V.S. Kokje, J.
1. The appellant in D.B. Civil Special Appeal No. 410/98 who was a candidate for direct recruitment in the Rajasthan Higher Judicial Service ('RHJS' for short), and who stood 8th in the merit list of Selection had filed a petition in this Court claiming that she was entitled to be declared selected and be appointed or considered for appointment as, on a correct calculation, the vacancies for direct recruitment in the RHJS in accordance with the applicable rules came to 10 and not 7 and the petitioner being the 8th selected candidate was entitled to appointment against the post. The learned Single Judge dismissed the petition and this therefore, is an appeal by the appellant- petitioner under Clause 18 of the Rajasthan High Court Ordinance.
2. An advertisement dated 31.10.1994 was published by the High Court inviting applications for being considered for appointment in the RHJS against 7 vacancies including the two vacancies reserved for candidates belonging to Scheduled Castes and one vacancy for a candidate belonging to Scheduled Tribe. It was also stipulated in the advertisement that the number of posts could be increased.
3. The recruitment to RHJS is governed by Rajasthan Higher Judicial Service Rules 1969 ('the Rules' for short), as amended from time to time. Rule 6 of the Rules provides for the strength of the service and also provides for varying the strength from time to time. Rule 9 of the Rules provides that the number of persons appointed to the Service by direct recruitment shall at no time exceed one third of the total strength of service. It is also provided that subject to the aforesaid limit every 4th person after three persons appointed by promotion in the Service, has to be a direct recruit. The appellant Veena Verma contends that on a correct application of the aforesaid rules the correct calculation of vacancies comes to 10 and not 7. She, therefore, submits that if the vacancies had been correctly calculated by the High Court she would have been among the 10 selected candidates and, therefore, would have been appointed as a result of the selection.
4. The respondents, on the other hand, contend that the appellant-petitioner had no legal right to maintain a petition for getting herself declared to be selected or appointed. According to the respondents, vacancies had been correctly calculated on a correct interpretation of the rules and the appellant has no right to challenge the calculation of vacancies as she could not compel the respondents to advertise more posts or to appoint more persons than the respondents decided to do.
5. The learned Single Judge, after examining the rival contentions, came to the conclusion that on a correct interpretation of Rule 6 of the Rules, the cadre strength has to be taken to be changed by orders passed under Sub-rule (2) of Rule 6. According to the learned Single Judge the cadre strength has to be seen in the light of the orders passed under Rule 6(2) and once the order under Rule 6(2) is passed the number given in Schedule I loses its significance and the strength of the cadre would be the strength varied by the orders passed under Rule 6(2). However, the plea of the appellant that there were ten vacancies calculated on the correct interpretation of the Rules did not find favour with the learned Single Judge. The learned Single Judge found that the selection was for a definite number of posts though the advertisement mentioned that the vacancies could be increased. The learned Single Judge observed that no increase in the vacancies was ordered or effected by the High Court and, therefore, when there were only 28 vacancies in the RHJS, 7 was the quota for the direct recruits.
6. The main points to be determined in this case, therefore, are; (1) what would be the cadre strength on correct interpretation of the Rules?, (2) whether the High Court correctly calculated the vacancies for direct recruitment at the relevant time? ; (3) whether the appellant-petitioner could compel the High Court to increase the vacancies to the maximum permissible limit under the restrictions provided by the rule and to appoint or consider appointment of the appellant-petitioner to a post in the RHJS?.
7. Let us first look to the position of the rules. Rule 6 of the Rules provide for the strength of the Service. It reads as under--
6. Strength of the Service: (1) The strength of the Service shall, until orders varying the same have been passed under Sub-rule (2), be as specified in Schedule.
(2) The strength of the service may be varied by the Governor from time to time, in consultation with the Court.
(3) Notwithstanding anything contained in Sub-rules (1) and (2), the Governor may, in consultation with the Court, hold any appointment to the service in abeyance for such time as he deems fit, without thereby entitling any person to compensation.
8. Rule 7 of the Rules provides that for the purpose of recruitment to the Service the principles and procedures of recruitment and promotion Land down shall be followed.
9. Rule 8 provides that recruitment to the Service shall be made; (i) by promotion from amongst the members of the Rajasthan Judicial Service or (ii) by direct recruitment from the advocates practising in the court or courts subordinate thereto for a period of not less than seven years.
10. Rule 9 provides for appointment to the Service. It reads as under--
9. Appointment to the service--(1) Subject to the provisions of these rules, appointment of persons to the service shall be made by the Governor on the recommendation of the Court made from time to time;
Provided that the number of persons appointed to the service by direct recruitment shall at no time exceed one third of the total strength of the service.
(2) Subject to the provisions of Sub-rule (1), after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. If a suitable person is not available for appointment by direct recruitment, the post may be filled by promotion from amongst the members of the Rajasthan Judicial Service.
11. Rules 6, 7, 8 and 9 provide the scheme of recruitment. The proportion of promotes and direct recruits in the RHJS has to be maintained in accordance with Rule 9. Rule 9 provides two things; (1) the number of persons appointed to the Service by direct recruitment shall at no time exceed one third of the total strength of service. Thus, a maximum limit of one third at any given point of time is provided for appointment of direct recruits in the Service in the RHJS; (ii) the second condition which Rule 9 puts is that after every three persons appointed by promotion, the fourth person shall, as far as possible, be appointed by direct recruitment. The proportion has to be maintained keeping in view the total strength of the service.
12. The strength of service as per Rule 6 is the strength of service specified in Schedule I until orders varying the same have been passed under Sub-rule (2). Sub-rule (2) of Rule 6 provides that the strength of the service may be varied by the Governor from time to time in consultation with the Court. The question arises as to whether the strength of the service can be taken to be varied by the Governor creating posts in consultation with the Court without specifically amending the Schedule I, specifying an increased number of posts therein. The appellant's interpretation which has been accepted by the learned Single Judge appears to be correct. Amendment of the Schedule is not necessary and by creation of posts the strength of service has to be taken to be varied from time to time. The respondents, however, submitted that the proper and correct construction to be put on Rule 6 would be that the strength of the service can only be varied by amendment of Schedule I and mere orders creating posts in the RHJS exceeding the number of posts mentioned in the Schedule cannot be taken to be orders passed under Sub-rule (2) of Rule 6 varying the strength of the service.
13. It was pointed out on behalf of the respondents that the term 'member of the Service' has been defined in Rule 3(f) of the Rules to mean a person appointed in substantive capacity to a post in the service. It was also pointed out that Rule 22 provides for temporary or officiating appointment of a person from amongst the persons who are eligible for appointment to the Service by promotion under Clause (1) of Rule 8 only when temporary or permanent vacancies occur.
14. Having heard the learned Counsel we are of the opinion that on harmonious construction, creation of posts beyond the cadre strength mentioned in Schedule. I have to be taken to be increase in the strength of the Service under Sub-rule (2) of Rule 6. If a narrow interpretation is accepted, the rule would completely defeat the provisions of Rule 8 and Rule 9 and would bring about a situation whereby a mere non-amendment of the Schedule the provisions for direct recruitment to the RHJS can be effectively done away with. If the Schedule is not amended but the posts are created without counting such posts in the strength of the service, Rule 9 cannot operate beyond a limit. Once a total of one third of the number of posts mentioned in Schedule I is reached, direct recruitment thereafter could only be held against the posts which are vacated by the persons directly recruited. If the newly created posts, without amending the Schedule, are not allowed to be shared by the direct recruits, the provisions for maintaining a certain proportion amongst promotees and direct recruits will be effectively defeated. Such an interpretation, therefore, leads to an absurd and retrograde result which cannot be accepted. We are in perfect agreement with the learned Single Judge that the posts created beyond the specified number in the Schedule I shall be treated to be increase in strength under Rule 6 (2) of the Rules.
15. There is also no force in the argument based on Rule 22 that all the temporary or permanent vacancies have to be filled in by promotees alone and not by direct recruits and as the posts created beyond the number of posts in Schedule I can only be taken as temporary posts they have to be filled in by promotion only. Rule 22 is only for the purpose of temporary and officiating appointments and not for regular recruitment. The confusion is being created because of treating the posts created by separate orders under Rule 6(2) without amending the Schedule I as temporary vacancies. The vacancies obviously have to be in the RHJS cadre. If the RHJS cadre strength is full no appointments can be considered and made against posts which are created outside the cadre strength, as there would be no vacancies in the cadre strength. The Rule 22 will obviously not apply as it applies only to vacancies in the cadre strength only.
16. On the other hand, if the cadre strength is taken to be increased by creation of posts under Rule 6 (2) of the RHJS Rules such increase will be in substantive posts to be included in the cadre strength and regular appointments could be made against such posts maintaining the ratio between promotees and direct recruits as per rules. It is not permissible to count the posts created in excess of the number of posts in Schedule I to be vacancies for the purpose of Rule 22 and not to count them for the purpose of Rule 6 (2), while calculating vacancies in the strength of the Service.
17. On the interpretation of Rule 9, arguments were advanced to suggest that there is a quota of 25% only and not of 33% reserved for direct recruits. The language used is very simple and plain. Only two conditions are prescribed; one is that the maximum of direct recruits in the strength of Service shall at no time exceed one third of the total strength of Service and the second is that every fourth person after three promotions has to be a direct recruit. It was argued that the words 'as far as possible' contained in Sub-rule (2) of Rule 9 dilute the rigour of the rule and leave it to the respondents to appoint such fourth person if possible. This is clearly a wrong reading of the rule. The words 'as far as possible', clearly relate to the condition imposed by Sub-rule (1) of Rule 9. If the proportion of direct recruits in the total strength of Service would exceed one third by further appointments then, and then only, it could be said that it was not possible to appoint a person by direct recruitment. It does not give a licence to the respondents to refuse to appoint every fourth person by direct recruitment on the ground that it was not possible for any other reason than the maintenance of the limit of one third of the total strength imposed by Sub-rule (1) of Rule 9 on direct recruitment.
18. Having thus cleared the legal position, we consider the factual aspect as to the strength of the RHJS as the determination of the number of vacancies at the relevant time would depend on the strength of the Service at that particular time. As per the reply filed by the High Courta committee was constituted by the Full Court for determination of vacancies and that Committee determined 28 vacancies in the RHJS for the period from 1.8.1991 to 31.7.1992. As every fourth vacancy amongst these had to go to direct recruits, the number of vacancies reserved for direct recruitment came to 7. For these vacancies determined for a period upto 31.7.1992, the advertisement dated 31.10.1994 was issued. As the advertisement was delayed, it appears that for increase in the posts between 31.7.1992 and 31.10.1994 it was stipulated in the advertisement that posts were likely to increase.
19. We had directed the learned Counsel for the High Court to submit before us date-wise charts showing the vacancy-position from time to time. The position which emerges is that at the relevant time, the number of posts in the RHJS mentioned in Schedule I to the Rules was 89 only against which factually more than 200 persons were holding posts which were expected to be manned by members of the RHJS. On 31.7.1992, 17 direct recruits and 66 promotees were occupying posts in RHJS on substantive basis whereas a total of 167 Officers were working in the posts of RHJS level including those appointed on substantive basis, officiating basis and adhoc basis. On the date of the advertisement the position was that 20 direct recruits and 63 promotees were working in the RHJS on substantive basis whereas the total number of Officers manning the posts of RHJS level was 204. The statistics produced by the High Court further shows that on 31.7.1992, 31 courts of District and Sessions Judges, 56 courts of Addl. District and Sessions Judges and 23 Courts which have to be manned by Officers of the level of members of the RHJS were available in the State. The total courts available for members of the RHJS Officers were 110. Besides this, there were 5 family courts and 18 other Tribunals and Courts expected to be manned by RHJS Officers available. Also besides this, three posts were available on deputation either at the High Court Registry or the State Government and other autonomous Bodies. Thus, the total courts available for being manned by the RHJS Officers by 31.7.92 was 176. It is true that so far as deputation on posts which are not to be exclusively manned by members of the RHJS, the Government or autonomous bodies are not obliged to take members of the RHJS on deputation and, therefore, sending of Officers to such posts on deputation depends upon their acceptance. Such posts, therefore, cannot be counted while counting the strength of Service. Even otherwise, such posts are not created by the Governor in consultation with the High Court under Rule 6 (2) so that they can be taken to be variance of the strength of the Service under Rule 6 (2) of the Rules. However, this is not the case with the posts for which qualification for appointment itself is being a member of the Judicial Service. Such posts cannot be taken to be posts which are not to be reckoned for the purpose of determining vacancies for direct recruitment. The position as on 31.10.1994 when the vacancies were advertised was that, 32 courts of District Judges, 60 courts of Addl. District & Sessions Judges, 30 posts of RHJS level, 5 Consumer Fora, 21 posts in Tribunals and Boards, 39 posts for deputations to the Registry and State Government, 32 posts in Consumer Fora, totalling to 219 were available. Thus, as on 31.7.1992 against the factual 176 posts available, 167 Officers were posted to man them. Similarly, when 219 posts which could be filled in by appointment from the members of the RHJS were available as on 31.10.1994, only 203 Officers were posted to man them.
20. In such a situation, therefore, not to count such posts as are required to be manned by Officers of the level of RHJS, for the purpose of direct recruitment on the specious excuse that these are temporary posts created outside cadre for temporary period would not be justified. It would really be a fraud on the Rules requiring certain proportion to be maintained between the promotees and direct recruits. When Courts are created, posts of Judicial Officers to man them have to be taken as created by implication. It cannot be countenanced that Courts can be created without providing the posts of Judicial Officers to preside over them. Thus, whatever the nature or tenure of the post stated in the order creating it and irrespective of whether Rule 6 (2) is mentioned therein or not, if matching number of courts which can only be presided over by a RHJS Officer are available, the posts will have to be deemed to be created under Rule 6 (2) of the Rules enhancing the cadre strength.
21. Despite a perusal of voluminous records produced by the High Court before us, we find ourselves not fully equipped to finally determine the vacancies on the basis of the view we have taken. We also do not know the policy which is followed by the High Court or its Committees in determining the vacancies in the post. Determination of vacancies in the light of this decision therefore, has to be left to the High Court alone. The High Court shall keep in view the posts which are factually available for being manned by the Officers of the level of RHJS and treating them to be posts to be counted in the strength of Service, shall determine the vacancies available at the relevant time.
22. That brings us to the date with reference to which the vacancies are to be calculated. When the advertisement was issued on 31.10.1994, rationally the cut off date for consideration of the vacancies available could not have been more than a reasonable time before the advertisement. More than two years' time had elapsed between the date with reference to which vacancies were determined by the High Court and the date of the advertisement. This cannot be said to be a reasonable period. We see no reason as to why the vacancies available upto 31.10.1994 could not have been considered for the purpose of determination of vacancies for direct recruits.
23. Lengthy arguments were advanced on the point of appellant-petitioner's right to seek the prayers she has sought and the relief which could be granted in the circumstances by this Court. It is settled law that merely by selection a person does not get a vested right of being appointed but when the determination of vacancies, which is the basis of the number of posts to which recruitment would be held is shown to be erroneous, it is not a case where a person selected is claiming as of right to be appointed to the post. Actually when the advertisement itself gives out the number of posts to be flexible upwards, no finality can be attached to the number of posts mentioned in the advertisement. The advertisement only meant that atleast 7 posts were available and the number could increase. In such circumstances, it cannot be said that the appellant-petitioner could not have been given appointment on the Respondents finding that a mistake had been committed in calculating the vacancies available.
24. As regards the relief sought, the Court has always the power to mould the relief to suit the circumstances of the case. The appellant-petitioner cannot be thrown out because the appellant-petitioner, seeks appointment to the posts and in the alternative also submits that her claim may be directed to be considered.
25. In the aforesaid circumstances, we allow this appeal, set aside the order passed by the learned Single Judge and direct that within a period of two months from today, the High Court shall determine the vacancies as on 31.10.1994 on the basis of this decision, and if the High Court finds that the vacancies were more than seven, it shall consider the claim of the appellant- petitioner to be appointed to a post in the RHJS and recommend accordingly to the Governor. In the event of the High Court recommending appellant-petitioner for appointment to a post in the RHJS, she shall not be entitled to salary for the period prior to her factually taking over but she shall be entitled to seniority and other benefits like increment etc. as if she had been selected along with other seven persons selected and appointed. Needless to add, she shall get the seniority below the last person selected at No. 7 in the same selection.
26. There shall be no orders as to costs.