D.S. Sinha, A.K. Banerji, Sudhir Narain, A.K. Chakrabarty and S.K. Phaujdar, JJ.
1. The moot point in the above two writ petitions being the same, a challenge to the seniority list dated 6.5.1992 for the members of the Uttar Pradesh Higher Judicial Service.the two matters were heard together and are being disposed of by this single judgment.
2. On the presentation of thepetitions, the matters were placed in the usual course before a Division Bench and upon its reference of the whole matter to a Full Bench, as per order dated 30.10.92, a Full Bench was constituted under the orders of the Hon'ble the Chief Justice of the Allahabad High Court, with changes of the Hon'ble Judges constituting the Full Bench from time to time, the matters finally came before us and were heard by us. Arguments on behalf of petitioners in the two matters were advanced by Sri Ravi Kant and Sri Dinesh Dwivedi. Another member of the U. P. Higher Judicial Service (henceforth to be described as the H.J.S.) Sri R.G. Shukla, made a prayer for being heard as an intervener on the ground that his case was identical with that of the petitioners in the two writ petitions as he too had come to the H.J.S. as a direct recruit. The prayer was allowed and Sri R.N. Singh was heard on his behalf. A similar prayer of intervention was made on behalf of Sri Arvind Kumar Tripathi, another member of the H.J.S. and we had indicated that he could not be inipleaded as a party, but we were ready to hear him under the provisions of Chapter 22, Rule 5A, of the Allahabad High Court Rules. We proposed to hear Sri Tarun Agrawal on behalf of Sri Arvind Kumar Tripathi, but Sri Agarwal had chosen not to advance any arguments Sri Rajendra Prasad Pandey, respondent No. 55 in the first mentioned writ petition, filed a power through Sri Sudhir Jaiswal on 20.10.98 during the course of hearing. He too, was allowed an opportunity of making submissions, but when his turn came, Sri Sudhir Jaiswal declined to make any submissions.
3. The first mentioned writ petition was filed by five members of the H.J.S., all direct recruits, and in addition to the State of U. P. and the High Court of Judicature through its Registrar, 53 members of the H.J.S. (all promotees from the U. P. NyayikSewa) were arrayed as respondents. The second mentioned writ petition was filed by Sri J.C. Gupta and Sri P.K. Jain, both of whom were directly recruited to the H.J.S. and both are now Hon'ble Judges of the Allahabad High Court. In the second mentioned writ petition. In addition to the State of U. P. and the High Court of Judicature at Allahabad through its Registrar, 22 others were arrayed as respondents who were all, at the relevant date, members of the H.J.S., all being promotees from the U. P. Nyayik Sewa. It is interesting to note that not only the two petitioners in the second mentioned writ petition but also a number of respondents in these two matters were now Hon'ble Judges, of the Allahabad High Court or other High Courts. It is also interesting to note that amongst the respondents who have been elevated to the High Court from the HJS. some have already retired and most of them who did not get the opportunity of elevation have also retired from the H.J.S.
4. As already indicated, there is a challenge in these writ petitions to the validity of the seniority list prepared on 6.5.1992 in terms of directions of the Supreme Court given in its judgment in the case of O.P. Garg, AIR 1991 SC 1202. For appreciating the direction of the Supreme Court and the points raised in challenging the seniority list and the points raised in answer, it is necessary to give a brief description of the background leading to these litigations.
5. That Uttar Pradesh Higher Judicial Service is a service as envisaged under Article 233 of the Constitution, comprising of District Judges and Additional District Judges., Formerly, the service was covered by the U. P. Higher Judicial Service Rules, 1953, but the provisions thereof relating to direct 'recruitment were declared ultra vires by the Supreme Court in its judgment in the case of Chandra Mohan v. State of U. P. As a sequel thereto, the U. P. Higher Judicial Service Rules of 1975 (in short, 1975 Rules) were framed in exercise of powers conferred underArticle 228 read with Article 233 of the Constitution. Bereft of the unnecessary details, it would suffice to say that the U. P. Higher Judicial Service (in short, the H.J.S.) comprises the post of District and Sessions Judges and the Additional District and Sessions Judge, and the 1975 Rules indicate what would be the sources of recruitment, how appointments are to be made and how seniority amongst the members of the H.J.S. is to be fixed. On 7.5.1986, a seniority list was published by the High Court of Allahabad which was amended in respect of certain mistakes and a fresh publication was made on 25.8.86. This list was challenged by certain members of the H.J.S. who had been promoted from the U. P. Nyayik Sewa and the Supreme Court struck down the seniority list in its judgment as in P.K. Dikshit and others u. State of U. P.. AIR 1988 SC 260. Pursuant to the judgment of the Supreme Court in P.K. Dikshit's case, the exercise was renewed at the High Court to fix seniority inter se of the H.J.S. officers and a seniority list was published on 25.8.88. In reckoning the seniority of the individual officers, each promotee was given the benefit of 3 years' continuous officiation, counting that from the date of occurrence of the vacancy instead of the date of confirmation or appointment in substantive vacancy. The direct recruits to the H.J.S. felt aggrieved and some of them challenged the seniority list in a writ petition before the Supreme Court. The list was also challenged by certain promotees ventilating their grievance against the method of fixing seniority. These two petitions were heard and decided together and the judgment of the Supreme Court on these petitions stands in O.P. Garg and others v. State of U. P. and others, AIR 1991 SC 1202. The relevant portion of this judgment would be quoted at the proper place and time. For the present, it would only suffice to say that after this judgment of the Supreme Court, the seniority list was prepared afresh and was published on 6.5.1992 and this seniority list is again under challengeat the instance of the two sets of petitioners (all direct recruits) in the two writ petitions, as aforesaid.
6. We propose to set out the Rules, the relevant portions of the judgment as also of the report of the committee on the basis of which the seniority list has finally been published. The Uttar Pradesh Higher Judicial Service Rules, 1975 (in short. 1975 Rules) were published in the U. P. Gazette on 5.4.1975. We may quote the relevant portions as they stood prior to the judgment of the Supreme Court in O.P. Garg's case herein below :
'PART II
Cadre
4. Strength of the service.-
(1) The service shall consist of a single cadre comprising the posts of:
District and Sessions Judge : and Additional District and Sessions Judge;
Provided that against a post of Additional District and Sessions Judge a member of the Uttar Pradesh Judicial Officers Service may be appointed to exercise the powers of Additional Sessions Judge only as laid down in Notification No. 41-13/66/Appt-4, dated March 12, issued under Article 237 of the Constitution.
(2) The strength of the service shall be such as may be determined from time to time by the Governor in consultation with the Court.
(3) The permanent strength of the service, shall, unless varied by orders passed in this behalf, be as specified in Appendix 'A'.
(4) The Governor may, from time to time, in consultation with the Court leave unfilled or hold in abeyance, any vacant post in the service without entitling any person to compensation or create from time to time, additional posts, temporary or permanent as may be found necessary.
PART III
Recruitment
5. Sources of recruitment.--The recruitment to the service shall be made :
(a) by direct recruitment of-pleaders and advocates 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 confirmedmembers of the UttarPradesh Nyayik Sewa(hereinafter referred to asthe Nyayik Sewa), who haveput in not less than sevenyears' service to becomputed on the first day ofJanuary next following theyear in which the noticeinviting applications ispublished :
Provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrates, confirmed officers who have put in not less than 7 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).
6. Quota.--Subject to theprovisions of Rules 8, the quota for various sources of recruitment shall be :
(i) direct recruitment from theBar 15%
(ii) Uttar Pradesh Nyayik Sewa of the vacancies 70%
(iii) Uttar Pradesh JudicialOfficers Service (JudicialMagistrate) 15%
Provided that where the number of vacancies to be filled in by any of these sources in accordance with the quota is in fraction, less than half shall be ignored and the fraction of half or more shall ordinarily be counted as one :
Provided further that when the strength in the cadre, of the Judicial Magistrates gradually gets depleted or is completely exhausted and suitable candidates are not available in requisite numbers or no candidate remains available at all, the shortfall in the number of vacancies required to be filled from amongst Judicial Magistrates and in the long run all the vacancies shall be filled by promotion from amongst the members of the Nyayik Sewa and their quota shall, in due course, become 85 per cent.
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8. Number of appointments to be made.--(1) The Court, shall, from time to time, but not later than three years from 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 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 may be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruit at the next recruitment, and the quota for direct recruits may be raised accordingly ; so. however, that the percentage of direct recruits in the service does not in any case exceed 15 percent 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 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 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 not 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 JudicialMagistrates ;
(iii) 55% from out of the members of the Nyayik Sewa.
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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. 20 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 lists.
(2) Appointments to service shall be made on the rotational system, the first vacancy shall be filled from the list of officers ofthe Nyayik Sewa, the second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies shall, therefore, 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) Appointments 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, appointments 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 cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates.
(4) The appointments shall be made on 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).
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26. Seniority.--(1) Except as provided in sub-rule (2), seniorityof 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 from 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 recruit. Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the dale 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.'
7. In addition to the above quoted provisions of the 1975 Rules, it may be pointed out that Rule 16 speaks of appointment of a Selection Committee by the Chief Justice for each recruitment to the Service, Rules 17 to 19 speak of procedure for direct recruitment. Rule 20 gives the procedure for recruitment by promotion from the U. P. Nyayik Sewa while Rule 24 speaks of confirmation. The controversy in the present writ petitions relates to appointment made between 1978 and 1984 in terms of the Rules quoted above. The Rules have undergone a change in 1996, but these changes, in our view, are prospective in nature and may not be considered for analysing an action taken on the Rules existing at the relevant time. Moreover, the Rules then existing have only been explained and interpreted in O.P. Garg's case. We have, therefore, confined ourselves to these Rules only without any reference to the amendments made in 1996.
8. We may move to the judgment of the Supreme Court in the O.P.Garg's case now. Through this judgment, the Supreme Court quashed the final seniority list prepared on 25.8.1988 and directed the High Court to prepare circulate, invite objections and finalise the seniority list of the U. P. Higher Judicial Service in the light of the findings given and the observations made by the Supreme Court. Clear directions were given as follows :
'1. All the 236 promotee officers working against 236 posts (229 permanent plus 7 temporary) as Additional District and Sessions Judges on April 5, 1975 shall be deemed to be existing members of the Service as constituted under the 1975 rules and they shall en bloc, rank senior to all other officers appointed to the service thereafter from three sources in accordance with their quota under the 1975 rules.
2. We strike down first proviso to Rule 26 (1) (a) of the 1975 Rules and direct that the continuous officiation/service by a promotee appointed under the Rules shall be counted for determining his seniority from the date when a substantive vacancy in permanent or temporary post is made available 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 rules, the committee shall prepare a 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 thethree sources in accordance with the quota provided under the said Rules.....'
9. The Supreme Court further ruled in this judgment, in paragraph 33 thereof, that the findings and. observations in P.K. Dikshit's case to the extent they were contrary to the instant judgment would be deemed to have been overruled. The paragraphs of this judgment which were read out time and again by the learned counsel for both the parties were 27 and 29 and the same are being quoted below :
'27. 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 qua 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 held that the continuous officiation/service by a promotee shall be counted for determining his seniority only from the date when a substantive vacancy against a permanent or temporary post is made available in his quota under the 1975 Rules.
29. Recruitment to the service under the 1975 Rules is from three sources and is based on quota as provided therein. The cadre consists of permanent as well as temporary posts. We have already interpreted the seniority rule to mean that the seniority of the direct recruit is to be determined from the date of his joining the service and that of promotee on the basis ofcontinuous 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.....'
In course of their arguments, the learned counsel for both the sides had agreed that the decision in O.P. Garg's case will govern their case for the present dispute. The learned counsel no doubt made reference to various case-laws on the question of inter-se seniority between promotee officers and directly recruited officers in different services. AH these cases dealt with the particular rules applicable to the services in question in these cases and the Courts had given interpretations of those Rules. In view of the admission of the parties before us that the decision in O.P. Garg's case had given the governing guidelines. We have not taken up the other cases for discussion and the scope of the present writ petitions is limited to the extent to see if the dictum of the Supreme Court in O.P. Garg's case has rightly been followed in fixing the seniority in the instant case.
10. The main thrust of thearguments of both the sides is on the true interpretation of the directions given by the Supreme Court in paragraphs 27, 29 and 34 of this judgment. The Supreme Court explained that a substantive vacancy would not only mean a vacancy in apermanent post but would include a vacancy in a temporary post as well, and the Supreme Court further held that for determining the seniority of the direct recruits, the only date for consideration was the date of joining the service. But for the promotees, the date would be a deemed one, not from the date of actual joining on promotion but from the date when a substantive vacancy against a permanent or temporary post is made available in his quota under the 1975 Rules. The clause used in paragraph 27 is, 'made available in his quota'. In paragraph 29 the Supreme Court again, in the same context, uses the clause 'becomes available in his quota'. We are to see whether the committee constituted for determining the seniority had rightly approached the problem for finding the relevant date for the promotees for determining their seniority. But before taking up that exercise, it is necessary to answer a preliminary objection on the question of maintainability of these two writ petitions.
11. This question was raised by the respondent-High Court on the ground that the decision of the Lucknow Bench in the case of J.B. Singh and others would operate as res judicata and the present two writ petitions would be barred under the law. It may be indicated that after the publication of the seniority list dated 6.5.1992 some officers of the H.J.S. (all promotees) had approached the Lucknow Bench of this High Court with prayer for quashing the said seniority list and for commanding the High Court to place the petitioners above respondent Nos. 3 to 10 (all direct recruits) in the seniority list and to command the High Court again to prepare a fresh seniority list in accordance with Rule 26 of the 1975 Rules in view of the judgment of the Supreme Court in O.P. Garg's case.
12. The aforesaid writ petition before the Lucknow Bench was registered as Writ Petition No. 3054 of J992. There were six petitioners, namely. S/Sri J.B. Singh. R.C.S. Chauhan, S.N. Singh. Iqramul Bari,R.B. Mathur and R.B. Shukla. In addition to the State of U. P. and the High Court of Judicature at Allahabad, there were 12 other respondents, namely, S/Sri J.C. Misra, J.C. Gupta, P.K. Jain, Bhagwan Din (all at present Hon'ble Judges of this High Court) and S/Sri V.K. Jain. Keshav Sharan Srivastava. V.N. Pandey, M.P. Singh II, Sushil Kr. Gupta. Lakshini Behari, Krishna Nath Singh and Banphool Singh. The petitioners indicated in this writ petition that they were members of the H.J.S. on promotion from the U. P. Nyayik Sewa. It spoke about the seniority list prepared in 1986 and about the judgment of the Supreme Court in P.K. Dikshit's case. The writ petition further indicated about the fresh seniority list prepared in 1988 and of the judgment of the Supreme Court in O.P. Garg's case. It was indicated in the writ petition that the seniority list prepared on 6.5.1992 should have placed the applicants above respondent Nos. 3 to 10, i.e., above Sri J.C. Misra and others up to Sri M.P. Singh II. This claim was made on the grounds indicated in paragraph 27 of the said writ petition wherein it was asserted that of the three posts created for trying P.A.C. cases one was made permanent and remained in existence from 4.1.1976 up to December. 1977 and this post should have been included for consideration of availability of vacancy. It was further asserted in this paragraph of the aforesaid writ petition that in the seniority list the retirement of 10 Addl. District and Sessions Judges who had retired from 1977 to 1986 were not at all considered. In the next paragraph it was asserted that the 27 officers who were placed at serial numbers 1 to 27 in the impugned seniority list were promoted prior to the endorsement of the Rules on 5.4.1975 and they should not have been considered in the quota of the promotees in fixing seniority. In the writ petition, the following prayers were made :
1. for a writ of certiorari for quashing the impugned seniority list ;
2. for a writ of mandamus to place the six petitionersabove respondent Nos. 3 to 10 in the seniority list ; and
3. for a direction to prepare the seniority list afresh.
13. The matter was contested by the direct recruits whose seniority was sought to be affected. The Hon'ble Judges of the Lucknow Bench in paragraph 46 of the judgment took up the expression 'made available in their quota' as used by the Supreme Court in O.P. Garg's case, and were of the view that the expression would only mean 'vacancy becomes available', and that would be the date for counting seniority for a promotee H.J.S. officer. This opinion was given only because a plea on that point was raised and the Court was clearly of the view, as expressed in paragraph 49 of the judgment 'as a matter of fact for the purpose of present writ petition this is purely academy discussion. On behalf of the petitioners, it has not been shown that a substantive vacancy had become available in their quota earlier than the vacancy which has been indicated against the name of promotees in column 6 of the seniority list,' in paragraph 58 of the judgment reference was made to the counter-affidavit of Sri J.C. Gupta, respondent No. 4 in the said writ petition, as it was indicated on behalf of Sri J.C. Gupta that he and Sri P.K. Jain had already moved a writ petition before the High Court of Judicature at Allahabad claiming their sure placement in the seniority list prepared on 6.5.1992. Sri Gupta had claimed that the direct recruits were entitled to be placed much higher to the positions given to them in the seniority list as per the judgment in O.P. Garg's case and the direct recruits of the first batch after the publication of the Rules of 1975 were entitled to be placed at serial numbers 38 and 39, instead of serial numbers 65 and 66 as shown in the impugned seniority list. The Hon'ble Judges of the Lucknow Bench, in paragraph 59 of their judgment, observed. 'In view of these averments, we are not called upon to adjudicate on the submissions made by the aforesaid two direct recruits.'Sri J.C. Gupta and Sri P.K. Jain who were respondent Nos. 4 and 5 in the writ petition in the Lucknow Bench are two petitioners in the second mentioned writ petition under our consideration. When the Court had expressed in clear terms that it had not adjudicated on the submission made by the two direct recruits, the judgment of the Lucknow Bench on the mere reading of it may not be read as res judicata barring a writ petition for that very relief which was not adjudicated and not decided by the Lucknow Bench.
14. This approach may not be available to the petitioners in the other writ petition before us but they have advanced another argument to meet the objection of res judicata. It was urged that the basic prayer before the Lucknow Bench was for placing the petitioners therein above certain direct recruits including Sri J.C. Gupta and Sri P.K. Jain. When the question of seniority or placement of Sri J.C. Gupta and Sri P.K. Jain was left undecided, it would only be logical to conclude that the question concerning the others would also be open for a fresh decision. What was denied was the prayer of the promotees for a particular place in the Seniority list and the judgment must be read as one on that point only. It was further urged that it was a judgment of dismissal of the writ petition and no appeal could have been preferred by the respondents against any observation, even if adverse to their interest. They could have filed an appeal only if an appeal stood admitted at the instance of the losing party. Reference was made to Order XLI. Rule 22, C.P.C., which provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the findings against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross-objection to the decree which he could have taken by way of appeal provided he had filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the date fixed for hearingthe appeal. Thus, the right to agitate a finding against the successful party would arise only if the losing party prefers an appeal. It is true that the judgment of the Lucknow Bench was confirmed by the Supreme Court by way of dismissal of the special leave petition, but a reading of the Hon'ble Supreme Court's order indicates that the direction regarding creation of supernumerary posts for the first 27 officers was the real dispute on which the Supreme Court had given a thoughtful look and on compliance of that direction, the special leave petition stood dismissed. In our view, when the seniority list as challenged by Sri J.C. Gupta and Sri P.K. Jain is open for fresh consideration and when there is no dictum of the Supreme Court on the merits of the parties in its order rejecting the S.L.P., the judgment of the Lucknow Bench may not operate as res judicata to bar the entertainment of the present two writ petitions.
15. Upon this observation, we may look up the merits of the present writ petitions without being disturbed by the question of res judicata due to the earlier judgment by the Lucknow Bench. As the seniority list was prepared upon a recommendation by a Committee of Five Judges' and as a challenge has been thrown to that recommendation as well, we propose to state as to the situation with which the Committee was confronted and how they had approached the matter. To recapitulate, it may be stated that till the judgment in O.P. Garg's case, the legal concept of substantive vacancy was limited to permanent vacancies only. The concept of reckoning temporary vacancies as substantive ones has been introduced in the service jurisprudence by the observations of Hon'ble Supreme Court in the O.P. Garg's case, which was rendered in 1991. Advertisements, selections and appointments, however, were made according to the old concept of substantive vacancy in terms of the 1975 Rules. The Committee had the colossal task before it to reasses the available vacancies in the light of O.P. Garg's case, reallot the available vacancies against the quotas ofdifferent sources of recruitment and reenact the whole exercise after about 16 years of its occurrence.
16. We may now step in into the report of the Five Judges Committee which forms the basis of publication of the seniority list. The report indicates that prior to finalisation of the list, rather prior to taking up the exercise, there had been a meeting of the Committee on 23.1.1992 and certain tentative decisions were taken giving out the guidelines for determination of seniority. The committee had decided on 23.1.92 :
(1) that out of 263 posts in the H.J.S. such vacancies which were caused on account of officers promoted against such vacancies going on long term deputation would be made available for distribution or to make appointments under the 1975 Rules from all the three sources. The 27 H.J.S. officers who were working in place of the 27 deputations shall be considered for distribution of quota under the 1975 Rules :
(2) in terms of the decision of the Supreme Court these 236 officers promoted prior to the Rules 1975 would be en bloc senior to the others ;
(3) those officers who are ultimately found fit for consideration, would have their seniority counted from the date of their continuous officiation ;
(4) the officers who were not given promotion under Rules 22 (3) and 22 (4) of the 1975 Rules due to any adverse entry or enquiry pending against them and for whom the adverse entries have been deleted subsequently would have their seniority counted from the date when the next junior member in the feeder service was promoted to the H.J.S. had started his officiation.
17. The report also indicates that the Committee had considered the individual representations after publication of the tentative list and had disposed them of individually, and in some cases in group. The Committee rejected the 'plea of the promotees that all the 263 officers working in the H.J.S. on 5.4.1975 should have been considered en bloc senior as the Supreme Court had given such facility only to 236 officers (229 permanent and 7 temporary). The Committee also place reliance on the decision of the Supreme Court in the case of P.S. Mahal, AIR 1984 SC 1291. The committee assessed the impact of the view given in Mahal's case on the situation touching the seniority of the H.J.S. officers and was of the view that : 'It cannot be said that a substantive vacancy has been caused in a permanent or a temporary post due to deputation', as in the case of Higher Judicial Officers, an officer going on deputation is always likely to revert to his original post and normally he does revert to that post. The Committee had opined that in terms of the judgment of the Supreme Court in O.P. Garg's case, which had not invalidated the service of the officers promoted under Rules 22 (3) and 22 (4) of the 1975 Rules, these promotees were entitled to be considered as members of the service and their officiating service was to be counted for determining their seniority from the date when a substantive vacancy in permanent or temporary post was made available. The committee rejected the-plea of the direct recruits that their seniority should be linked with each recruitment so that a person of a particular batch may not be made junior to a promoted promoted in a subsequent batch. It is opined by the committee that a direct recruit who was not born in service could not possibly get seniority from a day prior to his birth in the service.
18. The committee finalised the seniority after first ascertaining the substantive vacancies in the permanent and temporary posts and thereafter the quota rules had been applied in accordance with the various recruitments made by theCourt and the seniority in between the direct recruits and the promotees was fixed in accordance with Rule 26 (1) (e) of the 1975 Rules. The promotees were given the benefit of continuous officiation from the date when a substantive vacancy in a particular permanent or temporary post was made available in their quota while the direct recruits were given seniority from the dates of their joining the service according to their quota. The committee had finalised the list for 597 officers only. The other officers who have been subsequently promoted/appointed had been excluded from consideration of the determination of seniority as the appointments of direct recruits of 1988 batch were not received till the date of the report of the Committee. Approach of the committee has been challenged in the instant writ petitions, and it was urged on behalf of the petitioners that seniority could not have been delinked from the quota-and-rota rules and reliance was placed on the observation of the Supreme Court in paragraph 29 of the judgment in O.P. Garg's case. The lines that were read out time and again before us in paragraph 29 were 'The seniority in service is consequential and dependent on appointment. If the recruitment rules give unjustifiable preference to one source of recruitment, the seniority rule is bound to become unworkable'. It was stated that this observation should be read as a direct pointer to read Rules 26 along with Rule 22 of the 1975 Rules. The Rules have already been quoted. Rule 22 requires that the Court is to submit a list of the candidates for appointment in the H.J.S. and the Governor is to act upon that list and Rule 22 sets out the rotation in which the appointments are to be made from different sources. Rule 26 speaks of seniority and this rule does not make any reference to the question of rota, that is, the rotation in the matter of appointment. This rule stood the scrutiny of the Supreme Court lastly in O.P. Garg's case and Rule 22 was, also very much before the Apex Court. The Apex Court had struckdown certain provisions of Rule 22 but the provision for appointment in rotation was retained and not disturbed. Even thereafter, the Supreme Court had explained Rule 26 only to the extent that while the direct recruits would have the right to count their seniority from the date of appointment, there would be a concession in counting the date for a promotee who will be entitled to count his seniority from the date of continuous officiation when a substantive vacancy was made available in his quota in terms of the 1975 Rules. The observation in paragraph 29 that seniority is consequential to appointment, was to be read in the light of the directions given after the said observation. The Rules provided that the appointments against temporary vacancies could be made only from one source and that was found violative of the principles of equal opportunity and was struck down. Had the Supreme Court desired that Rule 26 should be read with Rule 22 and seniority would be counted in terms of the appointment, the Supreme Court would have spelt it out. In the absence of any such speaking order, the mere observation, as quoted above, could not be read as a direction to count seniority according to appointment. If we take this interpretation, as urged by the promotees, then in effect Rule 26 would become nugatory. These rules being statutory in nature, it is not open for us to interpret that any particular rule was superfluous. The matter may be looked from another angle as well. Rule 22 speaks of manner of appointment and the appointments are to be made according to selection made by the High Court and the selections are to follow notification of vacancy according to quota. Rule 8 prescribes what would be the number of appointments and in fixing that number, the Court is to keep in view the vacancy then existing and those likely to occur in the next two years. The term 'then' must be interpreted to mean the date when the Court fixes the number of vacancies. Thus, whenever the number of vacancies is determined or fixed by the Court forappointment, not only the existing vacancies were to be kept in consideration but the vacancies likely to occur would also be considered. It is quite possible that those likely vacancies might not actually occur 'till the date of selection and as such, appointments would be made only against the existing vacancies and then against those likely vacancies when they actually fall vacant from time to time. Thus, there could be a situation that even for a single selection, the appointments may be made one after another and not all at a time. That is precisely the provision of Rule 4 of the 1975 Rules, It is for the Governor to make the appointment and Rule 4 empowers the Governor to leave unfilled or to hold in abeyance any vacancy in the services without entitling any person to compensation. The right of a particular individual for any appointment may go to the extent of being considered but none can claim that he must be appointed against a post and although selected, it is still open for the Governor not to appoint a person at a particular time and keep the post vacant for some future contingency. Appointment is to be made under Rule 22 in rotation from different sources. But this appointment has no bearing with the rule of seniority for which Rule 26 atone would be the guiding factor. For fixing seniority, a direct recruit has only one date available to him, and that is neither the date when the vacancy arose nor the date when it was notified nor even the date when he was selected. He must be satisfied with the date of his actual appointment for reckoning his seniority, and there is no deeming provision to reckon his seniority from any date earlier to his date of appointment, i.e., the date of joining. For a promotee, however, normally the date of appointment on promotion should have been the date of his seniority unless some benefit is given to him by the Rules or by any interpretation of the privilege of continuous officiation. Fortunately, for a promotee the rule is clear so far the H.J.S. is concerned. He has the right to have his seniority countednot from the date of his actual joining on promotion but from the date when a substantive vacancy occurs in his quota according to the 1975 Rules.
19. In the course of arguments, it was urged on behalf of the petitioners how these quota rules were disobeyed in giving appointment and in a supplementary affidavit filed by- one of the direct recruits who spoke on behalf of all the direct recruits to say that they were entitled to count the date of seniority from the date when the vacancy arose in their quota. This interpretation cannot be given to Rule 26 and the direct recruits cannot reckon seniority from any date prior to their actual joining. Even in that affidavit, it was conceded on facts that the first 27 officers in the list stood senior to even the first direct recruit in the list. The present writ petitions have a limited scope as only seniority list has been challenged ant) that too in the light of the decision in O.P. Garg's case. There is no challenge to the number of vacancies that have been counted by the selection committee nor even any challenge has been thrown to the vires of the existing Rules. We are, therefore, unable to look into the theories attacking the appointments or promotions or the counting of vacancies by the committee.
20. In the light of the above 'interpretation of Rules 22 and 26 and in the light of our observation that Rule 26 must be read independent of Rule 22 for fixing seniority, we may now analyse the report of the committee.
21. In the earlier paragraphs of this judgment (paragraph 16 onwards), we have indicated what were the norms settled by the Five Judges Committee towards fixation of seniority and we had also indicated the enormity of the task of the committee to reenact and exercise that was performed 16 years prior to their taking up the matter. The finding could not be interfered with on Judicial scrutiny even though there was no violation of the norms and the best possible attempt was made to solve the impasse and to reach a result to fix the seniority inthe H.J.S. No doubt, the guiding factor for the committee also was the direction of the Supreme Court given in the case of O.P. Garg. The committee could have taken all the 263 officers working on 5.4.1975 as persons belonging to the service as the question was dealt with by the Supreme Court and the facility was given only to 236 officers and not to the others. For the remaining 27, the clear dictum was that they were to be considered in terms of 1975 Rules. The committee was therefore, right in its approach in this regard and in rejecting claim of the promotees. As regards the availability of the vacancy for the posts for which these 27 officers (263 minus 236) were must again support the approach of the committee in treating them as temporary substantive vacancies on the ground of long pendency of the deputations. The committee again had rightly delinked the question of seniority from the question of promotion and appointment, as has been clarified by us in this judgment in interpreting Rules 22 and 26 of the 1975 Rules. We have found that the lines in paragraph 29 of the judgment in O.P. Garg's case 'the seniority in service is consequential and dependent on appointment' could be read only as a prelude to the direction given next thereto, that is, only for declaring Rules 22 (3) and 22 (4) to be ultra vires. We also find that the committee had rightly opined that as per the terms of the language of Rule 26, a direct recruit could never date back his seniority to any arbitrary date prior to his joining the service. We feel that the committee had rightly observed that a direct recruit cannot claim seniority from a date before his birth in the service.
22. Much emphasis was given on the alleged deprivation of the direct recruits, as according to them the persons of 1976 batch were made junior to promotees for whom a vacancy was available long after the 1975 selections. A reading of the List-B attached to the report of the committee which is precisely the seniority list now under challenge, shows that meticulous care had been taken by the committee to indicate asto when a particular vacancy was made available in the quota of a promotee and the learned counsel for the High Court very painstakingly indicated before us that for deciding the availability of quota, the committee had kept in mind the rota rule and in doing so the best possible exercise was made by the committee to fix the seniority amongst the H.J.S. officer in terms of the judgment of the Supreme Court. We find sufficient force in this argument of the learned counsel for the administrative side of the High Court.
23. For all the reasons stated above, we are of the view that the committee was required to make the seniority list in terms of the judgment of the Supreme Court. A practical and correct interpretation to the term 'vacancy made available in the quota' has been given by the committee. A right approach was made to de-link the question of appointment on rotation from the question of fixation of seniority and we find no reason to interfere with the suggestions of the committee or the resultant seniority list now under challenge.
24. Both the writ petitions are, therefore, dismissed, but, in the circumstances of the case, we may not award any cost.