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Wednesday, April 4, 2018

validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh. Dispute mainly relates to the principle to be applied for determining seniority for direct recruits and promotees of the years 2007 and 2009 in the context of Rules 22 and 26 of the Uttar Pradesh 2 Higher Judicial Service Rules, 1975 (the Rules) and the judgment of this Court in All India Judges Association versus Union of India1= No promotion could be given in absence of suitability test. The rule provided for seniority of the promotees to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees. Thus, the Rules will have to be given pragmatic interpretation. As laid down by this Court in Direct Recruit Class-II Engineering Officers’ Association versus State of Maharashtra if it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to 9 (1990) 2 SCC 715, para 23 29 be given a practical interpretation. Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE / ORIGINAL JURISDICTION
 CIVIL APPEAL NO. 3356 OF 2018
(Arising out of Special Leave Petition (Civil)No. 26993 of 2017)
Hon’ble High Court of Judicature
at Allahabad – through Registrar General …Appellant
Versus
The State of Uttar Pradesh & Ors. …Respondent
WITH
 CIVIL APPEAL NO. 3355 OF 2018
Special Leave Petition (Civil)No. 8312 of 2018)
(Arising out of Special Leave Petition (Civil)D.No. 39750 of 2017
 Hon’ble High Court of Judicature at Allahabad
through Registrar …Appellant
versus
 The State of Uttar Pradesh & Ors. …Respondent
WITH
Special Leave Petition (Civil)No. 27284 of 2017
Dr. Ajay Krishn Vishvesha & Ors. …Petitioner
Versus
Rajat Singh Jain & Ors. ...Respondent
WITH
 Special Leave Petition (Civil)No. 27876 of 2017
 Saroj Yadav & Ors. …Petitioner
versus
The High Court of Judicature at Allahabad & Ors. …Respondent
1
WITH
Special Leave Petition (Civil)No. 8334 of 2018)
(Arising out of Special Leave Petition (Civil)D.No. 31887 of 2017
 Lal Bahadur-II & Ors. …Petitioner
versus
 High Court of Allahabad & Ors. …Respndent
AND
TRANSFER PETITION (CIVIL)NO. 81 OF 2018
Sanjay Shankar Pandey & ORS. …Petitioner
 versus
The State of Uttar Pradesh & ORS. …Respondent
J U D G M E N T
ADARSH KUMAR GOEL, J.
1.Leave granted in Special Leave Petition (Civil) No.26993 of 2017
and SLP (Civil) D. No.39750 of 2017. The question for consideration
is the validity of determination of seniority of promotee and direct
recruit Higher Judicial Service (HJS) officers in the State of Uttar
Pradesh. Dispute mainly relates to the principle to be applied for
determining seniority for direct recruits and promotees of the years
2007 and 2009 in the context of Rules 22 and 26 of the Uttar Pradesh
2
Higher Judicial Service Rules, 1975 (the Rules) and the judgment of
this Court in All India Judges Association versus Union of
India1
.
2. Before giving brief facts we may note that the Rules and the
issue of seniority of the HJS officers were subject matter of
consideration, inter alia, in P.K. Dixit versus State of U.P.2
, O.P.
Garg versus State of U.P.3
, Sri Kant Tripathi versus State of
U.P.4
, Ashok Pal Singh versus U.P. Judicial Services
Association5
, V.K. Srivastava versus Govt. of U.P.6
 and Het
Singh Yadav versus State of U.P.7
3. In P.K. Dixit (supra), there was challenge to the seniority list
on the ground that vacancies had not been properly calculated as
per the Rules. This Court directed that matter should be examined
afresh with reference to appointments on posts available before
the Rules came into force.
1 (2002) 4 SCC 247
2 (1987) 4 SCC 621
3 (1991) Supp. (2) SCC 51
4 (2001) 10 SCC 237
5 (2010) 12 SCC 665
6 (2008) 9 SCC 77
7 Civil Appeal No.5270 of 2012 decided on 15.9.2016
3
4. In O.P. Garg (supra), challenge to seniority list of 1988 was
considered. This Court held that benefit of continuous length of
service for a promote officer for a promote officer has to be with
reference to availability of a vacancy and not independent
thereof. Second and third proviso to Rule 8(2) and part of Rules 22
and 26 were declared ultra vires.
5. In Sri Kant Tripathi (supra) question was about correctness
of calculation for working out ratio between direct recruits and
promotees. The issue had arisen with reference to recruitments
for the years 1988 to 1994. This Court directed that for 1988
recruitment, the High Court should determine number of
vacancies available in the relevant year of recruitment and then
allocate the vacancies to different sources of recruitment. It was
also directed that vacancies should be filled up in the year when
vacancies become available. If a post is available in the quota of
promotees, selection is made but promotion is not given,
promotion must take effect from the date the promotee could
have been appointed.
4
6. In Ashok Pal Singh (supra) one of the issues was whether
procedure of carrying forward of vacancies adopted by the High
Court was erroneous. This Court held that no direct recruit at a
subsequent recruitment can claim that his seniority should be
reckoned from the date earlier to the date of his joining. The
seniority of the promotee had to commence from the date he
should have been appointed against an available vacancy for
which he had already been selected.
7. In V.K. Srivastava (supra), challenge was to the
amendment of the Rules as notified on 9th January, 2007 on the
ground that giving of retrospective effect prejudiced the vested
right of the candidate eligible for vacancies prior to the
amendment. This Court dismissed the writ petition with the
observation that the Rules had been duly complied with for the
year 2008 selection.
8. In Het Singh Yadav (supra) question for consideration was
the validity of seniority list of promotees with regard to vacancies
existing prior to 15th March, 1996. The High Court quashed the
seniority list dated 24th August, 2007. Correctness of the view
5
taken before the High Court was subject matter of consideration
before this Court. This Court noted that after the judgment of the
High Court dated 16th December, 2010, seniority list had been
finalized on 14th April, 2016 consistent with the directions in
Ashok Pal Singh (supra) against which matter was pending
consideration before the High Court. This Court set aside the
judgment of the High Court leaving the merits of the matter to be
gone into by the High Court in the matter pending before it.
9. In All India Judges case (supra), it was directed that
recruitment to HJS at the relevant time had to be as follows :
“(a) 50 per cent by promotion from amongst Civil
Judges (Senior Division) on the principle of
merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of
merit through a limited competitive departmental
examination on Civil Judges (Senior Division)
having not less than five years qualifying service,
and;
(c) 25 per cent of the posts shall be filled directly from
amongst the eligible advocates on the basis of
written and viva voce test conducted by the
respective High Courts.”
6
10. It was observed that to avoid litigation, seniority rules should
provide for roster system as laid down in R.K. Sabharwal
versus State of Punjab8
 . Direction of this Court is as follows :
“29. Experience has shown that there has been a
constant discontentment amongst the members of the
Higher Judicial Service in regard to their seniority in
service. For over three decades a large number of cases
have been instituted in order to decide the relative
seniority from the officers recruited from the two
different sources, namely, promotees and direct recruits.
As a result of the decision today, there will, in a way, be
three ways of recruitment to the Higher Judicial Service.
The quota for promotion which we have prescribed is 50
per cent by following the principle "merit-cum seniority",
25 per cent strictly on merit by limited departmental
competitive examination and 25 per cent by direct
recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system
in recruitment exists, insofar as seniority is concerned, is
where a roster system is followed. For example, there is,
as per the rules of the Central Government, a 40-point
roster which has been prescribed which deals with the
quotas for Scheduled Castes and Scheduled Tribes.
Hardly, if ever, there has been a litigation amongst the
members of the service after their recruitment as per the
quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited.
When roster system is followed, there is no question of
any dispute arising. The 40-point roster has been
considered and approved by this Court in R.K. Sabharwal
v. State of Punjab (supra) One of the methods of avoiding
any litigation and bringing about certainty in this regard
is by specifying quotas in relation to posts and not in
relation to the vacancies. This is the basic principle on
the basis of which the 40-point roster works. We direct
the High Courts to suitably amend and promulgate
seniority rules on the basis of the roster principle
as approved by this Court in R.K. Sabharwal case
(supra) as early as possible. We hope that as a
result thereof there would be no further dispute in
8 (1995) 2 SCC 745
7
the fixation of seniority. It is obvious that this
system can only apply prospectively except where
under the relevant rules seniority is to be
determined on the basis of quota and rotational
system. The existing relative seniority of the
members of the Higher Judicial Service has to be
protected but the roster has to be evolved for the
future.”
(emphasis added)
11. The Rules as originally framed envisaged three sources of
recruitment – direct recruitment from the bar, promotion from
members of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of
cadre of judicial magistrates. There was also a provision for quota
for the different sources. Number of appointments to be made is
required to be identified. Seniority is to be determined as per
Rule 26.
12. As a result of observations in the above judgments, there
was amendment in the Rules. It may not be necessary to refer all
the amendments but reference to some of the amendments may
be necessary.
13. Accordingly, Rule 6 was amended to give effect to the
judgment of this Court in All India Judges’ case (supra) vide U.P.
Higher Judicial Service (Sixth Amendment) Rules, 2006 notified on
8
January 09, 2007. By the said amendment, the criteria for
recruitment by promotion was changed. Requirement of passing
a suitability test was incorporated. There was also modification
about the percentage of quota. The suitability test in pursuance
of the said amended rules was held for the first time in the year
2008. The introduction of the roster was introduced by U.P.
Higher Judicial Service (Seventh Amendment) Rules, 2009 which
was notified on 8th August, 2009.
14. Reference may now be made to the relevant Rules.
Rule 5
U.P. Higher Judicial Service Rules,
1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 5. Sources of recruitment.-The
recruitment to the Service shall be made--
(a) by direct recruitment of pleaders and
advocates of not less than seven years'
standing on the first day of January next
following year in which the notice inviting
applications is published;
(b) by promotion of confirmed members of
the Uttar Pradesh Nyayik Sewa (hereinafter
referred to as the Nyayik Sewa), who have
put in not less than seven years service to
be computed on the first day of January
next following the year in which the notice
inviting application is published:
Provided that so far long as suitable
officers are available from out of the dying
cadre of the Judicial Magistrates confirmed
officers who have put in not less than
Rule 5 was substituted as under:-
Sources of recruitment--The recruitment
to the service shall be made(a)
By promotion from amongst the Civil
Judges (Senior Division) on the basis of
Principle of merit-cum-seniority and passing
a suitability test.
(b) By promotion strictly on the basis of merit
through limited competitive examination of
Civil Judges (Senior Division) having not less
than five years qualifying service;
(c) By direct recruitment from amongst the
Advocates of not less than seven years
standing on the first day of January next
following the year in which the notice inviting
applications is published.
9
seven years service to be computed as
aforesaid shall be eligible for appointment
as Additional Sessions Judges in the
Service.
Explanation.--When a person has been both
a pleader and an advocate his total
standing in both the capacities shall be
taken into account in computing the period
of seven years under clause (a)."
Rule 6
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service (Sixth
Amendment) Rules, 2006
(come into force w.e.f 21st
March, 2002)
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules,
2014
Rule 6. Quota.- Subject to
the provisions of Rule 8, the
quota for various sources of
recruitment shall beProvided
that where the
number of vacancies to be
filled in by any of these
sources in accordance with
the quota is in fraction, less
than half shall be ignored
and the fraction of half or
more shall ordinarily be
counted as one:
(i) Direct recruits from
the Bar 15% of the
vacancies
(ii) Uttar Pradesh Nyayik
Sewa 70%
(iii) Uttar Pradesh
Judicial Officers service
(Judicial Magistrate) 15%
Provided further that when
the strength in the cadre of
the Judicial Magistrates
gradually gets depleted or is
completely exhausted and
suitable candidates are not
available in requisite
numbers or no candidate
remains available at all, the
shortfall in the number of
Rule 6 was substituted as
under:-
6. Quota-Subject to the
provisions of rule 8, the quota
for various sources of
recruitment shall be(i)
Uttar Pradesh Nyayik Sewa:
 (a) from amongst the Civil
Judges (Senior Division)
on the basis of
merit-cum-seniority
and passing a
suitability test. - 50%
 (b) on the basis of merit
through limited
competitive
examination of Civil
Judges (Senior Division)
having not less than
five years qualifying
service. - 10%
 Provided that in case of
there being any
shortfall in the
vacancies to be filled
up on the basis of in
cadre competitive
examination, the
shortfall of 25%
reserved for such
promotion will be made
good by corresponding
increase in the quota
Rule 6 was substituted
as under:-
Quota-6. Subject to the
provisions of rule 8, the
quota for various sources
of recruitment shall be(i)
Uttar Pradesh Nyayik
Sewa:
 (a) from amongst the
Civil Judges
(Senior Division)
on the basis of
merit-cum-seniori
ty and passing a
suitability test. -
65%
 (b) on the basis of
merit through
limited
competitive
examination of
civil Judges
(Senior Division)
having not less
than five years
service. -10%
 Provided that in
case of there
being any
shortfall in the
vacancies to be
filled up on the
10
vacancies required to be
filled from amongst Judicial
Magistrates and in the long
run all the vacancies, shall
be filled by promotion from
amongst the members of the
Nyayik Sewa and their quota
shall, in due course, become
85 per cent.
reserved for promotion
of Civil Judge (Senior
Division) referred to in
Clause (i)(a).
(ii) direct recruitment from Bar
- 25%
 Provided that where the
number of vacancies to
be filled in by any of
these sources in
accordance with the
quota is in fraction, less
than half shall be
ignored and the
fraction of half or more
shall ordinarily be
counted as one:"
basis of in cadre
competitive
examination, the
shortfall of 10%
reserved for such
promotion will be
made good by
corresponding
increase in the
quota reserved
for promotion of
Civil Judge
(Senior Division)
referred to in
clause (i)(a).
(ii) Direct recruitment from
Bar-25%
 Provided that
where the
number of
vacancies to be
filled in by any of
the sources in
accordance with
the quota is in
fraction, less than
half shall be
ignored and the
fraction of half or
more shall
ordinarily be
counted as one:
Rule 8
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 8. Number of appointments to be
made.---(1) The Court shall, from time to
time, but not later than three years from the
last recruitment, fix the number of officers
to be taken at the recruitment keeping in
view the vacancies then existing and likely
to occur in the next two years.
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.
In Rule 8 the existing sub rule (2) was
substituted as under:-
"8.(2) If at any selection the number of
selected direct recruits available for
"8.(2) If at any selection the number of
selected direct recruits available 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;
11
(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
15 per cent of strength of the
service.
Provided further that all the
permanent vacancies existing on
May 10, 1974 plus 31 temporary
posts existing on that date, if any
when they are converted into
permanent posts, shall be filled by
promotion from amongst the
members of the Nyayik Sewa; and
only the remaining vacancies shall
be shared between the three sources
under these rules;
Provided also that the number of
vacancies equal to 15 per cent of the
vacancies referred to in the last
preceding proviso shall be worked
out for being allocated in future to
the Judicial Magistrates in addition to
their quota of 15 per cent prescribed
in Rule 6, and thereupon, future
recruitment (after the promotion
from amongst the members of the
Nyayik Sewa against vacancies
referred to in the last preceding
proviso) shall be so arranged that for
so long as the additional 15 per cent
vacancies worked out as above have
not been filled up from out of the
Judicial Magistrates, the allocation of
vacancies shall as follows---
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.
12
(i) 15 per cent by direct
recruitment.
(ii) 30 per cent from out of the
Judicial Magistrate;
(iii) 55 per cent from out of the
members of the Nyayik Sewa.
13
Rule 18
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 18. (1) The Selection Committee referred to in Rule 16 shall scrutinize the applications
received and may thereafter hold such examination, as it may considered necessary for
judging the suitability of the candidates. The committee may call for interview such of the
applicants who in its opinion have qualified for interview after scrutiny and examination.
(2) In assessing the merits of a candidate the Selection Committee shall have due regard to
his professional ability,character, personality and health.
(3)The Selection Committee shall make a preliminary selection and submit the record of all
candidates to the Chief Justice and recommend the names of the candidates in order of merit
who, in its opinion, are suitable for appointment to the service.
(4) The Court shall examine the recommendations of the Selection Committee and having
regard to the number of direct recruits to be taken, prepare a list of selected candidates in
order of merit and forward the same to the Governor.
Rule 20
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service (Sixth
Amendment) Rules,
2006
(come into force w.e.f. 21st
March, 2002)
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules,
2014
Rule 20. Promotion of
Members of Nyayik
Sewa-(1) Recruitment by
promotion of the members of
the Nyayik Sewa shall be
made by selection on the
principle of
seniority-cum-merit.
(2) The field of eligibility for
recruitment by promotion
shall be confined to four times
the number of vacancies to
be filled by promotion. The
Selection Committee shall
prepare a list in order of
seniority of the officers
eligible under Rule 5(b) of
these rules.
(3)The Selection Committee
shall, after examining the
record of the officers included
In Rule 20- for the existing
sub-rules (1) and (2), the
following sub-rules were
substituted:-
(1) Recruitment by
promotion of the
members of the
Nyayik Sewa shall be
made by selection on
the principle of
merit-cum-seniority
and on passing such a
suitability test, as
prescribed in Appendix
"G(1)"
(2) The field of
eligibility for
recruitment by
promotion shall be
confined to four times
the number of
The existing sub-rule (3)
of rule 20 was substituted
as under:-
20.(3) The Selection
Committee shall, after
examining the record of the
officers included in the list
prepared under sub-rule (2) of
this rule make a preliminary
selection of the officers who
in its opinion are fit to be
appointed on the basis of
merit-cum-seniority. In
assessing the merit of a
candidate, the Selection
Committee have due regard
to his service record, ability,
character and seniority. The
list shall contain the names of
officers twice the number of
vacancies required to be filled
by promotion of the members
14
in the list prepared under
sub-rule (2) of this Rule make
a preliminary selection of the
officers who in its opinion are
fit to be appointed on the
basis of seniority-cum-merit.
In assessing the merits of a
candidate, the Selection
Committee have due regard
to his service record, ability,
character and seniority. The
list shall contain the name of
officers twice the number of
vacancies required to be filled
by promotion of the members
of the Nyayik Sewa.
(4) The Selection Committee
shall forward the list of the
candidates chosen at the
preliminary selection to the
Chief Justice along with the
names of the officers who, if
any, in the opinion of the
Committee have been passed
over for promotion to the
service.
(5) The Court shall examine
the recommendations of the
Selection and make a final
selection for promotion and
prepare a list in order of
seniority of the candidates
who are considered fit for
promotion and forward the
same to the Governor. The list
shall remain operative only till
the next recruitment.
vacancies to be filled
by promotion. The
selection Committee
shall prepare a list in
order of seniority of
the officers eligible
under Rule 5(a) of
these rules.
of the Nyayik Sewa.
Rule 21
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 21. Temporary provisions for the
cadre of the Judicial Magistrate.- (1) For
so long as suitable officers are available from
out of the dying cadre of the Uttar Pradesh
Judicial Officers Service, confirmed officers
who have put in not less than seven years'
service shall be eligible for appointment as
The existing Rule 21 was substituted as
under:-:
(1) Recruitment by promotion of the members
of Nyayik Sewa as referred to in Rule 5(b)
shall be made by selection strictly on the
basis of merit through a limited competitive
examination as prescribed in Appendix 'H'.
15
Additional Sessions Judges in the service, as
provided in Rules 4, 5, 6 and 8. Such officers
may also be appointed as Additional Sessions
Judge in officiating and temporary capacity
upto the extent of 15 per cent of the
vacancies in the cadre occurring during any
one period of Selection.
(2) The field of eligibility for appointment from
out of the Judicial Magistrate shall be confined
to four times the number of vacancies to be
filled from this source. The Selection
Committee shall prepare a list in order of
seniority of the eligible officers.
(3) Criterion for selection shall be
seniority-cum-merit. In assessing the merits
of a candidate the Selection Committee shall
have due regard to his service record ability,
character and seniority. The preliminary
selection shall be made by the Selection
Committee referred to in Rule 6 and the list of
the selected candidates shall be forwarded to
the Chief Justice along with the names of the
officers who, if any, in the opinion of the
Committee are unfit for appointment to the
Service.
(4) The Court shall examine the
recommendations of the Selection Committee
and make a final selection and prepare a list
of candidates
considered fit for appointment in order of
seniority and forward the names of the
officers. The list shall remain operative only
till the next recruitment.
(5)..........
(6)..........
(7) The Court shall examine the
recommendations of the Selection Committee
and make a final selection for appointment in
HJS cadre and prepare a list in order of merit
and forward the same to the Governor. The
list shall remain operative only till the next
recruitment.
(2)Application for recruitment to the service
from such sources shall be
invited by the Court through District Judges.
(3) the District Judge shall forward to the
Court all applications received by him
alongwith his own estimate of each
candidate's character and fitness for
appointment to the service.
(4) The Selection Committee referred to in
Rule 16 shall scrutinize the
applications received and shall hold a limited
competitive examination, as
prescribed in Appendix 'H'.
(5) The Selection Committee shall prepare a
select list on the basis of the
merit of the successful candidates.
(6) The committee shall make a preliminary
selection and submit the record of all
candidates to the Chief Justice and
recommend the names of the candidates in
order of merit who, in its opinion are suitable
for appointment to the service.
(7) The Court shall examine the
recommendations of the Selection Committee
and make a final selection for appointment in
HJS cadre and prepare a list in order of merit
and forward the same to the Governor. The
list shall remain operative only till the next
recruitment.
Rule 22
16
U.P. Higher Judicial Service
Rules, 1975
(Prior to the Sixth Amendment
in 2006)
Uttar Pradesh Higher
Judicial Service (Seventh
Amendment) Rules, 2009
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules, 2014
Rule 22. Appointment(1)
Subject to the provisions of
sub-rules (2) and (3), the
Governor shall on receipt from
the Court of the lists
mentioned in Rule 18, 20 and
21 make appointments to the
service on the occurrence of
substantive vacancies by
taking candidates from the
lists in the order in which they
stand in the respective lists.
(2) Appointments to the
service shall be made on the
rotational system, the first
vacancy shall be filled from
the list of officers of the Nyayik
Sewa. The second vacancy
shall be filled from the list of
direct recruits (and so on), the
remaining vacancies, shall
therefore be filled by
promotion from the list of the
officers of the Nyayik Sewa.
Provided that for so
long as suitable officers
are available from the
cadre of the Judicial
Magistrates,
appointments to the
Service shall be made
in such a way that the
second fifth and eighth
(and so on), vacancy
shall be filled from the
list of judicial
Magistrates.
(3) In the eventuality of delay
in making appointment under
sub-rule (1) and further if
exigency of service so
requires, the Governor may, in
consultation with the Court,
make short term appointment
as a stop gap arrangement
from amongst the members of
Rule 22 . Appointment.--
(1) Subject to the provisions
of sub-rule (2) the Governor
shall, on receipt from the
Court of the list mentioned in
Rules 18, 20 and 21 make
appointments to the service
on the occurrence of
substantive vacancies by
taking candidates from the
list in the order in which they
stand in the respective lists in
accordance with the roster.
(2) Appointments to service
shall be made on the basis of
roster system, the
first and second post shall be
filled from the list of
promotes, the third post shall
be filled up by direct recruit
and the fourth post shall be
filled up by the candidate
selected strictly on merit
through LDCE (and so on)
according to the roster as
prescribed in Appendix 'I',
which will cease to become
operative
on the date the respective
three streams achieve their
full allotted vacancies.
Thereafter on account of
arising any vacancy in quota
of respective stream the
same could be filled-up from
the same stream of which
vacancy arises:
Provided that
while following the
roster at no point
of time the
percentage of
posts filled from
direct recruit and
LDCE shall exceed
25% each of the
vacancies
In Rule 22, the existing
sub-rule (2) was
substituted as under:-
22.(2) Appointments to the
service shall be made on
the basis of roster system,
the first post shall be filled
from the list of promotees,
the second post shall be
filled up by direct recruit,
the third and fourth posts
shall be
filled up from the list of
promotees and fifth post
shall be filled up by the
candidate selected strictly
on merit through LDCE (and
so on) according to
the roster as prescribed in
Appendix '1', which will
cease to become operative
on the date the respective
three streams achieve their
full allotted vacancies.
Thereafter on account of
arising any vacancy in quota
of respective stream the
same could be filled-up from
the same stream of which
vacancy arises;
Provided that while
following the roster
at no point of time
the respective
percentage of posts
filled from direct
recruit and LDCE
shall exceed 25%
and 10% of the
strength of service.
In case the
percentage is
exceeding the
allotted quota, in
such eventuality the
promotee shall
occupy the vacancy
which would have
17
Nyayik Sewa in the vacancy in
these services within the
quota fixed by the Court till
the appointment are made
under subrules (1) and (2):
Provided that the
period of service spent
by a member of Nyayik
Sewa on short term
appointment to the
service as a stop-gap
arrangement shall not
be computed from
seniority under Rule 26.
(4) The appointments shall be
made on rotational system,
the first vacancy shall be filled
from the list of officers of the
Nyayik Sewa, the second
vacancy shall be filled from
the list of Judicial Magistrates
(and so on).
available at the
time of selection.
In case the
percentage is
exceeding the
allotted quota, in
such eventuality
the promotee shall
occupy the
vacancy which
would have gone
to the direct
recruit or LDCE,
had not the same
been an excess of
25% of either of
the two.
(3) In the eventuality of delay
in making appointment under
sub-rule (1) and further if
exigency of service so
requires the Governor may, in
constitution with the Court,
make short term appointment
as a stop-gap arrangement
from amongst the promotees,
in the vacancy in these
services fill the appointment
are made under sub-rules (1)
and (2):
Provided that the
period of service spent
by the promotees on a
short term
appointment to the
service as stop-gap
arrangement shall not
be computed under
Rule 26.
gone to direct recruit
or LDCE, had not the
same been in excess
of 25% and 10%
respectively of either
of the two.
18
Rule 26
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 26. Seniority.--(1) Seniority of the officers appointed in the Service shall be determined
in accordance with the order of ppointment in the Service under
sub-rules (1) and (2) of Rule 22 of these rules.
(2)Seniority of members of the service who have been confirmed in the service prior to the
commencement of these rules shall be as has been determined by the order of the
Government as amended from time to time.
15. We may now note the necessary facts. It is clear from
resume of judgments of this Court that there is long history of
seniority dispute of the members of HJS. In the process, there
was complex and long drawn effort in determination and
redetermination of vacancies. Though, in pursuance of judgment
of this Court in All India Judges’ case (supra), amendment in the
Rules was carried out and notified on 9th January, 2007 and
principle of suitability test and roaster system were introduced, in
absence of determination of vacancies for the period from 2002
till 2007, neither the promotees could be given appointments in
spite of availability of vacancies and eligibility nor direct
recruitments could be made. Thus, recruitment for the relevant
period was initiated belatedly in the year 2007. In the absence of
suitability test, which was conducted only in the year 2008, the
19
promotees could not be given promotion. In the circumstances,
the direct recruits selected after 2007 could not be given seniority
prior to their joining. Seniority for direct recruits by following the
rota system would have operated unfairly for the promotees.
16. In this background, vacancies as on 31st December, 2006
and expected vacancies upto 31st December, 2008 were
determined for the direct recruits and promotees on 15th February,
2007.
17. After the rules were amended in the year 2007, vacancies
were worked out and advertisement was issued on 31st March,
2007. Suitability test for purposes of promotion was held on 10th
February, 2008. Final list of selected direct recruits was approved
by the Full Court on 12th July, 2008.
18. Vide order dated 11th August, 2008, appointments to the
UPHJS by way of promotion were made. Direct recruited officers
to the UPHJS were appointed between 11th September, 2008 and
24th November, 2008. Though, process for appointment was
20
conducted simultaneously, the select lists were also forwarded to
the Court simultaneously, due to observance of certain
formalities, letters of appointment for direct recruits were given
later to the promotion being affected.
19. For the recruitment year 2009, calculation of vacancies was
finalized on 24th March, 2009. The same was approved by the Full
Court on 10th April, 2009. Suitability test for promotees was held
on 29th November, 2009. Select list was approved by the Full
Court on 9th January, 2010. Appointments were notified on 7th
September, 2010. Direct recruits for the year 2009 were
appointed between 24th December, 2010 to 20th April, 2011. After
the appointments, the dispute of seniority cropped up. The direct
recruits claimed that they were entitled to be given seniority as
per rota system laid down under the Rules and that they had been
wrongly placed junior to the promotees. The promotees claimed
that their seniority should commence from the date of accrual of
vacancy, date of their eligibility and officiation and not from the
date of actual appointment.
21
20. The High Court appointed a Committee to go into the matter.
The Committee took up determination of vacancy and fixation of
seniority for the HJS officers appointed upto 1998-2000 which was
finalized on 1st August, 2011. Thereafter, determination of
vacancies and fixation of seniority of 2007 and 2009 recruitments
was considered by the committee vide its report dated 23rd
September, 2015 and 6th April, 2016. The same was approved by
the Full Court on 14th June, 2016.
21. The report of the Committee dated 23rd September, 2015
was in continuation of its earlier reports finalizing seniority lists
dated 6th May, 1995 and 13th July, 2011, with reference to officers
recruited prior to 2007. The Committee determined vacancies
vide its report dated 7th February, 2012 on the basis of which
tentative seniority lists dated 25th July, 2013 and 18th December,
2014 were published. Objections to the said tentative seniority
lists were considered in the said report.
22. The question considered by the Committee was whether
long officiation by officers of UPNS should be given due credit so
that they may not suffer on account of delay in holding suitability
22
test. Suitability test was not held due to non amendment of the
Rules upto 9th January, 2007 inspite of judgment of this Court
dated 21st March, 2002. Thus, from 21st March, 2002 to 2008
since a different regime of
Rules was stipulated under the judgment of this Court in All India
Judges case (supra) and the Rules were amended by the High
Court only on 9th January, 2007, in spite of availability of
vacancies in promotion quota, the promotee officers who were
eligible and were officiating against the said vacancies, could not
be recruited. They were recruited only after the suitability test
was held for the first time in the year 2008. The Committee thus
held that they were entitled to en bloc seniority without
rota system. The direct recruits could not be given seniority for
the period prior to their appointment. Same was the position
with regard to 2009 recruitments. The view of the Committee
was that rota system will create imbalance and injustice.
23. The direct recruits as well as the promotees were aggrieved
by the determination of their seniority and challenged the same
by filing Writ Petitions. In Writ Petition (SB) No.1880 of 2017 filed
23
by the direct recruits, respondents 134 to 173, along with others
before the High Court, prayer was for quashing the final seniority
Report dated 23rd September, 2015 (of Committee of High Court
Judges), supplementary report dated 6th April, 2016(also of a
Committee of High Court Judges) and for a direction to
redetermine seniority of the writ petitioners who were the direct
recruits on the basis of rotational system proportionate to their
quota, apart from other incidental prayers. It was submitted that
since Rule 22(2) provides for rotational basis for seniority, their
date of appointment was not conclusive for the purpose of
seniority. Accordingly, the writ petitioners sought determination
of seniority by applying roster system. The High Court and the
affected officers defended the report of the Committee as
approved by the Full Court.
24. In Writ Petition (SB) No.16569 of 2016 filed by the
promotees, challenge was to the validity of the Amendment
Rules, 2006 in so far as the Rules were retrospective. Challenge
was also to the reports of the Committees and decision of the Full
Court in so far as objections to seniority list were rejected. The
24
petitioners in the said writ petition were promoted against
vacancies of the years 2002 onwards but the said vacancies were
actually determined later. According to the said writ petitioners,
they were entitled to seniority from the date of their eligibility,
without their passing of the suitability test which was
retrospectively prescribed for the first time on 9th January, 2007.
25. The High Court examined two questions : -
(i) Whether promotees were entitled to
seniority prior to their appointment on the
ground that requirement of suitability test was
introduced for the first time in the year 2007 and
they had a vested right to be promoted against
the earlier vacancies without the suitability test.
(ii) Whether direct recruits were entitled to
the benefit of rotation in determination of
seniority. The High Court held that the
promotees could not be given seniority prior to
their selection. The retrospectivity of the Rules
prescribed suitability test was valid particularly
25
in view of judgment of this Court in V.K.
Srivastava (supra).
26. It was held that no determination of vacancies had taken
place on account of pendency of litigation which was finalized on
25th August, 2004. No direct recruitment was made after
1998-2000 upto 2005. Only after 25th August, 2004 determination
of vacancies took place. Promotions and direct recruitments were
made in respect of the said selection in the year 2005.
Promotions and direct recruitments which are subject matter of
the present case were made in 2008/2009. Thus, Writ Petition
(SB) No.16569 of 2016 was dismissed and objection of the
promotees to their seniority was rejected.
27. As regards claim of the direct recruits based on Quota-Rota
rule and post based roster system, it was observed that the same
was mandatory. It was accordingly, held that seniority was
required to be re-determined by applying the Quota-Rota.
28. The conclusions of the High Court are as follows :
26
“In view of the above, we sum up our conclusions
as under :
(1) The challenge to the vires of the 6th
amendment Rules, 2006 already having been
repelled by the Supreme Court in V.K.
Srivastava's case, is not open to
reconsideration by us.
(2) There is no factual and legal basis for the
petitioners claim to promotion from date of
occurrence of vacancies and seniority
accordingly in Writ Petition No. 16569(SB) of
2016.
(3) The determination of vacancies by the
Committee does not require any interference
but determination of seniority is not
sustainable.
(4) Considering the facts of the present case
there is no error in the appointment of direct
recruits in December, 2011 and January,
2012 w.e.f. 04.01.2007 when the last of the
selectees of the same selection had joined
following the dictum in Dr. A.K. Sirkar and in
view of Balwant Singh Narwal's case (supra).
(5) There has been a complete
non-adherence to the Quota-Rota Rule and
the determination of seniority in accordance
thereof in terms of Rule 22 and 26 of the
Rule, 1975. The judgment rendered in All
India Judges' Cases has not been followed as
was mandatorily required.
(6) The determination of seniority is patently
erroneous and contrary to Rule 26 of the
Rules, 1975 which envisages such
27
determination in accordance with the order
of appointment in the service under
Sub-Rules (1) and (2) of the Rule 22 which
necessarily means the order of
rotational/cyclical placement of appointees
from different sources of recruitment without
disturbing their inter-se placement within the
same stream/quota and not en bloc
placement on the basis of date of
appointment as has been done.”
29. We have heard learned counsel for the parties. The first
issue raised is whether the promotees recruited in the year
2008/2009 are entitled to seniority prior to their selection on the
ground that no suitability test was required prior to 9th January,
2007 and retrospective effect to such requirement was illegal. We
are in agreement with the view taken by the High Court that
suitability test was required in terms of judgment of this Court in
All India Judges’ case (supra) and under the amended Rules
applicable retrospectively which was duly upheld by this Court in
V.K. Srivastava (supra). Thus, the promotees could not be given
promotion without suitability test nor could they claim seniority
without the same. They have been rightly given seniority from
their appointments.
28
30. With regard to the Quota-Rota rule, there is no doubt that
this is a mandatory requirement of the Rules. The said
requirement has however to be seen in the peculiar fact situation.
The issue of determination of vacancies was embroiled in
continuous litigation. The Quota-Rota rule could not be applied in
the absence of determination of vacancies. The suitability test
though validly laid down could not be held till 2008 for reasons
already noted. No promotion could be given in absence of
suitability test. The rule provided for seniority of the promotees
to be fixed from the date of availability of vacancy but such
seniority could also not be given in the present fact situation. If
rota rule is applied, it will work serious prejudice to the
promotees. Thus, the Rules will have to be given pragmatic
interpretation. As laid down by this Court in Direct Recruit
Class-II Engineering Officers’ Association versus State of
Maharashtra9
, if it becomes impractical to act upon rule fixing
quota from two sources, it is no use insisting that the authority
must give effect to such a rule. Every effort has to be made to
respect a rule but if it is not feasible to enforce it, the rule has to
9 (1990) 2 SCC 715, para 23
29
be given a practical interpretation. Thus, interference by the High
Court with the seniority given to the promotees above the direct
recruits without following the rotation principle cannot be
sustained.
31. Accordingly, we allow the appeal arising out of Special Leave
Petition (Civil) No.26993 of 2017 and dismiss the Writ Petition (SB)
No.1880 of 2017 on the file of the High Court filed by the direct
recruits. We uphold the judgment of the High Court with regard to
dismissal of Writ Petition (SB) No.16569 of 2016 filed by the
promotees and dismiss the appeal arising out of Special Leave
Petition (civil) D.No.39750 of 2017.
In view of the above, all other matters will stand disposed of
accordingly.
……………………………….J.
(Adarsh Kumar Goel)
……………………………….J.
(Rohinton Fali Nariman)
New Delhi;
March 28, 2018.
30

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