U.P. Higher Judicial Service Rules, 1975 – Determination of seniority of promotees and direct recruits – Earlier, in absence of determination of vacancies for the period from 2002 till 2007, neither promotees were appointed in spite of availability of vacancies and eligibility nor direct recruitments were made – After the amendment of the Rules in 2007, recruitment process was initiated, and vacancies were worked out and advertisements were issued – Both promotees and direct recruits were appointed – After the appointments, the dispute of seniority cropped up – The direct recruits claimed that they were entitled to be given seniority as per Rota system laid down under the Rules and they had been wrongly placed junior to the promotees – The promotees claimed that their seniority should commence from the date of accrual of vacancy, date of their eligibility, without their passing of the suitablity test which was retrospectively prescribed for the first time after the amendment of the 2007 Rules – Held: The High Court was correct in taking the view that suitability test was required in terms of judgment rendered in All India Judges Association case and under the amended Rules applicable retrospectively – Promotees could not be given promotion without suitability test nor could they claim seniority without the same – They were rightly given seniority from their appointments – Insofar as Quota-Rota rule is concerned, it is a mandatory requirement of the Rules – The said requirement has however to be seen in the peculiar fact situation – On facts, the issue of determination of vacancies was embroiled in continuous litigation – The Quota-Rota rule could not be applied in the absence of determination of vacancies – The rule provided for seniority of the promotees to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation – If Rota rule is applied, it will work serious prejudice to the promotes – Thus, the Rules will have to be given pragmatic interpretation – If it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule – Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to be given a practical interpretation – Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained.
Disposing of the matters, the Court
HELD: 1. The first issue raised is whether the promotees recruited in the year 2008/2009 are entitled to seniority prior to their selection on the ground that no suitability test was required prior to 9 th January, 2007 and retrospective effect to such requirement was illegal. The view taken by the High Court is correct that suitability test was required in terms of judgment of this Court in All India Judges’ case and under the amended Rules applicable retrospectively. Thus, the promotees could not be given promotion without suitability test nor could they claim seniority without the same. They have been rightly given seniority from their appointments. [Para 29] [1111-B-D]
2. With regard to the Quota-Rota rule, there is no doubt that this is a mandatory requirement of the Rules. The said requirement has however to be seen in the peculiar fact situation. The issue of determination of vacancies was embroiled in continuous litigation. The Quota-Rota rule could not be applied in the absence of determination of vacancies. The suitability test though validly laid down could not be held till 2008. No promotion could be given in absence of suitability test. The rule provided for seniority of the promotees to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees. Thus, the Rules will have to be given pragmatic interpretation. If it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to be given a practical interpretation. Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained. [Para 30] [1111-D-H] All India Judges Association v. Union of India (2002) 4 SCC
247 : [2002] 2 SCR 712 – followed.
V.K. Srivastava v. Govt. of U.P. (2008) 9 SCC 77 : [2008] 13 SCR 24; R.K. Sabharwal v. State of Punjab (1995) 2 SCC
745 : [1995] 2 SCR 35; Direct Recruit Class-II Engineering Officers’ Association v. State of Maharashtra (1990) 2 SCC 715: [1990] 2 SCR 900 – relied on.
P. K. Dixit v. State of U.P. (1987) 4 SCC 621 : [1988] 1 SCR 398; O.P.Garg v. State of U.P. (1991) Supp. (2) SCC 51 : [1991] 2 SCR 424; Sri Kant Tripathi v. State of U.P. (2001)
10 SCC 237 : [2001] 2 Suppl. SCR 635; Ashok Pal Singh v. U.P. Judicial Services Association (2010) 12 SCC 635 : [2010]
12 SCR 25; Het Singh Yadav v. State of U.P. Civil Appeal No. 5270 of 2012 decided on 15.9.2016 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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