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PETITIONER:

O.P. GARG AND ORS. ETC. ETC.

Vs.

RESPONDENT:

STATE OF U.P. AND ORS.

DATE OF JUDGMENT23/04/1991

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

KANIA, M.H.

SAWANT, P.B.

CITATION:

1991 AIR 1202 1991 SCR (2) 424

1991 SCC Supl. (2) 51 JT 1991 (2) 359

1991 SCALE (1)768

ACT:

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.

HEADNOTE:

The appellants as well as the respondents are members

of the Uttar Pradesh Higher Judicial Service; while the

appellants are the promotees, the respondents have been

appointed direct to that service. This is their second

round of litigation in this Court concerning their inter se

seniority in the service.

The Higher Judicial 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 of the

service. As a consequence, there was no direct recruitment

to the service till 1975-76, and the service consisted of

only promotees with the designation of Civil and Sessions

Judges.

On May 8, 1974 the Uttar Pradesh Higher Judicial

Service (abolition of Cadre of the Civil and Sessions

Judges) Rules, 1974 came into 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 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 which came into force on April

5, 1975. On that date 263 officers were

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425

working as Additional District and Sessions Judges, against

236 posts in 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 Magistrates).

In the first round of litigation P.K. Dixit and other

promotee officers filed 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. Dixit v. State of U.P., [1988] 1

S.C.R. 398 partly allowed the writ petitions and directed

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 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 84 (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.

In the second round, the promotees have filed writ

petition challenging the final seniority list. P.K. Dixit

and others, petitioners in the original Dixit-case have

filed Civil Miscellaneous Petition seeking clarification of

the said judgment. The direct recruits have filed writ

petition 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 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

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.

426

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 apart

from that they cannot lay claim exclusively to the posts

created 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 much the continuous officiation

immediately prior to the date of confirmation provided in

the first proviso to rule 26(1)(a) of the 1975 rules could

only be the officiation against a permanent post.

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,

HELD: (1) The interpretation given by the High Court

to the second proviso to rule 8(2) of the 1975 Rules is not

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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 reconstitution of the Service under the

1974 Rules. 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 intended to meet 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 be 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 member of the service as no 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. [439H-440C]

427

(3) The Additional District and Sessions Judges had not

only the 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 farmers of the 1975 rules. [441D]

(4) The substantive vacancy has 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. [442F]

(5) 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 independent existence and

is a part of the cadre strength the appointment. [442G]

(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 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. If the

recruitment rule gives unjustifiable preference to one

source of recruitment the seniority rule is bound to become

unworkable. [444E-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 confining appointments to

said posts in the service to the two sources of promotees.

[448E]

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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

428

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 violative of Articles 14 and 16 of the

Constitution and are accordingly 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 appointments under rules

22(1) and 22(2) of the Rules shall be made to permanent as

well as temporary posts from all the three sources in

accordance 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]

JUDGMENT:

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, Gopal Subramanium, Mrs, S.D. Dikshit, Jitender

Sharma, R. Venkataramani, Mrs. Rachna Gupta, M.P. Shorawala,

D.K. Garg, Pramod Swarup, 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

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] 1 S.C.R. 398 this court 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 of 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 Dixit's case.

429

We may briefly state the necessary facts. The service

was initially 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 far as the said rules provided direct recruitment

of the service. As a consequence there was no direct

recruitment to the Service till the year 1975-76. This

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

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Service (abolition of cadre of the Civil and Sessions

Judges) Rules, 1974 (hereinafter 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. 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.

3. Creation of posts and confirmation .. (1) Upon

the abolition 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 Sessions Judges 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.

(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.

430

It is, thus, obvious that the cadre of Civil and

Sessions Judges 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

Sessions Judges, came into existence under the 1974 rules.

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 May 8, 1974,

the date when the 1974 rules were enforce. 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 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 reproduced

hereinafter:

5. Source of recruitment.-- The recruitment of 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;

(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 is published;

Provided that for so long as suitable officers

are available from out of the dying cadre of the

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Judicial Magistrates, confirmed officers who have

put in not less than seven years service to be

computed as aforesaid shall be 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 under clause

(a).

431

6. Quota.-- Subject to the provisions of Rule 8,

the quota for various sources of recruitment shall

be--

(i) direct recruitment from the Bar 15%

(ii) Uttar Pradesh Nyayik Sewa 70% of the

vacancies.

(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 and likely to

occur in the next two years.

2. If at any selection the number of the selected

direct recruits available for appointment is less

than the number of recruits decided by the Court to

be taken from that source, 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 consideration while fixing the number of

vacancies to be allotted to 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 excess 15 per cent

of the total permanent strength of the service.

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 permanent 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 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

432

cent prescribed in rule 6, and thereupon, future

recruitment (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 been

filled up from out of the Judicial Magistrates, 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

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Sewa.

26. Seniority.-- (1) Except as provided in sub-rule

(1), seniority of members of the service shall be

determined as follows.

(a) Seniority of the officers promoted from

the Nyayik Sewa vis-a-vis the officers

recruited for the Bar shall be determined from

the date of continuous officiation in the

service in the case of promoted officers and

from the date of their joining the service in

the case of direct recruits. Where the date

of continuous 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 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, 1975, when the 1975 rules came into force, there

were 229 permanent 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 it

that there were 236 posts in the Service on the commencement

of the 1975 rules.

433

P.K. Dixit and 7 other promotee officers filed two writ

petitions 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 to

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 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.

The promotes 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 provided in

First Proviso to rule 8(2) of the 1975 Rules. Pursuant to

the 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 tentative

seniority list and thereafter the High Court constituted a

five-Judge committee to finalise the list. On the basis of

the report of the 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

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original Dixit-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 No. 1304 of 1988 under

Article 32 of the Constitution of India impugning the final

seniority list issued by the High Court. It is interesting

that both 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.

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 Dixit-case to show that the First Point

argued before the Bench was decided in their favour.

434

"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 mentioned the exact number of

vacancies existing on that date also the number of

officers who were officiating on the 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."

"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 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

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 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 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 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

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posts available on the date on which these new

rules were brought into force will have to be

filled in by these promoted

435

officers who were working in the officiating

capacity 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 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

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 born in the service.

The direct recruits, on the other hand, assert that

the Dixit-case 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:

"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

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 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

436

on ad hoc basis and working on those posts or that

the posts 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 31 posts from the

officers of the Nyayik Sewa."

"It has therefore 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 conclusions arrived

at by us and also as has been provided in the

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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."

"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 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 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 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.

The High Court accepted the contention of the direct

recruits

437

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 remaining officers were asked to enter

the service through the promotion quota under the 1975

rules.

The second point in Dixit-case was regarding fixation

of seniority of the promotees under the 1975 rules. Whether

whole of the continuous 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 officiation in the service. But the first

proviso to the said rule further limits the period of

continuous officiation of a promotee for determining

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 officiation towards seniority. This

court rejected the contention in the following words:

"Having gone through 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."

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 officiation immediately

preceding the date of availability of permanent vacancy

whereas the rule provides three years preceding the date of

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confirmation.

Mr. Yogeshwar Prasad, learned senior advocate appearing

for the promotees. Mr. Satish Chandra, learned senior

advocate for the direct recruits and Mr. Gopal Subramanium,

learned advocate appearing for the High Court have addressed

elaborate arguments before us. The learned counsel have

read and re-read the judgment in Dixit-case in support of

their respective contentions. The thrust of Mr. Yogeshwar

Prasad's arugment is twofold. He contended that the service

consisting 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

438

the posts in service, permanent and temporary, available on

April 5, 1975 would be deemed to have been filled from

amongst the Additional District and Sessions Judges working

on that date. Only the posts created thereafter could be

filed 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

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 Nyaik Sewa. 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 them the benefit of

three years officiation immediately preceding the date 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 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 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 the arguments advance by Mr.

Yogeshwar Prasad and Mr. Satish Chandra we pose the

following 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 service and as such consumed all

the posts which were available

439

on April 5, 1975 or they were only entitled to

vacancies under the second proviso to rule 8(2) of

the 1975 rules.

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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)(a0 of the 1975 rules or in accordance with

the principle adopted by the High Court. Isn't it

the requirement 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 of promotees excluding the direct

recruits, can be legally sustained.

We may take-up the first point for consideration.

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, 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 Additional District and Sessions

Judges". It is thus obvious that the service was

reconstituted under the 1974 Rules and all the Additional

District 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, 1974 and there were 235 posts (153 permanent plus 82

temporary) available in the service. 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

constituted 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

440

the service comprised of 236 posts (229 permanent plus 7

temporary). They 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 and given to the 236 officers out of 263 who were

working a 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

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 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

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that the interpretation given to the proviso by the High

Court is not correct. A bare reading of the proviso shows

that it was not applicable to the Service as reconstituted

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 Sewsa; and

only the remaining vacancies shall be shares between the

three sources under these rules." The Additional 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 obviously means it is visualising a situation

which was to exist after the 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 situation 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 Additional

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 Additional district

and Sessions Judges under the 1974 Rules. 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

441

the said posts on the reconstitution of the Service under

the 1974 Rules. In that situation the balance-vacancies

could be the `existing vacancies' falling within the

mischief of the proviso. Since prior to 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 as "existing

vacancies (surplus posts), from amongst the members of

`Nyayik Sewa' in the first instance 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

intended to meet one-time eventually 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 were so appointed by the operation of 1974 rules. The

proviso, 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. We, therefore,

reject the contention of Mr. Satish Chandra. Third proviso

to Rule 8(2) which is dependent on second proviso must

obviously meet the same fate. The net result is that on

April, 5, 1975 all the 236 officers working against 236

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posts (229 permanent+7 temporary) as Additional 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 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 "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) and (19) of rule 9 of the U.P.

Fundamental Rules which define "lien" and "officiate" and

442

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 permanent 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 permannt 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 of 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 vacancies does not mean permanent

vacancies whereas on the other hand it was

contended that if 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 Rules clearly

indicates that there are permanent posts and

temporary also which are created to meet contigency

and it may in due course be made permanent. It

therefore could not be doubted that when

appointment 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."

We agree with the above findings and accept the

position that the Service consists of permanent as well as

temporary posts. The substantive 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

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 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

independent existence and is a part of the cadre-strength

the appointment against the said post has to be treated as

substantive appointment.

There is no dispute that the seniority of a direct

recruit, appointment to the post in service, has to be

determined from the date of continuous officiation in the

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service. The question for our determination is whether the

seniority of a promoted officer is to be counted from the

date of countinuous officiation giving him benefit of full

443

period of officiation as claimed by Mr. Yogeshwar Prasad or

only for a maximum period of three preceding the date of

confirmation as provided by first proviso to Rule 26(1)(a)

as agrued 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.

We have given our thoughtful consideration to the

arguments of the parties. This Court has time and again

held that when an incumbent 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 present

case the promotees have been confirmed long after the

availability of 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. 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 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 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 continues in the post uninterruptedly

till the regularisation of 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

444

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 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 recruitment to the service is from three sources the

existence of a vacancy either permanent or temporary is the

sine quo non for claiming 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

(1)(a) of the 1975 rules we hold that the continuous

officiation/service by a promotee shall be counted for

determining his seniority only from the date when a

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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.

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 the mean

that 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 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 consequential and dependent on appointment. If the

recruitment rule gives 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 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. These Rules are

reproduced as under:

445

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

Committee 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

interview after scrutiny and examination.

(2) In assessing the merits of a candidate the

Selection Committee shall have due regard to his

professional ability, character, personality and

health.

(3) The Selection Committee shall make a

preliminary selection and submit the record of all

candidates to the Chief Justice and recommended the

names of the candidates in order of merit who, in

its opinion, are suitable for appointment to the

service.

(4) The Court shall examine the recommendations

of 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)

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

promotion shall be confined to four times the

number of vacancies to be filled by promotion. The

Selection Committee shall prepare a list in order

of seniority of the officers eligible under Rule

5(b) of these rules.

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(3) The Selection Committee shall, after

examining the record of the officers included in

the list prepared 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

446

vacancies required to be filled by promotion of the

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 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 promotion and prepare a list in order

of seniority of the candidates who are considered

fit for promotion and forward 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 Court of the lists mentioned in

Rules 18,30 and 21 make appointments to the service

on the occurrence of substantive 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 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.

Provided that for so long as suitable officers

are available from the cadre of the Judicial

Magistrates, appointments 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.

(3) Appointment for temporary vacancies or in

officiating capacity shall be made by the Governor

in consultation with the Court from amongst the

members of the Nyayik Sewa.

Provided that for so long as suitable officers

are available from the cadre of the Judicial

Magistrate appoit-

447

ments on temporary vacancies or in officiating

capacity 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 appointments on temporary vacancies or in

officiating capacity, are not available in

sufficient number, the Governor in consultation

with the Court may fill in not more than 50 per

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cent of such vacancies from amongst the officers of

the cadre of Judicial Magistrates.

(4) The appointments shall be made or 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 Judicial

Magistrates (and so on).

Is obvious from Rules 22(3) and 22(4) reproduced above

that appointments to the temporary vacancies are to be made

from amongst the members of the Nyayik Swea and the Judicial

Magistrates. 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

Magistrates is prepared. Whenever temporary posts are

created, 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 to the temporary posts from amongst the direct

recruits. We see no justification is not applying the quota

rule to the temporary posts in the service and confining

appointments to said posts to the two sources of

promotees.This Court in A.Ks Subraman v. Union of India,

[1975] 2 S.C.R. 979 held as under:

"The quota rule will be enforced with reference to

vacancies in all posts, whether permanent or

temporary included in the sanctioned strength of

the cadre (except such vacancies as are purely of a

fortuitous of adventitious nature) .........."

This court in P.s. Mahal v. Union of India, [1984] 3

S.C.R. 847 held as under:

448

"It is therefore obvious that if a vacancy arises

on account of an incumbent going on leave or for

training or on deputation for a short period, it

would be a fortuitous or adventitious vacancy and

the quota rule would not be attracted in case of

such a vacancy. But where a vacancy arises on

account of in incumbent going on deputation for a

reasonably long period and there is no reasonable

likelihood of the person promoted to fill such

vacancy having 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 included in the sanctioned

strength of the cadre......."

It is thus clear that the vacancies in the posts of

Executive Engineer arising on account of deputation

of Executive Engineers to other departments,

organisations and public undertakings for a period

of one or more years were long term vacancies and

they could not be regarded as fortutitous or

adventitious in character and hence they were

subject to the quota rule".

When temporary posts under rule 4(4) of the 1975 Rule

are 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. Rules 5 of the 1975

rules specifically lays down that recruitment to the service

shall be made from three sources including the direct

recruits. Rule 6 fixes the quota for various sources of

recruitment to the service and allocates 15 per cent of the

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posts in the service 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

homogeneously and as a part of the same scheme. The service

having comprised of three sources including the direct

recruitment there is no justification to deprive the direct

recruits of their share in the temporary posts in the

service. Unless the direct recruits are given their due

quota in the temporary posts the seniority rule cannot

operate equitably. We see no justification whatsoever in

having rule 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 of it are

discriminatory. There is no nexus with the object sought to

be achieved by framing the abovesaid rules. We, therefore,

strike down rules 22(3) and 22(4) of the 1975 rules being

449

discriminatory and violative of Articles 14 and 16 of the

Constitution of India. We, however, direct that the

appointments already made 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 further direct that the appointments

under rules 22(1) and 22(2) of the Rules shall be made to

permanent as well as temporary posts from all the three

sources in accordance with the quota provided under the 1975

rules.

Before parting with the judgment we make it clear that

the findings and observations in Dixit-case to the extent

those are contrary to 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 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 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 of the Service as constituted under the

1975 rules and they shall en bloc senior to all other

officers appointed to the service thereafter from three

sources in accordance with their quota under the 1975

rules.)

2. We strike-down (first proviso to rule 26(1) 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 in his quota under the 1975 rules.)

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 Rule

the committee shall prepare a

450

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 temporary posts from all the three sources in

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accordance with the quota provided under the said rules.)

There shall be no order as to costs.

R.S.S. Petition allowed.

451