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Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

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

VERSUS

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

WITH

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

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

VERSUS

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

&

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

Arvind Kumar Sudhanshu & Ors.   …Appellant (s)

VERSUS

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

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.  

2. Since  the  issues  involved  in  the  above  appeals  are  

identical,  all  these  appeals  are  disposed  of  by  this  common  

judgment.   We,  however,  refer  to  the  facts  dealt  with  by  the  

Division Bench of the High Court in SLP (C) 11924-25/2012 by  

judgment dated 02.03.2012.

3. The  challenge  in  the  writ  petitions  was  to  the  

appointment made by the High Court to the post of Direct Recruit  

District Judges in the unfilled reserve vacancies, to the extent of  

34  in  number  by  way  of  promotion  from  the  ‘in  service  

candidates’  by applying Rule  8(2)  of  the Uttar  Pradesh Higher  

Judicial  Service  Rules,  1975  (hereinafter  referred  to  as  “the  

Rules”). The Division Bench of the High Court dismissed the writ  

petitions.  Aggrieved,  the  appellants  have  come  forward  with  

these appeals.  

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4. To trace the brief  facts,  on 15.04.2009 the High Court  

notified and called for applications for filling up 68 vacancies in  

the Higher  Judicial  Service.  Of  the 68 vacancies,  24 vacancies  

were meant for open category,  21 for Other Backward Classes  

(OBC), 21 for SC and 2 for ST. It is not in dispute that all the 24  

vacancies in the open category got filled up on merits. Of the 21  

vacancies in the OBC, 10 alone could be appointed leaving 11  

vacancies to remain. All the SC/ST vacancies numbering 23 were  

also not filled up. In the unfilled 34 vacancies,  the High Court  

promoted  the  ‘in  service  candidates’.  The  appellants  were  

successful  in  the written test  and also attended the interview.  

According to the appellants, even applying Rule 8(2) of the Rules,  

all the 68 vacancies were direct recruit vacancies and that in the  

first instance, the unfilled vacancies should have been filled up  

only  from  the  other  successful  candidates  from  the  direct  

recruitment source. In other words, the contention was that only  

if  no  other  successful  candidate  was  available  from the direct  

recruit source belonging to any of the categories, namely, open  

category or any other category such as OBC or SC/ST then and  

then alone the High Court could have resorted to promotion of ‘in  

service  candidates’.  To  put  it  differently,  according  to  the  

appellants  since  the  posts  advertised  were  by  way  of  direct  

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recruitment,  it  was  meant  for  that  particular  source  of  

recruitment,  namely,  “direct  recruit”  and  all  those  successful  

candidates of that source alone, namely, ‘direct recruit’ were in  

the first instance eligible to be considered for being appointed to  

the unfilled posts of any of the categories, namely, open or OBC  

or SC or ST and in the event of unavailability of any candidate  

from that source then and then alone the High Court could have  

resorted to filling up of those posts by way of promotion of ‘in  

service  candidates’.  Since,  the  above  submission  of  the  

appellants did not find favour with the High Court, the appellants  

are before us.  

5. We heard  Mr.  Dwivedi,  learned Senior  Counsel  for  the  

appellants  Mr.  Ashok  Srivastava,  learned  counsel  for  the  High  

Court and Mr. Irshad Ahmad, Additional Advocate General for the  

State.  

6. The contentions of Mr.  Dwivedi  learned Senior Counsel  

while assailing the judgment of the High Court were three-fold.  

The learned Senior Counsel submitted that in order to apply the  

rule of reservation by the High Court, as has been stipulated in  

the  Uttar  Pradesh  Public  Services  (Reservation)  for  Scheduled  

Casts  and  Scheduled  Tribes  and  Other  Backward  Classes  Act,  

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1994 (hereinafter referred to as “the Reservation Act of 1994”),  

there  should  have  been  express  adoption  of  only  orders  

pertaining to such reservation passed by the Government and not  

the Act itself. The said contention of learned Senior Counsel was  

based  upon  the  specific  contents  of  Rule  7  of  the  Rules.  The  

learned Senior Counsel then contended that in order to apply the  

rule  of  reservation under Rule  7,  the High Court  should adopt  

such  Order  pertaining  to  reservation  and  according  to  the  

appellants there was no adoption of either any of the order of the  

Government providing for  reservation or the application of  the  

Reservation Act of 1994 itself as claimed by the High Court. It  

was then contended that the claim of the High Court that the  

High Court adopted the rule of reservation under Rule 7 was not  

true. It was lastly contended that assuming the High Court was  

correct  in  claiming that  the whole  of  the Reservation Act  was  

adopted  by  it  then  Section  3(2)  of  the  Reservation  Act  was  

violated and consequently the filling up of the unfilled posts of  

direct recruits of the year 2009 by way of promotion of ‘in service  

candidates’  was  liable  to  be  set  aside.  In  support  of  his  

submissions, learned Senior Counsel relied upon the Constitution  

Bench  decision of  this  Court  reported in  State of  Bihar and  

Another v. Bal Mukund Sah & Others -  (2000) 4 SCC 640  

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(CB), as well as the decisions reported in  Ashok Pal Singh &  

Ors. v. Uttar Pradesh Judicial Services Association & Ors.-   

(2010) 12 SCC 635, State of U.P. & Anr. v. Johri Mal - (2004)  

4 SCC 714, Union of India v. Naveen Jindal & Anr. - (2004) 2  

SCC 510 and  Sri  Dwarka Nath Tewari  & Ors.  v.  State of  

Bihar & Ors. - AIR 1959 SC 249 (CB).  

7. As  against  the  above  submissions  Mr.  Raghvendra  

Shrivastava,  learned  standing  counsel  for  the  High  Court  

submitted  that  the  appellants  have  no  locus  to  challenge  the  

appointments made to the posts meant for reserved category,  

that under Article 13(3) of the Constitution, a law would include  

inter alia an Act, rules, regulations and orders of the Government  

and, therefore, the adoption of the whole of the Reservation Act  

by the High Court cannot be faulted. He placed reliance upon the  

decision of this  Court reported as  R.K. Sabharwal & Ors. v.   

State of Punjab & Ors. -  (1995) 2 SCC 745 and  Pashupati  

Nath Sukul v. Nem Chandra Jain & Ors. - (1984) 2 SCC 404.  

According to learned standing counsel, as per the proceedings of  

the Selection Committee meeting, which was also approved by  

the Full Court, the Reservation Act on the whole was adopted in  

accordance with Rule 7 of the Rules and, therefore, the action of  

the  High  Court  could  not  have  been  challenged.  The  learned  

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standing counsel by referring to an order passed by this Court in  

the earlier round in I.A. No.87 of 2010 contended that applying  

Section 3(2) of the Reservation Act and as directed by this Court  

in the said order, selection was again held in the same year to fill  

those unfilled reserved vacancies and as in that process also, the  

seats could not be filled up, the High Court invoked Rule 8(2) of  

the  Rules  by  promoting  the  ‘in  service  candidates’  to  those  

unfilled  vacancies.  The  learned  standing  counsel  further  

contended that the proviso to Rule 8(2) was strictly followed and  

those vacancies of the year 2009 which were filled up from ‘in  

service  candidates’  were  subsequently  carried  forward  in  the  

subsequent years as reserved category vacancies.  The learned  

counsel, therefore, contended that there was no violation in the  

appointment and filling up of Direct Recruit District Judge posts of  

the year 2009 and no interference is called for by this Court.

8. Having heard learned counsel for the respective parties,  

the questions that arise for consideration in these appeals are as  

under:

a) Whether the appellants have the locus standi  to challenge the appointments made by the High  Court in the filling up of the unfilled vacancies of  the reserved categories in the Direct Recruitment  

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Posts  by  way  of  promotion  of  the  ‘in  service  candidates’?

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

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

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

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

9. As far as the first question is concerned, namely, about  

the locus of the appellants which was raised at the instance of  

learned standing counsel  for the High Court,  it  was contended  

that the appellants belonged to general category and the posts  

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which  were  filled  up  were  all  reserved  category  posts  and,  

therefore, appellants had no locus to challenge the action of the  

High Court. In support of the said contention, reliance was placed  

upon the Constitution Bench judgment of this Court reported in  

R.K. Sabharwal (supra).  In paragraph 4, this Court held that  

when a percentage of reservation is fixed in respect of particular  

cadre,  the fact  that considerable number of  reserved category  

candidates got appointed against the general category, the given  

percentage  of  reservation  has  to  be  provided  in  addition.  By  

relying upon the said ratio of the judgment, it was contended that  

the appellants had no locus.  

10. When  we  test  the  contention  of  the  learned  standing  

counsel, it will have to be pointed out that the challenge in the  

writ petition before the High Court was to the appointment made  

to the unfilled vacancies of ‘reserve category’ posts by way of  

promotion of ‘in service candidates’ in violation of Rule 8(2) of  

the  Rules.  The  contention  was  that  while  making  such  

appointments by way of promotion, the High Court ignored the  

successful candidates who competed in the ‘direct recruit’ source  

though they belonged to the general  category.   The challenge  

was on the ground that since the source of recruitment was direct  

recruitment,  unless  the  candidates  available  in  the  direct  

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recruitment  source  were  considered  in  the  first  instance  for  

appointment, the High Court could not have resorted to filling up  

of those posts by way of promotion of ‘in service candidates’. In  

fact, it is not the stand of the High Court that the posts in the  

reserve category were kept intact for being considered by way of  

selection and appointment from the reserve category candidates  

as provided under Section 3(2) of the Reservation Act of 1994. A  

glance of Section 3(2) for the present purpose, would show that  

in the event of inability to fill up the reserved category posts, the  

process of selection should be continued in the very same year in  

which the selection was earlier  made and even thereafter if  it  

remained unfilled, the post should be kept vacant for the future  

years of recruitments. Since the High Court has not adopted the  

said procedure except making an attempt to fill  up by way of  

selection in that year itself as directed by this Court in I.A. No.87  

of 2010, it must be stated that there was every scope to contend  

that  the  procedure  prescribed  under  Section  3(2)  of  the  

Reservation  Act  of  1994 was  not  strictly  adhered to.  Whether  

Section  3(2)  will  be  applicable  at  all  is  one  other  question  

involved  in  this  appeal  with  which  we  will  make  a  detailed  

consideration at an appropriate stage.  

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11. In the above stated background, when we examine the  

contention  of  learned  standing  counsel  for  the  High  Court  as  

regards  the  locus  of  the  appellants,  it  must  be  stated  that  a  

larger issue as to the entitlement of the appellants as successful  

candidates  belonging  to  ‘direct  recruit’  source  to  seek  

appointment to the unfilled posts of  that very source, namely,  

‘direct  recruit’  though  belonging  to  reserved  category,  merits  

consideration and would not disentitle the appellants to raise a  

challenge as made in the writ petition. If the appellants are able  

to make out a case on the said contention,  it  will  have to be  

stated that their challenge to the filling up of the posts as made  

by the High Court by adopting the procedure prescribed under  

Rule  8(2)  can  be  validly  raised  as  a  point  of  challenge.  

Consequently,  it  will  have  to  be  held  that  the  appellants  had  

every  locus  to  challenge  the  appointment  made  by  the  High  

Court by invoking Rule 8(2) of the Rules. In the light of the above  

special features in this case, we do not find any scope to apply  

the decision relied upon by learned counsel for the High Court  

which stands on entirely different principle.  

12. While examining this contention based on Rule 7 as well  

as Rule 8(2) of the Rules of the High Court, we feel it appropriate  

to refer to a Constitution Bench decision of this Court reported in  

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State of Bihar v. Bal Mukund Sah (supra) and  Ashok Pal  

Singh (supra). In the Constitution Bench decision, the question  

which was posed for consideration was “whether the Legislature  

of the appellant State of Bihar was competent to enact the Bihar   

Reservation of  Vacancies in Posts  and Services (for  Scheduled   

Castes, Scheduled Tribes and Other Backward Classes) Act, 1991  

(hereinafter referred to as “the Act”), insofar as Section 4 thereof   

sought to impose reservation for direct recruitment to the posts   

in the Judiciary of  the State,  subordinate to the High Court  of   

Patna, being the posts of District Judges as well as the posts in   

the  lower  judiciary  at  the  grass-root  level,  governed  by  the   

provisions of the Bihar Judicial Service (Recruitment) Rules, 1955.   

Civil  Appeal  No.9072  of  1996  deals  with  the  question  of   

reservation  in  the  posts  in  the  District  Judiciary  while  the   

companion  appeal  deals  with  the  posts  in  the  Subordinate   

Judiciary  at  grass-root  level  under  the  District  Courts   

concerned……”

13. While  dealing  with  the  said  contention,  the  points  for  

determination were formulated in paragraph 17 which reads as  

under:

“17. In the light of  the aforesaid rival  contentions,  the following points arise for our determination:

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1.  Whether  the  impugned  Act  of  1991 on its  express language covers “Judicial  Service” of Bihar  State.

2. If the answer to Point 1 is in the affirmative,  whether  the  provisions  of  the  impugned  Act,  especially, Section 4 thereof in its application to the  Subordinate  Judiciary  would  be  ultra  vires  Articles  233 and 234 of the Constitution of India and hence  cannot be sustained.

3.  In  the  alternative,  whether  the  aforesaid  provisions of the Act are required to be read down by  holding that  Section 4 of  the Act  will  not  apply to  direct  recruitment  to  the  posts  comprised  in  the  Bihar  Superior  Judicial  Service  as  specified  in  the  Schedule to the Bihar Superior Judicial Service Rules,  1951 as well as to the Bihar Judicial Service governed  by  the  Bihar  Judicial  Service  (Recruitment)  Rules,  1955, comprising of the posts of Subordinate Judges  and Munsiffs under the District Judiciary.

4. What final order. Before  we  deal  with  the  aforesaid  points  for  determination, it  will  be necessary to keep in view  the  relevant  provisions  of  the  Constitution  which  have  a  direct  impact  on  the  resolution  of  the  controversy projected by these points.”

14. On point number one, the Constitution Bench took the  

view as under in paragraph 27:

“27......On the aforesaid scheme of  the Act,  the High  Court in the impugned judgment,  has taken the view  that  the  operation  of  Section  4  for  offices  or  departments of the Judiciary of the State of Bihar would  cover only the Ministerial Staff of the District Courts and  courts  subordinate  thereto  and  would  not  include  Presiding  Officers  and  therefore,  Section  4  will  not  govern the direct recruitment to the posts of Presiding  Officers  of  the  District  Judiciary  as  well  as  of  the  Subordinate  Judiciary.  It  is  difficult  to  appreciate  this  line  of  reasoning  on  the  express  language  of  the  relevant provisions of Section 4 read with the definition  provisions.  It  becomes  obvious  that  the  term  “any  

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office”  of  the  Judiciary  of  the  State  of  Bihar  would  naturally  include  not  only  Ministerial  Staff  but  also  officers, including Presiding Officers of courts comprised  in  the Judiciary  of  the State.  Once  that  conclusion  is  reached  on  the  express  language  of  the  relevant  provisions of the Act, it cannot be held that the thrust of  Section  4  would  not  apply  to  govern  reservation  for  direct recruitment to the posts of Presiding Officers in  the  District  Courts  as  well  as  courts  subordinate  thereto, as all of them will form part and parcel of the  Judiciary  of  the  State  of  Bihar  and  will  have  to  be  treated  as  holders  of  offices  in  the  State  Judiciary.  Consequently,  it  is  not  possible  to  agree  with  the  contention of  learned Senior  Counsel,  Shri  Thakur  for  the High Court that on the express provisions of the Act,  Section 4 cannot apply to govern recruitment to posts  in  the  Subordinate  Judiciary.  The  first  point  for  determination,  therefore,  has  to  be  answered  in  the  affirmative in favour of the appellants and against the  respondents.”

15. On point number two, the position was stated as under in  

paragraphs 30, 31 and 32:

30. It has also to be kept in view that neither Article  233 nor Article 234 contains any provision of being  subject  to  any  enactment  by  the  appropriate  Legislature as we find in Articles 98, 146, 148, 187,  229(2)  and  324(5).  These  latter  Articles  contain  provisions  regarding  the  rule-making  power  of  the  authorities concerned subject to the provisions of the  law made by Parliament or the Legislature.  Such a  provision is conspicuously absent in Articles 233 and  234 of the Constitution of India. Therefore, it is not  possible  to  agree  with  the  contention  of  learned  counsel  for  the  appellant  State  that  these  Articles  only  deal  with  the  rule-making  power  of  the  Governor, but do not touch the legislative power of  the competent Legislature.  It has to be kept in view  that once the Constitution provides a complete code  

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for  regulating  recruitment  and  appointment  to  the  District Judiciary and to the Subordinate Judiciary, it  gets  insulated  from  the  interference  of  any  other  outside agency. We have to keep in view the scheme  of the Constitution and its basic framework that the  Executive  has  to  be  separated  from the  Judiciary.  Hence, the general sweep of Article 309 has to be  read  subject  to  this  complete  code  regarding  appointment  of  District  Judges  and  Judges  in  the  Subordinate Judiciary.

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

32. It  is  true,  as  submitted  by  learned  Senior  Counsel,  Shri  Dwivedi  for  the  appellant  State  that  under Article 16(4) the State is enabled to provide for  reservations  in  services.  But  so  far  as  “Judicial  Service” is concerned, such reservation can be made  by the Governor, in exercise of his rule-making power  only  after  consultation  with  the  High  Court.  The  enactment  of  any  statutory  provision  dehors  consultation with the High Court  for  regulating the  recruitment  to  the  District  Judiciary  and  to  the  Subordinate Judiciary will clearly fly in the face of the  complete scheme of recruitment and appointment to  the  Subordinate  Judiciary  and  the  exclusive  field  earmarked in connection with such appointments by  Articles  233 and 234.  It  is  not  as  if  that  the  High  Courts  being  constitutional  functionaries  may  be  oblivious of the need for a scheme of reservation if  necessary  in  appropriate cases by resorting to  the  enabling  provision  under  Article  16(4).  The  High  

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Courts can get consulted by the Governor for framing  appropriate rules regarding reservation for governing  recruitment under Articles 233 and 234. But so long  as  it  is  not  done,  the  Legislature  cannot,  by  an  indirect  method,  completely  bypassing  the  High  Court and exercising its legislative power, circumvent  and cut across the very scheme of recruitment and  appointment to the District Judiciary as envisaged by  the  makers  of  the  Constitution.  Such  an  exercise,  apart  from  being  totally  forbidden  by  the  constitutional  scheme,  will  also  fall  foul  on  the  concept  relating to  “separation of  powers  between  the Legislature, the Executive and the Judiciary” as  well as the fundamental concept of an “independent  Judiciary”. Both these concepts are now elevated to  the level of basic structure of the Constitution and  are the very heart of the constitutional scheme.”  

     (Emphasis added)

16. Ultimately by referring to the Constitutional mandate of  

Articles 233 and 234, it was held as under in paragraph 38:

“38. Shri  Dwivedi,  learned  Senior  Counsel  for  the  appellant  State  was  right  when he  contended that  Article 16(4) is an enabling provision permitting the  State to lay down a scheme of reservation in State  services. It may also be true that Judicial Service can  also be considered to be a part of such service as  laid down by this  Court in  the case of  B.S.  Yadav.  However,  so far  as  the question of  exercising  that  enabling power under Article 16(4) for laying down  an appropriate scheme of reservation goes, as seen  earlier,  we cannot be oblivious of the fact that the  High Court, being the high constitutional functionary,  would also be alive to its social obligations and the  constitutional  guideline  for  having  a  scheme  of  reservation  to  ameliorate  the  lot  of  deprived  reserved categories like SC, ST and Other Backward  Classes. But for that purpose, the Governor can, in  consultation with the High Court, make appropriate  rules  and  provide  for  a  scheme  of  reservation  for  

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appointments  at  grass-root  level  or  even  at  the  highest level of the District Judiciary, but so long as  this  is  not  done,  the  State  Legislature  cannot,  by  upsetting the entire apple cart and totally bypassing  the constitutional mandate of Articles 233 and 234  and without being required to consult the High Court,  lay  down  a  statutory  scheme  of  reservation  as  a  roadroller straitjacket formula uniformly governing all  State services,  including the Judiciary.  It  is  easy to  visualise that the High Court may, on being properly  and  effectively  consulted,  endorse  the  Governor’s  view to enact a provision of reservation and lay down  the percentage of reservation in the Judicial Service,  for  which  it  will  be  the  appropriate  authority  to  suggest  appropriate  measures  and  the  required  percentage of reservation, keeping in view the thrust  of Article 335 which requires the consideration of the  claim of members of SC, ST and OBC for reservation  in services to be consistent with the maintenance of  efficiency  of  administration.  It  is  obvious  that  maintenance of efficiency of judicial administration is  entirely within the control and jurisdiction of the High  Court  as  laid  down  by  Article  235.  The  State  Legislature,  on  its  own,  would  obviously  lack  the  expertise and the knowledge based on experience of  judicial  administration  which  is  possessed  by  the  High Court. Consequently, bypassing the High Court,  it  cannot,  in  exercise  of  its  supposed  paramount  legislative  power  enact  any  rule  of  thumb  and  provide a fixed percentage of reservation for SC, ST  and Other Backward Classes in Judicial Services and  also lay down detailed procedure to be followed as  laid down by sub-sections (3) to (6) of Section 4 for  effecting such statutorily fixed 50% reservation. It is  easy  to  visualise  that  if  the  High  Court  is  not  consulted and obviously cannot be consulted while  enacting  any  law  by  the  State  Legislature  and  en  bloc  50%  reservation  is  provided  in  the  Judicial  Service as is sought to be done by Section 4 of the  Act  and  which  would  automatically  operate  and  would present the High Court with a fait accompli, it  would be deprived of the right to suggest during the  constitutionally guaranteed consultative process,  by  way  of  its  own  expertise  that  for  maintenance  of  

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efficiency  of  administration  in  the  Judicial  Service  controlled  by  it,  50%  reservation  may  not  be  required, and/or an even lesser percentage may be  required or even may not  be required at all.  Even  that  opportunity  will  not  be  available  to  the  High  Court if it is held that the State Legislature can enact  the  law  of  reservation  and  make  it  automatically  applicable to the Judicial Service bypassing the High  Court  completely.  Such  an  exercise  vehemently  canvassed  for  our  approval  by  learned  Senior  Counsel  for  the  appellant  State  cannot  be  countenanced  on  the  express  scheme  of  the  Constitution,  as  discussed  by  us  earlier.  Even  proceeding on the basis that the scheme of Article  16(1) read with Article 16(4) may be treated to be  forming  a  part  of  the  basic  feature  of  the  Constitution,  it  has  to  be  appreciated  that  for  fructifying such a constitutional scheme Article 335  has to be kept in view by the authority concerned  before  such  a  scheme  of  reservation  can  be  promulgated. Once Article 335 has to be given its full  play  while  enacting  such a  scheme of  reservation,  the High Court, entrusted with the full control of the  Subordinate  Judiciary  as  per  Article  235  by  the  Constitution, has got to be consulted and cannot be  treated  to  be  a  stranger  to  the  said  exercise  as  envisaged by the impugned statutory provision.

(Emphasis added)

17. While  thus  highlighting  the  basic  features  of  the  

Constitution  which  aimed  at  preserving  the  independence  of  

judiciary as mandated in Articles 233 to 235 of the Constitution,  

this Court had the occasion to deal with the Rules of the High  

Court in the subsequent decision reported in  Ashok Pal Singh  

(supra). In the said decision, the points for consideration have  

been  set  out  in  paragraph  16  and  what  are  relevant  for  our  

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purpose  are  sub-paragraphs  (ii),  (iii)  and  (iv)  which  reads  as  

under:

“16.(ii) Whether the direct recruits are entitled to 15%  of the vacancies as a fixed quota or whether the said  percentage  is  a  ceiling  imposed  in  regard  to  direct  recruitment meaning that the vacant posts shall not be  filled up more than 15% by the direct recruits?

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

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

18. While dealing with the said questions, this Court has held  

as under in paragraphs 28 and 40:

“28. To conclude,  the following clear indicators show  that the quota of direct recruits is “15%” and not “up to  15%”:

(a) Rule 6 uses the words “15% of the vacancies”  as the quota of  direct  recruits  and does not  use the  words “not more than 15% of the vacancies”.

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(b) The purpose and intent of Rule 8(2) is not to  dilute or change the quota of direct recruits. Its object is  to ensure that no vacancy remains unfilled for want of  adequate number of  direct  recruits  under their  15%   quota. This is because there are reasonable chances of  adequate number of candidates being not available for  direct recruitment, whereas usually sufficient number of  candidates  will  be  available  for  promotion.  The  first  proviso to Rule 8(2) ensures that the shortfall  in 15%  quota for direct recruits in any recruitment does not get  permanently converted to promotee quota, by providing  that  the  shortfall  shall  be  made  good  at  the  next  recruitment. The words “does not in any case exceed  15%”  are  used  to  further  ensure  that  while  making  good  the  shortfall  of  direct  recruits  at  the  next  recruitment,  the direct  recruits  do not encroach upon  the quota of promotees.

(c) The provision for appointment to the service by  rotational system [that is Rule 22(2) providing that the  first vacancy to be filled from the list of Nyayik Sewa  Officers and the second vacancy to be filled from the  list of direct recruits and so on], makes it clear that the  overall scheme of the Rules is to provide a clear 15%  quota for direct recruits.

40…….The total vacancies to be filled at a recruitment  shall have to be filled by applying sub-rules (1) and (2)  of Rule 8 and its provisos. In that sense all vacancies,  which are not filled by direct recruitment, get filled by  promotion and there will be no carry over. There is only  a  limited  “carry  over”  of  unfilled  direct  recruitment  vacancies  in  the manner  stated in Rule  8(2)  and the  first proviso thereto.” (Emphasis added)

19. Since the Constitution Bench of this Court has dealt with  

the  larger  question  as  to  how  the  constitutional  mandate  as  

provided under Article 16(1) and (4) qua Article 335 on the one  

hand and Articles 233 to 235 on the other is  to be reconciled  

made it  clear that while the scheme of Article 16(1) read with  

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Article  16(4)  may  be  treated  to  be  forming  part  of  the  basic  

feature  of  the  Constitution,  by  Articles  233  to  235  of  the  

Constitution, full  control of the judiciary having been entrusted  

with  the  High  Court  is  also  equally  a  basic  feature  of  the  

Constitution  and  both  can  be  reconciled  only  by  way  of  a  

consultation of the Governor with the High Court and by making  

appropriate  rules  to  provide  for  a  scheme  of  reservation  and  

unless such a provision is made by following the constitutional  

scheme under Articles 233 to 235, it would be well-neigh possible  

to thrust  upon the rule of reservation by the State Legislature  

even by way of a legislation.  Inasmuch as the Constitution Bench  

has dealt with this vital  issue in an elaborate manner and laid  

down the principles relating to application of reservation in the  

matter of appointments to be made to the post of direct recruit  

District Judges, in fitness of things, it will be profitable for us to  

note the salient principles laid down therein as that would throw  

much light for us to resolve the question raised in these appeals.

20. Such principles can be culled out and stated as under:

(α) Neither Article 233 nor Article 234 contain any  provision of being subject to any enactment by  the  appropriate  legislature  as  is  provided  in  certain other Articles of the Constitution.

(β) Articles 233 and 234 of the Constitution are not  subject  to  the  provisions  of  law  made  by  the  

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Parliament  or  the  Legislature  as  no  such  provision is found in Articles 233 and 234 of the  Constitution.

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

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

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

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

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

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

(ι) The enactment  of  any statutory  provision  de  hors consultation  with  the  High  Court  for  regulating  the  recruitment  to  the  District  Judiciary  and  the  subordinate  judiciary  will  clearly fly in the face of complete scheme of  

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recruitment  and  appointment  to  the  subordinate  judiciary  and  the  exclusive  field  earmarked  in  connection  with  such  appointments under Articles 233 and 234.  

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

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

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

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234 lay down a statutory scheme of reservation  governing all state services including judiciary.

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

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

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

21. Having noted the above salient principles laid down in  

the Constitution Bench decision, when we refer to the subsequent  

decision reported in Ashok Pal Singh (supra) wherein this very  

Rule 8(2) came up for consideration, this Court has held that the  

purpose and intent of Rule 8(2) is not to dilute or change the  

quota of direct recruits.  It also made it clear that its object must  

be to ensure that though vacancy remained unfilled for want of  

adequate  number  of  direct  recruits  under  15%  quota,  it  also  

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highlighted that the first proviso to Rule 8(2) would ensure that  

any shortfall in 15% quota for direct recruit in any recruitment  

cannot be permanently  converted to promotee quota and that  

such a short fall should be made good in the next recruitment.  In  

other words, it will  be a limited carrying over of unfilled direct  

recruitment vacancies in the manner set out in Rule 8(2) and the  

first proviso thereto.

22. Keeping the above principles in mind, we go to the next  

contention. The next contention of the appellants is whether the  

High Court could have validly adopted the Reservation Act, 1994  

by relying upon Rule 7 of the High Court Rules.  To appreciate the  

said  contention,  Rule  7  requires  to  be  noted,  which  reads  as  

under:

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

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

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

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23. A reading of the said Rule makes it clear that application  

of  the  rule  of  reservation  is  permissible  under  the  High Court  

Rules  provided  such  reservation  is  in  accordance  with  

government orders as adopted by the High Court.  At present we  

are not concerned with the nature of reservation specified in the  

proviso to the said Rule.  We are only concerned with the validity  

of rule of reservation in the Higher Judicial Service of the High  

Court.  When we meticulously consider the said rule, we will have  

to state that such reservation of posts should be in accordance  

with the orders of the government as adopted by the High Court.  

The contention of the learned senior counsel for the appellants  

was that in Rule 7 what was permissible by way of adoption was  

only  the  orders  of  the  Government  prescribing  the  extent  of  

reservation  for  various  categories  such  as  Scheduled  Castes,  

Scheduled Tribes including women.  In that context, the learned  

counsel in the first instance made a reference to what was the  

position prior to the present selection viz.,  2009.  The learned  

senior counsel referred to Rule 7 as it previously existed.  The un-

amended Rule can also be noted by extracting the same, which  

was as under:

“Rule 7. Reservation of posts for Scheduled  Caste  etc.- Reservation  to  posts  in  the  Service  for   

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Members  of  the  Scheduled  Castes,  Scheduled  Tribes   and others shall be in accordance with the orders of the   Government  for  reservation  in  force  at  the  time  of   recruitment.”

24. Appendix ‘B’ which was part of un-amended rule was the  

Official  Memorandum  of  the  Uttar  Pradesh  Government  

Recruitment  Department  -  4,  dated 18.07.1972.   The  relevant  

part of the said Appendix ‘B’ with which we are concerned is as  

under:

“Hence, the government has reconsidered all the  questions in respect of the reservation and has taken   the following decisions:

1.  In  any  service  by  direct  recruitment,  upon   including the carried forward reserved vacancies, if any,   the reservation shall not be more than total of 50%.

2. In all the services, there will  be 18% and 2%  reservation  for  the  Scheduled  Castes  and  Scheduled   Tribes, respectively but for the Class 3 clerical services   and  Class  4  service,  there  will  be  25%  and  36%  reservation respectively, for the Scheduled Castes, until   when  their  quota  of  18%  is  not  completed  in  these   services.”

25. By referring to the said rules which prevailed prior to the  

amendment, Mr. Dwivedi, learned senior counsel contended that  

as the High Court having understood the extent to which the rule  

of reservation can be adopted, as could be seen from the un-

amended  Rule  by  which  the  relevant  Government  Order  

prescribed the extent  of  reservation for  Scheduled Castes and  

Scheduled  Tribes  etc.,  was  specifically  adopted  by  way  of  

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Appendix  ‘B’.   The  Government  order  itself  was  annexed  as  

Appendix ‘B’ to Rule 7 and thereby, there was no scope for any  

controversy.  According to learned counsel similar such method  

should  have  been  followed  if  the  rule  of  reservation  is  to  be  

applied.

26. According to the learned senior counsel, after Rule 7 was  

amended, when the Rule specifically stated that it would be in  

order  for  the  High  Court  to  apply  the  rule  of  reservation  in  

accordance with the order of the Government as adopted by the  

High  Court,  the  extent  to  which  any  application  of  rule  of  

reservation could have been only by way of adoption of any order  

of  the  Government  of  Uttar  Pradesh  prescribing  the  rule  of  

reservation and not the adoption of the whole of Reservation Act,  

1994.  The learned senior counsel, therefore, contended that the  

High Court could not have validly adopted the Reservation Act,  

1994 by applying Rule 7 of the High Court Rules.   

27. Though  in  the  first  blush,  such  a  contention  of  the  

learned  senior  counsel  appears  to  be  appealing,  on  a  deeper  

scrutiny,  it  must be stated that the said contention cannot be  

countenanced.   It  is  true  that  in  the present  Rule  7 also it  is  

specifically mentioned that adoption of the rule of reservation can  

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be made in accordance with the ‘orders of the Government’ as  

adopted by the High Court.  It must be stated, at the very outset,  

that  it  is  not  the  case  of  the  appellants  that  there  were  any  

specific  orders  of  the  Government  providing  for  the  extent  of  

reservation for different categories, in particular,  for Scheduled  

Castes, Scheduled Tribes and Other Backward Classes. No such  

specific Government order was either referred to or relied upon  

before the High Court. No such orders were also brought to our  

notice to support the said contention.

28. Be  that  as  it  may,  as  far  as  the  High  Court  was  

concerned,  the stand was that  the entirety  of  the Reservation  

Act,  1994  was  adopted  and,  therefore,  whatever  stipulations  

contained  in  the Act  relating  to  reservation  was  applicable  as  

adopted.  It  will  be  relevant  to  note  the  extent  of  reservation  

provided  after  the  Reservation  Act,  1994  came  into  force.  

Section 3(1) of the said Act with the relevant provisos is relevant  

for our purpose which reads as under:

“3(1) Reservation in favour of Scheduled Castes,   Scheduled  Tribes  and  Other  Backward  Classes-  (1) In public services and posts, there shall be reserved   at  the  stage  of  direct  recruitment,  the  following   percentage of vacancies to which recruitments are to   be made in accordance with the roster referred to in   sub-section (5)  in  favour  of  the persons belonging to   Scheduled  Castes,  Scheduled  Tribes  and  Other   Backward Classes of citizens,-

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(a) in the case of Scheduled Castes Twenty one per  cent;

(b) in the case of Scheduled Tribes Two per cent; (c) in case of Other Backward Classes  Of citizens Twenty seven per  

cent: Provided that the reservation under clause (c) shall not   apply  to  the  category  of  Other  Backward  Classes  of   citizens specified in Schedule II:

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

29. It  must  be  stated  that  what  was  provided  by  way  of  

reservation  for  different  categories  including  the  Scheduled  

Castes and Scheduled Tribes etc., prior to the coming into force  

of 1994 Act, has been brought into an Act by way of substantive  

provision under Section 3(1).  It must, therefore, be stated that  

what was provided in the form of Government Order prior to the  

Reservation  Act,  1994  apparently  appeared  to  have  been  

specifically  spelt  out  in  Section  3(1)  itself,  by  providing  a  

reservation  of  21%  for  Scheduled  Castes,  2%  for  Scheduled  

Tribes and 27% for Other Backward Class citizens.  Therefore, if  

any Department of the State including the High Court were to  

adopt  the prescribed rule  of  reservation after  the coming into  

force of the Reservation Act, 1994, such adoption can be only by  

way of adopting the relevant provision viz., Section 3(1) of the  

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Act.   After  the  emergence  of  the  Reservation  Act,  1994,  the  

application of Rule 7 of the High Court rules can be only by way  

of adopting the statutory prescription contained in Section 3(1).  

Therefore, it will have to be held that the High Court would be  

well in order in adopting the said statutory prescription contained  

in the Reservation Act 1994 for the purpose of complying with the  

rules of reservation.  We do not find any other scope for the High  

Court  to  look  for  any  Government  order  for  the  purpose  of  

applying the rule of reservation. Further when Section 3(1) of the  

Reservation  Act,  1994  specifically  provides  for  the  extent  of  

reservation for Scheduled Castes and Scheduled Tribes and Other  

Backward  Classes  in  the  matter  of  said  services,  there  is  no  

reason  why  the  High  Court  should  search  for  any  other  

Government Order for the purpose of complying with the rules of  

reservation.   

30. As was stated by us earlier, our attention was not drawn  

to any other Government Orders other than what was found in  

appendix ‘B’ under the erstwhile Rule 7 which prescribes the rule  

of reservation or the extent of reservation for Scheduled Castes  

and Scheduled Tribes and Other  Backward Classes in order to  

state that the High Court could have only adopted any such order  

and not looked for the Reservation Act 1994 for the purpose of  

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applying the rule of reservation.  Therefore it must be stated that  

the  High  Court  was  well  justified  in  applying  the  extent  of  

reservation prescribed in the Reservation Act, 1994 by invoking  

the existing Rule 7 of the High Court Rules. By relying upon the  

judgment reported in Pashupati Nath Sukul (supra) para 13,  

the learned standing counsel for the High Court contended that  

when the expression “Government” under the Constitution would  

include the Legislature, Executive and the Judiciary and the Act  

passed by the Legislature should nonetheless be construed and  

held on par with the orders of the Government.  In support of the  

said  submission,  the  learned  counsel  also  relied  upon  Article  

13(3)(a) of the Constitution of India, which states that the “law”  

would  include  any  ordinance,  order,  bye-law,  rule,  regulation,  

notification, custom or usage having in the territory of India the  

force of law.  The learned standing counsel therefore contended  

that as per Article 13(3)(a), the order of the Government would  

include  the  laws  of  the  State  as  in  force  and  when  the  

Reservation Act, 1994 is a law, it must be stated that such a law  

can very well be held to be one which falls within the scope of  

amended Rule 7 of the High Court Rules.

31. For  the  sake  of  argument,  even  if  we  ignore  such  an  

extended contention made on behalf of the High Court by relying  

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upon Article 13(3)(1) of the Constitution, we are convinced that  

having  regard  to  the  specific  prescription  providing  for  

reservation under Section 3(1) of the Reservation Act, 1994 and  

there being no other specific order of the Government providing  

for reservation in any other manner and as stated by us no other  

specific order of the Government, as was previously issued viz.,  

the  one  dated  18.07.1972  after  the  emergence  of  the  

Reservation Act of 1994, we hold that for all practical purposes  

the usage of the expression ‘order’ in Rule 7 is only referable to  

the provision for reservation as contained in Section 3(1) of the  

Reservation Act, 1994.  Therefore if the said Act was adopted by  

the High Court in exercise of its powers under Rule 7, that would  

be sufficient for applying the rule of reservation. Therefore, we  

hold that in the event of valid adoption of the rule of reservation  

of the Reservation Act of 1994 by the High Court by exercising its  

power under Rule 7 of the High Court Rules the same would be  

valid and in accordance with law.

32. The next contention of the learned senior counsel for the  

appellants is that the High Court cannot be said to have validly  

adopted  the  provision  for  reservation  as  provided  under  the  

Reservation  Act  of  1994  in  order  to  gain  any  advantage  for  

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applying the rule of reservation with reference to the recruitment  

made in the year 2009.

33. When we consider the said question, it is necessary to  

deal  with  the  grievance  of  the  appellants  as  to  the  non-

consideration of their  stand by the Division Bench about there  

being no adoption of  rule  of  reservation by the High Court  as  

provided in Rule 7 of the High Court Rules.  In that context, the  

learned  senior  counsel  for  the  appellants  referred  to  certain  

earlier  orders  passed by the High Court.  While  expressing the  

said grievance Mr.  Dwivedi,  the learned senior  counsel  for the  

appellants brought to our notice the order passed by the Division  

Bench  of  the  High  Court  dated  21.12.2011,  02.01.2012  and  

03.01.2012. In the order dated 21.12.2011, the Division Bench  

referred to the stand of the appellants based on Section 3(2) &  

(3) of the Reservation Act, 1994 and the amended Rule 7 of the  

High  Court  Rules  to  the  effect  that  whatever  provision  for  

reservation has been adopted earlier  by the High Court  would  

alone apply and that vacancies of the direct recruit could not be  

carried  forward,  and  that  the  unfilled  reserved  category  

vacancies  of  the    direct  recruit  could  be  filled  up  from  the  

general  category candidates.  The Division Bench after noticing  

the said submission also referred to the Full Court resolution and  

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directed  the  High  Court  to  place  the  Full  Court  resolution  for  

consideration on the next hearing date.  Thereafter in the order  

dated 02.01.2012, the excerpts of the Full Court meeting dated  

09.01.2010, containing the resolution on Agenda Item No.2 was  

taken on record and it was further directed that the report dated  

24.12.2009 and  supplementary  report  dated  09.01.2010 along  

with the note dated 24.12.2009 of the Registrar (Selection and  

Appointment)  was  directed  to  be  produced  to  appreciate  the  

arguments as to whether the carry forward rule was adopted by  

the  High  Court  or  not.  But  on  03.01.2012,  the  order  of  the  

Division Bench merely mentioned that the matter was heard and  

the judgment was reserved.   

34. While referring to the above referred to proceedings of  

the Division Bench of the High Court, the learned senior counsel  

brought to our notice the reference to proceedings of  the Full  

Court dated 11.12.2012, which was relied upon by the Division  

Bench  in  the  impugned  judgment  and  contended  that  such  

reliance was placed upon by the Division Bench without giving  

due opportunities to the appellants.

35. The learned senior counsel contended that the appellants  

were unaware of any of the said resolutions passed by the Full  

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Court in order to place their submissions as to whether such Full  

Court  proceedings  really  fulfilled  the  requirements  of  valid  

adoption of the rule of reservation as stipulated in Rule 7 of the  

High Court Rules.  

36. Initially, when we heard the Special Leave Petitions, we  

directed  the  learned  standing  counsel  appearing  for  the  High  

Court  by  our  order  dated 28.10.2014 after  taking note  of  the  

stand of the learned standing counsel for the High Court that on  

10.04.2004  by  the  Full  Court  Resolution  the  report  of  a  

Committee constituted earlier  to provide for  reservation in the  

appointment  of  various  posts  in  the  subordinate  judiciary  was  

accepted, we directed the High Court to place it before us.  The  

appellants  were  given  time  to  examine  the  said  report  filed  

before this Court for the first time on behalf of the High Court and  

thereafter make the submissions.   

37. Subsequently, when these appeals came up for hearing  

on 05.11.2014, Mr. Ashok Srivastava learned standing counsel for  

the  High  Court  offered  his  apologies  for  not  filing  the  proper  

proceedings of the High Court and contended that he would file  

the  relevant  documents  by  which  the  rule  of  reservation  was  

accepted  and  adopted  by  the  High  Court  in  the  Full  Court  

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proceedings and sought for time.  We could have very well set  

aside the order of the Division Bench and remanded the matter  

back  to  the  High  Court  for  consideration  of  the  said  issue  on  

merits after giving due opportunity to both the parties.  Since the  

issue pertains to the recruitment and appointment of candidates  

to Higher Judicial  Service of  the vacancies notified in the year  

2009, we thought it fit to direct the learned standing counsel for  

the High Court  to  produce the relevant  proceedings before  us  

with a view to give full fledged opportunity for the learned senior  

counsel for the appellants to make his submission based on any  

such materials that may be placed before us in order to decide  

the issue once and for all in these proceedings.  We, therefore,  

directed the learned standing counsel for the High Court to file  

necessary affidavit along with the documents by serving advance  

copies on the counsel for the appellants.   

38. Pursuant to our orders, the High Court filed its affidavit  

sworn to by the Registrar General of the High Court at Allahabad  

dated  28.11.2014,  along  with  annexures  1  to  9.   By  placing  

reliance on these annexures, the learned standing counsel for the  

High  Court  submitted  that  the  provision  for  reservation  was  

validly adopted by the High Court as provided under Rule 7 of the  

High Court  Rules.   Since whatever  proceedings relating to  the  

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adoption  of  the  rules  of  the  reservation  based  on  which  the  

selection and appointment of the year 2009 of the higher judicial  

service was made by the High Court, we asked the learned senior  

counsel for the appellants to make his submissions based on the  

said materials placed before this Court.  

39. Before considering any submissions, it will be worthwhile  

to refer to the proceedings placed before us on behalf of the High  

Court vide Annexure – II viz., the minutes of the meeting of the  

Selection  and  Appointments  Committee  dated  24.03.2009.   In  

Agenda  Item  No.III,  the  various  vacant  positions  in  different  

categories  viz.,  General  Turn,  Scheduled  Castes,  Scheduled  

Tribes  and  Other  Backward  Classes  alongside  the  existing  

strength were all noted and ultimately the Committee resolved to  

initiate the process of recruitment for all the three streams as per  

the Uttar Pradesh Higher Judicial  Service Rules,  1995 including  

the  carry  forward  of  41  vacancies.  Ultimately  the  resolution  

further stated as under:-

“To  break  up  of  41  carry  forward  vacancies,   details of which have been given above, shall also be   filed up by simultaneous recruitment.  The recruitment   of  carry  forward  vacancies  shall  be  made  in  their   respective reserve category as indicated in  the chart   mentioned  above.   The  vacancies  shall  be  filled  up  applying  reservation  as  per  the  Uttar  Pradesh  Public   Services (Reservation for Scheduled Castes, Scheduled   Tribes  and  Other  Backward  Classes)  Act,  1994  as   

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amended up to date.  The current vacancies in different   categories should be reserved are like this.”

                               (emphasis added)

40. Lastly, the resolution stated that the Committee resolved  

to the extent that after the Full Court determine the vacancies,  

necessary advertisement informing applications against 41 carry  

forward + 27 vacancies would be published.   

41. Thereafter, under Annexure No.3, the proceedings of the  

Full Court by way of circulation to consider the Agenda viz., the  

determination  of  vacancy  under  Rule  8  of  the  Uttar  Pradesh  

Higher  Judicial  Service  Rules,  1975 was circulated.   Under  the  

said annexure, the proceedings of the Selection and Appointment  

Committee  dated  24.03.2009,  along  with  the  office  note  was  

circulated for the opinion of the Hon’ble Judges. Out of 71 Judges,  

50 Judges expressed their opinion agreeing to the whole of the  

resolution of the Selection and Appointment Committee while 21  

of them did not express any opinion.  Under Rule 7 of Chapter III  

of the Rules of the Court, if a Judge failed to send his opinion in  

writing within a week, he shall be deemed to have declined to  

express any opinion in the matter.  Based on the opinion of the  

majority of the Hon’ble Judges approving of the resolution of the  

Selection  and  Appointment  Committee,  the  whole  proceedings  

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was  approved  by  the  Chief  Justice  signifying  the  approval  

expressed by the Full Court.

42. We  heard  the  submissions  based  on  the  above  

proceedings placed before this Court on behalf of the High Court  

to find out whether such a course adopted by the High Court can  

be said to have validly adopted the provisions for reservation in  

the matter of appointment for the post of Higher Judicial Services  

which was held in the year 2009.  Mr. Dwivedi,  learned senior  

counsel for the appellants contended that there was no specific  

adoption made by the Full Court with reference to the nature of  

reservation to be provided in the matter of filling up of the post of  

Higher Judicial Service.   

43. According to the learned senior counsel under Rule 7 of  

the High Court Rules, it is specifically provided that such adoption  

should be for  reservation in accordance with  the Order  of  the  

Government.  The learned senior counsel contended that there is  

no specific reference to the percentage of reservation in respect  

of Scheduled Casts, Scheduled Tribes or Other Backward Classes  

having been adopted either by the Selection Committee or by the  

Full  Court  with  particular  reference  to  any  Order  of  the  

government.   The  learned  senior  counsel  would,  therefore,  

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contend that in effect, there was no adoption made by the High  

Court  to  provide  for  reservation  and  consequently  no  such  

reservation can be held to have come into effect.  Here again,  

though the submission appears to be sound, having regard to the  

proceedings of the Selection and Appointment Committee as well  

as that of the Full Court resolution, the details of which, when we  

refer to with some amount of serious look to those proceedings,  

we  are  convinced  that  there  was  sufficient  compliance  of  the  

requirements of Rule 7 of the High Court Rules in the matter of  

adoption  of  the  rules  of  reservation.   The  relevant  part  of  

amended Rule 7 is to the following effect:

“….shall  be  in  accordance  with  the  orders  of  the  Government  for  reservation  as  adopted by  the  High  Court.”  

      (emphasis  added)

44. While  dealing  with  the  second  submission  made  on  

behalf of the appellants, we have held that the rule of reservation  

and the extent of reservation has been specifically spelt out in  

Section 3(1) of the Reservation Act, 1994.  We have also held  

that apart from such prescription contained in Section 3(1) of the  

Reservation Act, 1994, no other Government order or any other  

prescribed notification was placed before us in order to hold that  

while applying Rule 7, the High Court was expected to consider  

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any  such  order  or  notification  issued  by  the  Government.  

Therefore, while invoking Rule 7 of the High Court Rules, if at all  

the High Court wanted to adopt the rule of reservation, the same  

can  only  relate  to  what  has  been  prescribed  under  the  

Reservation Act of 1994, in particular Section 3(1) of the said Act.  

The said conclusion of ours is inescapable in the context of the  

provisions  relating  to  rule  of  reservation  in  the  State  of  Uttar  

Pradesh.

45.  The only other aspect to be considered is what was the  

rule relating to reservation which was adopted by the High Court.  

In that context, when we read the resolution of the Selection and  

Appointment Committee dated 24.03.2009, after referring to the  

vacancies  that  existed which  were  to  be filled  up in  the  year  

2009, the Selection Committee expressly resolved as under:

“……….The  vacancies  shall  be  filled  up  applying   reservation  as  per  the  Uttar  Pradesh  Public  Services   (Reservation for Scheduled Casts, Scheduled Tribes and   Other Backward Classes) Act, 1994 as amended up to   date…..”

46. In the light of the said resolution passed by the Selection  

and Appointment Committee constituted by the High Court, there  

can be no two opinions that by the said resolution the rule of  

reservation  as  prescribed  under  Section  3(1)  of  the  Act  was  

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decided to be followed by the High Court.  Consequently, if the  

proceedings  of  the  Full  Court  pursuant  to  the  direction  of  the  

learned Chief Justice dated 31.03.2009, approved the resolution  

of the Selection and Appointment Committee, as per the Rules of  

the Courts, it must be held that a reading of the resolution of the  

Selection Committee and the resolution of the Full Court together  

would constitute a valid adoption as contemplated under Rule 7  

of the High Court Rules.

47. We have elaborately set out the nature of the resolution  

passed by the Full Court by way of circulation.  Out of 71 Judges,  

50  Judges  of  the  High  Court  expressed  their  support  to  the  

resolution  of  the  Selection  and  Appointment  Committee  dated  

24.03.2009  and  such  an  expression  made  by  majority  of  the  

Judges was ultimately approved by the learned Chief Justice by  

affixing  his  signature  on  10.04.2009.  In  the  light  of  the  said  

proceedings,  we hold  that  the High Court  adopted the rule  of  

reservation  as  per  the  Reservation  Act,  1994  which  was  well  

within  the  prescription  contained  in  Rule  7  of  the  High  Court  

Rules.  The  said  course  adopted  by  High  Court  is  also  in  

consonance  with  the  various  principles  laid  down  in  the  

Constitution Bench decision of this Court reported in  State of  

Bihar v. Bal Mukund Sah (supra).

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48. Once  we  are  able  to  satisfactorily  reach  the  said  

conclusion what falls for consideration is the next submission of  

the  learned  senior  counsel  appearing  for  the  appellants  as  to  

whether the High Court was justified in filling up unfilled posts of  

reserved category by way of promotion of in-service candidates.   

49. In order to appreciate the submissions so made on behalf  

of  the  appellants,  the  relevant  provisions  contained  in  the  

Reservation Act, 1994 as well as Rule 8 of the High Court Rules  

are required to be examined.  Section 3(2) of the Reservation Act  

which  deals  with  the  manner  in  which  unfilled  vacancies  of  

different reserved categories are to be filled up has been set out,  

which reads as under:

“3(2) If, in respect of any year of recruitment any  vacancy  reserved  for  any  category  of  persons  under   sub-section (1) remains unfilled, such vacancy shall be   carried  forward  and  be  filled  through  special   recruitment in that very year or in succeeding year or   years of recruitment as a separate class of vacancy and  such class of vacancy shall not be considered together   with the vacancies of the year of recruitment in which it   is  filled  and  also  for  the  purpose  of  determining  the   ceiling  of  fifty  per  cent  reservation  of  the  total   vacancies of that year notwithstanding anything to the   contrary contained in sub-section (1).”

50. While  referring  to  Section 3(2)  of  the Reservation Act,  

1994,  we should  also simultaneously  refer  to  Rule  8(2)  of  the  

High Court Rules which reads as under:

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“8(2) If  at any selection the number of selected  direct recruits available for appointment is less than the   number of recruits  decided by the Court  to be taken  from  that  source,  the  Court  may  increase   correspondingly the number of recruits to be taken by   promotion from the Nyayik Sewa.

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

51. At  the very outset,  it  must  be stated that if  Rule  8(2)  

were to be applied, on its own, it will have a direct impact on the  

prescription  contained  in  Section  3(2)  of  the  Reservation  Act,  

1994.  When we consider Section 3(2), a little more elaborately,  

the said sub-Section under the Reservation Act, 1994 prescribes  

that any unfilled reserved vacancy should be carried forward and  

filled  through  special  recruitment  in  that  very  year  or  in  

succeeding year or years of recruitment as a separate class of  

vacancy.  It also states that such class of vacancy should not be  

considered together with the vacancies of the year of recruitment  

in which it is filled, meaning thereby the vacancies that exist in  

any subsequent year or years of recruitment.  It further stipulates  

that  for  the  purpose  of  deciding  the  maximum percentage  of  

reservation viz.,  50% of the total vacancies such carry forward  

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vacancies should never be counted.  At the risk of repetition, it  

will have to be stated that in the first instance going by Section  

3(2),  any unfilled  reserved vacancies  arising in  the process  of  

recruitment, a special recruitment should be made in that very  

year itself.  In fact it was brought to our notice that by an order  

passed in I.A.No.87 of 2010, dated 15.11.2010 of this Court, the  

High Court was directed that the special recruitment should be  

made in that very year itself.  According to the learned senior  

counsel for the High Court, such an exercise was carried out but  

yet the posts could not be filled up in that very year from the  

reserved category.  

52. When we come to the next stage to be carried out as  

provided under Section 3(2), the High Court should have carried  

forward the unfilled vacancies  of  the reserved category  in the  

succeeding year or years of recruitment as a separate class of  

vacancy.  Therefore, applying Section 3(2), there is no scope for  

filling  up  of  any  of  those  unfilled  vacancies  of  the  reserved  

category  of  any particular  recruitment  year  by  the  candidates  

belonging  to  any  other  categories  either  of  Direct  recruitment  

source or by any other source viz., from the in-service candidates  

by  way  of  regular  promotion  or  by  way  of  special  merit  

promotion.   

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53. Keeping the said prescription as provided in Section 3(2)  

in mind, when we examine the provision contained in Rule 8(2) of  

the High Court Rules, it is specifically provided that in respect of  

direct  recruitment  if  the  selected  candidates  from  the  direct  

recruitment available for appointment was less than the number  

of candidates to be recruited from that source, the High Court  

could  correspondingly  increase  the  number  of  recruits  to  be  

taken by way of promotion from the Nyayik Sewa viz., in-service  

candidates.

54. When we consider the application of Section 3(2) of the  

reservation Act of 1994 a further question arises as to whether  

the application of the said Section can be made in the matter of  

recruitment for the post of direct recruit District Judges.  In this  

context, the principles set down by the Constitution Bench of this  

Court require to be noted:  

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

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down a statutory scheme of reservation governing all  state services including judiciary.

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

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

55. Keeping the said principles in mind when we consider,  

even  though  the  High  Court  having  taken  into  account  the  

constitutional mandate as prescribed under Articles 16(1), 16(4)  

and 335 and specifically provided in Rule 7 for applying the rule  

of reservation by adopting the same, the question is as to what  

extent the High Court decided to adopt the rule of reservation. In  

this context, when we refer to the specific content of Rule 7, it  

specifically provides that reservation to post in the service for the  

members of SC, ST and other categories including women should  

be  in  accordance  with  the  orders  of  the  Government  for  

reservation  “as  adopted”  by  the  High Court.   Therefore,  even  

while applying the rule of reservation, it must be seen as to what  

extent  the  High Court  chose  to  adopt  the rule  of  reservation.  

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When we refer to the resolution of the Full Court by which we  

have  found  that  the  High  Court  decided  to  apply  the  rule  of  

reservation, we have to in turn refer to the resolution passed by  

the selection and appointment committee dated 24.3.2009 which  

resolution was adopted by the Full Court and that is how the rule  

of reservation came to be implemented.  The said resolution of  

the selection and appointment committee specifically mentioned  

that the ‘vacancies’ should be filled up applying the ‘reservation’  

as per the Reservation Act of 1994 as amended up to date.   

56. We are,  therefore,  clear of  the position that  what was  

adopted  was  ‘reservation’  simplicitor  and  not  other  

consequences.   Therefore,  there  is  no  question  of  invoking  

Section  3(2)  of  the  Reservation  Act,  1994  relating  to  

consequential  action  to  be  taken if  the  posts  of  direct  recruit  

District Judges are not filled up.  Section 3(2) only prescribes as  

to the manner in which unfilled reserved seats are to be filled up  

by resorting to fresh selection in that very year and in the event  

of the posts still not being filled up, continue to retain the posts in  

the  reserved category  and notify  the same in  the  subsequent  

years for being filled up.  Such a consequence cannot be stated  

while applying Rule 7 of the High Court Rules which merely refers  

to  provision  for  reservation  and  nothing  more.   Insofar  as  

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provision  for  reservation  is  concerned,  in  the  absence  of  any  

Government  order  prescribing  reservation,  the  only  provision  

available is Section 3(1).  Section 3(2) is only a methodology to  

be followed for filling up the unfilled reserved posts.  As far as the  

said  methodology  in  respect  of  the  unfilled  reserved  posts  of  

direct recruit District Judges is concerned, it is governed only by  

Rule  8.   In  fact,  even  by  applying  Rule  8(2)  by  virtue  of  the  

proviso to the said Rule,  the interest of the reserved category  

candidates  is  sufficiently  safeguarded  which  is  preserved  and  

filled up in the selection to be made in the future years.

57. Therefore, if we consider the adoption made by the High  

Court, as regards the rule of reservation, we find that what was  

adopted was to apply the ‘RESERVATION’ as provided under the  

Reservation Act of 1994 while filling up the vacancies of direct  

recruit District Judges.  In other words, the High Court chose to  

adopt the prescription of various percentage of ‘reservation’ in  

the  Reservation  Act  of  1994  and  stop  with  that.   To  put  it  

differently,  what  was  adopted  by  the  High  Court  was  to  the  

limited  extent  of  providing  the  prescribed  percentage  of  

‘reservation’ under Section 3(1) of Reservation Act of 1994 and  

nothing  beyond  that.   Since  the  principles  laid  down  in  the  

Constitution Bench decision of this Court succinctly stated as to  

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how Articles 233 to 235 of the Constitution empower the High  

Court  to  maintain  its  independent  functioning  by  allowing  its  

recruitment process by prescribing its own limitations and not to  

be  affected  by  even  a  statutory  prescription  relating  to  

reservation, it  must be stated that in order to ensure that the  

independence of  institution of  judiciary  is  safeguarded,  such a  

strict  construction  of  its  decision  pertaining  to  the  rule  of  

reservation must  be maintained or  otherwise,  as cautioned by  

this Court in the Constitution Bench decision, that would impinge  

upon the very  basic  structure  of  the  Constitution  vis-à-vis  the  

judiciary.  

58. Therefore, we hold that by virtue of the adoption of the  

rule  of  reservation  by  invoking  Rule  7  when  the  High  Court  

decided to apply only to the extent of prescribed percentage of  

‘reservation’ for different categories, namely, SC, ST and OBC as  

provided under Section 3(1) of the Reservation Act 1994 in all  

other respects, it must be held that it would be governed by its  

own rule namely the rules of the High Court pertaining to the  

judicial service.  In this context, a question may arise that earlier  

this Court directed the High Court in its order dated 15.11.2010  

passed in IA 87 of 2010 to go in for a special recruitment in that  

very year itself which was apparently based on the prescription  

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contained  in  Section  3(2)  of  the  Act  and  by  going  by  that  

direction should it  not  be held that  the said  procedure should  

follow for all time to come.  It will have to be stated that the said  

order passed in an IA cannot be taken as a final statement of law  

when  the  legal  principle  has  been  succinctly  set  out  with  

reference  to  the application of  rule  of  reservation in  so  many  

words  in  the  decision  of  the  Constitution  Bench  of  this  Court.  

Therefore, based on the said order, it cannot be held that various  

other provisions contained in the Reservation Act of 1994 would  

get attracted.  

59. When the said legal position can be stated without any  

scope for  contradiction,  what  remains  to  be considered  is  the  

scope of application of Rule 8 (2) and the proviso attached to that  

sub-rule. In this context, we have to go by the decision of this  

Court reported in  Ashok Pal Singh (supra) wherein this very  

Rule 8(2) came up for consideration. In the said decision while  

considering the purport and intent of Rule 8 (2), it was held that  

the same was not to dilute or change the quota of direct recruits.  

It further held that its object is to ensure that no vacancy remains  

unfilled for want of adequate number of direct recruits under the  

prescribed quota.  While holding so, this Court noted that there  

were  reasonable  chances  of  adequate  number  of  candidates  

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being  not  available  for  direct  recruitment  whereas  usually  

sufficient number of candidates will be available for promotion.  It  

also made further clear that the proviso to Rule 8(2) ensures that  

the short fall in quota for direct recruits in any recruitment does  

not get permanently converted to promotee quota by providing  

that the short fall should be made at the next recruitment.  Again  

in para 40, it was reiterated that all vacancies which are not filled  

by direct recruitment would get filled up by promotion and that  

the limited carry over unfilled direct recruitment vacancies are in  

the manner stated in Rule 8(2) and the proviso thereto.  From  

what has already been held by this Court, it was made clear that  

under Rule 8(2) since the object was to ensure that no vacancy  

remains unfilled, for want of adequate number of direct recruits  

under the prescribed quota sufficient safeguard is provided in the  

proviso  to  Rule  8(2)  by  which  those  unfilled  vacancies  to  be  

carried forward in the future years to be filled only through direct  

recruitment.   To  that  extent,  there  is  no  scope  for  any  

controversy.   

60. In the case on hand, it  is not in dispute that after the  

special  recruitment  was  made  in  respect  of  unfilled  reserved  

vacancies,  the  High Court  proceeded  to  fill  up  all  the  unfilled  

vacancies  of  the  direct  recruits  in  the  reserved  category  and  

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those posts were all filled up by promoting the members of the  

Nyayik Sewa viz., in-service candidates. While referring to Rule  

8(2)  Mr.  Dwivedi,  learned  senior  counsel  for  the  appellants  

contended  that  when  Rule  8(2)  specifically  states  that  at  any  

selection  the  number  of  selected  direct  recruits  available  for  

appointment is less than the number of recruits decided by the  

High Court to be taken from that source meaning thereby the  

source of direct recruitment then and then alone, the High Court  

was empowered to look upon the members of Nyayik Sewa viz.,  

in-service candidates for their  promotion to the post of  Higher  

Judicial Service.

61. The question raised on behalf of the appellants was that  

since Rule  8(2)  specifically  refers  to  the source and when the  

direct  recruitment  source  candidates  belonging  to  general  

category  are available,  only  in  the absence of  any candidates  

from the general category or any other category, then alone the  

High Court could have resorted to filling up the unfilled vacancies  

of reserved category by promotees.   

62. It is well settled principle of law as has been laid down by  

this Court in the decision relied upon by learned counsel for the  

High Court, namely, the Constitution Bench decision reported in  

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R.K. Sabharwal (supra) wherein it has been held as under in  

para 4:

“No  general  category  candidate  can  be  appointed  against  a slot  in  the roster  which is  reserved for  the  backward class.”

63. Therefore, when the posts were reserved for the SC, ST,  

filling up of  those posts  from the general  category  candidates  

would seriously affect the rule of reservation, as once the posts of  

direct recruit are filled up from other category candidates even  

the carrying forward of those vacancies as provided under the  

proviso to Rule 8(2) cannot be operated upon.  In other words, by  

applying Rule 8(2) in the event of vacancies remaining due to  

non-availability of the candidates of the reserved category and  

such vacancies were filled up by the ‘in service candidates’ by  

resorting to promotion, the proviso can be conveniently operated  

upon by carrying forward those vacancies in the future years in  

the  direct  recruit  source  and  by  maintaining  the  rule  of  

reservation to the extent it could not be filled up in the relevant  

recruitment  years.   If  instead  of  resorting  to  promotion  of  ‘in  

service candidates’  those unfilled reserved vacancies are filled  

from the general category candidates there would be no scope  

for applying the proviso to Rule 8(2).  Such a contingency created  

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would run counter to the rule of reservation and, therefore, the  

same cannot be countenanced.

64. We  have  to,  therefore,  hold  that  the  High  Court  by  

adopting  the  Reservation  Act,  1994  adopted  the  rule  of  

reservation  to  the  full  extent  provided  for  and  as  prescribed  

under  Section  3(1)  of  the  Reservation  Act,  1994  and  that  in  

respect of any unfilled vacancies of that category, the High Court  

rightly  resorted  to  the  prescription  contained  in  Rule  8(2)  by  

resorting to filling up of such vacancies by special recruitment in  

that  year as directed by this  Court  and in the absence of  not  

getting such vacancies filled up by resorting to such filling up by  

promotion  of  ‘in  service  candidates’ and  also  by  applying  the  

proviso to Rule 8(2) and thereby carry forward those vacancies in  

the future years of recruitment.  

65. Keeping the said legal principle relating to applicability of  

Section 3(1) of the Reservation Act, 1994 vis-à-vis Rules 7 and  

8(2) of the High Court Rules in mind, when we consider the last of  

the submissions made on behalf of the appellants, it must be held  

that the action of the High Court in having resorted to filling up of  

the unfilled reserved vacancies  by taking umbrage under Rule  

8(2) was perfectly justified.  The said action of the High Court in  

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having  filled  up  those  unfilled  reserved  vacancies  of  direct  

recruitment of the year 2009 was stated to have been made by  

promoting the in-service candidates. Though we have found that  

such a course adopted by the High Court was in order, as the  

proviso to Rule 8(2) specifically mandates that while fixing the  

number  of  vacancies  to  be  allotted  to  the  quota  of  direct  

recruitment  at  the  next  recruitment,  it  should  be  raised  

accordingly.   We are  of  the view,  without  disturbing whatever  

promotions  already  made  by  resorting  to  Rule  8(2),  the  High  

Court  can  be  permitted  to  provide  that  number  of  vacancies  

which  remained  unfilled  in  the  year  2009  in  the  reserved  

category  of  direct  recruit  source  by  adding  that  number  of  

vacancies in the recruitment to be made in the future years until  

such  number  of  vacancies  of  unfilled  reserved  category  

pertaining to 2009 are filled.   

66. With the above limited directions to the High Court, we  

do not wish to meddle with the promotions already made.  We do  

not find any scope for granting any relief to the appellants, as  

none of the submissions raised on behalf of the appellants, which  

were though not considered by the Division Bench of the High  

Court and which were also dealt with by us  in extenso  and we  

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find no merit.  These appeals,  therefore,  fail  and the same are  

accordingly dismissed.  

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

  ………………. ………………………………J.

                         [Abhay Manohar Sapre]

New Delhi; February 17, 2015.

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