Hon'ble Manoj Misra, J.
1.We have heard Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare for the petitioners. Learned Standing Counsel appears for the State respondents. Shri Ranjan Srivastava represents the Registrar General, High Court, Allahabad.
2. By these writ petitions, the petitioners have prayed for following reliefs:-
"(i) a writ, order or direction of a suitable nature commanding the respondents to include the name of petitioners in the select list for appointment to U.P. Higher Judicial Service on the basis of their performance in U.P. Higher Judicial Service Examination-2009 and to forward the names of petitioners to the State Government for grant of appointment on such basis.
(ii)a writ, order or direction of a suitable nature commanding the respondents to forthwith grant appointment to the petitioners to U.P. Higher Judicial Service, to permit the petitioner to function as such and also to make disbursement of regular monthly salary to the petitioners.
(iii)a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(iv) award cost to the humble petitioners throughout of the present writ petition."
3. The High Court of Judicature at Allahabad published an abridged advertisement for "Direct Recruitment to the Uttar Pradesh Higher Judicial Service-2009", on 15.4.2009 inviting applications, for appointments on 68 vacancies, in the Uttar Pradesh Higher Judicial Service, including 41 backlog vacancies (General-10, Scheduled Caste-15, Scheduled Tribe-2 & Other Backward Class-14), and 27 current vacancies (General-14, Scheduled Caste-6, Other Backward Class-7), from Advocates of not less than 7 years standing on 01.01.2010, between age group of 35 years and 45 years as on 01.01.2010. The age limit was specified to be higher by 3 years in case of candidates belonging to SC/ST/OBC. There was 20% horizontal reservation provided for woman. The recruitment was to be based on a preliminary examination (objective) to be held on 28.6.2009, and only those candidates, who secure 50% or more marks in the preliminary examination, were to be called to appear in the mains written examination provided the candidates not more than 20 times of number of vacancies were admitted to the mains written examination. Only those candidates, who secure 50% or above in the mains written examination, were to be called to appear in the interviews.
4. Rule 6 of the Uttar Pradesh Higher Judicial Service Rules, 1975 provides for 50% posts to be filled up by promotion from amongst U.P. Nyayik Sewa; 25% posts to be filled up on the basis of limited objective examination from amongst Civil Judge (Senior Division) and 25% to be filled up by direct recruitment from amongst the practicing Advocates, having seven years' experience. Rule 6, as amended by Notification dated January 9th, 2007, and Rule 7 providing for reservations of posts for Scheduled Caste etc. amended by the same notification relevant for the purposes of the issue raised in this case, are quoted as below:-
"6. Quota.- Subject to the provisions of rule 8, the quota for various source of recruitment shall be-
(1) Uttar Pradesh Nyayik Sewa:
(a) from amongst the Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing a suitability test.--50%
(b) on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service.
Provided that in case of there being any shortfall in the vacancies to be filled up on the basis of in cadre competitive examination, the shortfall of 25% reserved for such promotion will be made good by corresponding increase in the quota reserved for promotion of Civil Judge (Senior Division) referred to in Clause (i) (a).
(ii) direct recruitment from Bar- 25% 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:
7.Reservation of posts for Scheduled Caste, etc. Reservation to posts in the service for members of the Scheduled Castes, Scheduled Tribes and others categories including women shall be in accordance with the orders of the Government for reservation as adopted by the High Court.
Provided that twenty percent horizontal reservation for women to posts in service in direct recruitment from Bar in Uttar Pradesh Higher Judicial Service shall be subject to suitability i.e. if the sufficient number of women candidates is not available, then and in that event, the reservation shall not have any operation to the extent of such unavailability.
Provided further that there shall be no carry forward of reservation for women."
5. The Selection Committee for selections to the Higher Judicial Service identified 54 posts to be filled up under 50% quota for promotion from Civil Judge (Senior Division); 27 posts to be filled up on the basis of merit through limited competitive examination of Civil Judges (Senior Division) and 27 posts to be filled up under 25% quota of direct recruitment from practicing advocates of seven years standing. After identifying these aforesaid vacancies, the Selection Committee identified 41 unfilled vacancies covered by direct recruitment to the U.P. Higher Judicial Service on the basis of U.P. Higher Judicial Service Direct Recruitment Examination-2007. Out of these, 10 vacancies were for general categories; 15 for SC, 02 for ST and 14 for OBC. The report of the Selection Committee dated 24.3.2009 was approved by the Full Court on 10.4.2009, on which the posts were advertised, as aforesaid, on 15.4.2009.
6. The eight petitioners in Writ Petition No. 20566 of 2010 and two petitioners in Writ Petition No. 57625 of 2010 applied and participated in the selections. They secured 50% marks in the preliminary examination of which the result was declared on 04.7.2009, in which a total number of 1468 candidates were declared to be qualified. The petitioners thereafter appeared in the main written examination held between 11.9.2009 to 13.9.2009 and were declared successful in the result dated 4.12.2009 amongst 69 candidates, who secured more than 50% marks in the main written examination. Out of these 58 belong to general category, and 11 to Other Backward Class category. No one belonging to Scheduled Caste or Scheduled Tribe categories secured minimum qualifying marks of 50%, in the mains written examination to appear in the interviews.
7.The interviews were held from 20.12.2009 to 23.12.2009. All the petitioners were permitted to participate in the interviews, which did not have any minimum qualifying marks. The final result was published on 12.1.2010 declaring 34 persons to be selected including 24 belonging to general category and 10 to other backward class. All the 34 candidates were recommended by the High Court for appointment after results were approved in the Full Court meeting. The petitioners were not declared successful amongst the 34 candidates.
8. It is submitted by Shri Ashok Khare appearing for the petitioners that by an amendment in Rule 7 dated January 9th 2007, the reservation to posts in service for members of Scheduled Caste, Scheduled Tribe and Other categories including woman is to be made in accordance with the orders of the State Government for reservation, as adopted by the High Court. The U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Class) Act, 1994, as amended by the First Amendment in the year 2001 and the Second Amendment in the year 2002 provides for carrying forward the unfilled vacancies of any recruitment year, is not applicable to the U.P. Higher Judicial Service, as the High Court has not adopted the carry forward rule. In State of Bihar vs. Bal Mukund Shah 2000 (4) SCC 640 it was held that any scheme of reservation of the State is not applicable to the High Court without consultation with it directly. The applicability of the Rules of Reservation without consulting the High Court will resort in interfering the High Court's powers of playing a vital role in the recruitment of eligible candidates to be filled up, and hence such appointment on reserved posts will result into ultra vires to the scheme of Constitution.
9. Shri Ashok Khare submits that though all the 24 advertised general vacancies, (14 belonging to the current and 10 belonging to backlog vacancies), have been filled up, out of 68 advertised posts, only 34 candidates have been recommended for appointment, the unfilled vacancies should not be carried forward to the next recruitment. These unfilled vacancies should have been filled up from the candidates belonging to general categories (unreserved), who had qualified in the mains written examination and appeared in the interviews and were thus available for appointment. He submits that Rule 8 (2) of the Rules of 1975 clearly demonstrates the intention of the rule making authority that so long as suitable candidates are available then appointment should be made from such suitable candidates, in respect of the categories to which they belong. The carry forward rule under sub-section (2), (3) and (4) of Section 3 of the U.P. Public Service (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Class) Act, 1994 (UP Act No. 4/1994) has not been specifically adopted by the High Court, and thus the unfilled vacancies of the Other Backward Class, Scheduled Caste and Scheduled Tribe categories cannot be taken to the next recruitment. It is in the interest of the service that all the vacancies must be filled up in the same recruitment year. He submits that despite the availability of sufficient number of vacancies, as also the availability of petitioners, who have qualified in the main written examination, their names were not included in the select list, violating petitioners' rights under Articles 14 and 16 of the Constitution of India. The decision of the High Court to carry forward unfilled vacancies, to the next recruitment is without authority and outside the provisions of the Rules of 1975.
10. Shri Ranjan Srivastava, learned counsel appearing for the High Court, submits that Rule 6 of the U.P. Higher Judicial Service Rules, 1975 provides for quotas, and Rule 7 provides for applicability of rules of reservation in accordance with the orders of the Government as adopted by the High Court. Section 3 (2) of UP Act No. 4 of 1994, for carrying forward of reserved vacancies, is not applicable to candidates belonging to the general category.
11. Shri Ranjan Srivastava submits that after the selections, the Selections and Appointment Committee prepared a combined list of all the candidates, who were interviewed by the Committee comprising of 34 (24 for general and 10 for OBC) candidates in all. The High Court does not prepare a truncated merit list. The list was prepared in accordance with the Rules of 1975. The petitioners belong to general category. There is no vacancy left for general category in the recruitment of the year 2009. All the vacancies left and carried forward belong to reserved categories in accordance with the Government Order dated 25.3.1994. He submits that the marks obtained by the candidates in the written examination as well as interviews, will be uploaded on the website of the High Court after the appointment letters are issued by the Government as resolved by the Selections and Appointment Committee in its meeting in Agenda nos. 3 and 5 held on 12.4.2010. The unfilled vacancies of the reserved category have been carried forward and will be filled up through special recruitment in that very year or in succeeding year or years.
12. In paragraph 26 of the counter affidavit of Shri Samsher Chandra Tripathi, Officer on Special Duty (Litigation), High Court, Allahabad, it is stated as follows:-
"26. That, the contention of the petitioners in paras 45 to 57 of the writ petition that they are unaware of any rule existing that governs carry forward of unfilled vacancies belonging to reserved category in recruitment of U.P. Higher Judicial Service and there exist no provision in U.P.H.J.S. Rules, 1975 which may enable carry forward of any unfilled vacancy under the reserved category for future selection is misconceived and denied. It is submitted that Rule-7 of U.P. Higher Judicial Service Rule, 1975 provides reservation of posts for Scheduled Caste etc. which is quoted herein below:-
"Reservation to posts in the service for the members of the Scheduled Castes, Scheduled Tribes and other categories including women shall be in accordance with orders of the Government for reservation as adopted by the High Court....."
In accordance with the above Rules the Hon'ble High Court has acted in view of "The Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 3 (2) of said Rules, provides as under:
Section 3 (2) "if, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1)"
Accordingly, the unfilled vacancies are of reserved categories and have been carried forward for next recruitment. The Allahabad High Court Computer Cadre Service Rule, 2005 has no application in the present case."
13. We have considered the respective submissions of learned counsel appearing for the petitioners as well as the High Court. Rule 8 (2) of the U.P. Higher Judicial Service Rules, 1975 provides as follows:-
"8 (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 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 exceed 25% of the strength of the service."
14. In Ashok Pal Singh & ors. vs. U.P. Judicial Serivces Asson. & others, Civil Appeal No. 1312 of 2005 decided on 13.9.2010 the Supreme Court observed in paragraph-28 as follows:-
" The first part of the third direction in the impugned order depends upon the result of the exercise undertaken in pursuance of its second direction. We have held that directions 1 and 2 in the impugned order of the High Court are contrary to the decision in O.P.Garg. In view of it, the question of undertaking any exercise as per the second direction of the impugned order does not arise. All that therefore remains out of the third direction in the impugned order is reiteration of direction No.3 of Srikant Tripathi. The third direction in the impugned judgment to the extent it reiterates direction No.3 in Srikant Tripathi has to be upheld. There is no question of unfilled vacancies being carried forward for the purpose of fixing the number of officers to be taken at the next recruitment. The total vacancies to be filled at a recruitment shall have to be filled by applying sub-rules (1) and (2) of Rule 8 and its provisos. In that sense all vacancies, which are not filled by direct recruitment, get filled by promotion and there will be no carry over. There is only a limited `carry over' of unfilled direct recruitment vacancies in the manner stated in the Rule 8(2) and the first proviso thereto."
15. In view of provisions of Rule 8 (2) of U.P. Higher Judicial Service Rules of 1975, as explained in Ashok Pal Singh's case, the unfilled vacancies are not to be carried forward to the next recruitment. The object and purpose of not carrying forward unfilled vacancies of direct recruitment, is that the posts should not be left vacant. In order to cope up with the huge pendency of cases, the posts cannot be left vacant. Keeping the vacancies unfilled will have a serious affect on the disposal of cases in courts. The Supreme Court, therefore, provided that if sufficient number of direct recruitment are not available in a particular recruitment, the post will be filled up by promotion of the officers of Nyayik Sewa, and such number of vacancies shall be taken into consideration while fixing the number of vacancies to the direct recruitment in the next recruitment as provided in Rule 8 (2).
16. All the 24 vacancies advertised by the High Court on 15.4.2009, in unreserved category, have been filled up by making recommendations and appointment of the 24 unreserved category direct recruits selected in the Higher Judicial Service Recruitment-2009. Thereafter a list of officers eligible for promotion from Nyayik Sewa, under 50% quota was prepared and was approved by the Full Court. Out of the approved list of 108 candidates of Nyayik Sewa, 78 have been appointed. The list of remaining 30 candidates from the approved list of 108 candidates was prepared and has been approved in the Full Court's meeting held on 11.2.2012, after the judgment was reserved. There were four more unfilled vacancies of direct recruitment of the year 2009, on which the Selection and Appointment Committee made recommendations of the officers of Nyayik Sewa, who were included in the list prepared under 50% promotion quota. These four appointments have also been approved by the Full Court in its meeting dated 11.2.2012.
17. In order to remove any doubts relating to applicability of carry forward rule of its adoption by the High Court under Rule 7 of the U.P. Higher Judicial Service Rules, 1975, and to clarify the position in view of State of Bihar vs. Bal Mukund Shah (supra) the recommendations of the Selection and Appointment Committee to the effect that the vacancies earmarked for the direct recruitment belonging to any categories, if remains unfilled in a recruitment year, the same shall not be carried forward, and be filled up by giving promotion to officers of Nyayik Sewa as per Rule 8 (2), was adopted in the same Full Court meeting dated 11.2.2012.
18. The petitioners did not compete for the vacancies in the reserved categories. They had applied and had competed for the 24 unreserved vacancies, which were advertised, and for which they appeared in the selections. They can have no grievance for not being considered for the remaining vacancies as they were reserved for SC/ST/OBC candidates. If any of the reserved vacancies could not be filled up on account of the candidates securing less than 50% marks in the preliminary examination, and thereafter in the main written examination, the petitioners do not have any claim on such vacancies.
19. Rule 8 (2) of the U.P. Higher Judicial Service Rules, 1975, clearly provides that if in 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. In the subsequent recruitment while fixing the number of vacancies to be allotted to the Court for direct recruitment; the quota for direct recruitment is to be raised in such a manner that percentage of direct recruitments in the service does not in any case exceed 25% of the strength of service. Rule 8 (2) thus clearly provides that unfilled vacancies are not to be carried forward and should be filled up from the Nyayik Sewa. If there was any doubt, the same was laid to rest in Ashok Pal Singh's case.
20. The petitioners cannot draw advantage of the fact, that the Full Court's meeting, in which a resolution was passed by the High Court, that if any vacancy remains unfilled in a recruitment year, the same shall not be carried forward, was held after the examination. The Full Court's meeting held on 11.2.2011, to approve the appointment of 34, remaining vacancies under Rule 8 (2) from the approved list of candidates of Nyayik Sewa, and to determine the vacancies for the next recruitment, also approved the proposal not to carry forward the vacancies. The next recruitment has not been advertised so far. The resolution of the Full Court's meeting of the applicability of carry forward rule is a clarification of the adoption of such rule by the High Court.
21. The petitioners do not have any claim over the unfilled vacancies of reserved category, in the selections for direct recruitments in U.P. Higher Judicial Service in the examination of 2009.
22. Both the writ petitions are dismissed. There shall be no order as to costs.
Dt.02.03.2012 RKP/