Shri Kant Tripathi v. State Of U. P. — 1987 DIGILAW 148 (ALL)

JUDGMENT K. Jagannatha Shetty, C. J. 1. This writ petition raises an important question as to the maximum number of direct recruits to be taken to the Higher Judicial Service ('H. J. S.' for short) in the State of U. P. Petitioner no. 1 is the member of the U. P. Judicial Service which is now termed as U. P. Nyayik Sewa. He is also the Secretary of the U. P. Judicial Service Association. Petitioner no. 2 has been approved by the High Court for promotion to the H. J. S. He has been officiating in the Higher judicial Service with effect from July 16, 1983 and is awaiting confirmation in the cadre. 2. The H. J. S. in U. P. consists of a single cadre comprising of the posts of District and Sessions Judge and Additional District and Sessions Judge. The permanent strength of the service at present is 311. There are also 133 temporary posts created by the State Government from time to time after consulting the High Court. The method of recruitment and appointment to the H. J. S. and the conditions of service of persons appointed there to have been provided under the Rules called 'The Uttar Pradesh Higher Judicial Service Rules, 1975' ('Rules' for brevity). The Rules have been made under the powers conferred by the proviso to Article 309 read with Article 233 of the Constitution. Before we examine the contentions raised in the writ petition, it will be useful to set out, in brief, the relevant Rules. Rule 3 (c) defines "the service" to mean the Uttar Pradesh H. J. S. Rule 4 (2) provides for the strength of service. It may be determined from time to time by the Governor in consultation with the High Court. Rule 4 (3) provides for permanent strength of the service as specified in Appendix 'A' unless varied by orders passed in this behalf. Rule 4 (4) empowers the Governor to create from time to time additional posts, temporary or permanent, as may be found necessary. 3. Part III of the Rules deals with the mode of recruitment to the service. The recruitment is required to be made from two sources-(1) by direct recruitment of pleaders and advocates of not less than seven years' stand. (2) By promotion of confirmed members of the Uttar Pradesh Nyayik Sewa who have put in not less than seven years service. Part III of the Rules deals with the mode of recruitment to the service. The recruitment is required to be made from two sources-(1) by direct recruitment of pleaders and advocates of not less than seven years' stand. (2) By promotion of confirmed members of the Uttar Pradesh Nyayik Sewa who have put in not less than seven years service. Provision has also been made for recruitment of suitable officers from out of the dying cadre of the Judicial Magistrate who are also called members of the Uttar Pradesh Judicial Officers Service. The appointment of direct recruits is dealt with under Rule 17 according to which a committee constituted by the High Court after selection would recommend the list to the Governor. Rules 20 deals with the appointment by promotion. The promotes are appointed to H. J. S. by selection on the basis of seniority cum merit. Rules 6 and 8 are crucial to the determination of the question raised in the petition. We will set out these Rules in detail a little later. For the present, we may state that Rule 6 lays down the quota for various sources of recruitment. That is subject to Rule 8 which provides for the number and method of recruitment whenever there is no suitable candidate available for recruitment from the Bar. 4. To make the picture complete we may also deal with Rules 22, 23, 24 and 26. Rule 22 provides for appointment. The Governor upon receipt of lists from the High Court make appointments to the service against substantive vacancies by taking candidates from the lists in the order in which they stand in the respective lists. Rule 22 (2) provides that 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 shall be filled from the list of direct recruits (and so on) the remaining vacancies shall thereafter 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 Magistrate, appointments to the service shall be made in such a way that the second, fifth and eight (and so on), vacancy shall be filled from the list of Judicial Magistrates. Rule 22 (3) provides for appointment for temporary vacancies or in officiating capacity. Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrate, appointments to the service shall be made in such a way that the second, fifth and eight (and so on), vacancy shall be filled from the list of Judicial Magistrates. Rule 22 (3) provides for appointment for temporary vacancies or in officiating capacity. Such appointments shall be made by the Governor in consultation with the High Court from amongst the members of the Nyayik Sewa. Here again provision has been made for appointment of suitable officers if available, from the cadre of the Judicial Magistrates. Rule 23 deals with probation. It provides that all persons on appointment to the service in substantive vacancies be placed on probation. The period of probation shall, in each case, be two years. The High Court, may, in special cases, extend the period of probation upto a specified date, but it shall not ordinarily exceed three years. Rule 24 provides for confirmation of probationers. Rule 26 provides for seniority of the promotes vis-a-vis direct recruits. It also deals with seniority inter-se of the officers appointed from out of the Judicial Magistrates and those promoted from the Nyayik Sewa. It will, thus, be seen that the Rules provide for permanent strength of the service and also provide for creation of additional posts, temporary or permanent. As earlier stated the strength of the service as on today consists of 311 permanent posts and 133 temporary posts. The appointments to all these posts are required to be made in accordance with the Rules. 5. Ever since the Rules came into force, the recruitments have been made from time to time. Upto 1982 there were in all 41 officers directly recruited into the service. In 1984 the High Court selected 10 more persons from the Bar. Then the Judicial Service Association made a representation to the High Court stating that since 41 officers have already been directly recruited, the High Court could not have selected more than six persons from the Bar in view of the ceiling imposed under the proviso to Rule 8 (2). The High Court, however, did not agree with the suggestion. Not merely that, the High Court again invited applications for direct recruitment for seven more posts. 6. The High Court, however, did not agree with the suggestion. Not merely that, the High Court again invited applications for direct recruitment for seven more posts. 6. Challenging this action, the petitioners have moved this Court under Article 226 of the Constitution for a direction to the Government not to appoint more than six persons from amongst the candidates selected for direct recruitment. They have also sought a direction against the High Court not to proceed with the further selection from the Bar. The contention of the petitioners is that the Rules provide a maximum ceiling for recruitment to the H. J. S. from the Bar and it shall not exceed, in any event, 15 per cent of the total permanent strength of the service. In support of this contention reliance was placed on Rule 6 and the first proviso to Rule 8 (2). 7. For the respondents it was urged that the ceiling prescribed under the first proviso to Rule 8 (2) is applicable only when vacancies are carried forward to subsequent recruitment. According to them, if in a particular recruitment, requisite number of suitable candidates are not available for direct recruitment, then the High Court could reduce the vacancies earmarked for them to the extent of non-availability of suitable candidates and step up correspondingly the number of promotes for appointment. This process could be reversed in the next recruitment by stepping up the direct recruits and might be repeated in the successive recruitment. But in no case the stepping up should exceed 15 per cent of the total permanent strength of the service. 8. For the determination of these questions, it is now necessary to set out Rule 6 and 8. "6. But in no case the stepping up should exceed 15 per cent of the total permanent strength of the service. 8. For the determination of these questions, it is now necessary to set out Rule 6 and 8. "6. Quota-Subject to the provision of rule 8, the quota for various sources of recruitment shall be- (i) direct recruitment for the Bar 15 percent ) of the (ii) Uttar Pradesh Nyayik Sewa 70 percent ) vacancies (iii) Uttar Pradesh Judicial Officers ) Service (Judicial Magistrates) 15 percent ) Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota is in fraction less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one : Provided further that when the strength in the cadre of the Judicial Magistrates gets depleted or is completely exhausted and suitable candidates are not available in requisite number or no candidate remains available at all, the shortfall in the number of vacancies required to be filled from amongst Judicial Magistrates and in the long run all the vacancies, shall be filled by promotion from amongst the members of the Nyayik Sewa and their quota shall, in due course, become 85 per cent. 8. Number of appointments to be made- (1) The Court shall, from time to time, but not later than three years from the last recruitment, fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years. Note-The limitation of three years mentioned in this sub-rule shall not apply to the first recruitment held after the enforcement of these rules. Note-The limitation of three years mentioned in this sub-rule shall not apply to the first recruitment held after the enforcement of these rules. (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 any when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa ; and only the remaining vacancies shall be shared between three sources under these rules : Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in further to the Judicial Magistrates in addition to their quota of 15 per cent prescribed in rule 6, and thereupon, further recruitment (after the promotion from amongst the members of the Nyayik Sewa against vacancies referred to in the last preceding proviso) shall be so arranged that for so long as the additional 15 per cent vacancies worked out as above have not been filled up from out of the Judicial Magistrates, the allocation of vacancies shall be as follows : (i) 15 per cent by direct recruitment ; (ii) 30 per cent from out of the Judicial Magistrates ; (iii) 55 per cent from out of the members of the Nyayik Sewa." It will be clear from these provisions, that Rule 6 provides for quota for various sources of recruitment. It provides the quota of 15 per cent for direct recruitment from the Bar and 70 per cent form promotes. It provides the quota of 15 per cent for direct recruitment from the Bar and 70 per cent form promotes. The Rule 6 begins with words "subject to the provisions of Rule 8". It means the quota provided for direct recruitment and promotion would be subject to the provisions of Rule 8. To put it in other words, the quota for direct recruitment or promotion would be subject to the limitations, if any, imposed under Rule 8. The words "subject to" mean that the quota prescribed under Rule 6 for direct recruitment is conditional upon and circumscribed by constraints provided under Rule 8. 9. In K. R. C. S. Balakrishna Chetty and Sons and Co. v. The State of Madras, AIR 1961 SC 1152 , the Supreme Court while dealing with the scope of the words "subject to" occurring in Section 5 of the Madras General Sales Tax Act (Act IX of 1939) observed at p. 1154 : "That the use of the words "subject to" has reference to effectuating the intention of the law and the correct meaning, in our opinion is conditional upon." 10. Rule 8, therefore, has the controlling and overriding effect on the quota prescribed under Rule 6. Rule 8 deals with "Number of appointments to be made". Rule 8 (1) provides that 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. Then the Court must revert to Rule 6 to apportion the vacancies to three sources of recruitment. This has to be determined before proceeding with the actual selection of candidates. While distributing the vacancies, the Court will have to remember the first proviso to Rule 6 which states that where the number of vacancies to be filled in by any of the sources in accordance with the quota is in fraction, then less than half shall be ignored and the fraction of half or more shall, ordinarily, be counted as one. This takes us to Rule 8 (2) of the Rules. This takes us to Rule 8 (2) of the Rules. Rule 8 (2) provides that if at any selection the direct recruits available for appointment are 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 Nyayik Sewa. This provision enables the Court to increase the number of promotes for appointment beyond their quota of 70 per cent of the available vacancies, but subject to the shortfall in the number of directly recruited candidates. 11. In the next recruitment, the Court has to take into consideration the shortfall in the quota provided for the direct recruits. If enough number of suitable candidates from the Bar are available, then the shortfall of the previous recruitment could be made good. The number of persons to be taken from the Bar could correspondingly be increased by reducing the number of promotes to be appointed. But there is a ceiling prescribed by the first proviso to Rule 8 (2). Let us hark back to the proviso : "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." 12. The question is whether the language of the proviso coupled with the last sentence which has been separated by ' semi colon ' amounts to imposition of a final ceiling for direct recruits in the service or whether it is only a restriction to raise the percentage of direct recruits to make good the shortfall in the previous recruitments. We gave our anxious consideration to the rival contentions urged for the parties. We find considerable difficulty to accept the contention urged for the respondents. We should not forget that rules 6 and 8 form part of the same scheme for recruitment. The rules, therefore, have to be read as a whole and not in parts. The last part of the said proviso contains emphatic terms expressed in negative language. We find considerable difficulty to accept the contention urged for the respondents. We should not forget that rules 6 and 8 form part of the same scheme for recruitment. The rules, therefore, have to be read as a whole and not in parts. The last part of the said proviso contains emphatic terms expressed in negative language. It provides that the percentage of the direct recruits in the service does not, in any case, exceed 15 percent of the total permanent strength of the service. It is in the nature of an injunction to the appointing authority not to cross the limit prescribed. The limit prescribed is that the percentage of direct recruits in the service should not in any case exceed 15 percent of the, total permanent strength of the service. 13. To understand the true import of the above sentence, we may usefully refer to the observation of the Supreme Court in O. P. Singla v. Union of India, AIR 1984 SC 1595 . There almost a similar proviso to Rule 7 (n) of the Delhi Higher Judicial Service Rules 1970 came up for consideration. That proviso reads thus : "Provided that no more than 1/3rd of the substantive posts in the Service shall be held by direct recruits." Chandrachud, C.J. expressing the majority view observed : "This language is more consistent with the contention of the promotes that the proviso merely prescribes, by way of imposing a ceiling that the direct recruits shall not hold more than 1/3rd of the substantive posts. Experience shows that any provision which is intended to prescribe quota, generally provides, that, for example, 1/3rd of the substantive posts shall be filled in by direct recruitment. A quota provision does not use the negative language as the proviso in the instant case does that "not more than" one-third of the substantive posts in the Service shall be held by direct recruits." 14. Learned Chief Justice also observed that when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter related provision becoming otiose or devoid of meaning. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter related provision becoming otiose or devoid of meaning. These principles are equally relevant to the present case. The said proviso consists of two parts which are separated by a 'semi-colon' mark in between. The 'Semi-colon' has been put immediately after the word 'accordingly'. By the 'semi-colon' mark, the first part of the proviso comes to an end and a further sentence begins with the word 'so'. Again it is followed by a 'comma' mark. If we recall the rules of English grammar, 'semi-colon' represents a pause of greater importance than that shown by the 'comma'. It is used to separate the clauses of compound sentence. It is also used to separate a series of loosely related clauses, each, however, is independent of the other. The two parts of the proviso separated by a 'semi-colon' are not inter-connected or inter-linked with each other. The 'semi-colon' mark followed by a word 'so' with 'comma' thereafter, appears to have been deliberately used by the Rule making authority with a view to separate the first part from the second part of the proviso. 15. The second part of the proviso, that is the last sentence therein is marked with perspicuity. The word 'however', used therein has significance. The word 'however' is a sentence connector generally means 'in whatever means or degree', 'nevertheless 'or' at all events'. These are the meanings assigned to the said word in the Dictionary. The word 'however' after the word ‘so’ before the word ‘that’ clearly emphasises that that provision has to be operated in all contingencies It is to be applied not only in the case of making good the shortfall in the direct recruitment, but also in the total recruitment of direct recruit. The words in any case’ used therein are graphic enough, indicating in explicit terms that the percentage of direct recruits whatsoever and in whatever manner shall not exceed 15% of the total permanent strength of the service. In our judgment, the words "in any case" are to all intents and purposes the maximum ceiling prescribed for direct recruits. 16. The second proviso to Rule 8 also lends support to our conclusion. In our judgment, the words "in any case" are to all intents and purposes the maximum ceiling prescribed for direct recruits. 16. The second proviso to Rule 8 also lends support to our conclusion. It reads 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 the rules. If the contention suggested for the respondents is accepted, then the first proviso to rule 8 (2) would operate oppressively on the promotes. It cannot be disputed that the vacancies in the service would be ordinarily, that of promotes. The direct recruits come to the service at a very young age whereas the promotes get their promotion at the fag end of their service. The promotes retire more in numbers than the direct recruits. The bulk of the available vacancies at each recruitment, therefore, would be that of promotes. In each recruitment if 15% of the available vacancies is allotted for direct recruitment, then 70 percent prescribed for Nyayik Sewa would gradually go on diminishing. Such an interpretation which will have a prejudicial effect on the rights of promotes is not acceptable to us. The Court by euphemism of interpretation should not act unfairly on others. 17. The direct recruits are .entitled to only 15 percent of the total permanent strength of the service. Since there are only 311 permanent posts, they are, for the present, could get no more than 47. 18. We cannot, however, part with the case without inviting the attention of the State Government as to the undesirable practice of continuing a large number of temporary posts in the Higher Judicial Service. At present there are in all 133 temporary posts. Twenty four of such posts have been created as far back on February 4, 1980. Again twenty four have been created on November 12, 1980. Twelve have been sanctioned on December 4, 1981. Fifty have been sanctioned on October 6, 1982 followed by seven more in 1986. Some of the posts which have been recently created are evidently of temporary nature but there is no reason to regard those posts created in 1980 as still temporary. Twelve have been sanctioned on December 4, 1981. Fifty have been sanctioned on October 6, 1982 followed by seven more in 1986. Some of the posts which have been recently created are evidently of temporary nature but there is no reason to regard those posts created in 1980 as still temporary. There are forty eight such posts in the category of Additional District and Sessions Judges (Higher Criminal Courts). The judicial administration cannot afford to dispense with those posts. They are absolutely necessary, and indeed there is no reason for not converting them to permanent posts. The fundamental principle of service jurisprudence is that the service must contain always fresh blood and old experience in proper balance. Such a combination is sine qua non to make the administration of justice as a vehicle of progress and transformation. Substantive vacancies should not be continued for years as temporary posts. It would be illogical. We hope and trust that the Government would soon convert the forty eight temporary posts existing since from 1980, to permanent posts, so that the direct recruits could also share them. 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. 19. In the circumstances of the case, we make no order as to costs. Petition allowed.