K N SINGH Vs. STATE OF U P

JUDGEMENT

(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 the peti tions, 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 30-12-92, a Full Bench was constituted under the orders of the Hon'ble the Chief Justice of the Al lahabad High Court, with changes of the Hon'ble Judges constituting the Full Bench from time to time, the matters final ly 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 Ser vice (henceforth to be described as the HJS) 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 HJS as a direct recruit. The prayer was allowed and Sri R. N. Singh was heard on his behalf. A similar prayer of intervention was inade on behalf of Sri Arvind Kumar Tripathi, another member of the HJS and we had indicated that he could not be impleaded as a party, but we were ready to hear him under the provisions of Chapter 22, Rule 5-A, 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 submission.

(3.) THAT Uttar Pradesh Higher Judi cial Service is a service as envisaged under Article 233 of the Constitution, compris ing of District Judges and Additional Dis trict Judges. Formerly, the service was covered by the U. P. Higher Judicial Ser vice Rules, 1953, but the provisions there of 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 under Article 228 read with Article 233 of the Constitu tion. Bereft of the unnecessary details, it would suffice to say that the U. P. Higher Judicial Service (in short, the HJS) comprises the post of District and Sessions Judges and the Additional District and Sessions Judge and the 1975 Rules indi cate what would be the sources of recruit ment, how appointments are to be made and how seniority amongst the members of the HJS 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 HJS who had been promoted from the U. P. Nayayik Sewa and the Supreme Court struck down the seniority list in Us judg ment as reposed in AIR 1988 SC 260 P. K. Dikshit & Ors. v. State of U. P. Pursuant to the judgment of the Supreme Court in Dikshit's case the exercise was renewed at the High Court to fix seniority inter se of the HJS 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 officiating, counting that from the date of occurrence of the vacancy instead of the date of confirmation or ap pointment in substantive vacancy. The direct recruits to the HJS felt aggrieved and some of them challenged the seniority-list in a writ petition before the Supreme Court. The list was also chal lenged by certain promotees ventilating their grievance against the method of fixing seniority. These two petitions were heard and decided together and the judg ment of the Supreme Court on these peti tions stands reported in AIR 1991 SC 1202, O. P. Garg & Ors. v. State of U. P. & Ors. . The relevant portion of this judg ment 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 challenge at the instance of the two sets of petitioners (all direct recruits) in the two writ petitions, as aforesaid.