Hon’ble High Court of Judicature at Allahabad – through Registrar General vs The State of Uttar Pradesh & Ors , Hon’ble High Court of Judicature at Allahabad through Registrar Vs The State of Uttar Pradesh & Ors @RE

,,

Adarsh Kumar Goel, J.",,

[1] Leave granted in Special Leave Petition (Civil) No.26993 of 2017 and SLP (Civil) D. No.39750 of 2017. The question for consideration is the,,

validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh. Dispute,,

mainly relates to the principle to be applied for determining seniority for direct recruits and promotees of the years 2007 and 2009 in the context of,,

Rules 22 and 26 of the Uttar Pradesh Higher Judicial Service Rules, 1975 (the Rules) and the judgment of this Court in All India Judges Association",,

versus Union of India, (2002 4 SCC 247).",,

[2] Before giving brief facts we may note that the Rules and the issue of seniority of the HJS officers were subject matter of consideration, inter alia,",,

in P.K. Dixit versus State of U.P., 1987 4 SCC 621 , O.P. Garg versus State of U.P., 1991 Supp2 SCC 51 , Sri Kant Tripathi versus State of U.P.,",,

2001 10 SCC 237 , Ashok Pal Singh versus U.P. Judicial Services Association, 2010 12 SCC 635 , V.K. Srivastava versus Govt. of U.P., 2008 9 SCC",,

77 and Het Singh Yadav versus State of U.P.(Civil Appeal No.5270 of 2012 decided on 15.9.2016).,,

[3] In P.K. Dixit , there was challenge to the seniority list on the ground that vacancies had not been properly calculated as per the Rules. This Court",,

directed that matter should be examined afresh with reference to appointments on posts available before the Rules came into force.,,

[4] In O.P. Garg , challenge to seniority list of 1988 was considered. This Court held that benefit of continuous length of service for a promote officer",,

for a promote officer has to be with reference to availability of a vacancy and not independent thereof. Second and third proviso to Rule 8(2) and part,,

of Rules 22 and 26 were declared ultra vires.,,

[5] In Sri Kant Tripathi question was about correctness of calculation for working out ratio between direct recruits and promotees. The issue had,,

arisen with reference to recruitments for the years 1988 to 1994. This Court directed that for 1988 recruitment, the High Court should determine",,

number of vacancies available in the relevant year of recruitment and then allocate the vacancies to different sources of recruitment. It was also,,

directed that vacancies should be filled up in the year when vacancies become available. If a post is available in the quota of promotees, selection is",,

made but promotion is not given, promotion must take effect from the date the promotee could have been appointed.",,

[6] In Ashok Pal Singh one of the issues was whether procedure of carrying forward of vacancies adopted by the High Court was erroneous. This,,

Court held that no direct recruit at a subsequent recruitment can claim that his seniority should be reckoned from the date earlier to the date of his,,

joining. The seniority of the promotee had to commence from the date he should have been appointed against an available vacancy for which he had,,

already been selected.,,

[7] In V.K. Srivastava , challenge was to the amendment of the Rules as notified on 9th January, 2007 on the ground that giving of retrospective",,

effect prejudiced the vested right of the candidate eligible for vacancies prior to the amendment. This Court dismissed the writ petition with the,,

observation that the Rules had been duly complied with for the year 2008 selection.,,

[8] In Het Singh Yadav question for consideration was the validity of seniority list of promotees with regard to vacancies existing prior to 15th March,",,

1996. The High Court quashed the seniority list dated 24th August, 2007. Correctness of the view taken before the High Court was subject matter of",,

consideration before this Court. This Court noted that after the judgment of the High Court dated 16th December, 2010, seniority list had been",,

finalized on 14th April, 2016 consistent with the directions in Ashok Pal Singh against which matter was pending consideration before the High Court.",,

This Court set aside the judgment of the High Court leaving the merits of the matter to be gone into by the High Court in the matter pending before it.,,

[9] In All India Judges case , it was directed that recruitment to HJS at the relevant time had to be as follows :",,

(a) 50 per cent by promotion from amongst Civil Judges (Senior Division) on the principle of merit-cum-seniority and passing a suitability test;",,

(b) 25 per cent by promotion strictly on the basis of merit through a limited competitive departmental examination on Civil Judges (Senior Division),,

having not less than five years qualifying service, and;",,

(c) 25 per cent of the posts shall be filled directly from amongst the eligible advocates on the basis of written and viva voce test conducted by the,,

respective High Courts.""",,

[10] It was observed that to avoid litigation, seniority rules should provide for roster system as laid down in R.K. Sabharwal versus State of Punjab,",,

1995 2 SCC 745. Direction of this Court is as follows :,,

Experience has shown that there has been a constant discontentment amongst the members of the Higher Judicial Service in regard to their",,

seniority in service. For over three decades a large number of cases have been instituted in order to decide the relative seniority from the officers,,

recruited from the two different sources, namely, promotees and direct recruits. As a result of the decision today, there will, in a way, be three ways",,

of recruitment to the Higher Judicial Service. The quota for promotion which we have prescribed is 50 per cent by following the principle ""merit-cum",,

seniority"", 25 per cent strictly on merit by limited departmental competitive examination and 25 per cent by direct recruitment. Experience has also",,

shown that the least amount of litigation in the country, where quota system in recruitment exists, insofar as seniority is concerned, is where a roster",,

system is followed. For example, there is, as per the rules of the Central Government, a 40-point roster which has been prescribed which deals with",,

the quotas for Scheduled Castes and Scheduled Tribes. Hardly, if ever, there has been a litigation amongst the members of the service after their",,

recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited. When roster",,

system is followed, there is no question of any dispute arising. The 40-point roster has been considered and approved by this Court in R.K. Sabharwal",,

v. State of Punjab One of the methods of avoiding any litigation and bringing about certainty in this regard is by specifying quotas in relation to posts,,

and not in relation to the vacancies. This is the basic principle on the basis of which the 40-point roster works. We direct the High Courts to suitably,,

amend and promulgate seniority rules on the basis of the roster principle as approved by this Court in R.K. Sabharwal case as early as possible. We,,

hope that as a result thereof there would be no further dispute in the fixation of seniority. It is obvious that this system can only apply prospectively,,

except where under the relevant rules seniority is to be determined on the basis of quota and rotational system. The existing relative seniority of the,,

members of the Higher Judicial Service has to be protected but the roster has to be evolved for the future.""",,

[11] 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.,,

Number of appointments to be made is required to be identified. Seniority is to be determined as per Rule 26.,,

[12] As a result of observations in the above judgments, there was amendment in the Rules. It may not be necessary to refer all the amendments but",,

reference to some of the amendments may be necessary.,,

[13] Accordingly, Rule 6 was amended to give effect to the judgment of this Court in All India Judges' case vide U.P. Higher Judicial Service (Sixth",,

U.P. Higher Judicial Service Rules, 1975

(Prior to the Sixth Amendment in 2006)","Uttar Pradesh Higher Judicial Service (Sixth

Amendment) Rules, 2006

(come into force w.e.f 21st March, 2002)","Uttar Pradesh Higher Judicial Service (Ninth

Amendment) Rules, 2014

Rule 6. Quota.- Subject to the provisions

of Rule 8, the quota for various sources of

recruitment shall be

Provided that where the number of

vacancies to be filled in by any of these

sources in accordance with the quota is in

fraction, less than half shall be ignored and

the fraction of half or more shall ordinarily

be counted as one:

(i) Direct recruits from the Bar 15% of

the vacancies

(ii) Uttar Pradesh Nyayik Sewa 70%

(iii) Uttar Pradesh Judicial Officers

service (Judicial Magistrate) 15%

Provided further that when the strength in

the cadre of the Judicial Magistrates

gradually gets depleted or is completely

exhausted and suitable candidates are not

available in requisite numbers or no

candidate remains available at all, the

shortfall in the number of vacancies

required to be filled from amongst Judicial

Magistrates and in the long run all the

vacancies, shall be filled by promotion

from amongst the members of the Nyayik

Sewa and their quota shall, in due course,

become 85 per cent.","Rule 6 was substituted as under:-

Quota-Subject to the provisions of rule 8,

the quota for various sources of recruitment

shall be

(i) Uttar Pradesh Nyayik Sewa:

(a) from amongst the Civil Judges (Senior

Division) on the basis of merit-cum-seniority

and passing a suitability test. - 50%

(b) on the basis of merit through limited

competitive examination of Civil Judges

(Senior Division) having not less than five

years qualifying service. - 10%

Provided that in case of there being any

shortfall in the vacancies to be filled up on the

basis of in cadre competitive examination, the

shortfall of 25% reserved for such promotion

will be made good by corresponding increase

in the quota reserved for promotion of Civil

Judge (Senior Division) referred to in Clause

(i)(a).

(ii) direct recruitment from Bar - 25%

Provided that where the number of vacancies

to be filled in by any of these sources in

accordance with the quota is in fraction, less

than half shall be ignored and the fraction of

half or more shall ordinarily be counted as

one:""","Rule 6 was substituted as under:-

Quota-6. Subject to the provisions of rule 8, the quota

for various sources of recruitment shall be

(i) Uttar Pradesh Nyayik Sewa:

(a) from amongst the Civil Judges (Senior Division)

on the basis of merit-cum-seniori ty and passing a

suitability test. - 65%

(b) on the basis of merit through limited competitive

examination of civil Judges (Senior Division) having

not less than five years service. -10%

Provided that in case of there being any shortfall in

the vacancies to be filled up on the basis of in cadre

competitive examination, the shortfall of 10%

reserved for such promotion will be made good by

corresponding increase in the quota reserved for

promotion of Civil Judge (Senior Division) referred to

in clause (i)(a).

(ii) Direct recruitment from Bar-25%

Provided that where the number of vacancies to be

filled in by any of the sources in accordance with the

quota is in fraction, less than half shall be ignored and

the fraction of half or more shall ordinarily be

counted as one:

U.P. Higher Judicial Service Rules, 1975

(Prior to the Sixth Amendment in 2006)","Uttar Pradesh Higher Judicial Service (Sixth

Amendment) Rules, 2006

(come into force w.e.f. 21st March, 2002)","Uttar Pradesh Higher Judicial Service (Ninth

Amendment) Rules, 2014

U.P. Higher Judicial Service Rules, 1975

(Prior to the Sixth Amendment in 2006)

Rule 20. Promotion of Members of Nyayik

Sewa-

(1) Recruitment by promotion of the

members of the Nyayik Sewa shall be made

by selection on the principle of seniority-

cum-merit.

(2) The field of eligibility for recruitment by

promotion shall be confined to four times the

number of vacancies to be filled by

promotion. The Selection Committee shall

prepare a list in order of seniority of the

officers eligible under Rule 5(b) of these

rules.

(3)The Selection Committee shall, after

examining the record of the officers included

in the list prepared under sub-rule (2) of this

Rule make a preliminary selection of the

officers who in its opinion are fit to be

appointed on the basis of seniority-cum-

merit. In assessing the merits of a candidate,

the Selection Committee have due regard to

his service record, ability, character and

seniority. The list shall contain the name of

officers twice the number of vacancies

required to be filled by promotion of the

members of the Nyayik Sewa.

(4) The Selection Committee shall forward

the list of the candidates chosen at the

preliminary selection to the Chief Justice

along with the names of the officers who, if

any, in the opinion of the Committee have

been passed over for promotion to the

service.

(5) The Court shall examine the

recommendations of the Selection and make

a final selection for promotion and prepare a

list in order of seniority of the candidates

who are considered fit for promotion and

forward the same to the Governor. The list

shall remain operative only till the next

recruitment.","In Rule 20- for the existing sub-rules (1) and

(2), the following sub-rules were substituted:-

(1) Recruitment by promotion of the members

of the Nyayik Sewa shall be made by selection

on the principle of merit-cum-seniority and on

passing such a suitability test, as prescribed in

Appendix ""G(1)

(2) The field of eligibility for recruitment by

promotion shall be confined to four times the

number of vacancies to be filled by promotion.

The selection Committee shall prepare a list in

order of seniority of the officers eligible under

Rule 5(a) of these rules.","The existing sub-rule (3) of rule 20 was

substituted as under:-

20.(3) The Selection Committee shall, after

examining the record of the officers included in

the list prepared under sub-rule (2) of this rule

make a preliminary selection of the officers

who in its opinion are fit to be appointed on the

basis of merit-cum-seniority. In assessing the

merit of a candidate, the Selection Committee

have due regard to his service record, ability,

character and seniority. The list shall contain

the names of officers twice the number of

vacancies required to be filled by promotion of

the members of the Nyayik Sewa.

U.P. Higher Judicial Service Rules, 1975

(Prior to the Sixth Amendment in 2006)","Uttar Pradesh Higher Judicial Service (Seventh

Amendment) Rules, 2009","Uttar Pradesh Higher Judicial Service

(Ninth Amendment) Rules, 2014

Rule 22. Appointment

(1) Subject to the provisions of sub-rules

(2) and (3), the Governor shall on receipt

from the Court of the lists mentioned in

Rule 18, 20 and 21 make appointments to

the service on the occurrence of

substantive vacancies by taking candidates

from the lists in the order in which they

stand in the respective lists.

(2) Appointments to the service shall be

made on the rotational system, the first

vacancy shall be filled from the list of

officers of the Nyayik Sewa. The second

vacancy shall be filled from the list of

direct recruits (and so on), the remaining

vacancies, shall therefore be filled by

promotion from the list of the officers of

the Nyayik Sewa.

Provided that for so long as suitable

officers are available from the cadre of

the Judicial Magistrates, appointments to

the Service shall be made in such a way

that the second fifth and eighth (and so

on), vacancy shall be filled from the list of

judicial Magistrates.

(3) In the eventuality of delay in making

appointment under sub-rule (1) and further

if exigency of service so requires, the

Governor may, in consultation with the

Court, make short term appointment as a

stop gap arrangement from amongst the

members of Nyayik Sewa in the vacancy

in these services within the quota fixed by

the Court till the appointment are made

under subrules (1) and (2):

Provided that the period of service spent

by a member of Nyayik Sewa on short

term appointment to the service as a stop-

gap arrangement shall not be computed

from seniority under Rule 26.

(4) The appointments shall be made on

rotational system, the first vacancy shall

be filled from the list of officers of the

Nyayik Sewa, the second vacancy shall be

filled from the list of Judicial Magistrates

(and so on).","Rule 22 . Appointment.--

(1) Subject to the provisions of sub-rule (2) the Governor

shall, on receipt from the Court of the list mentioned in

Rules 18, 20 and 21 make appointments to the service on

the occurrence of substantive vacancies by taking

candidates from the list in the order in which they stand

in the respective lists in accordance with the roster.

(2) Appointments to service shall be made on the basis

of roster system, the first and second post shall be filled

from the list of promotes, the third post shall be filled up

by direct recruit and the fourth post shall be filled up by

the candidate selected strictly on merit through LDCE

(and so on) according to the roster as prescribed in

Appendix 'I', which will cease to become operative on

the date the respective three streams achieve their full

allotted vacancies. Thereafter on account of arising any

vacancy in quota of respective stream the same could be

filled-up from the same stream of which vacancy arises:

Provided that while following the roster at no point of

time the percentage of posts filled from direct recruit and

LDCE shall exceed 25% each of the vacancies available

at the time of selection. In case the percentage is

exceeding the allotted quota, in such eventuality the

promotee shall occupy the vacancy which would have

gone to the direct recruit or LDCE, had not the same

been an excess of 25% of either of the two.

(3) In the eventuality of delay in making appointment

under sub-rule (1) and further if exigency of service so

requires the Governor may, in constitution with the

Court, make short term appointment as a stop-gap

arrangement from amongst the promotees, in the

vacancy in these services fill the appointment are made

under sub-rules (1) and (2):

Provided that the period of service spent by the

promotees on a short term appointment to the service as

stop-gap arrangement shall not be computed under Rule

26.","In Rule 22, the existing sub-rule (2) was

substituted as under:-

22.(2) Appointments to the service shall

be made on the basis of roster system, the

first post shall be filled from the list of

promotees, the second post shall be filled

up by direct recruit, the third and fourth

posts shall be filled up from the list of

promotees and fifth post shall be filled up

by the candidate selected strictly on merit

through LDCE (and so on) according to

the roster as prescribed in Appendix '1',

which will cease to become operative on

the date the respective three streams

achieve their full allotted vacancies.

Thereafter on account of arising any

vacancy in quota of respective stream the

same could be filled-up from the same

stream of which vacancy arises;

Provided that while following the roster at

no point of time the respective percentage

of posts filled from direct recruit and

LDCE shall exceed 25% and 10% of the

strength of service. In case the

percentage is exceeding the allotted quota,

in such eventuality the promotee shall

occupy the vacancy which would have

gone to direct recruit or LDCE, had not

the same been in excess of 25% and 10%

respectively of either of the two.

appointed between 11th September, 2008 and 24th November, 2008. Though, process for appointment was conducted simultaneously, the select lists",,

were also forwarded to the Court simultaneously, due to observance of certain formalities, letters of appointment for direct recruits were given later to",,

the promotion being affected.,,

[19] For the recruitment year 2009, calculation of vacancies was finalized on 24th March, 2009. The same was approved by the Full Court on 10th",,

April, 2009. Suitability test for promotees was held on 29th November, 2009. Select list was approved by the Full Court on 9th January, 2010.",,

Appointments were notified on 7th September, 2010. Direct recruits for the year 2009 were appointed between 24th December, 2010 to 20th April,",,

2011. After the appointments, the dispute of seniority cropped up. The direct recruits claimed that they were entitled to be given seniority as per rota",,

system laid down under the Rules and that they had been wrongly placed junior to the promotees. The promotees claimed that their seniority should,,

commence from the date of accrual of vacancy, date of their eligibility and officiation and not from the date of actual appointment.",,

[20] The High Court appointed a Committee to go into the matter. The Committee took up determination of vacancy and fixation of seniority for the,,

HJS officers appointed upto 1998-2000 which was finalized on 1st August, 2011. Thereafter, determination of vacancies and fixation of seniority of",,

2007 and 2009 recruitments was considered by the committee vide its report dated 23rd September, 2015 and 6th April, 2016. The same was",,

approved by the Full Court on 14th June, 2016.",,

[21] The report of the Committee dated 23rd September, 2015 was in continuation of its earlier reports finalizing seniority lists dated 6th May, 1995",,

and 13th July, 2011, with reference to officers recruited prior to 2007. The Committee determined vacancies vide its report dated 7th February, 2012",,

on the basis of which tentative seniority lists dated 25th July, 2013 and 18th December, 2014 were published. Objections to the said tentative seniority",,

lists were considered in the said report.,,

[22] The question considered by the Committee was whether long officiation by officers of UPNS should be given due credit so that they may not,,

suffer on account of delay in holding suitability test. Suitability test was not held due to non amendment of the Rules upto 9th January, 2007 inspite of",,

judgment of this Court dated 21st March, 2002. Thus, from 21st March, 2002 to 2008 since a different regime of Rules was stipulated under the",,

judgment of this Court in All India Judges case and the Rules were amended by the High Court only on 9th January, 2007, in spite of availability of",,

vacancies in promotion quota, the promotee officers who were eligible and were officiating against the said vacancies, could not be recruited. They",,

were recruited only after the suitability test was held for the first time in the year 2008. The Committee thus held that they were entitled to en bloc,,

seniority without rota system. The direct recruits could not be given seniority for the period prior to their appointment. Same was the position with,,

regard to 2009 recruitments. The view of the Committee was that rota system will create imbalance and injustice.,,

[23] The direct recruits as well as the promotees were aggrieved by the determination of their seniority and challenged the same by filing Writ,,

Petitions. In Writ Petition (SB) No.1880 of 2017 filed by the direct recruits, respondents 134 to 173, along with others before the High Court, prayer",,

was for quashing the final seniority Report dated 23rd September, 2015 (of Committee of High Court Judges), supplementary report dated 6th April,",,

2016(also of a Committee of High Court Judges) and for a direction to redetermine seniority of the writ petitioners who were the direct recruits on the,,

basis of rotational system proportionate to their quota, apart from other incidental prayers. It was submitted that since Rule 22(2) provides for",,

rotational basis for seniority, their date of appointment was not conclusive for the purpose of seniority. Accordingly, the writ petitioners sought",,

determination of seniority by applying roster system. The High Court and the affected officers defended the report of the Committee as approved by,,

the Full Court.,,

[24] In Writ Petition (SB) No.16569 of 2016 filed by the promotees, challenge was to the validity of the Amendment Rules, 2006 in so far as the Rules",,

were retrospective. Challenge was also to the reports of the Committees and decision of the Full Court in so far as objections to seniority list were,,

rejected. The petitioners in the said writ petition were promoted against vacancies of the years 2002 onwards but the said vacancies were actually,,

determined later. According to the said writ petitioners, they were entitled to seniority from the date of their eligibility, without their passing of the",,

suitability test which was retrospectively prescribed for the first time on 9th January, 2007.",,

[25] The High Court examined two questions : -,,

(i) Whether promotees were entitled to seniority prior to their appointment on the ground that requirement of suitability test was introduced for the first,,

time in the year 2007 and they had a vested right to be promoted against the earlier vacancies without the suitability test.,,

(ii) Whether direct recruits were entitled to the benefit of rotation in determination of seniority. The High Court held that the promotees could not be,,

given seniority prior to their selection. The retrospectivity of the Rules prescribed suitability test was valid particularly in view of judgment of this Court,,

in V.K. Srivastava .,,

[26] It was held that no determination of vacancies had taken place on account of pendency of litigation which was finalized on 25th August, 2004. No",,

direct recruitment was made after 1998-2000 upto 2005. Only after 25th August, 2004 determination of vacancies took place. Promotions and direct",,

recruitments were made in respect of the said selection in the year 2005. Promotions and direct recruitments which are subject matter of the present,,

case were made in 2008/2009. Thus, Writ Petition (SB) No.16569 of 2016 was dismissed and objection of the promotees to their seniority was",,

rejected.,,

[27] As regards claim of the direct recruits based on Quota-Rota rule and post based roster system, it was observed that the same was mandatory. It",,

was accordingly, held that seniority was required to be re-determined by applying the Quota-Rota.",,

[28] The conclusions of the High Court are as follows :,,

In view of the above, we sum up our conclusions as under :",,

(1) The challenge to the vires of the 6th amendment Rules, 2006 already having been repelled by the Supreme Court in V.K. Srivastava's case, is not",,

open to reconsideration by us.,,

(2) There is no factual and legal basis for the petitioners claim to promotion from date of occurrence of vacancies and seniority accordingly in Writ,,

Petition No. 16569(SB) of 2016.,,

(3) The determination of vacancies by the Committee does not require any interference but determination of seniority is not sustainable.,,

(4) Considering the facts of the present case there is no error in the appointment of direct recruits in December, 2011 and January, 2012 w.e.f.",,

04.01.2007 when the last of the selectees of the same selection had joined following the dictum in Dr. A.K. Sirkar and in view of Balwant Singh,,

Narwal's case .,,

(5) There has been a complete non-adherence to the Quota-Rota Rule and the determination of seniority in accordance thereof in terms of Rule 22,,

and 26 of the Rule, 1975. The judgment rendered in All India Judges' Cases has not been followed as was mandatorily required.",,

(6) The determination of seniority is patently erroneous and contrary to Rule 26 of the Rules, 1975 which envisages such determination in accordance",,

with the order of appointment in the service under Sub-Rules (1) and (2) of the Rule 22 which necessarily means the order of rotational/cyclical,,

placement of appointees from different sources of recruitment without disturbing their inter-se placement within the same stream/quota and not en,,

bloc placement on the basis of date of appointment as has been done.""",,

[29] We have heard learned counsel for the parties. The first issue raised is 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. We are in agreement with the view taken by the High Court that suitability test was required in terms of judgment of this,,

Court in All India Judges' case and under the amended Rules applicable retrospectively which was duly upheld by this Court in V.K. Srivastava .,,

Thus, the promotees could not be given promotion without suitability test nor could they claim seniority without the same. They have been rightly given",,

seniority from their appointments.,,

[30] With regard to the Quota-Rota rule, 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 promotees 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. As laid down by this Court in Direct Recruit Class-II Engineering Officers Association",,

versus State of Maharashtra, 1990 2 SCC 715 , if it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the",,

authority must give effect to such a rule. Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to be given a",,

practical interpretation. Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the",,

rotation principle cannot be sustained.,,

[31] Accordingly, we allow the appeal arising out of Special Leave Petition (Civil) No.26993 of 2017 and dismiss the Writ Petition (SB) No.1880 of",,

2017 on the file of the High Court filed by the direct recruits. We uphold the judgment of the High Court with regard to dismissal of Writ Petition (SB),,

No.16569 of 2016 filed by the promotees and dismiss the appeal arising out of Special Leave Petition (civil) D.No.39750 of 2017.,,

In view of the above, all other matters will stand disposed of accordingly.",,