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Orissa Judicial Services Association Cuttack And Another v. State Of Orissa And Others
Factual and Procedural Background
The Orissa Judicial Services Association filed a writ petition under Article 32 of the Constitution seeking (a) a declaration that Rule 7 of the Orissa Superior Judicial Service Rules, 1963 is unconstitutional, and (b) quashing of the High Court’s Notification dated 24 February 1987 inviting applications from members of the bar for direct recruitment to the Superior Judicial Service. The Association contended that continued direct recruitment from the bar hampers promotional prospects of officers in the Subordinate (Junior Branch) Judicial Service, causing stagnation and frustration. The State Government and the High Court filed counter-affidavits opposing the petition. After hearing counsel for all parties, the Supreme Court delivered the present decision.
Legal Issues Presented
- Whether direct recruitment of advocates to the Senior Branch of the Orissa Superior Judicial Service is constitutionally permissible under Article 233 of the Constitution.
- Whether Rule 7 of the Orissa Superior Judicial Service Rules, 1963—empowering the State Government, in consultation with the High Court, to decide whether a vacancy be filled by direct recruitment or promotion—is violative of Articles 14, 16 and 233(2) for want of a prescribed quota or guidelines.
- Whether the Notification dated 24 February 1987 inviting applications from the bar should be quashed.
Arguments of the Parties
Petitioner (Orissa Judicial Services Association)
- Direct recruitment from the bar restricts promotional avenues for officers in the Subordinate Judicial Service, leading to stagnation and frustration.
- Rule 7 grants unguided discretion to the State Government, making it arbitrary and unconstitutional under Articles 14 and 16.
- Article 233(2) does not contemplate direct recruitment in the manner presently followed; hence the impugned notification is illegal.
Respondents (State Government of Orissa and High Court of Orissa)
- Article 233 expressly provides for two modes of appointment to the post of District Judge—promotion and direct recruitment—validating the impugned practice.
- An administrative quota of 25 % for direct recruits and 75 % for promotees has been consistently maintained; indeed, promotees have exceeded their quota.
- The plea of stagnation is factually incorrect: between 1961 and 1987, only 12 direct recruits were appointed versus 100 promotees, and promotees also occupy ten ex-cadre posts.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
Constitutional Framework: The Court examined Article 233 of the Constitution, noting that clause (1) authorises appointment of District Judges by the Governor in consultation with the High Court, while clause (2) expressly permits appointment of advocates or pleaders of at least seven years’ standing. These clauses contemplate both promotion and direct recruitment.
Statutory Rules: The Orissa Superior Judicial Service Rules, 1963—framed under Articles 309 and 233—mirror the constitutional design: Rule 5 provides two avenues of recruitment; Rule 7 allocates the choice of source to the Government in consultation with the High Court; Rule 8 confines direct recruitment to members of the bar; Rule 9 governs promotion.
Factual Assessment: Data supplied by the respondents showed 12 direct recruits against 100 promotees between 1961 and 1987, with promotees also holding 10 ex-cadre posts. Thus, promotees actually exceeded the 75 % share informally fixed, defeating the petitioner’s allegation of stagnation.
Validity of Rule 7: Although Rule 7 lacks an explicit quota, the Court accepted that a 25 %/75 % ratio has been consistently observed through administrative instructions. Given this practice and the absence of any demonstrated discrimination, the rule is neither arbitrary nor violative of Articles 14 or 16.
Need for Formal Quota: The Court nevertheless recommended that the State Government, in consultation with the High Court, amend the Rules to incorporate the quota formally, thereby reducing uncertainty and preventing future litigation.
Frivolous Litigation Observation: The Court criticised the petitioner Association for engaging in what it termed “frivolous litigation,” remarking that such actions do not enhance the reputation of the judiciary.
Holding and Implications
HOLDING: Petition Dismissed.
Implications: The validity of Rule 7 and the existing practice of direct recruitment from the bar stand affirmed; the impugned notification remains operative. Although no binding directive was issued, the Court’s recommendation to amend the Rules may prompt the State Government and High Court to formalise the 25 %/75 % quota, but the judgment sets no new legal precedent beyond upholding established constitutional and statutory provisions.
K.N Singh, J.— The Orissa Judicial Services Association has filed this petition under Article 32 of the Constitution challenging the constitutional validity of Rule 7 of the Orissa Superior Judicial Service Rules, 1963 and for quashing Notification dated February 24, 1987 inviting applications from members of the bar for direct recruitment to the Orissa Superior Judicial Service.
2. The petitioner-Association, which represents the members of the Judicial Service of the State of Orissa has raised grievance that the Subordinate Judicial Service in the State continues to be in a pitiable condition and most of the judicial officers have been stagnating for many years for lack of promotional avenues. Though the members of the Subordinate Judicial Service have avenue of promotion to the Superior Judicial Service but since the Orissa Superior Judicial Service Rules, 1963 (hereinafter referred to as ‘the Rules’) provide for direct recruitment to the Superior Judicial Service from members of the bar, it adversely affects the chances of promotion of the members of the Subordinate Judicial Service resulting into stagnation and frustration. Their grievance is that there should be no direct recruitment to the Superior Judicial Service and in that view they have challenged the Notification dated February 24, 1987 issued by the High Court inviting applications from the members of the bar for direct recruitment to the Superior Judicial Service. The petitioner has further challenged validity of Rule 7 which confers power on the government to decide as to which vacancy shall be filled up by direct recruitment or promotion. It is urged that Rule 7 is violative of Articles 14, 16 and 233(2) of the Constitution of India. The State Government as well as the High Court both have filed counter-affidavits contesting the petition.
3. After hearing learned counsel for the parties, we do not find any merit in this petition. The petitioner's grievance that direct recruitment of the members of the bar is not permissible under the law and that the State Government and the High Court are acting contrary to law in making direct recruitments to the Superior Judicial Service is devoid of any merit. Article 233 provided for appointment of District Judges. Clause (1) lays down that appointment of persons to be District Judges in any State shall be made by the Governor of the State in consultation with the High Court and clause (2) of the article provides for appointment of a person not already in the service of the Union of the State as District Judge, provided, he has been for not less than seven years as an advocate or a pleader and is recommended for appointment by the High Court. These two clauses of Article 233 contemplate recruitment to the post of District Judge included within Superior Judicial Service of the State by promotion from the Subordinate Judicial Service as well as by direct recruitment from the members of the bar. These recruitments are made by the Governor of the State in consultation and on recommendation of the High Court. The Governor of Orissa has in consultation with the High Court, in exercise of powers under Article 309 read with Article 233 of the Constitution, framed the Orissa Superior Judicial Service Rules, 1963 regulating the recruitment and conditions of service of persons appointed to the Orissa Superior Judicial Service. Rule 5 provides for recruitment to the service by two methods, namely, by direct recruitment and by promotion of officers from Junior Branch of the Service. Rule 7 provides that when a vacancy occurs in the Senior Branch of the Service, government shall decide in consultation with the High Court whether the same may be filled by direct recruitment or promotion. Rule 8 provides that direct recruitment to the Senior Branch of Service shall be made from the bar. Rule 9 provides that whenever vacancy in the Senior Branch of Service is decided to be filled up by promotion the government shall fill up the same on the recommendation of the High Court. It is not necessary to refer to other rules for the purposes of the present case. It is apparent that the Constitution as well as the statutory rules framed under Article 309 provide for recruitment to the Senior Branch of Service by direct recruitment from the members of the bar. The constitutional mandate cannot be challenged merely because it may to certain extent adversely affect the chances of promotion of the Junior Branch of Judicial Service.
4. On the material placed before the court it is amply clear that the plea of frustration and stagnation raised on behalf of the petitioner is wrong and incorrect. In the counter-affidavit filed on behalf of the State Government and the High Court the particulars of the direct recruitment and promotees have been placed before the court which disclose that during the period 1961 to 1987 only 12 members of the bar were recruited directly to the Senior Branch of the Superior Judicial Service whereas 100 persons have been recruited by promotion from the Junior Branch of the Judicial Service. It is noteworthy that the members of the Junior Branch of Judicial Service have been holding exclusively the ex-cadre posts which are 10 in number, and those posts have not been taken into account in calculating the number of posts to be filled by direct recruitment on the basis of 25 per cent quota fixed for the direct recruitment. Thus the members of the Junior Branch of Judicial Service have been holding posts in the Senior Branch of Superior Judicial Service in excess of 75 per cent of the substantive posts for which there is no justification having regard to the quota fixed for the purposes of recruitment to the Service. These facts in our opinion lead us to the conclusion that the petitioner's grievance against the direct recruitment is unjustified. The members of the Judicial Service should not in our opinion indulge in this kind of frivolous litigation as it does not bring credit to the Judicial Administration.
5. As regards the petitioner's challenge to the validity of Rule 7, we find no merit in that contention, Rule 7 is as under:
“7. When a vacancy occurs in the Senior Branch of the service, government shall decide in consultation with the High Court whether it may be filled up by direct recruitment or promotion.”
It is urged that the above rule confers power on the State Government to decide as to which of the vacancy shall be filled up by direct recruitment or promotion, but the rule does not provide quota for recruitment from the two sources nor it prescribes any procedure or guideline for deciding the question as to which vacancy should be filled up by direct recruitment of promotion. In this view, it is urged that Rule 7 is arbitrary and violative of Articles 14 and 16 of the Constitution. No doubt Rule 7 does not prescribe quota for the two sources of recruitment but it is conceded by the parties that the State Government and the High Court have fixed the quota of 25 per cent for direct recruitment and 75 per cent for promotion by administrative orders. There is further no dispute between the parties that the quota of 25 per cent and 75 per cent for direct recruitment and promotees has been followed and in actual practice the State Government in consultation with the High Court has ensured that the quota of 75 per cent fixed for promotees has been maintained. In fact recruitment by promotion to the Service has been made in excess of 75 per cent quota, therefore, the grievance relating to discrimination against the members of the Junior Branch of Judicial Service is without any substance.
6. While it is true that statutory rules can be supplemented by administrative instructions and the State Government in consultation with the High Court is competent to prescribe quota for the two sources of recruitment to the service by administrative orders but it would be desirable and proper to prescribe the quota for recruitment to the Service in the Rules themselves. Absence of statutory provision in the Rules fixing the quota for the two sources of recruitment, results into a state of uncertainty leading to suspicion and litigation. We are, therefore, of the opinion that the State Government should take immediate steps in consultation with the High Court for amending the Rules by prescribing the quota to remove the uncertainty. If the statutory rules prescribe quota fixed for the two sources of recruitment, it would eliminate the exercise which the State Government and the High Court have to undergo every time whenever a vacancy arises for determining the question whether it should be filled up from which of the two sources. It is, therefore, necessary that provision for quota be made in the Rules.
7. In the result, we find no merit in the petition, it is accordingly dismissed, but there will be no order as to costs.
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