V.K. SRIVASTAVA & ORS.versusGOVT. OF U.P. & ANR.

                          [2008] 13 S.C.R. 24


A                    V.K. SRIVASTAVA & ORS.
                                   \I.
                      GOVT. OF U.P. & ANR.
               (Writ Petition (Civil) No. 206 of 2007)

                       SEPTEMBER 4, 2008                              r
B
    [K.G. BALAKRISHNAN, CJI, P. SATHASIVAM AND J.M.
                     PANCHAL, JJ]


         Uttar Pradesh Higher Judicial Service Rules, 1953:
c       Appointment to Higher Judicial Service - Selections
  made in 2008 - Rules as amended in 2007* prescribing 50%
  posts to be filled up by Civil Judge (Sr Division) on merit-
  cum-seniority, 25% on basis of limited competitive examina-
  tion amongst eligible Civil Judges (Sr Division) and 25% by
D direct recruitment from eligible members of Bar through com-
  petitive examination - HELD: Recruitments of the year 2008
  have been made complying with the Rules - As regards va-
  cancies prior to 2002, the same were rightly filled up as per
  unamended Rules - So far as remaining vacancies were con-
E cerned, selection lists have been prepared complying with the
  amended Rules - Petitions disposed of accordingly
         *All India Judges' Association & Ors. vs. Union of India &
    Ors. vs. Union of India & Ors. 2002 ( 2 ) SCR 712 =(2002) 4
    sec 247 - referred to.
F                          Case Law Reference
         2002 ( 2 ) SCR 712              referred to       para 3
         CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
    206 of 2007
G        (Under Article 32 of the constitution of India)
                                     WITH
         W.P. (C) NOs. 36 of 2008, 236, 295 of 2007 and I.A. No.
    1/07 In I.A. No. 204/07 in W.P. (C) No. 1022/89
H                                  24
                 V.K. SRIVASTAVA & ORS. v. GOVT. OF                  25
 ~
                             U.P. & ANR.

          Shail Kumar Dwivedi, A.A.G., Dinesh Dwivedi, S.R. Singh,         A
     Ajay Kumar Misra, Kavin Gulati, Avnish Pandey (forT. Mahipal),
     T.N. Singh, V.K. Singh, D.N. Dube, Abhisht Kumar, Rachana,
     Ravi Prakash Mehrotra, Garvesh Kabra, Deepti R. Mehrotra,
-1
     Vijay Pratap Singh, Vandana Mishra, B.P. Singh, Vibha
     Dwivedi, Anil Kumar Jha, Anuradha Dubey Mishra, Vikram and            B
     P. Narasimhan for the appearing parties.
          The Judgment of the Court was delivered by

          WP(C)No.3612008:
           1. Learned senior counsel for the petitioners seeks per-        c
     mission to withdraw the writ petition. Permission sought for is
     granted. The writ petition is dismissed as withdrawn without
     prejudice to the rights of the petitioners to seek other appropri-
     ate remedies with regard to their seniority.
                                                                           D
          W.P.(C)Nos.206/2007, 236/2007, 295/2007 & 1.A.N0.1 in
     I.A. NO. 20412007:
           2. The petitioners in these writ petitions and Interim appli-
     cations are members of the Uttar Pradesh Judicial Service. Writ
     Petition No.236/2007 and l.A.No.1/07 in l.A.No.204/2007 are           E
     filed by the U.P.Judicial Officers Association.

           3. In All India Judges' Association& Ors. Vs. Union of In-
     dia & Ors., (2002) 4 SCC p.247, this Court has directed that
     promotion to the cadre of Higher Judicial Service should be
     streamlined based on the recommendations of Justice Shetty F
     Commission. Prior to the directions given by this Court for fill-
     ing up the vacancies in the cadre of Higher Judicial Service
     there were only two sources i.e. one by promotion from the cadre
     of Civil Judge (Senior Division) i.e. the members of the Subor-
     dinate Judicial Service and the other by direct recruitment as G
     per Article 233 of the Constitution of India from the members of
 ~   the Bar. This Court felt that the members of the subordinate
     judiciary should also be given a fast track promotion and those
     who are more meritorious in service should be given an oppor-
     tunity to compete for the posts of higher judicial services apart H

                                                                               ;~~r;,11._
    26       SUPREME COURT REPORTS                  [2008] 13 S.C.R.     i

A from the ordinary channel of promotion on seniority. To give
  opportunity to the subordinate judicial officers from getting early
  promotion to the Higher Judicial Service, this Court has directed
  that 25% of the vacancies of Higher Judicial Service shall be
  filled up by a competitive examination and the Civil Judge (Se-            r
B nior Division) who are in the feeder category shall be given an
  opportunity to get such promotions. Keeping in view, the follow-
  ing direction was given by this Court:
         "..... At the same time, we are of the opinion that there has
         to be certain minimum standard, objectively adjudged, for
c        officers who are to enter the Higher Judicial Service as
         Additional District Judge and District Judges. While we
         agree with the Shetty Commission that the recruitment to
         the Higher Judicial Service i.e. the District Judge cadre
         from amongst the advocates should be 25 per cent and
D        the process of recruitment is to be by a competitive
         examination, both written and viva voce, we are of the
         opinion that there should be an objective method of testing
         the suitability of the subordinate judicial officers for
         promotion to the Higher Judicial Service. Furthermore,
E        there should also be an incentive amongst the relatively
         junior and other officers to improve and to compete with
         each other so as to excel and get quicker promotion. In
         this way, we expect that the calibre of the members of the
         Higher Judicial Service will further improve. In order to
F        achieve this, while the ratio of 75 per cent appointment by
         promotion and 25 per cent by direct recruitment to the
         Higher Judicial Service is maintained, we are, however,
         of the opinion that there should be two methods as far as
         appointment by promotion is concerned : 50 per cent of
         the total posts in the Higher Judicial Service must be filled
G
         by promotion on the basis of principle of merit-curn-
         seniority. For this purpose, the High Courts should devise
         and evolve a test in order to ascertain and examine the
          legal knowledge of those candidates and to assess their
         continued efficiency with adequate knowledge of case-
H
                    V.K SRIVASTAVA & ORS. v. GOVT OF                   27
                               U.P. & ANR.

             law. The remaining 25 per cent of the posts in the service      A
             shall be filled by promotion strictly on the basis of merit
             through the limited departmental competitive examination
             for which the qualifying service as a Civil Judge (Senior
- '!
             Division) should be not less than five years. The High
             Courts will have to frame a rule in this regard.                B
             As a result of the aforesaid, to recapitulate, we direct that
             recruitment to the Higher Judicial Service i.e. the cadre of
             District Judges will be :
             1(a)50 per cent by promotion from amongst the Civil             c
             Judges (Senior Division) on the basis of principle of merit-
             cum-seniority and passing a suitability test;
             (b) 25 per cent by promotion strictly on the basis of merit
             through limited competitive examination of Civil Judges
 -f          (Senior Division) having not less than five years' qualifying   [)
             service; and
             (c) 25 per cent of the posts shall be filled by direct
             recruitment fro111 amongst the eligible advocates on the
             basis of the written and viva voce test conducted by
             respective High Courts;                                         E
             (2) Appropriate rules shall be framed as above by the
             High Court as early as possible,"

--"           4. This Court has stated that the quota for promotion to
        the Higher Judicial Service Is 50 per cent from amongst the          F
        Civil Judges (Senior Division) on the basis of principle of merit"
        cum-seniority and 25 per cent strictly on the basis of merit
        through limited competitive examination anq 25 per cent by di-
        rect recruitment
                                                                             G
              5. Subsequent to this decision, the Government of Uttar
  ,.,   Pradesh, in consultation with the High Court, has amended the
        U.P.Higher Judicial Service Rules on 9th January, 2007. Prior
        to the amended rules, for filling up _the vacancies of Higher Ju-
        dicial Service there were only two sources i.e. 85 per cent of
                                                                             H
    28       SUPREME COURT REPORTS                  [2008) 13 S.C.R.


A the posts would be filled up by promotion based on the prin-
  ciple of seniority-cum-merit and 15 per cent of the vacancies
  were to be filled up by direct recruitment from the members of
  the Bar. After the judgment of this Court in All India Judges' As-
  sociation Case (supra}, rules were framed to make it in accor-         r
B dance with the directions given by this Court. Thus, there were
  three sources of recruitment i.e. (i)50 per cent of the vacancies
  are to be filled up by promotion from Civil Judges (Senior Divi-
  sion) on the basis of principle of merit-cum-seniority and pass-
  ing a suitability test;(ii) 25 per cent by promotion strictly on the
c basis of merit through a limited competitive examination of Civil
  Judges (Senior Division) having not less than five years quali-
  fying service; and (iii) by direct recruitment from amongst the
  advocates of not less than seven years experience. Though
  these rules were notified on 9th January, 2007 it was specifi-
D cally stated that the amended rules would come into effect from
  21.3.2002. It may be noted that the judgment of this Court in All
   India Judges' Case (supra) was pronounced on 21.3.2002.
         6. The grievance of these petitioners is that these rules
  which have been published on 9th January, 2007 should not have
E been given retrospective effect and since retrospective effect
  had been given to these rules, it has seriously prejudiced the
  rights of the petitioners. According to these petitioners, the va-
  cancies of DistrictJudges which had arisen prior to 21.3.2002
  should have been filled up on the basis of unamended rules
F and the recruitment which had taken place based on the
  amended rules has affected the vested rights of the petitioners.
  It is argued that had these vacancies been filled up on the basis
  of the unamended rules, at least some of the petitioners would
  have got promotion as of right and not based on the principle of
G merit-cum-seniority which is incorporated in the amended rules.
  It was also argued that prior to the commencement of these
  rules 85 per cent of the vacancies could have been filled up by
  promotion from the cadre of Civil Judges (Senior Division) to
  the post of District Judges whereas as per the amended rules
  only 75 per cent of the Civil Judges (Senior Division) would get
H
                     V.K. SRIVASTAVA & ORS. v. GOVT. OF               29
                                   U.P. & ANR.

          an opportunity to get promotion to the Higher Judicial Service.   A
          It was further argued that when service rules for selection for
          appointment were amended it would always take place pro-
          spectively and retrospective effect shall not be given so as to
          prejudice the vested rights of the candidates.

                7. We do not find much force in the contention advanced B
 1
          by the petitioners especially in view of the information furnished
          by the High Court as regards the recruitment that had taken
          place in the year 2008. Prior to 20.3.2002, there were 22 posts
          of District Judges that could be filled up and out of these 22
          posts of District Judges if the 85 per cent was taken as per the  c
          then existing rules, 19 posts had to be filled up by promotion
          from the cadre of Civil Judges (Senior Division) and three posts
          had to be filled up by recruitment from the Bar. Also there were
          328 vacancies to be filled up and we are told that the selection
          process had already been over and the High Court has recom- D
          mended for appointment of 245 candidates. The break-up of
          the candidates as per the selection, which is mentioned by the
          High Court is as follows :

                170 candidates had to be given promotion based on the
          principle of "merit-cum-seniority" from the Civil Judges (Senior E
          Division) to fill up 50 per cent of vacancies and all the 170 va-
          cancies had been proposed to be filled up and for the 25 per
          cent of promotion of Civil Judges (Senior Division) based on
          merit none was found suitable and these 76 posts also were
          added to the 50 per cent and _the total number of 245 candi- F
.....     dates in the cadre of Civil Judges (Senior Division) had been
          now proposed to be promoted to the cadre of District Judges
          and 82 direct recruits of District Judges have been selected
          from the bar and that also is proposed to be appointed and a
          total of 286 candidates have been included in the list of candi- G
          dates who are to be promoted.
                8. Learned senior counsel appearing for the petitioners
  .,..,
          had also contended that prior to the amendment of these rules,
          the promotion to the cadre of District Judges was based on the
                                                                            H
    30       SUPREME COURT REPORTS                 [2008] 13 S.C.R.


A principle of "seniority-cum-merit" and now as per the amended
  rules, pursuant to the directions of this Court, the principle has
  now been changed to "merit-cum-seniority" and this has seri-
  ously affected the rights of the members of the Civil Judges
  (Senior Division). However, learned senior counsel appearing
B for the State of Uttar Pradesh has contended that in the pro-
  cess of promotion, merit alone was not being given importance.
  Even if the principle of merit-cum-seniority has to be applied
  the principle is that if the candidates are eligible for promotion
  to the cadre of District Judges the seniority in the feeder cat-
C egory has to be maintained as regards 50 per cent of the pro-
  motions are concerned. Of course, in the case of 25 per cent
  promotions, the test must be rigorous as held by this Court and
  the promotion under the 25 per cent category of Civil Judges
  (Senior Division) to the category of District Judges be strictly
D on merit and that too subject to the rigorous selection and such
  candidate may supersede some of their colleagues in the feeder
  category i.e. Civil Judges (Senior Division). Going by the infor-
  mation submitted by the High Court regarding the 2008 selec-
  tion, we are satisfied that the rules have been complied with. Of
  course, as regards other objections, if any, we are not express-
E ing anything on merits as the recommendation itself is not un-
  der challenge before us. Resultantly, we do not find any merit in
  these writ petitions and the applications and the same are dis-
  posed of accordingly.
F R.P.                              Writ Petitions and Interlocutory
                                         Applications disposed of.