Supreme Court: Deciding the validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh, the bench of AK Goel and RF Nariman, JJ held that the promotees could not be given promotion without suitability test nor could they claim seniority without the same.
The question for determination before the Court was whether the promotees recruited in the year 2008/2009 are entitled to seniority prior to their selection on the ground that no suitability test was required prior to 9th January, 2007 and retrospective effect to such requirement was illegal. Upholding the decision of the High Court, the Court held that the suitability test was required in terms of judgment of this Court in All India Judges Association v. Union of India, (2002) 4 SCC 247 and under the amended Uttar Pradesh Higher Judicial Service Rules, 1975 applicable retrospectively which was duly upheld by this Court in V.K. Srivastava v. Govt. of U.P., (2008) 9 SCC 77.
With regard to the Quota-Rota rule, the Court said:
“there is no doubt that this is a mandatory requirement of the Rules. The said requirement has however to be seen in the peculiar fact situation. The issue of determination of vacancies was embroiled in continuous litigation. The Quota-Rota rule could not be applied in the absence of determination of vacancies. The suitability test though validly laid down could not be held till 2008 for reasons already noted. No promotion could be given in absence of suitability test. The rule provided for seniority of the promotes to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees. Thus, the Rules will have to be given pragmatic interpretation.”
Background of the Amendment:
The Rules as originally framed envisaged three sources of recruitment – direct recruitment from the bar, promotion from members of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of cadre of judicial magistrates. There was also a provision for quota for the different sources. However, the said Rules were amended as per the All India Judges Association verdict. The U.P. Higher Judicial Service (Sixth Amendment) Rules, 2006 were notified on January 09, 2007and by the said amendment, the criteria for recruitment by promotion was changed. Requirement of passing a suitability test was incorporated. There was also modification about the percentage of quota. The suitability test in pursuance of the said amended rules was held for the first time in the year 2008. [High Court of Judicature at Allahabad v. State of Uttar Pradesh, CIVIL APPEAL NO. 3356 OF 2018, decided on 28.03.2018]