The Allahabad High Court has dismissed the petition filed by UP Judicial Services Association seeking a direction allowing them to appear for the suitability test 2020 for promotion to UP Higher Judicial Service.
The Division Bench of Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi passed this order while hearing a petition filed by Up Judicial Services Association through Its Secy. General Harendra Bahadur Singh and 39 Others.
The writ petition has been filed by the U. P Judicial Services Association and 39 others. The petitioner’s case is that presently the petitioner nos 2 to 40 are working on the post of Civil Judge (Senior Division) / Additional Chief Judicial Magistrate / Chief Judicial Magistrate.
The year of recruitment of each of the petitioners, the dates of their promotion to the post of Civil Judge (Senior Division) and the respective places of their present posting has been given in the petition in a tabular form. It has further been stated in the writ petition that the services of petitioners were confirmed on 11.08.2021.
On 17.12.2020, the Court had issued an advertisement inviting applications for filling up 98 vacancies of the Higher Judicial Service for the recruitment year 2020 through direct recruitment from amongst the eligible Advocates under 25% quota provided in Rule 6 (ii) of the U.P Higher Judicial Service Rule 1975, out of which 87 were current vacancies and 11 were unfilled vacancies of reserved category of previous recruitment year.
The petitioners have stated that as the quota of direct recruitment as provided in Rule 6 (ii) of the Rules of 1975 is 25%, a total of 348 vacancies would be available in the recruitment year 2020 for U. P. Higher Judicial Services and, therefore, after deducting 11 posts of backlog quota from 65% of posts i.e 226 posts, a total of 215 posts out of 348 vacancies of Higher Judicial Services, which occurred in the recruitment year 2020, are to be filled up by promotion from amongst the Civil Judges (Senior Division).
The U.P Judicial Services Association (the petitioner no1) claims to have submitted a representation on 21.01.2021 to the Registrar (Selection and Appointment) of the High Court stating that the Judicial Officers in the Civil Judge (Senior Division) Cadre falling in the Zone of consideration (three times of number of vacancies advertised) who have completed more than two years of service in the Civil Judge (Senior Division) Cadre, be permitted to appear in the suitability test for promotion to the Higher Judicial Service Cadre to maintain the quota for promotion as per the Rules of 1975 and to fill the current vacancies, which will increase by the year 2022 due to retirements in the Higher Judicial Service Cadre.
On 30.05.2022, a notice was issued by the Court stating that the suitability test – 2020 for promotion of officers in U.P Nyayik Seva to U.P Higher Judicial Services will be held on 11.06.2022. The admit cards of suitability tests may be downloaded by the officers – candidates. A list of 150 officers, who have completed three years’ service as on 31.12.2021 in the cadre of Civil Judge (Senior Division), including the names of the officers who are working as Additional District Judge (FTC), and are eligible to appear in the suitability test 2020 under Rule 22 (3) of the Rules of 1975 has been annexed with the notice.
The petitioners have stated that there are 215 vacancies in the Higher Judicial Service for the recruitment year 2020 available for being filled up by promotion of Civil Judges (Senior Division) under Rule 5 (a) of the Rules of 1975 but the list issued on 30.05.2022 contains the names of only 150 eligible officers, which is not in consonance with the provisions of Rule 20 (2) of the Rules of 1975.
As per the petitioners, the fixation of the cut of date as 31.12.2021 and imposition of the condition of having completed three years’ service as on 31.12.2021 in the cadre of Civil Judge (Senior Division) for eligibility to appear in the U.P Higher Judicial Service Suitability Test 2020 violates Rule 5 (a) of the Rules of 1975, as the condition of having completed three years’ service in the cadre of Civil Judge (Senior Division) has not been provided as an eligibility condition in the Rule. The promotions are to be made from amongst the Civil Judges (Senior Division) on the basis of merit – cum – seniority and passing the suitability test under Rule-5 (a) of the Rules of 1975, without any reference to the length of their service.
The petitioners have further stated that on 18.05.1985, a Full Court Resolution had been passed by the Court providing that “no officer of the Nyayik Seva shall be appointed to any post in any capacity in the Higher Judicial Service unless he has held the post of Civil Judge / Chief Judicial Magistrate at least for three years and his work and conduct has been satisfactory in all respect.”
The petitioners have submitted that at the time of passing of the aforesaid Resolution on 18.05.1985, there were only two sources of recruitment of Higher Judicial Service; (I) 15% direct recruitment from amongst the Advocates and (II) 85% by promotion and no suitability test was provided for promotion of any service candidates.
As per the petitioners, this Resolution has lost its efficacy and applicability since the Rules of 1975 were amended in the year 2007 and the aforesaid Resolution violates Rule 5 (a) of the Rules of 1975.
The petitioners have further submitted that they have completed more three years’ service as Civil Judges (Senior Division) as on 30.05.2022 and they have wrongly been left out from the list published on 30.05.2022 against the provision contained in Rule 20 (2) of the Rules of 1975 as the number of officers to be included in the list for suitability test ought to have been four times of the number of vacancies earmarked for being filled up by promotion from the officers of UP Nyayik Seva. As per the petitioners, the eligibility list published on 30.05.2022 should consist of 860 candidates in view of Rule 20 (2) of Rules of 1975.
The petitioners have prayed for quashing of the Resolution passed in the meeting of the Full Court held on 18.05.1985 as also quashing of the Resolution, if any, passed by the Selection and Appointment Committee of the Court to the extent of holding the petitioners to be ineligible for being considered for promotion under rule 22 (1) of the Rules of 1975 for the reason that they have not completed three years of service on the post of Civil Judge (Senior Division) as on 31.12.2021 and they have prayed for a direction to the opposite parties to hold all the remaining Civil Judges (Senior Division), including the petitioners, as eligible for appearing in UP Higher Judicial Service Suitability Test 2020.
The petitioners have further prayed for issuance of a direction to the opposite parties to modify the notification dated 30.05.2022 so as to include the names of the petitioners as suitable for appearing for U.P Higher Judicial Services Suitability Test 2020.
Per contra, Gaurav Mehrotra, the counsel appearing for the opposite party no 2 – the High Court of Judicature at Allahabad, has raised three-fold preliminary objections against the maintainability of the writ petition. The first objection raised by Mehrotra is that the petitioner no1 is an Association and the writ petition filed by an Association seeking relief for its members is not maintainable.
Keeping in view the law laid down by the Full Bench of the Court in the case of Umesh Chand Vinod Kumar (supra), we are of the considered opinion that the petitioner no 1 – Association has no right to maintain the writ petition which has been filed for ventilating the grievances of a class of its members, the Court observed.
The Court said that, we find substance in this objection as the petitioner numbers 2 to 40 cannot represent the remaining Civil Judges (Senior Division), who have chosen not to file a Writ Petition and the petitioner numbers 2 to 40 have rightly not filed this Writ Petition in a representative capacity. Therefore, no relief can be sought in this Writ Petition on behalf of the remaining Civil Judges (Senior Division), who have chosen not to file a Writ Petition.
The scope of interference by the Court while deciding the petition for issuance of Certiorari is limited to examining the decision making process by examining whether the decision making process suffers from any illegality or infirmity. The correctness of the decision cannot be examined by this Court while deciding a petition for issuance of a writ of Certiorari. The decision can only be examined on the touchstone of reasonableness and arbitrariness but the sufficiency or correctness of the reasons cannot be gone into by this Court. A writ of Certiorari cannot be issued where there can be two opinions about the correctness of the decision.
The Court found that the list of only those Civil Judges (Senior Division) who have completed three years’ service has been prepared treating them eligible to appear in the Suitability Test 2022 under Rule 22 (3) in furtherance of decision of the Selection and Appointment Committee which has formed a reasoned opinion in exercise of its power under Rule 20 (3) that only those officers are fit to be considered for appointment on the basis of merit-cum-seniority who have completed a minimum period of three years on the post of Civil Judge (Senior Division). This decision has been taken by the Selection and Appointment Committee keeping into consideration that the vacancies had occurring up to 31.12.2021 and it was felt not to be proper to go beyond that date to fix any date to determine the qualifying service in Civil Judge (Senior Division) cadre for consideration of their promotion to Higher Judicial cadre. The Committee was also of the opinion that by inclusion of Civil Judges (Senior Division) who have not completed three years on the said post would result in higher number of the Courts of Civil Judge (Senior Division) falling vacant and this would create a situation where the cadre of Civil Judge (Senior Division) will collapse owing to huge number of vacant Courts. Therefore, the list of officers prepared under Rule 22 (3) of the Rules of 1975 consequent to the aforesaid decision, needs no interference by this Court in exercise of its Writ jurisdiction.
The Court further said that, moreover, so far as the submission of the petitioners that the decision is violative of Rule 5A of the Rules 1975 which was framed in furtherance of the judgment of the Supreme Court in the case of All India Judges Association (supra), it is significant to mention that in the same judgment, the Supreme Court had directed “any clarification that may be required in respect of any matter arising out of this decision will be sought only from the Court. The proceeding, if any, for implementation of the directions given in this judgment shall be filed only in this Court and no other Court shall entertain them.”
“The petitioners are in effect seeking implementation of the directions issued by the Supreme Court contained in paragraph 28 (1) (a) of the judgment in the case of All India Judges Association (supra). In view of the prohibition contained in the aforesaid judgment, the Court has been restrained from entertaining the proceedings for implementation of directions given in the judgment and, therefore, we are of the considered opinion that the Court cannot entertain the writ petition”, the Court further observed while dismissing the petition.