B.S.Mathur & ANR.
Vs. Union of India & Ors. [2008] INSC 1730 (15 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 477 OF 2007 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
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 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 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 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 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 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 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) 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 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 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.
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 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.
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.
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 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 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 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 "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 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.
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.
(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 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 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 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 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 (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.
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 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 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 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 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 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.
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 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 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 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 above named
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 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
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 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
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 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 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.
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 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 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)
..........................................J.
(J.M. PANCHAL)
NEW
DELHI;
October
15, 2008.
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