JUDGMENT S.K. Phaujdar, J.
1. on his own behalf and on behalf of Binod Kumar Roy, J.--The above mentioned 11 writ petitions relate to the selection of candidates for recruitment in the U. P. Higher Judicial Service (for short called as 'H.J.S.'). The different petitioners made different prayers in their writ petitions and the prayers cover issuance of mandamus upon the respondents to fill up all existing vacancies in the quota of direct recruit, for a declaration that certain amendments in the U. P. Higher Judicial Service Rules (for short called as the 'Rules') were ultra vires and for quashing a resolution of the Full Court of the Allahabad High Court as regards appointment of direct recruits and promotion of persons belonging to the U. P. Nayik Sewa (for short called as the 'Nayik Sewa'). In some cases, prayers were made to command the respondents to carve out a fresh select list in view of the direction of the Supreme Court in the case of O. P. Garg and others v. State of U. P., AIR 1991 SC 1202. Most of the petitioners desired that as the number of vacancies for direct recruitment was more than what was shown, they should be appointed as they had taken the examinations for such recruitment and had come out successfully, although they were placed below the six nominated for appointment. In one of the writ petitions, the petitioner, Vinod Kumar Verma required implementation of D.O. Letter No. C-39/PA/AR/LKO 1994, dated 5.3.1994 and to declare him selected for appointment in the H.J.S.
2. All the aforesaid writ petitions were heard together as common points of fact and law arose in these matters. The facts behind these petitions relate to alleged anomalies in the process of recruitment to the H.J.S. In the context of these facts certain provisions of the Rules were also sought to be challenged. Under the provisions of the Constitution of India, the power of appointment to the H.J.S. lies with the Governor on recommendation by the High Court and the Rules covering such appointment are contained in the Rules, 1975, as amended from time to time. The sources of recruitment are (1) promotion from members of the Nyayik Sewa, (2) promotion from the cadre of Judicial Magistrates, and (3) direct recruitment from the Bar.
3. An advertisement was published concerning 1990 appointment to the H.J.S. by direct recruitment from amongst the members of the Bar. It was issued under the signature of the then Registrar of the High Court, Sri Bhanwar Singh. on March 30, 1992. It was indicated that a competitive examination is likely to be held sometime in September. 1992 and the total number of vacancies for such appointment was six. Reservation for the candidates of the Scheduled Castes and Scheduled Tribes and others were to be made in accordance with the Government Orders concerning reservation from time to time. The advertisement also Indicated that there could be variation in the number of vacancies without prior notice. The petitioners responded to this advertisement and were successful in the written test. They were called for interview. However, they could not compete within the number of vacancies notified and were, therefore, not selected for appointment, which is apparent from the report dated 2.11.1995 of the Selection Committee as reproduced below :
"Report of the Selection Committee regarding 1990 recruitment of the U. P. Higher Judicial Service by way of Direct Recruitment and by way oj promotion.
This Selection Committee was constituted for 1990 recruitment to the U. P. Higher Judicial Service for selection both through direct recruitment and by way of promotion from the U. P. Nyayik Sewa under the U. P. Higher Judicial Service Rules. 1975.
1. Direct Recruitment 15%
2. U. P. Nyayik Sewa 70% of the vacancies
3. U. P. Judicial Officers (Dying Cadre) 15% As per rules, in case of non-availability from the dying cadre (Judicial Officers), the 15% goes to the quota of the U. P. Nyayik Sewa. which has gone for this year of recruitment. Thus, for the purpose of 1990 recruitment, the Committee considered the quota of 15% for the direct recruits and 85% for the U. P. Nyayik Sewa.
As per Rule 8, the Court has to fix the number of officers to be taken at the recruitment for the year of recruitment in question keeping in view the vacancies then existing and likely to occur in the next two years. Thus, for 1990 recruitment, we are considering the vacancies till 31st December, 1992. While considering the matter of selection of direct recruitment from the Bar in the recruitment year 1988, the total sanctioned strength in the said cadre was worked out at 596 including deputation and leave-reserve posts. Against this, 15% for the direct recruits comes to 89, prior to 1988 recruitment 46 officers of direct recruits were working. Thus, in 1988 recruitment, 43 candidates of direct recruits were required to be selected, but only 24 candidates were selected. As such, there are 19 remaining vacancies which remained to be filled for 1990 recruitment year. Out of the aforesaid 24 selected candidates against 1988 recruitment, one was of Scheduled Caste and four were of Backward Classes. The quota of four Scheduled Caste against 24 candidates was to be filled but only one belonging to Scheduled caste was found suitable. Thus, the balance of these three belonging to Scheduled Caste were required to be filled up in the next recruitment, which is this recruitment in question, The aforesaid 19 vacancies included the deputation and leave reserve-posts, which were subsequently made permanent by the Government. However, while advertising for selection through direct recruitment for 1990, the vacancies of deputational and leave-reserve posts were not taken into consideration, hence only six vacancies were advertised adding Scheduled Castes candidates, as aforesaid, the total comes to nine. This break-up of the six advertised vacancies by way of direct recruitment according to the rule is, Scheduled Caste 1 (21% of six vacancies advertised) O.B.C. (27% of six vacancies), Scheduled Tribes nil, non-applied special, 3 physically handicapped or freedom fighter and ex-servicemen nil (5% of six vacancies). This makes up one Scheduled Castes being carried forward as aforesaid. The total vacancies for Scheduled Castes candidates thus comes to four. The Committee did not enhance the vacancies from six to nineteen in view of the decision of the Supreme Court in the case of State of Bihar v. Madan Mohan and others, AIR 1994 SC 765, which rejected the decision of enhancement of the recruitment beyond what was advertised. However, this balance vacancy, which could not be filled through this selection in view of limitations, is carried forward to the next recruitment.
The Committee in order to maintain the minimum standard in the Higher Judicial Service decided that the candidates, who have secured marks below 35% in the reserved category and below 45% in the general category be not called in the interview. Thereafter, the Committee considered the marks obtained by various candidates and found that none of the candidates belonging to the Scheduled Castes secured qualifying marks within the said criterion. Hence, no candidate from the Scheduled Castes was called for interview. The interview was subsequently held for other reserved categories, as aforesaid, and general candidates and such candidates were called for interview in the ratio 1 : 4.
The Committee further scrutinised the cases of O.B.Cs. to eliminate the creamy-layer from O.B.Cs. by obtaining the forms from each candidate initially falling under Schedule II of U. P. Act No. IV of 1994, U, P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Though the said information was obtained from each of the candidates belonging to O.B.C. but the said Act was held ultra vires by the Supreme Court through judgment dated 4th September. 1995. with the direction for the selection of 1995-96, to eliminate the creamy-layer form the O.B.Cs., it should be on the basis of Office Memorandum issue by the Central Government dated 8th September, 1993. In terms thereof, prescribed forms were sent and information received from each candidate but the Committee found none of the candidates belonging to the creamy-layer.
Thus, selection through direct recruitment was made for the three vacancies in the general category and two vacancies in the reserved category (O.B.C.). The 4 candidates of Scheduled Castes did not qualify for interview, as aforesaid, the Committee recommended that the said 4 vacancies of the Scheduled Castes candidates be now filled in the next recruitment. The Committee feels, in view of inordinate delay, the next recruitment, both 1992 and 1994. be initiated at the earliest and be held compositely.
List 'I' annexed to this report is double of the vacancies both of the general category and reserved category (O.B.C.) in order of their merit. List 'II' is the names of all the 12 candidates called in interview in the general category according to merit along with obtained by them and List 'II' is of all the 8 candidates in the reserved category (O.B.C.). who were called for interview according to their merit along with marks obtained. List TV is the combined merit list inter se general category and O.B.C. out of the aforesaid 20 such candidates called for interview in their respective categories along with marks obtained by them.
This Committee also considered the second source of recruitment, viz., through promotion from amongst the members of the U. P. Nyayik Sewa within their respective quota for the year in question. From the office report out of the aforesaid 596 vacancies existing on 31st December, 1992. after excluding such members of the U. P. Nyayik Sewa, who have already been absorbed in 1988 recruitment which also covered the same period upto 31st December. 1992, as per the Full Court resolution, all posts in the quota of promotees have been filled up, rather one over and above the quota has been appointed. This Committee for the recruitment is recommending 5 direct recruits only as aforesaid, through the quota comes to 19, 14 are carried to the next recruitment. According to Rule 8 (2) "if at any selection the number of 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 view of this, 14 vacancies of the direct recruits which could not be filled in this recruitment are allocated to the members of the Nyayik Sewa. Thus, after deducting this one already appointed over and above the quota, 13 go to the members of Nyayik Sewa.
List 'A' is a list of 39 members of the U. P. Nyayik Sewa. whose cases were considered for promotion to the aforesaid 13 vacancies. In considering their cases the committee examined their annual confidential remarks including the representations as against the adverse remarks, if any. and consequential orders passed on it for the last five years from the years 1989-90 to 1993-94 and other relevant papers. Where Court's remarks were not available for the years in question, the Committee based its assessment on the remarks given by the District Judge, the Committee also considered the cases of the officers of the U. P. Nyayik Sewa who had been passed over by the earlier Selection Committee.
List "B" contains the names of the officers who are found fit to be promoted to the U. P. Higher Judicial Service.
List "C" contains the names of the officers who have not been found fit to be promoted to the U. P. Higher Judicial Service.
Reasons for finding fit and not finding fit for promotion have been recorded in the aforesaid two lists, viz., 'B' and list 'C'.
(Mr. Justice A. P. Misra) Chairman (Mr. Justice Om Prakash) Member .
(Mr. Justice T. P. Garg) Member."
4. The Selection Committee, constituted under the Rules, not only selected six persons found fit for the notified vacancies, it had also directed that really the vacancies for direct recruitment were 19 and as only six could be selected in terms of the advertisement, the rest of the posts were to be utilised for promoting eligible candidates from the Nyayik Sewa. This selection was made in exercise of the powers under Rule 8 (2) of the Rules as per the report of the Selection Committee. The aforementioned report was put up before the Full Court on 18.11.1995 which resolved as follows under Resolution No. 2 dated 18.11.1995 :
"2. Considered the report dated 2.11.1995 of the Selection Committee consisting of Hon'ble Mr. Justice A. P. Misra, Hon'ble Mr. Justice Om Prakash and Hon'ble Mr. Justice T. P. Garg relating to selection of candidates for appointment to the U. P. Higher Judicial Service. Resolved that the same be accepted. The following three candidates are selected in order of merit from the general category by direct recruitment :
1. Sri Desh Bhushan Jain.
2. Sri Mahendra Dayal, and
3. Sri Virendra Vikram Singh.
The following two candidates are selected in order of merit from the O.B.C. category by direct recruitment :
1. Sri Uma Shanker Tomar. And
2. Sri Het Singh Yadav.
The following thirteen candidates are selected by promotion in order of seniority :
1. Sri Surendra Pratap Singh,
2. Sri R. K. Kulshrestha,
3. Sri Suraj Prasad Shukla,
4. Sri Mohan Kumar Bansal,
5. Sri Shri Prakash Jain.
6. Sri Aditya Prasad Chauhan,
7. Sri Anant Ram Kureel.
8. Sri Suresh Kumar Srivastava,
9. Sri Hari Har Shukla.
10. Sri Syed Qutub Uddin,
11. Sri Ashok Kumar Kacker.
12. Sri Subodh Kumar, and
13. Km. Manju Rani Gupta.
Further resolved that the names of the following three candidates who have been selected by the Committee by direct recruitment in order of merit under general category be placed in the waiting list :
1. Sri Avinash Kumar Sharma,
2. Sri Prem Shanker Mishra, and
3. Sri Dinesh Kurnar Gupta.
Also resolved that the names of the following two candidates who have been selected by the Committee by direct recruitment in order of merit under O.B.C. category be placed in the waiting list :
1. Sri Shitla Prasad Singh. And
2. Sri Brij Kishore Verma.
Further resolved that the names of the following candidates who have been selected by the Committee by promotion in order of seniority be placed in the waiting list :
1. Sri Jai Krit Singh Negi,
2. Sri Neyaz Ahmad. II,
3. Sri Shamshad All.
4. Sri Prem Mohan Srivastava,
5. Sri Ram Chandra Nigam.
6. Sri Khalid Iqbal.
7. Sri Rama Kant Singh,
8. Sri Ram Lal,
9. Sri Ashok Kumar Singh. II.
10. Sri Nirmal Kumar Jain, and
11. SrlChandraBhan, II.
The list shall remain operative till the next recruitment.
It is further resolved that the names of the candidates selected by the Court by direct recruitment and by promotion be forwarded to the Governor as contemplated under Rules 18 (4) and 20 (5) of the U. P. Higher Judicial Service Rules. 1975."
5. The petitioners, in course of their arguments, had taken several objections concerning non-observance of the Rules. It was stated that only six vacancies were notified, although in fact 19 vacancies were in existence for direct recruitment on the date of publication of the advertisement. There was, thus, a suppression of fact and it was argued that this suppression was deliberate at the instance of certain officials in the Registry of the High Court. It was further stated that the High Court had no authority to withhold any vacancy which according to the Rules, lay only with the Governor under Rule 4 (4) of the Rules. The petitioners also contended that under Rule 8 (2) of the Rules, only those vacancies, which were notified, could come under the purview of the Rule and if any one or more of such notified vacancies could not be filled in by direct recruitment, the High Court could fill up those vacancies by promotion of candidates from the Nyayik Sewa. It was contended that the Selection Committee and the Full Court acted arbitrarily, firstly, by withholding 13 vacancies at one stage and then taking recourse to Rule 8 (2) of the Rules to fill up the said vacancies by promotion, although those were meant for direct recruitment and were never advertised. Most of the petitioners claimed appointment on the basis of the fact that the exact number of vacancies were 19 and had the same number been notified, the petitioners would have come within the zone of selection and they should have been given appointment. The decision in the case of O. P. Garg, is most relevant on the last mentioned point.
6. Vacancies in the different cadre posts under the H.J.S. are to be filled in from three sources, as aforesaid, but the real dispute arises in between the claims and counter claims by the promotees and direct recruits. One such matter had been taken to the Supreme Court and the decision therein is relevant to the present controversy before us. This was the case of O. P. Garg and others v. State of U. P. and others. The first petitioner in that case has now been elevated as an Hon'ble Judge of this High Court. The decision of the Supreme Court in this case stands in AIR 1991 SC 1202. It was indicated therein (vide paragraph Nos. 30, 32 and 34) that even for temporary addition to the cadre of H.J.S., the quota Rule has to be applied to the temporary posts and it would not be confined to the promotees alone but would be available to the direct recruits as well. In the light of such finding, the Supreme Court held that the then existing Rules 22 (3) and 22 (4) of the Rules were discriminatory and violative of Articles 14 and 16 of the Constitution of India and the same were struck down. It was directed that while selecting candidates under Rule 18 the Committee was to prepare a merit list of candidates twice the number of vacancies and the said list was to remain operative till the next recruitment. Rule 18 dealt with direct recruitment. The Supreme Court further directed that the appointment under Rules 22 (1) and 22 (2) was to be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the 1975 Rules.
7. To appreciate the objections raised in the writ petitions against the selection process, we may look to the provisions of the U. P. Higher Judicial Service Rules, 1975 (for short called as the '1975 Rules'). The relevant Rules are quoted below :
"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 officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years.
Note.--The limitation of three years mentioned in this sub-rule shall not apply to the first recruitment held after the enforcement of these rules.
(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 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 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 15 per cent of the 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 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 per cent by direct recruitment :
(ii) 30 per cent from out of the Judicial Magistrates ;
(iii) 55 per cent from out of the members of the Nyayik Sewa."
x x x x x "16. Selection Committee.--(1) The Chief Justice shall, for each recruitment to the service, appoint a Selection Committee consisting of such number of Judges of the Court, not less than three, as he may decide.
(2) No proceeding of the Selection Committee shall be invalid merely by reason of a vacancy occurring in it, or by a member or members being not present at one or more of it s meetings, provided that a majority of the members of the Committee have been present at each meeting."
x x x x x
22. Appointment.--(1) Subject to the provisions of sub-rule (2), the Governor shall on receipt from the Court of the lists mentioned in Rules 18. 20 and 21 make appointment 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 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) in the eventuality of delay in making appointment under sub-rule (1) and further if exigency of service so requires, the Governor may. In consultation with the Court, make short-term appointment as a stop-gap arrangement from amongst the members of Nyayik Sewa in the vacancy in these service within the quota fixed by the Court till the appointments are made under sub-rules (1) and (2) :
Provided that the period of service spent by a member of Nyayik Sewa on short-term appointment to the service as a stop-gap arrangement shall not be computed for seniority under Rule 26."
Part II of the Rules of 1975 spoke of the cadre and Rule 4 under this part dealt with strength of service. In sub-rule (4) thereof, it is provided that the Governor may from time to time in consultation with the High 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. Rule 5 spoke of the three sources of recruitment as Indicated earlier and Rule 6 fixed the quota of direct recruitment to 15% (per cent), on promotion from Nyayik Sewa to 70% and promotion from the cadre of the U. P. Judicial Officers' Service to 15%. Rule 6 provided further that if in calculating the number of vacancy the quota came in fraction then less than 1/2 (half) would be ignored and fraction of 1/2 or more would be counted as 'I' (one). It was further indicated that as the cadre of Judicial Magistrate was getting depleted, the quota allotted to that branch might be filled by promotion from amongst the Nyayik Sewa Officers, if there be any short fall in filling up the vacancy from that quota. Rule 7 spoke of reservation.
8. Rule 8 again is very important for the instant dispute. It empowers the High Court, rather it is an obligation to it by use of the term 'shall', to 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. This exercise is to be done from time to time but not later than three years from the last recruitment. Sub-rule (2) of Rule 8 provides that 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. Rule 8 (2) must be read with Rule 8 (1) and the words used in sub-rule (2) 'the number of recruits decided by the Court to be taken from that source' could only mean the number fixed by the Court for recruitment from a particular source as per Rule 8 (1).
9. For direct recruitment, the procedure has been indicated in Part IV of the Rules. Applications are to be invited by publication of notice in leading newspapers and the Selection Committee constituted under Rule 16 is to scrutinise the applications, hold such examination as may be thought necessary, and thereafter call the candidates for interview and only thereafter the Selection Committee shall make a preliminary selection and submit the records of ail candidates to Hon'ble the Chief Justice with their recommendation of the names of the candidates in order of merit. Only thereafter the Court is to examine the recommendations and having regard to the number of direct recruits to be taken prepare a list of selected candidates in order of merit, forward the same to the Governor, who is the ultimate authority for appointment. Under this procedure, the Court is required to have regard to the number of direct recruits to be taken and when this provision is read with Rules 8 (1) and 8 (2), the only log