Full Judgment Text
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CASE NO.:
Writ Petition (civil) 1023 of 1987
PETITIONER:
DELHI JUDICIAL SERVICES ASSN. & ORS.
Vs.
RESPONDENT:
DELHI HIGH COURT & ORS.
DATE OF JUDGMENT: 01/05/2001
BENCH:
G.B. Pattanaik, S.N. Phukan & B.N. Agrawal
JUDGMENT:
With
Writ Petition(civil) No. 1643/1987.
JUDGMENT
PATTANAIK,J.
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The unending dispute between the promotees and direct
recruits in Delhi Superior Judicial Service has reached the
third round in these two writ petitions and we hope and
trust that this will be the final round, at least for quite
sometime to come. After the judgment of this Court in
Singlas case, way back in 1984, disputes arose in the
matter of its implementation and the writ petitions filed in
this Court under Article 32 on being referred to a
Constitution Bench, on a misconceived notion that the
validity of the judgment in Singlas case is pending
consideration before a Constitution Bench, remained pending
for long 16 years and was finally disposed of by the
Constitution Bench since reported in 2000(8) SCC 25, Rudra
Kumar Sain and Ors. vs. Union of India and Ors. The
dispute was the manner in which the inter se seniority has
to be computed between the direct recruits and promotees in
Delhi Higher Judicial Service. The present two writ
petitions were initially also there before the Constitution
Bench, but in view of the fact that the subject matter of
dispute was different, an order had been passed to de-link
these two matters. Be it be stated that the writ petitions
which had been filed and were disposed of by the
Constitution Bench on 22.8.2000 was at the behest of the
promotee officers. The second round of litigation was at
the behest of some direct recruits, claiming seniority over
some of the promotees and that stood disposed of on
31.1.2001. These two writ petitions are at the behest of
promotee officers, one by the Association and another by an
individual. While the Association of promotee officers
claimed the relief that the vacancies available prior to
1987, when Delhi Higher Judicial Service Rules stood
amended, will have to be filled up under the pre-amended
rules and, therefore, the advertisement that was issued on
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6.4.1987, inviting applications for filling up 10 posts by
direct recruitment must be struck down, the other
application by an individual promotee officer assails the
validity of Rules 7, 8, 16 and 17 of the amended rules,
which were brought on 17th of March, 1987. The brief facts
necessary for disposal of these two writ petitions may be
stated hereunder. In exercise of powers conferred by the
proviso to Article 309 of the Constitution, the Lieutenant
Governor of Delhi in consultation with the High Court of
Delhi made a set of rules governing the conditions of
service of the Members belonging to the Delhi Higher
Judicial Service called the Delhi Higher Judicial Service
Rules, 1970 (hereinafter referred to as the Rules). The
Rules came into force on being published in the Gazette in
1971. The said rules define Initial recruitment in Rule
2(g) to mean the first recruitment and appointment made to
the service after the commencement of the rules and Rule 5
provides the method of recruitment to the service subsequent
to the initial recruitment and Rule 6 provides the method
for having the initial recruitment. Rule 16 conferred power
on the Administrator to create temporary posts in the
service and also to fill up the same in consultation with
the High Court by persons from amongst the members of the
Delhi Judicial Service. Thus, the temporary posts created
by the Administrator were intended to be filled up by
promotion from the Delhi Judicial Service. Rule 17 also
enables the Administrator to fill up the substantive
vacancies in the service by making temporary appointment
thereto from amongst the members of the Delhi Judicial
Service in consultation with the High Court. Rule 7
provided that recruitment to the Delhi Higher Judicial
Service could be from the Bar by direct recruitment but
under the proviso, not more than 1/3rd of the substantive
posts in the service could be held by the direct recruits.
When writ petitions were filed by some of the promotees,
O.P. Singla and Ors., making a grievance as to their
continuance on ad hoc or temporary basis for years together
and as to the discriminatory treatment that is meted out to
them, this Court in 1984(4) SCC 450, (O.P.Singla and Anr.
vs. Union of India and Ors.) came to hold that the
so-called quota provided in Rule 7 has been broken and,
therefore, the seniority has to be counted on the basis of
continuous length of service only, excluding the stop-gap or
fortuitous appointment. Following the judgment of this
Court in S.B. Patwardhan vs. State of Maharashtra, 1977(3)
SCC 399, the Court was of the opinion that in a situation
wheres quota and rota rule has inevitably broken down, the
seniority between the direct recruits and promotees should
be determined according to the dates on which they were
appointed to their respective posts, so far as direct
recruits are concerned and the dates from which the
promotees have been officiating continuously either in any
temporary posts created in the service or in substantive
vacancies to which they were appointed in a temporary
capacity. The seniority list was struck down and a fresh
seniority list was directed to be prepared on the basis of
continuous length of service. Pursuant to the aforesaid
decision of this Court, the High Court examined the matter
afresh. But as there was no enunciation of the expression
stop-gap, ad hoc and fortuitous, the High Court adopted a
peculiar procedure and determined the inter se seniority
Aggrieved by the same, when writ petitions were filed, those
writ petitions having been referred to the Constitution
Bench, stood disposed of on 22.8.2000, indicating the error
committed by the High Court and directing the High Court to
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re-draw the seniority list on the basis of observations made
in the aforesaid Constitution Bench, since reported in
2000(8) S.C.C. 25. It may be stated at this stage that the
Govt. of India, Ministry of Law and Justice, communicated
the decision to the Judicial Department of Delhi
Administration in June, 1986, conveying the sanction of the
President of India in respect of the creation of 14
temporary posts of Additional District and Sessions Judges.
Since at that point of time under the rules in force,
appointment to the temporary posts in the service could be
made only by promotion from Delhi Judicial Service, the
Association of Promotee officers made a representation to
the Chief Justice of the High Court that the newly created
temporary posts be filled up by promotion from amongst the
members of the Delhi Judicial Service, but that
representation having failed to evoke any response from the
High Court, a writ petition had been filed in this Court
which was registered as Writ Petition No. 1540/1986,
praying therein that mandamus be issued to the Lt. Governor
of the Delhi Administration as well as the Union of India to
fill up the posts of 14 temporary Additional District &
Sessions Judges in accordance with the Delhi Higher Judicial
Service Rules, 1970. That writ petition was disposed of by
an order of this Court dated 18.12.1986, which is quoted
herein-below in extenso:
We are indeed happy that the petitioners out of respect
for the High Court and having full trust in the High Court
have expressed their desire to withdraw the writ petition
for the sake of congenial atmosphere between the senior
members of the judicial family and the junior members
thereof. In the light of consensus emerging at the hearing
of the matter we deem it necessary to evolve the formula as
outlined hereinafter in order to resolve the problem with
expedition and to the satisfaction of all concerned.
Counsel appearing for all the parties are agreed that the
formula evolved as under is fair and reasonable and all of
them are agreeable to the same being embodied in our order,
accordingly do so as under:-
I
1. We request the High Court to be good enough to
finalise the draft rules latest by January 15, 1987. We
request the High Court to strain itself if necessary and to
ensure that the draft rules are finalised before the said
date and are forwarded to the Delhi Administration and the
Union of India for sanction by a special messanger
forthwith.
2. We request the Delhi Administration to be good
enough to take a decision in regard to the matter pertaining
to sanctioning of the draft rules latest by February 9,
1987. We also request the Delhi Administration to treat
this as a special case, to cut the delay which ordinarily
takes place on account of procedural problems, and take a
decision whether or not to grant the sanction on or before
the said date. In case sanction is granted the papers be
forwarded to the Union of India by a Special Messanger
forthwith.
3. We request the Union of India to be good enough to
treat this as a special case and to take a decision one way
or the other within three weeks of the receipt of the papers
from the Delhi Administration. We request that procedural
delays may be avoided and a special effort may be made to
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ensure that the appropriate decision is taken and is gazette
within the aforesaid time span.
4. During the interregnum awaiting the decision of the
Delhi Administration and the Union of India we request and
authorise the High Court to go ahead with the selection
process from amongst the members of the Delhi Judicial
Service in the light of the draft rules in anticipation of
sanction, so that the selection process is completed to the
extent possible by the time the sanction is received.
5. We also request and authorise the Delhi High Court
to invite applications from the members of the Bar by way of
a public advertisement for making direct recruitment in
anticipation of the sanction of the draft rules. When the
draft rules are sanctioned the applications which are
received will be treated as having been made in pursuance of
and under the rules as sanctioned and published by the
Competent Authority. After the draft rules are sanctioned
and published a further advertisement inviting applications
from the members of the bar for direct recruits shall be
published within a week of the publication of the rules
giving a short notice of 15 days to enable those members of
the bar who might not have responded to the first
advertisement issued in anticipation of the sanction of the
rules as indicated hereinbefore to make application. The
selection process in respect of direct recruits by way of
interviews etc. will begin after all the applications are
received pursuant to both the advertisements. The screening
of the applications received in response to the first
advertisement issued in anticipation of the sanction of the
draft rules may be undertaken meanwhile to save time.
6. We further request the High Court to make the
selection and forward its recommendations for filling the
posts to the Central Government as early as possible and in
any case by April 15, 1987.
7. We also request the Central Government to be good
enough to expedite the process of making appointments in
accordance with law upon the receipt of the recommendation
at the earliest.
II
8. Before we part with this matter we consider it
appropriate to make a recommendation to the Delhi
Administration and the Union of India in regard to a matter
of significance which came to force. Most of the judicial
officers of the Delhi Judicial Service have been stagnating
for very many years for lack of promotional avenue which is
inherent in the very nature of the service and limitation of
other openings due thereto. This situation results in the
judicial officers being less than contented in the absence
of incentive or hope for a better future. Such a situation
is not conducive to bring out the best in them. It is
desirable from every point of view to maintain the morale
and efficiency of the judicial officers at the highest
throughout their tenure. It strikes us that it would be
desirable to adopt the anti- stagnation formula which is
applied in many public Corporations by way of creating
Special grades carrying a better scale than the existing
grade for those who have invested 12 years of service. (We
think that 12 years would be appropriate because a selection
grade would be available to the judicial officers on the
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completion of eight years under the present rules the some
upgrading occurs four years later). We strongly recommend
that a decision on this issue be taken as early as possible
by the Delhi Administration and the Union of India in the
larger interest of all concerned.
9. We also recommend to the Delhi Administration and
the Union of India to give anxious and early consideration
to the request of the Delhi High Court for converting
existing temporary posts into permanent posts having regard
to the increase in the volume of work and the unliklihood of
decrease in workload in the near future.
In view of the aforesaid formula which has been well
received by all the parties who have reacted in a positive
manner in the right spirit, the petitioners are withdrawing
the writ petition. Liberty to revive the matter in case the
situation so demands but not before April 15, 1987. The
Writ Petition is disposed of as withdrawn accordingly.
The rules stood amended by a notification issued on 17th
of March, 1987 and by the amendment in question the
expression in substantive capacity occurring in Rule 2(d)
stood deleted. The word substantive in the first proviso
to Rule 7 was omitted. Sub-rule 2 of Rule 16 was
substituted and the substituted rule provided that the posts
created under sub-rule (1) of Rule 16 could be filled up in
consultation with the High Court from amongst the members of
the Delhi Judicial Service and by direct recruitment from
the Bar. By way of explanation, Rules 5, 7, 8, 9, 10 and 11
were made applicable to appointments made under Rule 16.
Rule 17 was also substituted by the amended rule which
provided for filling up of substantive vacancies in the
service by making temporary appointments thereto from
persons appointed under Rule 16. In nutshell, the impact of
the amended rules was that appointments could be made even
to the posts temporarily created under Rule 16, both from
the Bar as well as from the promotion from the Delhi
Judicial Service, which was hitherto being filled up only by
promotion. After the amended rules came into force, an
advertisement was issued on 6th April, 1987, inviting
applications from the practicing advocates for filling up of
10 temporary posts of Additional District Judges in Delhi
Higher Judicial Service. The Association of promotee
officers made representation to the High Court on 30.4.1987
against the aforesaid advertisement and the same having been
rejected and the order of rejection having been communicated
by letter dated 1st June, 1987, the two writ petitions were
filed in this Court, one by the association and other by an
individual member of the association.
Mr. P.N. Misra, the learned senior counsel, appearing
for the Association contended that the posts having been
created prior to the amended rules having come into force,
those posts could be filled up only in accordance with the
un- amended rules and necessarily, therefore, could be
filled up by promotion from the Members of the Delhi
Judicial Service, in terms of Rule 16, as it stood prior to
the amendment and in this view of the matter, the
advertisement that was issued to fill up 10 posts by way of
direct recruitment is contrary to law and is liable to be
struck down. Mr. Misra further contended that on a
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construction of Rule 7(b), even if it is held that the posts
were required to be filled up in accordance with the amended
rules, 14 posts having been created, only 1/3rd of those
posts could be filled up by direct recruitment and,
therefore, the advertisement is contrary to the provisions
of Rule 7(b) proviso.
Mr. G.P. Thareja, appearing in-person, in addition to
the contentions raised by Mr. Misra, further contended that
Rules 7, 16 and 17 violate Article 233 as well as Article
16(1) of the Constitution and as such the same must be
struck down. He also further contended that even on the
basis of calculations made by the High Court itself, the
number of posts available for direct recruits could be 9 and
not 10.
Mr. A. Mariarputham, appearing for the High Court of
Delhi, on the other hand contended that earlier order of
this Court dated 18.12.1986 having been passed in Writ
Petition No. 1540/86, which petition had been filed by the
promotees, urging that the newly created temporary posts
could be filled up only by promotion from amongst the
members of the Delhi Judicial Service, having unequivocally
indicated to go ahead by inviting applications from the
members of the Bar by way of public advertisement for making
direct recruitment in anticipation of the sanction of the
draft rules, the contention that the temporary posts created
could be filled up only by promotion from the members of the
Delhi Judicial Service is wholly unsustainable. The learned
counsel further contended that on a proper construction of
Rule 7(b), it would be apparent that though recruitment to
the post of Delhi Higher Judicial Service could be made both
by promotion as well as by direct recruitment from the Bar,
but under the proviso, not more than 1/3rd of the posts in
the service could be held by direct recruits. This being
the position and taking into account the total number of
posts in the Delhi Higher Judicial Service, the High Court
was fully justified in issuing advertisement for filling up
of 10 posts by direct recruitment and as such there is no
infirmity in the same, requiring interference by this Court.
He further contended that so-called challenge to the
validity of the Rules on the ground that it contravenes
Article 233 or Article 16 is of no substance as the
amendment in question have been brought about in the light
of observations made by this Court and at any rate there is
no contravention of either Article 16 or Article 233, and as
such the writ petitions are liable to be dismissed.
In view of the submissions made at the Bar, the first
question that requires consideration is whether the
temporary posts having been created prior to the amendment
of the Rules, is it the law that those posts could be filled
up only in accordance with the un-amended rules and not
otherwise? There is no dispute that 14 temporary posts of
Additional District & Sessions Judge were created in June,
1986 and it is also not disputed that as the posts in
question were not filled up, which could be filled up at
that point of time only by giving promotion to the Delhi
Judicial Service, the association had approached this Court
in Writ Petition No. 1540/86. Mr. P.N. Misra, relying
upon the decision of this Court in the case of Y.V.
Rangaiah and Ors. vs. J. Sreenivasa Rao and Ors., 1983(3)
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S.C.C. 284, and the decision of this Court in B.L. Gupta
and Anr. vs. M.C.D., 1998(9) S.C.C. 223, vehemently
contended that the posts being available prior to the
amendment coming into force, it was obligatory for the
authority to fill up those posts in accordance with the
rules, then in force and even after the amendment those
posts could be filled up only in accordance with the
un-amended rules. Mr. Misra contends that the rights of
the members of the Delhi Judicial Service to get promotion
to the Delhi Higher Judicial Service in respect of posts
created prior to the amendment of the rules, cannot be taken
away by inaction on the part of the concerned authority in
not filling up the same and issuing advertisement only after
the rules having coming into force. In Rangaiahs case
[1983 ( 3) S.C.C. 284] this Court on consideration of the
relevant rules as well as the instructions issued by the
Government, came to hold that a list of approved candidates
was required to be prepared as on 1.9.1976 for making
appointments to the grade of Sub-Registrar Grade II by
transfer, but no such list having been prepared and instead,
the same having been drawn up in 1977, by which time the
amended rules have come into force, it was held that the
legitimate right and expectations of those, who were
entitled to be included in the list which ought to have been
prepared in September, 1976 cannot be frustrated on account
of the fact that the panel had not been prepared and it was
so prepared only in the year 1977. It is on this
conclusion, the Court had held that the vacancies available
prior to 1.9.76 ought to be filled up under the un-amended
rules. The aforesaid decision will have no application to
the case in hand inasmuch as in Delhi Higher Judicial
Service there is no requirement of preparation of any panel
or list of candidates eligible for promotion by any
particular date. Then again, merely because posts were
created under Rule 16, it was not obligatory for the
appointing authority to fill up those posts immediately.
That apart, the most important feature is the earlier
order/direction by this Court dated 18.12.1986, which
unequivocally indicated that the High Court should start the
process of selection by direct recruitment in accordance
with the draft rules which the Court had seen at that point
of time. In other words, this Court on being aware of the
fact that temporary posts have been created and a grievance
has been made by the members of the Delhi Judicial Service
that those posts were required to be filled up only by way
of promotion from them in accordance with the rules as it
stood then, a direction had been given that the posts should
be filled up both by promotion and by direct recruitment in
accordance with the draft rules, in the event the said draft
rules ultimately come into force. This being the position,
it is difficult for us to accept the contention of Mr.
Misra, appearing for the association that the posts were
required to be filled up only by way of promotion under the
pre-amended rules notwithstanding the fact that the
advertisement itself was issued subsequent to the rules
being amended and notwithstanding the fact that this Court
earlier had indicated that the process of selection even by
direct recruitment should take effect, without waiting for
the rules being finally enforced. The other decision in
Guptas case [1998(9) S.C.C. 223], what the Court was
considering is that the rules of 1995 being prospective in
nature, the vacancies arisen earlier to that, whether could
be filled up under the pre-amended rules or the amended
rules. Relying upon three earlier decisions of this Court
referred to in paragraph (9) of the judgment, the Court held
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that the vacancies which had occurred prior to the amended
rules were required to be filled up under the old rules and
not by the amended rules. This decision undoubtedly could
have supported Mr. Misras contention to a great extent,
had not there been the order of this Court dated 18.12.1986
in Writ Petition No. 1540/86. The very dispute namely
whether a mandamus could be issued to fill up the
temporarily created posts by giving promotion to the
officers of the Delhi Judicial Service was before this Court
and the Court then evolved a formula which was held to be
fair and reasonable and, therefore on the agreement of
parties, the said formula was embodied in the order. In
other words, the Delhi Judicial Service Association, which
was petitioner in this Court, agreed to the formula evolved
by this Court to be embodied. While embodying the formula,
this Court had indicated that the High Court of Delhi should
invite applications from the members of the Bar by way of
public advertisement for making direct recruitment in
anticipation of the sanction of the draft rules and further
stated that after the draft rules are sanctioned and
published, a further advertisement, inviting applications
from the members of the Bar for direct recruitment shall be
published to enable those members of the Bar, who might not
have responded to the first advertisement issued in
anticipation of the sanction of the rules. In the teeth of
the aforesaid order, the conclusion is irresistible that 14
temporary posts created even prior to the amendment of the
rules could not have been filled up only by promotion from
the Delhi Judicial Service as contended by Mr. Misra, the
learned senior counsel appearing for the Association. On
the other hand, the earlier order of this Court
unequivocally stipulates that those posts should be filled
up in accordance with the rules to be amended, which at that
stage was only in a draft form. That apart, the process of
selection not having been started and even the advertisement
itself not having been issued and such advertisement having
been issued only subsequent to the amendment of the Rules,
it is futile to contend that the posts could be filled up
under the pre-amended rules, merely because the posts had
been created while the amended rules have not come into
force. We, therefore, do not find any substance in the
first submission of Mr. Misra, the learned senior counsel
appearing for the Association.
So far as the second contention of Mr. Misra is
concerned, it depends upon an interpretation of Rule 7(b) as
amended. Rule 7(b) provides that recruitment after the
initial recruitment shall be made 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. The
expression Service has been defined in Rule 2(e) to mean
the Delhi Higher Judicial Service. The expression direct
recruitment has been defined in Rule 2(i) to mean a person
who is appointed to service from the Bar. The expression
Initial Recruitment has been defined in Rule 2(g) to mean
the first recruitment and appointment made to the service
after the commencement of these rules. On a plain reading
of the proviso, it conveys the only meaning that while
making direct recruitment from the Bar to fill up the posts
in Delhi Higher Judicial Service, care should be taken so
that not more than 1/3rd of the posts in the service could
be held by direct recruits at any point of time.
Necessarily, therefore, the rules provide a maximum number
of posts which could be filled up by direct recruits and it
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does not say that 1/3rd of the number of vacancies at a
given point of time is required to be filled up by direct
recruits. The embargo under the proviso is that the High
Court, while is entitled to fill up the posts in Delhi
Higher Judicial Service both by promotion and by direct
recruitment from the Bar, but cannot make direct recruitment
so as to exceed 1/3rd of the total number of posts in the
service. At the relevant point of time when the
advertisement was issued, the total number of posts in the
service being 53, 39 permanent and 14 temporary and the
number of direct recruits at that point of time in Delhi
Higher Judicial Service being 8, the advertisement issued by
the High Court being for recruitment by direct recruits for
10 posts, would not constitute an infraction of the proviso
to Rule 7(b), as contended by Mr. Misra on the
interpretation of the aforesaid provision. We, therefore,
are unable to persuade ourselves to agree with the second
submission of Mr. Misra, appearing for the Association.
Coming to the question as to whether the amended rules,
particularly Rules 7, 16 and 17 can be held to be violative
of Article 233 or Article 16 of the Constitution, we fail to
understand how Article 233 can at all be held to have come
into play. The contention of Mr. Thareja is that by
providing in Rule 7 that not more than 1/3rd of the posts
could be filled up by direct recruitment, there has been a
decline in the standard of appointees in the lowest level
and the talented people are not willing to enter the
judicial service, which in turn affects the efficiency and
intelligence of the officers in the cadre and this in turn
must be held to be violative of Article 233. The learned
counsel also further contended that providing 1/3rd of the
posts in the cadre, both temporary and permanent to be
filled up by direct recruits results in the denial of
equality of opportunity and violates Article 16(1) as well
as it is discriminatory and violates Article 14. We see no
substance in the aforesaid contention. Article 233 itself
provides for appointment of District Judges and while Clause
(1) lays down that the appointment could be made by the
Governor in consultation with the High Court, exercising
jurisdiction in relation to the State by promotion from the
Subordinate Judicial Service, Clause (2) provides for
appointment by a person not already in service of the Union
or the State as District Judge, provided he has
been an Advocate for not less than seven years. In
other words, Clause (2) itself provides for appointment by
direct recruitment from the members of the Bar. The Delhi
Higher Judicial Service having been framed in consultation
with and on recommendations of the High Court and the rules
having provided for filling up the posts in Delhi Higher
Judicial Service by promotion as well as by direct
recruitment with the rider that the direct recruits cannot
be more than 1/3rd of the total number of posts, the
contention that such rule violates Articles 14, 16 and 233
is wholly misconceived. In fact the question no longer
remains res integra, the same, having been raised and
answered by this Court in the case of Orissa Judicial
Services Association, Cuttack and anr. vs. State of Orissa
and Ors. , AIR 1991 Supreme Court 382. In the aforesaid
premises, the contention of Mr. Thareja cannot be
sustained. In the premises as aforesaid, both the writ
petitions fail and are dismissed.
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