counsel was based upon  the  specific  contents
of Rule 7 of the Rules. The learned Senior Counsel then  contended  that  in
order to apply the rule of reservation under Rule 7, the High  Court  should
adopt such Order pertaining to reservation and according to  the  appellants
there was no  adoption  of  either  any  of  the  order  of  the  Government
providing for reservation or the application of the Reservation Act of  1994
itself as claimed by the High Court. It was then contended  that  the  claim
of the High Court that the High Court adopted the rule of reservation  under
Rule 7 was not true. It was lastly contended that assuming  the  High  Court
was correct in claiming that the whole of the Reservation  Act  was  adopted
by  it  then  Section  3(2)  of  the  Reservation  Act  was   violated   and
consequently the filling up of the unfilled posts of direct recruits of  the
year 2009 by way of promotion of 'in service candidates' was  liable  to  be
set aside. In support of his  submissions,  learned  Senior  Counsel  relied
upon the Constitution Bench decision of this  Court  reported  in  State  of
Bihar and Another v. Bal Mukund Sah & Others - (2000) 4  SCC  640  (CB),  as
well as the decisions reported in Ashok Pal Singh & Ors.  v.  Uttar  Pradesh
Judicial Services Association & Ors.- (2010) 12 SCC 635,  State  of  U.P.  &
Anr. v. Johri Mal - (2004) 4 SCC 714, Union of  India  v.  Naveen  Jindal  &
Anr. - (2004) 2 SCC 510 and Sri Dwarka Nath Tewari & Ors. v. State of  Bihar
& Ors. - AIR 1959 SC 249 (CB).

As  against  the  above  submissions  Mr.  Raghvendra  Shrivastava,  learned
standing counsel for the High Court submitted that the  appellants  have  no
locus to challenge the appointments made to the  posts  meant  for  reserved
category, that under Article 13(3) of the Constitution, a law would  include
inter alia an Act, rules, regulations and  orders  of  the  Government  and,
therefore, the adoption of the whole of the  Reservation  Act  by  the  High
Court cannot be faulted. He placed reliance upon the decision of this  Court
reported as R.K. Sabharwal & Ors. v. State of Punjab & Ors. - (1995)  2  SCC
745 and Pashupati Nath Sukul v. Nem Chandra Jain & Ors. - (1984) 2 SCC  404.
According to learned  standing  counsel,  as  per  the  proceedings  of  the
Selection Committee meeting, which was also approved by the Full Court,  the
Reservation Act on the whole was adopted in accordance with Rule  7  of  the
Rules and, therefore, the action of the  High  Court  could  not  have  been
challenged. The learned standing counsel by referring to an order passed  by
this Court in the earlier  round  in  I.A.  No.87  of  2010  contended  that
applying Section 3(2) of the Reservation Act and as directed by  this  Court
in the said order, selection was again held in the same year to  fill  those
unfilled reserved vacancies and as in that process  also,  the  seats  could
not be filled up,  the  High  Court  invoked  Rule  8(2)  of  the  Rules  by
promoting the 'in service  candidates'  to  those  unfilled  vacancies.  The
learned standing counsel further contended that the  proviso  to  Rule  8(2)
was strictly followed and those  vacancies  of  the  year  2009  which  were
filled up from 'in service candidates' were subsequently carried forward  in
the subsequent years as reserved category vacancies.  The  learned  counsel,
therefore, contended that there was no  violation  in  the  appointment  and
filling up of Direct Recruit District Judge posts of the year  2009  and  no
interference is called for by this Court.

Having heard learned counsel for the respective parties, the questions  that
arise for consideration in these appeals are as under:
Whether the appellants have the locus standi to challenge  the  appointments
made by the High Court in the filling up of the unfilled  vacancies  of  the
reserved categories in the Direct Recruitment Posts by way of  promotion  of
the 'in service candidates'?

Whether the High Court could have validly adopted  the  Reservation  Act  of
1994 by relying upon Rule 7 of the High Court Rules?

Whether the Reservation Act of 1994 or any of the order  of  the  Government
providing for reservation was validly adopted by the High Court  as  claimed
by it?

While filling up the unfilled posts of direct recruit vacancies  by  way  of
promotion under Rule 8(2), did the  High  Court  fall  into  errors  in  not
considering the appellants  who  were  the  successful  candidates  and  who
hailed from the very same source,  namely,  direct  recruitment,  who  alone
were eligible to be considered in the first instance even as per Rule 8(2)?

Assuming the Reservation Act of 1994 was validly adopted by the High  Court,
yet by ignoring Section 3(2) of the said Act, was the High  Court  justified
in filling up the posts by way of promotion of 'in service candidates'?

As far as the first question is concerned, namely, about the  locus  of  the
appellants which was raised at the instance of learned standing counsel  for
the High Court, it was contended that the  appellants  belonged  to  general
category and the posts which were  filled  up  were  all  reserved  category
posts and, therefore, appellants had no locus to  challenge  the  action  of
the High Court. In support of the said contention, reliance was placed  upon
the Constitution Bench judgment of this Court  reported  in  R.K.  Sabharwal
(supra).  In paragraph  4,  this  Court  held  that  when  a  percentage  of
reservation  is  fixed  in  respect  of  particular  cadre,  the  fact  that
considerable number of reserved category candidates  got  appointed  against
the general  category,  the  given  percentage  of  reservation  has  to  be
provided in addition. By relying upon the said ratio  of  the  judgment,  it
was contended that the appellants had no locus.

When we test the contention of the learned standing counsel,  it  will  have
to be pointed out that the challenge in the writ petition  before  the  High
Court was to the appointment made to  the  unfilled  vacancies  of  'reserve
category' posts by way of promotion of 'in service candidates' in  violation
of Rule 8(2) of the  Rules.  The  contention  was  that  while  making  such
appointments by way of promotion, the  High  Court  ignored  the  successful
candidates who competed in the 'direct recruit' source though they  belonged
to the general category.  The challenge was on the  ground  that  since  the
source  of  recruitment  was  direct  recruitment,  unless  the   candidates
available in the direct recruitment source  were  considered  in  the  first
instance for appointment, the High Court could not have resorted to  filling
up of those posts by way of promotion of 'in service candidates'.  In  fact,
it is not the stand of  the  High  Court  that  the  posts  in  the  reserve
category were kept intact for being  considered  by  way  of  selection  and
appointment from the reserve category candidates as provided  under  Section
3(2) of the Reservation Act of 1994.  A  glance  of  Section  3(2)  for  the
present purpose, would show that in the event of inability to  fill  up  the
reserved category posts, the process of selection  should  be  continued  in
the very same year  in  which  the  selection  was  earlier  made  and  even
thereafter if it remained unfilled, the post should be kept vacant  for  the
future years of recruitments. Since the High Court has not adopted the  said
procedure except making an attempt to fill up by way of  selection  in  that
year itself as directed by this Court in I.A. No.87  of  2010,  it  must  be
stated that there was every scope to contend that the  procedure  prescribed
under Section 3(2) of the Reservation Act of 1994 was not  strictly  adhered
to. Whether Section 3(2) will be applicable at all  is  one  other  question
involved in this appeal with which we will make a detailed consideration  at
an appropriate stage.

In the above stated background, when we examine the  contention  of  learned
standing counsel for the High Court as regards the locus of the  appellants,
it must be stated  that  a  larger  issue  as  to  the  entitlement  of  the
appellants as successful candidates belonging to 'direct recruit' source  to
seek appointment to the unfilled posts of that very source, namely,  'direct
recruit' though belonging to reserved  category,  merits  consideration  and
would not disentitle the appellants to raise a  challenge  as  made  in  the
writ petition. If the appellants are able to make out a  case  on  the  said
contention, it will have to be stated that their challenge  to  the  filling
up of the posts as  made  by  the  High  Court  by  adopting  the  procedure
prescribed under Rule 8(2) can be validly raised as a  point  of  challenge.
Consequently, it will have to be held that the appellants  had  every  locus
to challenge the appointment made by the High Court by  invoking  Rule  8(2)
of the Rules. In the light of the above special features in  this  case,  we
do not find any scope to apply the decision relied upon by  learned  counsel
for the High Court which stands on entirely different principle.

While examining this contention based on Rule 7 as well as Rule 8(2) of  the
Rules of the High Court, we feel it appropriate to refer to  a  Constitution
Bench decision of this Court reported in State of Bihar v.  Bal  Mukund  Sah
(supra) and Ashok Pal Singh (supra). In  the  Constitution  Bench  decision,
the question which was posed for consideration was "whether the  Legislature
of  the  appellant  State  of  Bihar  was  competent  to  enact  the   Bihar
Reservation of Vacancies  in  Posts  and  Services  (for  Scheduled  Castes,
Scheduled  Tribes  and  Other  Backward  Classes)  Act,  1991   (hereinafter
referred to as "the Act"), insofar as Section 4  thereof  sought  to  impose
reservation for direct recruitment to the posts  in  the  Judiciary  of  the
State, subordinate to the High Court of Patna, being the posts  of  District
Judges as well as the posts in the lower judiciary at the grass-root  level,
governed by the provisions  of  the  Bihar  Judicial  Service  (Recruitment)
Rules, 1955. Civil Appeal  No.9072  of  1996  deals  with  the  question  of
reservation in the posts in  the  District  Judiciary  while  the  companion
appeal deals with the posts  in  the  Subordinate  Judiciary  at  grass-root
level under the District Courts concerned......"

While dealing with the said contention, the points  for  determination  were
formulated in paragraph 17 which reads as under:
"17. In the light of the aforesaid rival contentions, the  following  points
arise for our determination:

[pic] 1. Whether the impugned Act of 1991 on  its  express  language  covers
"Judicial Service" of Bihar State.
2. If the answer to Point 1 is in the affirmative,  whether  the  provisions
of the impugned Act, especially, Section 4 thereof  in  its  application  to
the Subordinate Judiciary would be ultra vires Articles 233 and 234  of  the
Constitution of India and hence cannot be sustained.
3. In the alternative, whether the  aforesaid  provisions  of  the  Act  are
required to be read down by holding that Section  4  of  the  Act  will  not
apply to direct recruitment to the posts comprised  in  the  Bihar  Superior
Judicial Service  as  specified  in  the  Schedule  to  the  Bihar  Superior
Judicial Service Rules, 1951 as  well  as  to  the  Bihar  Judicial  Service
governed  by  the  Bihar  Judicial  Service   (Recruitment)   Rules,   1955,
comprising of the  posts  of  Subordinate  Judges  and  Munsiffs  under  the
District Judiciary.
4. What final order.
Before we deal with the aforesaid  points  for  determination,  it  will  be
necessary to keep in view the relevant provisions of the Constitution  which
have a direct impact on the  resolution  of  the  controversy  projected  by
these points."


On point number one, the Constitution  Bench  took  the  view  as  under  in
paragraph 27:
"27......On the aforesaid scheme of the Act, the High Court in the  impugned
judgment, has taken the view that the operation of Section 4 for offices  or
departments of the Judiciary of the State of  Bihar  would  cover  only  the
Ministerial  Staff  of  the   District   Courts   and   courts   subordinate
[pic]thereto  and  would  not  include  Presiding  Officers  and  therefore,
Section 4 will not govern the direct recruitment to the posts  of  Presiding
Officers of the District Judiciary as well as of the Subordinate  Judiciary.
It is difficult  to  appreciate  this  line  of  reasoning  on  the  express
language of the relevant provisions of Section 4 read  with  the  definition
provisions. It becomes obvious that the term "any office" of  the  Judiciary
of the State of Bihar would naturally include  not  only  Ministerial  Staff
but also officers, including Presiding Officers of courts comprised  in  the
Judiciary of the State. Once that  conclusion  is  reached  on  the  express
language of the relevant provisions of the Act, it cannot be held  that  the
thrust of Section 4  would  not  apply  to  govern  reservation  for  direct
recruitment to the posts of Presiding Officers in  the  District  Courts  as
well as courts subordinate thereto, as  all  of  them  will  form  part  and
parcel of the Judiciary of the State of Bihar and will have  to  be  treated
as holders of offices in  the  State  Judiciary.  Consequently,  it  is  not
possible to agree with  the  contention  of  learned  Senior  Counsel,  Shri
Thakur for the High Court  that  on  the  express  provisions  of  the  Act,
Section 4 cannot apply to govern recruitment to  posts  in  the  Subordinate
Judiciary. The first point for determination, therefore, has to be  answered
in  the  affirmative  in  favour  of  the   appellants   and   against   the
respondents."




On point number two, the position was stated as under in paragraphs  30,  31
and 32:
30. It has also to be kept in view that neither Article 233 nor Article  234
contains any provision of being subject to any enactment by the  appropriate
Legislature as we find in Articles 98, 146, 148,  187,  229(2)  and  324(5).
These latter Articles contain provisions regarding the rule-making power  of
[pic]the authorities concerned subject to the provisions of the law made  by
Parliament or the Legislature. Such a provision is conspicuously  absent  in
Articles 233 and 234 of the Constitution of  India.  Therefore,  it  is  not
possible to agree with the contention of learned counsel for  the  appellant
State that these Articles only  deal  with  the  rule-making  power  of  the
Governor,  but  do  not  touch  the  legislative  power  of  the   competent
Legislature. It has to be kept in view that once the  Constitution  provides
a complete code for regulating recruitment and appointment to  the  District
Judiciary and to the Subordinate  Judiciary,  it  gets  insulated  from  the
interference of any other outside agency.  We  have  to  keep  in  view  the
scheme of the Constitution and its basic framework that  the  Executive  has
to be separated from the Judiciary. Hence, the general sweep of Article  309
has to be read subject  to  this  complete  code  regarding  appointment  of
District Judges and Judges in the Subordinate Judiciary.

31. In this connection, we have also to keep in view Article 245  which,  in
its express terms, is made subject to other provisions of  the  Constitution
which would include Articles  233  and  234.  Consequently,  as  these  twin
Articles cover the entire field regarding  recruitment  and  appointment  of
District Judges and Judges of the Subordinate Judiciary at  base  level  pro
tanto the otherwise paramount legislative power of the State Legislature  to
operate in this field clearly gets excluded  by  the  constitutional  scheme
itself. Thus both Articles 309 and 245 will  have  to  be  read  subject  to
Articles 233 and 234 as provided in the former articles themselves.

32. It is true, as submitted by learned Senior  Counsel,  Shri  Dwivedi  for
the appellant State that  under  Article  16(4)  the  State  is  enabled  to
provide for reservations in services. But so far as  "Judicial  Service"  is
concerned, such reservation can be made by the Governor, in exercise of  his
rule-making  power  only  after  consultation  with  the  High  Court.   The
enactment of any statutory  provision  dehors  consultation  with  the  High
Court for regulating the recruitment to the District Judiciary  and  to  the
Subordinate Judiciary will clearly fly in the face of  the  complete  scheme
of  recruitment  and  appointment  to  the  Subordinate  Judiciary  and  the
exclusive field earmarked in connection with such appointments  by  Articles
233 and 234. It is not as if  that  the  High  Courts  being  constitutional
functionaries may be oblivious of the need for a scheme  of  reservation  if
necessary in appropriate cases by resorting to the enabling provision  under
Article 16(4). The High  Courts  can  get  consulted  by  the  Governor  for
framing appropriate rules regarding reservation  for  governing  recruitment
under Articles 233 and 234. But so long as it is not done,  the  Legislature
cannot, by an indirect method,  completely  bypassing  the  High  Court  and
exercising its legislative power, circumvent and cut across the very  scheme
of recruitment and appointment to the District  Judiciary  as  envisaged  by
the makers of the Constitution. Such an exercise, apart from  being  totally
forbidden by the constitutional scheme, will also fall foul on  the  concept
relating to "separation of powers between  the  Legislature,  the  Executive
and the Judiciary" as well as the fundamental  concept  of  an  "independent
Judiciary". Both these concepts are now elevated [pic]to the level of  basic
structure of the Constitution and are the very heart of  the  constitutional
scheme."
                                                            (Emphasis added)



Ultimately by referring to the Constitutional mandate of  Articles  233  and
234, it was held as under in paragraph 38:
"38. Shri Dwivedi, learned Senior Counsel for the appellant State was  right
when he contended that Article 16(4) is  an  enabling  provision  permitting
the State to lay down a scheme of reservation  in  State  services.  It  may
also be true that Judicial Service can also be considered to be  a  part  of
such service as laid down by this Court in the case of B.S. Yadav.  However,
so far as the question of  exercising  that  enabling  power  under  Article
16(4) for laying down an appropriate scheme of  reservation  goes,  as  seen
earlier, we cannot be oblivious of the fact that the High Court,  being  the
high  constitutional  functionary,  would  also  be  alive  to  its   social
obligations  and  the  constitutional  guideline  for  having  a  scheme  of
reservation to ameliorate the lot of deprived reserved categories  like  SC,
ST and Other Backward Classes. But for that purpose, the  Governor  can,  in
consultation with the High Court, make appropriate rules and provide  for  a
scheme of reservation for appointments at grass-root level or  even  at  the
highest level of the District Judiciary, but so long as this  is  not  done,
the State Legislature  cannot,  by  upsetting  the  entire  apple  cart  and
totally bypassing the constitutional mandate of Articles  233  and  234  and
without being required to consult the  High  Court,  lay  down  a  statutory
scheme  of  reservation  as  a  roadroller  straitjacket  formula  uniformly
governing all State  services,  including  the  Judiciary.  It  is  easy  to
visualise that the  High  Court  may,  on  being  properly  and  effectively
consulted, endorse the Governor's view to enact a provision  of  reservation
and lay down the percentage of reservation  in  the  Judicial  Service,  for
which it will be the appropriate authority to suggest  appropriate  measures
and the required percentage of reservation, keeping in view  the  thrust  of
Article 335 which requires the consideration of the claim of members of  SC,
ST  and  OBC  for  reservation  in  services  to  be  consistent  with   the
maintenance of efficiency of administration. It is obvious that  maintenance
of efficiency of judicial administration is entirely within the control  and
jurisdiction of the High Court as  laid  down  by  Article  235.  The  State
Legislature, on  its  own,  would  obviously  lack  the  expertise  and  the
knowledge based on experience of judicial administration which is  possessed
by the High Court. Consequently, bypassing the High  Court,  it  cannot,  in
exercise of its supposed paramount  legislative  power  enact  any  rule  of
thumb and provide a fixed percentage of reservation for  SC,  ST  and  Other
Backward Classes in Judicial Services and also lay down  detailed  procedure
to be followed as laid down by sub-sections (3) to  (6)  of  Section  4  for
effecting such statutorily fixed 50% reservation. It is  easy  to  visualise
that if the High Court is not consulted and obviously  cannot  be  consulted
while enacting any law by the State Legislature and en bloc 50%  reservation
is provided in the Judicial Service as is sought to be done by Section 4  of
the Act and which would automatically operate and  would  present  the  High
Court with a fait accompli, it would be deprived of  the  right  to  suggest
during the constitutionally guaranteed consultative process, by way  of  its
own expertise that for maintenance of efficiency of  administration  in  the
[pic]Judicial  Service  controlled  by  it,  50%  reservation  may  not   be
required, and/or an even lesser percentage may be required or even  may  not
be required at all. Even that opportunity will not be available to the  High
Court if it is held  that  the  State  Legislature  can  enact  the  law  of
reservation and make it automatically applicable  to  the  Judicial  Service
bypassing the High Court completely. Such an exercise  vehemently  canvassed
for our approval by learned Senior Counsel for the  appellant  State  cannot
be countenanced on the express scheme of the Constitution, as  discussed  by
us earlier. Even proceeding on the basis that the scheme  of  Article  16(1)
read with Article 16(4) may be treated to be forming a  part  of  the  basic
feature of the Constitution, it has to be appreciated that  for  fructifying
such a constitutional scheme Article 335 has to  be  kept  in  view  by  the
authority concerned before such a scheme of reservation can be  promulgated.
Once Article 335 has to be given its full play while enacting such a  scheme
of reservation, the High Court, entrusted  with  the  full  control  of  the
Subordinate Judiciary as per Article 235 by the Constitution, has got to  be
consulted and cannot be treated to be a stranger to  the  said  exercise  as
envisaged by the impugned statutory provision.
                                                            (Emphasis added)



While thus highlighting the basic features of the Constitution  which  aimed
at preserving the independence of judiciary as mandated in Articles  233  to
235 of the Constitution, this Court had the occasion to deal with the  Rules
of the High Court in the subsequent decision reported  in  Ashok  Pal  Singh
(supra). In the said decision, the points for consideration  have  been  set
out in paragraph  16  and  what  are  relevant  for  our  purpose  are  sub-
paragraphs (ii), (iii) and (iv) which reads as under:
"16.(ii) Whether the direct recruits are entitled to 15%  of  the  vacancies
as a fixed quota or whether the said percentage  is  a  ceiling  imposed  in
regard to direct recruitment meaning that the  vacant  posts  shall  not  be
filled up more than 15% by the direct recruits?

(iii) Whether the  words  "15%  of  the  total  permanent  strength  of  the
service" occurring in the first proviso to sub-rule (2) of  Rule  8  of  the
unamended Rules (as contrasted from "15% of the  strength  of  the  service"
after the amendment), shall be given  effect  in  computing  the  respective
quotas of promotees and direct recruits till  the  amendment  of  the  Rules
(effective from 15-3-1996) deleting the word "permanent" in the  said  first
proviso?

(iv) Whether the procedure of carrying  forward  vacancies  adopted  by  the
Full Court of the High Court is erroneous  having  regard  to  the  specific
provisions of Rule 8(2) and Direction (3) issued by this Court in  Sri  Kant
Tripathi?"







While dealing with the said questions, this  Court  has  held  as  under  in
paragraphs 28 and 40:
"28. To conclude, the following clear indicators  show  that  the  quota  of
direct recruits is "15%" and not "up to 15%":
(a) Rule 6 uses the words "15% of the vacancies"  as  the  quota  of  direct
recruits and does not use the words "not more than 15% of the vacancies".
(b) The purpose and intent of Rule 8(2) is  not  to  dilute  or  change  the
quota of direct recruits. Its object is to ensure that  no  vacancy  remains
unfilled for want of adequate number of  direct  recruits  under  their  15%
[pic]quota. This is because there are reasonable chances of adequate  number
of candidates being not available for direct  recruitment,  whereas  usually
sufficient number of candidates will be available for promotion.  The  first
proviso to Rule 8(2) ensures that the shortfall  in  15%  quota  for  direct
recruits in any recruitment does not get permanently converted  to  promotee
quota, by providing that the shortfall  shall  be  made  good  at  the  next
recruitment. The words "does not  in  any  case  exceed  15%"  are  used  to
further ensure that while making good the shortfall of  direct  recruits  at
the next recruitment, the direct recruits do not encroach upon the quota  of
promotees.
(c) The provision for appointment to the service by rotational system  [that
is Rule 22(2) providing that the first vacancy to be filled  from  the  list
of Nyayik Sewa Officers and the second vacancy to be filled  from  the  list
of direct recruits and so on], makes it clear that  the  overall  scheme  of
the Rules is to provide a clear 15% quota for direct recruits.


40.......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 recruitment vacancies in the  manner
stated in Rule 8(2) and the first proviso thereto." (Emphasis added)

Since the Constitution Bench  of  this  Court  has  dealt  with  the  larger
question as to how the constitutional  mandate  as  provided  under  Article
16(1) and (4) qua Article 335 on the one hand and Articles  233  to  235  on
the other is to be reconciled  made  it  clear  that  while  the  scheme  of
Article 16(1) read with Article 16(4) may be treated to be forming  part  of
the basic feature of the  Constitution,  by  Articles  233  to  235  of  the
Constitution, full control of the judiciary having been entrusted  with  the
High Court is also equally a basic feature of the Constitution and both  can
be reconciled only by way of a consultation of the Governor  with  the  High
Court  and  by  making  appropriate  rules  to  provide  for  a  scheme   of
reservation  and  unless  such  a  provision  is  made  by   following   the
constitutional scheme under Articles 233 to  235,  it  would  be  well-neigh
possible to thrust upon the rule of reservation  by  the  State  Legislature
even by way of a legislation.  Inasmuch as the Constitution Bench has  dealt
with this vital issue in an elaborate manner and laid  down  the  principles
relating to application of reservation in the matter of appointments  to  be
made to the post of direct recruit District Judges, in  fitness  of  things,
it will be profitable for us  to  note  the  salient  principles  laid  down
therein as that would throw much  light  for  us  to  resolve  the  question
raised in these appeals.

Such principles can be culled out and stated as under:
Neither Article 233 nor Article 234 contain any provision of  being  subject
to any enactment by the appropriate legislature as is  provided  in  certain
other Articles of the Constitution.

Articles 233 and 234 of the Constitution are not subject to  the  provisions
of law made by the Parliament or the Legislature as  no  such  provision  is
found in Articles 233 and 234 of the Constitution.

Articles 233 to 235 provide a complete code for regulating  recruitment  and
appointment to the District Judiciary  and  the  subordinate  judiciary  and
thereby it gets insulated from interference of any other outside agency.

The general sweep of Article 309 has to be  read  subject  to  the  complete
code regarding appointment of District Judges and Judges in the  subordinate
judiciary governed by Articles 233 and 234.

Even under Article 245, it is specifically provided that the same  would  be
subject  to  other  provisions  of  the  Constitution  which  would  include
Articles 233 and 234.

As  the  twin  Articles  cover  entire  field  regarding   recruitment   and
appointment of District Judges and Judges in the  subordinate  judiciary  at
base level pro tanto the otherwise  paramount  legislative  power  of  State
Legislature  to  operate  in  this  field  clearly  gets  excluded  by   the
constitutional scheme itself.

Both Articles 309 and 245 will have to be read subject to Articles  233  and
234 as provided in the former Articles themselves.

Though  under  Article  16  (4),  the  state  is  enabled  to  provide   for
reservations in services, insofar as  judicial  service  is  concerned  such
reservation can be made by the government in exercise  of  its  rule  making
power only after consultation with the High Court.

The enactment of any statutory provision de hors consultation with the  High
Court for regulating the recruitment  to  the  District  Judiciary  and  the
subordinate judiciary will clearly fly in the face  of  complete  scheme  of
recruitment and appointment to the subordinate judiciary and  the  exclusive
field earmarked in connection with such appointments under Articles 233  and
234.

Realising the need for a scheme  of  reservation  in  appropriate  cases  by
resorting to the enabling provision under Article 16(4), the High Court  can
be consulted by the  Government  for  framing  appropriate  rules  regarding
reservation for governing recruitment under Articles 233  and  234.  But  so
long as it is not  done,  the  legislature  cannot  by  an  indirect  method
completely bypass the High Court and by  exercising  its  legislative  power
circumvent and cut across the very scheme of recruitment and appointment  to
the District Judiciary as envisaged by the makers of the Constitution.

Any  such  attempt  by  the  legislature   would   be   forbidden   by   the
constitutional  scheme  as  that  was  found  on  the  concept  relating  to
separation  of  powers  between  the  legislature,  the  executive  and  the
judiciary as well as the fundamental concept of an independent judiciary  as
both the concepts having been elevated to the level of  basic  structure  of
the Constitution and are the very heart of the Constitution scheme.

Having regard to Article 16(4), the High Court being a  high  constitutional
functionary  would  also  be  alive  to  its  social  obligations  and   the
constitutional guideline for having a scheme of  reservation  to  ameliorate
the lot of deprived reserved categories like SC, ST and OBC.  But  for  that
the Governor in consultation with High Court should make  appropriate  rules
and provide for a scheme of  reservation  for  appointments  at  grass  root
level and even at the highest level of District Judiciary. If that  was  not
done, the State Legislature cannot  upset  the  entire  apple  cart  and  by
bypassing the constitutional mandate of Articles 233  and  234  lay  down  a
statutory scheme of  reservation  governing  all  state  services  including
judiciary.

Even in that respect  it  is  obvious  that  maintenance  of  efficiency  of
judicial administration is entirely within the control and  jurisdiction  of
High Court as laid down by Article 235.

If the proper course of formulating the scheme in the form of a rule by  the
High Court to provide for reservation is not made,  that  would  deprive  of
the right to suggest the consultative process by way of  its  own  expertise
that for  maintenance  of  the  efficiency  of  administration  of  judicial
service controlled by it 50% reservation may  not  be  required  and/or  and
even lesser reservation may be required or even may not be required at  all.


To give Article 335 its full play for enacting a scheme of reservation,  the
High Court entrusted with the full control of the subordinate  judiciary  as
per Article 235 of the Constitution has got to be consulted  and  cannot  be
treated to be a stranger to the said service by trying to  apply  the  whole
of the Reservation Act.

Having noted the above salient principles  laid  down  in  the  Constitution
Bench decision, when we refer to the subsequent decision reported  in  Ashok
Pal Singh (supra) wherein this very Rule 8(2)  came  up  for  consideration,
this Court has held that the purpose and intent  of  Rule  8(2)  is  not  to
dilute or change the quota of direct recruits.  It also made it  clear  that
its object must be to ensure that though vacancy remained unfilled for  want
of adequate number of direct recruits under 15% quota, it  also  highlighted
that the first proviso to Rule 8(2) would ensure that any shortfall  in  15%
quota for direct recruit in any recruitment cannot be permanently  converted
to promotee quota and that such a short fall should  be  made  good  in  the
next recruitment.  In other words, it will be a  limited  carrying  over  of
unfilled direct recruitment vacancies in the manner set  out  in  Rule  8(2)
and the first proviso thereto.

Keeping the above principles in mind, we go  to  the  next  contention.  The
next contention of the appellants is  whether  the  High  Court  could  have
validly adopted the Reservation Act, 1994 by relying  upon  Rule  7  of  the
High Court Rules.  To appreciate the said contention, Rule 7 requires to  be
noted, which reads as under:

"Rule 7. Reservation of posts for  Scheduled  Caste,  etc.-  Reservation  to
posts in the service for the members  of  the  Scheduled  Castes,  Scheduled
Tribes and other categories including women  shall  be  in  accordance  with
orders of the Government for reservation as adopted by the High Court.

Provided that twenty percent horizontal reservation for women  to  posts  in
service in direct recruitment from Bar  in  Uttar  Pradesh  Higher  Judicial
Service shall be subject to suitability i.e. if  the  sufficient  number  of
women candidates is not available, then and in that event,  the  reservation
shall not have any operation to the extent of such unavailability.

Provided further that there shall be no carry  forward  of  reservation  for
women."

A reading of the said Rule makes it clear that application of  the  rule  of
reservation  is  permissible  under  the  High  Court  Rules  provided  such
reservation is in accordance with government orders as adopted by  the  High
Court.  At present we are not  concerned  with  the  nature  of  reservation
specified in the proviso to the said Rule.  We are only concerned  with  the
validity of rule of reservation in the Higher Judicial Service of  the  High
Court.  When we meticulously consider the said rule, we will have  to  state
that such reservation of posts should be in accordance with  the  orders  of
the government as adopted by the High Court.  The contention of the  learned
senior counsel for the appellants was that in Rule 7  what  was  permissible
by way of adoption was only the orders of  the  Government  prescribing  the
extent of reservation for  various  categories  such  as  Scheduled  Castes,
Scheduled Tribes including women.  In that context, the learned  counsel  in
the first instance made a reference to what was the position  prior  to  the
present selection viz., 2009.  The learned senior counsel referred  to  Rule
7 as it previously existed.  The  un-amended  Rule  can  also  be  noted  by
extracting the same, which was as under:
"Rule 7. Reservation of posts  for  Scheduled  Caste  etc.-  Reservation  to
posts in the Service for Members of the Scheduled Castes,  Scheduled  Tribes
and others shall be in accordance with the  orders  of  the  Government  for
reservation in force at the time of recruitment."

Appendix 'B' which was part of un-amended rule was the  Official  Memorandum
of  the  Uttar  Pradesh  Government  Recruitment  Department  -   4,   dated
18.07.1972.  The relevant part of the said Appendix 'B' with  which  we  are
concerned is as under:
"Hence, the government has reconsidered all the questions in respect of  the
reservation and has taken the following decisions:
1. In any service by direct recruitment, upon including the carried  forward
reserved vacancies, if any, the reservation shall not be more than total  of
50%.
2. In all the services, there  will  be  18%  and  2%  reservation  for  the
Scheduled Castes and Scheduled Tribes, respectively  but  for  the  Class  3
clerical  services  and  Class  4  service,  there  will  be  25%  and   36%
reservation respectively, for the Scheduled Castes, until when  their  quota
of 18% is not completed in these services."

By referring to the said rules which prevailed prior to the  amendment,  Mr.
Dwivedi, learned senior counsel contended that  as  the  High  Court  having
understood the extent to which the rule of reservation can  be  adopted,  as
could be seen from the un-amended Rule  by  which  the  relevant  Government
Order  prescribed  the  extent  of  reservation  for  Scheduled  Castes  and
Scheduled Tribes etc., was specifically adopted  by  way  of  Appendix  'B'.
The Government order itself was annexed  as  Appendix  'B'  to  Rule  7  and
thereby, there was no scope  for  any  controversy.   According  to  learned
counsel similar such method  should  have  been  followed  if  the  rule  of
reservation is to be applied.

According to the learned senior counsel, after Rule 7 was amended, when  the
Rule specifically stated that it would be in order for  the  High  Court  to
apply  the  rule  of  reservation  in  accordance  with  the  order  of  the
Government  as  adopted  by  the  High  Court,  the  extent  to  which   any
application of rule of reservation could have been only by way  of  adoption
of any order of the Government of Uttar  Pradesh  prescribing  the  rule  of
reservation and not the adoption of the  whole  of  Reservation  Act,  1994.
The learned senior counsel, therefore, contended that the High  Court  could
not have validly adopted the Reservation Act, 1994 by  applying  Rule  7  of
the High Court Rules.

Though in the first blush, such a contention of the learned  senior  counsel
appears to be appealing, on a deeper scrutiny, it must be  stated  that  the
said contention cannot be countenanced.  It is  true  that  in  the  present
Rule 7 also it is specifically  mentioned  that  adoption  of  the  rule  of
reservation can be made in accordance with the 'orders  of  the  Government'
as adopted by the High Court.  It must be stated, at the very  outset,  that
it is not the case of the appellants that there were any specific orders  of
the Government  providing  for  the  extent  of  reservation  for  different
categories, in particular, for Scheduled Castes, Scheduled Tribes and  Other
Backward Classes. No such specific Government order was either  referred  to
or relied upon before the High Court. No such orders were  also  brought  to
our notice to support the said contention.

Be that as it may, as far as the High Court was  concerned,  the  stand  was
that the entirety of the Reservation Act, 1994 was adopted  and,  therefore,
whatever stipulations contained in  the  Act  relating  to  reservation  was
applicable  as  adopted.  It  will  be  relevant  to  note  the  extent   of
reservation provided after  the  Reservation  Act,  1994  came  into  force.
Section 3(1) of the said Act with the relevant provisos is relevant for  our
purpose which reads as under:
"3(1) Reservation in favour of Scheduled Castes, Scheduled Tribes and  Other
Backward Classes- (1) In public services and posts, there shall be  reserved
at the stage of direct recruitment, the following  percentage  of  vacancies
to which recruitments are to be made in accordance with the roster  referred
to in sub-section (5) in  favour  of  the  persons  belonging  to  Scheduled
Castes, Scheduled Tribes and Other Backward Classes of citizens,-
(a) in the case of Scheduled Castes          Twenty one per
cent;
(b) in the case of Scheduled Tribes          Two per cent;
(c) in case of Other Backward Classes
Of citizens                  Twenty seven per
cent:
Provided that the reservation under  clause  (c)  shall  not  apply  to  the
category of Other Backward Classes of citizens specified in Schedule II:

Provided further  that  reservation  of  vacancies  for  all  categories  of
persons shall not exceed in any year of recruitment fifty per  cent  of  the
total vacancies of that year as also fifty per cent of  the  cadre  strength
of the service to which the recruitment is to be made."

It must be  stated  that  what  was  provided  by  way  of  reservation  for
different categories including the Scheduled  Castes  and  Scheduled  Tribes
etc., prior to the coming into force of 1994 Act, has been brought  into  an
Act  by  way  of  substantive  provision  under  Section  3(1).   It   must,
therefore, be stated that what was provided in the form of Government  Order
prior to  the  Reservation  Act,  1994  apparently  appeared  to  have  been
specifically spelt out in Section 3(1) itself, by  providing  a  reservation
of 21% for Scheduled Castes, 2% for  Scheduled  Tribes  and  27%  for  Other
Backward  Class  citizens.   Therefore,  if  any  Department  of  the  State
including the High Court were to adopt the prescribed  rule  of  reservation
after the coming into force of the Reservation Act, 1994, such adoption  can
be only by way of adopting the relevant provision viz., Section 3(1) of  the
Act.  After the emergence of the Reservation Act, 1994, the  application  of
Rule 7 of the High Court rules can be only by way of adopting the  statutory
prescription contained in Section 3(1).  Therefore, it will have to be  held
that the High Court would be well in order in adopting  the  said  statutory
prescription contained in the  Reservation  Act  1994  for  the  purpose  of
complying with the rules of reservation.  We do not  find  any  other  scope
for the High Court to look for any  Government  order  for  the  purpose  of
applying  the  rule  of  reservation.  Further  when  Section  3(1)  of  the
Reservation Act, 1994 specifically provides for the  extent  of  reservation
for Scheduled Castes and Scheduled Tribes and Other Backward Classes in  the
matter of said services, there is  no  reason  why  the  High  Court  should
search for any other Government Order for the purpose of complying with  the
rules of reservation.

As was stated by us earlier, our  attention  was  not  drawn  to  any  other
Government Orders other than what  was  found  in  appendix  'B'  under  the
erstwhile Rule 7 which prescribes the rule of reservation or the  extent  of
reservation for Scheduled Castes and Scheduled  Tribes  and  Other  Backward
Classes in order to state that the High Court could have  only  adopted  any
such order and not looked for the Reservation Act 1994 for  the  purpose  of
applying the rule of reservation.  Therefore it  must  be  stated  that  the
High Court  was  well  justified  in  applying  the  extent  of  reservation
prescribed in the Reservation Act, 1994 by invoking the existing Rule  7  of
the High Court Rules. By relying upon the  judgment  reported  in  Pashupati
Nath Sukul (supra) para 13, the learned standing counsel for the High  Court
contended that when  the  expression  "Government"  under  the  Constitution
would include the Legislature, Executive  and  the  Judiciary  and  the  Act
passed by the Legislature should nonetheless be construed and  held  on  par
with the orders of the Government.  In support of the said  submission,  the
learned counsel also relied upon Article 13(3)(a)  of  the  Constitution  of
India, which states that the "law" would include any ordinance, order,  bye-
law,  rule,  regulation,  notification,  custom  or  usage  having  in   the
territory  of  India  the  force  of  law.   The  learned  standing  counsel
therefore  contended  that  as  per  Article  13(3)(a),  the  order  of  the
Government would include the laws of the State as  in  force  and  when  the
Reservation Act, 1994 is a law, it must be stated that such a law  can  very
well be held to be one which falls within the scope of  amended  Rule  7  of
the High Court Rules.

For the sake of argument, even if we  ignore  such  an  extended  contention
made on behalf of the High Court by relying upon  Article  13(3)(1)  of  the
Constitution,  we  are  convinced  that  having  regard  to   the   specific
prescription  providing  for  reservation  under   Section   3(1)   of   the
Reservation Act, 1994 and  there  being  no  other  specific  order  of  the
Government providing for reservation in any other manner and  as  stated  by
us no other specific order of  the  Government,  as  was  previously  issued
viz., the one dated 18.07.1972 after the emergence of  the  Reservation  Act
of 1994,  we  hold  that  for  all  practical  purposes  the  usage  of  the
expression 'order' in  Rule  7  is  only  referable  to  the  provision  for
reservation as contained in Section  3(1)  of  the  Reservation  Act,  1994.
Therefore if the said Act was adopted by the High Court in exercise  of  its
powers under Rule 7, that would be  sufficient  for  applying  the  rule  of
reservation. Therefore, we hold that in the event of valid adoption  of  the
rule of reservation of the Reservation Act of 1994  by  the  High  Court  by
exercising its power under Rule 7 of the High Court Rules the same would  be
valid and in accordance with law.

The next contention of the learned senior  counsel  for  the  appellants  is
that the High Court cannot be said to have  validly  adopted  the  provision
for reservation as provided under the Reservation Act of 1994  in  order  to
gain any advantage for applying the rule of reservation  with  reference  to
the recruitment made in the year 2009.

When we consider the said  question,  it  is  necessary  to  deal  with  the
grievance of the appellants as to the non-consideration of  their  stand  by
the Division Bench about there being no adoption of rule of  reservation  by
the High Court as provided in Rule 7 of  the  High  Court  Rules.   In  that
context, the learned senior counsel for the appellants referred  to  certain
earlier  orders  passed  by  the  High  Court.  While  expressing  the  said
grievance Mr.  Dwivedi,  the  learned  senior  counsel  for  the  appellants
brought to our notice the order passed by the Division  Bench  of  the  High
Court dated 21.12.2011,  02.01.2012  and  03.01.2012.  In  the  order  dated
21.12.2011, the Division Bench referred  to  the  stand  of  the  appellants
based on Section 3(2) & (3) of the Reservation Act,  1994  and  the  amended
Rule 7 of the High Court Rules to the effect  that  whatever  provision  for
reservation has been adopted earlier by the High  Court  would  alone  apply
and that vacancies of the direct recruit could not be carried  forward,  and
that the unfilled reserved category vacancies of the   direct recruit  could
be filled up from the general category candidates. The Division Bench  after
noticing the said submission also referred to the Full Court resolution  and
directed  the  High  Court  to  place  the   Full   Court   resolution   for
consideration on the next hearing  date.   Thereafter  in  the  order  dated
02.01.2012, the  excerpts  of  the  Full  Court  meeting  dated  09.01.2010,
containing the resolution on Agenda Item No.2 was taken  on  record  and  it
was further directed that the  report  dated  24.12.2009  and  supplementary
report dated  09.01.2010  along  with  the  note  dated  24.12.2009  of  the
Registrar (Selection  and  Appointment)  was  directed  to  be  produced  to
appreciate the arguments as to whether the carry forward  rule  was  adopted
by the High Court or not. But on  03.01.2012,  the  order  of  the  Division
Bench merely mentioned that the  matter  was  heard  and  the  judgment  was
reserved.

While referring to the above referred to proceedings of the  Division  Bench
of the High Court, the learned senior counsel  brought  to  our  notice  the
reference to proceedings of the  Full  Court  dated  11.12.2012,  which  was
relied upon by the Division Bench in the  impugned  judgment  and  contended
that such reliance was placed upon by the Division Bench without giving  due
opportunities to the appellants.

The learned senior counsel contended that the  appellants  were  unaware  of
any of the said resolutions passed by the  Full  Court  in  order  to  place
their  submissions  as  to  whether  such  Full  Court  proceedings   really
fulfilled the requirements of valid adoption of the rule of  reservation  as
stipulated in Rule 7 of the High Court Rules.

Initially, when we heard  the  Special  Leave  Petitions,  we  directed  the
learned standing counsel appearing for the High Court  by  our  order  dated
28.10.2014 after taking note of the stand of the  learned  standing  counsel
for the High Court that on 10.04.2004  by  the  Full  Court  Resolution  the
report of a Committee constituted earlier to provide for reservation in  the
appointment of various posts in the subordinate judiciary was  accepted,  we
directed the High Court to place it before us.  The  appellants  were  given
time to examine the said report filed before this Court for the  first  time
on behalf of the High Court and thereafter make the submissions.

Subsequently, when these appeals came up  for  hearing  on  05.11.2014,  Mr.
Ashok Srivastava learned standing counsel for the  High  Court  offered  his
apologies for not filing the  proper  proceedings  of  the  High  Court  and
contended that he would file the relevant documents by  which  the  rule  of
reservation was accepted and adopted by the High Court  in  the  Full  Court
proceedings and sought for time.  We could have  very  well  set  aside  the
order of the Division Bench and remanded the matter back to the  High  Court
for consideration of the said issue on merits after giving  due  opportunity
to both the parties.  Since  the  issue  pertains  to  the  recruitment  and
appointment of candidates  to  Higher  Judicial  Service  of  the  vacancies
notified in the year 2009, we thought it fit to direct the learned  standing
counsel for the High Court to produce the  relevant  proceedings  before  us
with a view to give full fledged opportunity for the learned senior  counsel
for the appellants to make his submission based on any such  materials  that
may be placed before us in order to decide the issue once  and  for  all  in
these proceedings.  We, therefore, directed  the  learned  standing  counsel
for the High Court to file necessary affidavit along with the  documents  by
serving advance copies on the counsel for the appellants.

Pursuant to our orders, the High Court filed its affidavit sworn to  by  the
Registrar General of the High Court at  Allahabad  dated  28.11.2014,  along
with annexures 1 to 9.  By placing reliance on these annexures, the  learned
standing counsel for  the  High  Court  submitted  that  the  provision  for
reservation was validly adopted by the High Court as provided under  Rule  7
of the High  Court  Rules.   Since  whatever  proceedings  relating  to  the
adoption of the rules of the reservation based on which  the  selection  and
appointment of the year 2009 of the higher judicial service was made by  the
High Court, we asked the learned senior counsel for the appellants  to  make
his submissions based on the said materials placed before this Court.

Before considering any submissions, it will be worthwhile to  refer  to  the
proceedings placed before us on behalf of the High Court vide Annexure -  II
viz.,  the  minutes  of  the  meeting  of  the  Selection  and  Appointments
Committee dated 24.03.2009.  In  Agenda  Item  No.III,  the  various  vacant
positions in different categories  viz.,  General  Turn,  Scheduled  Castes,
Scheduled Tribes and Other Backward Classes alongside the existing  strength
were all noted  and  ultimately  the  Committee  resolved  to  initiate  the
process of recruitment for all the three streams as per  the  Uttar  Pradesh
Higher Judicial Service Rules,  1995  including  the  carry  forward  of  41
vacancies. Ultimately the resolution further stated as under:-
"To break up of 41 carry forward  vacancies,  details  of  which  have  been
given above, shall also  be  filed  up  by  simultaneous  recruitment.   The
recruitment of carry forward vacancies shall be  made  in  their  respective
reserve category as indicated in the chart mentioned above.   The  vacancies
shall be filled up applying reservation as  per  the  Uttar  Pradesh  Public
Services (Reservation for  Scheduled  Castes,  Scheduled  Tribes  and  Other
Backward Classes) Act, 1994 as amended up to date.   The  current  vacancies
in different categories should be reserved are like this."
                                              (emphasis added)

Lastly, the resolution stated that the  Committee  resolved  to  the  extent
that after the Full Court determine the vacancies,  necessary  advertisement
informing applications against 41 carry forward  +  27  vacancies  would  be
published.

Thereafter, under Annexure No.3, the proceedings of the Full  Court  by  way
of circulation to consider the Agenda viz.,  the  determination  of  vacancy
under Rule 8 of the Uttar Pradesh Higher Judicial Service  Rules,  1975  was
circulated.  Under the said annexure, the proceedings of the  Selection  and
Appointment Committee dated 24.03.2009,  along  with  the  office  note  was
circulated for the opinion of the Hon'ble  Judges.  Out  of  71  Judges,  50
Judges expressed their opinion agreeing to the whole of  the  resolution  of
the Selection and Appointment Committee while 21 of  them  did  not  express
any opinion.  Under Rule 7 of Chapter III of the Rules of the  Court,  if  a
Judge failed to send his opinion in writing  within  a  week,  he  shall  be
deemed to have declined to express any opinion in the matter.  Based on  the
opinion of the majority of the Hon'ble Judges approving  of  the  resolution
of the Selection  and  Appointment  Committee,  the  whole  proceedings  was
approved by the Chief Justice signifying the approval expressed by the  Full
Court.

We heard the submissions based on the above proceedings placed  before  this
Court on behalf of the High Court to find out whether such a course  adopted
by the High Court can be said to have validly  adopted  the  provisions  for
reservation in the matter of appointment for the  post  of  Higher  Judicial
Services which was held in the  year  2009.   Mr.  Dwivedi,  learned  senior
counsel for the appellants contended that there  was  no  specific  adoption
made by the Full Court with reference to the nature  of  reservation  to  be
provided in the matter  of  filling  up  of  the  post  of  Higher  Judicial
Service.

According to the learned senior counsel under  Rule  7  of  the  High  Court
Rules, it  is  specifically  provided  that  such  adoption  should  be  for
reservation in accordance with the Order of  the  Government.   The  learned
senior counsel  contended  that  there  is  no  specific  reference  to  the
percentage of reservation in respect of Scheduled  Casts,  Scheduled  Tribes
or Other Backward Classes  having  been  adopted  either  by  the  Selection
Committee or by the Full Court with particular reference  to  any  Order  of
the government.  The learned senior counsel would, therefore,  contend  that
in effect, there was no adoption made by  the  High  Court  to  provide  for
reservation and consequently no such reservation can be held  to  have  come
into effect.  Here again, though the submission appears to be sound,  having
regard to the proceedings of the  Selection  and  Appointment  Committee  as
well as that of the Full Court resolution, the details  of  which,  when  we
refer to with some amount of serious  look  to  those  proceedings,  we  are
convinced that there was sufficient compliance of the requirements  of  Rule
7 of the High Court Rules  in  the  matter  of  adoption  of  the  rules  of
reservation.  The relevant part of  amended  Rule  7  is  to  the  following
effect:
"....shall  be  in  accordance  with  the  orders  of  the  Government   for
reservation as adopted by the High Court."
       (emphasis added)

While dealing with the second submission made on behalf of  the  appellants,
we have held that the rule of reservation and the extent of reservation  has
been specifically spelt out in Section 3(1) of the  Reservation  Act,  1994.
We have also held that apart from such  prescription  contained  in  Section
3(1) of the Reservation Act, 1994, no other Government order  or  any  other
prescribed notification was placed before us in order  to  hold  that  while
applying Rule 7, the High Court was expected to consider any such  order  or
notification issued by the Government.  Therefore, while invoking Rule 7  of
the High Court Rules, if at all the High Court wanted to adopt the  rule  of
reservation, the same can only relate to what has been prescribed under  the
Reservation Act of 1994, in particular Section 3(1) of  the  said  Act.  The
said conclusion of ours is inescapable in  the  context  of  the  provisions
relating to rule of reservation in the State of Uttar Pradesh.

 The only other aspect to be considered is what was  the  rule  relating  to
reservation which was adopted by the High Court.  In that context,  when  we
read the  resolution  of  the  Selection  and  Appointment  Committee  dated
24.03.2009, after referring to the vacancies that existed which were  to  be
filled up in the year 2009, the Selection Committee  expressly  resolved  as
under:
"..........The vacancies shall be filled up applying reservation as per  the
Uttar Pradesh Public Services (Reservation for  Scheduled  Casts,  Scheduled
Tribes and Other Backward Classes) Act, 1994 as amended up to date....."

In the light of the said resolution passed by the Selection and  Appointment
Committee constituted by the High Court, there can be no two  opinions  that
by the said resolution the rule of reservation as prescribed  under  Section
3(1)  of  the  Act  was  decided  to  be  followed  by   the   High   Court.
Consequently,  if  the  proceedings  of  the  Full  Court  pursuant  to  the
direction of the  learned  Chief  Justice  dated  31.03.2009,  approved  the
resolution of the Selection and Appointment Committee, as per the  Rules  of
the Courts, it must be  held  that  a  reading  of  the  resolution  of  the
Selection Committee and the resolution of  the  Full  Court  together  would
constitute a valid adoption as contemplated under Rule 7 of the  High  Court
Rules.

We have elaborately set out the nature of the resolution passed by the  Full
Court by way of circulation.  Out of 71 Judges, 50 Judges of the High  Court
expressed their support to the resolution of the Selection  and  Appointment
Committee dated 24.03.2009 and such an expression made by  majority  of  the
Judges was ultimately approved by the learned Chief Justice by affixing  his
signature on 10.04.2009. In the light of the said proceedings, we hold  that
the High Court adopted the rule of reservation as per the  Reservation  Act,
1994 which was well within the prescription contained in Rule 7 of the  High
Court Rules. The said course adopted by High Court  is  also  in  consonance
with the various principles laid down in the Constitution Bench decision  of
this Court reported in State of Bihar v. Bal Mukund Sah (supra).

Once we are able to satisfactorily reach the said conclusion what falls  for
consideration  is  the  next  submission  of  the  learned  senior   counsel
appearing for the appellants as to whether the High Court was  justified  in
filling up unfilled posts of reserved category by way of  promotion  of  in-
service candidates.

In order to appreciate the submissions so made on behalf of the  appellants,
the relevant provisions contained in the Reservation Act, 1994  as  well  as
Rule 8 of the High Court Rules are required to be  examined.   Section  3(2)
of the Reservation Act  which  deals  with  the  manner  in  which  unfilled
vacancies of different reserved categories are to be filled up has been  set
out, which reads as under:
"3(2) If, in respect of any year of recruitment  any  vacancy  reserved  for
any category  of  persons  under  sub-section  (1)  remains  unfilled,  such
vacancy shall be carried forward and be filled through  special  recruitment
in that very year or in  succeeding  year  or  years  of  recruitment  as  a
separate class of vacancy and such class of vacancy shall not be  considered
together with the vacancies of the  year  of  recruitment  in  which  it  is
filled and also for the purpose of determining  the  ceiling  of  fifty  per
cent reservation  of  the  total  vacancies  of  that  year  notwithstanding
anything to the contrary contained in sub-section (1)."

While referring to Section 3(2) of the  Reservation  Act,  1994,  we  should
also simultaneously refer to Rule 8(2) of the High Court Rules  which  reads
as under:
"8(2) If at any selection the number of selected direct  recruits  available
for appointment is less than the number of recruits decided by the Court  to
be taken from that  source,  the  Court  may  increase  correspondingly  the
number of recruits to be taken by promotion from the Nyayik Sewa.

Provided that the number of vacancies filled in as aforesaid under this sub-
Rule shall be taken into consideration while fixing the number of  vacancies
to be allotted to the quota of direct recruits at the next recruitment,  and
the quota for direct recruits may be raised accordingly; so,  however,  that
the percentage of direct recruits in  the  service  does  not  in  any  case
exceed 25% of strength of the service."

At the very outset, it must be stated that if Rule 8(2) were to be  applied,
on its own, it will have a direct impact on the  prescription  contained  in
Section 3(2) of the Reservation Act, 1994.  When we consider  Section  3(2),
a little more elaborately, the said sub-Section under the  Reservation  Act,
1994 prescribes  that  any  unfilled  reserved  vacancy  should  be  carried
forward and filled through special recruitment  in  that  very  year  or  in
succeeding year or years of recruitment as a separate class of vacancy.   It
also states that such class of vacancy should  not  be  considered  together
with the vacancies of the  year  of  recruitment  in  which  it  is  filled,
meaning thereby the vacancies that exist in any subsequent year or years  of
recruitment.  It further stipulates that for the  purpose  of  deciding  the
maximum percentage of reservation viz., 50%  of  the  total  vacancies  such
carry  forward  vacancies  should  never  be  counted.   At  the   risk   of
repetition, it will have to be stated that in the first  instance  going  by
Section 3(2), any unfilled reserved vacancies  arising  in  the  process  of
recruitment, a special recruitment should be made in that very year  itself.
 In fact it was brought to our notice that by an order passed  in  I.A.No.87
of 2010, dated 15.11.2010 of this Court, the High Court  was  directed  that
the special recruitment should be made in that very year itself.   According
to the learned senior counsel for the  High  Court,  such  an  exercise  was
carried out but yet the posts could not be filled up in that very year  from
the reserved category.

When we come to the next stage to be carried out as provided  under  Section
3(2), the High Court should have carried forward the unfilled  vacancies  of
the reserved category in the succeeding year or years of  recruitment  as  a
separate class of vacancy.  Therefore, applying Section 3(2),  there  is  no
scope for filling up of any of those  unfilled  vacancies  of  the  reserved
category of any particular recruitment year by the candidates  belonging  to
any other categories either of Direct recruitment source  or  by  any  other
source viz., from the in-service candidates by way of regular  promotion  or
by way of special merit promotion.

Keeping the said prescription as provided in Section 3(2) in mind,  when  we
examine the provision contained in Rule 8(2) of the High Court Rules, it  is
specifically provided that in respect of direct recruitment if the  selected
candidates from the direct recruitment available for  appointment  was  less
than the number of candidates to be recruited from  that  source,  the  High
Court could correspondingly increase the number of recruits to be  taken  by
way of promotion from the Nyayik Sewa viz., in-service candidates.

When we consider the application of Section 3(2) of the reservation  Act  of
1994 a further question arises as to whether the  application  of  the  said
Section can be made in the matter of recruitment  for  the  post  of  direct
recruit District Judges.  In this context, the principles set  down  by  the
Constitution Bench of this Court require to be noted:

(l)  Having  regard  to  Article  16(4),  the  High  Court  being   a   high
constitutional functionary would also be alive  to  its  social  obligations
and the constitutional guideline for  having  a  scheme  of  reservation  to
ameliorate the lot of deprived reserved categories like SC, ST and OBC.  But
for  that  the  Governor  in  consultation  with  High  Court  should   make
appropriate rules and provide for a scheme of reservation  for  appointments
at grass root level and even at the highest level of district judiciary.  If
that was not done, the State Legislature cannot upset the entire apple  cart
and by bypassing the constitutional mandate of  Articles  233  and  234  lay
down  a  statutory  scheme  of  reservation  governing  all  state  services
including judiciary.

(m)Even in that respect it is obvious  that  maintenance  of  efficiency  of
judicial administration is entirely within the control and  jurisdiction  of
High Court as laid down by Article 235.

(n)If the proper course of formulating the scheme in the form of a  rule  by
the High Court to provide for reservation is not made,  that  would  deprive
of the right  to  suggest  the  consultative  process  by  way  of  its  own
expertise that for  maintenance  of  the  efficiency  of  administration  of
judicial service controlled by  it  50%  reservation  may  not  be  required
and/or and even lesser reservation may  be  required  or  even  may  not  be
required at all."



Keeping the said principles in mind when we consider, even though  the  High
Court having taken into account the  constitutional  mandate  as  prescribed
under Articles 16(1), 16(4) and 335 and specifically provided in Rule 7  for
applying the rule of reservation by adopting the same, the  question  is  as
to what extent the High Court decided to adopt the rule of  reservation.  In
this context,  when  we  refer  to  the  specific  content  of  Rule  7,  it
specifically provides that reservation  to  post  in  the  service  for  the
members of SC,  ST  and  other  categories  including  women  should  be  in
accordance with the orders of the Government for  reservation  "as  adopted"
by the High Court.  Therefore, even while applying the rule of  reservation,
it must be seen as to what extent the High Court chose to adopt the rule  of
reservation.  When we refer to the resolution of the Full Court by which  we
have found that the High Court decided to apply the rule of reservation,  we
have to in turn  refer  to  the  resolution  passed  by  the  selection  and
appointment committee dated 24.3.2009 which resolution was  adopted  by  the
Full Court and that is how the rule of reservation came to  be  implemented.
The said resolution of the selection and appointment committee  specifically
mentioned  that  the  'vacancies'  should  be   filled   up   applying   the
'reservation' as per the Reservation Act of 1994 as amended up to date.

We are,  therefore,  clear  of  the  position  that  what  was  adopted  was
'reservation' simplicitor and not other consequences.  Therefore,  there  is
no question of invoking Section 3(2) of the Reservation Act,  1994  relating
to consequential action to be taken if the posts of direct recruit  District
Judges are not filled up.  Section 3(2) only prescribes as to the manner  in
which unfilled reserved seats are to be filled  up  by  resorting  to  fresh
selection in that very year and in the event of the posts  still  not  being
filled up, continue to retain the posts in the reserved category and  notify
the same in the subsequent years for being filled up.   Such  a  consequence
cannot be stated while applying Rule 7 of the High Court Rules which  merely
refers to provision for reservation and nothing more.  Insofar as  provision
for reservation is  concerned,  in  the  absence  of  any  Government  order
prescribing reservation, the  only  provision  available  is  Section  3(1).
Section 3(2) is only a  methodology  to  be  followed  for  filling  up  the
unfilled reserved posts.  As far as the said methodology in respect  of  the
unfilled reserved posts of direct recruit District Judges is  concerned,  it
is governed only by Rule 8.  In fact, even by applying Rule 8(2)  by  virtue
of the proviso to the said Rule,  the  interest  of  the  reserved  category
candidates is sufficiently safeguarded which is preserved and filled  up  in
the selection to be made in the future years.

Therefore, if we consider the adoption made by the High  Court,  as  regards
the rule of reservation, we find that what was  adopted  was  to  apply  the
'RESERVATION' as provided under the Reservation Act of  1994  while  filling
up the vacancies of direct recruit District Judges.   In  other  words,  the
High Court  chose  to  adopt  the  prescription  of  various  percentage  of
'reservation' in the Reservation Act of 1994 and stop with that.  To put  it
differently, what was adopted by the High Court was to  the  limited  extent
of providing the prescribed percentage of 'reservation' under  Section  3(1)
of Reservation Act of 1994 and nothing beyond that.   Since  the  principles
laid down in the  Constitution  Bench  decision  of  this  Court  succinctly
stated as to how Articles 233 to 235 of the Constitution  empower  the  High
Court to maintain its independent functioning by  allowing  its  recruitment
process by prescribing its own limitations and not to be affected by even  a
statutory prescription relating to reservation, it must be  stated  that  in
order to ensure  that  the  independence  of  institution  of  judiciary  is
safeguarded, such a strict construction of its decision  pertaining  to  the
rule of reservation must be maintained or otherwise, as  cautioned  by  this
Court in the Constitution Bench decision, that would impinge upon  the  very
basic structure of the Constitution vis--vis the judiciary.

Therefore,  we  hold  that  by  virtue  of  the  adoption  of  the  rule  of
reservation by invoking Rule 7 when the High Court decided to apply only  to
the  extent  of  prescribed  percentage  of  'reservation'   for   different
categories, namely, SC, ST and OBC as provided under  Section  3(1)  of  the
Reservation Act 1994 in all other respects, it must be held  that  it  would
be governed by its own rule namely the rules of the  High  Court  pertaining
to the judicial service.   In  this  context,  a  question  may  arise  that
earlier this Court directed the High Court in  its  order  dated  15.11.2010
passed in IA 87 of 2010 to go in for a  special  recruitment  in  that  very
year itself which was apparently based  on  the  prescription  contained  in
Section 3(2) of the Act and by going by that  direction  should  it  not  be
held that the said procedure should follow for all time to  come.   It  will
have to be stated that the said order passed in an IA cannot be taken  as  a
final statement of law when the legal principle has been succinctly set  out
with reference to the application of rule of reservation in  so  many  words
in the decision of the Constitution Bench of this Court.   Therefore,  based
on the  said  order,  it  cannot  be  held  that  various  other  provisions
contained in the Reservation Act of 1994 would get attracted.

When  the  said  legal  position  can  be  stated  without  any  scope   for
contradiction, what remains to be considered is the scope of application  of
Rule 8 (2) and the proviso attached to that sub-rule. In  this  context,  we
have to go by the decision  of  this  Court  reported  in  Ashok  Pal  Singh
(supra) wherein this very Rule 8(2) came up for consideration. In  the  said
decision while considering the purport and intent of  Rule  8  (2),  it  was
held that the same  was  not  to  dilute  or  change  the  quota  of  direct
recruits.  It further held that its object is  to  ensure  that  no  vacancy
remains unfilled for want of adequate number of direct  recruits  under  the
prescribed quota.  While holding  so,  this  Court  noted  that  there  were
reasonable chances of adequate number of candidates being not available  for
direct recruitment whereas usually sufficient number of candidates  will  be
available for promotion.  It also made further clear  that  the  proviso  to
Rule 8(2) ensures that the short fall in quota for direct  recruits  in  any
recruitment  does  not  get  permanently  converted  to  promotee  quota  by
providing that the short fall  should  be  made  at  the  next  recruitment.
Again in para 40, it was reiterated that all vacancies which are not  filled
by direct recruitment would get filled up by promotion and that the  limited
carry over unfilled direct recruitment vacancies are in  the  manner  stated
in Rule 8(2) and the proviso thereto.  From what has already  been  held  by
this Court, it was made clear that under Rule 8(2) since the object  was  to
ensure that no vacancy remains unfilled, for  want  of  adequate  number  of
direct recruits under the prescribed quota sufficient safeguard is  provided
in the proviso to Rule 8(2) by which those unfilled vacancies to be  carried
forward in the future years to be filled only  through  direct  recruitment.
To that extent, there is no scope for any controversy.

In the  case  on  hand,  it  is  not  in  dispute  that  after  the  special
recruitment was made in respect of unfilled  reserved  vacancies,  the  High
Court proceeded to  fill  up  all  the  unfilled  vacancies  of  the  direct
recruits in the reserved category and those posts  were  all  filled  up  by
promoting the members of the Nyayik Sewa viz., in-service candidates.  While
referring  to  Rule  8(2)  Mr.  Dwivedi,  learned  senior  counsel  for  the
appellants contended that when Rule 8(2) specifically  states  that  at  any
selection the number of selected direct recruits available  for  appointment
is less than the number of recruits decided by the High Court  to  be  taken
from that source meaning thereby the source of direct recruitment  then  and
then alone, the High Court was empowered to look upon the members of  Nyayik
Sewa viz., in-service candidates for their promotion to the post  of  Higher
Judicial Service.

The question raised on behalf of the appellants was  that  since  Rule  8(2)
specifically refers to the source and when  the  direct  recruitment  source
candidates belonging to general category are available, only in the  absence
of any candidates from the general category  or  any  other  category,  then
alone the High  Court  could  have  resorted  to  filling  up  the  unfilled
vacancies of reserved category by promotees.

It is well settled principle of law as has been laid down by this  Court  in
the decision relied upon by learned counsel for the High Court, namely,  the
Constitution Bench decision reported in R.K. Sabharwal  (supra)  wherein  it
has been held as under in para 4:
"No general category candidate can  be  appointed  against  a  slot  in  the
roster which is reserved for the backward class."


Therefore, when the posts were reserved for the SC, ST, filling up of  those
posts from the general category candidates would seriously affect  the  rule
of reservation, as once the posts of  direct  recruit  are  filled  up  from
other category candidates even the carrying forward of  those  vacancies  as
provided under the proviso to Rule 8(2) cannot be operated upon.   In  other
words, by applying Rule 8(2) in the event of vacancies remaining due to non-
availability of the candidates of the reserved category and  such  vacancies
were filled up by the 'in service candidates'  by  resorting  to  promotion,
the proviso can be conveniently operated  upon  by  carrying  forward  those
vacancies  in  the  future  years  in  the  direct  recruit  source  and  by
maintaining the rule of reservation to the extent it could not be filled  up
in the relevant recruitment years.  If instead of resorting to promotion  of
'in service candidates' those unfilled reserved vacancies  are  filled  from
the general category candidates there would be no  scope  for  applying  the
proviso to Rule 8(2).  Such a contingency created would run counter  to  the
rule of reservation and, therefore, the same cannot be countenanced.

We have to, therefore, hold that the High Court by adopting the  Reservation
Act, 1994 adopted the rule of reservation to the full  extent  provided  for
and as prescribed under Section 3(1) of the Reservation Act, 1994  and  that
in respect of any unfilled  vacancies  of  that  category,  the  High  Court
rightly resorted to the prescription contained in Rule 8(2) by resorting  to
filling up of  such  vacancies  by  special  recruitment  in  that  year  as
directed by this Court and in the absence  of  not  getting  such  vacancies
filled up by resorting to such  filling  up  by  promotion  of  'in  service
candidates' and also by applying the proviso to Rule 8(2) and thereby  carry
forward those vacancies in the future years of recruitment.

Keeping the said legal principle relating to applicability of  Section  3(1)
of the Reservation Act, 1994 vis--vis Rules 7 and 8(2) of  the  High  Court
Rules in mind, when we consider the last of the submissions made  on  behalf
of the appellants, it must be held that the action  of  the  High  Court  in
having resorted to filling up of the unfilled reserved vacancies  by  taking
umbrage under Rule 8(2) was perfectly justified.  The  said  action  of  the
High Court in having filled up those unfilled reserved vacancies  of  direct
recruitment of the year 2009 was stated to have been made by  promoting  the
in-service candidates. Though we have found that such a  course  adopted  by
the High Court was in order,  as  the  proviso  to  Rule  8(2)  specifically
mandates that while fixing the number of vacancies to  be  allotted  to  the
quota of direct recruitment at the next recruitment,  it  should  be  raised
accordingly.  We are of the view,  without  disturbing  whatever  promotions
already made by resorting to Rule 8(2), the High Court can be  permitted  to
provide that number of vacancies which remained unfilled in  the  year  2009
in the reserved category of direct recruit source by adding that  number  of
vacancies in the recruitment to be made  in  the  future  years  until  such
number of vacancies of unfilled reserved category  pertaining  to  2009  are
filled.

With the above limited directions to the High  Court,  we  do  not  wish  to
meddle with the promotions already made.  We  do  not  find  any  scope  for
granting any relief to the appellants, as none of the submissions raised  on
behalf of the appellants, which were though not considered by  the  Division
Bench of the High Court and which were also dealt with by us in extenso  and
we  find  no  merit.  These  appeals,  therefore,  fail  and  the  same  are
accordingly dismissed.


                    ......................................................J.
                                          [Fakkir Mohamed Ibrahim
Kalifulla]



                   .......................................................J.
                                [Abhay Manohar Sapre]


New Delhi;
February 17, 2015.



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