Supreme Court of India
RAJASTHAN JUDICIAL SERVICE OFFICERS ASSN.versusSTATE OF RAJASTHAN AND ANR.
- Citation
- 2009 INSC 889
- Decided
- 7 July 2009
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
The notification is illegal and is quashed because the strength of the RHJS cannot be varied without a specific order under Rule 6(2), and no substantive vacancy existed.
Summary
The Rajasthan Judicial Service Officers Association challenged a 2003 notification that advertised 19 posts for direct recruitment to the Rajasthan Higher Judicial Service (RHJS), arguing that the cadre strength of RHJS is fixed at 150 and that, under the 25% quota for direct recruitment, no substantive vacancies existed because 41 direct recruits were already serving. The Supreme Court held that, as established in the Veena Verma case, the strength of the service can be varied only by a specific order under Rule 6(2) of the Rajasthan Higher Judicial Service Rules, and mere creation of posts does not alter the strength. Since no such order had been issued, the existing strength remained 150, leaving no vacancy for the advertised posts. Consequently, the notification was declared illegal and quashed, though the Court noted that the State could amend Schedule‑I of the Rules in consultation with the High Court to vary the strength. The main writ petition was allowed, and a related petition was dismissed as infructuous.
Issues considered
- The validity of the 2003 notification for direct recruitment to RHJS in view of the existing cadre strength and the requirement of Rule 6(2) for varying that strength.
- Whether there were any substantive vacancies for direct recruitment under the 25% quota.
- Whether the notification violated the precedent set in Veena Verma and the stay order in SLP No. 9346 of 1999.
Legislation cited
- Constitution of Indias. Article 32
- Rajasthan Higher Judicial Service Rules, 1969s. Rule 6(2), s. Rule 9, s. Schedule‑I
Subjects
service lawjudicial recruitmentcadre strengthRule 6(2)direct recruitmentvacancyRajasthan Higher Judicial ServiceArticle 32constitutional writ
Judgment
[2009] 10 S.C.R. 814
,.
•
A RAJASTHAN JUDICIAL SERVICE OFFICERS ASSN.
v.
STATE OF RAJASTHAN AND ANR.
(Writ Petition (c) No. 576 of 2003)
-
JULY 7, 2009
B
[RV. RAVEENDRAN AND MARKANDEY KATJU, JJ.]
Service Law:
c Rajasthan Higher Judicial Service Rules, 1969 - r.6(2);
Schedule-/ - Direct recruitment to Rajasthan Higher Judicial
Service (RHJS) - Notification issued whereby 19 posts were
advertised - Challenge to - Held : Strength of service is as
mentioned in Schedule-I - For varying the strength, there has
to be a specific order under r. 6(2) - Until and unless
D
Schedule-I is amended in accordance with r. 6(2), strength of
service cannot be varied - No such order was passed under
r. 6(2) - Under the existing rule, strength of service of RHJS
was 150 and since 41 direct recruits were already working,
there was no substantive vacancy - Impugned notification is
E therefore not legal and is quashed - However, it is open to
the State Government in consultation with High Court to
amend Schedule-I in accordance with r. 6(2) and thereby vary
the strength of the service - Judicial Service.
F By Notification No. Estt.(RJS)/118/2003 dated
20.10.2003, 19 posts for direct recruitment to Rajasthan
Higher Judicial Service (RHJS) were advertised. The
notification was challenged before this Court by an
association of judicial officers functioning in the State of
G Rajasthan, who alleged that their chances of promotion
t
got reduced by the said notification. According to them,
the total cadre strength of RHJS was 150 and since 25%
posts were to be filled in by direct recruitment, there were
no vacant post available for direct recruits as 25% of 150
H 814
RAJASTHAN JUDICIAL SERVICE OFFICERS ASSN. 815
_, v. STATE OF RAJASTHAN
is 37, while 41 direct recruits were already working in A
~
RHJS .
....,..,
Allowing the main writ petition and dismissing the
connected writ petition as having become infructuous,
the Court.
B
HELD : 1.1. The impugned notification itself
mentioned that it was being made subject to the decision
+ in Veena Verma's case. In Veena Verma's case it was held
by this Court that the strength of the servi~e is as
mentioned in Schedule-I of the Rajasthan Higher Judicial c
.. Service Rules, and for varying the strength there has to
be a specific order under sub-rule (2) of Rule 6. Mere
creation of posts without a specific order under Rule 6(2)
only creates ex cadre posts, but does \not amount to
varying the strength of the service. The decision in Veena D
Verma will apply to this case also. Until and unless
-I
Schedule-I of the Rule is amended in accordance with
Rule 6(2), the strength of the service cannot be varied, as
held in Veena Verma's case. But in the present case, no
order was passed under Rule 6(2). [Paras 3 and 12] (817- E
C-E; 819-G-H; 820-A]
1.2. In view of the decision in Veena Verma's case it
has to be held that under the existing rule the strength
of the service of RHJS is 150 and since there are 41 direct
recruits already working there is no substantive vacancy. F
Hence the impugned notification is illegal and is therefore
quashed. However, it is open to the State Government in
consultation with the High Court to amend Schedule-I to
the Rules in accordance with Rule 6(2) and thereby vary
the strength of the service. [Paras 14 and 15) (820-C-D; G
820-E
1
The High Court of Judicature for Rajasthan v. Veena
Verma and another [C.A. No.5699 of 2000; decided by
Supreme Court on 7th July, 2009), relied on. H
816 SUPREME COURT REPORTS [2009] 10 S.C.R.
A All India Judges' Association & Ors. vs. Union of India &
Ors. 2002 (4) SCC 247 and Maha.rashtra State Judges
Association & Ors. vs. The Registrar General, High Court,
High Court of Judicature at Bombay & Anr. 2008 (15) SCALE
320, referred to.
B
Case Law Reference:
2002 (4) sec 247 referred to Para 5
+
2008 (15) SCALE 320 referred to Para 5
C CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
576 of 2003.
Under Article 32 of the Constitution of India.
-
WITH
D
W.P.(c) No. 275 of 2007.
M.R. Calla, Rakesh Dwivedi, M.N. Rao, P.S. Patwalia,
Manish Singhvi, AAG, Sushil Kumar Jain, Puneet Jain, Archana
E Tiwari, Milind Kumar, Anant Prakash, Ankit Dalela, Shantanu
Krishna, Rahul Dua, Mukti Chaudhary, Preetika Dwivedi,
Annam D.N. Rao, Neelam Jain, Amit Pawan, S.K.
Bhattacharya, Ajay Choudhary, Sandhya Goswami, Shobha,
Aruneshwar Gupta, Surya Kant and Sunil Kumar Jain for the
F appearing parties.
The Judgment of the Court was delivered by
MARKANDEY KATJU, J. 1. This writ petition under Article
32 of the Constitution of India is filed challenging the
G Notification No. Estt. (RJS)/118/2003 dated 20.10.2003
wherein 19 posts for direct recruitment to the Rajasthan Higher
Judicial Service (in short 'RHJS') were advertised. Out of these 1
19 posts 11 posts were shown as current vacancies and 8
posts shown as backlog vacancies. A true copy of the
H notification is Annexure P-1 to the writ petition. It was
RAJASTHAN JUDICIAL SERVICE OFFICERS ASSN. 817
v. STATE OF RAJASTHAN [MARKANDEY KATJU, J.]
1 specifically mentioned in the notification that these are subject A
_....,_ to orders of the Supreme Court in four SLPs (subsequently
numbered as CA No. 5699 to 5702/2000) relating to the
decision in the case of Veena Verma.
2. On 19.7.2004 the learned counsel for the respondent-
8
High Court stated that the actual appointments pursuant to the
impugned notification dated 20.10.2003 will not be made
~ unless permitted by this Court. Consequently, it is stated that
no appointments have been made in pursuance of the
impugned notification.
c
3. As noted above, the impugned notification itself
mentioned that it was being made subject to the decision in
Veena Verma's case. We have held in Veena Verma's case
(in CA Nos. 5699, 5700 and 5702/2000 decided today) that
the strength of the service is as mentioned in Schedule-I of the D
Rajasthan Higher Judicial Service Rules, and for varying the
strength there has to be a specific order under sub-rule (2) of
Rule 6. Mere creation of posts without a specific order under
Rule 6(2) in our opinion only creates ex cadre posts, but does
not amount to varying the strength of the service. We have held E
in that decis.ion that the Division Bench of the High Court was
in error in its judgment dated 30.4.1999 in holding that whenever
new posts are created, the strength of the service automatically
increases even though there is no specific order under Rule
6(2)in this connection amending Schedule-I. F
4. In Veena Veima's case (supra) we have also held that
Rule 9 of the Rules only prescribes an upper limit to the quota
for direct recruits in the service, but there is no lower limit, and
it is in the discretion of the authorities to decide what quota
should be given to the direct recruits, provided it is not more G
¥ than the maximum prescribed by Rule !1. Our decision in Veena
Verma will apply to this case also.
5. No doubt this Court in All India Judges' Association &
Ors. vs. Union of India & Ors. 2002(4) SCC 247 (vide para H
818 SUPREME COURT REPORTS [2009] 10 S.C.R.
-
A 28) has observed that 25% of the posts in the Higher Judicial
should be filled by direct recruitment. This has been explained
by a three Judge Bench of this Court in a recent judgment in
Maharashtra State Judges Association & Ors. vs. The
Registrar General, High Court, High Court of Judicature at
"
--
B Bombay & Anr. (2008 (15) SCALE 3?0) In paragraph 14 of
the said judgment it was observed :
................. "Until the recommendation was accepted and •
rules were framed, the integration/caderisation was a
nebulous concept incapable of being claimed or enforced
c as a ng . ht" ....................
The above observation in the decision in Maharashtra State
Judges Association (supra) makes it clear that until the State
Government amends the rules, the recommendations cannot
D give any claim for any right.
6. The petitioner in the present writ petition is an
association of judicial officers functioning in the State of
Rajasthan, and they are aggrieved by the impugned notification
as they allege that their chances of promotion get reduced by
E
the same.
7. It is alleged in para 4 of the writ petition that draft rules
have been framed by the High Court whicg were sent for
approval to the State Government, but pending the finalization
F of these rules, the High Court published the impugned
notification for filling in 19 posts of Additional District &
Sessions Judges by direct recruitment in the RHJS.
8. According to the petitioner the total cadre strength of
RHJS is 150 and there are already 41 direct recruits working
G
in the RHJS. Since the total cadre strength is 150 and since
25% of the posts were directed by the High Court to be filled '1-
in by direct recruitment, there were no vacant post available for
direct recruits since 25% of 150 is 37, while 41 direct recruits
were already working in RHJS. Petitioner also submitted that
H
RAJASTHAN JUDICIAL SERVICE OFFICERS ASSN. 819
v. STATE OF RAJASTHAN [MARKANDEY KATJU, J.]
if 19 vacancies should be treated as 25% of the direct A
recruitment then there must be at least 57 fre::;h appointments
·in RHJS by promotion, but that has not been done.
9. The petitioner made a representation dated 3.7.2003
to the High Court, a true copy ~f which is Annexure P-2 to the .
8
writ petition, and he made another representation dated
29.10.2003 to the Chief Justice of the High Court praying for
withdrawal of the impugned notification. A true copy of the
representation dated 29.10.2003 is Annexure P-3 to the writ
petition. Since the aforesaid. representations failed to evoke . C
any response the petitioner filed the present Writ Petition.
10. Counter and rejoinder affidavits have been filed and
we have perused the same.
11. It has been stated in the counter affidavit of the High 0
Court that the impugned judgment and directions of the
Supreme Court in All India Judges' Association & Ors. vs.
Union of India & Ors. (supra) was to streamline the cadre of
Higher Judicial Service, and accordingly the Chief Justice of
the Rajasthan High Court constituted a committee to examine E
the entire matter. The said committee after considering the
various aspects suggested the cadre strength as 240 in the
proposed new rules. The recommendation of the committee
was considered in the Full Court which approved the said
recommendation and the resolution of the Full Court on
4.4.2003 was forwarded to the State Government for formal F
approval. At present this recommendation is pending before
the State Government ·
12. In our opinion, as held by us in Veena Verma's case
(supra), the cadre strength is only 150 and not 240 because G
the strength of the service is as per Rule 6(2) of the Rajasthan
Higher Judicial Service Rules as mentioned in Schedule-I of
the Rule. Until and unless the Schedule is amended in
accordance with Rule 6(2) the strength of the service cannot
be varied, as held by us in Veena Verma's case (supra). As H
820 SUPREME COURT REPORTS [2009] 10 S.C.R.
A yet, we are told, no order has been passed under Rule 6(2).
13. We have also perused the counter affidavit filed by the
State of Rajasthan and also the rejoinder affidavit filed in the
--
case. It is stated in paragraph 3 of the rejoinder affidavit that
the impugned notification is in violation of the stay order dated
8
28.9.2000 in Special Leave Petition No.9346 of 1999, staying
the operation of the order dated 30.4.1999 in DB (c) Spl. Ap.
410/1998. It is stated in paragraph 6 of the rejoinder affidavit
that there are as on date 220 officers functioning in the cadre
of District Judges and Additional District Judges and as such
C there are no existing vacancies.
14. In our opinion, this writ petition has to be allowed. In
view of our decision in Veena Verma's case (supra) it has to
be held that under the existing rule the strength of the service
D of RHJS is 150 and since there are 41 direct recruits already
working there is no substantive vacancy. Hence the impugned
notification is illegal and deserves to be quashed.
15. The writ petition is allowed and the impugned
E notification is quashed. However, we make it clear that it is
open to the State Government in consultation with the High
Court to amend Schedule-I to the Rules in accordance with Rule
6(2) and thereby vary the strength of the service.
Writ Petition (Civil) 275/2007
F
16.The Petitioner has filed this Writ Petition seeking a
direction to the respondents to complete the selection process
initiated under notification No. Estt. (RJS)/118/2003 dated
20.10.2003.
G . 17. As we have quashed the said notification in WP(c) No.
576/2003, this Writ Petition (WP(C) No. 275/2007) is
dismissed as having become infructuous.
8.8.8. Writ Petitions disposed of.
H
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