Supreme Court of India
P.K. DIXIT AND ORS.versusSTATE OF U.P. & ORS.
- Citation
- 1987 INSC 274
- Decided
- 8 October 1987
- Disposal
- Case Partly allowed
- Bench
- R S PATHAK
Holding
The period of officiation is to be treated as probation and seniority must be counted from the date a permanent vacancy first became available; the High Court cannot arbitrarily assign seniority dates, and posts existing on 10 May 1974 plus thirty‑one temporary posts must be filled by promotion from Nyayika Sewa in accordance with the 1975 Rules.
Summary
The petitioners, senior officers of the Uttar Pradesh State Judicial Service promoted to the Higher Judicial Service before the 1975 Rules, challenged the seniority list prepared by the High Court, alleging that their period of officiation was not treated as probation and that seniority was arbitrarily fixed from dates unrelated to the availability of permanent vacancies. The respondents argued that the High Court had correctly applied the Rules, counting only three years of continuous officiation for seniority as per the proviso to Rule 26. The Supreme Court examined the Uttar Pradesh Higher Judicial Service Rules, 1975, particularly Rules 3, 8, 22, 23 and 26, and held that officiation must be treated as probation and seniority should be reckoned from the earliest date a permanent vacancy arose. It further ruled that the posts existing on 10 May 1974 plus thirty‑one temporary posts must be filled by promotion from the Nyayika Sewa, and that the High Court could not assign seniority dates arbitrarily. Consequently, the Court directed the High Court to re‑examine the seniority of those officers in light of these principles and to prepare a fresh seniority list. The petitions were partly allowed.
Issues considered
- The period of officiation before confirmation should be treated as probation for seniority purposes.
- Whether the High Court may arbitrarily fix seniority dates for promotee officers.
- Interpretation of Uttar Pradesh Higher Judicial Service Rules, 1975, especially Rules 3, 8, 22, 23, 26 and the proviso to Rule 8.
- Whether posts existing on 10 May 1974 plus 31 temporary posts must be filled by promotion from Nyayika Sewa.
- Applicability of the three‑year limit on counting continuous officiation for seniority of promotee officers.
Subjects
seniorityprobationpromotionhigher judicial serviceUttar Pradesh Higher Judicial Service Rules 1975confirmationtemporary vacancypermanent vacancyNyayika Sewajudicial service
Judgment
P.K. DIXIT AND ORS.
A
v.
STATE OF U.P. & OltS.
OCTOBER 8, 1987
B [R.S. PATHAK, CJ! AND G.L. OZA, J.]
Uttar Pradesh Higher Judicial Service Rules, 1975: Rules 3, 8, y
22, 23 and 26-Additional District and Sessions Judge-Seniority-
Determination of-Notification abolishing post of Civil and Sessions
Judge-Effect of-Filling up of post from officers of Nyayika Sewa-
Appointment to the service on occurrence of substantive vacancies-
c Officiating period-Whether to be considered as period of probation-
Confirmation-To be from the earliest date vacancy available and noL.l
from a date fixed arbitrarily-Seniority to be counted on the basis of {
date of confirmation-Promotions made after coming into force of
rules-Principles of seniority applicable to.
D
In May, 1974 the Higher Judicial Service for the State of UP was
constituted, and the post of Civil and Sessions Judge was abolished. The
U.P. State Higher Judicial Service Rules, 1975 came into force with
effect from May IO, 1975.
The petitioners-State Judicial Service Officers-who were pro-
E moted on various dates to the Higher Judicial Service and posted as )-
Additional District Judges/Civil and Sessions Judges before 1974, filed
writ petitions in this Court challenging their inter se seniority, vis-a-vis,
direct recruits contending that, on their confirmation, they were given
seniority from a date chosen by the High Court arbitrarily, instead of
from the date of their continuous officiation, which had resulted in their
-
F being placed much below the officers appointed much later by direct
re~ruitmen~, ~hat the.re was no provision for direct recruitm~nt to the \ _
Higher J udmal Service before the 1975 rules were brought mto force/ ··
and all the existing vacancies on that date were to be filled by only
promotion, and therefore, the High Conrt, while confirming and giving
the dates for the purpose of seniority, ought to have prepared a list of
G vacancies existing on the date the rules came into force and confirmed
all those who were officiating as Additional and District Judges or Civil
and Sessions Judges on that day in all those vacancies. They also con-
tended that >vhile computing the seniority only three years were counted ~
whereas they should have been given advantage of continuous officia-
tion as they were officiating in the posts before the 1975 rules came into
H existence.
398
P.K. DJXIT v. STATE OF U.P. 399
The aforesaid petitions were contested by the High Court con- A
tending that as it became necessary to fill in the temporary posts the
formality of examining record and consideration by a Committee or the
Full Court was not done, and all the petitioners were appointed ouly on
the basis of seniority and not in accordance with the rules and, there-
fore, they could not be treated as appointed on probation from the date
of their officiation and that even if an officer had been continuously B
working for more than three years, still for the purpose of computing
seniority only three years will be counted as per proviso to Rule 26.
Allowing the writ petitions partly,
. HELD: 1.1 The period of officiation has to be considered as
~period of probation and the confirmation has to be from the date on C
· which earliest a vacancy was available and the seniority has to be
counted on that basis. [406A]
1.2 Before the U.P. Higher Judicial Service Rules, 1975 were
brought into force, there was no rule requiring direct recruitment and D
hence all the posts available were to be filled by promotion. In view of
this, and in view of proviso to Rule 8, all the posts (permanent) avail-
able in the Higher Judicial Service plus thirty one temporary posts
existing on that date, which may become permanent later, should be filled
·---\ by promotion from amongst the members of the Nyayika Sewa. Some of
the posts may be occupied by promotees officers who were given promo· E
lions on ad hoc basis and working on these posts or that the posts may
- be lying vacant. Whatever may be the situation the matter will have to
be gone into afresh by the High Court and all the posts in the Higher
Judicial Service available as on May IO, 1974 pins thirty one posts have
to be filled from the officers of the Nyayika Sewa. [403C, 406E-G]
F
-""-\ 1.3 In view of Para 3 of the Rules and the Notification abolishing
the posts of Civil and Sessions Judges, all those officers who were
officiating as Civil and Sessions Judges on 8th May, 1974 automatically
became Additional District and Sessions Judges. What has been contem-
plated in Rule 20 could not be applied retrospectively for promotions
before 1975. What was left was only a. consideration of their cases of G
confirmation. In doing so, the only thing that could be kept in view is
). the date on which a vacancy (permanent) was available for their confir-
mation and the seniority of those officers will have to be reckoned in
accordance with the date of confirmation which will be not the actual
date of confirmation but a date when a post was available, and in so
doing, it will not also be reasonable to fix any date, as has been done by H
/
400 SUPREME COURT REPORTS (1988] 1 S.C.R.
the High Court arbitrarily on the assumption that actually when they
A
were promoted they were not promoted after following the procedure.
The only thing that can be considered will he that if at the time of
confirmation an officer was not found fit naturally he must have been
reverted, and the question of Ills seniority in the Higher Judicial
Service, therefore, will not arise. l4.07G-H, 4088-E]
B
So far as the posts available on 10th May, 1974 is c1,1ncerned, the
High Court will have to look into the matter afresh and decide the
seniority. But after the rules came into force, the Rules will have to be
given effect to. [408H, 409Al
2.1 In Rule 22 the phrase used is "to make appointment to the
c service on the occurrence of substantive vacancies". The substantive.-_.
vacancy has not been defined in the Rules. But the scheme of the rules \
clearly indicates that there are permanent posts and temporary posts
also which are created to meet contingency and it may in due course be
made permanent. Therefore, when appointment under Rule 22 is con-
D templated in the service of substantive vacancies, it may be both tem-
porary or permanent. But the vacancy must be in the cadre. A person
could only be confirmed when the permanent post is available for him.
It is clear from cl. (3) of Rule 22 that appointment to temporary vacan-
cies shall be made from the Nyayika Sewa and as and when a substan-
tive vacancies arises the procedure for selection should be followed and ~
E the officers who were appointed to fill in the temporary post should be con-
sidered first and appointed on probation if found fit. l410D-F, 4 lOH-4 llA]
2.2 Normally the period of probation shall be two years. In com-
puting this period of probation, an officer who has been continuously
-
officiating immediately prior to his appointment on probation will also
F be taken into account and the period of probation in any event shall not \
exceed three years. Proviso 2 to Rule 26 provides that in the case of)<::...
promotee officers a 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. This is consistent
with the Rule 23 which provides that total period of probation shall not
G ordinarily exceed three years. [412A-B, C-D]
These principles of seniority will apply only to the promotions>- ...
made after the rules came into force. The scheme of the rules is that if a
person is appointed to officiate in the Higher Judicial Service his case
for confirmation will normally be considered within three years and
H either he will be confirmed or reverted and the High Court is expected
P.K. DIXIT v. STATE OF U.P. 401
to examine the case of the promotee officer within three years and A
decide whether the officer deserves to be confirmed or reverted. l412E-F]
By laying down that the period of probation shall not ordinarily
exceed three years and that only three years of continuous officiation
will be counted for purposes of seniority in the case of promotee offi-
cers, the rules contemplate that there will not be an occassion when B
there may be a person officiating for more than three years and his case
has not yet been considered for confirmation. [412G-H]
Ordinarily, if the Rules were brought into force the appointments
to the Higher Judicial Service, either on the basis of direct recruitment
or on the basis of promotion, must have been in accordance with the C
Rules and it is expected that the probation, confirmation and the senio·
rity must have been looked into by the High Court strictly in accord·
ance with the Rules.[413A-Bl
3. About the appointments on the posts available before these D
Rules were brought into force and to fill in temporary posts, the matter
will have to be examined afresh by the High Court and the posts avail·
able on 10th May, 1974 plus thirty one posts will have to be filled in only
by promotees. Thereafter the High Court should examine the cases of
promotion and direct recruitment, after coming into force of these
Rules, and the vacancies available. After considering the cases E
in accordance with these Rules, the High Court will prepare afresh
the seniority list which may be notified so that if any objections are
raised they may be placed for determination in accordance with the
Rules. [413D-F]
O.P. Singla & Anr. etc. v. Union of India & Ors., [1985] 1 SCR F
351, referred to.
ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 11788·
11796 of 1984.
(Under Article 32 of the Constitution of India). G
G.L. Sanghi, P.P. Rao, Raja Ram Aggarwal, Ayyam Perumal
and R. Venkatramani for the Petitioners.
S.N. Kacker,. B.D. Aggarwal, M.K. Ramamurthi, P. Gaur,
Jitendra Sharma for the Respondents. H
402 SUPREME COURT REPORTS [1988) 1 S.C.R.
A Anil Deo Singh, and Mrs. S. Dikshit for the State of U.P. and
Jitendra Sharma for the others.
U.R. Lalit, Suresh Seth, R.D. Upadhyaya and Madan Sharma
for the Intervenor.
B The Judgment of the Court was delivered by
OZA, J. These writ petitions filed by the petitioners challenge
the inter se seniority of the officers in the higner judicial service com-
ing from two sources; i) promoted from the judicial service and
ii) others who are directly recruited from the Bar.
c The petitioners are officers of the State Judicial Service who
have been promoted on various dates to the higher judicial service and
posted as Additional District Judges or some of them were posted as
Civil and Sessions Judges before 1974 as in 1974 the post of Civil and
Sessions Judge has been abolished and the higher judicial service for
D the State of U ttar Pradesh was constituted.
According to the petitioners they were promoted to officiate as
Additional District and Sessions Judges on various dates and they
continue to officiate as such, they were confirmed and on their confir-
mation they have been given the seniority not from the date of their
E continuous officiation but from some other date chosen by the High
Court arbitrarily. And because of which, they have been put in the
seniority list much below those officers appointed by direct recruit-
ment and who were appointed much after the petitioners. According
to the petitioners, they were promoted on various dates shown against
their names and they have also shown the dates on which they were
F confirmed:
S. Pet. name Date of Date ofpro- Date of Date of
No. joining motion & confir- vacancy
PCS (J) continous mation in which
Nyayika officiation confirmed.
Sew a in HJSon
G Addi.
distt. &
Sessions
Judge
1. P.K. Dixit 1.3.61 9.9.73 24.1.81 1.10.78
2. A.N. Gupta 1.3.61 22.9.73 24.1.81 1.10.78
Ii
P.K. DIXIT v. STATE OF U.P. [OZA, J.] 403
3. B.K. Srivastava 1.3.61 29.3.74 24.1.81 30.4.79 A
4. LS. Mathur 1.4.62 24.5:74 l.1.1.81 31.7.79
5. Taj Shanker i'.4.62 16.8.76 24.1.81 1.1.80
6. R.N. Sarkar 17.4.61 16.8.76 29.10.83 1.1.80
I
7. S.P. Agarawal 2.3.63 3.1. 77 29.10.83 1.1.80
B
8. A.K. Srivastava 1.3.63 3.1. 77 29.10.83 1.1.80
In this list they have also shown the date of the vacancy on which
they were proposed to be confirmed.
It is also contended on behalf of the petitioners that in 1975 the
present rules for recruitment of the .iudicial officers in the higher judi- C
cial service came into force. Before these rules were brought into
force, the earlier rules were declared to be bad and in substances there-
fore, before these rules were brought into force, there was no provi-
sion for direct recruitment to the higher judicial service. It is con-
tended that all the vacancies existing on the date on which these rules D
( 1975 Rules) came into force have to be filled in by promotion. And
while confirming and giving the dates for the purposes of seniority, the·
High Court ought to have prepared a list of vacancies existing on the
date on which these rules ( 1975 Rules) came into force and confirm all
those who were officiating as Additional District and Sessions Judges
or Civil and Sessions Judges on this date in all those vacancies. And if E
this was done, these petitioners who were appointed before 1975. could
-
have been confirmed on those vacancies and in that event they could
not have been confirmed in the vacancies occurring in 1978, 1979 &
1980.
It is not disputed that out of these petitioners first four were F
promoted in 1973 and 1974 and on the date on which these rules came
into force, they were already functioning as Civil and Sessions Judges
as the designation of Additional District Judges was not there.
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 G
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 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 H
404 SUPREME COURT REPORTS [1988) 1 S.C.R.
who were entitled to be included in that cadre of higher judicial service
A
under these rules.
The High Court, it was contended has prepared a seniority list
which has been notified and objections have been invited. It was there-
fore directed that list must be produced in this Court and consequen-
B tly, the lists haye been produced. The seniority list or the list which
have been produced alongwith the affidavit filed by Mr. Chaterjee
claiming to be in charge of the litigations of the High Court, unfortu-
nately do not clearly give the picture. The list must show the initial
date on which officers were promoted and were posted in the post of
Civil and Sessions Judge or Additional District and Sessions Judge. It
also does not clearly show the date on which the order of confirmation
c was issued. And it should have been made clear that before this date of
confirmation, on what date a post was available for confirmation of the {
person concerned so that he should get the seniority if not from the '
date on which he was promoted for the first time from the date on
which the post was available for him. It was expected that these facts
o clearly should have been stated in the return filed on behalf of the
High Court.
It is not disputed that on the date on which these rules ( 1975
Rules) were brought into force, all the posts available were to go to the
promoted officers and the only thing that the High Court is expected to
E do is to find out how many posts were available on that date and how
many persons were officiating in the higher judicial service or equiva-
lent 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 officers
F 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 confirma-
tion, or that it was decided to postpone the date of confirmation
because the work of the officer was not upto the mark. The record
produced by the High Court only shows the date from which these
G 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
the learned counsel appearing for the High Court. It, therefore, is not
disputed that these petitioners who were promoted before these rules
H (1975 Rules) were brought into force were never found unfit for con-
P.K. DIXIT v. STATE OF U.P. [OZA, J.] 405
;i firmation and in this view of the matter, therefore, it is clear that all
A
posts available on the date on which these new rules were brought into
force will have to be filled in by these promoted officers who were
working in the officiating capacity in the post of higher judicial service
on the date or. 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 B
.,..... it is clear that the question of direct recruitment and the quota of the
direct recruits vis-a-vis promotees was not in existence.
It was contended on behalf of the High Court that when these
judicial officers were promoted as it became necessary to fill in the
temporary posts the formality of examining their record and consi-
deration by a committee or the full court was not done: but were only c
~· promoted ort the basis of seniority and therefore from the date from
whlcli these officers started officiating as Additional District and Ses-
sions Judges, they could not be treated as appointed on probation. But
it is not the case of the High Court that after such adhoc promotion
whenever the High Court (full court or a committee) examined their D
cases any one of them who may have been found not fit for promotion
normally would be reverted back to his original post and if at any time
these officers were not reverted then imaginary date for probation
could not be given on arbitrary basis as throughout their officiation as
Additional District and Sessions Judges they have been found fit and
~. they were continuing on these posts. It is also not stated when after an E
officer was promoted to fill irl the temporary post, his case was con-
sidered for promotion to a substantive post. At best while confirming
and giving seniority the only thing that could be considered was the
availability oi a permanent post and from the date a permanent post
was available these officers had tq be confirmed giving them seniority
from that date. F
-~
It appears that the stand of the High Court is that as and when a
temporary vacancy was available an officer who was the seniormost
was promoted as. -Civil and Sessions Judge or Additional District and
Sessions Judge but it is not the case of the High Court that afterwards
the case of such promoted officers was considered by a committee or G
by the full court after examining the records and this was done at any
time before their cases came up for consideration for confirmation. It
f only appears that their cases were considered for confirmation and at
that time some date has been given from which they were treated to be
on probation and on that basis the seniority has been counted but as
stated earlier in absence of any one of these officers not having been H
406 SUPREME COURT REPORTS [1988] 1 S.C.R.
A found fit for promotion this stand taken by the High Court can not be
justified. The period of officiation has to be considered as period of
probation and the confirmation has to be from the date on which
earliest a vacancy was available and the seniority has to be counted on
that basis. Unfortunately neither the affidavit filed on behalf on the
High Court nor the list clearly shows the position of these judicial
B officers who were promoted long before these new rules were brought
into force· in 1975 and what has been stated above will have to be done
afresh so far as the officers who were promoted before the new rules
were brought into force in 1975.
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:
c
"Provided further that the permanent vacancies existing on ·1
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
D Nyayika Sewa; and only the remaining vacancies shall be
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 )-
E become permanent later shall be filled by promotion from amongst the
members of the Nyayika 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 Nyayika Sewa. May •
be that some of these posts may be occupied by promotee officers who
were given promotions on ad hoc basis and working on those posts or
p that the posts may be lying vacant. Whatever may be the situation on, _
1 .
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 by the High
Court afresh and fill in all the posts in the Higher Judicial Service
available on May 10, 1974 plus 31 posts from the officers of the
Nyayika Sewa.
G
It 'appears that the date 10th M•y has been mentioned in this
proviso to Rule 8 because by Notification of May 1974 the Higher
Judicial Service was constituted and the posts of Civil and Sessions
Judges were abolished. Paragraph 3 of these Rules notified on 8th May
1975 about the abolition of Civil and Sessions Judges is also signifi-
H cant. Para 3 reads thus:
P.K. DIXIT v. STATE OF U.P. [OZA, J.) 407
"Creation of posts and confirmation: ( 1) Upon the aboli- A
tion of the cadre of Civil and Sessions Judges, permanent
and temporary posts of Additional District and Sessions
Judges equal in number of the permanent and temporary
posts, respectively, of Civil and Sessi•ms Judges existing
immediately before the date of commencement of these
rules, shall stand created with effect from the said date, and B
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 accor-
dingly."
"'
This clearly indicates that those holding the posts either temporarily or
Lpermanently as Civil and Sessions Judges immediately before this date c
r i.e. 8th May 1974 shall become Additional District and Sessions
Judges and were designated accordingly. It is therefore clear that the
officer who was officiating as Civil and Sessions Judge on 8th May 1974
automatically became Additional District and Sessions Judge and
therefore it could not be contended that proper procedure for promo- D
tion was not followed but as and when occasion arose an officer in the
Judicial Service was posted as Civil and Sessions Judge to perform the
functions of that office on the basis of seniority. It was also contended
that when initially an officer in the Judicial Service (Nyayika Sewa)
__. was posted to perform the functions of Civil and Sessions Judge, his
' promotion was not done in accordance with the Rules and what was E
suggested was that no Committee considered their record but on the
basis of seniority it was decided to promote them. This argument ap-
pears to have been based on the Rules of 1975 where for promotion of
the members of the Nyayika Sewa it has been provided that Selection
Committee will examine the record of the eligible Judicial officers and
, then shall prepare a list of those who have been selected for promotion F
j. and as and when a vacancy occurs an officer from this list will be
-\
promoted. Admittedly this what has been contemplated in Rule 20
could not be applied retrospectively for promotions before 1975 when
the Rules were brought into force and it is also not suggested or
brought on record that there was any such system or practice in the
High Court. In fact, nothing has been brought on record to indicate as G
to how an officer was appointed to the post of Civil and Sessions Judge
from the Nyayika Sewa. In this view of the matter also and in view of
-j the Notification abolishing the posts of Civil and Sessions Judges dated
8th May 1974 it is apparent that there is no scope for going back and
those who were working as Civil and Sessions Judges either against
temporary or permanent vacancies either appointed temporarily or H
408 SUPREME COURT REPORTS [1988] 1 S.C.R.
permanently became Additional District and Sessions Judges tempo-
A rary or permanent as the case may be and therefore there is no scope
for examining their cases now to find out as to whether th~y were
promoted in accordance with the procedure prescribed in R'ule 20
which was the rule enacted in 1975. It has therefore to be accepted that
all those who were working as Civil and Sessions Judges on 8th May
B 1974 automatically became Additional District and Sessions Judges
and what was left was only a consideration of their cases of confirma-
tion and in so doing in view of the conclusions 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 Nyayika Sewa by
promotion. In this view of the matter therefore while confirming these
C Judicbial officers "'.ho were working as Civil and Sessions Judges and . ~
who ecame Additional District and Sessions Judges on abolition of \
the cadre of Civil and Sessions Judges automatically the only thing that
could be kept in view is the date on which a vacancy (permanent) was
available for their confirmation and the seniority of these officers will
D have to be reckoned in accordance with the date of confirmation which
will be not the actual date of confirmation but a date when a post was
available and in so doing it will not also be reasonable to fix any date as
has been done by the. High Court arbitrarily on the basis of the
assumption that initially when they were promoted they were not
promoted after following the precedure. The only thing that can be
i:; considered wiJI be that if at the time of confirmation an officer was not
found fit naturally he must have been reverted, and the question of his
seniority in the Higher Judicial Service therefore will not arise. Much
reliance was placed on the decision of this Court in O.P. Sing/a & Anr.
etc. v. Union of India & Ors. [1985] 1 SCR 351. So far as the officers
promoted before the Rules were brought into force, this decision also
f1 does not carry the matter further and as regards the interpretation of
rules, although an attempt was made to contend that the Delhi Rules
and the U.P. Rules are similar but it could not be said that they are
identical and therefore also this decision is not of much help to the case
of the petitioners.
a It could not be disputed that after these Rules which are Uttar
Pradesh Higher Judicial Service Rules, 1975 came into force a ratio
/
has been fixed for the direct recruits and promotees. The petitioners
also did not challenge the ratio nor did they challenge the rules except k"
on the ground that while computing seniority they should be given the
advantage of the continuous officiation. As discussed above so far as
H the posts available on a particular date i.e. 10th May 1974 is concerned
P.K. DIXIT v. STATE OF U.P. [OZA, J.] 409
the High Court will have to look into the matter afresh and decide the A
seniority in the light of what we have discussed but after the rules came
into force it could not be disputed that the rules will have to be given
effect to. These rules have provided the mode of promotion & selec-
tion and have also provided the manner in which the seniority will be
computed.
B
It was contended that the phrase "appointment to the service"
- which has been used in Rule 22 should not be restricted to the substan-
tive vacancies i.e. permanent vacancies only. As it was eontended that
the term the service" in Rule 3 has been defined to mean Uttar
Pradesh Higher Judicial Service and it does not mean only permanent
posts. Rule 22 provides for the manner of appointments from the
direct recruits as well as from the promotees which reads as under: C
"Appointment-(!) Subject to the provisions of sub-rules
(2) and (3), the Governor shall on receipt from the Court of
the lists mentioned in rules 18, 20 and 21 make appoint-
ments to the service on the occurrence of substantive D
vacancies by taking candidates from the lists in the order in
which they stand in the respective lists.
(2) Appointments to the service shall be made on the rota-
tional system, the first vacancy shall be filled from the list
of officers of the Nyayik Sewa, the second vacancy shall be E
filled from the list of direct recruits (and so on), the re-
maining vacancies shall thereafter be filled by promotion
- from the list of the officers of the Nyayik Sewa:
Provided that for so long as suitable officers are avail-
able from the cadre of the Judicial Magistrate appoint- F
ments to the service shall be made in such a way that the
second, fifth and eighth (and so on), vacancies shall be
filled from the list of Judicial Magistrates.
(3) Appointment for temporary vacancies or in officiating
capacity shall be made by the Governor in consultation G
with the Court from amongst the members of the Nyayik
Sewa:
i
-Provided that for so long as suitable officers are
available from the cadre of the Judicial Magistrates,
appointments on temporary vacancies or in officiating H
410 SUPREME COURT REPORTS [1988] I S.C.R.
capacity shall be made in consultation with the Court trom
A
amongst the Judicial Magistrates 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 ments on temporary vacancies or in officiating capacity, are
not available in sufficient number, the Governor in consul-
tation 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 sys-
c tem-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 Judicial Magistrates (and so on).
In Rule 22 the phrase used is "to make appointment to the Service on
D the occurrence of substantive vacancies" and it was contended on the
one side that substantive vacancies does not mean permanent vacan-
cies whereas on the other hand it was contended that it only means
permanent 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 temporary posts. In fact the scheme of the
E Rules clearly indicates that there are permanent posts and temporary
also which are created to meet contingency and it may in due course be
made permanent. It therefore could not be doubted that when ap-
pointment under Rule 22 is contemplated in the service of substantive
vacancies, it may be both temporary or permanent but the vacancy
must be in the cadre. It could not be doubted than a person could only
-
F be confirmed when a permanent post is available for him.
Different procedure is provided for appointment to a temporary
vancancy and to a permanent vacancy. It was contended that if an
officer is promoted to fill in a temporary post it is done without follow-
ing the procedure i.e. selection but there is nothing to iHdicate as to
G how and when such appointments were considered and appointed on
probation in a substantive post. Unfortunately the record produced by
the High Court does not indicate this. What has been done it appears is
that for purpose of seniority a date has been given and this has been
done arbitrarily as there is no reason as to why the seniority should be
counted from the date alone. What appears from the scheme of the
H Rules as provided in clause (3) of Rule 22 is, that appointment to
P.K. DIXIT v. STATE OF U.P. [OZA, J.] 411
temporary vacancies shall be made only from the Nyayik Sewa and as
A
and when a substantive vacancy arises and the procedure for selection
is to be followed, the officers who are appointed to fill in the tempo-
rary posts should be considered first and appointed on probation if
found fit, but it appears that it has not been made clear as to how and
when this was done nor it is clearly stated as to what was the number of
temporary posts created and when those posts became permanent and B
in our opinion the High Court will have to examine the matter in the
light of the scheme of the Rules as discussed above. Probation has
been provided in Rule 23 which reads:
I
"( 1) All persons shall on appointment to the service in
substantive vacancies be placed on probation. The period C
of probation shall, in each case, be two years, provided that
the period for which an officer has been continuously
officiating immediately prior to his appointment may be
taken into account for the purpose of computing the period
of probation.
D
(2) (a) The Court may, in special cases, extend the period
of probation upto a specified date:
Provided that the total period of probation shall not
ordinarily exceed three years.
E
(b) An order sanctioning such extension of probation
shall specify whether or not such extension shall count for
increment in the time-scale.
(3) If it appears to the court at any time during or at the F
end of the period of probation, or extended period of pro-
bation, as the case may be, that a probationer has not made
sufficient use of his opportunities or has otherwise failed to
give satisfaction, it may make recommendation to the
appointing authority whereupon the appointing authority
may revert the probationer to his substantive post, if any, G
or if he does not hold a lien on any post, his services may be
dispensed with.
(4) A person whose services are dispensed with or who is
reverted under sub-rule (3) shall not be entitled to any
compensation." H
412 SUPREME COURT REPORTS [1988] 1 S.C.R.
This clearly shows that normally the period of probation shall be 2 )(
A
years and in computing this period of probation an officer who has
been continuously officiating immediately prior to his appointment on
probation will also be taken into account for the purpose of computing
the period of probation and it has been further provided that period of
probation in any event shall not exceed three years.
B
Much controversy was raised about Rule 26 which provides for
fixing the seniority wherein in the proviso it has been provided: y
"Provided that in the case of a promotee the maximum
period of continuous officiation in the service shall not,.for
the purpose of determining seniority exceed three years
c immediately preceding the date of confirmation." )
It was contended that in the case of promotees even if he has been
-i'
continuously officiating for more than 3 years still for purpose of com-
puling seniority only 3 years will be counted according to this proviso.
D But this appears to be consistent with Rule 23 where it has been
provided that total period of probation shall not ordinarily exceed 3
years. In fact the contention raised on behalf of the petitioners was
that they were officiating in the posts before these rules were brought
into force but still for computing their seniority only 3 years have been
counted but in view of what we have held earlier in respect of posts
f: available before the Rules of 1975 came into force, this question will ~
not be of any consequence. In fact these principles of seniority will
only apply to the promotions made after these rules came into force
i.e. in 1975 and the scheme of the Rules appears to be that if a person
is appointed to officiate in the Higher Judicial Service, his case for
confirmation normally will be considered within 3 years and either he
F will be confirmed or will be reverted and this scheme of these Rules
therefore expect that an officer who has been promoted his case must
be examined by the High Court within three years and decide whether
). ~
the Officer deserves to be confirmed or deserves to be reverted and it
is in this view of the matter it appears that in Rule 23 it has been
provided that period of probation shall not ordinarily exceed 3 years.
G Similarly in Rule 26 while providing the principles of counting senio-
rity it has been specifically provided that in case of promotee officers
continuous officiation even if it is for more than 3 years, only three
years will be counted for purpose of seniority. This itself contemplates .t-
that such an occasion shall not arise when a person may be officiating
for more than 3 years and still his case has not been considered for
H confirmation. In fact not much controversy has been placed before us
P.K. D!X!T v. STATE OF U.P. \OZA, J.] 413
about appointments after the rules came into force. As it is ordinarily A
expected that if these Rules were brought into force the appointments
to the Higher Judicial Service either on the basis of direct recruitment
or on the basis of promotion must have been in accordance with these
rules and it is expected that the probation, confirmation and seniority
must have been looked into by the High Court strictly in accordance
with these rules. It appears that some amount of controversy has been
B
raised as even after these rules were brought into force some officers
continued to be officiating and it appears that while fixing seniority in
the provisional list which has been notified by the High Court, the
proviso to Rule 8 which we have quoted above and the principle that
all posts before these rules were brought into force, will have to be
filled in by the promotees, was not kept in view. Having gone through c
these Rules it appears that the contention advanced by the petitioners
in respect of proviso to Rule 26 about seniority does not appear to be
justified. We therefore feel that from the date these Rules have been
brought into force, the High Court must have given effect to these
Rules. But in view of what we have discussed earlier about the ap-
pointments on the posts available before these Rules were brought D
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 avail-
able on 10th May 1974 plus 31 posts are concerned they will have to be
filled in only by poromotees 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 E
Rules and the vacancies available and after considering the cases in
accordance with these Rules 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 accordance with the Rules
and in the light of the discussions above. We therefore allow the peti-
tion partly and dispose it of as stated above. In the circumstances of F
the case, we direct that parties shall bear their own costs.
N.P.V. Petitions partly allowed.·
i·
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