TaxTMI 
TaxTMI 
2010 (9) TMI 1076
X X X X Extracts X X X X
X X X X Extracts X X X X
....th effect from 15.3.1996. For convenience, the Rules before amendment will be referred to as the `Unamended Rules' and the Rules after the 1996 amendment will be referred to as the `Amended Rules'. As we are concerned with the recruitments for the years 1988, 1990, 1992-1994 and 1998-2000, it may be necessary to refer to the unamended Rules in regard to the recruitments relating to 1988, 1990 and 1992-1994, and the amended rules with reference to the 1998-2000 recruitment. Rules 5, 6, 8, 20, 22 and 26 are relevant and they are extracted below : "5. Source of recruitment - The recruitment to the Service shall be made - (a) by direct recruitment of pleaders and advocate of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published : (b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa, who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting applications is published: Provided that for so long as suitable officers are available from out of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 the total permanent strength of the service. Provided further that all the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules; Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to the Judicial magistrates in addition to their quota of 15 per 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 vaca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and so on), the remaining vacancies shall thereafter be filled by promotion from the list of the officers of the Nyayik Sewa. Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrates, appointments to the service shall be made in such a way that the second fifth and eighth (and so on), vacancy shall be filled from the list of Judicial Magistrates. (3) Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa. Provided that for so long as suitable officers are available from the cadre of the Judicial magistrate, appointments on temporary vacancies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrate according to the quota fixed for that source under these rules: Provided further that for so long as such members of the Judicial Service as are considered suitable for appointments on temporary vacancies or in officiating capacity, are not available in sufficient number, the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the date of continuous officiation, provided that in the case of officers appointed on the basis of one selection, their seniority shall be determined according to their seniority in the Uttar Pradesh Judicial Officers Service: Provided further that where an officer is not found fit for confirmation and is not confirmed in his turn, the officiating period prior to the date of decision taken by the High Court in this behalf shall not be taken into account for computing the period of continuous officiation. (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 Government as amended from time to time. [Note : Rule 26 of 1975 Rules was substituted in entirety by the follwing by the Amendment Rules of 1996 : 26. Seniority - (1) Seniority of the officers appointed in the service shall be determined in accordance with the order of appointment 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n." 4. Pursuant to the judgment in P.K. Dixit, the High Court issued a tentative seniority list on 11.2.1988 and objections were invited. The promotees were satisfied that the said list was drawn in conformity with the judgment in P.K.Dixit and unobjectionable. The High Court constituted a Five-Judge Committee to finalise the list. On the basis of the report of the committee, final seniority list was issued on 25.8.1988. Aggrieved by the final seniority list, the promotees (O.P. Garg and four others) filed a writ petition. The petitioners P.K. Dixit filed an application in the said petition seeking clarification and supporting the case of the promotees. The direct recruits filed a writ petition challenging the final seniority list issued by the High Court. Both sides contended, for different reasons, that the final seniority list dated 25.8.1988 was contrary to the decision in P.K. Dixit. This court found that the High Court, the direct recruits and promotees were interpreting the directions and observations in P.K. Dixit differently. Therefore this court in its judgment dated 23.4.1991, reported in O.P. Garg v. State of U.P. & Ors. - 1991 (Supp) 2 SCC 51, decided to take a fresh ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....truck down with the saving that the appointments already made under the said Sub-rules shall not be invalidated. (iv) While selecting candidates under Rule 18 of the said rules, the committee shall prepare a merit list of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment; and the appointments under Rules 22(1) and 22(2) of the Rules shall be made to permanent as well as to temporary posts from all the three sources in accordance with the quota provided under the said rules. 5. In pursuance of the decision in O.P. Garg, the High Court calculated the vacancies under different quotas for recruitment/promotion for different periods. The dispute centering around the method of calculation made by the High Court in regard to the ratio between direct recruits and promotees in a given year, again came up before this court in one more round between promotees and direct recruitees in Srikant Tripathi & Ors. v. State of U.P. & Ors. [2001 (10) SCC 237], wherein this Court issued the following directions : "1. Appointments already made to the Higher Judicial Service, whether by direct recruitment or by promotion, need not be annulled a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ears from that date. Once the vacancies are so determined, the percentage of the vacancies available for recruitment by direct recruitment and by promotion must be fixed and steps taken for filling up the same expeditiously. The number of vacancies available for the direct recruits quota must be advertised without any variation clause. The Select List prepared both for direct recruits as well as for promotees prepared by the High Court will be operative only till the next recruitment commences with the fixation of the vacancies for the next recruitment year. 6. On 30.11.2001 the Chief Justice of the High Court placed the matter before the Administrative Committee of the High Court, for implementation of the directions in Srikant Tripathi. On 5.12.2001, the Administrative Committee in turn constituted a Three Member Sub-Committee to examine and submit a report. The Sub-Committee examined the matter and submitted a report dated 24.8.2002, determining the actual number of vacancies available for the 1988, 1990, 1992-1994 and the 1998 (initiated in 2000) and the actual recruitments made, with other details. We extract below the operative portion of the said report: "The office on re-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ota of direct recruits in 1988 recruitment, no question thus arises for the seniority of the direct recruits being adjusted in the next recruitment. On the same basis, similar exercise was made in relation to subsequent recruitments of 1990 and 1992-94 batches. The position of the actual vacancies available for these recruitments has been exhibited in the charts on pages 38 and 48 respectively. For the latest recruitment of 2000, the court has fixed the number of direct recruits to be recruited as 38. We have worked out the total number of vacancies available for this recruitment and they have been indicated in the chart shown on page 69. From this chart it would appear that maximum number of direct recruits who could be appointed under the Rules comes to 38. Advertisement has also been made for making 38 appointments within the quota of direct recruits. In this view of the mater 38 appointments within the quota of direct recruits has to be made in the 2000 recruitment. We have been told that examination has already been held but its result is awaited as vacancies were to be calculated afresh in the light of the directions of the Apex Court in the case of Shri Kant Tripathi. Dire....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 117 261 _____ 378 196 176 _____ 372 Allotment of vacancies Promotees Direct recruits 267 47 119 21 321 57 316 56 Cadre strength Permanent Temporary Total 376 219 _____ 595 511 85 _____ 596 572 169 _____ 741 572 226 _____ 798 15% of cadre strength (maximum number of direct recruits permissible with reference to cadre strength) 89 89 111 120 Actual number of direct recruits working 47 73 66 82 Maximum number of direct recruits who could be appointed 42 16 45 38 Actual recruitment Promotees Direct recruits 191 24 17 5 161 (48+113) Permissible:334 Permissible : 38 Vacancies kept reserved for SC/ST 3 1 Unfilled to be carried forward 96 117 196 7. The promotees were aggrieved by the acceptance of the Report by the Full Court. They contended that calculations made by the Sub-Committee and the conclusion arrived by it that that the actual number of direct recruitment made for the said years was not in excess of the quota available for direct recruits, were erroneous. According to them, the posts available in the quota of promotees (Nyayik Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... quota or not, simultaneous exercise has to be done for compliance of direction no.3 in S.K. Tripathi and vacancies of the quota of promotees shall be deemed to have been filled up from the date they are entitled to promotion. (4) Thirty one posts of the service which have been transferred to Uttaranchal with effect from 30.9.2001 shall be excluded while determining the strength of the service in order to work out 15% of the quota of direct recruits. (5) Out of 13 unnoticed vacancies, found by the office in the year 1988 only two vacancies equal to 15% of the quota of direct recruits be given to them instead of adjusting five appointments en bloc and again giving one out of eight vacancies to them applying 15% quota rule. (6) The second proviso to Rule 6 be also given effect to as and when the occasion arises. The Division Bench issued a consequential direction that the State Government and the High Court cannot be permitted to appoint thirty eight direct recruits for the 1998 recruitment year and permitted the State and the High Court to proceed with the appointment of direct recruits for 1998 not exceeding twenty four and also fill up 334 posts by promotion subject to the fin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the permanent strength of the cadre and as such form part of the cadre." 11. On the contentions raised, the following questions arise for our consideration : (i) Whether the vacancies occupied by judicial officers promoted and appointed against temporary posts under Sub-Rules (3) or (4) of Rule 22 should be excluded when computing the respective quotas for promotees and direct recruits? (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 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 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 erro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed to the extent of 15% which was the quota of direct recruits, resulting in the reversion of those who were promoted to vacancies to which direct recruits were entitled and filling those vacancies by direct recruitment. But, this Court did not want any of the appointments already made under the sub-rules 22(3) and (4) to be invalidated. It, therefore, extended limited protection to those appointments of promotees already made to the higher temporary posts which ought to have gone to the direct recruits quota by directing that appointments already made under Rules 22(3) and 22(4) shall not be invalidated. This saved such promotees from reversion. What was saved was only their appointments and not the seniority by reason of the illegal appointments. The effect of saving the promotee from invalidation of the promotion is that he would be allowed to continue, but his seniority will be reckoned only when he is adjusted against a promotee vacancy in the next recruitment. Therefore all the consequences of striking down Rules 22(3) and 22(4) followed, the only consequence that was excluded was the invalidation of appointments already made by applying the said sub-rules 22(3) and 22(4). Su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the wording of Rule 8(2) and its first proviso, there is a ceiling of 15% of the total permanent strength for direct recruits. They contend that while the appointments by direct recruitment could not exceed 15% of the strength of the service, the appointment by promotion can exceed the quota of 85%. On the other hand, the direct recruits contend that their quota is 15% of the strength of the service. They point out that even if any shortfall in the number of selected direct recruits is filled by increasing the number of promotees, at the next recruitment, the shortfall has to be made good while fixing the number of vacancies to be filled by direct recruits and by promotion and this showed that their quota was 15%. 16. Both sides relied upon the decision of this Court in O,P, Singla vs. Union of India - (1984) 4 SCC 450, in support of their respective contentions. While the promotees relied upon para 16 of O.P. Singla to contend that the Rules refer to the 15% as a ceiling for appointment of direct recruits and there is no obligation to fill 15% of the vacancies with direct recruits, direct recruits relied upon para 17 of O.P. Singla, to contend that the Rules prescribe a quota of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. This provision leaves no doubt that the overall scheme of the rules and the true intendment of the proviso to Rule 7 is that 1/3rd of the substantive posts in the Service must be reserved for direct recruits. Otherwise, there would neither be any occasion nor any justification for rotating vacancies between direct recruits and promotees. Rule 8(2), which deals with fixation of seniority amongst the members of the Service, provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the proviso prescribes "quotas" and reserves vacancies for both categories. The language of the proviso to Rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for direct recruits. But the proviso, as I have stated earlier, must be read along with Rule 8(2) since the two provisions are inter-related. Their combined reading yields but one result, that the proviso prescribes a quota of 1/3rd for direct recruits." (emphasis supplied) 17. Whether the Rules provide for a specific fix....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under no situation, the number of direct recruits would exceed 15 percent of the cadre strength, there is no prohibition so far as promotees are concerned and, therefore, in a given situation, the rule contemplates of having promotees more than the quota fixed for them viz. 85 per cent. As we have stated earlier, this issue has not cropped up in the present batch of cases and as such, we need not further probe into the matter. But it must be remembered that the rules only provide the embargo that under no circumstances the Direct Recruits would exceed the 15% of cadre strength. But that does not compel the High Court to recruit 15% of the vacancies by direct recruitment at every recruitment." (Emphasis supplied) 18. Though the Rules do not compel the High Court to recruit 15% of the vacancies by direct recruitment at every recruitment, they require the High Court to take note of any shortfall in the number of direct recruits at recruitment, during the next recruitment by raising the quota correspondingly. Thus when the first proviso to Rule 8(2) uses the words that the "percentage of direct recruits in the services does not in any case exceed 15%", the intention is to ensure that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....10 in direct recruitment, at the earlier recruitment and correspondingly increase the quota of direct recruits. This means while fixing the vacancies to be filled by direct recruits at a recruitment, the fact that lesser number of direct recruits were appointed at the last recruitment has to be taken note of and the vacancies to be filled by direct recruits is to be increased to cover the previous shortfall. But such adjustment should be done in such a manner, that the total direct recruits in the service do not exceed 15% of the strength of the service. This is conveniently done by calculating the total entitlement of direct recruits (that is 15% out to the total strength), finding out the actual posts occupied by direct recruits and calculating the difference which will be the entitlement of direct recruits. As a result, the shortfall is made up by increasing the posts to be filled by direct recruitment. Therefore when there has been a shortfall in direct recruits in an earlier recruitment, the number fixed for direct recruits at a subsequent recruitment will necessarily exceed 15% of the vacancies for which the subsequent recruitment is being held, by reason of the fact that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anent as well as temporary posts. The substantive vacancy has not been defined under the 1975 Rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under Rule 4(4) of the 1975 Rules are additions to the permanent strength of the cadre and as such form part of the cadre. Appointments under Rule 22 of the 1975 Rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre strength the appointment against the said post has to be treated as substantive appointment." "29. Recruitment to the service under the 1976 Rules is from three sources and is based on quota as provided therein. The cadre consists of permanent as well as temporary posts. We have already interpreted the seniority rule to mean that the seniority of the direct recruit is to be determined from the date of his joining the service and that of promotee on the basis of continuous officiation/service from the date when a vacancy whether permanent or temporary, becomes available in his quota. With these characteristics of the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e service shall be made from three sources including the direct recruits. Rule 6 fixes the quota for various sources of recruitment to the service and allocates 15 per cent of the posts in the service to the direct recruits. Rules 5 and 6 read with Rule 22(2) provide for appointments to the service in accordance with quota. These rules have to be read homogeneously and as a part of the same scheme. The service having comprised of three sources including the direct recruitment there is no justification to deprive the direct recruits of their share in the temporary posts in the service. Unless the direct recruits are given their due quota in the temporary posts the seniority rule cannot operate equitably. We see no justification whatsoever in having Rules 22(3) and 22(4) of the 1975 Rules which deprive one of the sources of recruitment the benefit of appointment to the temporary posts. The rules on the face of it are discriminatory. There is no nexus with the object sought to be achieved by framing the abovesaid rules. We, therefore, strike down Rules 22(3) and 22(4) of the 1975 Rules being discriminatory and violative of Articles 14 and 16 of the Constitution of India. We, however, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ervice." The words "total permanent" were omitted from the first proviso to Rule 8(2) only by the amendment Rules of 1996 with effect from 15.3.1996. 25. If Rule 8(2) is to be read in the manner suggested by the promotees, it would nullify the decision in O.P.Garg which held that the direct recruits were entitled to 15% quota not only in the permanent strength of the service but also in the temporary posts. This court in O.P.Garg, apparently did not strike down the word "permanent" in the latter part of the first proviso to Rule 8(2) while striking down Rule 22(3) and 22(4) as it apparently assumed that rule 8(2) and the first proviso thereto were applicable only in a contingency referred to in Rule 8(2). The rule making authority rightly understood the decision and proceeded on the basis that if sub-rules (3) and (4) of Rule 22 were invalid and the direct recruits were entitled to 15% quota even in the temporary posts, then the word "permanent" should be deleted in the first proviso to Rule 8(2). That is why the rule making authority while substituting Rule 22 in the rules in 1996 in pursuance of the decision in O.P.Garg striking down sub-rules (3) and (4) of Rule 22, simultaneou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce with direction No.3 in Srikant Tripathi and vacancies of the quota of promotees shall be deemed to have been filled up from the date they were entitled to promotion. 28. The first part of the third direction in the impugned order depends upon the result of the exercise undertaken in pursuance of its second direction. We have held that directions 1 and 2 in the impugned order of the High Court are contrary to the decision in O.P.Garg. In view of it, the question of undertaking any exercise as per the second direction of the impugned order does not arise. All that therefore remains out of the third direction in the impugned order is reiteration of direction No.3 of Srikant Tripathi. The third direction in the impugned judgment to the extent it reiterates direction No.3 in Srikant Tripathi has to be upheld. There is no question of unfilled vacancies being carried forward for the purpose of fixing the number of officers to be taken at the next recruitment. The total vacancies to be filled at a recruitment shall have to be filled by applying sub- rules (1) and (2) of Rule 8 and its provisos. In that sense all vacancies, which are not filled by direct recruitment, get filled by promo....