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

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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

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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

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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.  

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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

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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.”

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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

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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

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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.

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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 be-

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:

(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

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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;

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(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.

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(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.

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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

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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

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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.

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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

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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 10 th

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.

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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

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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.

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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.

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