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(Updated as on 21.02.2011)
Seniority Matter of H.J.S. Officers
1. Perennial dispute of seniority amongst direct recruits and promotees
in various services constitute a big chunk of litigation in the realm of service
jurisprudence. It has also consumed much more time on administrative as
well as judicial side.
2. The job of this Committee is to resolve one of such frequently
contested seniority dispute in the highest cadre of subordinate judiciary in
the State of U.P., namely, U.P. Higher Judicial Service. This has been
pondered over administratively time and again by various Committees
consisting of five and three Judges and has also traveled on judicial side of
this Court at Lucknow and Allahabad and also the Apex Court umpteen
number of times. In the last more than two decades, at least five judgments
of Apex Court are reported dealing with issue of seniority as also an
interrelating issue of appointments which basically touches the process of
determination of vacancies in various Recruitments and allocation to
different sources of recruitment.
3. The Hon'ble Chief Justice, has constituted this Committee placing
onerous responsibility and hope of not only the members of Subordinate
Judicial Services in the highest cadre, but also on administrative side of this
Court that after a threadbare scrutiny of entire past record as well as various
decisions of the Apex Court and this Court, enriched with experience of
irregularities committed by earlier Committees on administrative side
noticed by the Courts on judicial side resulting in nullifying earlier
administrative exercise, it would not fall in the error of the same nature
again, and would be able to provide an answer/solution, most soothing to all
the contesting and interested parties so as to put an end to this decades long
battle.
4. This Committee has twin responsibilities; (A) determination of
vacancies, then allocation among different sources, and appointment
thereupon with all attending features, (B) principles applicable for
determination of seniority at different times and their actual application to
the individuals coming from different sources in the common service and
thereby to draw a seniority list.
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5. We are benefited with lots of decisions of this Court as well as Apex
Court, concerned only with the service in question, namely, U.P. Higher
Judicial Service governed by the statutory rules, namely, "U.P. Higher
Judicial Rules, 1975" (hereinafter referred to as '1975 Rules'). We are
conscious of the fact that the job is not only tough and complicated but so
checkered that our report may also run in several pages so as to simplify the
matter for easy and clear understanding of one and all. The span of disputed
period is more than two and half decades. The number of total people belong
to different sources run in thousands. Our endevour is to discharge of our
duties as per the expectations and in the best possible manner. Having learnt
from past, we decided to make our report a wholesome so as to cover the
entire historical background, progress from time to time, occasions of
dispute, issues raised therein, determination thereof, flaws on administrative
side as noticed on judicial side and so on. We intend to keep everything on
record so that lack of information, which we feel, sometimes has caused
serious litigations, be avoided and may not recur further complications.
Pre 1975 Rules-Historical backdrop
6. Prior to 1922, posts of District and Sessions Judge used to be filled by
appointing persons belong to cadre of Indian Civil Service. The Governor
General in Council, by notification issued in 1922, empowered the Local
Government to make appointments on the post comprised of U.P. Higher
Judicial Service, from amongst the members of Provincial Civil Service
(Judicial Branch) and members of the Bar. This gave birth to the cadre of
"U.P. Higher Judicial Service" in 1922.
7. After promulgation of Government of India Act, 1935 (hereinafter
referred to as "1935 Act"), the Secretary of India, in exercise of power under
Section 246(1) and 241 of 1935 Act framed "Reserved Post (Indian Civil
Service) Rules, 1938 (hereinafter referred to as "1938 Act") empowering the
Governor to appoint District Court Members or Members of Bar in Higher
Judicial Service. Therefore, before independence, the District Judges used to
be appointed by Governor from the following three sources:
(1) Indian Civil Service;
(2) Provincial Civil Service (Judicial Branch)
(3) Members of Bar.
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8. After adoption of Constitution of India on 26th January, 1950, Rules
were framed in 1953, i.e., U.P. Higher Judicial Service Rules, 1953
(hereinafter referred to as "1953 Rules"). These Rules provided for
recruitment from two sources; (a) Provincial Civil Service (Judicial Branch);
and (b) Members of Bar. Immediately thereafter direct recruitment from Bar
in U.P. Higher Judicial Service could not take place. It had to wait for almost
eight years. In 1961-62, first direct recruitment from Bar was made. Process
of direct recruitment was initiated for ten vacancies but only six could be
selected. These Rules were challenged in a writ petition before this Court.
This Court dismissed it. The matter was taken in appeal in Chandra Mohan
Vs. State of U.P. AIR 1966 SC 1987. 1953 Rules insofar as provided for
direct recruitment to the service were struck down as ultra vires. This
decision resulted in promulgation of Constitution's 28th Amendment Act,
1966 adding Article 233-A validating appointments already made but
thereafter no direct recruitment could be made till new Rules were framed in
1975.
9. Members appointed in service under 1953 Rules were designated as
Civil and Sessions Judge. On 8.5.1974, U.P. Higher Judicial Service
(Abolition of Cadre of Civil and Session Judges) Rules, 1974 (hereinafter
referred to as "1974 Rules") were promulgated declaring that Higher Judicial
Service will consist of District Judges and Additional District Judges only.
1974 Rules abolished the cadre of Civil and Sessions Judge and created a
new cadre of Additional District and Sessions Judge. It consisted of
permanent and temporary posts equal to the number of permanent and
temporary posts of Civil and Sessions Judge, that were available when 1974
Rules came into existence. The Civil and Sessions Judges holding permanent
and temporary posts were re-designated as District and Sessions Judge with
effect from 8.5.1974.
10. For quite sometime High Court was not able to determine correctly
the total number of temporary and permanent Civil and Sessions Judges,
who became Additional District and Sessions Judges under 1974 Rules. The
number varied, but has now ultimately is finalized at 271. How and in what
manner it happened while giving effect to 1974 Rules is not very relevant,
but suffice is to mention that High Court initially, when acted upon 1974
Rules, found 153 permanent and 31 temporary posts of Civil and Sessions
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Judge as on 10.5.1974, though 1974 Rules came into force on 8.5.1974. 31
temporary posts of Civil and Sessions Judge also became permanent later
on. High Court treated only 184 posts of Civil and Sessions Judge becoming
permanent posts of Higher Judicial Service under 1974 Rules, i.e., 153
permanent initial and 31 temporary posts converted permanent later. This
figure later on changed and ultimately settled at 271.
11. On 5.4.1975, a new set of Rules came into force, namely, U.P. Higher
Judicial Service Rules, 1975 (hereinafter referred to as "1975 Rules). On
promulgation of 1975 Rules, the Higher Judicial Service under 1975 Rules
consisted of 236 posts on 5.4.1975, i.e., 229 permanent and 7 temporary.
As a matter of fact, further recruitment from various sources under 1975
Rules was also made based on the above determination till 1984.
12. The number of initial recruits under 1974 Rules and 1975 Rules
became subject matter of some later litigation wherein this number went on
increasing. This shows serious mismanagement regarding maintenance of
record pertaining to creation of posts; appointments etc. This Committee
finds that this deficiency is still going on and needs be checked and cured at
the earliest.
13. The number of posts in initial service came to be settled in Writ
Petition No. 3054 of 1992 (J.B. Singh Vs. State of U.P. and others)
decided on 03.05.1993. The said judgment having attained finality after
dismissal of Special Leave Petition by Apex Court on merits, now it is
settled that the number of initial Service in 1974 Rules had 271 officers but
1975 Rules had only 263.
14. In the list of initial recruits consisting service under 1974 Rules and
1975 Rules had only 260 names common. These are as under:
S.N. Name Sl.No. (271/263)
Sl.No. Name Sl.No. (271/263)
1. Suresh Chandra 1/1 2. Basdelal Srivastava 6/2
3. U.C. Oswal 7/3 4. G.D. Srivastava 12/7
5. Ashfaq Ahmad 14/8 6. J.P. Chaturvedi 15/9
7. H.A. Safri 16/10 8. P.N. Goel 17/11
9. V.N. Mishra 18/12 10. M.M.M. Husain 21/15
11. P.N. Harkauli 22/16 12. Murlidhar 24/17
13. M.L. Agarwal 25/18 14. Ram Chandra 26/19
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15. M.M. Gupta 27/20 16. Mahavir Singh 28/21
17. M.P. Saxena 19/13 18. V.N. Verma 20/14
19. S.C. Tyagi 29/22 20. S.K. Srivastava 30/23
21. Q.U. Siddiqui 31/24 22. K.N. Goyal 32/25
23. S.K. Bhargava 33/26 24. R.C. Saxena 34/27
25. J.D.N. Shahi 35/28 26. R.B. Lal 36/29
27. Harihar Saran 37/30 28. Mohd. Wahajuddin 38/31
29. M.C. Agarwal 39/32 30. S.C. Mishra 40/33
31. S.Z. Hasan 41/34 32. Ram Sanehi 42/35
33. P. S. Verma 42/36 34. B.C. Jauhari 44/37
35. Moti Babu 45/38 36. R.C.D. Sharma 46/39
37. Chaman Singh 47/40 38. B.L. Goel 48/41
39. K.C. Sharma 49/42 40. Suresh Chandra-II 50/43
41. B.P. Agarwal 51/44 42. R.K. Gupta 52/45
43. B. K. Sharma 53/46 44. R.A. Rastogi 54/47
45. R. K. Srivastava 55/48 46. R.S. Mishra 56/49
47. Vikram Singh 57/50 48. D.D. Agarwal 58/51
49. N.N. Sharma 59/52 50. O.P. Srivastava-I 60/53
51. B.R.P. Singhal 61/54 52. A.S. Srivastava 62/55
53. R.P. Jain 63/56 54. R.K. Sinha 64/57
55. O.P. Saxena 65/58 56. Sachida Nand 66/59
57. I.P. Singh 67/60 58. Chhatrapal Singh 68/61
59. B.B. Srivastava 69/62 60. P.C. Jain 70/63
61. S.D.S. Yadav 71/64 62. R.C. Verma 72/65
63. S.P. Sharma 73/66 64. A.P. Srivastava 74/67
65. S.D.N. Singh 75/68 66. K.N. Endley 76/69
67. R.A. Mishra 77/70 68. P.C. Rastogi 78/71
69. B.D. Agarwal 79/72 70. K. Nath 80/73
71. J.S. Pandey 81/74 72. A.B. Mathur 82/75
73. H.M. Srivastava 83/76 74. Om Prakash(I) 84/77
75. H.N. Singh 85/78 76. P. Bishnoi 86/79
77. Chandra Prakash-II
87/80 78. Chandra Mohan 88/81
79. S.P. Srivastava 89/82 80. R.B.L. Khandelwal 90/83
81. N.N. Chadda 91/84 82. G.L. Shukla 92/85
83. G.K. Trivdedi 93/86 84. R.C. Bajpai 8/4
85. R. Prasad 9/5 86. Beheriji Dass 10/6
87. P. Dayal 94/87 88. M.M. Saran 95/88
89. Prakash Chandra 96/89 90. V.P. Mathur 97/90
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91. J.P. Saxena 98/91 92. R.P. Pandey 99/92
93. Om Prakash-II 100/93 94. P.N. Dubey 101/94
95. A.P. Agarwal 102/95 96. Hukum Singh 103/96
97. Harish Chandra 104/97 98. Umesh Chandra 105/98
99. S.B.L. Kakkar 106/99 100. P. Swarup 107/100
101. G.B. Singh 108/101 102. J.P. Agarwal-I 109/102
103. B.K. Mishra 110/103 104. S.S. Agarwal 111/104
105. M.G. Godbole 112/105 106. P.N. Roy 113/106
107. I.P. Mittal 114/107 108. R.A. Singh 115/108
109. D.P. Srivastava 116/109 110. S.N. Harkauli 117/110
111. Prahlad Narain 118/111 112. S.L. Tripathi 119/112
113. A.P. Agarwal 120/113 114. Ruri Mal 121/114
115. B.L. Loomba 122/115 116. S.K. Rai 123/116
117. D.N. Shukla 124/117 118. R.K. Mishra 126/118
119. R.M.R. Khanna 127/119 120. D.L. Agarwal 128/120
121. B.N. Jain 129/121 122. R.S.L. Srivastava 130/122
123. J.S. Mishra 131/123 124. A.P. Mittal 132/124
125. S.C. Jain 133/125 126. B.P.L. Hajeley 134/126
127. R.B. Srivastava 135/127 128. K.P. Sharma 136/128
129. Prem Singh 137/129 130. S. P. Mishra 138/130
131. M.P. Tripathi 139/131 132. J.P. Sinha 140/132
133. P.C. Saxena 141/133 134. H.M.L. Agarwal 142/134
135. J.N. Bansal 143/135 136. R.S. Agarwal 144/136
137. G.D. Chaturvedi 145/137 138. P.B. Mashiwal 146/138
139. M.P. Singh-I 147/139 140. Virendra Kumar 148/140
141. R.K. Agarwal 149/141 142. M.M.H. Siddiqui 151/142
143. Rajeshwar Singh 152/143 144. V.C. Jain 153/144
145. Om Prakash-III 154/145 146. G.C. Mojha 155/146
147. R.N. Sinha 156/147 148. U.S. Gupta 157/148
149. K.K. Birla 158/149 150. H.C. Mittal 159/150
151. M.M. Lal 160/151 152. B.P. Shukla 161/152
153. G.K. Mathur 162/153 154. Y.P. Singh 163/154
155. B.B. Khare 164/155 156. K.C. Singh 165/156
157. K.P. Asthana 166/157 158. S.R. Bhargava 167/158
159. L.R. Kohli 168/159 160. S.K. Agarwal 169/160
161. H.C. Rastogi 170/161 162. M.L. Gupta 171/162
163. P.K. Agarwal 172/163 164. Bipin Chandra 173/164
165. R.C. Awasthi 174/165 166. R.K. Saxena 175/166
167. V.N. Mishra 176/167 168. N.K. Maheshwari 177/168
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169. R.N. Sinha 179/169 170. J.M. Srivastava 180/170
171. V.S. Agarwal 181/171 172. S.D.N. Sehi 182/172
173. Brij Mohan 183/173 174. G.P. Srivastva 184/174
175. R.R. Agarwal 185/175 176. S.P. Srivastava 186/176
177. B.N. Srivastava 187/177 178. B.D. Gupta 188/178
179. R.C. Verma 189/179 180. S.S. Sinha 190/180
181. P.L. Sharma 191/181 182. Din Dayal 192/182
183. T.N. Saxena 193/183 184. H.P. Pathak 194/184
185. Brahma Kishor 195/185 186. K.K. Chaubey 196/186
187. G.D. Dubey 197/187 188. R.C. Agarwal 198/188
189. U.K. Verma 199/189 190. B.P. Srivastava 200/190
191. G.N. Saxena 201/191 192. C.B. Shah 202/192
193. Arjan Dev 203/193 194. R.N. Agarwal 204/194
195. R.S. Mathur 205/195 196. P.S. Shukla 206/196
197. B.P. Singh 207/197 198. C.L. Anand 208/198
199. H.C. Lal 209/199 200. R.K. Garg 210/200
201. L.S.P. Singh 211/201 202. Bhagwant Prasad 212/202
203. Kishun lal 213/203 204. Ram Singh 214/204
205. B.I.S. Sodhi 215/205 206. R.C. Gupta 216/206
207. B.B. Agarwal 217/207 208. D.K. Agarwal 218/208
209. H.C. Saxena 219/209 210. S.K. Jain-I 220/210
211. D.N. Khanna 221/211 212. B.N. Mohiley 222/212
213. M.P.S. Tomar 223/213 214. B.N. Mehrotra 224/214
215. A.L. Srivastava 225/215 216. S.N. Saxena 226/216
217. P.N. Chaubey 227/217 218. S.A. Abbasi 228/218
219. S.M.A. Khusro 229/219 220. S.N. Lal 230/220
221. G.L. Tandon 231/221 222. V.S. Kulshrestha 232/222
223. G.S. Sharma 233/223 224. S.R. Srivastava 234/224
225. D.N. Sharma 235/225 226. Puttu Lal 236/226
227. C.G. Garg 237/227 228. K Narain 238/228
229. S.K. Mishra 239/229 230. K.G. Rastogi 240/230
231. J.K. Mathur 241/231 232. Shivadhar Tiwari 242/232
233. D.L. Soni 243/233 234. K.C. Bhargava 244/234
235. B.C. Shukla 245/235 236. Govind Prasad 246/236
237. P.P. Gupta 247/237 238. Surya Prasad 248/238
239. K.M. Pandey 249/239 240. S.K. Bhargava 250/240
241. R.K. Agarwal 251/241 242. A.B. Srivastava 252/242
243. C.L. Jatav 253/243 244. B.D. Maurya 254/244
245. K.L. Sharma 255/245 246. Om Prakash-IV 256/246
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247. Narain Das 257/247 248. N.B. Asthana 258/248
249. G.R.S. Tandon 259/249 250. P.K. Dixit 260/250
251. A.N. Gupta 261/251 252. J.M. Srivastava 262/252
253. S.K. Verma 263/253 254. S.N. Mishra 264/254
255. Mohan Singh 265/255 256. B.K. Srivastava 266/256
257. Ramji Lal 268/257 258. G.S.N. Tripathi 269/258
259. M.C. Agarwal 270/259 260. A.S. Tripathi 271/260
15. Following seven officers were confirmed District Judges in 1963,
1966, 1966, 1966, 1967, 1969 and 1968, but they did not find mention in the
list of 263 but were added in the list of 271:
(i) Sri I.N. Mishra
(ii) Sri Prem Prakash
(iii) Sri Ram Surat Singh
(iv) Sri Bhrigu Narain
(v) Sri Sri Akhtar Husain
(vi) Sri S.N. Shukla
(vii) Sri Balram Agarwal
16. Besides, three officers, namely, Sri N.S. Mehta, Sri D.D. Vyas and
Sri Om Prakash-V were on deputation with the Government of India, though
were holding lien in U.P. Their names though mentioned in the list of 271
but got omitted from the list of 263 since in the meantime they were
absorbed in Government of India. These three officers having gone on
deputation, in their place, three other officers, namely, Sri I.S. Mathur, Sri
J.P. Semwal and Sri S.B. Sinha were given officiating promotion as Civil
and Sessions Judge after 10.5.1974, i.e. on 21.5.1974, 21.5.1974 and
3.5.1974. These are mentioned in the list of 263 but not in the list of 271.
Lastly, there was an Officer, namely, Sri J.P. Satsangi, who was also
officiating as Civil and Sessions Judge since 13.1.1968 and, hence, was
added in the list of 271. He was not available on the commencement of 1975
Rules having retired in the meantime, hence excluded in the list of 263.
17. Therefore, in J.B. Singh (supra), this Court took the final figure as
271 on 08/10.05.1974 and 263 Additional District and Sessions Judges
against 236 posts on 5.4.1975 when 1975 Rules came into force. The Court
held that all 236 Offices ipso facto became member of service on the date of
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creation of service, i.e., 5.4.1975. Besides 27 Officers, as a matter of fact,
who were holding posts of Additional District and Sessions Judge on
5.4.1975 should also be deemed to be member and for them since
sanctioned posts were not available, the Government was directed to create
supernumerary posts for these Officers. The judgment was pronounced on
3.5.1993 and in Appeal, the Apex Court declined to stay operation of
judgment. On the contrary, it directed the State Government to comply
direction regarding creation of 27 supernumerary post which was followed
and by notification dated 18.2.1994, 27 supernumerary posts were created. A
copy thereof was filed before Apex Court alongwith affidavit. Affirming the
judgment of High Court, the Apex Court disposed of Special Leave Petition
on 26.11.1993. These 27 supernumerary posts got absorbed against
vacancies, became available on and after 05.04.1975.
Post 1975 Rules. The dispute regarding number of vacancies, appointments, seniority-relevant facts:
18. 1975 Rules basically contemplate that on the date of determination
of vacancies, all the existing vacancies and those likely to occur in next two
years, shall constitute the total number of vacancies for one recruitment.
These vacancies are to be allocated to three sources of recruitment provided
in the Rules, i.e. U.P. Nyayik Sewa (UPNS), U.P. Judicial Officers Service
(JOS) and Members of Bar, i.e., Direct Recruitment (D.R.).
19. Since 1975 Rules came into force on 5.4.1975, the Court proceeded
to make first direct recruitment along with recruitment of other sources for
the period upto 31.12.1976 (First Batch). Thereafter, till 1986, it had
continuously made Recruitments taking block period of two years as 'unit of
recruitment', i.e., number of vacancies existing on first day of January of the
concerned year and the anticipated vacancies upto 31st December of next
year. We may summarize it as under:
(a) 1978 Recruitment. Existing vacancies as on 1.1.1977 and anticipated vacancies upto 31.12.1978. (Second Batch)
(b) 1980 Recruitment. Existing vacancies as on 1.1.1979 and anticipated vacancies upto 31.12.1980. (Third Batch)
(c) 1982 Recruitment. Existing vacancies as on 1.1.1981 and anticipated vacancies upto 31.12.1982. (Fourth Batch)
(d) 1984 Recruitment. Existing vacancies as on 1.1.1983 and anticipated vacancies upto 31.12.1984. (Fifth Batch)
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(e) 1986 Recruitment. Existing vacancies as on 1.1.1985 and
anticipated vacancies upto 31.12.1987. (Sixth Batch)
20. These "recruitment units" were never challenged.
21. Some confusion however caused due to use of the word 'Batch' which
at a later stage reflected to different period. We have decided not to give
much importance to the term "Batch" or the "concerned years", but it would
be the recruitment period which would be of relevance. We may hereinafter
refer as 'recruitment unit' or the concerned years or we may say 'First Batch',
'Second Batch', 'Third Batch' and so on.
22. The First Batch of direct recruits had eight officers, appointed in
1977. They joined in September 1977 except one who joined on 7.10.1977.
The Second Batch of direct recruits had seven officers appointed in 1979,
joined in November and December 1979. The Third Batch had ten officers
appointed in 1983 and joined in July 1983. The Fourth Batch of direct
recruits had twelve officers appointed in 1984 and joined in April 1984
except one, Sri Barkat Ali Zaidi, who joined on 16.5.1984. The Fifth Batch
at that time termed as 1984 Batch, was notified for ten vacancies and the
process of recruitment started but a major litigation started from this batch
and onwards and that is how, in the first seniority list, which had been
finalized ultimately by this Court, upheld upto Apex Court, the direct
recruits of this batch could not find place. The Sixth Batch commenced
recruitment in 1986 but had no Direct Recruitment. The later batches also
met lot of litigations.
Historical backdrop of respective litigation:
23. The first litigation under 1975 Rules, we could trace back, relates to
the recruitment of Second Batch. In respect to 1978 Recruitment, made for
seven vacancies for Direct Recruitment, one Suresh Chandra Tyagi filed a
writ petition no. 6261 of 1984 stating that vacancies remained unfilled
ought not to have been carried forward and he was in the wait list, therefore,
ought to have been appointed. This writ petition was dismissed in limine by
a Division Bench consisting of Hon'ble M.N. Shukla, Acting Chief Justice
and B.D. Agarwal, J. vide judgment dated 27.4.1984 holding as under:
"There is no provision to carry forward the vacancies
existing in any particular years against the quota of the direct
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recruits. The list drawn is upon merit and is exhausted with the
appointments given on the basis thereof. It is admitted moreover
that examinations for recruitment to the Higher Judicial Service
have taken place in subsequent years and also that various
appointments of candidates from different categories have been
made on the result thereof. With these subsequent developments
consequently the writ of mandamus sought by the petitioner for
being not appointed to a post in the Higher Judicial Service is
clearly otiose."
24. The matter was taken in appeal by Sri Tyagi in S.L.P. (C) 1984
(converted in Civil Appeal No. 2124 of 1985). The Apex Court disposed it
on 6.8.1985, as under.
"Leave granted.
After hearing counsel on either side, we feel that the
proper order, in the facts and circumstances of the case, would
be to direct the authorities concerned to appoint the appellant as
Addl. District & Sessions Judge (direct recruit) within
reasonable time or at least with effect from October 1, 1985. We
order accordingly. The appellant shall not claim seniority over
anybody who shall have been appointed before him till
September 30, 1985. If any fresh recruitment is to be made for
the year 1985 or 1986, the number of posts for direct recruits to
be advertised for such recruitment may be indicated with one
number less so that nobody will have any grievance about the
appellant having been appointed as Addl. District & Sessions
Judge with effect from October 1, 1985. If no fresh recruitment is
in the offing, an additional post by way of temporary
arrangement be created for him and he be appointed to it with
effect from October 1, 1985. We are passing this order because
we are informed categorically by counsel for the respondents
that the appellant, though qualified and found suitable could not
be appointed for some technical reason and the appointment as
suggested by the Court could be made.
The appeal is disposed of accordingly. No costs. "
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25. In view of above directions, Sri Tyagi was appointed as Additional
District Judge by notification dated 28.9.1985, which was given effect from
1.10.1985 or the date on which he takes over charge. It was clearly
mentioned that Sri Tyagi shall not have any claim of seniority over Officers
appointed in U.P. Higher Judicial Service upto 30.9.1985. Sri Tyagi was
confirmed by Court's notification dated 28.4.1988/6.5.1988.
26. The next litigation relates to Third Batch of direct recruits i.e. '1980
Recruitment'. Certain Officers working in U.P. Nyayik Sewa, who fulfilled
requisite qualifications for direct recruitment, applied in this selection but
were declined consideration by Court holding them ineligible. A writ
petition no. 728 of 1981 was filed in Apex Court wherein an interim order
was passed permitting consideration of such candidates subject to final
result. Two more writ petitions were filed later on, i.e., writ petitions no.
16087 of 1984 and 15926 of 1984. The Full Court thus passed following
resolution on 5.3.1983, referring to interim orders of the Apex Court:
"....... for the 1980 examination for direct recruitment to H.J.S.
the Supreme Court had by an interim order directed that the officers of
U.P. Nyayik Sewa may be permitted to appear in the examination.
Subsequently on 10.02.1983 the Supreme Court passed the following
interim order, we would like to modify the order dated 26.10.1982 by
substituting the word 'after the selection is made' for the words 'after
the result is declared'. If any members of the Bench who have been
permitted under interim order passed by this Court to appear in the
competitive examination, have passed the examination, their names
will also be sent to the Government alongwith the names of the
promotees i.e. to say the names of the Members of the Bench will not be
withheld for the sole reason that they are members of the Bench, and,
therefore, they are not entitled to appear in the examination.
From this order it appears that the names of the Members of
Nyayik Sewa who have passed the examination may also be sent to the
Governor for approval alongwith the name of the promotees.
In 1980 examination no officers of U.P. Nyayik Sewa was
successful. In 1982 examination some officers were, on analogy of
Supreme Court orders on 1980 matter permitted to appear. Some of
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them become successful. The following (the names of 25 officers are
mentioned including the names of above four officer) is the merit list
prepared by the Committee and it is approved subject to the decision
by the Supreme Court.
According to the Supreme Court orders the names of the
following officer who according to the report of the Selection
Committee falls within the first 14 candidates of general list in order of
merit may also be sent to the Governor, alongwith the list of promotees
i.e. to say alongwith list of 57 officers approved for promotion:- names
of six officers of U.P. Nyayik Sewa who have qualified in H.J.S.
They are at Sl. No. at 2, 8, 11, 12, 14 & 15 of the merit list of the
direct recruits. After excluding the 6 the general list of 14 direct
recruits of the Bar is as follows (name of 14 officers including the
above mentioned 4 officers."
27. It also appear that some writ petitions were also filed in this Court
also. They having been dismissed, the matter went in appeal and those were
also clubbed with the pending writ petitions. All these writ petitions and
appeals were ultimately decided on 27.11.1984 in Satya Narain Singh Vs.
High Court of Judicature at Allahabad AIR 1985 SC 308. The Apex
Court, while dismissing the matters, said:
"By virtue of the interim order passed by this Court, members of the
Uttar Pradesh Judicial Service, who desired to appear at the
examination and selection were allowed to so appear, but the result of
the selection was made subject to the outcome of the civil appeal and
the writ petitions in this Court. Civil appeal and some of the writ
petitions were dismissed by us on October 11, 1984. The remaining
writ petitions are now before us. Shri Lal Narain Sinha and Shri K. K.
Venugopal, learned Counsel who appeared for the petitioners, tried to
persuade us to reopen the issue, which had been concluded by our
decision on October 11,1984. Having heard them, we are not satisfied
that there is any reason for re-opening the issue. When we dismissed
the civil appeal and the writ petitions on the former occasion, we were
content to merely affirm the judgment of the High Court of Allahabad
without giving our own reasons. In view of the arguments advanced, we
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consider that it may be better for us to indicate briefly our reasons.
...Thus we see that the two decisions do not support the contention
advanced on behalf of the petitioners but, to the extent that they go,
they certainly advance the case of the respondents. We therefore, see
no reason to depart from the view already taken by us and we
accordingly dismiss the writ petitions."
28. Due to delay in disposal of above matters, though the process of next
Batch of direct recruitment had already initiated, some selected candidates of
1980 Batch who otherwise could have been appointed along with their batch
mates suffered. They are Sri Narendra Singh, Sri Krishna Kumar, Sri
Umesh Chandra Tiwari and Sri Udav Singh. These four persons could
not find place in the list of selected candidates in Third Batch of recruitment,
i.e., 1980 Batch for the reason of above litigations. These four persons could
be appointed in service as direct recruits by notification dated 1.10.1985.
The appointment of these Officers got delayed for no fault on their part, but
in view of Rule 26 of 1975 Rules, these four persons also could not be
given place in the first final seniority list and, therefore, have to be given
due place in the seniority list with which we are now concerned.
29. The next and the major litigation started with the 5th Batch of direct
recruits which is commonly known as "1984 Batch".
30. For 1984 Batch, 10 vacancies for direct recruitment were determined
and advertised. The selection process completed. Before appointments could
be made, writ petition no. 4373 of 1986 Srikant Tripathi and others vs.
State of U.P. and others (1987 UPLBC 222) was filed. On 4th July 1986,
while admitting the writ petition, this Court (Hon'ble Kamleshwar Nath, J)
passed interim order as under:
"Admit and put up for orders on the interim relief
application on 7.7.86. It is stated in para 2 of the application for
interim relief that not more than six persons can possibly be
appointed from amongst the Advocates as direct recruits. It is
directed that till the matter is taken up by the Court on 7.7.86,
the opposite parties shall be at liberty to appoint the first six
direct recruits in order of merit to the U.P. Higher Judicial
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Service, but shall not appoint any other direct recruit to the said
service."
31. It was contended that HJS cadre consisted of 444 posts in all (311
permanent and 133 temporary) and quota for direct recruits being 15%
against permanent posts only, not more than 47 posts could be filled in from
direct recruitment. 41 Officers, directly recruited were already in service
upto 1982, hence only 6 more could be appointed. The advertisement for 10
vacancies was beyond permissible quota by 4.
32. This matter was considered by a Full Bench in the light of 1975 Rules
as they stood at the relevant time. The Full Bench at Lucknow upheld the
contention of promotee officers. By judgement dated 10.02.1987, while
allowing the writ petition, it directed the Court to make only 6 appointments
from the aforesaid advertisement of 10. In the mean time for 6th Batch i.e.,
1986 Recruitment, another advertisement of 7 vacancies for direct recruits
was also published which was also challenged by getting writ petition
amended. The Full Bench in S.K. Tripathi (supra) quashed the
advertisement for direct recruits made in regard to sixth Batch, i.e., 1986
Recruitment. The operative part of the judgment reads as under:
"In the result, we allow the writ petition. A direction shall
go to opponent-parties Nos. 1 and 2 not to appoint more than six
persons amongst the candidates selected for direct recruitment
to H.J.S. A direction shall also be issued to opponent-party No. 3
not to proceed with the selection of candidates pursuant to the
advertisement as per Annexure-9 to the writ petition."
33. In Civil Appeal No. 4010 of 1987, the aforesaid Full Bench decision
was assailed. The Apex Court decided the matter on 24.3.1999 in Ram
Kishore Gupta Vs. State of U.P. and others AIR 1999 SC 2961. During
pendency of appeal, the Apex Court passed an interim order on l6.12.1987
permitting appointment of four candidates recruited in pursuance of
advertisement made for 10 vacancies, subject to the question of seniority to
be determined finally by the Court. Accordingly four persons namely, Shiv
Murti Pandey, Girish Chandra Awasthi, Ram Kishore Gupta and
Pooran Singh vide notification dated 15.1.1988 were appointed.
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34. This appeal was decided finally on 24.03.1999. In para 2 thereof the
Apex Court observed "therefore, the decision taken by the High Court cannot
be sustained at all." The Apex Court noticed that these four persons who
were appointed ultimately pursuant to the interim order passed by the Apex
Court on 16.12.1987 were denied appointment by the interim order of the
High Court passed which had resulted in that 6 of their batch-mates got
appointment in 1986 itself but four of them got delayed due to the interim
order of the High Court as well as the judgement which ultimately was
found unsustainable. However the Apex Court instead of itself deciding the
issue regarding seniority of those four persons directed as under:
"We are of the view that the proper course is for the High
Court to determine the seniority of these persons on its
administrative side. While doing so the High Court will have to
prepare, circulate, invite objection and finalize seniority of these
persons in the light of the law and decision of this Court in O.P.
Gerg including the present decision as well as the interim orders
made by this Court in pursuant to his appointment of these
persons has been made. . . . ."
These four officers' seniority has to be assigned in the light of above
facts.
35. 6th Direct Recruitment which technically was initiated in 1986, in
view of Full Bench decision in S.K. Tripathi (supra) could not materialize.
The High Court's judgment was reversed by Apex Court in 1999. So as the
matter of fact, 1986 batch i.e. 6th recruitment of direct recruits could not
get any Direct Recruitment and defacto had members of U.P. Nyayik Sewa
and Judicial Officers only.
36. We now proceed to 7th recruitment which until now has been termed
as "1988 recruitment" or "1988 batch". The vacancies in 1988 recruitment
initially were determined, existing as on 1.1.1988 and likely to occur upto
31.12.1989. The Selection Committee later on extended this period upto
31.12.1990. The number of vacancies determined for direct recruits earlier
being 5, increased to 9. It is this recruitment which basically caused a spate
of litigation which is still inconclusive inasmuch as this committee is to
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undergo the process of redetermination of vacancies of 1988 recruitment and
consequential seniority of the concerned officers.
37. Before going deeper into this aspect of the matter, there is one step in
the field of seniority of officers appointed before this recruitment of 1988.
Therefore, we feel it necessary to complete our record at this stage by giving
few facts thereof.
38. P.K. Dixit and 7 others (promotee officers) challenged their
placement in seniority in 1984 from a date other than the date on which they
were appointed or from the date of their continuous officiation by filing writ
petitions directly under Article 32 the Constitution of India before the Apex
Court i.e. writ petitions no. 11788-11796 of 1984. The scheme of Rules of
1975 as also that of 1974 Rules, for the first time, in reference to the
question of seniority was considered by Apex Court. The matter was decided
on 8th October 1987 in AIR 1988 SC 260 P.K. Dixit and others vs. State of
U.P. and others. Some of the special features in the judgment are as under.
(a) The Court directed that all the officers who were working as
Civil and Sessions Judges on 08.05.1974 automatically became
Additional District and Sessions Judges. The only consideration in
their cases left open to the High Court was for their confirmation and
availability of vacancies and nothing more than that. In order to take
their date of confirmation, the date of actual decision of confirmation
would be irrelevant but it would be the date when the post was
available and no other date can be taken in their cases. The Apex
Court said that High Court would not go into the question whether,
while promoting them as Civil and Sessions Judges, any procedure
was followed or not. The Apex Court, however, left one aspect that in
case at the time of actual confirmation the officer is not found fit and
is reverted, the question of determination of his seniority would not
arise, otherwise, no other things would be examined.
(b). There was no challenge either to ratio fixed for direct recruits or
promotees or the validity of Rules. The only thing in respect whereto
relief was sought is seniority, should be assigned by giving advantage
of continuous officiation.
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(c) It only appears that the case of Sri Dixit etc. was considered for
confirmation and at that time some date was given from which they
were treated to be on probation. On that basis, seniority was
determined. As stated earlier,the Court said in absence of anyone of
these officers not having been found unfit for promotion, the period of
officiation has to be considered as period of probation and
confirmation has to be from the date on which earliest a vacancy was
available and seniority was to be determined on that basis.
(d) These rules provide that all the posts (permanent) available in
HJS, existing on May 10, 1974 plus 31 temporary posts existing on
that date, shall be filled by promotion from amongst the members of
Nyayik Sewa. It is therefore clear that all the posts in the HJS, lying
vacant on May 10, 1974 plus thirty one will have to be filled in from
the officers of Nyayik Sewa, may be that some of these posts
occupied by promotee officers who were given promotions on ad hoc
basis or working on those posts or that the posts may be lying vacant.
Whatever may be the situation on the basis of what has been discussed
above and also as clearly provided in the rules, the matter will have to
go to High Court to consider afresh and fill in all the posts in the HJS
available on May 10, 1974 plus 31 posts from the officers of the
Nyayik Sewa."
(e) That the officers who ware officiating as Civil and Sessions
Judge on 8th May, 1974 automatically became Additional District and
Sessions Judge. It would not be said that proper procedure for
promotion was not followed. In fact nothing was brought on record to
indicate as to how an officer was appointed to the post of Civil and
Sessions Judge from the Nyayik Sewa. It was thus accepted that all
those who were working as Civil and Sessions Judges on 8th May,
1974 automatically became ADJ and what left was only a
consideration of their cases of confirmation. In doing so, in view of
the conclusions arrived at by Court, and also as provided in proviso to
Rule 8, all the posts available on 10th May 1974 plus 31 posts
(temporary) on that date will have to be filled in from the cadre of
Nyayik Sewa by promotion.
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(f) The only thing that could be kept in view is the date on which a
vacancy (permanent) was available for their confirmation and the
seniority of these officers will have to be reckoned in accordance with
the date of confirmation which will be not the actual date of
confirmation but a date when a post was available.
(g) It was contended that the phrase "appointment to the service"
which has been used in R.22 should not be restricted to the
substantive vacancies i.e. permanent vacancies. The substantive
vacancy has not been defined in the Rules but proviso speaks of
permanent vacancies and temporary posts. It therefore could not be
doubted that when appointment of R.22 is contemplated in the service
of substantive vacancies, it may be both temporary or permanent but
the vacancy must be in the cadre.
39. This judgment in P.K. Dixit (supra) was rendered by a two Judges
Bench. (The observations/directions at items no. (c) and (d) were later on
overruled in O.P. Garg vs. State of U.P, AIR 1991 SC 1202.
40. In compliance of the judgment of the Apex Court in P.K. Dixit
(supra) this Court issued final seniority list on 25.08.1988 when
Recruitment of 1988 (7th batch) was in process. This seniority list included
names of officers upto 1984 batch (Direct Recruitment) excluding 6
officers inducted in service in 1986 and 4 officers in 1988 as a result of
interim order in Ram Kishore Gupta (supra).
41. This seniority list dated 25.08.1988 could not satisfy both the sets of
officers i.e. direct recruits and promotees. The matter again was taken to
Apex Court. It was decided on 23.04.1991 finally in O.P. Garg (supra).
42. Now before going deeper into this judgment we intend to complete
the facts relating to 1988 Recruitment since after 23.04.1991, both the
aspects have to be seen together.
43. The actual process of recruitment of 7th Batch, i.e. 1988
Recruitment started with office note dated 08.05.1989 which was finally
approved on 29.06.1989. Only permanent sanctioned posts in HJS cadre
were taken into consideration for the purpose of above recruitment as was
done in past also. The sanctioned strength on that date was 359 against
which 187 officers of Nyayik Sewa, 49 direct recruits and 42 Judicial
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officers were working, leaving 81 vacancies. The Court therefore allocated
vacancies to three sources as under:
1. Nyayik Sewa 64
2. U.P. Judicial Officers 12
3. Direct Recruits 05
44. The quota of direct recruits was taken 5 applying Full Bench
judgment in Srikant Tripathi which was holding the field at that time
otherwise the Court had calculated quota of direct recruits as 12.
Advertisement of 5 vacancies, therefore, was made on 26.05.1989. The
selection committee comprising Hon'ble A.N. Varma, V.K. Khanna and
G.K. Mathur, JJ (constituted on 24.05.19890 held the selection. The actual
selection took some time inasmuch as written examination itself could be
held on 7/8.04.1990. The selection committee on 29.03.1991 recalculated
the vacancies and recruitment period was made "01.01.1988 to
31.12.1990". The total existing vacancies were calculated as 103 and
allocated as follows:
(1) Nyayik Sewa 79(2) U.P. Judicial Officers 16(3) Direct Recruits 08
45. The selection committee made its recommendation containing 76
names of U.P. Nyayik Sewa Officers, 18 names of U.P. Judicial Officers and
9 names of direct recruits. The above recommendation was approved by Full
Court on 06.04.1991.
46. Before the recommendation could be sent to State Government,
decision in O.P. Garg (supra) came to be delivered on 23.04.1991. The
High Court thought that the judgment related to seniority and, therefore,
would have no impact on the recruitment. Hence without taking any note of
O.P. Garg's judgment, sent its recommendations on 05.06.1991. The State
Government returned recommendation on 06.08.1991 along with
representation made by U.P. Nyayik Sewa Officers to consider the matter
afresh in the light of judgment in O.P. Garg (supra).
47. Almost simultaneously writ petition no. 21768 of 1991 Surendra
Kumar vs. State of U.P. and others was filed seeking a writ of mandamus
to the High Court to make recommendation of two candidates of Other
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Backward Class and also a mandamus to State Government to appoint them.
An interim order was passed on 24.09.1991 in the said writ petition by
Hon'ble S.R. Singh, J at Allahabad. Both the matters thus had to be
considered by the Court. The selection committee was reconstituted to
consider the matter. The Committee proceeded accordingly. This leads us to
find out what had been laid down in O.P. Garg (supra).
48. O.P. Garg (supra) is the real sheet anchor in the matter. The
directions contained therein have to be implemented by the Court. In
particular this Committee has to consider and make its recommendation
implementing the same.
49. In O.P. Garg (supra) some part of 1975 Rules were struck down.
This is one of the important aspect, which really had its impact on the entire
matter. It would be appropriate to refer relevant Rules 5, 6, 8, 20, 22, 26 at
this stage:
"5. Sources of recruitment.- The recruitment to the Service shall be made-
(a) by direct recruitment of pleaders and advocate of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published;
(b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa, who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting applications is published;
Provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrates, confirmed officers who have put in not less than 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).
6. Quota.- Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be-
(i) direct recruitment from the Bar 15%
(ii) Uttar Pradesh Nyayik Sewa 70% of the vacancies
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(iii) Uttar Pradesh Judicial Officers Service (Judicial 15% Magistrates)
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.
(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 the total permanent strength of the service.
Provided further that all the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules;
Provided also that the number of vacancies equal to 15 percent 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 percent. 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 percent. vacancies worked out as above have not been filled up from out of the Judicial Magistrates, the allocation of vacancies shall be as follows :
(i) 15% by direct recruitment.
(ii) 30% from out of the Judicial Magistrates;
(iii) 55% from out of the members of the Nyayik Sewa.
20. Promotion of members of the Nyayik Sewa.- (1) Recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the basis 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 R. 5(b) of these rules.
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(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 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 names 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 Committee 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.
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 Rules 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 list.
(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 there after 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 Magistrate.
(3) Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa.
Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrate appointments on temporary vacancies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrate according to the quota fixed for that source under these rules :
Provided further that for so long as such members of the Judicial Service as are considered suitable for appointments on temporary vacancies or in officiating capacity are not available
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in sufficient number, the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates.
(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).
26. Seniority.- (1) Except as Provided in sub-rule (1), seniority of members of the service shall be determined as follows:
(a) Seniority of the officers promoted from the Nyayik Sewa vis-a-vis the officers recruited from the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits. Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same, the promoted officer shall be treated as senior;
Provided that in the case of a promoted officer the maximum period of continuous officiation in the service shall not, for the purpose of determining seniority exceed three years immediately preceding the date of confirmation ........."
50. The part of the Rules shown in bold letters in Rules 22 and 26 were
declared ultra vires and struck down. Second and third proviso to Rule 8(2)
were held inoperative and redundant.
51. The important directions, relevant for our purpose, are contained in
para 34 , items 2 and 3 in the judgment, read as under:
"2. We strike down first proviso to R. 26(1)(a) of the 1975 rules and
direct that the continuous officiation/service by a promotee
appointed under the Rules shall be counted for determining his
seniority from the date when a substantive vacancy in permanent
or temporary post is made available in his quota under the 1975
rules.
3. We also strike down Rr. 22(3) and 22(4) of the 1975 rules but
the appointments already made under these rules shall not be
invalidated. We further direct that while selecting candidates
under rule 18 of the said rules the committee shall prepare a
merit of candidates twice the number of vacancies and the said
list shall remain operative till the next recruitment. We further
direct that the appointments under Rr. 22(1) and 22(2) of the
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1975 rules shall be made to permanent as well as to temporary
posts from all the three sources in accordance with the quota
provided under the said rules. There shall be no order as to
costs."
52. The exercise of determination of vacancies for 1988 Recruitment was
undertaken by the Court twice, but could not withstand the test of Judicial
review before Apex Court. Therefore, we find it necessary to find out what
done earlier was erroneous so that the things may become easier for us to
understand and to save us from falling in the same trap again.
53. The re-constituted Selection Committee in 1991 was apprised of total
sanction strength of Higher Judicial Service upto 31.12.1990 as 508. Against
it, 204 U.P. Nyayik Sewa, 20 J.O.S. and 47 direct recruits Officers were
actually working. Consequently, it worked out vacancies for three sources as
under:
(i) U.P. Nyayik Sewa - 152(ii) J.O.S. - 56(iii) Direct Recruits - 29
54. In the direct recruits, against 29, only 25 candidates were found
suitable which included 20 general, 4 O.B.C. and 1 SC. candidates. This
determination of vacancies was approved by the Full Court on 18.1.1992.
55. The re-constituted Selection Committee on 21.7.1992 decided to
revise number of vacancies for 1988 recruitment in the light of judgment in
O.P. Garg (supra) and allocated the same to various sources as under:
(i) U.P. Nyayik Sewa - 192
(ii) J.O.S. - 20
(iii) Direct Recruits - 25
56. There was a shortfall of 36 J.O.S. and 4 direct recruits which was
allocated to U.P. Nyayik Sewa and that is how it became 192.
57. On 25.7.1992, the Full Court, however, resolved to fill in the
vacancies upto 31.12.1992 in respect to U.P. Nyayik Sewa only. In that view
of matter, the number of vacancies of U.P. Nyayik Sewa till 31.12.1992
came to 268.
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58. Simultaneously, five-Judges Seniority Committee also re-considered
the question of seniority of members of H.J.S. appointed upto 1986 Batch.
This Committee submitted its report on 29.4.1992. The seniority list was
finalized on 03.05.1992.
59. This seniority list dated 06.05.1992 was challenged in writ petition no.
3054 of 1992 (J.B. Singh and others Vs. State of U.P. & others). A Division
Bench of this Court (Lucknow Bench) vide judgment dated 3.5.1993
dismissed the writ petition upholding seniority list in its entirety except of
adding a direction that since on the date of enforcement of 1975 Rules, 263
Officers were working as Civil and Sessions Judge, though only 236 were
taken note in 1975 Rules, therefore, to keep the things straight, 27
supernumerary posts be created so as to give validity to 27 excess number of
Officers working as Civil and Sessions Judge. This judgment in its entirety
was approved by Apex Court in S.L.P. (Civil) No. 9982 of 1993 decided
finally on 26.11.1993.
60. The seniority list dated 06.05.1992 was also challenged by certain
direct recruits in separate proceedings. The matter was considered by a five
Judges Bench of this Court in K.N. Singh and others Vs. State of U.P. and
others, 1999 ALJ 472. This Court observed that appointments made
between 1978 and 1984 are governed by 1975 Rules (ignoring the
amendment of 1996) and the matter, therefore, has to be strictly dealt with in
the light of these very rules and judgments of Apex Court dealing with these
Rules and none else. Referring to various authorities of Apex Court cited
before the Full Bench, it observed:
"The learned counsel no doubt made reference to various case
laws on the question of inter se seniority between promotee officers and
directly recruited officers in different services. All these cases dealt
with the particular rules applicable to the services in question in these
cases and the Courts had given interpretation of those rules. In view of
the admission of the parties before us that the decision in O.P. Garg's
case had given the governing guideline, we have not taken up the other
cases for discussion and the scope of the present writ petitions is
limited to the extent to see if the dictum of the Supreme Court in O.P.
Garg's case has rightly been followed in fixing the seniority in the
instant case."
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61. Thereafter the Court considered. Five Judges' committee report and
various decisions taken by it, examined the same in the light of 1975 Rules
and the exposition of law in O.P. Garg's case and found that the committee
has determined seniority of the respective officers in terms of the judgment
and it does not warrant any interference. It observed as under:
"Meticulous care had been taken by the Committee to indicate as
to when a particular vacancy was made available in the quota of a
promotee and the learned counsel for the High Court very
painstakingly indicated before us that for the deciding the availability
of quota, the Committee had kept in mind the rota rule and in doing so
the best possible exercise was made by the Committee to fix the
seniority amongst the HJS officer in terms of the judgement of the
Supreme Court. We find sufficient force in this argument of the learned
counsel for the administrative side of the High Court."
62. It further observed in para 23 of the judgment:
"We are of the view that the Committee was required to make the
seniority list in terms of the judgement of the Supreme Court. A
practical and correct interpretation to the term "vacancy made
available in the quota" had been given by the Committee. A right
approach was made to delink the question of appointment on rotation
from the question of fixation of seniority and we find no reason to
interfere with the suggestions of the Committee or the resultant
seniority list now under challenge."
63. Against this judgment also Special Leave Petition was filed before the
Apex Court but the same has been dismissed.
64. These two decisions in J.B. Singh (supra) and K.N. Singh (supra)
are relevant to be referred hereat for the reason that for the purpose of
seniority, principles determined by these committees having been upheld by
this Court in respect to earlier appointments before amendment of 1975
Rules in 1996, would equally apply while determining seniority of officers
further.
65. Very briefly we would refer herein certain decisions taken by the
Committee to finalize seniority of the members of H.J.S.
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(a) Out of 263 posts of Additional District Judges, the vacancies
caused in the service on account of officers going on long term
deputation, shall be made available for distribution in order to make
appointments under 1975 Rules from all the three sources.
(b) Twenty seven Additional District Judges who were working in
place of those 27 officers who were senior and had gone on
deputation, those 27 posts shall be linked with the quota under 1975
Rules.
(c) In view of the position of pre 1975 Rules, promotee officers
amongst the first 236, whether confirmed or not will be accordingly to
their date of officiation in the seniority list and vacancies shall be
allotted to them.
(d) In case of those officers who were ultimately found fit for
confirmation by the Court earlier, their seniority will be counted from
the date of their continuous officiation particularly in view of
resolution of Full Court passed on 06.03.1988 and reiterated on
03.08.1991.
(e) In cases of those officers who were not given promotion under
Rule 22(3) or 22(4) of 1975 Rules, due to any adverse entry or inquiry
pending against them and which have subsequently been wiped out,
seniority of such officers shall be counted from the date next junior
member of U.P. Nyayik Sewa or U.P. Judicial Officers Service, as the
case may be, of their batch who were promoted to the service prior to
them, started officiation.
(f) Seniority of the officers was determined under Rule 26(1)(a)
reckoning from the date of continuous officiation and when a
substantive vacancy in permanent or temporary post was made
available in their quota so far as the promotee is concerned and from
the date of joining the service so far as the direct recruits are
concerned.
(g) The seniority list contain the names of 597 officers only
excluding the direct recruits of 1984 batch.
66. Coming back to 1988 recruitments, on 8.9.1992 an interim order was
passed by the Lucknow Bench in writ petition 6352 of 1992 (Ravi Kumar
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Agarwal Vs. State of U.P. & others) and on account of these interim orders,
the recommendations could not be sent.
67. Raising dispute with respect to 1988 recruitment a number of writ
petitions were filed at Allahabad as well as at Lucknow. Writ Petition No.
4639 of 1992 (S.B. Singh Vs. State of U.P.) was filed seeking a direction to
the Court for sending recommendation to the State Government within
specified time. Writ Petition No. 3118 of 1992 (Sri Kant Tripathi Vs. State
of U.P. and others) was filed at Lucknow on 28.5.1992 challenging the
recruitment of 24 Direct Recruits against 5 advertised vacancies and
similarly some other writ petition were also filed which related to 1988
recruitment in one way or the other.
68. The cases filed at Lucknow Bench were transferred to this Court and
a five-Judges' Full Bench was constituted presided by Hon'ble B.M. Lal J.
The writ petition no. 3118 of 1992 (Sri Kant Tripathi and others Vs. State of
U.P. & others) filed at Lucknow after transfer was registered as writ petition
no. 34857 of 1992 and therein the Full Bench passed an order on 17.1.1994
superseding all interim orders passed by this Court in various writ petitions
and directed for sending recommendations relating to three streams of
Officers to the Government for employment against substantive vacancies of
1988 recruitment.
69. Consequently, on 5.4.1994, the State Government appointed/promoted
218 members of Nyayik Sewa and 10 members of U.P. Judicial Service in
Higher Judicial Service against substantive vacancies of 1988 Recruitment.
Similarly, 48 Officers of U.P. Nyayik Sewa were promoted in H.J.S. by
notification dated 7.4.1994 and 24 directly recruited Officers against 1988
Recruitments were appointed by notification dated 9.5.1994.
70. While the recruitment of 1988 pursuant to O.P. Garg's case judgment
was under consideration before the Reconstituted Committee, it was also
decided to initiate further recruitment of 1990 i.e. the existing vacancies as
on 01.01.1991 and likely to occur upto 31.12.1992. The committee
determined 38 vacancies in all out; of which 32 alloted to U.P. Nyayik Sewa
and 6 for Direct Recruitment. Consequently 6 vacancies for Direct
Recruitment were advertised on 29.03.1992. However, as stated earlier, the
vacancies in respect of promotee officers till 31.12.1992 were decided to be
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filled in from the recommendation made pursuant to 1988 Recruitment and
notification was issued accordingly. The above appointments are therefore
liable o be included in the appointments of members of U.P. Nyayik Sewa
against vacancies upto 31.12.1992.
71. The 1990 recruitment, i.e., 8th Batch, as already said, was notified
for 6 vacancies of direct recruitment initially. Later on, the Selection
Committee for 1990 recruitment, in its report dated 2.11.1995, though
observed that in the light of decision in O.P. Garg (supra) there became
more number of vacancies available for direct recruitment, but confined it to
number of vacancies already advertised. It mentioned that total sanctioned
strength was 596 which included deputation and leave reserved posts. Thus,
in total, 89 direct recruits could have been appointed in the cadre and taking
into account the 24 direct recruit Officers, selected and appointed, there
remained 19 vacancies of 1990 recruitment, but it confined to only six as per
advertisement.
72. 1988 and subsequent recruitments became subject matter of various
litigations and since all these matters ultimately are covered, being decided
by Apex Court in Sri Kant Tripathi Vs. State of U.P. AIR 2001 SC 3757,
instead of referring the decisions of this Court, we confine to refer the
judgment in S.K. Tripathi (supra) itself since the directions contained
therein are to be taken note of and implemented by the Court.
73. The unfilled 13 vacancies of Direct Recruits, available upto
31.12.1992, were decided to be filled in from the members of U.P. Nyayik
Sewa by resorting to Rule 8(2) of 1975 Rules.
74. Hence, the Selection Committee consisting of Hon'ble A.P. Mathur, J.
(as his Lordship then was), Chairman and Hon'ble Justice Om Prakash and
T.P. Garg submitted report on 2.11.1995 recommending 5 candidates for
Direct Recruitment and 13 for promotion from U.P. Nyayik Sewa, who were
appointed by appointment order dated 30.7.1996.
75. 1990 recruitment also became subject matter of litigation in several
writ petitions namely, Writ Petition No. 35384 of 1995, Umakant Sharma
Vs. State of U.P. and others, Writ Petition No. 36589 of 1995, Suresh
Chandra Mishra Vs. State of U.P. and others, Writ Petition No. 1265 of
1996, Dinesh Kumar Gupta Vs. State of U.P. and others, Writ Petition No.
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3429 of 1996, Raj Kumar Vs. State of U.P. and others, Writ Petition No.
3430 of 1996, Raj Kumar Vs. State of U.P. and others, Writ Petition No.
5813 of 1996, Balbir Singh Vs. State of U.P. and others, Writ Petition No.
8480 of 1996, Mohammad Ahmad Suhail Vs. State of U.P. and another,
Writ Petition No. 30496 of 1996, Prem Shankar Mishra Vs. State of U.P.
and others and Writ Petition No. 32410 of 1996, Avinash Kumar Sharma Vs.
State of U.P. and another.
76. The issue was basically raised alleging that there actually existed 19
vacancies in the quota of direct recruitment but in a conspicuous manner
only six vacancies were notified. Therefore, from that very selection itself all
the 19 vacancies be filled in from Direct Recruitment. It was contended that
conversion of 13 vacancies of direct recruits by making the same available
for promotion to members of U.P. Nyayik Sewa the Court has committed a
serious mistake. All these writ petitions came to be decided by a Full Bench
on 30.06.1998 by a majority judgement. The judgement is reported in
Umakant Sharma Vs. State of U.P. and others, 1998 (3) UPLBEC 1805
The Court held as under:
"(i) The conversion of 13 posts of direct recruits, as available for
promotion from Nyayik Sewa, is declared illegal and the
recommendation of the Selection Committee dated 2.11.1995 and the
resolution of the Full Court dated 18.11.1995 in question in this regard
are quashed.
(ii) The appointees (respondent Nos. 3 to 15) will be deemed to be
appointed on ad hoc basis only and not on substantive basis and that
too till the final decision on this point tobe taken by the Full Court.
(iii) The Full Court is requested to consider the question of increase in
the number of vacancies from '6' to '19', which was admittedly
available as per report of the Selection Committee itself.
(iv) Hon'ble the Chief Justice is requested to take necessary steps
expeditiously for formation of a Selection Committee, so that
appropriate number of candidates be interviewed for the 13 remaining
posts for direct recruitment to the H.J.S.
(v) The petition for intervention of Vinod Kumar Verma (filed in Civil
Misc. Writ Petition No. 35384 of 1995) is rejected."
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77. The matter was taken in appeal before the Apex Court and it has been
decided in Sri Kant Tripathi Vs. State of U.P. and others, AIR 2001 SC
3757. We would come to the decision of Apex Court whereby the above
judgement was set aside, a bit later.
78. Now we come to the next recruitment of 1992 (i.e., 9th batch). In the
process of voluminous litigation, the actual recruitment for vacancies from
01.01.1993 and onwards got sufficiently delayed. The Court decided to hold
a combined recruitment of 1992-1994 which included vacancies existing as
on 01.01.1993 and likely to occur till 31st December, 1996.
79. A committee was constituted by Hon'ble Chief Justice on 31.07.1996
for the combined recruitment of 1992-1994, i.e., 9th batch. It consisted of
Hon'ble Om Prakash, J., Chairman, Hon'ble D.S. Sinha, J. and Hon'ble T.P.
Garg, J., as Members.
80. Total sanctioned strength upto 31.12.1996 was found 659. Against
thereto, on 01.01.1996, 431 members of U.P. Nyayik Sewa, six direct
recruits and 23 U.P. J.O.S. Officers were actually working.
Recommendation pursuant to 1990 recruitment in respect to 18
appointments was pending before the Government. Therefore, in all, the
Court found that number of vacancies existing and likely to occur up to
31.12.1996 were 131. Out of 131, 19 vacancies were determined for direct
recruitment and 112 for promotion.
81. This matter was considered by Full Court in its meeting dated
07.03.1998 and it resolved that since the recruitment has further been
delayed, vacancies upto 31.12.1997 be filled in from the above recruitment.
The vacancies upto 31.12.1997 were redetermined and it was found that 6
vacancies had occurred between 01.01.1997 to 31.12.1997. All these
vacancies were decided to be filled in by promotion. This made the position
of vacancies as under:
Total Vacancies : 137
Uttar Pradesh Nyayik Sewa : 118
Direct Recruits : 19
82. The report was submitted on 16/18.05.1998. As a matter of fact,
Court recommended 234 officers, found fit for promotion, and 20 Direct
Recruits.
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83. This report was considered by Full Court on 11.07.1998 at the time
when judgement of Full Bench in Umakant Sharma (supra) was also
operating the field and had to be complied by the Court. The Full Court
decided, since the judgment had declared promotion of 13 officers from U.P.
Nyayik Sewa made in 1990 Recruitment as ad hoc, the same approved for
substantive appointment.
84. Full Court also approved report of Selection Committee containing
220 names for promotion and 39 names for direct recruitment (being twice
the number of vacancies). The list was approved in view of judgment in
O.P. Garg's case (supra) that select list should be larger than actual
vacancies so as to remain valid up to next recruitment. Out of 13 officers
who were promoted by order dated 30.07.1996, one Suraj Prasad Shukla was
reverted by notification dated 05.12.1998 to Nyayik Sewa alongwith some
others.
85. 1992-94 recruitment was given effect making appointments by
notification dated 05.12.1998 promoting 113 members of U.P. Nyayik Sewa
(which included 12 officers who were already promoted by order dated
30.07.1996 but in view of Full Bench decision in Umakant Sharma (supra)
their promotions were treated ad hoc). and they were again approved and
promoted by notification dated 05.12.1998. 20 direct recruits were
appointed. The notification dated 05.12.1998 as a matter of fact contains
names of 133 officers.
86. We also find that while making 13 promotions by notification dated
30.07.1996, two officers who were senior to some of the officers who were
promoted, were not approved and not promoted at that time. They were
Jitendra Srivastava and Arvind Kumar Tripathi. The Full Court resolved that
vacancy for these two officers shall be kept reserved in its meeting dated
18.11.1998 but it appears that this resolution was not kept into consideration
when recommendations were made for appointment of 13 promotee officers.
These two officers were later on cleared and were appointed by referring to
their appointment pursuant to 1990 Recruitment by notification dated
20.02.1997. We feel that two officers deserved to be appointed with effect
from 30.07.1996 and two officers juniormost need be adjusted against
subsequent vacancies.
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87. The Court also held a Special Recruitment, 1996 to fill up unfilled
backlog vacancies of Scheduled Caste which remained unfilled in
recruitment of 1988 and 1990. There were four such vacancies which were
to be filled in by direct recruitment. The advertisement was made in March,
1996, the written examination was held in July, 1996 and the interview took
place in January, 1997. The recommendation was approved by Full Court on
01.02.1997 and thereafter these four appointments were made by notification
dated 04.08.1997. These four persons are Naresh Singh, Bachhu Lal,
Ashok Kumar and Chhote Lal.
88. Thereafter again recruitment for quite some time could not be made.
For a block period of 1998 till 2001, i.e., the vacancies existing as on
01.01.1998 till 30.09.2001 a single recruitment was made. This recruitment
is commonly known as "1998-2000 Recruitment" (i.e., 10th Batch). The total
strength up to 30.09.1999 was 798 whereagainst 547 officers were working
which included 462 from U.P. Nyayik Sewa, three from U.P. J.O.S. And 82
direct recruits. The Court calculated 251 vacancies existing as on 30.09.1999
and in next 2 years, i.e., from 01.10.1999 to 30.09.2001, 52 vacancies were
likely to occur making it 303. The Court allocated 38 vacancies for Direct
Recruitment and 265 for promotion. This determination of vacancies was
approved by Full Court on 20.11.1999.
89. While this recruitment of 1998-2000 was going on the decision of
Apex Court in Sri Kant Tripathi (supra) came which directed for
redetermination of vacancies of 1988 Recruitment and onwards.
90. A three Judge Committee consisted of Hon'ble S.N. Agrawal, J.,
Chairman, Hon'ble S.R. Alam, J. and Hon'ble J.C. Gupta, J. as Members was
constituted to redetermine the vacancies in the light of directions of Apex
Court in Sri Kant Triapthi (supra) which submitted its report on
24.08.2002. It determined vacancies from 1998-2000 Recruitment, 38 for
Direct Recruitment and 334 for promotion. This report was challenged in
Writ Petition No. 316(S/B) of 2004, U.P. Judicial Services Association
Vs. State of U.P. and others. Vide judgment dated 25.08.2004 the report
was set aside. The Division Bench issued following directions:
"(1) The number of the officers of Nyayik Sewa and Judicial Officers
service who were already promoted and appointed against temporary
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post under Rule 22(3) or 22(4) of the Rules and whose appointments
have been protected in O.P. Garg's case would be taken into
consideration and the number of vacancies equal to the number of such
officers shall be excluded from computation.
(2) While applying the ratio of judgment in O.P. Garg's case and
distributing temporary as well as permanent vacancies, allocation of
15% vacancies of the quota of direct recruits under Rule 6 of the Rules,
has further to be subjected in ceiling of 15% of the permanent strength
of service, till the amendment in the rules came into effect i.e. 25th
February, 1996.
(3) While making an exercise to find out (in accordance with direction
No. 2) as to whether the direct recruits taken into service are in excess
of the quota or not, simultaneous exercise has to be done for
compliance of direction No. 3 in S.K. Tripathi's case and vacancies of
the quota of promotees shall be deemed to have been filled up from the
date they are entitled to promotion.
(4) 31 posts of the service, which have been transferred in Uttranchal
w.e.f. 30.9.2001 shall be excluded while determining the strength of the
service in order to work out 15% of the quota of direct recruits.
(5) Out of 13 unnoticed vacancies, found by the office in the year 1988
only two vacancies equal to 15% of the quota of direct recruits be given
to them instead of adjusting 5 appointments en block and again giving
one out of eight vacancies to them applying 15% quota rule.
(6) The second proviso to Rule 6 be also given effect to as and when the
occasion arises."
91. The matter was taken in appeal, was decided in Ashok Pal Singh Vs.
U.P. Judicial Services Association and others, JT 2010 (10) SC 131
wherein the judgment of High Court has partly been set aside. The Apex
Court after going through the earlier judgments has issued following
directions:
"31. In view of our aforesaid findings, we allow these appeals in part
as follows:
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(i) Direction Nos. (1) and (2) in para 55 of the impugned order
dated 25.8.2004 are set aside;
(ii) Direction No. (3) in para 55 of the impugned order dated
25.8.2004 is restricted to reiteration of direction No. 3 issued in
Srikant Tripathi 2001 (10) SCC 237; and
(iii) Direction Nos. (4), (5) and (6) in the impugned order dated
25.8.2004 are upheld.
(iv) The consequential exercise directed by the High Court
should be restricted to the directions which have been upheld.
(v) None of the appointments already made to the Higher
Judicial Service, whether by direct recruitment or by promotion,
shall be annulled, but shall be continued, even if the appointment
is found to be in excess of the quota, subject to the condition that
the seniority of such excess appointee will be reckoned from the
date on which he becomes entitled to be adjusted at the
subsequent recruitment/s. Any elevation to the High Court on the
basis of seniority already given shall also not be affected.
We request the High Court to give a quietus to the long-drawn
dispute, by giving effect to direction Nos. (4) to (6) of the impugned
order and direction No. (3) in Srikant Tripathi, without any delay."
92. The above recruitment of 1998-2000 in the mean time was finalised
on 05.02.2005. This Court approved 20 names for direct recruitment and 334
for promotion. The appointments were made vide notifications No. 2260/II-
4-2005-32(1)/2005, dated 13.04.2005, 3071/II-4-2005-32(1)/2005, dated
08.06.2005, 3346/II-4-2005-32(1)/2005, dated 11.07.2005, 3629/II-4-2005-
32(1)/2005, dated 22.09.2005, 4172/II-4-2005-32(1)/2005, dated 10.11.2005
and 7804/II-4-2005-32(1)/2005, dated 04.01.2007.
93. The next recruitment could commence in 2006. The Court took the
existing vacancies as on 30.12.2006, against finalised strength of 813 which
included effective strength of 787+26 NDPS non-functional. Out of this
strength 431 promotees and 76 direct recruits were working. The total
vacancies existing and likely to occur up to 31.12.2008 worked out as 328,
out of which, 82 were allotted to direct recruits and rest for promotees. Since
1975 Rules were amended in the meantime bifurcating vacancies of
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promotees into 50% by normal promotion, and 25% by promotion through
limited competitive examination of Civil Judge (Senior Division), 246
vacancies allotted to promotees were also bifurcated allotting 170 for normal
promotion and 76 for limited competitive examination of Civil Judge
(Senior Division). Since the appointment process of this batch is still
undergoing, for determination of vacancies and seniority, we have confined
ourselves up to the officers recruited pursuant to 1998-2001 Recruitment.
94. To determine follow up seniority from the stage it was completed
earlier, a five Judges committee was constituted consisting of Hon'ble Dr.
B.S. Chauhan, J, Chairman (as His Lordship then was), Hon'ble R.K.
Agarwal, J., Hon'ble Sunil Ambwani, J., Hon'ble Ashok Bhushan, J, and
Hon'ble S.S. Kulshrestha, J. as Members who submitted their report on
09.03.2007. The committee took into account earlier Seniority Committee's
report as also the subsequent judgments in the matter. It decided to follow
the principles adopted by Hon'ble Mr. Justice S.D. Agrawal's Seniority
Committee since the same has attained finality in view of judgement of this
Court in J.B. Singh (supra) and K.N. Singh (supra) both having been
confirmed by Apex Court. This Committee formulated 13 issues as under:
"Issue No. 1. Whether the Seniority Committee should treat the matters
for fixing seniority in the report of Hon'ble Mr. Justice S.D. Agarwal's
Committee as final, except the determination of seniority of 10 direct
recruits left open?
Issue No. 2. Whether the promotees are entitles to seniority from the
date of availability of substantive vacancy in their quota provided they
are officiating on the date, irrespective of the date of the officiation?
Issue No. 3. Whether the seniority of the direct recruits should be
determined from the date of joining in service?
Issue No. 4. Whether the Judgement in O.P. Garg's case, giving quota
to the direct recruits in temporary vacancies also should be applied
prospectively i.e. from the date of judgement on O.P. Garg's case?
Issue No. 5. Whether the direct recruits are entitled for their quota in
the temporary vacancies only after the amendment made in U.P. H.J.
Rules, 1996 w.e.f. 15.3.96?
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Issue No. 6. Whether direct recruits are entitled to batch wise
seniority?
Issue No. 7. Whether the direct recruits are entitled to seniority by
applying principles of rotation in appointment according to their
quota?
Issue No. 8. Whether some of the direct recruits of 1982 and 1984
batches, who could not join due to restraint orders passed by the
Courts, are entitled to seniority from any date earlier to their joining
and if they are so entitled, the date from which the seniority is to be
given to them?
Issue No. 9. Whether due to increase in the vacancies for direct
recruits in 1988 batch on account of inclusion of temporary vacancies
in pursuance on O.P. Garg's case, the promotees are entitled to any
increase in the vacancy in their quota in the subsequent batch?
Issue No. 10. Whether the promotees are entitles to claim seniority
according to their quota and that the application of rota should be
rearranged according to their quota?
Issue No. 11. Whether the members of Nyayik Sewa, who have been
promoted but have not been approved so far by the Full Court, are
entitled to reckon their seniority, and if yes, from which date?
Issue No. 12. Whether the direct recruits are entitled to the earlier
vacancies than there are allotted to them in TSL and whether some of
the promotees have been given vacancies earlier to which they were
entitled?
Issue No. 13. Whether the promotees or direct recruits are entitled for
benefit of fixation in their seniority due to long delay in the
recruitment?"
95. Over these issues, the Committee took decision, in brief, as under:
"In re issue 1: to adopt the same principle for determination of
seniority of 10 direct recruits left open by Justice S.D. Agrawal's
committee.
In re issue 2: to determine seniority of officers appointed up to
15.03.1996 in accordance with Rule 26 as it stood till then following
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the principle that the promotees are entitled to seniority from the date
of availability of substantive vacancy in their quota provided they
were officiating on that date. The officers promoted after 15.03.1996
would be governed by amended Rules.
In re issue 3: the direct recruits who could not join on account of
interim orders will be entitled to seniority from the date of passing of
the restrain order. This was in consonance with a decision taken by
earlier committee also having a case with similar facts and the
committee resolved to follow the same principle.
In re issue 4: decision of O.P. Garg's case (supra) to be applied
retrospectively.
In re issue 5: since the cadre consist of temporary and permanent
posts, both, as held in O.P. Garg's case, for allocation of vacancies to
direct recruits, temporary posts shall also be taken into account.
In re issue 6: not to consider direct recruits for batch wise seniority.
The issue already negatived by Justice S.D. Agrawal's committee and
also by Full Bench in K.N. Singh (supra).
In re issue 7: the contention of applying rota for the period before
amendment of 1975 Rules in 1996 negatived. The direct recruits
would be entitled to take their seniority from the date of their joining
and not prior to their birth in service. The amended Rule 26 would
apply prospectively.
In re issue 8: Relating to some of the direct recruits of 1984 batch and
earlier who could join late due to restain order of this Court, the
Committee took the decision that six officers of 1984 recruitment
were delayed in appointment due to lapse on the part of Government
but four officers were delayed due to interim orders passed by this
Court. It held that those appointments which were delayed to to lapse
of the Government no benefit can be given but where the appointment
was delayed due to interim order they may be given benefit of the
decision taken in issue 7 above, but would confine to the date when
persons higher in merit in the same batch were appointed. The four
officers who were appointed pursuant to Apex Court's order dated
16.12.1987 would get benefit for the purpose of seniority by getting a
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place immediately below six officers higher in merit who were
appointed in December, 1986.
In re issue 9: That the benefit of increase in cadre due to O.P. Garg's
decision had already been taken note for promotees.
In re issue 10: The application of quota and rota pleaded by the
promotees for the period before amendment of 1975 Rules in 1996
was negatived.
In re issue 11: The question of seniority of promotee officers not
approved by Full Court was deferred till they are approved.
In re issue 12: The seniority of 10 direct recruits would be given in
accordance with Rules but seniority of officers, stood already
determined finally by seniority list dated 06.05.1992, would remain
untouched.
In re issue 13: long delay in recruitment will not result in any benefit
to either of the sources."
96. The seniority list prepared by this Committee was challenged in Writ
Petition No. 1283 of (S/B) 2007, Prabhuji and another Vs. State of U.P.
and others. The Division Bench vide judgment dated 16.12.2010 set aside
the same, and issued the following directions:
"(i) Subject to observations made hereinabove, seniority of all the
promotees with regard to vacancies existing prior to 15.03.1996 shall
be determined on the basis of old unamended Rules (supra) and for the
vacancies arisen thereafter, the seniority shall be determined on the
basis of amended Rules notified on 15.03.1996 (supra) subject to S.K.
Tripathi & Ashok Pal Singh (supra).
(ii) The roster of 1:1 may be prepared while finalising seniority list
only in case the promotees and direct recruits are appointed and
resume duty in the same recruitment year.
(iii) In view of judgment of Hon'ble Supreme Court in the case of B.S.
Mathur (supra) the seniority of promotees and direct recruits should be
tested on the basis of continuous officiation of service without applying
roster in case there is breakage of quota rota system. Promotees shall
be placed in the seniority against the year of vacancy for which they
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have been selected whereas, direct recruits shall be given seniority
from the date of resumption of duty. Petitioners shall be entitled for
seniority with effect from 27.05.1996.
(iv) The impugned seniority list has been prepared against the settled
principles of law (supra) hence suffers from inherent weakness and
substantial illegality, therefore, shall not survive."
97. In the backdrop of the above facts and various directions contained in
almost half a dozen decisions we have to undergo the entire exercise of
redetermination of vacancies, in particular commencing from 1988
Recruitment, and onwards, the consequential allocation to various sources,
appointments from the date became due under law, and inter se seniority.
98. This Committee initially in its meetings dated 21.10.2010 and
10.11.2010 resolved to proceed with certain guidelines and directed
Registry to place the facts relating to determination of vacancies and
consequential preparation of seniority accordingly.
99. The Apex Court has said that vacancies shall be redetermined for
recruitment block as decided by the Court. The period of recruitment has not
been a subject matter of dispute in any of the earlier litigation. To this part,
we find that neither any objection has been raised nor any otherwise
direction has been issued by Court on judicial side to tinker with the same.
The period of recruitment, though apparently has not been consistent, at
some point of time vary with requirement of relevant rules, yet at this stage,
we would not make any change therein except where it is necessary to give
effect the directions of the Apex Court in S.K. Tripathi, Ashok Pal Singh etc.
100. Though technically we have to redetermine vacancies of 1988
recruitment and onwards but we find that for 1984 recruitment also the
decision of Full Bench in Sri Kant Tripathi (supra) was found
unsustainable in Ram Kishore Gupta (supra) in the light of the decision in
O.P. Garg (supra) and thereby it found that four direct recruits could have
been appointed against available vacancies taking into account temporary
posts also, the earlier recruitment and the available vacancies also had to
undergo substantial change. Thus even earlier Recruitments have to be seen
in this light.
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101. Besides, in the report of Committee headed by Hon'ble S.R. Alam, J,
it noticed 13 omitted vacancies i.e. available before 1988 recruitment but
could not be taken note of. The earlier committee found that following 13
Judicial Officers who were appointed in Higher Judicial Service, their names
did not figure in the seniority list dated 06.05.1992 for accommodating
resultant vacancies to the successor Judicial Officers. These 13 officers are:
(1) Satyendra Nath Shukla
(2) Rama Shanker Misra
(3) Brij Bhushan Singh Sisodia
(4) Anand Swarup Srivastava
(5) Shri Ram Maheshwari
(6) Chandra Bhal Misra
(7) Sripat Charan Lal Srivastava
(8) Rajeshwar Prasad Gupta-I
(9) Ram Kumar Arya
(10) Rajendra Kumar Sikoria
(11) Om Prakash Jauhari
(12) Bishan Prasad Mehrotra
(13) Vishambhar Nath Pandey
102. We have gone through the relevant record. The name of Sri Rama
Shanker Misra is mentioned at serial no. 46 in list 'A' of seniority list dated
06.05.1992. Similarly name of Sri Anand Swarup Srivastava is at serial
no. 52 in the aforesaid list.
103. Sri Rama Shankar Misra was appointed as Civil and Sessions
Judge on officiating basis on 15.08.1961 and proceeded on deputation on
13.08.1970. He came back from deputation on 11.10.1975 and retired on
31.07.1979. He was confirmed as Additional District Judge on 17.03.1975.
104. Sri Anand Swarup Srivastava officiated as Civil and Sessions
Judge on 06.01.1962, remained on deputation from May 1972 to July 1972
and was confirmed as District Judge on 01.04.1974. He was elevated to
Bench on 02.11.1981.
105. The vacancies caused due to retirement and elevation of these two
officers obviously have not been taken note while determining seniority by
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allocating vacancies to the officers in list 'B' of seniority list dated
06.05.1992.
106. So far as Sri Satyendra Nath Shukla is concerned, we find that his
name was included in the list of 271 officers submitted on promulgation of
1974 Rules and he was at serial no. 23 therein. Sri Shukla officiated as Civil
and Sessions Judge since 15.01.1958, confirmed as District Judge on
01.06.1969 but he left service on 24.09.1974 having been appointed as
Member, Public Service Commission, Allahabad. He was therefore not
holding post of Civil and Sessions Judge or Additional District Judge on
05.04.1975 when 1975 Rules came into force. Therefore, his name was not
included in list 'A' of seniority list dated 06.05.1992. It is for this reason that
question of occurrence of vacancy of this officer for being alloted after
05.04.1975 would not arise since he ceased to be a Member of service
having left service on 24.09.1974, when he was relieved from the post of
District Judge, Pilibhit, so as to join as Member, Public Service Commission
at Allahabad.
107. So far as remaining 10 officers namely S/s Brij Bhushan Singh
Sisodia, Ram Maheshwari, Chandra Bhal Misra, Sripat Charan Lal
Srivastava, Rajeshwar Prasad Gupta, Ram Kumar Arya, Rajendra
Kumar Sikoria, Om Prakash Jauhari, Bishan Prasad Mehrotra and
Vishambhar Nath Pandey are concerned, all these 10 officers were Judicial
Officers. They were given officiation in Higher Judicial Service on various
dates after 05.04.1975. They all retired before 01.01.1984. It is no doubt true
that names of these 10 officers are not mentioned either in list 'B' or list 'C'.
They have neither been alloted any vacancy occurring after 05.04.1975 in
seniority list dated 06.05.1992 nor the resultant vacancies after their
retirement etc. have been taken note of for being alloted to some other
officers. We therefore find that all these officers have to be alloted vacancies
in seniority list dated 06.05.1992 and only thereafter when they retire, the
resultant vacancies can be made available to some other officers. As a matter
of fact, it will not cause any additional vacancy for the officers after
Shailendra Kumar Raturi, whose seniority and allocation of vacancy has to
be considered by us. The omission of names of these 10 officers in earlier
seniority list dated 06.05.1992 has rightly been noticed by the earlier
committee headed by Hon'ble S.N. Agrawal, J as also the seniority
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committee headed by Hon'ble S.R. Alam, J but another important facet
which has escaped attention is that these officers having been appointed on
the post in the Higher Judicial Service after 05.04.1975, were to be first
allotted vacancies and thereafter it would reoccur on their retirement.
Therefore the resultant effect would be nil.
108. We, for the purpose of convenience, have demonstrated what we are
saying, by including names of these 12 officers in the earlier seniority list
dated 06.05.1992, by allotting them vacancies, and find that except two
persons namely Rama Shankar Misra and Anand Swarup Srivastava whose
vacancies would result in addition of two vacancies, the rest 10 names would
not result in giving any additional vacancy.
109. Besides, we are informed by Sri Subodh Kumar, one of the Officers,
whose seniority is to be decided now, that there are 7 more Officers who
were appointed in Higher Judicial Service, but their vacancies have not been
shown in the earlier seniority list. He gives following names and date of
vacancies:
Sl.No. Name of officer Date of vacancy
1 Harihar Saran R-31.12.1979
2 Girish Chandra R-16.04.1993
3 R.N. Sinha
4 Ghanshyam Das Chopra R-28.02.1995
5 Bhagwat Prasad Srivastava R-31.05.1987
6 D.D. Srivastava R-30.11.1986
7 Mahendra Pratap Singh R-29.02.1984
110. Out of these 7 Officers, only 2 are those whose vacancies occurred
before the last Officer named in the seniority list dated 6.5.1992. They are
Harihar Saran and Mahendra Pratap Singh. The grievance of Sri Subodh
Kumar we find correct only to the extent of Harihar Saran but so far as Sri
Mahendra Pratap Singh is concerned, seniority list shows that at sl. no. 297,
his vacancy was allotted to Sri Virendra Kumar Gupta. The name of Sri
Harihar Saran is mentioned at serial no. 27 in List 'A' of seniority list dated
06.05.1992. He officiated as Civil and Sessions Judge on 29.10.1959 and
was confirmed as District Judge on 03.09.1971. He remained on deputation
from 06.07.1970 to 08.07.1976 and retired on 31.12.1979.
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111. Therefore, we get 3 vacancies which occurred due to 3 officers Sri
Rama Shankar Misra, Harihar Saran and Anand Swarup Srivastava who
were included in list 'A' of seniority list dated 06.05.1992 but vacancies
occurred due to their retirement or elevation after 05.04.1975 got omitted in
list 'B' of seniority list dated 06.05.1992 which has to be rectified now.
112. We also find that vide Government Order No. 1081/VII-AN-104/34
dated 19.7.1975 only one post was sanctioned but this very solitary vacancy
simultaneously was allotted to three officers namely, Sri J.C. Mishra (Direct
Recruits) (Sl.No 64), Sri K.M. Pandey (U.P. Nyayik Sewa) (Sl.No.3) and Sri
K.C. Saxena (Judicial Officer) in seniority list dated 6.5.1992.
113. We have also noticed that a vacancy caused due to retirement of Sri
Kailash Chandra Saxena has been allotted simultaneously to two officers,
namely, Sri Raghunath Prasad (a direct recruit) and Sri N.S. Gahlot (member
of U.P. Nyayik Sewa).
114. Similarly, a vacancy caused due to retirement of Sri S.N. Harkauli
was simultaneously allotted to two officers, namely Sri Shyam Bihari Verma
(J.O. Cadre) and Sri Markendey Prasad Pandey (U.P. Nyayik Sewa).
115. Therefore against 3 vacancies 7 officers were accommodated in
seniority list dated 6.5.1992 which is apparently a clerical mistake. This also
needs be modified.
116. The result is that 3 omitted vacancies of Sri Rama Shankar Misra,
Harihar Saran and Anand Swarup Srivastava would stand consumed and yet
one more vacancy has to be allocated from the subsequent vacancies to the
officers find mention in list 'B' of seniority list dated 06.05.1992.
117. On allocation of vacancies in the manner above, in seniority list
dated 6.5.1992 without affecting inter se seniority of officers since the same
had attained finality, we find that last man Sri S.K. Raturi get vacancy of
24.05.1984 caused due to elevation of Hon'ble G.B. Singh, J.
118. To show that exclusion of 10 officers who got appointment in H.J.S
after 05.04.1975 and retired before 01.01.1984 would not make any
difference, so far as ultimate allocation of vacancies are concerned, we have
prepared the list of the officers, who were already assigned seniority on
06.5.1992 by adding them and by adding only 3 pre 1975 officers, and that
would show that it is almost similar to list 'B'.
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119. The charts showing occurrence of vacancy from 8.04.1975 till
24.05.1984 and the vacancy allocation chart of all the aforesaid officers are
collectively appended herewith.
120. So far as 5 Officers, namely, Sri Girish Chandra, Sri R.N. Sinha, Sri
Ghanshyam Das Chopra, Bhagwan Prasad Srivastava and D.D. Srivastava
are concerned, whose names have been given by Sri Subodh Kumar, we find
that vacancies of all these 5 officers were allotted in the second seniority list
published pursuant to the list prepared by Committee headed by Dr. B.S.
Chauhan, J. (as his Lordship then was) though this seniority list having been
quashed by Lucknow Bench, we have to re-draw the same, but the fact
remains that vacancies of these officers are already noticed.
Determination of Vacancies
121. The allotment of vacancies and determination of seniority vide list
at 6.5.1992, did not include the direct recruits of 1984, i.e. 5th batch of
direct recruits. However, 57 officers promoted from two respective sources
namely 48 Nyayik Sewa and 9 Judicial Officers referable to 1986
recruitment were also assigned seniority since they were officiating from an
earlier point of time. In view of O.P. Garg (supra), they were assigned
seniority after allocation of vacancies. These promotee officers could
exhaust vacancies only upto 24.5.1984 though promotee officers were that
of 1986 recruitment. This situation occurred due to implementation of O.P.
Garg's judgment (supra) retrospectively which directed that for recruitment
from three respective sources, the cadre would include temporary post also.
122. From 30.06.1984 to 31.12.1984, 22 vacancies became available and
from 1.1.1985 to 31.12.1985 we find 34 vacancies.
123. One interesting thing which we have noticed is that though there are
five officers of earlier Batches, namely, 1978 Recruitment and 1982
Recruitment, who were appointed in 1985 after the decision of the Apex
Court in Suresh Chandra Tyagi (supra) and Satya Narain (supra), but the
Seniority Committee's report dated 29.4.1992 shows that the total revised
allocation of vacancies to Direct Recruits upto 1982 was completely
assigned to officers actually appointed and they were also assigned seniority.
This would be evident from the following chart:
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S.N. Recruit. Year
Total No. of
vacancies
Allocation to 3 sources
Revised Allocation
Revised Vacancies
Total On Temp. posts
On Perm
. posts
1. 1976 51 NS-28JOS-15DR- 8
3588
51 2822
766
2. 1978 69 NS-44JOS-18DR- 7
491010
69 201010
29
3. 1980 45 NS-19JOS-16DR- 10
3177
45 2043
1134
4. 1982 82 NS-58JOS-12DR- 12
82 2388
3544
124. In 1984-1986 the total recruitment was made for 67 and 57
vacancies as under:
S.N. Recruit. Year
Total No. of
vacancies
Allocation to 3 sources
Revised Allocation
Revised Vacancies
Total On Temp. posts
On Perm
. posts
1. 1984 67 NS-47JOS-10DR- 10
67 404
76
6. 1986 57 NS-48JOS-9
DR- Nil
57 111
378
125. Therefore against the total recruitment of 247 of four Batches all
247 were assigned vacancies as well as seniority. No vacancy was reserved
or remain unfilled for these five officers. It is only from 1986 Recruitment
and onwards, we find shortfall in recruitment in one of the sources, i.e.,
Direct Recruitment. Five officers, namely, Sri Suresh Chandra Tyagi,
Narendra Singh, Krishna Kumar III, Umesh Chandra Tiwari and Udav
Singh, were candidates for Direct Recruitment of 1978 and 1982. In 1986,
seven vacancies were determined for Direct Recruits which were advertised
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also but selection could not proceed since the advertisement was quashed by
Full Bench in Sri Kant Tripathi. The judgment was not found sustainable by
Apex Court in Appeal In Ram Kishore Gupta (Supra).
126. The Seniority Committee though assigned vacancies to all the three
sources against 1984 Recruitment but did not assign seniority to Direct
Recruits having not been appointed till December 1986.
127. Similarly, in 1986 Recruitment neither it denoted any vacancy
unfilled for Direct Recruits nor there was any question of assignment thereof
since all the 57 vacancies which were determined for this Recruitment were
assigned to only two sources, i.e., U.P.Nyayik Sewa and Judicial Officers
Service. Without touching what has already been done finally by the
aforesaid Committee, we can safely consider to adjust seven vacancies from
1986 Recruitment of Direct Recruits as already assigned to promotee
officers, under Rule 8(2), and accommodate five Direct Recruits of 1972 and
1978 Batch against it en bloc since these vacancies stood filled in by
promotee officers. This would result in allocation of vacancies occurred on
30.6.1984, 30.6.1984, 31.7.1984, 31.7.1984 and 31.7.1984 to above five
officers.
128. Hence, 17 vacancies occurred on 31.7.1984 and onwards due to
retirement of Sri S.S. Srivastava and others as shown in the chart would be
available in determining the vacancies of 1988 Recruitment.
129. There are 40 vacancies of 1986 and 129 vacancies of 1987. The total
comes to 220. Taking remaining 17 of 1984 and 34 of 1985, for recruitment
of 1988, 220 vacancies were existing as on 1.1.1988. In the next two years
80 vacancies occurred (15 in 1988, 42 in 1989 and 23 in 1990). The chart
elaborating these vacancies is enclosed herewith. The total comes to 300.
130. The allocation of these 300 vacancies is being demonstrated in a chart
annexed herewith. It would show that against 1988 Recruitment we get the
following allocation:
(1) U.P. Nyayik Sewa - 231
(2) U.P. Judicial Officers - 45
(3) Direct Recruits - 24
131. The shortfall of 18 direct recruits and 3 Judicial Officers has been
allocated to U.P. Nyayik Sewa in order to arrive at 231. We have confined
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this allocation to 1988 Recruitment for the vacancies occurred upto 31st
December, 1990. Since direct recruitment of 1990 was made separately,
therefore, we have determined vacancies for 1990 Recruitment separately.
132. We may clarify at this stage that under the Rules, for direct recruits,
the reckoning point of seniority is date of joining but a few days difference
in the matter of joining of direct recruits appointed by same order amongst
themselves would not disturb their position inter se. This principle was
followed by earlier Seniority Committee which has attained finality. Same
principle is followed this time also. Therefore, amongst direct recruits, we
maintain their inter se position as per their merit position and order of
appointment. A few days difference, either way in the matter of joining
would make no difference.
133. Similarly in the matter of promotee Officers also, all appointed on
substantive vacancies by a common appointment order, in case of minor
variation in date of continuous officiation of such Offices, on account of
difference in joining, their inter se seniority has also not been touched and is
in tact as it was in feeder cadre, i.e., in order of their appointment. This was
the principle followed while preparing earlier seniority list dated 6.5.1992.
134. 10 Promotee Officers started officiation in May 1985 and June
1985, namely, Sri A.K. Roopanwal, Y.S. Sengar, Rajveer Singh-I,
Rajendra Prasad Srivastava-II, Umesh Chandra Misra, Ajay Kumar
Singh, Faheem Ahmad Khan, Abhimanyu Kumar, Suresh Chandra
Chaurasia and Radhey Shyam Chaubey. These ten officers though were
substantively appointed in 1988 Recruitment but since they commenced
officiation in May 1985 and onwards, would rank senior to Direct Recruits
who joined service in October 1985 and December 1986. Therefore, in
seniority list which we have prepared, these ten officers stand seniormost
and thereafter come other officers in order of date of officiation and
availability of vacancies for promotees and date of joining for Direct
Recruits.
135. In the manner as discussed above, we find that there are five officers,
namely, Sri Surendra Pratap Singh, Ramesh Kumar Kulshrestha,
Mohan Kumar Bansal, Sri Prakash Jain and Aditya Prasad Chauhan
who actually were appointed substantively on 27.05.1996 in latter
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recruitment and could not be appointed earlier for want of vacancies, ought
to have been appointed earlier since vacancies were available for them in
October to December 1990. We, therefore, recommend appointment of
these five officers with effect from 5.4.1994 when other officers of U.P.
Nyayik Sewa above them in feeder cadre were appointed substantively. In
seniority list we have placed names of these officers immediately after Sri
Zamirruddin, treating their date of deemed appointment in H.J.S. as
5.4.1994.
136. From 01.01.1991 to 31.12.1992, 44 vacancies in all occurred. No
vacancy was available on 01.01.1991 since all stood already filled in. On
31.12.1992 position of sanctioned strength and respective position of
vacancies is shown in accompanying chart. This allocation of vacancies for
90 recruitment comes to as under:
(1) U.P. Nyayik Sewa - 28
(2) U.P. Judicial Officers - 7
(3) Direct Recruits - 9
137. Further the Special Recruitment of Scheduled Caste unfilled
vacancies made in 1995 has to be treated part and parcel of 1990
Recruitment, inasmuch as, they are unfilled vacancies upto this Recruitment
and reserved quota for which Special Drive Recruitment resorted to. For
allocation of vacancies, four appointments made pursuant to Special Drive
have to be adjusted against vacancies available upto 1990 Recruitment.
However, so far as seniority is concerned, the then existing Rule 26 i.e. date
of continuous officiation and availability of vacancies in promotion quota
for promotees and date of joining of direct recruits has been followed.
138. 1992-1994 Recruitment was made as one block . It included
vacancies as on 01.01.1993 till 31.12.1997. The number of vacancies
available during these four years were 262:
Year Vacancies
1993 08
1994 70
1995 43
1996 32
1997 109Total 262
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139. 15% quota of Direct Recruitment comes to 39. There was a shortfall
of Direct Recruits by 19 which made Direct Recruitment permissible during
this period as 58 (39 +19). However, only 20 Direct Recruits were recruited
leaving a shortfall of 38. Therefore, out of 262 vacancies, 20 go for Direct
Recruitment, and rest 242 to members of U.P. Nyayik Sewa.
140. 13 promotees were appointed against unfilled Direct Recruits'
vacancies of 1990 by notification dated 30.07.1996. This appointment was
declared ad hoc by Full Bench vide judgment dated 30.06.1998 in Civil
Misc. Writ Petition No.35384 of 1985 and connected writ petition. The
Court had directed to allot these 13 vacancies to Direct Recruits of 1990.
This direction ultimately stood reversed by Apex Court. Therefore,
notification issued subsequently in respect of these 13 Promotee Officers on
05.12.1998 would stand nullified to the extent of inclusion of their names.
The appointment made by notification dated 27.05.1996 originally pursuant
to 1990 Recruitment would stand validated. However, five officers of
Nyayik Sewa out of these thirteen officers we have already recommended
for notional appointment with effect from 5.4.1994, therefore, only eight
remain in the said notification. We could have recommended subsequent
five Members of U.P. Nyayik Sewa to be given notional appointment in
Higher Judicial Service with effect from 27.05.1996 but we find that these
officers had already officiated from 1996 and, therefore, their seniority
reckon from 1996 itself, hence no such recommendation is being made as it
is a futile exercise.
141. Next comes Recruitment of 1998-2000. This cover period of
vacancies as on 01.01.1998 and likely to occur upto 30th September, 2001.
The chart of calculation of vacancies is being annexed. The ultimate
allocation of vacancies comes as under:
(1) U.P. Nyayik Sewa - 142
(2) Direct Recruits - 34
142. Twenty Officers were appointed and fourteen vacancies were kept
reserved pursuant to resolution dated 17.02.2007 of Full Court. Since these
persons could not be appointed on account of interim order passed by Court
on 25.08.04 in Writ Petition No.316(S/B) of 2004 (U.P. Judicial Officers
Association Vs. State of U.P.), the vacancies were reserved for them. We
recommend that they should be appointed forthwith and appointment should
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be given effect notionally from the date other direct recruits were appointed
(of same Batch) but for purpose of payment of salary etc., it shall count only
from the date of taking over charge. The earlier period would count only for
the purpose of pay fixation, retiral benefits and seniority.
143. In the light of the above allocation of vacancies, we have prepared a
tentative seniority list as also chart showing allocation of vacancies to three
respective sources during the entire period, which would demonstrate inter
se placement of these officers in seniority. These are appended.
(Justice Sudhir Agarwal) (Justice Shishir Kumar) (Justice D.P. Singh)
Enclosures
A. Collective charts showing occurrence of vacancies from 8.4.1975 to 24.5.1984 and earlier Final Seniority List after due correction of vacancies.
B. Chart showing details of total 300 vacancies from 30.06.1984 to 31.12.1990.
C. Position of sanctioned strength and respective position of vacancies as on 31.12.1992
D. Chart of calculation of vacancies related with Recruitment of 1998-2000
E. Tentative seniority list as well as chart showing allocation of vacancies to three respective sources, during the entire period.
