B.S.Mathur & Anr vs Union Of India & Ors

B.S. Mathur & Anr. .... Petitioner (s)

Versus

Union of India & Ors. .... Respondent(s)

With

Writ Petition (C) Nos. 486 of 2007, 487/2007 & 502/2007

JUDGMENT

P. Sathasivam, J.

1) These writ petitions, under Article 32 of the Constitution

of India, are filed by the directly recruited Additional District

and Sessions Judges who were appointed to the Delhi Higher

Judicial Service praying for an order quashing the Resolution

dated 18.05.2007 of the Full Court of the High Court of Delhi

approving the majority report of the Administrative Committee

1 determining the seniority of the petitioners in terms of O.M.

dated 03.07.1986 and also quashing the final seniority list of

the officers of Delhi Higher Judicial Service. They also prayed

for appropriate direction to respondent Nos. 1-4 to determine

the seniority of the petitioners in terms of Rule 8(2) read with

Rule 7 of the Delhi Higher Judicial Service Rules, 1970.

2) Since all the petitioners were appointed to the Delhi

Higher Judicial Service (hereinafter referred to as "DHJS") as

Additional District and Sessions Judges and the challenge as

well as the relief prayed for in all these writ petitions are one

and the same, they are being disposed of by a common

judgment:

a) For convenience, we shall refer to the facts in the

case of the petitioners in Writ Petition (c) No. 477 of 2007.

The DHJS was constituted in the year 1970 under Delhi

Higher Judicial Service Rules, 1970 (hereinafter referred to as

"the Rules"). Rule 5 provides for the method of recruitment by

way of promotion from amongst the officers of the Delhi

Judicial Service and Direct Recruitment. Rule 7 provides that

after the initial recruitment, regular recruitment would be

2 made on the basis of selection from the Members of the Delhi

Judicial Service who have completed not less than 10 years of

service in the Delhi Judicial Service and by direct recruitment

from the Bar. Proviso to Rule 7 provides that minimum 1/3rd

of the substantive posts in the service shall be held by direct

recruits. Rule 8 provides for inter se seniority. Rule 8(2)

provides that seniority of the Direct Recruits vis-`-vis

promotees is to be determined in order of rotation of vacancies

between the direct recruits and the promotees based on

"Quotas of Vacancies" reserved for both categories. Rule 8(2)

further provides that first available vacancy will be filled by a

direct recruit and the next two vacancies by promotees and so

on. As originally framed, Rule 16 provides for creation of

temporary posts in the service and filling up of the same only

by way of promotion from amongst the Members of the Delhi

Judicial Service. Rule 17 provides for filling up of the

vacancies by making temporary appointments from amongst

the Members of the Delhi Judicial Service.

b) The posts in the DHJS were advertised to be filled up by

way of direct recruitment from amongst the practicing

3 members of the Bar by an advertisement issued in March,

1994. Last date for submission of the applications was

11.4.1994. Since the petitioners fulfilled the qualifications for

the same, they applied in pursuance of the said

advertisement. All the candidates who applied were screened

and ultimately 90 candidates were called for interview which

was conducted from 16.9.1994 to 20.9.1994. Upon

conclusion of the same, 9 candidates were selected, 6 in the

general category, 2 in the reserved category of Scheduled

Castes and one in the Scheduled Tribes category. All the writ

petitioners were amongst those who were selected. All the

respondents (except the Government Bodies) in these writ

petitions were promotees promoted to the DHJS from the

Delhi Judicial Service. According to the petitioners, the cadre

strength of the DHJS as on 31.12.1991 was of 60 officers.

Later on the strength was increased and as on date the cadre

strength of DHJS is of 174 officers. The seniority of DHJS

officers was not settled by the High Court of Delhi ever since

the year 1992. Till 1980, only substantive appointees to the

service from the Bar as also promotees were being given

4 seniority under Rule 8(2). In 1980, a writ petition was filed in

this Court by the promotee officers challenging Rules 7 and 8

of the Rules, which provided Rota and Quota. In the said writ

petition, the promotee officers claimed that even appointments

to the temporary posts/vacancies under Rules 16 & 17 [as in

the original Rules] was similar to the substantive

appointments to the service and the incumbents under those

rules were also entitled to get seniority from the date of their

appointments. This Court, in O.P. Singla & Anr. vs. Union

of India & Ors. (1984) 4 SCC 450, held that appointments

under Rules 16 & 17 to the temporary posts/vacancies are

similar to those of the substantive appointments. With the

said equation by legal fiction, the distinction between the said

two types of appointments i.e. temporary and substantive,

having been extinguished, the Court came to the conclusion

that since no appointments of the direct recruits under Rules

16 & 17 were possible under the Rules at that point of time,

inevitably the Rota Quota had been broken down. However,

this Court upheld the constitutional validity of Rule 7 and

held that there is a quota for 1/3rd of the direct recruits in the

5 service and further upheld the constitutional validity of Rule 8

(2) which provides for the rotation of the vacancies under Rule

7. Though this Court equated the temporary post with

permanent post but had noticed that the judgment will upset

the balance between the Direct Recruits and the Promotees in

the DHJS. In those circumstances, this Court gave directions

in paragraph 43 to frame appropriate Rules to remove the

imbalances and thereafter implement the Rules in letter and

spirit.

c) After the judgment in O.P. Singla's case in 1985, the

High Court of Delhi undertook the exercise of the amendment

of the Rules to provide for filling up of the temporary

posts/vacancies under Rules 16 and 17 also by direct

recruitment as per the quota prescribed under Rule 7 for the

respective categories. The High Court had also decided that in

order to restore the balance between the number of direct

recruit appointees and promotees, 14 existing vacancies are to

be filled up by direct recruitment. The Association of

promotee officers, in order to highlight their grievances, made

a representation to the Chief Justice of the Delhi High Court

6 claiming that the newly created temporary posts should be

filled up by promotion from amongst the members of the Delhi

Judicial Service. Since according to them the said

representation failed to evoke any response, they filed Writ

Petition No. 1540 of 1986 titled as Delhi Judicial Service

Association vs. Union of India under Art. 32 of the

Constitution of India before this Court wherein they prayed for

the issuance of mandamus to the official respondents that all

14 temporary posts of the Additional District and Sessions

Judge were to be filled up by promotion. The said writ

petition was disposed of by an order dated 18.12.1986 with a

request to the High Court to finalise the amendment in the

draft rules by 15.1.1987 and also to the Delhi

Administration/Union of India to sanction the amendment

expeditiously. It was further directed that thereafter

advertisement would be published inviting applications from

the members of the Bar so as to fill up all the 14 posts by way

of direct recruitment. Consequent to the said direction, 1970

Rules were amended by Notification issued on 17.3.1987. The

expression "in substantive capacity" occurring in Rule 2(d)

7 was deleted and consequential amendments were made in the

Rules so that appointments could be made to the posts

temporarily created under Rule 16 both from the Bar and by

promotion from the Delhi Judicial Service. In the meanwhile,

certain promotees and direct recruits of DHJS have filed Writ

Petition No. 490 of 1987, Writ Petition No. 1252 of 1990 and

others before this Court raising issue as to whether inter-se

seniority between the promotees and the direct recruits had

actually been determined as per directions given by this Court

in O.P. Singla's case. Those writ petitions came to be decided

by this Court on 22.8.2000 in the judgment in Rudra Kumar

Sain & Ors. vs. Union of India & Ors., (2000) 8 SCC 25. In

the said judgment, this Court quashed the seniority list both

provisional and final so far as it related to the appointees

either by direct recruitment or by promotion in the DHJS,

prior to the amendment of the Recruitment Rules in the year

1987, and held that their inter se seniority must be re-

determined on the basis of continuous length of service in the

cadre, as indicated in O.P. Singla's case. Pursuant to the

said decision, the officers of DHJS appointed/promoted to the

8 service against vacancies prior to the amendment of the Rules,

1987 have given seniority on the basis of the principle of

length of service.

d) In these writ petitions, the claim of the petitioners was

that 14 temporary posts which were in existence in 1986

should have been filled up by promotion from amongst the

Delhi Judicial Service Officers as per the Rules then existing.

As the Rules were amended on 17.3.1987, an individual

officer in his writ petition challenged Rules 7, 16 & 17 as

violative of Articles 233 and 16(1) of the Constitution of India.

This Court rejected the contention raised by the Association

as well as by the individual officer and dismissed Writ Petition

(C) No. 1023 of 1987 etc. titled Delhi Judicial Services

Association & Ors. vs. Delhi High Court & Ors., (2001) 5

SCC 145.

e) On 14.8.2002, the Delhi High Court circulated the

tentative seniority list of the officers of DHJS and invited

objections from the concerned officers. Thereafter the High

Court appointed a Committee of five Hon'ble Judges to decide

the issue of seniority of the officers of DHJS appointed after

9 1991. The writ petitioners as well as the promotee officers of

DHJS submitted their objections to the draft seniority list.

Some of the promotee officers of DHJS also sought application

of the Office Memorandum (in short "OM") dated 3.7.1986

issued by the Department of Personnel and Training (in short

"DOPT") applicable to the Central Civil Services. The

Committee heard the arguments of the direct recruits as well

as the promotee officers. Both of them filed written

statements on 23.6.2006. After considering the arguments

raised by both the parties and also the written submissions

filed, four Hon'ble Judges of the Committee submitted a report

being of the majority view. A dissenting view was taken by

one Hon'ble Judge who separately submitted an independent

report. The majority report submitted by the Committee took

the view that Rota Quota Rules for determining seniority is

workable only if simultaneous recruitment is resorted to

failing which they `break down'. They took the view that no

simultaneous recruitment had taken place as such and there

was need for search for an equitable and reasonable principle

and in their opinion 1986 memorandum fitted the description.

10 As per the majority report, the inter se seniority of DHJS after

Shri K.C. Lohia should be settled as per O.M. dated 3.7.1986

of DOPT. The Committee also issued further directions for

proper implementation. The learned dissenting Judge took the

view that Rota and Quota had broken down as the

appointments from two sources had taken place after lot of

delay. As such the learned dissenting Judge recommended

that the principle of continuous length of service should be

applied for inter se seniority of the officers of DHJS. Two views

expressed by the members of the Committee as well as

individual views of Justice Rekha Sharma and Justice S.N.

Dhingra were considered by the Full Court of the Delhi High

Court. The Full Court accepted the majority view expressed

by the Committee and decided to confer seniority to the

members of DHJS on the basis of O.M. dated 3.7.1986. Based

on the said decision, the High Court by letter dated 18.5.2007

circulated the final list of officers of DHJS as on 1.1.2007.

Feeling aggrieved by the said decision of the Full Court dated

18.5.2007 and consequent determination of the final seniority

11 list, the petitioners have filed the present writ petitions on

various grounds.

3) In all the writ petitions, the High Court of Delhi has filed

separate but identical counter affidavit highlighting its stand.

The salient features of the stand of the High Court are as

follows:

(i) The disputes are about inter se seniority and

preparation of the final seniority list. After the tentative

seniority list was circulated, representations were made by

various persons i.e. the direct recruits and the promotees

making different grievances and a Committee was constituted

to examine the same. The Committee consisting of five

Hon'ble Judges gave a personal hearing to the representative

groups and, thereafter, submitted two reports, majority report

of four Hon'ble Judges and another report by one Hon'ble

Judge in regard to determination of inter se seniority.

Thereafter the matter was considered by the Full Court which

adopted the report of the majority (four Members Committee).

The Full Court also considered the note circulated by two

other Hon'ble Judges before taking a final view in the matter.

12 The disputes and grievances relating to inter se seniority was

done after giving due opportunity to all concerned and

detailed consideration and deliberations and conscious

application of mind to various aspects of the matter.

(ii) Appointments to DHJS are made both by direct

recruitment from the Bar and also by way of promotion of

eligible officers from Delhi Judicial Service. Rule 7 provides

for appointment to the extent of 1/3rd of the posts in the

service by direct recruitment and 2/3rd of the posts being filled

up by promotee officers. Earlier to 1987, the division of posts

between the direct recruits and the promotees was confined to

the substantive posts in the service and insofar as temporary

posts in the service were concerned, they were to be filled up

exclusively by promotees. This resulted in grievances being

made by persons promoted against such temporary posts in

regard to their seniority vis-`-vis the direct recruits appointed

against substantive posts. After the decision of this Court in

O.P. Singla's case, the Rules were amended in 1987 providing

for direct recruitment also against temporary posts. 13

iii) Insofar as inter se seniority of the members of DHJS

appointed to the same post by way of direct recruitment and

promoted to the same post from the Delhi Judicial Service is

concerned, Rule 8 provides that it shall be determined in the

order of rotation of vacancies between the direct recruits and

the promotees, based on the quota of vacancies reserved for

both the categories by Rule 7. Rule 27 of DHJS Rules

provides that where no provision regarding conditions of

service has been made or insufficient provision has been made

in the DHJS Rules, resort could be had to directions or orders

of the Government of India in force which are applicable to

officers of comparable status in the Indian Administrative

Service and serving in connection with the affairs of Union of

India. The relevant portion of O.M. dated 03.07.1986 makes it

clear that to the extent the direct recruits are not available,

the promotees would be bunched together at the bottom of the

seniority list below the last position up to which it is possible

to determine seniority, on the basis of rotation concluded with

reference to actual number of the direct recruits, who become

available. The unfilled direct recruitment quota vacancies

14 would, however, be carried forward and added to the

corresponding direct recruitment vacancies of the next year

for taking action for direct recruitment for the total number

according to the usual practice. Thereafter, in that year, while

seniority will be determined between the direct recruits and

the promotees, to the extent of number of vacancies for the

direct recruits and the promotees as determined according to

the quota for that year, the additional direct recruits selected

against the carried forward vacancies of the previous year

would be placed en bloc below the last promotee in the

seniority list based on the rotation of vacancies for that year.

The same principle holds good for determining seniority in the

event of carrying forward, if any, of direct recruitment or

promotion quota vacancies in the subsequent year.

iv) The principle set out in the O.M. dated 03.07.1986 was

found to be reasonable, just and fair by the Full Court for

application to DHJS having regard to the fact that recruitment

from the two sources did not take place simultaneously in

some years, making it difficult to follow the rotational principle

of fixation of seniority for all the appointees. Therefore, while

15 applying the principle of rotation to the extent possible, year-

wise, seniority has been fixed in a reasonable and consistent

manner.

v) The majority report (submitted by four Hon'ble Judges)

which was accepted by the Full Court and pursuant to which

the impugned seniority list was prepared, noticed the rival

submissions and finding the principles laid down in O.M.

dated 03.07.1986 are equitable, applied the same along with

the Rules for resolving disputes concerning inter-se seniority

arising out of appointments not being made from either source

in any given year, delays in appointments from either source

and appointments not being made to the full extent of the

respective quotas every year etc. The inter se seniority

between the direct recruits and the promotees has been

worked out on a year to year basis, applying the ratio provided

in Rule 7 and the rotation between the direct recruits and the

promotees provided in Rule 8 and rotating them to the extent

officers from both the categories are available in that year and

placing the remaining officers en bloc thereafter below them

by applying the principle laid down in the O.M. dated

16 03.07.1986. There is no legal infirmity in the same. On the

other hand, it is just and fair.

vi) The statutory Rules are to be enforced on their true

construction in precedence to any circular/guideline as the

latter are only intended to supplement or fill-up the gaps in

complete enforcement of the Rules. At best, it must be read

and applied to a situation but certainly in comity to the Rules.

Because of undue delay in appointments, the rule of Rota-

Quota in stricto senso could not be applied. It is an equitable

principle which can be applied on harmonious construction.

The language of Rule 27 in no way prohibits adoption or

reference to the memorandum issued by the Government of

India as it is equally applicable to the IAS Rules wherever and

whenever it is so needed. The 1986 Memorandum affords a

reasonable and non-discriminatory solution to the vexed issue

at hand. It minimizes the hardship to one or other class of

officials, in the event of inaction in recruitment, by adding the

inadequately represented class/group in the next vacancy

year, even while applying the quota as between the two

groups, to the extent feasible. The guideline neither favours

17 "continuous officiation" nor blanket rotation of vacancies and

instead suggests a middle path. For the period 1987 to 1991,

the rule or principle applied thereto was different; it, however,

was certainly not a strict application of the quota/rota rule.

Equally, application of the continuous officiation principle, an

option suggested by some of the promotees, is unfeasible,

more so, after the 1987 amendment. The 1986 memorandum

fits the description. In the above premises, all the writ

petitions are without merit and the same deserve to be

dismissed.

4) In the reply filed by the petitioners, they once again

reiterated the stand taken in the writ petition. Apart from the

Delhi High Court, the promotee officers shown as

respondents. were also filed rejoinder highlighting their stand.

They also reiterated the stand taken by the Delhi High Court.

5) In the light of the pleadings of the parties, we heard Mr.

Harish Salve, Mr. Rakesh K. Khanna, Mr. P.S. Patwalia, Mr.

A.K. Ganguli, learned senior counsel for the petitioners and

Mr. G.E. Vahanvati, learned Solicitor General, Mr. Gopal

Subramaniam, learned Addl. Solicitor General, Mr. Arun

18 Jaitley, Mr. R. Venkataramani and Mr. P.P. Rao, learned

senior counsel for the respondents.

6) All the counsel appearing for the petitioners mainly

contended that,

(i) seniority has to be determined in terms of Rule 8(2)

read with Rule 7 of 1970 Rules;

(ii) the course adopted by the High Court in passing

the resolution based on an administrative

instruction i.e. O.M. dated 03.07.1986 instead of

Rules 7 and 8(2) is ultra vires of the provisions of

Article 14 read with Article 309 of the Constitution

of India;

(iii) Applying the O.M. is totally unjustified, uncalled

for, unconstitutional and liable to be set aside;

(iv) Upon the promulgation of DHJS Rules, 1970 the

O.M. or its modification or amendment will cease to

have applicability to the service;

(v) The said O.M. has failed to bring in any equity.

19

7) On the other hand, learned counsel appearing for the

respondents including learned senior counsel appearing for

the High Court submitted that,

(i) there is no challenge to the rule of seniority, in such

case, the writ petition under Article 32 will not be

maintainable;

(ii) the tentative seniority list was circulated to all the

members and representations were made by the

direct recruits as well as the promotees. The

Committee of five Judges, after affording personal

hearing, considered the same and submitted their

reports. Having regard to the various

circumstances including the fact that the

appointment from both sources was not followed

regularly and there exists disparity between the

direct recruits and the promotees, the Full Court by

applying O.M. dated 3.7.1986, accepted the

majority report of the Committee, hence, the course

adopted by the High Court and its ultimate decision

20 cannot be faulted with and all the writ petitions are

liable to be dismissed.

8) We have carefully perused the pleadings of both the

parties, Committee reports, deliberation of the Full Court and

considered the rival contentions. The Lieutenant Governor of

Delhi in consultation with the High Court of Delhi by

exercising the power conferred by the proviso to Article 309 of

the Constitution read with the Government of India, Ministry

of Home Affair's Notification dated 29.05.1970 and 25.07.1970

made the Rules called Delhi Higher Judicial Service Rules,

1970. In order to appreciate the above contentions, it is

useful to refer the relevant Rules/provisions from DHJS

Rules, 1979 as amended by Notification issued on 17.3.1987:

2 (b) "Cadre Post" means any post specified in schedule and includes a temporary post carrying the same designation as that of any of the posts specified in that schedule and any other temporary post declared as cadre post by the Administrator.

(d) "Member of the Service" means a person appointed to the service under the provisions of these rules.

(e) "Service" means the Delhi High Judicial Service.

(g) "Initial recruitment" means the first recruitment and appointment made to the service after the commencement of these rules.

21

(h) "Promoted Officer" means a person who is appointed to the service by promotion from Delhi Judicial Service.

(i) "Direct recruit" means a person who is appointed to service from the Bar.

7. Regular Recruitment:- Recruitment after the initial recruitment shall be made:-

(a) by promotion on the basis of selection from members of the Delhi Judicial Service who have completed not less than 10 years of service in the Delhi Judicial Service;

(b) by direct recruitment from the Bar.

Provided that not more than 1/3rd of the posts in the service shall be held by direct recruits;

Provided further that where a member of the Delhi Judicial Service is considered for such appointment under clause (a) all persons senior to him in the Service shall also be considered, irrespective of the fact whether or not they fulfil the requirement as to the minimum of 10 years service. Explanation.- For calculating the period of 10 years of service for the purpose of clause (a) with respect to officer appointed to the Delhi Judicial Service at the time to its initial constitution, service rendered by them in the cadre to which they belonged at the time of the initial recruitment to that service which was counted for determining the seniority under rule 11 of the Delhi Judicial Service Rules, shall also be counted.

8. (1) The inter-se seniority of members of the Delhi Judicial promoted to the service shall be the same as in the Delhi Judicial Service.

(2) The seniority of direct recruits vis-`-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas the vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on.

16. (1) Administrator may create temporary posts in the service.

22 (2) Such posts shall be filled by Administrator, in consultation with the High Court, from amongst the members of the Delhi Judicial Service and by direct recruitment from the Bar

Explanation: Rule 5 and rules 7,8,9,10, and 11 shall apply to appointments made under this rule.

17. Notwithstanding anything contained in these rules, the Administrator may, in consultation with the high Court, fill substantive vacancies in the service by making temporary appointments thereto from persons appointed under rule

16."

27. Residuary matters

In respect of all such matters regarding the conditions of service for which no provision or insufficient provision has been made in these rules, the rules, directions or order for the time being in force, and applicable to officers of comparable status in the Indian Administrative Service and serving in connection with the affairs of the Union of India shall regulate the conditions of such service. "

9) The validity of Rule 7 or 8 of the Rules is not in dispute.

On the other hand, the main prayer of the petitioners is that

the resolution dated 22.05.2007 of the Full Court approving

the majority report determining the seniority of the members

of DHJS in terms of O.M. dated 03.07.1986 is bad and the

seniority of member of DHJS should be determined strictly in

accordance with Rule 8(2) read with Rule 7 of 1970 Rules. In

the year 1970, DHJS was constituted under the said Rules.

We have already referred to the relevant provisions of the

23 Rules in the earlier part of our judgment. Rule 5 provides for

method of recruitment to the service i.e. by way of promotion

from amongst the officers of Delhi Judicial Service and also by

direct recruitment from amongst the eligible members of the

Bar. Rule 7 provides that after initial recruitment regular

recruitment would be made on the basis of selection from the

members of Delhi Judicial Service who have completed not

less than 10 years in DJS and by direct recruitment from the

Bar. The proviso to Rule 7 provides that minimum 1/3rd of

the posts shall be held by direct recruits. Rule 8 provides for

inter-se seniority. Rule 8(2) provides that inter se seniority of

the direct recruits vis-`-vis the promotees is to be determined

in order of revision of vacancies between the direct recruits

and the promotees based on "quotas of vacancies" reserved for

both categories by Rule 7. The said Rule further provides that

first available vacancy will be filled by the direct recruits and

the next two vacancies by the promotees and so on.

10) As originally framed, Rule 16 of the Rules provided for

creation of temporary posts in the service and filling up of the

same only by way of promotion from amongst the members of

24 DJS. Rule 17 provides for filling up of the vacancies by

making temporary appointments from amongst the members

of DJS. According to the petitioners, till 1980 no problem

arose in the operation of the rules as till that time only the

substantive appointees to the service from the Bar as also the

appointees by promotion were being given seniority under

Rule 8(2). In the year 1980, a writ petition was filed before

this Court by the promotee officers challenging Rule 7 and 8 of

the Rules which provide rota-quota. The promotee officers

claimed that even appointment to the temporary

posts/vacancies under Rules 16 and 17 of the Rules, is

similar to the substantive appointment to the service and the

incumbents under those Rules are also entitled to get

seniority from the date of their appointment. In O.P. Singla's

case (supra) this Court held that appointments made under

Rules 16 and 17 to temporary post/vacancies are similar to

those of the substantive appointments. With the said

equation by legal fiction, distinction between the two types of

appointments i.e. temporary and substantive, having been

extinguished, this Court reached to the conclusion that since

25 no appointments of direct recruits under Rule 16 or 17 were

possible in accordance with the rule as then existed, the

inevitable conclusion is that rota/quota had broken down.

However, this Court upheld the Constitutional validity of Rule

7 and held that there is a quota of 1/3rd vacancies for the

direct recruits in the service. The Court also upheld

Constitutional validity of Rule 8(2) which provides for the

rotation of vacancies under Rule 7.

It is relevant to point out that though this Court had

equated temporary post with permanent post it also noticed

that this judgment will upset the balance between the direct

recruits and the promotees in the DHJS. In those

circumstances, it directed to frame appropriate rules to

remove the imbalances for future application.

11) After the judgment in O.P. Singla's case, in the year

1985, the High Court undertook the exercise of amendment of

the Rules to provide for filling up of temporary

posts/vacancies under Rules 16 and 17 also by the direct

recruitment as per the quota prescribed under Rule 7.

Simultaneously, the High Court also decided that in order to

26 restore the balance between the number of the direct recruit

appointees and the promotee appointees in the service, 14

existing vacancies be filled up by direct recruitment. The

promotee officers again filed a writ petition before this Court

challenging the decision of the High Court. This Court, by

order dated 18.12.1986, and by consent of all the parties set a

time-frame for finalization and publication of the amendment

to DHJS Rules and directed that thereafter all the vacancies

are to be filled up. Accordingly, in March, 1987, the DHJS

Rules were amended and disparity in the matter of regular

appointments as well as appointments against temporary

posts and temporary vacancies under Rules 16 and 17 of the

Rules were removed. It was provided that even under these

Rules, appointments of the direct recruits could be made. While implementing the judgment of this Court in O.P.

Singla's case, the High Court granted seniority to the DHJS

officers. However, the said final seniority list was again

challenged before this Court by way of Writ Petition No. 490

of 1987. The dispute so raised was finally settled by a

Constitution Bench of this Court in Rudra Kumar Sain 27 (supra). The Constitution Bench, in its judgment, upheld the

principles laid down in O.P. Singla's case and held that in

DHJS, for appointees of the pre-amended rules seniority had

to be assigned on the basis of length of service only.

12) It is the grievance of the petitioners that since 1992 till

their selection in the year 1997 vacancies were available; yet

despite of the availability of new vacancies for the direct

recruits as also for the promotees, the recruitment process

was commenced only for the promotees and the direct recruits

were consistently held back. The Full Court, in its meeting

held on 20.07.2002, considered the issues concerning inter-se

seniority of the direct recruits and the promotees of DHJS

appointed after amendment of DHJS Rules. It approved the

tentative seniority list for circulation to the officers. The Full

Court, after its meeting held on 30.08.2000, directed that the

seniority list of the officers is to be circulated amongst the

officers of DHJS to invite their objections, if any. Accordingly,

by letter dated 12.08.2002, the tentative seniority list of 130

officers of DHJS appointed up to the year 2000 was circulated

amongst the concerned officers for inviting their objections.

28 After receipt of objections, the matter regarding finalization of

seniority list of officers of DHJS was considered in the Full

Court held on 25.10.2002. A Committee of Hon'ble Judges of

the High Court was constituted to go through the objections

and submit a report for consideration of the Full Court.

Accordingly, the Committee considered the objections and

submitted reports. The Full Court accepted the

recommendations of the Committee dated 13.10.2004 in

respect of seniority of Mr. S.L. Bhayana. The Full Court also

accepted the majority view in respect of seniority of three more

officers. After due approval by the Full Court, the same was

circulated amongst the concerned officers and objections of

the remaining officers directed to be considered in the next

meeting of the Committee. The Full Court, by decision dated

20.05.2006, reconstituted a Committee. Pursuant to the

communication of the High Court dated 02.06.2006, 24 direct

recruit officers and 15 promotee officers of DHJS submitted

their written statement. The reconstituted Committee heard

the officers on several occasions. Apart from the Committee,

two Hon'ble Judges gave their views which were also

29 circulated among the Judges. The Full Court, in its meeting

dated 18.05.2007, considered two different reports and views

received from the two Hon'ble Judges. Finally, the Full Court

approved the majority view for settling inter-se seniority of the

officers of DHJS. By letter dated 18.08.2007, the final

seniority list of officers of DHJS as on 01.01.2007 supplied by

the High Court was forwarded to District and Session Judges,

Delhi for circulation among the concerned officers.

13) The Committee constituted by the High Court had

received objections both from the direct recruits as well as

from the promotee officers. All the direct recruits who have

filed their objections against the tentative seniority list have

claimed determination of their inter se seniority by applying

the rule of Rota Quota laid down in the statutory rules, i.e.

Rule 8(2) read with Rule 7 of the DHJS Rules, 1970. The

promotee officers were divided in their stand. Some of the

promotee officers want their seniority to be decided by

applying the principle of Rota Quota as claimed by the direct

recruits. Some promotee officers want their seniority to be

decided on the principle of continuous length of service as laid

30 down in O.P. Singla and Rudra Kumar Sain's cases and a

handful of the promotee officers have stated in their objections

that the High Court should apply the principle contained in

the O.M. dated 3.7.1986 for determining their inter se

seniority.

14) In view of the objections of the officers against tentative

seniority list, three options available before us for deciding the

inter se seniority dispute amongst the officers of DHJS are as

follows:

(i) Principle of Rota Quota as laid down in Rule 8(2) read

with Rule 7 of DHJS Rules.

(ii) Principle as laid down in the O.M. of DOPT dated

3.7.1986.

(iii) Principle of "continuous length of service", i.e., date of

appointment.

15) Let us consider the applicability of the above norms in

Delhi Higher Judicial Service for ascertaining as to which of

these norms would be most equitable, reasonable and

justiciable for determining the inter se seniority of the officers

in the said service. In our view, an equitable rule for

31 determining the inter se seniority would be one that satisfy the

competing claims of both the groups.

16) The cadre strength of DHJS as on 31.12.1991 was of 60

officers. The said strength, later on, stood increased by

addition of more and more new posts from time to time. As on

the date of considerations, cadre strength was of 174 officers.

The details of recruitment by promotion and direct

recruitment made to the service from 1992 to 2006 are as

under:-

Appointments under Promotion quota

Year No. of Date of promotees Promotion 1992 7 17.12.92 1994 7 28.04.94 1995 9 (4 ON 25.02.95 & 5 on 24.08.95) 1996 21 (5 on 24.08.95, 5 on 6.01.96, 10 on 24.07.96, 5 on 16.11.96 & 1 on 20.11.97 1997 14 20.11.97 2000 23 (8 on 26.05.2000 & 15 on 16.08.2000) 2003 24 06.08.2003 2006 28+15(Fast 04.01.2006 Track promotion on ad-hoc basis)

Appointments under direct recruitment quota

32 Year No. of Direct Date of promotion Recruitees 1992 1 09.12.1992 1995 9 7/9.03.1995 1997 8 21.04.1997 2000 7 26.05.2000 2002-03 12 26.11.2002

17) Rule 5 of DHJS Rules provides recruitment from two

sources, namely, by direct recruitment from amongst eligible

Advocates and also by promotion from the feeder cadre i.e.,

Delhi Judicial Service. Rule 7 provides 1/3rd quota for direct

recruitment and 2/3rd quota for promotee officers. As per

Rule 8, the first vacancy goes to the direct recruits while the

next two are to be given to the promotee officers and so on.

18) The DHJS Rules were amended in March, 1987. Before

amendment of the Rules, direct recruits could not have been

appointed against the temporary posts created in the service

from time to time but after amendment of the Rules, they also

became entitled to get their quota for appointment even

against the temporary posts. Rule 8(2) of the Rules provides

for following the rule of Rota Quota in the ratio of 1:2 for fixing

the inter se seniority between the direct recruits and the

promotee officers. As prior to amendment of the Rules, there

33 was no quota for direct recruits against the temporary posts,

the Rota Quota rule either in the matter of appointment or for

fixing of inter se seniority could not be followed as there was a

breakdown of this rule. On taking stock of the situation, this

Court in O.P. singla's case (supra) while upholding the

constitutional validity of Rule 8(2) found a workable solution

for fixing the inter se seniority of the officers of DHJS and

directed the High Court to fix their inter se seniority by

applying the principle of continuous officiation, i.e. length of

service. This principle was reiterated by this Court in its

constitution Bench judgment in Rudra Kumar Sain's case

(supra) which is also a case regarding dispute in seniority of

the officers of DHJS. Since the requisite balance between the

direct recruits and the promotee officers in terms of rule 8(2)

could not be achieved till date, the High Court has

consistently applied the principle of continuous length of

service for determining the inter se seniority of the officers of

DHJS up to Mr. K.C. Lohia. The seniority up to Mr. K.C. Lohia

has not been disputed either by the direct recruits or by the

promotee officers.

34

19) Perusal of the Seniority List drawn by application of

principle of Rota Quota as laid down in Rule 8(2) read with

Rule 7 of DHJS Rules shows that in case the principle of Rota

Quota is followed, then it would cause a serious injustice to

the promotee officers inasmuch as, the direct recruits who

have not yet entered the service would rank senior to the

promotee officers promoted in their quota way back on

16.8.2000. If this is allowed to happen, this would not only be

unreasonable but create a great heart-burning amongst the

officers appointed from the two sources. Hence, in our view,

the principle of Rota Quota contained in the statutory Rule 8

(2) read with Rule 7 of DHJS Rules, does not properly address

the problem of resolving inter se seniority dispute between the

direct recruits and the promotee officers.

20) The other Seniority List got prepared on the basis of the

principle of seniority as laid down in the O.M. of DOPT dated

3.7.1986, adopted by the majority view for determining the

inter se seniority of the officers of the two groups reveals

certain important facts having a bearing on the determination

35 of inter se seniority of the officers of the two groups and they

are as under:

a) Promotions of the promotee officers from the cadre of

DJS to the cadre of DHJS took place shortly within a few

months as and when vacancies became available to

them, either through increase in the cadre strength or

creation of temporary post.

b) The process for direct recruitment was started many

months before the promotions of the promotee officers in

the cadre of DHJS. The delay that occasioned in the

appointment was only in the case of direct recruits and

not of the promotee officers.

c) The vacancies against which direct recruits were

appointed became available to them many months

before the promotions of the promotee officers against

subsequent addition of vacancies.

d) The direct recruits were working as Additional District

Judges against the substantive post whereas the

promotee officers who were proposed to be made senior

36 to such direct recruits were at the same time working as

subordinate Judges in the cadre of DJS.

There are other reasons in law why the principle contained in

the said O.M. cannot be taken in aid for determining the inter

se seniority of the officers of DHJS but before going into those

reasons, it would be necessary to discuss the adverse

consequences that would flow by application of the principle

contained in the said Office Memorandum. It is useful to refer

the relevant clauses in O.M., which were adopted in the

majority report, are reproduced hereunder:

"GOVERNMENT OF INDIA DEPARTMENT OF PERSONNEL AND TRAINING OFFICE MEMORANDUM No. 22011/7/86-Estt.(D)

Dated 3rd July, 1986

"2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees.

In other words, to the extent direct recruits are not available, the promotees will be punched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct

37 recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year."

Now let us consider the applicability of this provision in the

cases on hand. From 1992 to 2006, only five batches of direct

recruits were appointed, details of which are as follows:-

Year of direct recruitment No. of Direct Recruits 1992 1 1995 9 1997 8 2000 7 2003-03 12

In the batch of 1992, only one direct recruit, Ms. Veena Birbal

was appointed. She being at S.No.1 her seniority is not at all

affected by the application of any of the three rules i.e., the

principle of Rota Quota as contained in the statutory Rule 8(2)

read with Rule 7 of DHJS Rules, principle as contained in the 38 O.M. referred above or the principle of continuous length of

service. The seniority of the officers of other three batches of

direct recruits appointed in 1995, 1997 and in the year 2000

is adversely affected to their detriment, if the seniority is

decided on the basis of principle contained in the above

referred O.M. It may be seen from the seniority list which is

based on the principle contained in the O.M. that the six

direct recruits of 1995 batch, namely, Ms. I.K. Kochhar, Mr.

A.K. Pathak, Mr. B.S. Mathur, Mr. P.S. Teji, Mr. I.S. Mehta

and Mr. Lal Singh who all were appointed against the

substantive vacancies in their quota on 7/9.3.1995 would

become junior to the promotee officers, Mr. Ajit Bharihoke,

Mr. D.K. Saini, Mr. R.S. Khanna, Mr. S.K. Tandon and Mr.

Prem Kumar who were promoted from DJS to DHJS on

24.8.1995 against vacancies that became available to them

after the appointment of the above named six direct recruits.

In the same way, the seven direct recruits of 1997 batch,

namely, Mr. V.P. Vaish, Mr. S.N. Gupta, Mr. S.C. Malik, Mr.

A.K. Chawla, Mr. Vinod Goel, Mr. R.P.S. Teji and Mr. S.C.

Rajan appointed against substantive vacancies in the quota of

39 direct recruits on 21.4.1997 would become junior to the

promotee officers Mr. Mahavir Singhal, Mr. S.K. Sarvaria, Mr.

P.C. Ranga, Mr. Babu Lal, Mr. D.C. Anand, Mr O.P. Gupta,

Mr. C.K. Chaturvedi, Mr. A.S. Yadav, Mr. R.K. Gauba, Mr. H.S.

Sharma, Mr. J.R. Aryan, Mr. K.S. Pal, Mr. M.K. Gupta and Ms.

Sangita Dhingra Sehgal, who were promoted from DJS to

DHJS after them on 20.11.1997. Similarly, the three direct

recruits of 2000 batch, namely, Mr. Rajnish Bhatnagar, Mr.

Rakesh Siddartha and Mr. Amar Nath appointed in the direct

recruit quota against substantive vacancies on 26.5.2000

would become junior to the promotee officers, Mr. N.P.

Kaushik, Ms. Asha Menon, Mr. Pradeep Chaddah and Mr.

Narender Kr. Sharma promoted to DHJS on 16.8.2000.

None of the abovenamed promotee officers was even promoted

to the cadre of DHJS when the above named direct recruits

over whom they are proposed to be made senior were

appointed in the cadre of DHJS against substantive vacancies.

Those promotee officers were working as sub-

Judges/Metropolitan Magistrates in the cadre of Delhi

Judicial Service at the time the above named direct recruits

40 were appointed as Additional District Judges in the cadre of

DHJS. We are of the view that by no stretch of imagination or

legal fiction, a promotee officer working in the lower cadre can

be made senior to an officer working on a higher post as an

Additional District Judge at that point of time. In case by

application of principle as contained in the O.M., officers

working in the lower cadre are made senior to the Additional

District Judges of that time, then it would cause a great heart

burning amongst those direct recruits who were appointed in

their own quota against substantive vacancies before the

promotion of the promotee officers in question.

21) Further, in our view, the principle of inter se seniority

contained in the above O.M. can even otherwise be not applied

for determining the inter se seniority of the officers of DHJS for

the following reasons, (i) The principle of inter se seniority

contained in the O.M. of DOPT dated 3.7.1986 cannot

supplant statutory Rules for determining the inter se seniority

contained in the statutory Rules viz., Rule 8(2) read with Rule

7 of DHJS Rules, 1970; (ii) The pre-conditions for applicability

of the principle contained in the above referred O.M. never

41 existed in the service in question. The O.M. contemplates

recruitment on yearly basis and also for maintaining year-wise

record of the vacancies remaining unfilled in any particular

category before they are bunched as carry forward vacancies

for the next year, (iii) Rule 27 of the DHJS Rules which is a

residuary provision explicitly provides that with regard to

matters on which DHJS Rules are silent, help can be taken

from the Rules that are applicable to the IAS officers. As

specific provisions for determining the inter se seniority of the

officers of DHJS have been made in the DHJS Rules, there is

no question of taking any aid from any outside Rule as

contained in the O.M. Further the IAS Seniority Rules, 1987

prescribed principle that is altogether different from the kind

of Rota Quota principle embodied in DHJS Rules, 1970. The

majority report has also noted that though the O.M. of 1986

does not apply by recourse to Rule 27 of the DHJS Rules

1970, yet has recommended its applicability for determining

the inter se seniority of the officers of DHJS on the assumption

that the Central Government would be within its right to apply

the said Memorandum or make similar principle for

42 application to the members of the All India Service in future.

The inter se seniority of IAS Officers is determined by reference

to the year of allotment as provided in Rule 4 of IAS

(Regulation of Seniority) Rules, 1987. The principle of

bunching of officers appointed against carry forward vacancies

and then putting them below the last officer appointed against

the current vacancy of that year is not applicable to the IAS

officers for determining their inter se seniority but in DHJS,

the circumstances are entirely different. The appointments

from 1992 to 2006 were never made from either source on

yearly basis. No record was maintained regarding the unfilled

vacancies available to either source on year-wise basis.

22) In view of what has been discussed above, we are of the

view that we should not apply the principle of bunching as

contained in the above referred O.M. for determining the inter

se seniority of the officers of DHJS as by application of the

said principle the promotee officers who at the relevant time

(i.e. 1995, 1997 and 2000) were still in the lower cadre of DJS

would become senior to those direct recruits appointed as

Additional District and Sessions Judges much before their

43 promotions in the cadre of DHJS. This is unjust and

inequitable.

23) Now let us have a glance the seniority list prepared on

the basis of the principle of "continuous length of service".

Ever since the inception of the service till the seniority up to

Mr. K.C. Lohia was finally decided, the High Court has

continuously followed the principle of "continuous length of

service" as directed to be applied to the officers of DHJS by

this Court in O.P. Singla and Rudra Kumar Sain's cases

(supra). When O.P. Singla and Rudra Kumar Sain's cases

were decided by this Court, this Court had noticed breakdown

of Rota Quota in the service and it was for that reason,

directions were given for determining the inter se seniority by

applying the principle of continuous length of service.

24) A perusal of seniority list which is based on the principle

of Rota Quota would show that the Rota Quota remains

broken down even today. It may be pertinent to mention here

that steps for appointment of direct recruits were actually

taken by the High Court many years before their appointment

actually took place but the appointments came in place only

44 after considerable delay. Though as per law the direct recruits

cannot be faulted with for the delay caused in their

appointments, the fact remains that delay in appointments

should not cause any disadvantage to the incumbents

appointed in the service. We need not go into all these

aspects because the fact that has emerged is that the

appointment of direct recruits and promotee officers in the

service have not taken place simultaneously. This only shows

that Rota Quota has remained broken down right from the

inception of service till now. There is absolutely no change in

the factual position relating to breakdown of Rota Quota even

after the decision of this Court in O.P. Singla and Rudra

Kumar Sain's cases. There is no reason to depart from the

said principle and take a shelter under the O.M. of DOPT

dated 3.7.1986 for determining the inter se seniority of the

officers of DHJS.

25) The High Court while fixing seniority of officers upto Shri

K.C. Lohia including those who were appointed after

amendment of the Rules and whose seniority was not

determined in Rudra Kumar Sain's case, did not apply the

45 O.M. dated 3.7.1986 or the principles contained therein.

Their seniority was fixed essentially on the basis of "length of

service". There was no good reason for the High Court to

discard the principle of "continuous length of service", which it

had followed for determining seniority of officers upto Shri

K.C. Lohia and apply the O.M. dated 3.7.1986 for the purpose

of fixing the seniority of officers appointed after the

appointment of Shri K.C. Lohia. Rule 8(2) cannot be applied

on account of gross inequity and injustice which its

application is bound to produce and since this Court has

already held in the case of Suraj Prakash Gupta & Ors. vs.

State of J & K, (2000) 7 SCC 561 that direct recruits

cannot claim seniority from the date of occurrence of vacancy

in the direct recruitment quota, the seniority should be

determined on the basis of continuous length of service as was

done by this Court in O.P. Singla's case and Rudra Kumar

Sain's case and was also done by Delhi High Court in case of

officers upto Shri K.C. Lohia. If the seniority is fixed in this

manner, it will not cause any injustice either to promotees or

to direct recruits.

46

26) Further it has to be kept into consideration that seniority

even by one day may materially affect the future prospects

and career of an officer. The person appointed even on day

earlier may reach a position which the person appointed one

day later may not be able to reach due to reasons such as

limited number of higher posts or his becoming age barred by

the time next vacancy arises. The only advancement in the

career of a member of Delhi Higher Judicial Service is

elevation to the High Court. Therefore, it will not be fair and

equitable to give march to a later appointee over a prior

appointee of the same year, even if that march is for a few

months or even for a few days. It, therefore, cannot be

disputed that the application of O.M. dated 3.7.1986 which

does not ipso facto apply to officers of Delhi Higher Judicial

Service would produce inequity for officers from one or the

other source and therefore, has to be avoided if a better

principle, which is fair and reasonable to all can be applied.

27) As observed earlier, perusal of the seniority list prepared

on the basis of the principle of "continuous length of service"

clearly demonstrates that in case the seniority of the officers of

47 DHJS is fixed by reference to their date of appointment, then

nobody would suffer any injustice. Each and every officer

would get due weightage of the service rendered by him or her

in the cadre of DHJS. If inter se seniority is finally decided by

applying the principle of "continuous length of service", it may

bring an end to litigation between the officers of the two

groups. Therefore, the principle of "continuous length of

service" should be applied for determining the inter se

seniority of the officers of Delhi Higher Judicial Service

appointed up to the year 2006. In case of officers appointed on

the same date, whether direct appointees or promotees, the

seniority should be fixed on the principles as stated in O.M.

dated 3.7.1986 since it cannot be determined on the basis of

length of service alone in case of appointment from two

different sources on the same date.

28) As far as the inter se seniority of the officers to be

appointed in DHJS after the year 2006 is concerned, this

Court in its judgment in All India Judges Association vs.

Union of India , (2002) 4 SCC 247 has directed all the High

Courts to make necessary amendment in the Rules providing

48 for determining the inter se seniority on the basis of 40 point

Roster considered and approved in the case of R.K.

Sabharwal & Ors. vs. State of Punjab, (1995) 2 SCC 745.

The necessary amendment relating to inter se seniority for

future be made in the DHJS Rules in consonance with the

directions of this Court as referred in the above mentioned

cases. Till such time the principle of "continuous length of

service" i.e. date of appointment should be applied for

determining the inter se seniority of the officers of Delhi Higher

Judicial Service.

29) For the aforestated reasons, we allow all the writ

petitions. The inter se seniority list of DHJS as suggested by

the majority view and consequential order of the High Court

are set aside. Now, the High Court is requested to finalise

fresh inter se seniority list of DHJS, as observed above, as

expeditiously as possible. No order as to costs.

......................................CJI. (K.G. BALAKRISHNAN)

..........................................J. (P. SATHASIVAM) 49 ..........................................J. (J.M. PANCHAL)

NEW DELHI;

October 15, 2008.

50