SRI KANT TRIPATHI AND ORS. versus STATE OF U.P. AND ORS.

Citation: [2001] SUPP. 2 S.C.R. 635 · Decided: 07-09-2001 · Supreme Court of India · Bench: G.B. PATTANAIK, RUMA PAL · Disposal: Disposed off

Judgment (excerpt)

SRI KANT TRIPATHI AND ORS. 
v. 
STATE OF U.P. AND ORS. 
SEPTEMBER 7, 2001 
[G.B. PATTANAIK AND MRS. RUMA PAL, JJ.] 
Service Law : 
UP. Higher Judicial Service Rules, 1975-Rule 4, 6, 8, 18, 20, 21 and 
22: 
Appointment to the Service through direct recruitment and promotees-
Fixation of respective quota and recruitment in different years as per Rules 
to fill up vacancies-Held, percentage of quota should be fixed on the basis 
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of actual vacancies i,7 a recruitment year and probable vacancies in next two 
years-Determination of quota on the basis of total cadre strength by High D 
Court is unsustainable-Directions in regard to appointments already made 
and future appointments-Issued 
Right of wait-listed candidates in getting appointment t<J the Service-
Discussed-Held, since the calculation was made on erroneous basis, question E 
regarding right of wait-listed candidates does not arise. 
The sequence of events leading to the present Appeals and Writ Petitions 
in respect of different recruitment y~ars is as under : 
Recruitment year 1988 : 
High Court issued an advertisement for filling up 5 vacancies in the 
Higher Judicial Service for direct recruitment under the U.P. Higher Judicial 
Service Rules, 1975. It was indicated in the advertisement that there may be 
variation in the number of vacancies. The Selection Committee, being of the 
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opinion that more direct recruits could be appointed than the number of posts G 
advertised, selected 9 persons. The High Court, however, recommended 7 
persons for direct recruitment. In August 1990, the High Court approved 68 
promotees from out of members of the U.P. Nyayik Sewa for promotion to the 
Higher Judicial Service on a temporary basjs under Rule 22(3) of the Rules. 
However, only 16 of the 68 promotees were given appointment. The 
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SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R. 
A unsuccessful promotees filed Writ Petition before High Court for filling up 
th.e promotees quota as per the Rules. 
In the meantime, this Court in O.P. Garg and Ors. v. State of UP., 
11991] Suppl. 2 SCC 51 struck down sub-rules (3) and (4) of Rule 22 as 
being violative of Article 14 of the Constitution since the sub-rules did not 
B permit appointment of direct recruits from the Bar for temporary posts. The 
Selection Committee, which was in the midst of the process of selecting 
persons, made necessary calculations and increased the number of posts 
available for direct recruits to 25, and they were appointed by the High 
Court. The High Court dismissed the Writ Petition filed by promotees as 
C infructuous as according to it the promotees were given promotion by that 
date and no cause of action arose. 
In appeal to this Court, the promotees contended that the High Court, 
instead of taking steps for filling up the promotion quota under Rule 20 of 
the Rules, was concerned with filling up the quota meant for direct recruitment 
D in the service. High Court submitted that the direct recruitment quota was 
fixed on the basis of percentage of the total cadre strength. 
The direct recruits contended that the Selection Committee and the 
Full Court has not committed any infirmity in appointing direct recruits in 
excess of the vacancies advertised since there was a variation clause in the 
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.. ..ivertisement; and that there would be no difference if the quota is calculated 
either on the basis of the vacancies available or on the basis of the total cadre 
strength. 
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Two Writ Petitions were filed under Article 32 of the Constitution by 
two advocates assailing the power and authority of the Selection Committee 
to increase the number of direct recruits and for quashing the appointment 
of 24 direct recruits since the advertisement was issued for filling up only 
5 vacancies; that such procedure debarred the petitioners from availing of 
their chances for appointment; and that a fresh process of recruitment 
should be started for filling up the direct recruitment quota. 
Recruitment year 1990 : 
High Court in 1992 issued an advertisement for filling up 6 vacancies 
with a variation clause through direct recruitment. Applicants filed Writ 
Petitions before High Court alleging anomalies in the process of recruitment 
H and challenging appointment of 13 promotees as being illegal as the vacancies 
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SRI KANT TRIPA THI v. ST ATE 
637 
were meant for direct recruits. Full Bench of the High Court allowed the A 
Writ Petitions holding that the appointment of 

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