Holding

All 236 officers serving on 5 April 1975 are deemed existing members and senior to later appointees; the first proviso to Rule 26(1)(a) is struck down and seniority of promotees is to be counted from the date a substantive vacancy (permanent or temporary) becomes available; Rules 22(3) and 22(4) are unconstitutional and struck down, though existing appointments under them remain valid.

Summary

The Supreme Court examined the Uttar Pradesh Higher Judicial Service Rules, 1975 to resolve a dispute between promotee judges and directly recruited judges over seniority and the validity of certain rule provisions. It held that the 236 officers who were serving as Additional District and Sessions Judges on 5 April 1975 are deemed existing members of the service and rank senior to all later appointees. The Court struck down the first proviso to Rule 26(1)(a), directing that a promotee’s seniority be counted from the date a substantive vacancy (permanent or temporary) in his quota becomes available, not merely three years before confirmation. It also declared Rules 22(3) and 22(4) discriminatory and unconstitutional, though existing appointments under them were left untouched. Consequently, the seniority list issued by the High Court was quashed and the High Court was ordered to prepare a fresh list in accordance with these findings.

Issues considered

The applicability of the second proviso to Rule 8(2) of the 1975 Rules to the Additional District and Sessions Judges holding posts on 5 April 1975.
How seniority of promotee officers should be determined under the 1975 Rules – whether based on continuous officiation from the date a substantive vacancy becomes available or limited to three years preceding confirmation.
The constitutionality of Rules 22(3) and 22(4) of the 1975 Rules which restrict appointments to temporary posts to promotees and judicial magistrates, in view of Articles 14 and 16 of the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 233, s. Article 309, s. Article 32

Subjects

senioritypromotiondirect recruitmentUttar Pradesh Higher Judicial Serviceservice rulesdiscriminationArticles 14 and 16temporary postsquotaconstitutional lawservice law

Judgment

A
O.P. GARG AND ORS. ETC. ETC.
V.
STATE OF U.P. AND ORS.

APRIL 23, 1991
1
B [M.H. KANIA, KULDIP SINGH AND P.B. SAWANT, JJ.]

Uttar Pradesh Higher Judicial Service Rules 1975: Rules 5, 6, 8,
18, 22, 26-Promotees and direct recruits-Fixation of seniority-
Validity of rules-Considered.

c Uttar The appellants as well as the respondents are members of the
Pradesh Higher Judicial Service; while the appellants are the
promotees, the respondents have been appointed direct to that service.
This is their second ronnd of litigation in this Conrt concerning their
inter se seniority in the service.

D The Higher Jndicial Service was initially governed by statutory
rules called the Uttar Pradesh Higher Judicial Service Rules, 1953.
Recruitment to the service under the said rules was from sources, by
promotion and by direct recruitment. This Court in Chandra Mohan v.
State of Uttar Pradesh, [1967] 1 S.C.R. 77 struck down the 1953 Rules
in so far as the said Rules provided for direct recruitment to the service.
E As a consequence, there was no direct recruitment to the Service till
1975-76, and the service consisted of only promotees with the designa-
tion of Civil and Sessions Judges.

On May 8, 1974 the Uttar Pradesh Higher Judicial Service (Aboli-
tion of Cadre of the Civil and Sessions Judges) Rules, 1974 came into
F force. Under Rules 2 and 3 of the 1974 Rules, the existing cadre of Civil
and Sessions Judges stood abolished and a new cadre of Additional
District and Sessions Judges came into existence, the Civil and Sessions
Judges holding permanent or temporary posts in the Service were
re-designated as Additional District and Sessions Judges with effect
from the date when the 1974 Rules came into force. On that date, 271
G officers were working as Additional District and Sessions Judges
against 235 posts (153 permanent and 82 temporary) in the service.

The Service was reconstituted and given a fresh look by the rules
framed under Article 309 read with Article 233 of the Constitution of
India, called the Uttar Pradesh Higher Judicial Service Rules, 1975
H which came into force on April 5, 1975. On that date 263 officers were

424
O.P. GARG v. STATE OF U.P. 425

working as Additional District and Sessions Judges, against 236 posts in
A
the service.

~ Recruitment to the service under the 1975 Rules is from three
sources and is based on quota as provided therein. The three sources of
recruitment are (i) direct recruitment from the Bar, (ii) Uttar Pradesh
Nyayik Sewa, and (iii) Uttar Pradesh Judicial Service (Judicial B
Magistrates).

In the first round of litigation P. K. Dixit and other promotee
officers flled two writ petitions under Article 32 of the Constitution
challenging the seniority assigned to them under the 1975 Rules. This
Court by its judgment dated October 8, 1987 in P. K. Dix it v. State of
U.P., [1988] 1 S.C.R. 398 partly allowed the writ petitions and directed C
the High Court to frame the seniority list afresh keeping in view the
observations made in that judgment.

In pursuance to the directions of this Court in Dixit case a five-
Judge committee of the High Court finalised the seniority list on August D
25, 1988. The High Court accepted the contention of direct recruits and
gave 153 permanent posts existing on May 10, 1974 plus 31 posts, which
became permanent subsequently, to the promotees. Consequently, out
of the 263 Additional District and Sessions Judges who were holding the
. posts on April 5, 1975 only 184 (153 + 31) were taken to be the existing
members of the Service and the remaining officers were asked to enter E
the service tbrongh the promotion quota under the 1975 rules.

1 In the second round, the promotees have filed writ petition chal-
leng_ing the final seniority list. P. K. Dixit and others, petitioners in the
original Dixit-case have filed Civil Miscellaneous Petition seeking clarifi-
cation of the said judgment. The direct recruits have filed writ petition F
under Article 32 impugning the final seniority list issued by the High
Court.

Before this Court, the promotees, the direct recruits as well as the
High Court have sought support from Dixit-case on the basis of their
own interpretation of that judgment. The promotees claim that on April G
5, 1975 when the 1975 rules came into force all the 236 posts in the
Serivce had already been consumed by the existing members of the service
who were working as Additional District and Sessions Judges; till that
date the recruitment to the. service was only by way of promotion and as
such there was no question of allocating any post to the direct recruits who
had not yet been born in the service. H
426 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A On the other hand, the direct recruits contend that this court
interpreting the second proviso to Rule 8(2) of the 1975 rules in Dixit-
case had held that the promotees as on May 10, 1974 are entitled to-all
the permanent posts available on that date plus 31 temporary posts, and f
apart from that they cannot lay claim exclusively to the posts created
B thereafter. In this connection it was contended that temporary posts
could not form part of the cadre of the Service, and service rendered in
or against a temporary post was outside the pale of the 1975 rules and
could not be counted for seniority and as such the continuous officiation
immediately prior to the date of confirmation provided in the rirst
proviso to rule 26(l)(a) of the 1975 rules could only be the officiation
against a permanent post.
c
Allowing the Writ Petition and the Civil Miscellaneous Petition,
quashing the seniority list and directing the High Court to prepare fresh
seniority list, this Court,

D HELD: (1) The interpretation given by the High Court to the
second proviso to rule 8(2) of the 1975 Rules is not correct. The proviso
was not applicable to the-Service as reconstituted under the 1974 Rules
consisting of Additional District and Sessions Judges. Proviso 2 was
enacted to meet a particular situation. The proviso was meant to deal
with a situation which might have arisen in the event there had been
more posts and less number of officers to occupy the said posts on the
E reconstitution of the Service under the 1974 Rules. But siDce the
number of officers working in the service as on May 10, 1974 and April
5, 1975 was much more than the posts available in the service the situation
envisaged by the proviso did not arise. The second proviso to rule 8(2)
of the 1975 rules could not operate and since it was intended to meet
F one-time eventuality it has become redundant. [440D-441C]

(2) The Service as constituted under the 1974 Rules continued to
operate till April 5, 1975 when the 1975 rules were enforced. On April
5, 1975 the Service comprised of 236 posts (229 permanent plus 7
temporary). There were 263 officers working In the service on that date.
The 236 posts comprising the service on April 5, 1975 have to he
G assigned and given to the 236 officers out of 263 who were working as
Additional District and Sessions Judges and they are to be treated as
existing members of the service as on April 5, 1975. It is further
axiomatic that the 236 officers including those holding temporary posts
would en bloc rank senior to all those who were appointed to the
H service after April 5, 1975, under the 1975 rules. [439H-440C]
O.P. GARG v. STATE OF U.P. 427

(3) The Additional District and Sessions Judges had not only the
A
right to be appointed to the service but they were so appointed by the
operation of 1974 rules. The second proviso to Rule 8(2) even though
retrospective could not have taken away the vested rights of the officers
who had already become members of the service. This could not be the
intention of the framers of the 1975 rules. [441D]
B
(4) The substantive vacancy bas not been defined under the 1975
rules but there can also be a substantive vacancy in a temporary post
which is part of the cadre. All temporary posts created under rule 4(4)
of the 1975 rules are additions to the permanent strength of the cadre
and as such form part of the cadre. [442FJ

(5) Appointments under rule 22 of the 1975 Rules can be made to c
a permanent post as well as to a temporary post. So long as the tem-
porary post has an independent existence and is a part of the cadre-
strength the appointment against the said post has to be treated as
substantive appointment. [442G)
D
(6) Recruitment to the service under the 1975 rules is from three
sources and is based on quota as provided therein. The cadre consists of
permanent as well as temporary posts. The seniority of the direct '
recruit is to be determined from the date of his joining the service and
that of promotee on the basis of continuous officiation/service from the
date when a Vacancy whether permanent or temporary, becomes avail- E
able in his quota. With these characteristics of the service it is obliga-
tory that there should be equality of opportunity to enter the service for
all the three sources of recruitment. If the reeruitment rule gives
unjustifiable preference to one source of recruitment the seniority rule
is bound to become unworkable. [444E-F]
F
(7) When temporary posts under rule 4(4) of the 1975 rules are
created as addition to the cadre there is no justification in not applying
the quota rule to the temporary posts in the service and confming
appointments· to said posts in the service to the two sources of
promotees. [448E)
G
A.K. Subraman v. Union of India, [1975] 2 S.C.R. 1979 referred
to.

(8) There is no justification whatsoever in having rules 22(3) and
22(4) of the 1975 rules which deprive one of the sources of recruitment
the benefit of appointment to the temporary posts. The rules on the face H
428 SUPREME COURT REPORTS [1991] 2 S.C.R.

A of it are discriminatory. There is no nexus with the object sought to be
achieved by framing these rules. [448G-H]

(9) Rules 22(3) and 22(4) of the 1975 rules are discriminatory and 1
violative of Articles 14 and 16 of the Constitution and are accordingly
B struck down. However, the appointments already made under these
rules 22(3) and 22(4) shall not be invalidated on this ground. Further,
while selecting candidates under rule 18 the Committee shall prepare a
merit list of candidates twice the number of vacancies and the said list
shall remain operative till the next recruitment. Further, the appoint-
ments under rules 22(1) and 22(2) of the Rules shall be made to per-
manent as well as temporary posts from all the three sources in accor-
C dance with the quota provided under the 1975 rules. [449H-450B]

(10) The findings and observations in Dixit-case to the extent
those are contrary to this judgment shall be deemed to have been over-
ruled. [449C J
D
ORIGINAL JURISDICTION: Writ Petition No. 259 of 1990.

(Under Article 32 of the Constitution of India).

Yogeshwar Prasad, R.K. Jain, Satish Chandra, A.S. Pundir,
E Gopal Subramanium, Mrs. S.D. Dikshit, Jitender Sharma, R.
Venkataramani, Mrs. Rachna Gupta, M.P. Shorawala, D.K. Garg,
Pramod Swamp, R.N. Keshwani, Mrs. Anil Katiyar, Anis Ahmed
Khan and A.P. Mohanty for the appearing parties.

The Judgment of the Court was delivered by
F
KULDIP SINGH, J. Before us are the members of Uttar
Pradesh Higher Judicial Service (hereinafter called the 'Service').
Promotees and the direct recruits, as usual, are in the fray. This is their
second round of litigation in this court.· Earlier in P.K. Dixit and
Others v. State of U.P. and Others, [1988] I S.C.R. 398 this court
G directed the preparation of fresh seniority list in accordance with the
observation made therein. The Allahabad High Court thereafter
framed and circulated final seniority list of the service on August 25,
1988. Both promotees and direct recruits are not satisfied with the
same. They have challenged the said seniority list, inter alia on the
ground that it is not in conformity with the directions of this court in
H Dixit's case.
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 429

We may briefly state the necessary facts. The service was initially A
governed by statutory rules called the Uttar Pradesh Higher Judicial
Service Rules, 1953 (hereinafter called '1953 rules'). Recruitment to
the service under the said rules was from two sources, by promotion
and the direct recruitment. In Chandra Mohan v. State of Uttar
Pradesh, [1967] 1 S.C.R. 77 this court struck-down the 1953 rules so
B
far as the said rules provided direct recruitment to the service: As a
consequence there was no direct recruitment to the Service till the year
1975-76. The members of the service promoted under the 1953 rules
were designated as Civil and Sessions Judges.

On May 8, 1974 the Uttar Pradesh Higher Judicial Service (abo-
lition of cadre of the Civil and Sessions Judges) Rules, 1974 (herein- c
after called '1974 rules') came into force. Under these rules the cadre
of Civil and Sessions Judges was abolished. Rules 2 and 3 of 1974 rules,
which are relevant, are reproduced hereafter:

2. Abolition of the Cadre of Civil and Sessions Judges.--
D
With effect from the date of commencement of these rules,
the cadre of Civil and Sessions Judges shall stand abolished
and the Uttar Pradesh Higher Judicial Service shall, with
effect from the said date, consist of the posts of District and
Sessions Judges and Additional District and Sessions
Judges only.
E
3. Creation of posts and confirmation .. (1) Upon the
abolition of the cadre of Civil and Sessions Judges, per-
manent and temporary posts of Additional District and
Sessions Judges eqbal in number of the permanent and
temporary posts, rlospectively of Civil and Sessions Judges
F
existing immediately before the date of commencement of
these rules shall stand created with effect from the said
date, and the officers holding the posts of Civil and
Sessions Judges immediately before the said date shall

-
become Additional District and Sessions Judges and be
designated accordingly.
G
--;.
(2) An officer who is confirmed on the post of Civil and
Sessions Judge before the commencement of these rules
shall with effect from the date of such confirmation, be
deemed to be confirmed on the post of Additional District
and Sessions Judge. H
430 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

It is, thus, obvious that the cadre of Civil and Sessions Judges
A
stood abolished and a new cadre of Additional District and Sessions
Judges, consisting of permanent and temporary posts equal in number
of the permanent and temporary posts respectively of Civil and Ses-
sions Judges, came into existence under the 1974 rules. The Civil and
Sessions Judges holding permanent or temporary posts in the Service
B were re-designated as Additional District and Sessions Judges with
effect from May 8, 1974, the date when the 1974 rules were enforced.
On that date 271 officers were working as Additional District and
Sessions Judges against 235 posts (153 permanent and 82 temporary) in
the Service.

The Service was reconstituted and given a freshlook by the rules
c framed under Article 309 read with Article 233 of the Constitution of
India called the Uttar Pradesh Higher Judicial Service Rules, 1975
(hereinafter called 'the 1975 Rules). These rules came into force with
effect from April 5, 1975. The relevant rules 5, 6, 8 and 26 are repro-
duced hereinafter:
D
5. Sources of recruitment.-- The recruitment to the
Service shall be made-- (a) by direct recruitment of pleaders
and advocate of not less than seven years standing on the
first day of January next following the year in which the
notice inviting applications is published;
E
.(b) by promotion of confirmed members of the Uttar
Pradesh Nyayik Sewa (hereinafter referred to as the
Nyayik Sewa, who have put in not less than seven years
service to be computed on the first day of January next
following the year in which the notice inviting applications
F is published;

Provided that for so long as suitable officers are avail-
able from out of the dying cadre of the Judicial Magist-
rates, confirmed officers who have put in not less than
seven years service to be computed as aforesaid shall be
G eligible for appointment as Additional Sessions Judges in
the Service.

Explanation.-- When a person has been both a pleader and
an advocate his total standing in both the capacities shall be
taken into account in computing the period of seven years
H under clause (a).
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 431

6. Quota.-- Subject to the provisions of Rule 8, the quota A
for various sources of recruitment shall be--

(i) direct recruitment from the Bar 15%.

(ii) Uttar Pradesh Nyayif. Sewa 70% of the vacancies. ·
B
(iii) Uttar Pradesh Judicial Officers 15% Service (Judicial
Magistrates).

8.-- Number of appointments to be made.-- (1) The Court,
shall, from time to time, but not later than three years the
last recruitment, fix the number of officers to be taken at
the recruitment keeping in view the vacancies then existing
c
and likely to occur in the next two years.

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, D
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 considera-
tion while fixing the number of vacancies to be allotted to E
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.
F
Provided further 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 per-
manent 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 G
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 future to
the Judicial Magistrates in addition to their quota of 15 per H
432 SUPREME COURT REPORTS [1991] 2 S.C.R.
•
cent prescribed in rule 6, and thereupon, future recruit-
A ment (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 Magist-
B rates, the allocation of vacancies shall be as follows:

(i) 15% by direct recruitment.

(ii) 30% from out of the Judicial Magistrates.

(iii) 55% from out of the members of the Nyayik Sewa.
c
26. Seniority.-- (I) Except as provided in sub-rule (I),
seniority of members of the service shall be determined as
follows:

D (a) Seniority of the officers promoted from the
Nyayik Sewa vis-a-vis the officers recruited from the
Bar shall be determined from the date of continuous
officiation in the service in the case of promoted offic-
ers and from the date of their joining the service in
the case of direct recruits. Where the date of continu-
E ous officiation in the case of an officer promoted from
the Nyayik Sewa and the date of joining the service in
the case of a direct recruit is the same, the promoted
officer shall be treated as senior;

Provided that in the case of a promoted officer the
f maximum period of continuous officiation in the
service shall not, for the purpose of determining
seniority exceed three years immediately preceding
the date of confirmation ............ .

Statement of facts filed by the High Court shows that on April 5,
G 1975, when the 1975 rules came into force, there were 229 permaner.t _,. ~
and 7 temporary (total 236) posts in the service. This total included 31
temporary posts mention in second proviso to rule 8(2) of 1975 rules.
By that date these posts had become permanent. The statement
further shows that 263 officers were working as Additional District and
Sessions Judges on the said date. We take it that there were 236 posts
H in the Service on the commencement of the 1975 rules.
O.P. GARG v. STATE OF U.P. IKULDIP SINGH, J.] 433

P.K. Dixit and 7 other promotee officers filed two writ petitions
A
under Article 32 of the Constitution of India challenging the seniority
assigned to them on two grounds. It was contended that all the posts,
existing on April 5, 1975 when the 1975 rules came into force, should
be deemed t~ have been filled by the officers holding the designation
of Additional District and Sessions Judges on that date. Secondly, it
was contended that the promotees were entitled to the seniority from B
the date of their actual continuous officiation and not by limiting the
said period to three years preceding the date of confirmation. This
court by its judgment dated October 8, 1987 in Dixit's case (supra)
partly allowed the writ petitions and directed the High Court to frame
the seniority list afresh keeping in view the observations made in the .
judgment.
c
The promotees claim that the judgment in Dixit case is wholly in
their favour on the first point. The direct recruits, however, contest
the said claim and assert that the contention of the promotees was
rejected and their claim was confined to the number of posts as pro-
vided in First Proviso to rule 8(2) of the 1975 Rules. Pursuant to the D
'judgment in Dixit-case the High Court issued a tentative seniority list
on February 11, 1988. The promotees were fully satisfied with the
same as according to them the said list was drawn in conformity with
the judgment in Dixit-case. Objections were invited against the tenta-
tive seniority list and thereafter the High Court constituted a five-
Judge committee to finalise the list. On the basis of the report of the E
committee final seniority list was issued on August 25, 1988. O.P.
Garg and 4 other promotees have filed writ petition No. 259 of 1989
challenging the final seniority list. P.K. Dixit and others, petitioners in
the original Di.xii-case have filed Civil Miscellaneous Petition No. 3473
of 1989 seeking clarification of the said judgment and also supporting
the case of the promotees. The direct recruits have filed writ petition F
No. 1304 of 1988 under Article 32 of the Constitution of India impugn-
ing the final seniority list issued by the High Court. It is interesting that
both the promotees and the direct recruits are relying on the judgment
in Dixit-case and are contending that the final seniority list issued by
the High Court is contrary to the said judgment.
G
The promotees, the direct recruits and the High Court have
sought support from Dixit-case on the basis of their own interpretation
of the judgment. Apparently there are diverse observations in Dixit-
case which are being stretched by the parties in support of their rival
contentions. The promotees strongly rely on the following paragraphs
from Di.xii-case to show that the First Point argued before the Bench H
was decided in their favour.
434 SUPREME COURT REPORTS [1991] 2 S.C.R.

A "In the written affidavit filed by the High Court, it is not
disputed that before these rules were brought into force, all
the posts which were available on the date on which these
rules came into force have to be filled in by promotion as
till that date there was no rule requiring direct recruitment.
But unfortunately, the High Court in their return have not
B mentioned the exact number of vacancies existing on that
date also the number of officers who were officiating on
that date as Civil and Sessions Judges or Additional
District and Sessions Judges who were entitled to be
included in that cadre of higher judicial service under these
rules."
c "It is not disputed that on the date on which these rules
(1915 Rules) were brought into force, all the posts avail-
able were to go to the promoted officers and the only thing
that the High Court is expected to do is to find out how
many posts were available on that date and how many
D persons were officiating in the higher judicial service or
equivalent posts on that date and their seniority ought to be
fixed on the basis of their promotion to the posts except
where an officer was not found fit or where officer
concerned was reverted back to the judicial posts. The
documents do not disclose that any one of these judicial
E officers· who were promotees have been reverted. The
documents also do not disclose that at any time the High
Court considered the question of their confirmation and
any one of them was not found fit for confirmation, or that •
it was decided to postpone the date of confirmation
because the work of the officer was not upto the mark. The
F record produced by the High Court only shows the date
from which these petitioners were promoted and started
officiating as Additional District Judges and the date on
which they were ultimately confirmed. During this period
their case was considered at any time does not appear from
the record produced in this case nor was the contention of
G the learned counsel appearing for the High Court. It,
therefore, is not disputed that these petitioners who were
promoted before these rules (1975 Rules) were brought
into force were never found unfit for confirmation and in
this view of the matter, therefore, it is clear that all posts
available on the date on which these new rules were
brought into force will have to be filled in by these pro-
•

0.P. GARG v. STATE OF U.P. IKULDIP SINGH, J.] 435

rooted officers who were working in the officiating capacity
A
in the post of higher judicial service on the date on which
these rules were brought into force. So far as the situation
before these rules were brought into force is concerned
even during the course of argument not much controversy
appears to exist as it is clear that the question of direct
recruitment and the quota of the direct recruits vis-a-vis B
promotees was not in existence."

Based on the above quoted findings in Dixit-case, the promotees
plausibly claim that on April 5, 1975 when the 1975 rules came into
force all the 236 posts in the Service had already been consumed by the
existing members of the service who were working as Additional
District and Sessions Judges. Till that date the recruitment to the c
service was only by way of promotion and as such there was no ques-
tion of allocating any post to the direct recruits who had not yet born in
the service.
- ,-.
The direct recruits, on the other hand, assert that the Dixit-case D
decides the controversy in their favour. Reliance in that respect is
placed on the following observations in the judgment:

"This also appears to be the intention of the rules when
they were framed in 1975 as is clear from the proviso to •.
Rule 8. It reads: E

"Provided further that 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 F
shared between the three sources under these rules:

It therefore is clear that even these rules provided that all
the posts (permanent) available in the Higher Judicial
Service existing on May 10, 1974 plus 31 temporary posts
--( existing on that date which may become permanent later G
shall be filed by promotion from amongst the members of
the Nyayik Sewa. It is therefore clear that all the posts in
the Higher Judicial Service, lying vacant on May 10, 1974
plus thirty one will have to be filled in from the officers of
the Nyayik Sewa. May be that some of these posts may be
occupied by promotee officers who were given promotions H
436 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

on ad hoc basis and working on those posts or that the posts
A
may be lying vacant. Whatever may be the situation on the
basis of what has been discussed above and also as has been
clearly provided in these rules the matter will have to be
gone into the High Court afresh and fill in all the posts in
the Higher Judicial Service available on May 10, 1974 plus
B 31 posts from the officers of the Nyayik Sewa."

"It has therfore to be accepted that all those who were
working as Civil and Sessions Judges on 8th May, 1974
automatically became Additional District and Sessions
Judges and what was left was only a consideration of their
cases of confirmation and in so doing in view of the conclu-
c sions arrived at by us and also as has been provided in the
proviso to Rule 8 quoted above all the posts available on
10th .May, 1974 plus 31 posts (temporary) on that date will
have to be filled in from the cadre of Nyayik Sewa by
promotion.''
D
"But in view of what we have discussed earlier about the
appointments on the posts available before these Rules
were brought into force and to fill in temporary posts, we
feel that the matter will have to be examined afresh by the
High Court. So far as posts available on 10th May, 1974
E plus 31 posts are concerned they will have to be filled in
only by promotees as we have discussed earlier and also in
view of proviso to Rule 8 and after doing it examine the
cases of promotion and direct recruitment after the coming
into force of these Rules and the vacancies available and
after consideration the cases in according with these Rules
F the High Court will prepare afresh the seniority list which
may be notified so that if any objections are there, they
may be placed for determination in according with the
Rules and in the light of the discussions above."

The precise assertion of the direct recruits, therefore, is that this
G court interpreting the second proviso to Rule 8(2) of the 1975 rules in
Dixist-case has held that the promotees as on May 10, 1974, are
entitled to all the permanent posts available on that date plus 31
temporary posts and apart from that they cannot lay claim exclusively
to the posts created thereafter.

H The High Court accepted the contention of the direct recruits
O.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.) 437

and gave 153 permanent posts existing on May 10, 1974 plus 31 posts,
A
which became permanent subsequently to the promotees. Conse-
quently out of the 263 Additional District and Sessions Judges who
t were holding the posts on April 5, 1975 only 184 ( 153 + 31) were taken
to be the existing members of the Service and the remaining officers
were asked to enter the service through the promotion quota under the
1975 rules. B

The second point in Dixit-case was regarding fixation of seniority
of the promotees under the 1975 rules. Whether whole of the continu-
ous officiation or part of it is to be counted towards seniority was the
moot-point. Rule 26(1)(a) of the 1975 rules provides that seniority of
the direct recruits is to be determined from the date of their joining the
service whereas that of the promotees from the date of continuous c
officiation in the service. But the first proviso to the said rule further
limits the period of continuous officiation of a promotee for determin-
ing seniority to a maximum of three years immediately preceding the
date of confirmation. The promotees contended in Dixit-case that they
were entitled to the counting of their total period of continuous officia- D
tion towards seniority. This court rejected the contention in the
following words:

"Having gone through these Rules it appears that the con-
tention advanced by the petitioners in respect of proviso to
Rule 26 about seniority does not appear to be justified." E
The High Court while framing the impugned seniority list did not
follow the seniority rule. The High Court determined the seniority of
the promotees by giving them benefit of three years continuous officia-
tion immediately preceding the date of availability of permanent
vacancy whereas the rule provides three years preceding the date of F
confirmation.

Mr. Yogeshwar Prasad, learned senior advocate appearing for
tbe promotees. Mr. Satish Chandra, learned senior advocate for the
direct recruits and Mr. Gopal Subramanium, learned advocate appear-
ing for the High Court have addressed elaborate arguments before us. G
The learned counsel have read and re-read the judgme!lt in Dixit-case
in support of their respective contentions. The thrust of Mr. Yogesh-
war Prasad's argument is twofold. He contended that the service con-
sisting of Additional District and Sessions Judges was constituted
under the 1974 Rules which continued till April 5, 1975 when the
Service was reconstituted under the 1975 rules. According to him all H
438 SUPREME COURT REPORTS [1991] 2 S.C.R.

the posts in the service, permanent and temporary, available on April
A
5, 1975 would be deemed to have been filled from amongst the Addi-
tional District and Sessions Judges working on that date. Only the
posts created thereafter could be filled from the three sources under
the 1975 rules. The second contention of Mr. Prasad was that the
benefit of continuous officiation towards seniority cannot be confined
B to three years and the promotees are entitled to the fixation of their
seniority on the basis of continuous length of Service.

Mr. Satish Chandra on the other hand has argued that second
proviso to Rule 8(2) of the 1975 rules which is retrospective in its
application, limits the number of vacancies as on May 10, 1974 to be
filled by promotion from amongst the members of Nyayik Sewa.
c According to him, under the said proviso, all the other posts created
after May 10, 1974 are to be filled from the three sources in accordance
with the 1975 rules. Mr. Satish Chandra further argued that the High
Court acted illegally and in violation of first proviso to Rule 26{1)(a) of
the 1975 rules in determining the seniority of the promotees by giving
D them the benefit of three years officiation immediately preceding the
datl! of availability of permanent vacancy. According to him, such
period under the above proviso can only be preceding the date of
confirmation.

The judgment in Dixit-case, by and large, deals with the main
E points raised by the learned counsel for the parties before us. But in
view of divergent view-point taken by the promotees, the direct
recruits and the High Court on the interpretation of the said judgment, ,.
we are of the view that it is necessary to have a fresh look into the
matter to finally settle the long-drawn controversy between the
parties. The service is a prestigious and sensitive service consisting of
F officers who form the back-bone of Uttar Pradesh Judiciary. The
service is the feeder-cadre for appointment to High Court Judges. It is
necessary to settle their rights in clear and unambiguous terms.

Taking an overall view of t.he arguments advanced by Mr.
Yogeshwar Prasad and Mr. Satish Chandra we pose the following
G three questions for our determination:

1. What is the scope and interpretation of second proviso to rule
8(2) of the 1975 rules? Whether the Additional District and
Sessions Judges, holding the posts on April 5, 1975, can claim
that· by operation of the 1974 rules they stood appointed to the
H service and as such consumed all the posts which were available
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 439

on April 5, 1975 or they were only entitled to vacancies under the A
second proviso to rule 8(2) of the 1975 rules.

2. Whether the period of continuous officiation in case of a
promotee, for determining seniority, is to be counted in terms of
First proviso to rule 26(1)(a) of the 1975 rules or in accordance
with the principle adopted by the High Court. Isn't it the require- B
ment of law that a promotee is entitled to seniority in the service
from the date when vacancy in his quota became available.

3. Seniority and appointment in the service being inter-linked a
further question which necessarily arises for our consideration is
whether rules 22(3) and 22(4) of the 1975 rules, which provide
appointments to temporary posts in the service from two sources
c
of promotees excluding the direct recruits, can be legally
sustained. ·

We may take-up the first point for consideration.
D
After the decision by this court in Chandra Mohan's case
·"' (supra), the Service consisted of only promotees with the designation
of Civil and Sessions Judges. They were promoted from the lower
cadre of U.P. Civil Services (Judicial Branch) called "Nyayik Sewa".
Thereafter under the 1974 rules which came into force on May 8, 1974
the Civil and Sessions Judges, holding permanent or temporary posts, B
were redesignated as Additional District and Sessions Judges. By
operation of the 1974 Rules all the newly designated Additional
District and Sessions Judges became members of the Service. Rule 2 of
the 1974 Rules specifically provided that with effect from the date of
commencement of those Rules "the Uttar Pradesh Higher Judicial
Service shall consist of the posts of District and Sessions Judges and F
Additional District and Sessions Judges". It is thus obvious that the
Service was reconstituted under the 1974 Rules and all the Additional
Distirct and Sessions Judges, to the extent posts were available,
became members of the said service by operation of law. There were
271 officers working in the Service on May 8, i974 and there were 235
posts (153 permanent plus 82 temporary) available in. the service. G
Therefore, 235 officers out of the 271 working on May 8, 1974 for
whom the posts were available in the service would be deemed to be
members of the service under the 1974 rules. The Service as consti-
tuted under the 1974 Rules continued to operate till April 5, 1975
when the 1975 rules were enforced. Till that date the only source of
recruitment to the service was by way,of promotion. On April 5, 1975 H
440 SUPREME COURT REPORTS [1991] 2 S.C.R.

A the service comprised of 236 posts (229 permanent plus 7 temporary).
There were 263 officers working in the service on that date. 235 posts
were already occupied by the officers who had become members of the
service under the 1974 rules and the one additional post available
would go to the 236th officer holding the post on April 5, 1975. The
236 posts comprising the service on April 5, 1975 have to be assigned
B and given to the 236 officers out of 263 who were working as Addi-
tional District and Sessions Judges and they are to be treated as exist-
ing members of the service as on April 5, 1975. It is further axiomatic
that the 236 officers including those holding temporary posts would en
bloc rank senior to all those who were appointed to the service after
April 5, 1975 under the 1975 rules. The view which we have taken is
also in conformity with the observations in Dixit-case relied upon by
c the promotees which we approve.
Coming to the second proviso to rule 8(2) of the 1975 rules relied
upon by the direct recruits, we are of the view that the interpretation
given to the proviso by the High Court is not correct. A bare reading of
D the proviso shows that it was not applicable to the Service as recon-
stituted under the 1974 Rules consisting of Additional District and
Sessions Judges. The proviso states that "all the permanent vacancies
existing on May 10, 1974 plus 31 temporary posts existing on that date
................ , shall be filled by promotion from amongst the
members of the Nyayik Sewa; and only the remaining vacancies shall
E be shared between the three sources under these rules." The Addi-
tional District and Sessions Judges working on May 10, 1974 were not
members of the Nyayik Sewa, they had already become members of
the Service on May 8, 1974 under the 1974 Rules. The proviso talks of
"Nyayik Sewa" and "the three sources under the Rules", which obvi-
ously means it is visualising a situation which was to exist after the
F enforcement of the 1975 rules on April 5, 1975. Rule 8 of the 1975
rules is under the heading "number of appointments to be made" and
various parts of the said Rule deal with different situations for making
appointments from different sources at different times. Proviso 2 was
enacted to meet a particular situation. The proviso talks of "existing
vacancies" on May 10, 1974. On that date the posts held by the Addi-
G tional District and Sessions Judges, who were members of the Service, ;>-
could not be termed as "existing vacancies". The "existing vacancies
on May 10, 1974" could only be those vacancies which were left-over
after providing posts to all the officers who were redesignated as Addi-
tional district and Sessions Judges under the 1974 Rules. The proviso
was meant to deal with a situation which might have arisen in the
H event, there had been more posts and less number of officers to occupy
O.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 441

the said posts on the reconstitution of the Service under the 1974
A
Rules. In that situation the balance-vacancies could be the 'existing
vacancies' falling within the mischief of the proviso. Since prior to
i April 5, 1975 the only source of recruitment to service was by way of
promotion the proviso intended to fill all those posts created before
that date and available on that date as "existing vacancies (surplus
posts), from amongst the members of 'Nyayik Sewa' in the first in- B
stance and thereafter operate the quota from three sources under the
1975 rules. The proviso was meant to carry the surplus vacancies as on
May 10, 1974 to April 5, 1975 for the benefit of the promotees. But
since the number of officers working in the service as on May 10, 1974
and April 5, 1975 was much more than the posts available in the
service the situation envisaged by the proviso did not arise. The second
proviso to rule 8(2) of the 1975 rules could not operate and since it was
c
intended to meet one:time eventuality it has become redundant. The
interpretation placed on the proviso by the direct recruits and the High
Court if accepted would expose the rule to an attack on the grounds of
discrimination and arbitrariness. The Additional District and Sessions
Judges had not only the right to be appointed to the service but they D
were so appointed by the operation of 1974 rules. The proviso, even
though retrospective, could not have taken away the vested rig_hts of
the officers who had already become members of the service. This
could not be the intention of the framers of the 1975 rules. We, there-
fore, reject the contention of Mr. Satish Chandra. Third proviso to
Rule 8(2) which is dependent on second proviso must obviously meet E
the same fate. The net result is that on April 5, 1975 all the 236 officers
working against 236 posts (229 permanent + 7 temporary) as Addi-
tional District and Sessions Judges in the Service, shall be deemed to
be existing members of the Higher Judicial Service as constituted
under the 1975 Rules and they shall en bloc rank senior to all other
officers appointed to the service thereafter from the three sources in F
accordance with their quota under the Rules.

We may now take up the second point as to how the seniority of
the promotees, who have rendered continuous officiating service, be
fixed under the 1975 rules. Mr. Satish Chandra, learned counsel for
the direct recruits has taken us through Rule 3( d) which defines G
"member of the service", 4(3), 13 and 19(2) of the 1953 Rules and has
contended that temporary posts cannot form part of the cadre of the
Service. According to him service rendered in or against a temporary
post is outside the pale of the 1975 rules and cannot be counted for
seniority. He has further relied upon clauses ( 13) al)d ( 19) of rule 9 of
the U .P. Fundamental Rules which define "lien" and "officiate" and H
442 SUPREME COURT REPORTS (1991) 2 S.C.R.

A contended that an officiating appointment can only be made against a
permanent post and as such the continuous officiation immediately
prior to the date of confirmation provided in the first proviso to rule
26(1)(a) of the 1975 rules can only be the officiation against a per-
manent post. It is not necessary for us to go into this question because
the point is not res integra. It is not disputed that the service consists of
B permanent and temporary posts. This Court in Dixit's case after taking
into consideration the scheme of the 1975 rules held as under:

"In Rule 22 the phrase used is "to make appointment to
the Service on the occurrence of substantive vacancies"
and it was contended on the one side that substantive y
vacancies does not mean permanent vacancies whereas on
c the other hand it was contended that it only means per-
manent vacancies. The substantive vacancy has not been
defined in the Rules but proviso to Rule 8 which has been
quoted above speaks of permanent vacancies and tern-
porary posts. In fact the scheme of the Rules clearly indi-
D cates that there are permanent p<;>sts and temporary also
which are created to meet contingency and it may in due
course be made permanent. It therefore could not be 7'
doubted that when appointment under Rule 22 is contemp-
lated in the service of substantive vacancies, it may be both
temporary or permanent but the vacancy must be in the
E cadre.''

We agree with the above findings and accept the position that the
Service consists of permanent as well as temporary posts. The substan-
tive vacancy has not been defined under the 1975 rules but as held by
this Court in Dixit-case there can also be a substantive vacancy in a
F temporary post which is part of the cadre. All temporary posts created J·

under rule 4(4) of the 1975 rules are additions to the permanent
strength of the cadre and as such form part of the cadre. Appointments
under rule 22 of the 1975 rules can be made to a permanent post as well
as to a temporary post. So long as the temporary post has an indepen-
dent existence and is a part of the cadre-strength the appointment
G against the said post has to be treated as substantive appointment. ,..
There is no dispute that the seniority of a direct recruit, appoint-
ment to the post in service, has to be determined from the date of
continuous officiation in the service. The question for our deterrnina-
tion is whether the seniority of a promoted officer is to be counted
H from the date of' countinuous officiation giving him benefit of full
O.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 443

period of officiation as claimed by Mr. Yogeshwar Prasad or only for a
maximum period of three years preceding the date of confirmation as A
provided by first proviso to Rule 26(1)(a) as argued by Mr. Satish
Chandra. The High Court has not followed either of the methods and
has determined the seniority by giving benefit to a promotee of three
years officiation preceding the date of availability of a permanent post.
B
We have given our thoughtful consideration to the arguments of
the parties. This Court has time and again held that when an incum-
bent is appointed to a post in accordance with the Service Rules his
seniority has to be counted on the basis of continuous length of service
and not in reference to the date of confirmation. Even in the present
case the promotees have been confirmed long after the availability of C
permanent vacancies. This Court in S.B. Patwardhan & Others etc. etc.
v. State of Maharashtra & Others, [1977] 3 SCR 775 observed that
"confirmation is one of the inglorious uncertainties of Government
service depending neither on efficiency of the incumbent nor on the
availability of substantive vacancies". A Constitution Bench of this
Court in Direct Recruit Class II Engineering Officers' Association v. D
State of Maharashtra and Others, [1990] 2 SCC 715 approved
Patwardhan's case and laid down the following propositions in this
respect:

(A) Once an incumbent is appointed to a post according
to rule, his seniority has to be counted from the date of E
his appointment and not according to the date of his
confirmation.

The corollary of the above rule is that where the
initial appointment is only ad hoc and not according to
rules and made as a stop-gap arrangement, the officiation F
in such post cannot be taken into account for considering
the seniority.

(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee con-
tinues in the post uninterruptedly till the regularisation of G
his service in accordance with the rules, the period of
officiating service will be counted.

(C) When appointments are made from more than one
source, it is permissible to fix the ratio for recruitment from
the different sources, and if rules are framed in this regard H
444 SUPREME COURT REPORTS [ 1991) 2 S.C.R.

A they must ordinarily be followed strictly."

Keeping in view the scheme of the 1975 rules, we are of the view
that first proviso to rule 26(1)(a) of the 1975 rules which links the t
seniority with the date of confirmation is on the face of it arbitrary and
as such violative of Article 16 of the Constitution of India. Since the
B
recruitment to the service is from three sources the existence of a
vacancy either permanent or temporary is the sine qua non for claim-
ing benefit of continuous length of service towards seniority. The
period of officiation/service which is not against a substantive vacancy
(permanent or temporary) cannot be counted towards seniority. While
striking down first proviso to rule 26(l)(a) of the 1975 rules we hold
c that the continuous officiation/service by a promotee shall be counted
for determining his seniority only from the date when a substantive
vacancy against a permanent or temporary post is made available in his
quota under the 1975 rules.

Finally we take-up the third point.
D
Recruitment to the service under the 1975 rules is from three
sources and is based on quota as provided therein. The cadre consists
of permanent as well as temporary posts. We have already interpreted
the seniority rule to mean that the seniority of the direct recruit is to be
determined from the date of his joining the service and that of pro-
E motee on the basis of continuous officiation/service from the date
when a vacancy whether permanent or temporary, becomes available
in his quota. With these characteristics of the service it is obligatory
that there should be equality of opportunity to enter the service for all
the three sources of recruitment. The seniority in the service is conse-
quential and dependent on appointment. If the recruitment rule gives
F unjustifiable preference to one source of recruitment the seniority rule
is bound to become unworkable. The object of having recruitment
from different sources is to have a blended service to create healthy
competition and in the process achieve efficiency. If one of the sources
of recruitment is dealt with unevenly under the Service Rules the said
objective cannot be fulfilled. The 1975 rules permit appointment to
G temporary vacancies in the service by promotion and from the judicial
service. No direct recruitment to the temporary vacancies is provided
under the said rules. Rule 18 of the 1975 rules provides procedure for
selection of the direct recruits. Rule 20 lays down the procedure for
recruitment by promotion and Rule 22 provides for appointment.
H These Rules are reproduced as under:
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 445

"18. Procedure of selection-( 1) The Selection Committee
A·

. referred to in Rule 16 shall scrutinize the applications
received and may thereafter hold such examination, as it
may consider necessary for judging the suitability of the
candidates. The Committee may call for interview such of
the applicants who in its opinion have qualified for inter-
view after scrutiny and examination. B

(2) In assessing the merits of a candidate the Selec-
tion Committee shall have due regard to his professional
ability, character, personality and health.

(3) The Selection Committee shall make a preli- C
minary selection and submit the record of all candidates to
the Chief Justice and recommend the names of the candi-
dates in order of merit who, in its opinion, are suitable for
appointment to the service.

(4) The Court shall examine the recommendations of D
the Selection Committee and, having regard to the number
of direct recruits to be taken, prepare a list of selected
candidates in order of merit and forward the same to the
Governor.

20. Promotion of members of the Nyayik Sewa. (1) E
Recruitment by promotion of the members of the Nyayik
Sewa shall be made by selection on the basis of seniority-
cum-merit.

(2) The field of eligibility for recruitment by promo-
tion shall be confined to four times the number of vacancies F
to be filled by promotion. The Selection Committee shall
prepare a list in order of seniority of the officers eligible
under Rule S(b) of these rules.

(3) The Selection Committee shall, after examining
the record of the officers included in the list prepared G
under sub-rule (2) of this rule make a preliminary selection
of the officers who in its opinion are fit to be appointed on
the basis of seniority-cum-merit. In assessing the merits of
a candidate, the Selection Committee have due regard to
his service record, ability, character and seniority. The list
shall contain the names of officers twice the number of H
446 SUPREME COURT REPORTS [1991] 2 S.C.R.

vacancies required to be filled by promotion of the
A

.
members of the Nyayik Sewa.

(4) The Selection Committee shall forward the list of
the candidates chosen at the preliminary selection to the
Chief Justice along with the names of the officers who, if
B any, in the opinion of the Committee have been passed
over for promotion to the service.

(5) The Court shall examine the recommendations of
the Selection Committee and make a final selection for

c
promotion and prepare a list in order of seniority of the
candidates who are considered fit for promotion and for-
ward the same to the Governor. The list shall remain
"
operative only till the next recruitment.

22. Appointment.-( 1) Subject to the provisions of sub-
rules (2) and (3), the Governor shall on receipt from the
D Court of the lists mentioned in Rules 18, 20 and 21 make
appointments to the service on the occurrence of substan-
tive vacancies by taking candidates from the lists in the
order in which they stand in the respective list.

(2) Appointments to the service shall be made on the
E rotational system, the first vacancy shall be filled from the
list of officers of the Nyayik Sewa, the second vacancy 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.

F Provided that for so long as suitable officers are avail-
able from the cadre of the Judicial Magistrates, appoint-
ments to the service shall be made in such a way that the
second fifth and eighth (and so on), vacancy shall be filled"
•
from the list of Judicial Magistrates.

G (3) Appointment for temporary vacancies or in
officiating capacity shall be made by the Governor in con-
)
-
sultation with the Court from amongst the members of the
Nyayik Sewa.

Provided that for so long as suitable officers are avail-
H able from the cadre of the Judicial Magistrate appoint-
0.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.) 447

ments on temporary vacancies or in officiating capacity
A
shall be made in consultation with the Court from amongst

• \
the Judicial Magistrate according to the quota fixed for that
source under these rules:

Provided further that for so long as such members of
the Judicial Service as are considered suitable for appoint- B
men ts on temporary vacancies or in officiating capacity, are
I not available in sufficient number, the Governor in consul-
talion with the Court may fill in not more than 50 per cent
"':
of such vacancies from amongst the officers of the cadre of
Judicial Magistrates.

(4) The appointments shall be made on rotational c
system the first vacancy shall be filled from the list of offi-
cers of the Nyayik Sewa, the second vacancy shall be filled
from the list of Judicial Magistrates (and so on).

It is obvious from Rules 22(3) and 22(4) reproduced above that

-
D
appointments to the temporary vacancies are to be made from
amongst the members of the Nyayik Sewa and the Judicial Magis-
trates. Under Rule 20 the Selection Committee has to prepare a merit
list in order of seniority of the officers of Nyayik Sewa twice the
·--\
number of vacancies and the said list remains operative till the next
recruitment. Similarly, a merit list of eligible officers from the Judicial E
Magistrates is prepared. Whenever temporary posts are created,
;ti appointments to the said posts under Rule 22(3) and 22(4) are made
from out of the lists so prepared. Rule 18 on the contrary is silent
about the preparation of a similar merit-list obviously because Rule 22

••
~
...
~
does not permit any appointment l" the temporary posts from amongst
the direct recruits. We see no ju>tification in not applying the quota
rule to the temporary posts in the sevice and confining appointments
F

to said posts to the two sources of promotees. This Court in A.K.
Subraman v. Union of India, [1975] 2 S.C.R. 979 held as under:

"The quota rule will be enforced with reference to vacan-
cies in all posts, whether permanent or temporary included G
in the sanctioned strength of the cadre (except such vacan-
cies as are purely of a fortuitous or adventitious nature)
"

This court in P.S. Mahal v. Union of India, (1984] 3 S.C.R. 847
held as under: H
448 SUPREME COURT REPORTS [1991] 2 S.C.R.

"It is therefore obvious that if a vacancy arises on account
A
of an incumbent going on leave or for training or on depu-
tation for a short period, it would be a fortuitous or
adventitious vacancy and the quota rule would not be I _,.,
attracted in case of such a vacancy. But where a vacancy <F
arises on account of the incumbent going on deputation for
B a reasonably long period and there is no reasonable like-
lihood of the person promoted to fill such vacancy hav-
ing to revert, the vacancy would be subject to the quota
rule."

It is, therefore, apparent that what has to be considered for
the applicability of the quota rule is a vacancy in a post
c included in the sanctioned strength of the cadre ...... "

It is thus clear that the vacancies in the posts of Executive
Engineers arising on account of deputation of Executive
Engineers to other departments, organisations and public
D undertakings for a period of one or more years were long :
term vacancies and they could not be regarded as fortutit-
ous or adventitious "in cfiaracter and hence they were sub-
ject to the quota rule".

When temporary posts under rule 4(4) of the 1975 rules are
E created as addition to the cadre we see no justification to deny the
direct recruits their share of the quota as provided under rule 6 of the
said rules. Rule 5 of the 1975 rules specifically lays down that recruit-
ment to the service shall be made from three sources including the
direct recruits. Rule 6 fixes the quota for various sources of recruit-
ment to the service and allocates 15 per cent of the posts in the service
F to the direct recruits. Rules 5 and 6 read with Rule 22(2) provide for
appointments to the service in accordance with quota. These rules
have to be read homogenously and as a part of the same scheme. The
service having comprised of three sources including the direct recruit-
ment there is no justification to deprive the direct recruits of their
share in the temporary posts in the service. Unless the direct recruits
G are given their due quota in the temporary posts the seniority rule
cannot operate equitably. We see no justification whatsoever in having
rules 22(3) and 22(4) of the 1975 rules which deprive one of the sources
of recruitment the benefit of appointmenno the temporary posts. The
rules on the face of it are discriminatory. There is no nexus with the
object sought to be achieved by framing the abovesaid rules. We,
H therefore, strike down rules 22(3) and 22(4) of the 1975 rules being
O.P. GARG v. STATE OF U.P. [KULDIP SINGH, J.] 449

discriminatory and violative of Articles 14 and 16 of the Constitution
, of India. We, however, direct that the appointments already made A
under these- rules (22(3) and 22(4)) shall not be invalidated on this
ground. We further direct that while selecting candidates under rule 18
the Committee shall prepare a merit list of candidates twice the
number of vacancies and the said list shall remain operative till the
next recruitment. We ftirther direct that the appointments under rules B
22(1) and 22(2) of the Rules shall be made to permanent as well as
t"mporary posts from all the three sources in accordance with the quota
provided under the 1975 rules. ·

Before parting with the judgment we make it cl~ar that the find-
ings and observations in Dixit-case to the extent those are contrary to c
this judgment, shall be deemed to have been over-ruled.

We allow the writ petitions and the Civil Miscelleneous Petition,
quash the final seniority-list dated August 25, 1988 and direct the High
Court to prepare, circulate, invite, objections and finalise the seniority D
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 E
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.)
F
2. We strike-down (first proviso to rule 26(l)(a) of the 1975
rules and direct that the continuous 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 ih his
quota under the 1975 rules.) G

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 H
450 SUPREME COURT REPORTS [1991] 2 S.C.R.

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.)
B
There shall be no order as to costs.

R.S.S. Petition allowed.