Full Judgment Text
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PETITIONER:
RAM KISHORE GUPTA
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH & ORS.
DATE OF JUDGMENT: 24/03/1999
BENCH:
S.N.Phukan, S.R.Babu
JUDGMENT:
RAJENDRA BABU, J. :
In this appeal, by special leave, the order made by a
Full Bench of the High Court of Judicature at Allahabad in a
writ petition raising a question as to whether in the matter
of determining the quota of (i) 15% by direct recruitment;
(ii) 30% from out of the Judicial Magistrates; and (iii)
55% from out of the members of the Nyayik Sewa whether
temporary vacancies in addition to permanent vacancies
should also be taken note of is challenged. The High Court
in the judgment under appeal took the view that the
provision of the relevant rules requires that the direct
recruits should not exceed 15% of the total permanent
strength of the service. On that basis the matter was
disposed of by directing not to appoint more than six
persons amongst the candidates selected for direct
recruitment inasmuch as there are only 311 permanent posts
and, therefore, direct recruits could not get more than 47.
The High Court in those cases was concerned with the
interpretation of the Uttar Pradesh Higher Judicial Service
Rules, 1975. The effect of these rules was considered by a
three Judge Bench of this Court in O.P. Garg & Ors. v.
State of U.P. & Ors., 1991 Supp. (2) SCC 51. This Court,
after examination of the relevant rules, took the view as
follows :-
We allow the writ petitions and the civil
miscellaneous petition, quash the final seniority list dated
August 25, 1988 and direct the High Court to prepare,
circulate, invite objections and finalise the seniority list
of the service in the light of the findings given and the
observations made by us in this judgment. We reiterate our
findings hereunder:
(1) All the 236 promotee officers working against 236
posts (229 permanent plus 7 temporary) as Additional
District and Sessions Judges on April 5, 1975 shall be
deemed to be existing members of the service as constituted
under the 1975 Rules and they shall en bloc rank senior to
all other officers appointed to the service thereafter from
three sources in accordance with their quota under the 1975
rules.
(2) We strike down first proviso to Rule 26(1)(a) of
the 1975 Rules and direct that the continuous
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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 Rules 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 Rules 22(1) and 22(2) of the 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.
This Court took the view that both temporary and
permanent service will be taken note of in determining the
quota available for direct recruits. It was also made clear
that the service consists of permanent as well as temporary
posts and Rule 22 of the Rules required to make appointment
to service on the occurrence of substantive vacancies and it
would not mean that it would exclude temporary vacancies.
The scheme of the rules indicates that there are permanent
and temporary posts which are created to meet the
contingencies and they may, no doubt, be made permanent and,
therefore, it cannot be doubted that when appointment under
Rule 22 is contemplated substantive vacancies would include
both temporary or permanent but the vacancy must be in the
cadre. Therefore, the decision taken by the High Court
cannot be sustained at all. However, on that basis there is
no need for us to give any particular direction in this
present case inasmuch as during the pendency of these
proceedings on December 16, 1987 an interim order was made
in this appeal by this Court the relevant portion of which
is reproduced as under :-
As it appears 48 temporary posts have been made
permanent and, therefore, to the existing permanent posts
these 48 posts are to be added. The dispute involved in the
appeal is as to whether the temporary posts shall be taken
into account for working out the quota. Four candidates had
been selected from the Bar in 1984 after complying the
procedure for recruitment, but on account of the dispute as
to whether the temporary posts shall be taken into account
or not, their appointments were not made. We are of the
view that in the facts and circumstances of the case, these
four appointments should be given effect to and if at the
ultimate hearing the court takes one or other view, these
four appointees can be appropriately adjusted.
There is apprehension that if these four appointments
are given effect to at this stage, the promotees who may
come later may loose seniority. To clarify the position and
to remove any doubt, we direct that even if these four
persons are allowed to join duty, the question of seniority
shall be finally determined by the Court. The appointments
be made within one month from today.
This Court proceeded on the basis that 48 temporary
posts have been made permanent and, therefore, to the
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existing permanent posts 48 posts have been added. In view
of the fact that 48 temporary posts have now been made
permanent the four advocates selected should also be
appointed, however, subject to the seniority being adjusted
at a later stage. It is now pointed out that originally six
direct recruits had been selected and appointed in 1986,
whereas four direct recruits were appointed pursuant to the
interim order made by this Court on December 16, 1987 and
they appear to have reported to duty between January 25,
1988 to January 27, 1988 and have also been confirmed on
April 16, 1992. It appears that during the pendency of the
case before the High Court an interim order had been granted
on July 4, 1986 stating that the last four persons selected
in the direct recruits shall not be appointed and the
appointment of the last four persons in the direct recruits
was stayed and by a modification made on September 18, 1986
the same was confined to two general vacancies and two
Scheduled Caste/Scheduled Tribes vacancies. Subsequent to
the judgment of the High Court which was made on February
10, 1987 55 persons had been promoted on temporary basis
before the four direct recruits were appointed as ordered by
this Court on December 16, 1987. Various contentions have
been raised as to the seniority of these four direct
recruits and whether they will rank above these 55 persons
now appointed or they should be ranked along with those who
were appointed in 1986 because these persons who were
recruited subsequently were entitled to be appointed but
wrongly excluded by reason of the interim and final orders
of the High Court. A number of decisions have been cited
before us as to the manner in which the direct recruits and
the promotees have to be adjusted in the matter of
seniority. We are afraid to determine the seniority of the
direct recruits appointed pursuant to the orders made by
this Court on December 16, 1987 viz-a-viz the promotees who
are not before the Court would be hazardous, particularly
when the question of seniority was not an issue before the
High Court out of which this appeal arises. Therefore, we
must confine ourselves to the issue before us as to whether
these appellants could have been appointed or not and they
having been appointed now and in the light of the decision
of this Court in O.P. Garg (supra) they ought to have been
appointed. There is no need for us to consider these
matters any more. It is no doubt true that this Court has
stated in the interim orders made on December 16, 1987 that
to clarify the position and to remove any doubt, we direct
that even if these four persons are allowed to join duty,
the question of seniority shall be finally determined by the
Court. This observation was made not with the object of
determining the seniority of these four persons over any of
the promotees or vice versa, but only to offset any
difficulty arising in the matter of adjusting seniority at a
subsequent date. 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. In doing so the High
Court will have to prepare, circulate, invite objections and
finalise the seniority of these persons in the light of the
law and the decision of this Court in O.P. Garg (supra),
including the present decision as well as the interim orders
made by this Court pursuant to which appointment of these
four persons has been made. Let action be taken by the High
Court as expeditiously as possible. This appeal stands
disposed of accordingly.
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