S.B. Mathur
& Ors Vs. Hon'ble The Chief Justice of Delhi High Court & Ors [1988] INSC 257 (31 August 1988)
Kania,
M.H. Kania, M.H. Singh, K.N. (J)
CITATION:
1988 AIR 2073 1988 SCR Supl. (2) 772 1989 SCC Supl. (1) 34 JT 1988 (3) 507 1988
SCALE (2)615
ACT:
Delhi
High Court Establishment (Appointment and conditions of service) Rules,
1972-Delhi High Court Staff {SEniority) Rules 1971-Superintendents of Delhi
High Court challenging the treatment of posts of Superintendents, Court Masters
or Readers and Private Secretaries to Judges as equal status posts, being violative
of Article 14 of the Constitution, and challenging joint seniority list of
Superintendents, Court Masters and Private Secretaries for purposes of
promotion to the post of Assistant Registrars and claiming better rights of
promotion.
HEAD NOTE:
The
Superintendents of the Delhi High Court by writ petition claimed better rights
of promotion, objected to their being treated as on par with the Private
Secretaries to Judges and Court Masters, and being included in a joint
seniority list alongwith them, particularly as far as the promotion to the next
higher post of Assistant Registrar was concerned.
The
petitioners contended inter-alia that there was a violation of Article 14 of
the Constitution in treating the posts of Superintendents, Court Masters or
readers and Private Secretaries to Judges as equal status posts; that the
sources of recruitment to these posts were not identical and so also the
qualifications required for appointments to these posts; that the duties of the
incumbents of these posts were different; that in treating these posts as equal
status posts, unequals had been treated equally and the rule of equality had
been violated.
Dismissing
the petition, the Court,
HELD:
Where an employer has a large number of employees, performing diverse duties,
he must enjoy some discretion in treating different categories of his employees
as holding equal status posts or equated posts, as questions of promotion or
transfer of employees inter se will necessarily arise for the purpose of
maintaining the efficiency of the organisation. [781C-D) PG NO 772 PG NO 773
There is nothing inherently wrong in an employer treating certain posts as
equal posts or equal status posts, provided that in doing so he exercises his
discretion reasonably and does not violate the principles of equality enshrined
in Articles 14 and 16 of the Constitution. [781D- E] For treating certain posts
as equated posts or equal status posts, it is not necessary that the holders of
these posts must perform the identical functions or that the sources of
recruitment to the posts must be the same, nor is it essential that the
qualifications for appointments to the posts must be identical. But, there must
not be such difference in the pay-scales or qualifications of the incumbents of
the posts or in their duties or responsibilities or regarding any other
relevant factor that it would be unjust to treat the posts alike and posts
having substantially higher pay-scales or status in service or carrying
substantially heavier responsibilities and duties or otherwise distinctly
superior, cannot be equated with the posts carrying much lower pay-scales or
substantially lower responsibilities and duties or enjoying much lower status
in service. [781E-G] The petitioners could not challenge the aforesaid posts
being treated as equal status posts as that had been done in accordance with
the Seniority Rules of 1971 the vires of which had not been challenged. [782B]
Neither the combined seniority list nor the treating of the said posts as equal
status posts could be said to be arbitrary in the absence of any material,
particularly in view of the fact that the Chief justice and the Judges of the
High Court had taken the view that it was necessary in order to provide
adequate promotional opportunities to the various sections of the employees.
[784D] The challenge to the said posts being treated as equal status posts had
come too late in 1970 to be entertained in a writ petition, after the seniority
Rules of 1971 became effective. This challenge could be negatived on the ground
of delay or latches apart from other considerations. [784E-G] There was nothing
unreasonable in the restriction that out of the total number of candidates who
satisfied the eligibility requirement, the zone of consideration would be
limited to a multiple of 3 to 5 times the number of vacancies or in determining
the persons to be considered on the basis of their seniority in the combined
seniority list.
It was
open to the High Court to restrict the zone of consideration in any reasonable
manner, and limiting the PG NO 774 zone of consideration to a multiple of the
number of vacancies and basing it on seniority according to the combined
seniority list cannot be regarded as arbitrary or capricious or mala fide, nor
can it be-said that such a restriction violates the, principle of selection on
because even experience in service is a relevant consideration in assessing
merit. [791C-E] It is not as if either Rule 7 of the Establishment Rules of 1972
or Rule 5 of the seniority Rules of 1971 which provides for a combined
seniority list negatives the chance of promotion to the posts of Assistant
Registrars being granted to the Superintendents. [794A-B] So far as the zone of
consideration is Limited by the competent authority in a manner not
inconsistent with the Rules or in a manner not arbitrary or capricious or mala
fide, the validity of the decision to limit the zone of consideration cannot be
called in question on the ground that the manner in which the zone was limited
was not uniform. [795D-E] V. T. Khanzode and Ors. v. Reserve Bank of India and Anr.,
[1932] 3 S. C.R. 411 ; Guman Singh v. State of Rajasthan und Ors., [1971] Suppl.
S.C.R. 900; Sant Ram Sharma v. State of Rajasthan and Anr., [19688] 1 S.C.R.
III;
Reserve
Bank of India v. N.C. Paliwal and Ors., [1977] 1
S.C.R. 377; Ashok Kumur Yadav and Ors., etc. v. State of Haryana and Ors., etc., [1985] Suppl. 1
.S.C.R. 657; V.J. Thomas and Ors. v. Union
of India and Ors., l1985] Suppl. S.C.C. 7; Madan
Mohan Saran and Anr. v. Hon'ble the Chief Justice and Ors., [1975] 2 S. C. R.
899 and Mahesh Prasad Srivastava v. Abdul Khair, [1971] 1 S.C.R. 157, referred
to.
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 263 of 1979.
(Under
Article 32 of the Constitution of lndia. ) D.D. Thakur, A. Minocha, Mrs. Veena Minocha,
G. S. Vashisht, T.R. Arti and B.S. Bali for the Petitioners.
Kuldeep
Singh, Additional Solicitor General, C. M. Nayar and C.V. Subba Rao for
Respondent Nos. 1 and 2. Kuldeep Singh, Additional Solicitor General, Ashok Srivastava
and Ms. A. Subhashini for Respondent No. 3. PG NO 775 Ms. A. Subhashini
Advocate for the Respondent No. 11.
A. k. Ganguli,
A. Mariarputha and Mrs. Aruna Mathur for the Respondents Nos. 6, 7, 4 and 10.
The
Judgment of the Court was delivered by KANIA, J. This Writ Petition owes its
origin to a dispute between different groups of employees of the Delhi High
Court, claiming better rights of promotion for themselves, a type of dispute
too common in services these days. The present Writ Petition has been filed by
some Superintendents in the Delhi High Court objecting to their being treated
on a par with the Private Secretaries to learned judges and Court Masters and
being included in a joint seniority List along with them, particularly as far
as the promotion to the next higher post of Assistant Registrar is concerned.
In order to appreciate the controversy before us, it is necessary to keep in
mind the background in which the dispute has originated.
Prior
to the Constitution of the Delhi High Court in 1966, there was a Circuit Bench
of the Punjab High Court sitting at Delhi. By Act 26 of 1966, Parliament established an independent High Court
for the Union Territory of Delhi.
By an
order dated October 31,
1966, effective from October 31, 1966, the Government of lndia created a
staff for the said High Court. The letter of the Government of india, which is
Annexure-A to the Petition, shows that the President of India sanctioned the
creation of certain posts for the Delhi High Court with effect from October 31,
1966 or from the date of setting up of the High Court, whichever was later, upto
February 28, 1967. Amongst these posts, there was a post of an Assistant
Registrar having a pay- scale of Rs.500-30-800 plus (scales of pay and dearness
allowance as admissible in Punjab). Among
the other posts created were six posts of Private Secretaries to Hon'ble Judges
of the High Court in the pay-scale of Rs. 500-20-450- 25-475, six posts of
Readers and seven posts of Superintendents. The pay-scale of all these posts
was the same, namely, Rs.350-20-450-25-475. The Delhi High Court started
functioning with effect from October 31, 1966.
The staff of the Punjab and Haryana High Court working in Delhi was, for the time being, treated as
on deputation to the Delhi High Court till they were permanently absorbed in
the Delhi High Court. From the time of its formation till 1971, the Delhi High
Court had no rules of its own regarding conditions of service or regarding the
salary or seniority in respect of its staff. Section 7 of the Delhi High Court
Act, 1966 (Act 26 of 1966), in brief, provided that, PG NO 776 subject to the
provisions of the said Act, the law in force immediately before the Appointed
Day (31.10.1966) with respect to practice and procedure in the High Court of
Punjab shall, with the necessary modifications, apply in relation to the Delhi
High Court and conferred powers on the High Court of Delhi to make rules and
orders with respect to its practice and procedure, such powers being the same
as exerciseable by the High Court of Punjab immediately before the Appointed
Day. There was a proviso which was to the effect that any rules or orders which
were in force immediately before the Appointed Day with respect to practice and
procedure in the High Court of Punjab shall, until varied or revoked by rules
or orders made by the High Court of Delhi, apply with the necessary
modifications in relation to practice and procedure in the High Court of Delhi
as if made by that High Court. The Delhi High Court started in 1966 with four Hon'ble
Judges including the Chief Justice and among its staff inter alia were four
Superintendents, four Readers and three Private Secretaries against the
sanctioned strength. Under the powers conferred by Article 229 of the
Constitution, the Chief Justice of the Delhi High Court framed the Delhi High
Court Officers and Servants (Salaries , leave, Allowances and Pension) Rules,
1970 (hereinafter referred to as "the Salary Rules of 1970") and the
Delhi High Court Staff (Seniority) Rules, 1971 (hereinafter referred to as
"the Seniority Rules of 1971").
Under
the Salary Rules of 1970, the scale of Pay for Superintendents, Readers and
Private Secretaries was the same, namely, Rs.350-20-475. With the increase of
work and the extension of the territorial jurisdiction of the Delhi High Court,
there was an increase in the number of Judges as well as staff of the Court.
According to the Petitioners, by March 1979, there were 21 Private Secretaries,
21 Readers and 13 Superintendents in the Delhi High Court. It appears that
because of the increase in the number of Judges, the increase in the post of
Private Secretaries and Readers was at a somewhat higher rate than that in the
posts of Superintendents. We are informed that in March 1988, the position was
that there were 27 Private Secretaries, 30 Readers and 24 Superintendents in
the same pay scale. We may mention that Readers are now called Court Masters.
We may
at this stage consider the Seniority Rules of 1971, Rule 3 of the said Rules
provides that inter se seniority of confirmed employees in any category of the
High Court staff shall be determined on the basis of the date of confirmation.
Rule 5 of the said rules runs as follows :
"Joint
inter se seniority of confirmed employees in categories of equal status posts
shall be determined PG NO 777 according to their dates of confirmation in any
of those categories." Rule 9, with which we are not directly concerned,
provides that certain credit for purposes of seniority shall be given to an
employee who before his appointment as Assistant in the High Court was working
on any of the posts mentioned in Clause IV of Schedule II. Rule 2 contains
certain definitions for purposes of the said Rules. Rule 2(ii) runs as follows:
"`Equated
post' means any of the posts shown as equated posts, from time to time, in
Schedule I to these rules".
Clause
(iii) of the said Rule runs as follows :
"
'Equal status posts' means the posts shown to be of equal status, from time to
time, in Schedule II to these rules".
Item
(ii) of Schedule I under Rule 2 runs as follows:
"Equated
Posts:
(i) x x
x x x x (ii) Judgment writers/Personal Assistant to Judges of Punjab & Haryana
High Court (from 7.11. 1964] and Private Secretaries to Judges." The
relevant portion of Schedule II (See Rule 2) runs thus:
"Equal
Status Posts:
(i) x x
x x (ii) Superintendents, Court Masters, Private Secretaries to Jugdes . . . .
.".
(iii)
x x x x (iv) x x x x (v) x x x x In exercise of the powers vested in the Chief
Justice of the Delhi High Court, he framed certain rules which were notified on
15th September, 1972, called Delhi High Court Establishment (Appointment and
conditions of Service) Rules, 1972 (hereinafter referred to as
"Establishment Rules of PG NO 778 1972"). Rule 7 of the said Rules
runs as follows:
"7.
Mode of Appointment.
Except
for appointment on officiating, temporary or ad hoc basis, the mode of and
qualifications for appointment to the posts specified in Schedule II to these
rules shall be as stated therein." The material portion of Schedule II
runs as follows:
Schedule-II
(See Rule 7) ----------------------------------------------------------- S.No.
Category Minimum qualifi- Mode of of post cations prescribed appointment for
appointment to the posts -----------------------------------------------------------
"1 x x x 1a x x x 2 x x x 3 Assistant Registrar - By selection on merit
(Selection post) from confirmed offi- cers of categories 5 6 & 7 of Class
IT mentioned in Schedule 1.
x x x x
x x x" ----------------------------------------------------------- We may
mention that Schedule I framed under Rule-4 mentions the various categories of
posts. Category of comprises Assistant Registrars, Categories 5, 6 and 7 of
Class II are Superintendents, Court Masters and Private Secretaries to Judges. respectively.
The
above provisions make it clear that certain posts were treated as equated posts
under Schedule I and certain posts were treated as equal status posts under
Schedule I1 to the said Seniority Rules of 1971. It is clear that these
provisions were made with a view to provide transferability among persons
holding these posts and to provide for channels of promotion to certain
categories of employees who did not enjoy a chance for promotion earlier with
the result that there was stagnation and frustration in the categories
concerned. It may be noticed here that the posts of Judgment PG NO 779 Writers,
Personal Assistants to Judges and Private Secretaries to Judges have been
treated as equated posts and the posts of Superintendents, Court Masters and
Private Secretaries to Judges have been treated as equal status posts. Rule 5
of the Seniority Rules of 1971 set out by us earlier provides for a joint
seniority list of confirmed employees in categories of equal status posts
presumably with the same object as aforestated.
It may
be noticed that prior to October 31, 1966 the position relating to pay-scales
was as follows:
1.
Superintendent 50-20-500-30-650 Gazetted Post
2.
Reader 250-20-450 Non-Gazetted Post
3. P.S.
(Private Secretary) 150-10-300 Non-Gazetted Post.
Later
on, there was a revision of scales of pay of these posts. It is not necessary
to consider all these revisions, but it may be noticed that at the relevant
time and thereafter under the Salary Rules of 1970 the Scales of Pay of the
said three posts are the same, namely, Rs.350-25-575.
The
said Rules have been framed as early as 1970 and the same have not been
challenged before us. It was under the Seniority Rules of 1971 that the said
posts were treated as equal status posts and Mr. Thakur, learned Counsel for
the Petitioners made it clear that he was not challenging this portion of the
Rules. ln fact, in his opening he made it clear that he would not challenge any
of the aforesaid Rules set out earlier. However, we must mention that in the
rejoinder an attempt was made to challenge the joint seniority list which would
imply a challenge to Rule 5 of the said Seniority Rules of 1971.
A
joint seniority list of Superintendents. Readers and Private Secretaries was
framed on May 8, 1972 but it was quashed on February 24th, 1975 when the
seniority list of Readers was challenged. The seniority list of Readers was
quashed on October 10, 1975. A direction was given in both the cases when the
said joint seniority list was quashed that a fresh list should be prepared in
accordance with the observations made in the judgment whereby the said list was
quashed. Accordingly, fresh lists were made after hearing objections thereto
and were finalized in December, 1976.
Occasions
then arose for temporary appointments to the posts of Assistant Registrars.
That the appointments to be made were temporary is not or much consequence as
later the confirmations were made in that very order. Under Rule 7 of the
Establishment Rules of 1972 appointments to the post of PG NO 780 Assistant
Registrar are to be made by selection on merit from the three categories,
Superintendents, Readers and Private Secretaries. It appears that it was felt
that it would not be feasible to consider all the incumbents of the posts in
the said three categories because a proper selection among such a large group
would be impracticable and extremely difficult. This appears to be the basis
underlying the decision of the Administrative Judges at Annexure XVI to the
Petition. For delimiting the zone of consideration or field of choice in making
the appointments which had to be made by selection on merits, after considering
various modes for delimiting the zones of consideration, it was decided at the
meeting of the Administrative Committee of the Judges of the Delhi High Court
held on February 3, 1977 that the zone of consideration or field of choice
should be limited to the first five names in the finalized joint seniority list
of Superintendents, Readers and Private Secretaries, that is, for each post of
Assistant Registrar to be filled in by selection on merits, five persons from
the finalized joint seniority list had to be considered in order of seniority,
and the selection between them made on merits. In other words, if appointments
were to be made to two posts of Assistant Registrars, the first ten employees
in the joint seniority list would be included in the zone of consideration. It
was further decided that no written test or interview was to be held for the
purposes of selection.
We are
not referring here to any individual promotion made on this basis because the
grievance made is against this mode of selection itself and not against any
particular promotion. We may mention here that, as set out earlier, when the
Delhi High Court started functioning, the authorised strength in the relevant
categories was six Private Secretaries to the Judges, six Readers (same as
Court Masters) and seven Superintendents. With the passage of time the number
of posts in three categories has risen fairly sharply. As aforestated by March
1979, according to the Petitioners, there were 21 Private Secretaries, 21
Readers and 13 Superintendents and by March 1988 there were 37 Private
Secretaries to Judges, 30 Readers or Court Masters and 33 Superintendents.
Although there is a little controversy regarding these figures, it is not of
any consequence in the case before us. All that need be noticed is that the
increase in the number of Readers and Private Secretaries has been higher percentagewise
than that in the case of Superintendents because with increasing work and
increase in the number of Judges, the number of Private Secretaries and Readers
had necessarily to rise in proportion whereas the number of Superintendents had
not gone up quite in the same proportion. lt may be mentioned that there was
some grievance made regarding differences in the method of selection employed
on different occasions when vacancies arose of requiring PG NO 781 temporary
appointments to the posts of Assistant Registrars.
There
is, however, not much substance in that grievance as we shall point out later.
The
first submission of Mr. Thakur, learned Counsel for the petitioners is that
there is a violation of Article 14 of the Constitution in treating the posts of
Superintendents, Court Masters or Readers and Private Secretaries to the Judges
as equal status posts. It was urged by him that the sources of recruitment to
these posts were not identical and so also the qualifications required for
appointments to these posts. He also pointed out that the duties of the
incumbents of these posts were different.
It was
submitted by him that in treating these posts as equal status posts unequals
were treated equally and hence the rule of equality was violated. In appreciating
this submission, it must be borne in mind that it is an accepted principle that
where there is an employer who has a large number of employees in his service
performing diverse duties, he must enjoy a certain measure of discretion in
treating different categories of his employees as holding equal status posts or
equated posts, as questions of promotion or transfer of employees inter so will
necessarily arise for the purpose of maintaining the efficiency of the organisation.
There is, therefore, nothing inherently wrong in an employer treating certain
posts as equated posts or equal status posts provided that, in doing so, he
exercises his reasonably and does not violate the principles of equality
enshrined in Articles 14 and 16 of the Constitution. it is also clear that for
treating certain posts as equated posts or equal status posted, it is not
necessary that the holders of these posts must perform completely the same
functions or that the sources of recruitment to the posts must be the same nor is
it essential that qualifications for appointments to the posts must be
identical. All that is reasonable required is that there must not be such
difference in the pay-scales or qualifications of the incumbents of the posts
concerned or in their duties or responsibilities or regarding any other
relevant factor that it would but unjust to treat the posts alike or, in other
words, that posts having substantially higher pay-scales or status in service
or carrying substantially higher responsibilities and duties or otherwise
distinctly superior are not equated with posts carrying much lower pay--scales
or substantially lower responsibilities and duties or enjoying much lower
status in service.
As far
as the case before us is concerned, although Mr. Thakur, learned Counsel for
the Petitioners has urged that aforesaid posts, namely, Superintendents,
Private Secretaries and Readers could not be treated as equated PG NO 782 posts
or equal status posts, he was unable to point out to us specifically any such
difference in respect of the requisite qualifications of the holders of
different categories of these posts or regarding the duties and
responsibilities carried by these posts as were so marked or significant that
it would be unfair or violative of the rule of equality to treat these posts as
equal status posts. In fact, it may be mentioned that at one stage in his
opening, Mr. Thakur specifically stated that he did not challenge the vires of
any of the said Seniority Rules of 1971.If that is so, we fail to see how he
can challenge the aforesaid posts being treated as equal status posts as that
has been done under the said Seniority Rules of 1971 which have been framed by
the Chief Justice in exercise of the powers conferred upon him under Article
224 of the Constitution of India. Even if one is to examine the contention on
merits, we are afraid, it must fail. A perusal of items 5, 6 and 7 of Schedule
I to the said Salary Rules of 1970 shows that under the said Rules which were
framed as early as 1970, the salary scale of Superintendents, Court Masters
(Readers) and Private Secretaries is the same, viz., Rs.350-25-575. There is,
therefore, no difference in the scales of salary. As far as the qualifications
for appointment are concerned, under rule 7 it is provided that these
qualifications are as specified in Schedule 11. items 4, 5 and 6 of the said
Schedule inter alia provide for the qualifications for appointments to the said
posts and it is undoubtedly true that the qualifications required for
appointment to these posts are not identical. In the case of Superintendents,
it appears, very briefly stated, that appointments to 25 per cent of these
posts are to be made on the basis of seniority-cum-suitability from the joint
seniority list of categories 9, 10,11, 13, 14 and 15 of Class 111 mentioned in
Schedule 1 and 75 per cent of the posts are to be filled by selection on merit
from the same categories. The categories of posts from which promotions of
selections can be made to the posts of Court Masters are substantially the
same. As far as the Private Secretaries are concerned, the mode of appointment
is by selection and the qualifications prescribed are that a graduate degree is
required for appointment of the said post and a further requirement is a speed
of not less than 120 words per minute in shorthand and 45 words per minute in
type writing. A perusal of the said provisions shows that the qualifications
required for appointment to the post of a Private Secretary are certainly
higher than the qualifications required for appointment to the post of a
Superintendent or a Court Master although from the latter two categories,
probably, more experience would be required. Thus, one fails to see how any
grievance can be made by the Superintendents on this score. As far as the
duties these posts carry are concerned, undoubtedly they are not the Same. But
Rule 8(c) of the Establishment Rules of PG NO 783 1972 provides that any person
appointed to the post in one category may be transferred to other category. The
validity of this Rule has not been challenged before us. This would show tat
even if the duties and responsibilities attached to these posts are not the same,
they were not so materially different as to render it inequitable that these
posts should be treated on the same footing for the purposes of promotion and
transfer. It may be that because of the requirement that a Court Master must be
a graduate and having a certain typing speed, Superintendents could not be
generally transferred to the posts of Private Secretaries.
But
one fails to see how any grievance can be made on that score by the
Superintendents.
The
view which we ave taken, as set out earlier, finds support from the decision of
this Court in V.T. Khanzode & ors. v. Reserve Bank of India & Anr.,
[1982] 3 S.C.R. 4111 rendered by a Bench comprising three learned Judges of
this Court. In that case, by Administrative Circular No. 8 dated Administrative
Circular No. 8 dated January 7,1978 the Reserve Bank of India stated that it
had decided to combine the seniority list of all officers on the basis of their
total length of service (including officiating service ) in Group I (Section
A), Group II and Group 111. The seniority of all officers in each of the three
Groups was to be combined with effect from May 22, 1974 on the basis of their total length
of service, including officiating service, in the grade in which they were then
posted on a regular basis. The Circular introduced combined seniority with
retrospective effect from May 22, 1974
(the date of an earlier Administrative Circular No. 15) as it was "fair
and equitable to the officers as a class". The effect of this decision was
that the group wise system of seniority which was in existence in the bank for
more than 27 years stood substituted by a combined seniority for officers in
the aforesaid grades with retrospective effect. This adversely affected the
existing seniority of many officers, particularly those in Group I. The
validity of this Administrative Circular was challenged. This Court held that
the said Administrative Circular No. 8 and the draft combined seniority list
prepared pursuant to it did not violate the rights of the petitioners under
Articles 14 and 16 of the Constitution whether there should be a combined
seniority in different cadres or groups is a matter of policy which does not
attract the applicability of groups is am pointed out that the past events
showed the equality clause. The Court pointed out that the past events sowed
that the various Departments of the Reserve Bank of India were grouped and
regrouped from time to time. Such adjustments in the administrative affairs of
the Bank were a necessary sequel to the growings of new situations which are
bound to arise in any developing economy. The Court pointed PG NO 784 out
further that no scheme governing service matters can be fool-proof and some
section or the other of employees is bound to feel aggrieved on the score of
its expectations being falsified or remaining to be fulfilled. Arbitrariness,
irrationality, perversity and mala fides will of course render any scheme
unconstitutional but the fact that the scheme does not satisfy the expectations
of every employees is not evidence of these. This decision clearly leads to a
conclusion that grouping and regrouping of different categories of employees is
inevitable in a large organisation with a view of meeting changing situations
and needs of a live organisation. Merely because the chances of promotion of
some employees are adversely affected by such grouping or regrouping, that does
not lead to a conclusion that it is against the law. We may point out that in
the case before us, there is no contention urged before us that the equating of
posts or the combined seniority list was promoted by any mala fides. We fail to
see how the combined seniority list or the treating of the said posts as equal
status posts can be said to be arbitrary in the absence of any material and,
particularly, in view of the fact that the learned Chief Justice and the
learned Judges of the Delhi High Court considered the facts and took the view
that it was necessary in order to provide for transfers from one department to
another and to provide adeq uate promotional opportunities to various sections
of the employees of the Delhi High Court.
Apart
from this, it must be observed that the challenge to the said posts being
treated as equal status posts comes much too late to the entertained in the
writ petition. These posts were treated as equal status posts under Rule 2 read
with the Schedules to the said Seniority Rules of 1971 and certain promotions
have also been made under the said Rules.
These
Rules became effective in 1971 at is much to late to seek to challenge them in
1979, long after Rule have been given effect to. It may be mentioned that,
although they did make representations, the petitioners chose to file the Writ
Petition only as late as in 1979. In our view, the challenge to the Rules
providing for the said posts being posts being treated as equated posts or
equal status posts can be negatived on the ground of delay or latches apart
from other considerations.
The
next submission of learned Counsel, Mr. Thakur, which he stated was his main
submission, is that under the relevant Rules an appointment to the post of
Assistant Registrar has to be made by selection from Superintendents.
Private
Secretaries and Readers or Court Masters and hence all employees holding these
posts in a permanent capacity PG NO 785 must be considered to be eligible and
within the zone of consideration for selection to these posts. It was not open
to the learned Chief Justice, Respondent no. 1 herein, to limit that zone of
consideration in any manner. He drew our attention to the Establishment
(Appointment and Conditions of Service) Rules of 1972 and in particular Item
No. 3 of Schedule II thereof framed under Rule 7 of the said Rules.
He
pointed out that under the said item, the appointment to the post of Assistant
Registrar, which is a selection post is to be made by selection on merit from
categories of officers of categories 5, 6 & 7 of Class II mentioned in
Schedule, namely, Superintendents. Court Masters (Readers) and Private
Secretaries. It was submitted by him that this Rule excluded any reference to
seniority and even if it was open to the appointing authority to limit or
restrict the zone of consideration it could not be limited with reference to
seniority.
It was
urged by Mr. Thakur that the rule that the promotion was to be made on the
basis of selection on merit prescribed by the Chief Justice in conscious
exercise of his powers conferred under Article 229 of the Constitution the
decision to restrict the zone of consideration to four or five times the number
of posts available on the basis of seniority under the combined seniority list
was a mere administrative instruction or decision. It was submitted by him that
the said instruction or decision is in conflict with that rules prescribing the
method of selection by merit and hence it is bad in law. We propose to proceed
on the assumption that Mr. Thakur may be right in his contention that mere
administrative instructions cannot override rules framed in exercise of the
powers conferred under Article 229 of the Constitution although the person
issuing the administrative instruction may be that same person who prescribed
the rules as in the case before us. Even then, It has to be considered whether
the said administrative instructions or decision in any way conflicts with the
rules. In this connection Mr. Thakur drew our attention to that decision of
this Court in the case of Guman Singh v. State of Rajasthan and Ors., [1471] Suppl.
S.C.R. 900. The few facts which need to be noticed in connection with this case
are that in 1965 the State of Rajasthan decided to introduce the system of
making promotions to the service on the basis of merit alone in addition to the
existing system of making promotions on the basis of seniority-cum-merit. On
December 14, 1965, Rule 28B was incorporated into Rajasthan Administrative
Service Rules, 1954, providing for appointment by promotion to posts In the
service on the basis of merit and on the basis of' seniority-cum-merit in the
proportion of 50:50 and prescribing that the number of eligible candidates to
be considered for promotion was to be 10 times the total number of vacancies to
be filled up on PG NO 786 the basis of merit as well as seniority-cum-merit.
Prior to August 26, 1966, Rule 28B was amended but we are not concerned with
such amendments. On that date, Rule 28B was further amended by providing that
the proportion of promotion to be made by selection on the basis of merit and
seniority-cum-merit was to be 1:2 instead of 50:50. On the same date, a proviso
was also added to sub-rule (2) of Rule 28B providing that only officers who
have been in service for not less than 6 years in the lower grade of the cadre
will be eligible for being considered for the first promotion in the cadre.
There was, however, a circular issued subsequently, that is after the said
Rules were framed which provided that 50 marks were to be given for the record
of 5 years prior to the period of 5 years preceding the selection; and for the
five years preceding the selection the marking of 25 was to be given on the
basis of confidential rolls. The validity of this Circular was challenged on
various grounds. This Court took the view that from the Circular it was clear
that an officer who has rendered less than five years of service will not be
eligible to get a single mark out of 50 which is provided for the record for
the period preceding five years far the simple reason that he will have no such
record. An officer who has put in less than five years of service has been
straightway denied 50 marks out of 75 marks and he has to establish his worth
within the small range of 25 marks on the basis of his confidential rolls which
will be available for a period of less than five years. It was held that this
formula which was prescribed in the circular was opposed to Rule 28B and Rule
32 which ensured that merit and merit alone was to form the basis of promotion
as against the quota fixed for merit. in contradistinction to seniority-
cum-merit. It may be pointed out that in that case the circular question stated
that the instructions contained therein should be strictly kept in view when
persons are being considered for promotion. In view of this the Circular was
held to be invalid.
In our
view. this. decision does not lend support to the submission of learned
Counsel. Mr. Thakur. This Court pointed out that Rule 28B of the Rajasthan
Administrative Service Rules, 1954, in brief, provided for two methods of
section one based on merit and the other based on seniority-cum-merit. In other
words the rule provides that the promotion based on seniority-cum- merit for 50
per cent the posts in contradistinction to that based on seniority-cum-merit
prescribed for the other 50 per cent of the posts. and that the selection on
merit shall be strictly on the basis of merit. Rule 32 was similar Rule 28B. It
was pointed out that by this Court he word merit is not capable of easy
definition. but it can be safely said that merit is the sum total of various
qualities and attributes of an employee such as his academic qualifications,
his distinction in the University, his PG NO 787 character, integrity, devotion
to duty and the manner in which he discharges his duties. Allied to this may be
other matters or factors such as his punctuality in work, the quality and
out-turn of work done by him and the manner of his dealing with his superiors
and subordinate officers and the general public and his rank in the service.
Rule 32 in essence adopts what is stated in Rule 28B. It was held that the
restriction contained in the proviso to sub-rule (2) of Rule 28B providing that
before an officer in the junior scale could be considered fit for promotion to
the senior scale, he should have worked on post in the service at least for
some period of time, was quite reasonable. The provisions contained in sub-rule
(2) confining the selection to senior most officers not exceeding 10 times the
number of total vacancies was also held to be reasonable. Such a provision
would encourage the members of the service aspiring for promotion to make
themselves eligible by increasing their efficiency in the discharge of their
duties. However, the impugned Circular was bad in law as it left no discretion
to the Selection or Promotion Committee to adopt any method other than that
indicated in the Circular in making selections for promotion and the method
prescribed was so rigid and so worded as to impede the selection being made on
merit. It was held that the Circular was violative of the rule prescribing
selection on merit. We may point out that this decision does not take the view
that where selection is to be on merit, seniority cannot be taken as a relevant
factor for limiting the zone of consideration provided of course, that this is
not done so rigidly as to exclude a proper selection on merit being made. In
fact, it runs to the contrary effect. We may refer. In this connection, to the
case of Sant Ram Sharma v. State of Rajasthan und Anr., [1968] 1 S.C.R. 111
where it was inter alia contended on behalf of the petitioners that in the
absence of any statutory rules governing promotions to selection grade posts,
the Government cannot issue administrative instructions and such instructions
cannot impose any restriction not found in the rules already framed. A Bench
comprising five learned Judges of this Court dealt with the contention as
follows (p. 119):
"We
proceed to consider the next contention of Mr.
N.C. Chatterjee that in the absence of any statutory rules governing promotions
to selection grade posts the Government cannot issue administrative
instructions and such administrative instructions cannot impose any
restrictions not found in the Rules already framed. We are unable to accept this
argument as correct. It is true that there is no specific provision in the
Rules laying down the principle of promotion of junior or senior grade officers
to selection PG NO 788 grade posts. But that does not mean that the statutory
rules are framed in this behalf the Government cannot issue administrative
instructions regarding the principle to be followed in promotions of the
officers concerned to the selection grade posts. It is true that Government
cannot amend or supersede statutory rules by administrative instructions, but
if the rules are silent on any particular point Government can fill up the gaps
and supplement the rules and issue instructions not inconsistent with the rules
already framed." We may also refer, in this connection to the decision of
this Court in Reserve Bank of India v. N.C. Paliwal
& Ors., 1977] 1 S.C.R. 377 which was cited before us although the decision
is not directly relevant to the case before us. In that case a challenge was
made to the combined seniority scheme adopted by the Reserve Bank of India. The High Court had taken the view
that the scheme adopted by the Reserve Bank was violative of Articles 14 and 16
of the Constitution inter alia on the ground that the said combined seniority
list framed persuant to the scheme had the effect of prejudicing the
promotional opportunities assured to the petitioners under the Optee Scheme
which had previously been adopted by the Bank and it discriminated against the
petitioners in relation to the clerical staff in the General Department who
either did not exercise the option under the Optee Scheme or having exercised
the option were not selected. It was observed by this Court (p. 393) that there
can be no doubt that it is open to the State to lay down any rule which it
thinks appropriate for determining seniority in the service and it is not
competent to the Court to strike down such rule on the ground that in its
opinion another rule would have been better or more appropriate. The only
enquiry which the Court can make is whether' the rule laid down by the State is
arbitrary and irrational so that it results in inequality of opportunity
amongst employees belonging to the same class. the Court pointed out that in
the case before it, the employees from the non-clerical cadres merit being absorbed
in the clerical cadre and therefore, a rule for determining their seniority vis-a-vis
those already in the clerical cadre had to be devised. If the non-clerical
service rendered by the employees from non- clerical cadres were wholly
ignored, it would be unjust to them. Equally, it would have been unjust to
employees in that clerical cadre, if the entire non-clerical service of those
coming from non-clerical cadres was taken into account for non-clerical service
cannot be equated with clerical service and the two cannot be treated on the
same footing.
The
Reserve Bank, therefore, decided that one-third of the PG NO 789 non-clerical
service rendered by employees coming from non- clerical cadres should be taken
into account for the purpose of determining seniority. It was held that this
rule attempted to strike a Just balance between the conflicting claims of
non-clerical and clerical staff and it cannot be condemned as arbitrary or
discriminatory.
We may
also refer here to the decision of a Bench comprising four learned Judges of
this Court in Ashok Kumar Yadav & Ors. etc. etc. v. State of Haryana & Ors. etc. etc., [1985] Suppl.
I.S.C.R. 657. Rule B clause (1) of the Punjab Civil Service (Executive Branch),
Rules, 1930 prescribes a competitive examination for recruitment to posts in Haryana
Civil Service (Executive) and other allied services. The relevant regulation
(Regulation 5) lays down that the compulsory subjects carry in the aggregate
400 marks and there is also viva-voce examination which is compulsory and which
carries 200 marks and each optional subject carries 100 marks. Thus, the
written examination carries an aggregate of 700 marks for candidates in general
and for ex- servicemen it carries an aggregate of 400 marks as they were
exempted from appearing in optional papers and the viva-voce test carries 200
marks. Regulation 3 provides that no candidate shall be eligible to appear in
the viva-voce test unless he obtains 45 per cent marks in the aggregate of all
subjects. In the written examination held by Haryana Public Service Commission
for recruitment to 61 post in the Haryana Civil Service (Executive) and other
allied Services over 1300 candidates obtained more than 45 per cent marks and
thus qualified for being called for interview for viva-voce examination. The Haryana
Public Service Commission invited all that said candidates for the viva-voce
examination with the result the interviews lasted for about half a year. In the
meantime, further vacancies arose as 191 posts became available far being
filled and, on the basis of total marks obtained in the written examination as
well as viva-voce test, 119 candidates were selected and recommended by the Haryana
Public Service Commission to the State Government.
The
petitioners before the High Court failed to get selected on account of poor
marks obtained by them in the vive-voce test, although they had obtained high
marks in the written examination. They made several allegations regarding the
competence of the members of the Public Service Commission as well as regarding
favoritism and sc on. The contention with which we are concerned is the
contention urged by the petitioners that the number of candidates called for
the interview was almost 20 times the number of vacancies and this widened the scope:
for arbitrainess in selection by making it possible for the Haryana Public
Service Commission PG NO 790 to boost up or deflate the total marks which might
be obtained by candidates and this invalidated the selection made. The Punjab and Haryana High Court held that
the selection made by the Haryana Public Service Commission was bad in law and
decided in favour of the petitioners. On an appeal by special leave to Supreme
Court, the Division Bench of the Supreme Court observed as follows (p. 690) :
"We
must admit that the Haryana Public Service Commission was not right in calling
for interview all the 1300 and odd candidates who secured 45 per cent or more
marks in the written examination. The respondents sought to justify the action
of the Haryana Public Service Commission by relying on regulation 3 of the
Regulations contained in Appendix 1 of the Punjab Civil Service (Executive
Branch) Rule, 1930 which were applicable in the State of Haryana and contended
that on a true interpretation of that Regulation, the Haryana Public Service
Commission was bound to call for interview all the candidates who secured a
minimum of 45 per cent marks in the aggregate at the written examination. We do
not think this contention is well founded. A plain reading of Regulation 3 will
show that it is wholly unjustified. We have already referred to Regulation 3 in
a~n earlier part of the judgment and we need not reproduce it again. It is
clear on a plain natural construction of Regulation 3 that what is prescribed
is merely a minimum qualification for eligibility for appearing at the vive-
voce test must obtain at least 45 per cent marks in the aggregate in the
written examination. But obtaining of minimum 45 percent marks does not by itself
entitle a candidate to insist that he should be called for the viva- voce test.
There is no obligation on the Haryana Public Service Commission to call of the
viva-voce test all candidates who satisfy the minimum eligibility requirement.
It is
open to the Haryana Public Service Commission to say that out of the candidates
who satisfy to eligibility critarion of minimum 45 per cent marks in the
written examination, only a limited number of candidates at the top of the list
shall be called for interview." The Bench, however, went on to hold that. in
its view, merely because the Haryana Public Service Commission had called all
the 1300 candidates who obtained 45 per cent or PG NO 791 more marks in the
written examination to appear in the interview that did not invalidate the
selection made. This decision points out that the minimum eligibility
qualification has to be kept distinct from the zone of consideration and even
if there are a large number of candidates who satisfy the minimum eligibility
requirement it is not always required that they should be included in the zone
of consideration, it being open to the authority concerned to restrict the zone
of consideration amongst the eligible candidates in any reasonable manner.
In the
case before us, zone has been restricted by prescribing that out of the total
number of candidates who satisfy the eligibility requirement, the zone of
consideration will be limited to a multiple of 3 to 5 times of the number of
vacancies and the persons to be considered will be determined on the basis of
their seniority in the combined seniority list. It appears to us that there is
nothing unreasonable in this restriction. It was open to the Delhi High Court
to restrict the zone of consideration in any reasonable manner and limiting the
zone of consideration to a multiple of the number of vacancies and basing it on
seniority according to the combined seniority list, in our view, it cannot be
regarded as arbitrary or capricious or mala fide. Nor can it be said that such
restriction violates the principle of selection on merit because even
experience in service is a relevant consideration in assessing merit.
We may
also refer in this connection, to the decision of this Court in V.J. Thomas and
Ors. v. Union of India, & Ors., [1985] Suppl. S.C.C.7 where it has been
pointed out that even though minimum eligibility criterion as fixed for
enabling one to take the one to take can be confined on a rational basis
examination, yet the examination to recruits up to a certain number of years. in
adopting such a policy which underlay the Note to clause (4) of Appendix 1 to
the new Rules in question, there is nothing which is arbitrary or amounting to
denial of equal opportunity in the matter of promotion. It had the desired
effect of not having a glut of Junior Engineers taking examination compared to fewer
number of vacancies. Length and experience were given recognition by the Note.
The promotion can be thus by stages exposing the promotional avenue gradually
to persons having longer experience. This seems to be the policy underlying the
Note and there was nothing arbitrary or unconstitutional in it Such a
limitation caters to a well-known situation in service jurisprudence that there
must be some ratio of candidates to vacancies. If for taking an examination
this aspect of classification is introduced, it is based an rational and
intelligible differential which has a nexus to the object sought to be achieved
(see p. 13). In view of what we have pointed out above, the submission of Mr. Thakur
in this connection must also be rejected.
PG NO
792 In fairness to learned Counsel for the petitioners, we must at this stage
refer to the decision of the Division Bench of the Allahabad High Court in Madan
Mohan Saran & Anr. v. Honble the Chief Justice and Ors.,[1975] 2 S.L.R.
889 on
which strong reliance was placed by learned Counsel.
In
that case, the petitioner before the Allahabad High Court challenged 3 orders
passed by the Chief Justice containing general principles for fixation of
seniority of the staff holding posts in various grades in the Establishment of
the High Court and the Gradation List of 1951, the Draft Gradation List of 1967
& the Final Gradation List of 1969 in so far as certain respondents were
shown as senior to the petitioners. We are not concerned with the other reliefs
prayed for by the petitioners in that case. One of the contentions of the
petitioner (see paragraph 31 of the report) was that before making a promotion
to the post of Assistant Superintendent or a Superintendent, the entire field
of eligibility had to be considered and an omission on the part of respondents
nos. 1 and 2 to do so rendered the promotion made invalid and that this was
what happened when certain respondents were promoted. The Division Bench
pointed out that there was no allegation in the counter- affidavit that a serutiny
of the entire field of eligibility was made before the respondents were
appointed. Rule 9 of the Allahabad High Court (Conditions of Service of Staff)
Rules, 1946 being the relevant rule found place under the heading promotion to
the posts of responsibility etc." Posts of Assistant Superintendents and
Superintendent were posts of responsibility and trust and were covered by Rule
9. The said rule provided that promotion to such posts of responsibility or
trust or which require special qualifications "shall be made by section
irrespective of seniority". Relying upon the interpretation given to the
expression "selection irrespective of seniority" in Mahesh Prasad Srivastavaa
c. Abdul Khair, [1971] 1 S.C..R 157 the Division Bench of the Allahabad High
Court in Madan Mohan Saran cuse (supra) held that"The use of the words
`selection, irrespective of seniority' shows that the field of eligibility
takes within its embrace even the Juniormost member of each department. Being a
selection post, promotion has not to be confined to the members of the
particular department in which the vacancy has occurred; and the Rule requires
respondents Nos 1 and 2 to take into consideration members of the entire
Establishment. irrespective of seniority, in making their choice for promotion-
- - - - - - - - - - - The question of merit enters primarily in the reckoning.
In our view, the petitioner is right in his contention that the ranking or
position in the Gradation List does not confer any right on the respondents to
be PG NO 793 promoted and that it is a well established rule that promotion to
such posts is to be based primarily on merit and not seniority alone". In
our view, this decision has no application to the case before us because the
words "irrespective of merit" which were used in Rule 9 of the Rules
in question are nowhere to be found in the relevant Rules or Schedules before
us. In fact, if it was the intention of the rule-making authority that all the
persons eligible. for the post should be considered in making the selection on
merit, expression like irrespective of seniority" or without regard to
seniority" or on merit alone" could have been used in the Rules or
the Schedule. We do not find any such words in Rule 5 of the said seniority
Rules, 1971 or in Rule 7 or Item 3 of Schedule II of the said Establishment
Rules of 1972. The mode of appointment to the post of Assistant Registrar, set
out in the said Item 3 of Schedule 11, merely states that the appointment will
be no selection on merits from confirmed officers of categories 5, 6 & 7 of
Class II mentioned in Schedule I and the said Item contains no such expression
as we have set out earlier or any other equivalent expression.
Coming
to the next submission of Mr. Thakur, it was submitted by him that the
interpretation placed by the Chief Justice and the learned Judges of the Delhi
High Court on Rule 7 of the said Appointment and Conditions of Service Rules,
1972 was incorrect. It was urged by him that, even if the Combined Seniority
List is valid, it could not be applied for the purpose of promotion. In dealing
with this argument, we may again briefly refer to Rule 5 of the said Seniority
Rules of 1971 which clearly provides that joint inter se seniority of confirmed
employees in categories of equal status posts shall be determined according to
their dates of confirmation in any of these categories. The posts of
Superintendents, Court Masters and Private Secretaries to the Honble Judges are
treated as equal status posts under Schedule I to the said Seniority Rules,
1971, framed under Rule 2 thereof. Rule 7 of the Establishment Rules of 1972
merely states that, except for appointment on officiating, temporary or ad hoc
basis, the mode of and qualifications for appointment to the posts specified in
Schedule 1I to the said Seniority Rules of 1971 shall be stated the rein and
Item 3 of the said Schedule II to which we have already referred earlier shows
that the appointment of Assistant Registrar is to be made on selection on
merits from confirmed officers in categories 5, 6 & 7 of Class II mentioned
in Schedule I. The only ground on which the validity of the said Rule 7 is
challenged is that if it is applied and the zone of consideration restricted on
the basis of the said Combined Seniority List, the prospects of promotion which
the Superintendents enjoyed would be PG NO 794 reduced. We find ourselves
totally unable to appreciate this argument. In the first place, it is not as if
either the said Rule 7 of the Establishment Rules of 1972 or Rule 5 of the
Seniority Rules of 1971 which provides for a Combined or Joint Seniority List
negatives the chance of any promotion to the posts of Assistant Registrars
being granted to the Superintendents. In fact, several Superintendents have
been promoted to the posts of Assistant Registrars after the said Rules became
effective. All that could be pointed out by Mr. Thakur was that under the
Combined Seniority list, for some time, relatively fewer Superintendents will
be within the zone of consideration for the posts of Assistant Registrars as
compared to Private Secretaries to the Honble Judges and Court Masters. We fail
to see how any of the said Rules or the said Combined or Joint Seniority List
can be struck down on the basis of such a consequence. In the first place, it
is well settled that no employee has a right to promotion as such. As we have
already pointed out the Rule does not exclude the possibility of
Superintendents getting promoted to the posts of Assistant Registrars. It may
happen that for an year or two, the number of Superintendents in the zone of
consideration might be fewer compared to the number of Court Masters and
Private Secretaries within the zone. But that situation might well be reversed
a few years later and it is impossible to hold that any of the said provisions
is bad in law on that ground. It was next submitted il, this connection that in
the mode of appointment set out in Item 3 of Schedule II to the Establishment
Rules of 1972 it is stated that for the posts of Assistant Registrars, selection
on merits had to be made from confirmed officers of categories 5, 6 & 7 of
Class II mentioned in Schedule I. It was urged that the reference to categories
5, 6 & 7 without reference to the Combined or Joint Seniority List
indicated that even if the zone of consideration was to be restricted on the
basis of seniority this could be done only according to separate seniority
lists for each of these three categories and that the Combined Seniority List
was not to be used for the purposes of limiting the zone of consideration.
According to learned Counsel, the Combined Seniority List was applicable only
for the purpose of transfers. In our view, this argument is unsound and cannot
be accepted. The reference to categories 5, 6 & 7 in Item 3 of Schedule II
to the said Establishment Rules of 1972 is merely made with a view to set out
the categories from which promotion or selection has to be made to the posts of
Assistant Registrars. The language of Item 3 nowhere indicates that there was
any idea to create anything like a quota for each of the said three categories
and in fact reading fairly the relevant Rules and Item in the Schedule, it
appears to us that the intention is to treat all these categories as forming a
single class or category for PG NO 795 purposes of promotion to the posts of
the Assistant Registrars. There is no warrant for limiting the use of the
Combined Seniority List merely to purpose of transfers. In fact, it appears to
us that Rule 5 of the Seniority Rules of 1971 and the Combined Seniority List
framed pursuant thereto were intended to provide for a combined seniority for
purposes of transfer as well as for purposes of promotion.
Finally,
it was pointed out by learned Counsel for the Petitioners that no uniform
policy has been followed in the past regarding the limitation of zone of
consideration as far as the selection to the posts of Assistant Registrars is
concerned. This may be so. But, we are afraid, by itself that circumstance
cannot lead to a conclusion that promotions are made arbitrarily because the
failure to follow one uniform policy in respect of limiting the zone of
consideration would not, by Itself, necessarily render the limitation of the
zone of consideration invalid on the ground of arbitrariness. So long as the
zone of consideration is limited by the competent authority in a manner not
inconsistent with the Rules or in a manner which is not arbitrary or capricious
or mala fide, the validity of the decision to limit the zone of consideration
cannot be successfully called in question on the ground that the manner in
which the zone of consideration was limited was not uniform. The zone might
have been limited on each occasion keeping in view the relevant circumstances
including the number of posts vacant and on a basis having nexus to the purpose
of selection. Although, the main grievance of the Petitioners as disclosed in
the oral arguments is regarding the limitation of the zone of consideration to
3 times the number of vacancies that grievance is not reflected in the prayer sought
and the prayer to the petition only relates to the decision of the
Administrative Committee of the learned judges of the Delhi High Court arrived
at on 3.2. 1977 to fill in the vacancy in the post of Assistant Registrar by
selection from the five seniormost persons from the joint seniority list of
Superintendents, Court Masters and Private Secretaries which list was finalised
under the said Seniority Rules of 1971 read with the Establishment Rules of
1972. This decision is at annexure 16 to the petition and it has been arrived
at by a Committee of Administrative Judges comprising the then learned Chief
Justice and four other learned Judges of the Delhi High Court. Nothing has been
shown to us to indicate that this decision of the Committee was in any manner
capricious, arbitrary or mala fide. The only contention is, as we have already
pointed out, that it was not open to the Committee to limit the zone of
consideration at all and secondly, that this could not be done with reference
to the joint seniority list both of which contentions we have PG NO 797 already
rejected earlier. In view of this, the challenge to this decision must fail.
In the
result, the petition fails and must be dismissed.
However,
looking to all the facts and circumstances of the case, it appears that the
parties should bear their own costs. Hence, the petition is dismissed and rule
discharged with no order as to costs.
S.L.
Petition dismissed.
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