JUDGMENT 1. - Petitioners before me are members of Rajasthan Judicial Service (RJS for short). Their recruitment and promotion is governed by Rajasthan Judicial Service Rules, 1955 (for short the RJS Rules). The present writ petition raises the question of interpretation of the provisions of Schedule II appended to RJS Rules. 2. RJS Rules were promulgated by the Raj. Pramukh of Rajasthan in consultation with the Rajasthan Public Service Commission and the High Court of Judicature for Rajasthan in exercise of the powers conferred by Article 234, read with Article 238 and proviso to Article 309 of the Constitution of India. 3. Under the existing provisions of these Rules initial recruitment to the service is made at the level of Munsifs. Besides Munsifs, the cadre consists of Civil Judges, Senior Civil Judges and Civil Judges-cum-Chief Judicial Magistrates. It is admitted before me on all hands that the cadre of Senior Civil Judges is now extinct. Munsifs are now promoted to the posts of Civil Judges (ACJMs) on the basis of seniority-cum-merit, while they are promoted to the posts of Civil Judges-cum-Chief Judicial Magistrates on the basis of merit after taking seniority in consideration. 4. Article 16(1) of the Constitution of India guarantees 'equality of opportunity for all citizens in matters relating to employment or appointment to any officer under the State'. Clause (4) of this Article carves out an exception to this rule and enables the State for making provision for the reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State. The provision has been interpreted to include power of making reservations in favour of Scheduled Castes and Scheduled Tribes as well. The claim of the members of Scheduled Tribes and backward classes to such reservation has ripened into a right and this reservation has to be consist ant with the maintenance of efficiency of administration as mandated by article 335 of the Constitution. Rule 9 of the RJS Rules crystallizes this right and provides : "9. Reservation for Scheduled Castes and Scheduled Tribes - Reservation for Scheduled Castes and Scheduled Tribes shall be in accordance with the orders for such reservation in force at the time of recruitment. Rule 9 of the RJS Rules crystallizes this right and provides : "9. Reservation for Scheduled Castes and Scheduled Tribes - Reservation for Scheduled Castes and Scheduled Tribes shall be in accordance with the orders for such reservation in force at the time of recruitment. A copy of such orders in force at the commencement of these rules will be found in Schedule." Clause (1) of the Schedule referred to in this Rule provides that there shall be a general reservation of 28% (16% for Scheduled Castes and 12% for Scheduled Tribes. Clause (2) of this Schedule provides : "(2) The same percentage of recruitment may be followed in respect of the members of the Scheduled, Castes and Scheduled Tribes till the ultimate percentage or reservation fixed by the Government is reached." Then follows clause (3) of the schedule which reads as follows : "(3) In the event of non-availability of a sufficient number of candidates amongst Scheduled Castes and Scheduled Tribes in a particular year, vacancies need not be kept reserved and shall be filled in accordance with normal procedure, but they may be carried forward and filled up in the subsequent year. In case the candidates of Scheduled Castes or Tribes are not available even in the second year, for appointment against the vacancies carries forward from the previous years, vacancies will be filled in by other candidates and the deficiency will be made good in the subsequent year. If the candidates are not available in the third year also, vacancies reserved will be filled in by other candidates and the reservation on account of the deficiency shall not be carried forward for more than two years." Clauses (4) to (6) of the Schedule are not relevant for the present discussion. Then follows clause (7) which reads as follows : "(7) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes. -(1) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. (2) The vacancies so reserved for promotion shall be filled in by merit alone. -(1) Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. (2) The vacancies so reserved for promotion shall be filled in by merit alone. (3) In filling the vacancies so reserved the eligible candidates who are members of the Scheduled Castes and the Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list prepared for direct recruitment by the Committee or the Appointing Authority, as the case may be, and the Departmental Promotion Committee in the case of promotees, irrespective of their relative rank as compared with other candidates. (4) Appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst the Scheduled Castes and the Scheduled Tribes, as the case may be, in a particulars year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total, and thereafter such reservation would lapse : Provided that there shall be no carry forward of the vacancies in the posts or class/category/group of posts in any cadre of service to which promotions are made in the basis of merit alone under these rules." 5. So far, there is no controversy among the parties. Now, the grievance of the petitioner is that there is no rule in the RJS Rules which may require year wise determination of vacancies. For this reason clause (3) of Schedule 2 reproduced above is redundant. For this very reason backlog of reserved posts (vacancies) cannot be carried forward to a subsequent year. Moreover, by virtue of clause 7(2) of the Schedule the promotional posts can be filled by merit alone. Hence, by virtue of proviso to clause (4) of the Schedule, there can be no 'carry forward' of such vacancies. For this very reason backlog of reserved posts (vacancies) cannot be carried forward to a subsequent year. Moreover, by virtue of clause 7(2) of the Schedule the promotional posts can be filled by merit alone. Hence, by virtue of proviso to clause (4) of the Schedule, there can be no 'carry forward' of such vacancies. It has been pleaded that in violation of the aforesaid provisions, the respondents while making promotions to posts of Civil Judges (ACJMs) and Civil Judges-cum-Chief judicial Magistrates, has been carrying forward the back log of vacancies, thus seriously affecting the chances of general category candidates, to which category the present petitioners belong. 6. The other grievance of the petitioners is that even though the maximum of the reservation for Scheduled Castes has been attained, the vacancies are being carried forward, which is violative of clause (2) of Schedule. 7. The last grievance of the petitioners is that those RJS officers belonging to reserved quota, who have been promoted to Rajasthan Higher Judicial Service (for short RHJS) retain their lien in RJS till confirmed yet the temporary vacancies caused by such officiating promotions are being taken into consideration for determination of vacancies for purposes of promotion to the cadre of Civil Judges (ACJMS) and Civil Judges-cum-Chief Judicial Magistrates and to do so is not permissible under the Rules. 8. A controversy has also been raised about the actual number of vacancies available for promotion to the various categories viz., Schedule Castes, Scheduled Tribes and General Category. On the aforesaid premises, a direction is sought that promotions be made to the 'cadre of ACJMs/CJMs from amongst the general category candidates except to two posts which may be given to Scheduled Tribe Candidates.' 9. A show cause notice was issued to the respondents on the petition. 10. The writ petition has been opposed on behalf of the respondents. However, only respondent No. 1 viz. the High Court has chosen to file reply to the show cause notice. The State of Rajasthan has not filed any reply. 11. By common consent, the writ petition has been heard finally at the admission stage itself. 12. 10. The writ petition has been opposed on behalf of the respondents. However, only respondent No. 1 viz. the High Court has chosen to file reply to the show cause notice. The State of Rajasthan has not filed any reply. 11. By common consent, the writ petition has been heard finally at the admission stage itself. 12. A preliminary objection has been taken to the maintainability of the writ petition by respondent No. 1, which has averred that 'the writ petition is calculated to adversely affect the rights of the candidates belonging to Scheduled Castes and Scheduled Tribes Communities and hence until and unless all those persons likely to be affected by the result of the writ petition are impleaded as party respondents, the writ petition cannot be said to be properly constituted and is liable to be dismissed.' Learned counsel for the petitioners contends that petitioners are not seeking any relief against any particular officer of Scheduled Castes, Scheduled Tribes category but are only requesting the court to place correct interpretation on the provisions, so that provisions are correctly applied by the respondents, hence it was not necessary to implead each and every officer belonging to Scheduled Castes and Scheduled Tribes. I find that this contention has much force. In the present case, petitioners are not claiming any relief against any particular officer of Scheduled Castes /Scheduled Tribes Category but have challenged the manner in which provisions of Schedule II are being construed and implemented by respondent No. 1. Hence, in my opinion, it cannot be said that the writ petition has not been properly constituted. I, therefore, do not find any merit in this preliminary objection and overrule the same. 13. Now, I may deal with the various contentions raised before me with regard to the merits of the petition. The first and foremost question is whether respondent No.1 is entitled to carry forward the backlog vacancies pertaining to Scheduled Castes/Scheduled Tribes candidates, notwithstanding the provisions of sub-clause (2) of clause (7) and proviso to sub clause (4) of clause (7). These provisions have been already reproduced above. The first and foremost question is whether respondent No.1 is entitled to carry forward the backlog vacancies pertaining to Scheduled Castes/Scheduled Tribes candidates, notwithstanding the provisions of sub-clause (2) of clause (7) and proviso to sub clause (4) of clause (7). These provisions have been already reproduced above. A bare reading of sub-clause (2) of clause (7) of the Schedule makes it explicit that 'the vacancies so reserved for promotion shall be filled in by merit alone.' The expression 'so reserved' refers to reservation of vacancies for Scheduled Castes and Scheduled Tribes made under sub-clause (1) of Clause (7) which includes reservation for promotion. 14. Shri N.P. Gupta urged that Rule 7A and Rule 7C of the RJS Rules provide for promotions on the basis of seniority-cum-merit for post of Civil Judges (ACJMs) and on the basis of merit after taking the seniority into consideration for posts of Civil Judges-cum-Chief Judicial Magistrate respectively and hence sub-clause (2) of clause (7) of the Schedule places an extra burden on the members of Scheduled Castes and Scheduled Tribes and this has introduced an element of incongruity in the Rules and hence this court should read sub-clause (2) of clause (7) and proviso to sub-clause (4) of clause (7) of the Schedule in a manner which harmonizes the conflicting provisions and expression 'merit alone' occurring in sub-clause (2) of clause (7) and in proviso to sub-clause (4) of clause (7) of the Scheduled should be read down to mean' seniority cum merit' or 'merit cum seniority'. 15. Mr. M.R. Singhvi on the other hand contends that such a construction cannot be placed upon provisions and the provisions of Rule 7A and 7C do not and cannot control the provisions of sub-clause (2) of clause (7) and of proviso to sub-clause (4) of clause (7) of the Schedule. He urges that by way of reservation, Scheduled Castes and Scheduled Tribes candidates are enabled to jump the normal queue by bye passing the senior candidate of the general category. Such candidates who are permitted to jump the queue should be officers of merit so that efficiency of the service is not impaired in any way. Judicial Service is a highly sensitive service where utmost integrity and high calibre is required. Judicial Officers by virtue of powers vested in them control the destinies of the citizens coming before them as litigants. Judicial Service is a highly sensitive service where utmost integrity and high calibre is required. Judicial Officers by virtue of powers vested in them control the destinies of the citizens coming before them as litigants. Hence, it appears that provisions of sub-clause (2) of clause (7) and of proviso to sub-clause (4) of cluase (7) deliberately have used the expression 'merit alone'. Moreover, this is in consonance with the provisions of Article 335 of the Constitution as well. Hence, reading down of these provisions should not be resorted to. 16. I have bestowed my earnest consideration to the rival contentions. In my opinion use of expression 'merit alone' used in the aforesaid provisions of Schedule II were meant to subserve the objective enshrined in Article 335 of the Constitution of India which mandates that reservation has to be consistant with the maintenance of efficiency in administration. It cannot be said that expression 'merit alone' had been used in these provisions inadvertently or by oversight. This is true that by using expression 'merit alone' in these provisions a heavier burden has been placed an those who are allowed to jump the queue at promotional level and are asked to come up to certain standards of 'merit alone'. But this cannot be said to place an onerous burden on such reservists so as to render reservation redundant or otiose or meaningless. The heavier burden has a justification and sub serves the interest of efficiency of administration. Hence, I am of the view that provisions of Rule 7A and 7C do not curtail the meaning and scope of expression 'merit alone' occurring in the aforesaid two provisions of the Schedule. Rather, the provisions are in keeping with the letter and spirit of Article 335 of the Constitution of India and strike a balance between dictates of Article 16(4) and Article 335 of the Constitution. 17. The necessary corrolary is that there cannot be a 'carry forward' of backlog vacancies so far as promotions to the posts of Civil Judges and Civil Judges-cum-Chief Judicial Magistrates are concerned. I was told that in the past, such vacancies had always been carried forward and the past practice should justify such 'carry forward' in future also. I may state that a past practice in violation of statutory rules cannot be permitted to be continued at all, once the violation is detected. I was told that in the past, such vacancies had always been carried forward and the past practice should justify such 'carry forward' in future also. I may state that a past practice in violation of statutory rules cannot be permitted to be continued at all, once the violation is detected. I, therefore, do not agree with Shri N.P. Gupta that 'carry forward' formula should be allowed to hold the field, even when it is violative of the aforesaid two provisions of the schedule. 18. Now, this takes me to the consideration of the next question viz. can there be reservation of posts over and above the ultimate percentage of reservation having been attained. In this regard also the provision of clause (2) of the second scheduled is express and explicit. This clause has been reproduced above and admits of no adbiguity. Once the ultimate percentage of reservation in respect of Scheduled Castes or Scheduled Tribes is reached, the reservation ceases to operate in respect of such category and then the candidates belonging to such category have to take their place in the queue with general category candidates. Learned counsel for the respondent-Rajasthan High Court or for that matter, the learned counsel for State has been unable to point out any valid reason for not giving the provision its literal and grammatical meaning. I, therefore, find that if in any particular year, the ultimate percentage is reached in respect of any of the two categories, then in respect of such category, reservation shall cease to operate, till the number again goes down below the ultimate percentage. 19. Now, I may consider if want of a provision in the RJS Rules regarding annual determination of vacancies militates against the provisions of Schedule II and renders such provisions in Schedule II otiose and redundant. To my mind the contention is without any substance. I have read the provisions of Schedule II and they do not postulate or assume in any way that determination of vacancies on an annual basis is a condition precedent for implementing the provisions of Schedule II. This is true that RJS Rules do not provide for annual determination of vacancies for promotional posts. The practice appears to be to determine vacancies periodically and fill them up periodically. This is true that RJS Rules do not provide for annual determination of vacancies for promotional posts. The practice appears to be to determine vacancies periodically and fill them up periodically. But such periodic determination does not have much relevance in the context of the controversy raised before me because I have already held that there shall be no 'carry forward' of the vacancies in the posts or class/category/group of posts in any cadre of service to which promotions are made on the basis of 'merit alone'. This would mean that 'carry forward' formula would be available only for initial recruitment filled from reserve quota officers on merit alone as provided in sub-clause (2) of clause (7) of Scheduled-II. 20. Learned counsel for the petitioner contended that ex-cadre posts could not be included in the cadre strength for purposes of computation of reserved quota for Scheduled Castes and Scheduled Tribes. He contends that reservation of 16% for Scheduled Castes and 12% for Scheduled Tribes should be computed on actual cadre strength as revised from time to time. Ex-cadre posts should be excluded from such computation. In my opinion expression 'appointments of the services and the posts' occurring in clause 1 of Schedule II is indicative of the fact that even ex-cadre posts may be included for computation of the reserved quota otherwise use of word 'posts' in this clause was meaningless. Hence, I negative this contention. 21. This takes me to the consideration of the question if the posts on which lien is held by reservists, because of their officiating promotion to RHJS have to be included while computing the ultimate percentage reached for purposes of clause (2) of the II Schedule.There is no dispute that officers of RJS promoted to RHJS on an officiating basis continue to be substantively on the RJS cadre and merely by such officiating promotion do not cease to be RJS officers. Petitioners have pointed out in para 11 of the writ petition that even though officers (both Scheduled Castes and Scheduled Tribes) referred to in this para had been promoted on an officiating basis to RHJS, yet were considered for grant of selection and super time scale of RJS on the ground that they held lien in RJS, notwithstanding that they had been so promoted. The contention is that they cannot be treated to be members of RJS for one purpose and not so for another purpose. Respondent No. I has not controverted this factual position. Hence, I am inclined to hold that reservists officers holding lien in RJS and promoted to RHJS on an officiating basis have to be treated as RJS officers for all intents and purposes including computation of ultimate percentage reached for purpose of reservation. 22. Now, the question which falls for consideration is whether I should myself compute the number of vacancies available to the reservists and general category candidates for promotional posts or this determination should be left to respondent No. 1. In my opinion, respondent No. l would be the best Judge in this regard and it would serve the ends of Justice if it is told broadly about the manner in which this computation is to be done. Hence, I refrain from entering into this exercise, which learned counsel for the parties wereat pains to undertake. 23. To sum up, I find that the total number of vacancies available for reservation in the service shall be computed at 16% for Scheduled Castes and 12% for Scheduled Tribes. So far as promotional posts are to be filled up by way of reservation, they shall be filled up by merit alone as laid down in Sub-clause (2) of clause (7) of Schedule. There shall be no 'carry forward' of vacancies so reserved by virtue of proviso to sub-clause (4) of clause (7) of the land Schedule. For computation of ultimate percentage, total cadre strength shall include the ex-cadre also. However, for purposes of computation of this ultimate percentage, respondents shall reckon all such reservists as RJS officers, who have been promoted to RHJS on officiating basis and hold lien in RJS; once the ultimate percentage has been reached for any of the reservists categories in any year, further reservation would not be available to officers of such category until the posts held again fall short of the ultimate percentage. 24. 24. I, accordingly, accept the writ petition and direct respondent No. 1 to determine vacancies available for general category, Scheduled Caste Category and Scheduled Tribes Category candidates for promotion to the posts of Civil Judge (ACJMs) and Civil Judge-cum-Chief Judicial Magistrates keeping in view the legal position indicated above and to promote officers to such posts only after such fresh determination is made. In case, respondent No. 1 arrives at the conclusion that reservists in any category have reached the ultimate percentage, then no more posts shall be reserved for promotion for officers of such category and to that extent the roster shall cease to operate and posts would be filled from general category candidates. 25. In the circumstances of the case, the parties are left to bear their own costs.Petition accepted. *******