W.P.(C)No.36/2008:
Learned senior counsel for the petitioners seeks permission to
withdraw the writ petition. Permission sought for is granted. The writ
petition is dismissed as withdrawn without prejudice to the rights of the
petitioners to seek other appropriate remedies with regard to their seniority.
W.P.(C)Nos.206/2007, 236/2007, 295/2007 & I.A.NO.1 in I.A.NO.204/2007:
The petitioners in these writ petitions and Interim applications
are members of the Uttar Pradesh Judicial Service. Writ Petition
No.236/2007 and I.A.No.1/07 in I.A.No.204/2007 are filed by the
U.P.Judicial Officers Association.
In All India Judges' Association& Ors. Vs. Union of India & Ors.,
(2002) 4 SCC p.247, this Court has directed that promotion to the cadre of
Higher Judicial Service should be streamlined based on the
recommendations of Justice Shetty
Commission. Prior to the directions given by this Court for filling up the
vacancies in the cadre of Higher Judicial Service there were only two sources
i.e. one by promotion from the cadre of Civil Judge (Senior Division) i.e. the
members of the Subordinate Judicial Service and the other by direct
recruitment as per Article 233 of the Constitution of India from the members
of the Bar. This Court felt that the members of the subordinate judiciary
should also be given a fast track promotion and those who are more
meritorious in service should be given an opportunity to compete for the
posts of higher judicial services apart from the ordinary channel of
promotion on seniority. To give opportunity to the subordinate judicial
officers from getting early promotion to the Higher Judicial Service, this
Court has directed that 25% of the vacancies of Higher Judicial Service shall
be filled up by a competitive examination and the Civil Judge (Senior
Division) who are in the feeder category shall be given an opportunity to get
such promotions. Keeping in view, the following direction was given by this
Court :
“.....At the same time, we are of the opinion that there has to be
certain minimum standard, objectively adjudged, for officers who
are to enter the Higher Judicial Service as Additional District Judge
and District Judges. While we agree with the Shetty Commission
that the recruitment to the Higher Judicial Service i.e. the District
Judge cadre from amongst the advocates should be 25 per cent
and the process of recruitment is to be by a competitive
examination, both written and viva voce, we are of the opinion that
there should be an objective method of testing the suitability of
the subordinate judicial officers for promotion to the Higher
Judicial Service. Furthermore, there should also be an incentive
amongst the relatively junior and other officers to improve and to
compete with each other so as to excel and get quicker
promotion. In this way, we expect that the calibre of the
members of the Higher Judicial Service
will further improve. In order to achieve this, while the ratio of 75
per cent appointment by promotion and 25 per cent by direct
recruitment to the Higher Judicial Service is maintained, we are,
however, of the opinion that there should be two methods as far
as appointment by promotion is concerned : 50 per cent of the
total posts in the Higher Judicial Service must be filled by
promotion on the basis of principle of merit-cum-seniority. For
this purpose, the High Courts should devise and evolve a test in
order to ascertain and examine the legal knowledge of those
candidates and to assess their continued efficiency with adequate
knowledge of case-law. The remaining 25 per cent of the posts in
the service shall be filled by promotion strictly on the basis of
merit through the limited departmental competitive examination
for which the qualifying service as a Civil Judge (Senior Division)
should be not less than five years. The High Courts will have to
frame a rule in this regard.
As a result of the aforesaid, to recapitulate, we direct that
recruitment to the Higher Judicial Service i.e. the cadre of District
Judges will be :
1(a)50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit-cum-seniority
and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit
through limited competitive examination of Civil Judges (Senior
Division) having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment
from amongst the eligible advocates on the basis of the written
and viva voce test conducted by respective High Courts;
(2) Appropriate rules shall be framed as above by the High
Court as early as possible.”
This Court has stated that the quota for promotion to the Higher
Judicial Service is 50 per cent from amongst the Civil Judges (Senior Division)
on the basis of principle of merit-cum-seniority and 25 per cent strictly on
the basis of merit through limited competitive examination and 25 per cent
by direct recruitment.
Subsequent to this decision, the Government of Uttar Pradesh, in
consultation with the High Court, has amended the U.P.Higher Judicial
Service Rules on 9th January, 2007. Prior to the amended rules, for filling up
the vacancies of Higher Judicial Service there were only two sources i.e. 85
per cent of the posts would be filled up by promotion based on the principle
of seniority-cum-merit and 15 per cent of the vacancies were to be filled up
by direct recruitment from the members of the Bar. After the judgment of
this Court in All India Judges' Association Case (supra), rules were framed to
make it in accordance with the directions given by this Court. Thus, there
were three sources of recruitment i.e. (i)50 per cent of the vacancies are to
be filled up by promotion from Civil Judges (Senior Division) on the basis of
principle of merit-cum-seniority and passing a suitability test;(ii) 25 per cent
by promotion strictly on the basis of merit through a limited competitive
examination of Civil Judges (Senior Division) having not less than five years
qualifying service; and (iii) by direct recruitment from amongst the advocates
of not less than seven years experience. Though these rules were notified
on 9th January, 2007 it was specifically stated that the amended rules would
come into effect from 21.3.2002. It may be noted that the judgment of this
Court in All India Judges' Case (supra) was pronounced on 21.3.2002.
The grievance of these petitioners is that these rules which have
been published on 9th January, 2007 should not have been given
retrospective effect and since retrospective effect had been given to
these rules, it has seriously
prejudiced the rights of the petitioners. According to these petitioners, the
vacancies of District Judges which had arisen prior to 21.3.2002 should have
been filled up on the basis of unamended rules and the recruitment which
had taken place based on the amended rules has affected the vested rights
of the petitioners. It is argued that had these vacancies been filled up on the
basis of the unamended rules, at least some of the petitioners would have
got promotion as of right and not based on the principle of merit-cum-
seniority which is incorporated in the amended rules. It was also argued
that prior to the commencement of these rules 85 per cent of the vacancies
could have been filled up by promotion from the cadre of Civil Judges
(Senior Division) to the post of District Judges whereas as per the amended
rules only 75 per cent of the Civil Judges (Senior Division) would get an
opportunity to get promotion to the Higher Judicial Service. It was further
argued that when service rules for selection for appointment were amended
it would always take place prospectively and retrospective effect shall not be
given so as to prejudice the vested rights of the candidates.
We do not find much force in the contention advanced by the
petitioners especially in view of the information furnished by the High Court
as regards the recruitment that had taken place in the year 2008. Prior to
20.3.2002, there were 22 posts of District Judges that could be filled up and
out of these 22 posts of District Judges if the 85 per cent was taken as per
the then existing rules, 19 posts had to be filled up by promotion from the
cadre of Civil Judges (Senior Division) and three posts had to be filled up by
recruitment from the Bar. Also there were 328 vacancies to be filled up and
we are told that the selection process had already been over and the High
Court has recommended for appointment of 245 candidates. The break-up
of the candidates as per the selection, which is mentioned by the High Court
is as follows :
170 candidates had to be given promotion based on the principle of
“merit-cum-seniority” from the Civil Judges (Senior Division) to fill up 50 per
cent of vacancies and all the 170 vacancies had been proposed to be filled
up and for the 25 per cent of promotion of Civil Judges (Senior Division)
based on merit none was found suitable and these 76 posts also were added
to the 50 per cent and the total number of 245 candidates in the cadre of
Civil Judges (Senior Division) had been now proposed to be promoted to the
cadre of District Judges and 82 direct recruits of District Judges have been
selected from the bar and that also is proposed to be appointed and a total
of 286 candidates have been included in the list of candidates who are to be
promoted.
Learned senior counsel appearing for the petitioners had also
contended that prior to the amendment of these rules, the promotion to the
cadre of District Judges was based on the principle of “seniority-cum-merit”
and now as per the amended rules, pursuant to the directions of this Court,
the principle has now been changed to “merit-cum-seniority” and this
has seriously affected the rights of the members of the Civil Judges (Senior
Division). However, learned senior counsel appearing for the State of Uttar
Pradesh has contended that in the process of promotion, merit alone was
not being given importance. Even if the principle of merit-cum-seniority has
to be applied the principle is that if the candidates are eligible for promotion
to the cadre of District Judges the seniority in the feeder category has to be
maintained as regards 50 per cent of the promotions are concerned. Of
course, in the case of 25 per cent promotions, the test must be rigorous as
held by this Court and the promotion under the 25 per cent category of Civil
Judges (Senior Division) to the category of District Judges be strictly on merit
and that too subject to the rigorous selection and such candidate may
supersede some of their colleagues in the feeder category i.e. Civil Judges
(Senior Division). Going by the information submitted by the High Court
regarding the 2008 selection, we are satisfied that the rules have been
complied with. Of course, as regards other objections, if any, we are not
expressing anything on merits as the recommendation itself is not under
challenge before us. Resultantly, we do not find any merit in these writ
petitions and the applications and the same are disposed of accordingly.